Emeka Okoli & Ors V. Alhaji Ibrahim Gadan Gaya (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/710/2010 delivered by Honorable Justice Tanimu Zailani on the 4th of May, 2010. The Respondent, as plaintiff, commenced the action in the Lower Court against the Appellants, as defendants, by an Originating Summons for Possession under the provisions of Order 50 of the High Court of Kaduna State (Civil procedure) Rules and he prayed for recovery of possession of property situate at Panteka and adjacent to the New Panteka Kaduna as depicted on the sketch plan of the area verged red and more particularly identified by the boundaries it shares with the shops/plot of Murtala painter, Abubakar, Samuel Panel Beater, Sule Panel Beater, Fatayi Panel Beater, etc on the ground that he is entitled to possession and that the persons in occupation are in occupation without his licence or consent. The Respondent raised two questions on the Originating Summons for the determination of the lower Court and these were:

i. Whether having regard to the sale of the property situate at Panteka, adjacent to the New Pantaka Market, off Nnamdi Azikiwe Way, Kaduna (and as depicted and verged red in the sketch plan) by the customary owners of the property to the Plaintiff as manifested in the Sale Agreement dated 17th September, 2002, the Plaintiff can be said to have acquired an equitable interest in the said property.

ii. Whether having regard to the dismissal of the claims of the Defendants as licensees on the said property by virtue of judgment in suit No KDH/KAD/909, the Plaintiff is entitled to recovery of the said property from the Defendants.

Consequent on the determination of the two questions, the Respondent prayed for an order directing the Appellants to vacate and deliver vacant possession of the property situate at Panteka, adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in the sketch plan to him forthwith. The originating summons was supported by an affidavit with exhibits attached and the Respondent filed a written address thereon. The Appellants responded to the originating summons by filing a defence and, a counter affidavit in support of the defence and to which were attached several exhibits and also a written address on the Originating Summons.

The case of the Respondent in the affidavit in support of the Originating Summons was that the property situate at Panteka, adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in a sketch plan attached as Exhibit A formed part of large stretch of land inherited by Messrs Abdul Mumuni, Jibrin dan Galadima Mahuta, Mai Anguwa Wada Alhassan and Abdullahi Alhassan from their late parents. It was his case that by a Sale Agreement dated 17th of September, 2002 he purchased the said property from the owners for the sum of N1 Million; photocopies of the Hausa version and the English version of the Sale Agreement were attached as Exhibits B and B1 and it was his case that the Appellants trespassed on the property without his consent or the consent of his predecessors-in-title and they took possession of the property under a claim that they were licensees thereon. It was his case that when he took steps to recover possession of the property, the Appellants commenced an action against him and his predecessors-in-title and the traditional rulers of the area of the location of the property in suit No KDH/KAD/9/2009 seeking, inter alia, the nullification of his purchase of the property and for a declaration that they were licensees on the property. It was his case that in the judgment of the High Court of Kaduna State in the said suit, the entire claims of Appellants were dismissed and certified copies of the statement of claim and of the judgment were attached as Exhibits C and D. It was his case that the Appellants have remained in possession of the property despite the judgment and that the order of the Court was necessary in order for him to take possession of the property.

The case of the Appellants in response was that all the named Appellants, some of whom were members of the National Automobile Technicians Association, were all allocated the different spaces they occupied on the property in dispute by the Kaduna South Local Government and that they have constantly and consistently paid the fates, fees and dues for the spaces to the Local Government since 1992; several receipts of payment, payment stall allocation cards and allocation letters were attached as exhibits. It was their case that, additionally, the first Appellant purchased the portion of land he occupied on the property it dispute from one Francis Aronbala who had earlier purchased the portion of land from Alhaji Salisu Kantoma in 1989 and copies of the documents of purchase were attached as Exhibit FO3 and FO4. It was also their case that the twentieth Appellant purchased his own portion of land, part of the property in dispute, from Alhaji Umaru Tafidan Gurau, one of the persons who allegedly sold the property to the Respondent and copy of acknowledgment of sale was attached as Exhibit KO1.

The lower Court took arguments on the Originating Summons and it deliberated thereon in its judgment thus:

“The real issue for determination is obviously that as formulated by the Plaintiff. Has the plaintiff made out case for resolution of the two questions raised? Is the Plaintiff entitled to the reliefs sought?

It is clear from the facts available in this Summons that the Plaintiff has acquired equitable interest in the landed property in dispute. Exhibit B and B1 attached to the plaintiff’s affidavit are clear and resting equitable right of the Plaintiff. See also the affidavit averments of the plaintiff. Exhibit C & D show that the Defendants did file a Suit No KDH/KAD/9/09 against the Plaintiff and these customary owners of the landed property. The exhibits clearly show the Defendants, claim in that case and the Court’s decision dismissing the entire claims. One of the reliefs sought in that case is for a declaration that the purported sale of the property between the Plaintiff and the customary owners was null, void and of no effect whatsoever; the court having decided on that cannot now re-open the subject. The Defendants had an option to appeal and they cannot raise the issue again before the same Court … Consequently, this Court cannot revisit the matter again.

With the plaintiff’s affidavit evidence, it is easy to answer the first question raised. It is answered in the affirmative. There is no doubt and same has been sufficiently proved that the Plaintiff has acquired, equitable interest in the disputed property.

And by the strength of the decision in the previous case No KDH/KAD/9/09, the Plaintiff is entitled to recover the property from the Defendants. This is more so because neither the plaintiff nor his predecessors in title gave the Defendants and other persons unknown license or consent to occupy the property … The existence of an order for recovery or a counter claim may not be necessary. The Defendants from the effect of the decision in KDH/KAD/9/09 cannot properly be left in possession of what does not belong to them. The plaintiff is right to submit this originating Summons in accordance with order 50 of the Rules of this court. The second question raised by the Plaintiff is also answered in the affirmative.

Having answered the two questions affirmatively, the Plaintiff has successfully and in accordance with Law proved his entitlement to the relief sought. Accordingly, I grant the relief and Order that the Defendants shall vacate and deliver possession to the Plaintiff the property situate at Panteka adjacent to the New Panteka Market, off Nnamdi Azikiwe Way, Kaduna and as depicted and verged red in the sketch plan forthwith.” (See pages 160 to 161 of the records)

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal against it and their Counsel filed a notice of appeal dated the 1st of June, 2010. The notice of appeal contained three grounds of appeal.