Habibu Alasan Tudun Wuzirchi V. Umar Yusuf Muhammed (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The action before the lower Court was commenced in 2001 by Yusuf Mohammed Tudun Wuzirchi, as plaintiff, against his brother Alasan Mohammed Tudun Wuzirchi, as defendant, and his claims were for:

i. A declaration that both the Plaintiff and the Defendant are joint owners of the house situate at Tudun Wuzirchi Quarters in Kano Municipality Local Government Area of Kano State.

ii. A perpetual injunction restraining the Defendant from interfering with the Plaintiffs right to stay and occupy and peaceful enjoyment in the said house.

iii. Cost of the action.

The case of the plaintiff on the pleadings was that the defendant was his brother of same mother and that the property in dispute was situated in Tudun Wuzirchi and was bounded in the east by Shamaki, on the west by Mamuda, on the south by Shamaki and on the north by a road. It was his case that about forty five years ago their mother, Hajiya Rakiya, was the Jakadiya to the mother of the late Emir of Kano, Alhaji Mohammed Sunusi and who was known as the Mai Babban Daki and that at this time he and the defendant were

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young and unmarried and they resided with their mother at Bakin Kasuwa. It was his case that their mother approached the mother of the Emir, Mai Babban Daki, to request for a house to live with his two children who were now of age and the Mai Babban Daki directed her subordinate, Jafaru Babban Zagi, to search for a vacant house and that two houses were presented to their mother to choose from, one in Kabara Quarters and the other in Tudun Wuzirchi and that their mother chose the house in dispute in Tudun Wuzirchi.

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It was the case of the plaintiff that he and the defendant moved into the house with their mother and that after the death of their mother, the two of them retained possession of the house as joint owners and they resided in the house peacefully and that at a point in time he left Kano on business and stayed in Gwarzo for about six years and that when he returned he discovered that the defendant and his children had built up all the spaces in the house. It was his case that he returned to Kano with his wife and his children and that when he wanted to resume his joint ownership of the house, the defendant denied him space and he had to rent a

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house until their relatives intervened and insisted on his moving back into the house and the defendant thereupon relinquished one room for him to live in. It was his case that at a time thereafter the defendant insisted that he must vacate the house that when he refused, the defendant commenced an action in the Kano State Rent Tribunal seeking to eject him from the house.

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The defendant denied the case of the plaintiff in its entirety and it was his case that both of them were born in Garko in Garko Local Government Area of Kano State and that he had left Garko for a long time and had settled in his house in Tudun Wuzirchi, the property in dispute, before their mother left Garko and joined him in Kano and that he was married with children before he left Garko. It was his case that he was the legal and lawful owner of the property which is at No. 26, Tudun Wuzirchi Kano and had been in possession of the house for over fifty years and that in 1990 he applied for and was granted a Kano Municipal Council Customary Right of Occupancy over the said property in his popular name, Mallam Dan’Azumi. It was his case that neither the plaintiff nor their mother ever