Hajiya Sadiya Shittu Adamu V. Leedo Presidential Motel LTD & Anor (2015)

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 Kano State High Court in Suit No K/450/1998 delivered by Honorable Justice P. A. Mahmoud on the 3th of March, 2004. This case is an off-shoot of another case with a chequered history. The Respondent was the owner of premises consisting of land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano. The Respondent borrowed money from the Third Party and it created an equitable mortgage over the said land and buildings in favour of the Third Party as security for the loan.

The Respondent defaulted in repaying the loan and whereupon the Third Party commenced an action and obtained Judgment for the indebtedness against the Respondent. The Third Party thereafter filed a motion ex parte in the High Court of Kano State for the attachment and sale of the immovable property of the Respondent, i.e. the said land and buildings, in satisfaction of the judgment debt and the motion was granted by the Court.

Thereafter the land and buildings were attached by the Deputy Sheriff of the High Court of Kano State and sequel to a

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Public Auction Notice issued by the said Deputy Sheriff, the land and buildings were sold at a public auction to the Appellant and a purchase receipt and Deed of Assignment were issued in favour of the Appellant.

Pursuant to the sale, the Appellant took out a motion ex parte before the High Court of Kano State praying for an order of possession of the land and buildings and the order was granted by the Court. In execution of the order, the Appellant, in the company of the bailiffs of the High Court of Kano State, ejected the Respondent from the land and buildings on the 6th of December, 1991 and the Appellant took over possession of the properties.

The Respondent appealed to the Court of Appeal against the order of attachment and sale of its land and buildings obtained on the basis of a motion ex parte and also against the order of possession also obtained on the basis of a motion ex parte and the Court of Appeal dismissed the appeal. On a further appeal, the Supreme Court upheld the contention of the Respondent and allowed the appeal. The Supreme Court declared the order of attachment and sale of the land buildings of the Respondent as null and void

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and it also declared the order of possession made in favour of the Appellant by the High Court of Kano State a nullity and it ordered the immediate restoration of the Respondent into the said land and buildings. The Appellant vacated the land and buildings and the Respondent re-took possession of his property sometime in 1998.

???The Respondent then commenced the present action in the lower Court against the Appellant and its claims by an amended statement of claim were for the sum of N153 Million as mesne profits/damages for use and occupation of the its property consisting of land and buildings situate at Plot 472, Hassan Katsina Street, Hotoro GRA, Kano from 5th of December, 1991, till date as well as the sum of N5 Million as general damages for trespass committed on the property by the Appellant and for illegal ejection. The Respondent pleaded the particulars of the mesne profits and it also claimed for interest on the sums from the date of judgment until liquidation at the rate of 10% per annum. The case of the Respondent before the lower Court was that the action of the Appellant in ejecting him from the property amounted to a trespass and that the

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possession of the property by the Appellant was improper and that it was denied the possession, use and enjoyment of the property from the 5th of December, 1991 until date and was thus entitled to be paid mesne profit/damages for use and occupation.

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