Hajja Falmata Kulwa V. Bukat Torbe & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

The Appellant before this Court was the Plaintiff at the trial Area Court Gamboru. Her claim against the Respondents bordered on an allegation that one Hajja Falmata Kulwa Kura (now late) gifted her (Hajja Falmata Kulwa Hana the Appellant herein) 2 rooms and a parlor in her house at Ngileruma Street of Limanti Ward, Maiduguri. That the Appellant now being a partner to the house in dispute challenged the sale of the other three rooms to Mallam Alhaji the 4th Respondent herein without her consent and permission as she had the first right of Pre-emption. The Plaintiff’s/Appellant’s claim succeeded before the trial Court and judgment was entered in her favour (pages 22-23 of the record of appeal).

The Defendants who are now Respondents herein were aggrieved partly against the decision of the said trial Court on the confirmation on the aspect relating the gift. Hence they appealed to the Upper Area Court 1 (U.A.C) as evidenced at page 24 fines 11 – 22 of the record of appeal. The Appellant alleged that the appellate lower Upper Area Court l while confirming the issue of gift raised before it nevertheless went on o frolic of its own to touch on the issue of pre-emption which, per that argued on behalf of the Appellant, was never at all a ground of appeal before it.

That the said Upper Area Court set aside the issue of pre-emption of pages 25 and 26 of the record of appeal. The Plaintiff/Appellant therein being dissatisfied with the said decision lodged an appeal against the refusal of the right of Preemption before the High Court under its appellate jurisdiction. Pages 27 – 33 of the record of appeal are in evidence.

The High Court in its judgment delivered on the 26th April, 2002 and borne out of pages 34 – 40 of the record of appeal confirmed the judgment of the Upper Area Court 1, Maiduguri on both the issues of gift and Preemption (shufa’ah)

Against the said judgment, the Appellant, after obtaining the leave of the Court below, of the 3rd June, 2002 filed 3 grounds of appeal to this Court. The said grounds of appeal without their particulars are reproduced hereunder as follows:

Ground 1

The Hon. Judges of the High Court erred in law when they held the appellants’ grounds of appeal before the Upper Area 1 to be an omnibus ground and he cannot be said to have acted outside his jurisdiction.

Particulars of error (a) – (b) supplied.

Ground 2

The Hon. Judges of the High Court erred in law when they held thus, “you cannot fault this decision. This decision cannot be said to be Perverse. Far from it. The upper Area Court judge made a subtle distinction between joint owner and a neighbour. The former has a right of pre-emption the latter has not. This decision tallies with the decision of the Supreme Court in Alkamawa v Bello (supra).

Particulars of error (a) supplied.

Ground 3

The Hon. Judges of the High Court erred in law when they held thus, “we were urged to note that the decision of the upper Area Court judge attracted a person who is not a party to the appeal but in our view that was inevitable. The issue was mainly between the heirs who were the vendors if at all, and the appellant who claimed that the right of Pre-emption that is vested in her as according to her she is a joint owner to the property with the heirs. The question which has to be resolved is whether she is a joint owner. The trial Area Court judge said she is but the upper Area Court judge said she is not. The purchaser so to say was caught up by cross fire. He was not intended. The real intention is whether Falmafa Kulwa Gana the done has a right of pre-emption. In our view she has no such as right as she is not a joint owner rather she is a neighbour and neighbours have no right of pre-emption.”