Mallam Adamu Ibrahim & Ors V. Alhaji Isa Ya?ata Yusuf (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Kaduna State High Court (the Lower Court) in suit No.KDH/KAD/248/2012 delivered on the 14th of March, 2013. By a Writ of Summons and Statement of Claim the appellants (as plaintiffs) sought the following orders against the respondent (the defendant) at the Lower Court.

“(A) A DECLARATION that the pledge of two (2) rooms in the property No.YY.12 Kazaure Road, Kaduna made by the Plaintiffs’ grandmother, Madam Fatima, in favour of the defendant’s father has been amortized through receipts by way of rent collected by the defendant’s father and the defendant from the property till date.

(B) AN ORDER releasing to the plaintiffs six (6) rooms being occupied by the defendant and his agents in the property by the reason of the said Pledge.

ALTERNATIVELY:

(c) A DECLARATION that the plaintiffs have an equitable right to redeem the pledge of the said two (2) rooms and accordingly that the price of the redemption be on the basis of the terms fixed by the Honourable Court

having regard to the rent so far collected by the defendant from the property as well as the circumstances of this case.

(D) AN ORDER directing the defendant and his agents to surrender to the Plaintiff possession of the six (6) rooms and any part of the property being occupied by the defendant.

(E) AN ORDER OF PERPETUAL INJUNCTION restraining the defendant either by himself, his agents or any person acting on his behalf from entering into, remaining on or in any manner tampering with the said property No. YY.12 Kazaure Road, Kaduna or doing any act prejudicial to the interest and right of the plaintiffs over the property.”

?After the filing of pleadings the suit proceeded to Pre-Trial Conference on the 16th of July 2012. The Pre-trial conference did not hold up to the 30th of January, 2013. The suit was adjourned to 27/2/13 for hearing. On the 27th of February 2013, the Lower Court recorded as follows:

“I have perused the plaintiffs claims and form the view that the competence of the suit in its entirety and by extension the jurisdiction of this Court ought to be addressed having regards to the limitation law of

Kaduna State. I direct that both parties filed and serve their respective written addresses on the issue within 7 days from today. The Defendant’s application for adjournment is also granted, case adjourned to the 14/3/2013 for adoption of written addresses on the competence of this suit.”

The suit was adjourned to 14th of March 2013 for adoption of written address by learned counsel to the parties. Both learned counsel to the appellants and the respondent failed to file written addresses as ordered by the Court on the 27/2/13. The Court then ruled on pages 96 – 98 of the record of appeal, and concluded its ruling on page 98 thus:

“The instant action is therefore incompetent thereby robbing this Court of the requisite jurisdiction to entertain same.