V. T. Kwaga & Anor V. Frank Amuga & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Kaduna State delivered by Hon. Justice H.T.D. Gwadah on the 28th day of January 2014. The Appellants herein were the Plaintiffs before the Lower Court.

The facts leading to the present appeal, by the Amended Statement of Claim of the Appellants, dated 1st February 2013, and the evidence of their sole witness (2nd Appellant), are that sometime in 2012 the 2nd Appellant met the 2nd Respondent in an office, trying to raise money on behalf of the 1st Respondent, to send to the 1st Respondent’s wife.

The 2nd Appellant informed the 2nd Respondent that though he had no money of his own he had some belonging to the 1st Appellant who had given him a Power of Attorney. He (2nd?Appellant) requested that the Respondents surrender their Certificate of Occupancy (C of O) as collateral for the loan. In agreement, the 1st Respondent, who was in Abuja, sent down a C of O.

An agreement dated 7/9/12 was consequently signed by the 2nd Respondent, with the knowledge and consent of the 1st Respondent, by which the sum of

N200,000 was loaned to the Respondents with a clause that the sum to be repaid would be N250,000. The C of O was surrendered to the 1st Appellant but was unfortunately stolen from the 1st Appellant’s office, causing him to report the loss and make publications in respect thereof. Following this, he obtained a Certified Copy from the Ministry of Lands. By the agreement entered into, the 1st Appellant was at liberty to take over the property belonging to the Respondents as his personal property, in the event of default of payment. In spite of oral demands, the Respondents failed to make payment and persisted in this default despite several demands.

They thereupon filed the claim at the Lower Court seeking the following reliefs against the Respondents jointly and severally, as follows:

1. A DECLARATION that pursuant to the agreement dated 1/9/2012 between V.T. Kwaga and the Defendants in respect of property No. 4/5 Ja’maa Road, Kaduna, V. T. Kwaga is entitled to the ownership and possession of the aforesaid property.
2. AN ORDER directing the Defendants, their agents, and or representatives to hand over vacant possession of NB 4/5 Ja’maa Road,

Kaduna to the Plaintiff.

3. Cost.

At trial, they tendered 6 exhibits, as follows:

– Exhibit 1 – Power of Attorney

– Exhibit 2 -Certificate of Occupancy

– Exhibit 3 – Affidavit of Loss of Certificate of Occupancy

– Exhibit 4 – New Nigerian Publication of Loss of C of O

– Exhibit 5 – Letter from 1st Appellant to Ministry of Lands, Kaduna State reporting loss of C of O and requesting for Certified Copy