West African Cotton Ltd. & Anor V. Ibrahim Haruna (2007)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This appeal is against the judgment of the Katsina State High Court of Justice, sitting in Funtua Judicial Division, dated 29/6/2004, presided over by I. M. Bako, J, in an interpleader proceedings filed by the respondent, claiming ownership of property situate at Yar Malamai Road (Cinema House) covered by certificate of occupancy No. FAS/A/0089. The lower court entered judgment in favour of the respondent.

The facts leading to this appeal briefly are as follows: The appellants were judgment creditors in the case of (1) WEST AFRICAN COTTON LTD (2) ZAZZAU GINNERY LTD. VS. IBRAHIM HARUNA in suit No.KTH/FT/23/98. By the leave of the Katsina State High Court sitting in Funtua dated 17/11/2003, the immovable property of the judgment debtor situate at Yar Malamai Road (Cinema House) in Yankara town in Faskari Local Government Area was attached.

That prior to the date fixed for auction sale, the present respondent filed originating summons with 14 paragraph affidavit to which it annexed three Exhibits claiming the ownership of the said properties attached. The appellants also filed a 6 paragraph counter affidavit on the premises that judgment debtor in suit No. KTH/FT/23/98 is still the rightful owner of the property attached.

The counsel to the parties advanced argument on whether or not the judgment debtor in suit No. KTH/FT/23/98 still remains the owner of the said property. The lower court in its ruling delivered on 29/6/04 in favour of the respondent said as follows:

“I have carefully considered the agreements of both counsel with the supporting affidavit, counter affidavit and the authorities cited.

As I have observed in other sister cases to this one including suit No.KTH/FT/20/03, it is not open for the defendant to challenge the legality of the transaction that has taken place on 23rd September, 1998 merely for the purpose of enabling him to attach and sell the property in question inspite of exhibits A, B and C attached to the affidavit in support.

Secondly the same conditions that apply to the judgment debtor or the claimant as regards the securing of the consent of the local Government Chairman first before any transaction involving the property under Sections 21 and 22 of the land Use Act also apply to the judgment creditor.

The latter has not told this Court he has also obtained the requisite consent to enable him sell the said property by auction since he has already attached it. No evidence of such consent is before the Court. He is therefore equally guilty of the same default.

Finally I opine that with exhibits A, B and C before me I cannot but answer the 1st prayer in the originating summons in the negative. That is to say that the judgment debtor does not retain ownership of the property situated and lying behind the railway line Yarmalamai Road, Yankara Town, covered by Faskari Local Government C of O No. FAS/A/0089 now sought to be attached and sold by the judgment creditors in fulfillment of the judgment of this Court delivered on 25/11/98 between the judgment creditors and the judgment debtor.

Consequently the judgment creditors cannot sell the properties in question in fulfillment of the judgment of the Court delivered on 25/11/98 between the judgment creditors and the judgment debtor.”

Being dissatisfied with the judgment of the said court, the appellants filed a Notice of Appeal, dated 6/7/2004, containing four grounds of appeal. The said grounds of appeal with their particulars are as follows:

“GROUND ONE:

The learned trial Judge erred in law to have accorded strong probative value on Exh. A translated into Exh. B.