➥ CASE SUMMARY OF:
Alhaji Mustapher Kachalla V. Alhaji Tijjani Banki & Ors. (SC.235/2005 · 24 Feb 2006)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Ownership of property;
Public auction;
First in time prevails.
➥ CASE FACT/HISTORY
Alhaji A. Bulama, or as he is sometimes known, Alhaji Bukar Kumshe was the holder of the Statutory Right of Occupancy No. BO/12220 in respect of a plot of land containing a 24 bedroom storey building of burnt bricks located at Kumshe ward, Maiduguri. Sometimes in March 1994, Alhaji Bukar Kumshe approached an estate agent, Alhaji Lawal Baaji (PW1 herein) and informed him of his desire to sell the property. Alhaji Lawal Baaji introduced him to the appellant, Alhaji Mustapha Kachalla who purchased the property in the sum of ₦1,200,000.00. The sale was evidenced by a written agreement (exhibit M.K 2) dated the 16th day of March, 1994. The appellant had earlier satisfied himself on the ownership of the property by the vendor, by conducting a search at the Lands Registry Maiduguri. After the payment, the appellant was handed over the Certificate of Occupancy and was given possession of the property, and the tenants therein were told of the change of ownership. In the meanwhile, Alhaji Tijani Banki, the first respondent herein in suit No. BUAC/CVF/107/94 claimed against the said Alhaji Bukar Kumshe payment for a debt in the sum of ₦1,680,000.00. Judgment was given in favour of the claimant against the defendant in the terms of the claim and costs on the 22/8/1994. It is also noteworthy that the appellant was unable to register the assignment to him of the Right of Occupancy because of a letter written to the Land Registry by the registrar of the Upper Area Court directing the Land Registry to stay any further transaction or change of ownership in respect of the Right of Occupancy. In the meanwhile, attempts were made to execute the judgment against the movable assets of Alhaji Bukar Kumshe, when no moveable assets were found to satisfy the judgment debt, Alhaji Tijani Banki, through his lawyers, applied to execute the judgment on the immovable assets of the judgment debtor, Alhaji Bukar Kumshe. On the 18/4/1995 at a public auction conducted by the Registrar of the Upper Area Court 1, after due advertisement, Alhaji Umary Ngelzarma, the second respondent herein as the highest bidder, purchased the property at the rate of ₦520,000.00.
This is an appeal against the judgment of the Court of Appeal Jos Division, delivered on the 13th of March, 2001 whereby the decision of the High Court of Borno State dismissing the appellant’s claim was affirmed. Before the trial court, the appellant as the plaintiff in the amended statement of claim as per paragraph 9 thereof claimed thus: (a) A declaration that he is the bona fide owner of the property, the subject matter of this suit. (b) A declaration that the sale of his property is null and void and of no effect, and it be set aside and the property restored to him. (c) A declaration that the judgment debtor before the above trial court has no interest or right in plaintiff’s property. (d) A perpetual injunction restraining all the defendants from interfering with the plaintiff’s property including their agents, servants and privies. (e) An award of ₦5,000.00 as damages against the defendants for trespass. (f) Costs of this suit. Pleadings were ordered, filed and exchanged.
Pleadings were ordered, filed and exchanged. At the hearing, the parties testified and called other witnesses. Documentary evidence was also tendered. After the address of counsel and in his judgment delivered on the 18/11/1996, the learned trial Judge dismissed the claims of the plaintiff having found them devoid of substance. The plaintiff felt unhappy and appealed to the Court of Appeal. The Court of Appeal in its judgment delivered on the 13th day of March, 2001, dismissed the plaintiff’s appeal. This is a futher appeal to this court by the plaintiff, hereinafter referred to as the appellant.
➥ ISSUE(S)
I. Whether the learned Justices of the Court of Appeal were right in holding that the title and interest in the property did not pass to the appellant after sale of the house in question by Alhaji Bukar Kumshe to the appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE APPELLANT’S INTEREST COMES FIRST AND THUS OWNER OF THE LAND
‘Now, there is no doubt that a distinction exists between a legal estate or fee simple as opposed to an equitable interest in land, but that distinction cannot apply in a situation such as this and where the disputed land is governed by the provisions of the Land Use Act, in which, the maximum interest any person can hold is a right of occupation, the legal estate or legal interest is vested in the Governor of the State. See Nkwocha v. Governor of Anambra State (1984) 6 SC 362; (1984) 1 SCNLR 634. The tenor of the Land Use Act was to “nationalise” all lands in the country by vesting its ownership in the State. The maximum interest preserved in private individual hands is a right of occupancy. See Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305. The nature of interest any person can acquire is a right of occupation and no more. So the distinction between a legal estate in land and an equitable interest in land under the circumstances of this case cannot arise. In my view, the interest the appellant had acquired cannot be inferior to the interest acquired by the 2nd respondent. It is common ground and that there was no dispute about it, that the appellant purchased the land in dispute from the holder of the Statutory Right of Occupancy, Alhaji Bukar Kumshe, who issued him with a purchase receipt, put him in possession of the property and executed in his favour a deed of assignment. The appellant proceeded to register the deed of assignment, but was frustrated by the letter written to the land office by the Upper Area Court. It should be noted that the suit before the Upper Area Court was about a debt and had nothing to do with the land and the buildings on it. It should also be noted that the interest of the 1st respondent who filed the suit did not crystallise until over a year later. In otherwords, there was no judgment debt to execute when the letter was written.’
‘In property law, many different question of priority may arise, these may concern rival conveyances of property or as in this case competing interests in the holding of the right of occupancy. The fundamental rule is that competing interests will generally rank according to the order of their creation. See Barclays Bank Ltd. v. Bird (1954) Ch. 274; Ugbo v. Aburime (supra); Labode v. Otubu (supra) and Okoye v. Dumez (supra). In Owosho v. Dada (1984) 7 SC 149. This court per Aniagolu JSC said at 173: “The law has been well and long settled, that where a person pays for land and obtains receipt for the payment followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land, that was affirmed to be the state of the law in Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97.”’
‘The mere fact that there were tenants in the property coupled with the fact that the Upper Area Court and the 1st respondent were aware of the desire of Alhaji Bukar Kumshe to sell the right of occupancy, was sufficient to alert the respondents of the interest of the appellant. On this question of prior notice see the evidence of DW2 and DW3. At the end of the day, I resolve issues 1 and 2 in favour of the appellant.’]
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.
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✓ DECISION:
‘ I accordingly allow the appeal of the appellant. I set aside the decisions of the lower courts and I enter judgment in favour of the plaintiff as follows: (a) I declare that the plaintiff is the bona fide owner of the property, the subject matter of this suit. (b) I declare that the sale of the property conducted by the Upper Area Court at a public auction is null, void and was of no effect. I set it aside and I restore the property to the plaintiff/appellant. (c) I declare that the judgment debtor had no interest in the property which was sold to the plaintiff/appellant since 16/3/1993. (d) A perpetual injunction is hereby granted restraining all the defendants/respondents from interfering with the rights of the plaintiff/appellant on the property. (e) ₦5,000.00 damages for trespass. The plaintiff/appellant is entitled to costs in both the two lower courts and in this court which I assess at ₦5,000.00, ₦7,000.00 and ₦10,000.00 respectively jointly and severally against the respondents.’
➥ FURTHER DICTA:
➥ LEAD JUDGEMENT DELIVERED BY:
Musdapher, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
S. I. Ameh.
⦿ FOR THE RESPONDENT(S)
R. O. Yusuf.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
