CORAM

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SALIHU MODIBBO ALFA BELGORE, JUSTICE, SUPREME COURT

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PARTIES

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ALHAJI MUSTAPHER KACHALLA APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

Alhaji Bukar Kumshe was the holder of a Statutory Right of Occupancy in respect of a plot of land. He approached an estate agent, and informed him of his desire to sell the property. The estate agent introduced him to the appellant, Alhaji Mustapher Kachalla who purchased the property. The sale was evidenced by a written agreement. The appellant had earlier satisfied himself on the ownership of the property by the vendor, by conducting a search at the Lands Registry. After the payment, the appellant was handed over the Certificate of Occupancy and was given possession of the property, and the tenants were told of the change of ownership. Meanwhile, Alhaji Tijani Banki, the first respondent claimed against the said Alhaji Bukar Kumshe payment for a debt. Judgment was given in favor of the claimant against the defendant in the terms of the claim and costs. Alhaji Tijani Banki, , applied to execute the judgment on the immovable assets of the judgment debtor, Alhaji Bukar Kumshe, at a public auction conducted by the Registrar of the Upper Area Court , after due advertisement, Alhaji Umaru Ngelzarma, the second respondent as the highest bidder, purchased the property. At the end of the day, the learned trial judge dismissed the appellant’s claims, because he had only an equitable interest while the 2nd appellant had a legal estate because he purchased the property at a public auction conducted on the orders of a court of law. The Court of Appeal dismissed the appeal brought before it. The appellant further appealed to the Supreme Court.

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HELD

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The appeal was allowed. The decision of the lower court was set aside. ?

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ISSUES

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1. 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.2. Whether the 2nd respondent acquired legal title over the priority (of the apppellant) through his purchase of the property by an auction sale conducted by the Upper Area Court.3. Whether the Court of Appeal was right to have affirmed the decision of the trial judge to dismiss plaintiff’s claim as it failed in its entirety when an order of non-suit is appropriate and accordingly ought to have been made in the circumstance.?

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RATIONES DECIDENDI

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THE FUNDAMENTAL RULE

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“The fundamental rule is that competing interests will generally rank according to the order of their creation.” Per DAHIRU MUSTADAPHER, JSC

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WHERE THE EQUITIES ARE EQUAL, THE FIRST IN TIME PREVAILS

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“Where there are two competing equitable interests, the general rule of equity is that the one whose equity attached to the property first will be entitled priority over the other.” Per DAHIRU MUSTADAPHER, JSC

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CASES CITED

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Labode V. Dr. Otutu [2001] FWLR (Pt 43) 207 at 235, (2001) 4 SCM 52Okoye V. Dumez [Nig] Ltd [1985] 1 NWLR (Pt.4) 783 at 790Ogunbambi V. Abowab [1951] 13 WACA 222Orasanmi V. Idowu [1959] 4 FSC 40Barclays Bank Ltd. V. Bird [1954] CH. 274Ugbo V. Aburime [supra] Labode V. Otutu supra and Okoye V. Dumez supra. Awosho V. Dada 1984 7 SC 149

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STATUTES REFERRED TO

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None

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