Legalpedia Citation: (2023-09) Legalpedia 62242 (CA)

In the Court of Appeal

Holden at Kaduna

Fri Sep 22, 2023

Suit Number: CA/K/68/2018

CORAM

CHIDI NWAOMA UWA JUSTICE OF THE COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE OF THE COURT OF APPEAL

MUSLIM SULE HASSAN JUSTICE OF THE COURT OF APPEAL

PARTIES

MUBECO PETROLEUM COMPANY LTD APPELANT(S)

 

APPELLANTS

1. FIRST BANK OF NIGERIA PLC
2. TUNDE BELLO
3. ALHAJI ISIYAKU TAHIL MUSA
4. KADUNA STATE MINISTRY OF LANDS SURVEY AND COUNTRY PLANNING RESPONDENT(S)

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, LAND, PRACTICE AND PROCEDURE, PROPERTY

SUMMARY OF FACTS

The Appellant was the Plaintiff while the Respondents were the Defendants at the trial Court (Kaduna State High Court sitting at Kaduna). The Appellant claimed before the trial Court that she took some loan from the 1st Respondent to advance her business. The said loan was covered by deed of legal mortgage with the Appellant’s lubricant blending factory along Zaria Kaduna Road, and her petrol station located at Ahmadu Bello Expressway.

The Appellant was unable to pay the loan and the 1st Respondent appointed the 2nd respondent as receiver manager to sell the property and recover the loan. That however, the property of the Appellant which the 2nd Respondent was appointed by the 1st Respondent did not include the Petrol Station covered by the deed of legal Mortgage.

It is the Appellant’s claim that while in the process of disposing his property, he commenced talks with the 1st and 2nd Respondent to see how they could agree on an amount he could pay to settle the loan. Whilst that talk was ongoing, the defendants entered into an agreement to sell the Appellant’s petrol station to a company named Twelve Dots Investments Limited.

The 1st and 2nd Respondents claim that the 1st Respondent bank granted the Appellant loan of over three hundred million Naira to expand his business and it was covered by a deed of legal mortgage with Appellant’s petrol station. The Appellant failed to repay the loan and the 1st Respondent appointed the 2nd Respondent to sell the petrol station.

At the point of this sale, the indebtedness of the Appellant to the 1st Respondent was over One Billion Naira. However, upon evaluation of the property, the 1st Respondent requested the Appellant to pay the forced sale price of the property which was about One Hundred and Fifty Million Naira, but the Appellant failed to meet up and she instructed the 2nd Respondent to sell the property.

The case of the 1st and 2nd Respondent was that the Appellant was aware of the sale but did not complain about the sale and the property was sold to the 3rd Respondent for the sum of Forty Three Million Naira. After the sale, the 1st Respondent approached the Appellant to pay her the sum of One Hundred and Fifty Million Naira as final payment of his indebtedness, and since then, the Appellant had filed one suit to the other which had all been dismissed or struck out. The suit that led to the instant appeal was equally dismissed.

The buyer waited for the conclusion of all legs of the suit regarding the property to be decided before taking possession.

The trial Court ruled in favour of the Respondents. Aggrieved by the decision the Appellant filed the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether having regard to the doctrine of lispendens, the learned trial Judge was correct when he sustained the sale of the Appellant’s petrol filling station at Ahmadu Bello Way, Kaduna by the 2nd Respondent as receiver appointed by the 1st Respondent during the pendency of suits concerning the said filling station?
2. Whether the learned trial Judge was right in law when he upheld the sale of Appellant’s petrol station at Ahmadu Bello Way Kaduna also known as C7 Mogadishu Layout, covered by Certificate of Occupancy No. KD18597 by the 2nd Defendant and the 2nd Defendant had no capacity/authority to sell same?
3. Whether having held that the 4th Respondent, Kaduna State Ministry of land, Survey and Country Planning (formally 5th Defendant) was not a public officer and that the suit against it was not statute barred, the learned trial Judge had the jurisdiction to reverse itself and hold that the 4th Respondent is a public officer and that the suit against it was statute barred?
4. Whether the decision of the learned trial Judge that the 3rd Respondent was not liable to the Appellant for unlawful demolition and occupation of the Appellant’s petrol station pendente lite is correct?

RATIONES DECIDENDI

LIS PENDIS – MEANING AND EFFECT OF LIS PENDIS

First of all, what is lis pendis? it is simply a Latin expression which directly translates to mean the land in question is subject of litigation. Therefore, the maxim is aimed at letting the public know that the land in question is subject of litigation and any person who acquires such a property during the suit acquires same at his peril subject to the decision of the Court. The principle in itself does not translate into a cause of action as rightly submitted by the Respondents’ counsel. – Per M. S. Hassan, JCA

LIS PENDIS – ESSENCE OF LIS PENDIS

…lis pendis… As rightly submitted by the counsel to the 1st, 2nd and 3rd Respondents, the doctrine does not operate as a cause of action or a bar to the selling of the property concerned, it is only a notice for the public to beware that if you purchase the property, it is subject to the outcome of the decision of the Court. Therefore, you purchase same at your peril. – Per M. S. Hassan, JCA

INTERLOCUTORY ORDER – WHETHER AN INTERLOCUTORY CAN BE MADE TO RESTRICT AN ACT WHICH HAS BEEN CONCLUDED

While the Federal High Court’s order was made on the 22/4/2008, the State High Court order was made on the 20/2/2008, while the sale took place on the 29/1/2008. The restraining orders as it were are unenforceable because it is settled law that an interlocutory order cannot be made to restrain an act which has been concluded. – Per M. S. Hassan, JCA

LIS PENDIS – THE IMPORTANCE OF THE DOCTRINE OF LIS PENDIS

I agree with counsel to 1st, 2nd, and 3rd Respondents that the doctrine of lis pendis operates to give the buyer the title to the property subject to the outcome of the litigation. To the effect that if the Appellant succeeded in the Suit at Federal High Court Lagos, or the suit at Kaduna State High Court, he could have a case to make on the title acquired by the 3rd Respondent. – Per M. S. Hassan, JCA

COURTS – WHEN A COURT CAN SET ASIDE ITS DECISION

Whilst it is true that a Court can set aside its decision where same is made without jurisdiction, same can only be made in deserving circumstances. A Court can set aside its decision for want of jurisdiction when it was given without fair hearing, when the decision was obtained by way of fraud or misrepresentation of fact, or when it contains some errors.

And the Court can validly do so in terms of lack of fair hearing or fraud when an application is made pointing out the circumstance leading to the lack of fair hearing or fraud perpetuated which robs the Court of jurisdiction. It is certainly not the correct principle of law that a final decision of the Court supersedes the interlocutory decision as put by the 3rd Respondent’s counsel.  – Per M. S. Hassan, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Sheriff and Civil Processes Act

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