Alhaji Jelani Mabera V. Peter Obi & Anor (1972)

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FATAYI-WILLIAMS, J.S.C. 

In Suit No. SO/9/1970 in the Sokoto High Court the plaintiff’s claim against the defendants jointly and severally, as formulated in his writ of summons, reads:-

“1. Recovery of his house and landed property valued at 5,000 (five thousand pounds) situate and lying off Rigia Dorowa, Sokoto. The said house was unlawfully attached and sold under a writ of execution by the first defendant to the second defendant while plaintiff was in the East-Central State during the disturbance in the country.

2. Declaration of title.
3. 200(pounds) damages for trespass.
4. Accounts of all monies collected as rents by the second defendant from time of sale and that such monies be paid to the plaintiff.
5. That the purported sale of the house by first defendant to the second defendant be set aside, declared null and void and of no effect.”

Pleadings were ordered and were duly filed and delivered.

The facts as found by the learned trial judge are not in dispute and may be summarised as follows:-

The plaintiff whose full name is Peter Obi owned a house near Rigia Dorowa in Sokoto in the North-Western State. He lived in a portion of the house up till 1966. As a result of the disturbances in the country in 1966, the plaintiff, who is an Ibo, left Sokoto some time that year and did not return to Sokoto until the end of the civil war in 1970.

On his return, the plaintiff found that the Standard Bank Nigeria Ltd. (1st defendant) had unlawfully sold his house to the second defendant in satisfaction of a judgment debt owed by one Robert Benjamin Obi Ofiogbu. He approached the first defendant about the erroneous sale but the Bank manager (1st defence witness) said there was nothing the Bank could do about it. The 1st defence witness testified as to the circumstances leading to the attachment and sale of the house as follows:-

“Our Bank had a customer named Robert Benjamin Obi Ofiogbu.

He had an account with our Bank. The account was overdrawn. Our solicitors obtained judgment against Mr. Ofiogbu in 1962. Judgment was obtained in the Kano High Court. I do not remember the suit number of the case. I see exhibit 1. I see Suit No. K/103/61 written on it. I recognise this as the suit number. The judgment obtained against Ofiogbu was a little over 1,500(pounds). The debtor paid in on a monthly basis for about four years and then left the town in 1966. When he left in 1966, there remained a little over 300(pounds) still to be satisfied by the judgment debtor. Our solicitors got a writ of attachment over the debtor’s immovable property to satisfy the remaining amount of 300(pounds). The writ was executed and the house sold by the Deputy Sheriff for 400(pounds). Our judgment debt was fully satisfied. Our Bank did not sell the house. The house was sold in 1967 and we got our money about two years later. In 1970 I was approached by Mr. Peter Obi who told me that he understood his house had been sold whereas he did not owe the Bank any money. Peter Obi in fact did not owe the Bank any money. We told him that there was nothing that could be done and that the matter was in the hands of the court, and that any action he should take to rectify the mistake should be through the court.”

The learned trial judge, after summarising the evidence adduced before him by both parties and after making findings of fact in favour of the plaintiff, then considered the law with respect to the erroneous sale and found as follows:-

“The law is clear that a purchaser of a property under the execution of a fifa steps into the shoes of the judgment debtor by purchasing no more than the ‘estate’ of the judgment debtor therein. In other words what is sold and what is bought at a sale in execution is the right, title and interest of the judgment debtor-Dadzie v. Kojo (1940) 6 W.A.C.A. 139. It follows therefore that if a certain property which is attached under execution by way of fifa turns out to be in any way encumbered, the purchaser buys subject to that charge or encumbrance. Thus having already found as a fact that the second defendant did not purchase the right, title and interest of Ofiogbu in the house sold, the plaintiff must succeed in his claim for a declaration of title. I order that the purported sale of the plaintiff’s house be set aside as being null and void and grant the plaintiff a declaration of title to the house situate and lying off Rigia Dorowa in Sokoto. I further order that the second defendant Alhaji Jelani Mabera do give up possession of the house aforementioned to the plaintiff within three days hereof, i.e. on or before the 7th March, 1971.”

The learned trial judge also found for the plaintiff in respect of his claim for damages for trespass. He, however, dismissed his claim for account.

The second defendant (Alhaji Jelani Mabera) has how appealed against this judgment. Four grounds of appeal were filed and argued before us. They are as follows:-

“(1) That the whole trial was a nullity in that the High Court had no original jurisdiction to try and determine the matter as it raises an issue as to the title to land, or interest in land which is subject to the jurisdiction of the Area Court in Sokoto.