ALHAJI ABUBAKAR MOHAMMED GWARZO v. ALHAJI AMEEN SULEIMAN MOHAMMED & ANOR (2012)

ALHAJI ABUBAKAR MOHAMMED GWARZO v. ALHAJI AMEEN SULEIMAN MOHAMMED & ANOR

(2012)LCN/5556(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of July, 2012

CA/K/11/2009

RATIO

WORDS AND PHRASES: MEANING OF MORTGAGE

It is settled that a mortgage is a conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms. It is further described as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MORTGAGES: CHARACTERISTICS OF A MORTGAGE

In terms of the definition, the following are the characteristics of a mortgage:

“(a) A mortgage can be effected only on immovable property. Immovable property includes land, benefits that arise out of land and things attached to earth like trees, buildings and machinery. But a machine which is not permanently fixed to the earth and is shiftable from one place to another is not considered to be immovable property.

(b) A mortgage is the transfer of an interest in the specific immovable property. This means the owner transfers some of his rights only to the mortgagee. For example, the right to redeem the property mortgaged.

(c) The object of transfer of interest in the property must be to secure a loan or performance of a contract which results in monetary obligation.

Transfer of property for purposes other than the above will not amount to mortgage. For example, a property transferred to Liquidate prior debt will not constitute a mortgage.

(d) The property to be mortgaged must be a specific one, i.e., it can be identified by its size, location, boundaries etc.

(e) The actual possession of the mortgaged property is generally with the mortgagor.

(f) The interest in the mortgaged property is reconvened to the mortgagor on repayment of the loan with interest due on.

(g) In case, the mortgagor fails to repay the loan, the mortgagee gets the right to recover the debt out of the sale proceeds of the mortgaged property.” PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MORTGAGE: NATURE OF A MORTGAGE

On the other hand, equitable mortgage has been described as a mortgage in which the lender is secured by taking possession of all the original title documents of the property that serves as security for the mortgage. It is effected by mere delivery of documents of title to property to the mortgagee. The mortgagor through Memorandum of deposit undertakes to grant a legal mortgage if he fails to pay the mortgage money. Equitable mortgage requires that;

“(i) there must be a debt existing or future,

(ii) there must be deposit of title deeds; and

(iii) the title deeds should be deposited as security for the debt.”

It gives the mortgagee the right to foreclose on the property, sell it, or appoint a receiver in case of non-payment. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MORTGAGE: DIFFERENCE BETWEEN LEGAL AND EQUITABLE MORTGAGE

it may be necessary to somewhat highlight a bit difference between legal or ‘registered mortgage and, equitable mortgage. Black’s Law Dictionary 9th Edition described equitable mortgage as “a transaction that has the intent but not the form of a mortgage, and that a Court of equity will treat as a mortgage.”

It was further expressed in Black’s law Dictionary (supra) that “Courts” of equity are not governed by the same principles as Courts of law in determining whether a Mortgage has been created, and generally whenever a transaction resolves itself into a security, or an offer or attempt to pledge land as security for a debtor’s liability, equity will treat it as a mortgage, without regard to the form it may assume, or the name the parties may choose to give it. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

MORTGAGE: RIGHTS OF A MORTGAGE UNDER AN EQUITABLE MORTGAGE

It must also be emphasized as had been done in a plethora of cases that under an equitable mortgage, an equitable mortgagee can sue the mortgagor personally for recovery of the money lent, i.e. he can sue under the covenant to repay. An equitable mortgagee is not entitled to enter into possession of the land unless the right to do so has been expressly reserved or the Court makes an order to that effect. Also, the general rule is that foreclosure, and not sale is the proper remedy for an equitable mortgagee. The statutory power of sale is only exercisable if the mortgage is made by deed, and therefore would only be permissible where the contract to create a legal mortgage provided for the legal mortgage to be created by deed; or where the deposit of title deeds is evidenced by a memorandum by deed. Alternatively, the Court may order a sale. A Receiver can also be appointed in respect of an equitable mortgage, but, the appointment must be by the Court. Further, it is noteworthy that foreclosure applies where a deposit of title deeds has been accompanied by an agreement with the borrower to give a legal mortgage if required to do so or where there has been a deposit of title deeds without a memorandum. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

ALHAJI ABUBAKAR MOHAMMED GWARZO Appellant(s)

AND

1. ALHAJI AMEEN SULEIMAN MOHAMMED
2. ALHAJI SURAJ GARBA KARAYE Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The record of appeal before this Court depicts that the Appellant commenced legal proceedings against the Respondents before the Kano State High Court by way of originating summons dated the 10th September, 2007 and sought for the following declarations:

“(a) A declaration that the Judgment of this Honourable Court in Suit No. K/258/1993 delivered on the 31st January, 2000 is a nullity regard being had to the existence of the Judgment of this Honourable Court in Suit No. K/347/1992 delivered on the 27th day of November, 1992 which was valid and subsisting as at the time the judgment in Suit No. K/258/1993 was delivered.
(b) A declaration that as at the 31st day of January, 2000 the 1st Defendant’s title over the property in contention has been extinguished and he could not have been adjudged to have any title or interest to pass over to the 2nd Defendant.
(c) A declaration that the Plaintiff’s title over the property in contention could have been adversely affected by the judgment of this Court delivered on the 27th day of November, 1992 (sic) in Suit No. K/258/1993.
(d) A declaration that the Plaintiff enjoys priority of title over the Defendants regard being had to the legal principles of priority of title as it relates to landed property.
(e) A declaration that the right to litigate and prosecute Suit No. K/258/1993 as at the time of the institution of the Suit had been defeated by the existence of Suit No. K/347/1992 and the principles of estoppel, res judicata, laches and acquiescence and standing by.
(f) An order of this Honourable Court setting aside the judgment of this Honourable Court in Suit No. K/258/1993 delivered on 31st day of January, 2000.
(g) An Order of this Honourable Court confirming the title of the Plaintiff over the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled Order of this Court dated the 19th day of May, 1993, the bailiff’s receipt dated the 3rd day of January, 1995 and the Certificate of purchase dated the 19th day of August, 1993 evidencing the sale of the landed property.
(h) An Order of this Honourable Court directing the Defendants to deliver possession of the property unto the Plaintiff forthwith.
(i) An Order of Perpetual injunction restraining the Defendants by themselves, agents servants or whomsoever from further trespassing or disturbing the Plaintiffs possession and enjoyment of the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled order of this Honourable Court dated the 19th day of May, 1993 and Certificate of Purchase of land dated the 19th day of August, 1993 evidencing the sale of the landed property”.

In the said Appellant’s Originating Summons, five questions were raised for determination by the lower Court. They were as follows:
“1. Whether the Judgment of this Honourable Court in Suit No. K/258/1993 delivered on the 31st day of January, 2000 is not a nullity regard being had to the Judgment of this Court in Suit No. K/347/1992 delivered on 27th day of November, 1992 in pursuance of which the landed property giving rise to the respective Suits was sold to the Plaintiff.
2. Whether as at 31st day January, 2000 Musa Adamu could have been adjudged to have any vested title and interest in the property in contention that could have been passed on to him by the Court.
3. Whether title of the Plaintiff in the property vested in him in pursuance of the judgment of this Honourable Court in Suit No. K/347/1992 dated the 27th day of November, 1992 could have been adversely affected by the subsequent judgment of this Honourable Court in Suit No. K/258/1993 regard being had to the enrolled order of this Honourable Court dated the 19th May, 1993, bailiff receipt dated the 3rd day of January, 1995 and Certificate of Purchase of land dated the 19th day of August, 1995 evidencing the sale of the landed property.
4. Whether by the principle of priority in land matters, the Plaintiff does not enjoy superiority of title over the Defendants regard being had to the competing judgment and their respective times of delivery.
5. Whether the Defendants’ right to litigate and prosecute Suit No. K/258/1993 has not been defeated by the existence of Suit No. K/347/92 and the operation of the principles of estoppel, res judicata, laches, acquiescence and standing by, having regard to the Defendants’ failure to partake in the proceedings in Suit No. K/347/92 which was earlier in point of time than Suit No. K/258/1993”.

The facts proffered in support of the suit were averred by one Abdurrahman Mukutar Abdullahi Esq; Legal practitioner in the Law Firm of Messrs A. A. Malami & Co., the Appellant’s counsel; in the affidavit of five paragraphs sworn to by him. Equally made available for the perusal of the Lower Court were Exhibits ‘A’ – ‘F’ attached to the said affidavit.

Further procured by the Appellant in support of the reliefs sought, were the facts contained in the Further and Better affidavit dated 26/11/2007 deposed to by one Calister Anyadike, a Ligation Secretary in the Law Firm of A. A, Malami & Co., Esq; the Appellant’s Counsel, to which was attached the legible copy of the Judgment attached to the main affidavit in support of the Originating Summons as Exhibit ‘B’.

In reacting to the suit, the Respondents filed a five paragraph counter-affidavit which was deposed to by one Mustapha Idris Esq; a Legal Practitioner, in the Law Firm of Messrs Mohammed Umar & Co. the Respondents’ Counsel. There was no documentary evidence attached to the affidavit.

The parties’ respective counsel filed their written addresses which were respectively adopted before the Lower Court. After the hearing and perusal of the same, the trial court dismissed the Appellant’s suit. The Appellant was obviously agitated by the said decision that he rushed to exercise his right of appeal as enshrined in the Constitution of Federal Republic of Nigeria, 1999, by filling his Notice of Appeal which he predicated on four grounds of appeal.
Sequel to that, the parties filed and exchanged their Briefs of Argument which they adopted before this Court at the hearing of this appeal. Only two issues were propounded by the Appellant for the determination of this Court. They are as follows:
“1. Whether the decision of the trial High Court that the 1st Respondent obtained his title to the property in 1988 before the Appellant who bought in 1995 was not perverse having regard to the evidence on record.
2. Whether the decision of the trial High Court was not wrong in determining the Appellant’s case on the basis of principle of estoppel when the Appellant’s case was based on priority of title and competing interest as it affects parallel judgments of co-ordinate Courts.”

Upon being served with the Appellant’s Brief of Argument, the Respondents raised a Preliminary Objection questioning the competency of the appeal on the grounds, viz:
“(i) Ground One in the Notice of Appeal relates to matters which were never raised at the lower Court and thus is a new or fresh issue in respect of which the Appellant have not sought nor obtained leave to raise a fresh issue and therefore Ground 1 is incompetent.
(ii) Issue 1 in the Appellant’s Brief of Argument is formulated from Grounds 1 and 4 and thus combines arguments on an issue formulated from an incompetent Ground of Appeal i.e. Ground 1 and a competent Ground of Appeal i.e. Ground 4 and thus renders the whole issue incompetent.”

The Respondents, further, distilled three issues from the four grounds of appeal of the Appellant for consideration by this Court in the event of their Preliminary Objection being overruled. They are as thus:

“1. Are the Judgments of the Kano High Court of Justice in Suit No. K/347/92 Between the Nigerian Arab Bank Ltd vs. Alhaji Musa Adamu and Suit No. K/258/93 between Alhaji Suleiman Mohammed vs. Alhaji Musa Adamu contradictory judgment (paralled judgments) on the same subject the latter of which is a nullity and did the judgment of the Court in Suit No. K/258/93 constitute a review of the judgment in Suit No. K/347/93?
2. Did the Appellant derive title from a Deed of Legal Mortgage between the Nigeria-Arab Bank Ltd and Alhaji Musa Adamu which title is superior to the title of the 1st and 2nd Respondents derived from a sale by Alhaji Musa Adamu to the 1st and 2nd Respondents predecessor in title.
3. Was the Judgment of the Lower Court against the weight of evidence.”

The argument rendered by the Appellant’s Senior Counsel, A.A. Malami, S.A.N, in respect of issue No. 1, shows that it was in the exercise of the defunct Nigeria-Arab Bank Ltd’s power of sale under the legal mortgage executed by Alhaji Musa Adamu Abdullahi (the vendor of the 1st Respondent) in favour of Nigeria-Arab Bank Ltd, that the Nigeria-Arab Bank Ltd sold the property in question to the Appellant following an Order of sale dated 19th May, 1993. As a result, the Appellant was issued with the Receipt of Sale and Certificate of Purchase by the Sheriff of the lower Court. Counsel specifically invited this Court to examine the said Order of sale, Purchase Receipt and Certificate of Purchase, the Legal mortgage and the judgments in Suit Nos. K/347/92 delivered on 27/11/1992 and K/258/1993 delivered on 31/1/2000. He then posed the questions:
“Whose title comes first between the Appellant and the 1st Respondent, and, which of the two enjoy Legal authority?”

The learned Senior Counsel contended that by the Deed of Legal Mortgage registered in 1985, Musa Adamu, the grantor of the 1st Respondent, conveyed the property unto the Nigeria-Arab Bank, which eventually transferred the same unto the Appellant, via Order of Sale dated 19/5/1993. He asserted that by virtue of Section 16 of the Sheriffs and Civil Process Act Cap S.6, Laws of the Federation of Nigeria, 2004 which is in pari materia with Section 15(a) of the Sheriff and Civil Process Law, Laws of Kano State of Nigeria, the transfer of the Bank’s title unto the Appellant which was concluded by the Sheriff of the Court was Judicially fortified and statutorily mandated. He incisively stated that both Nigeria-Arab Bank Ltd and Alh Ameen Suleiman Mohammed traced their title to Alhaji Musa Adamu.

He stressed that by the Deed of Legal Mortgage, Musa Adamu mortgaged his title over the property unto the Nigeria-Arab Bank in 1985. He further explained that the Order in Suit No. K/347/92 made by the Kano State High Court, legal authority was granted to the Nigeria- Arab Bank to sell the property, which was indeed sold to the Appellant with the Receipt of Sale and Certificate of Purchase being issued to him by the Sheriff of the High Court of Kano State. He stated that Alhaji Musa Adamu was as at 1985 divested of title over the property pursuant to a deed of mortgage and the divestiture was fortified by the subsequent order of sale dated the 19th May, 1993. Learned Counsel submitted that the implications of the Deed of Legal Mortgage and the Order of Sale made by which the property was sold unto the Appellant, is established by Section 15 of the Sheriff and Civil Process Law of the Laws of Kano State which provides that the Appellant as the purchaser of the property acquired a good title to the property.

He argued that it is perverse for the trial Court to hold that the 1st Respondent’s title that was purportedly acquired in 1988 enjoys priority over that of the Appellant who acquired title from Nigeria-Arab Bank, that, in turn, acquired same from Musa Adamu in 1985, and, have same fortified by judicial sale effected pursuant to Suit No. K/347/92, vide an order granted in 1993, even before the judgment in Suit No. K/258/1993, by virtue of which the title in the 1st Respondent was conferred pursuant to the Judgment delivered on the 31st day of January, 2000.

The Learned Senior Counsel cited the cases of Ahmadu Bello University vs. Fadinamu Trading Co. Ltd and Ors (1975) 1 NWLR 42; Abiodun vs. Olatunde Fanoiki and anor (1990) 2 NWLR Part 131 page 137 at 151; Barclays Bank Ltd vs. Bird (1954) CH . 274 at 280 and Kari vs. Ganaram, Suit No. S.C.131/1994, (1997) 2 NWLR Part 488 page 380 at 403 and submitted that where, as in the present case, there are competing interests by two or more parties, claiming title to the same land from a common grantor, the position, is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure, which simply means, he who is earlier in time is stronger in law.

Counsel explained that Exhibits ‘A’, ‘B’ and ‘C’ established the title of Nigeria-Arab Bank over the property in question as having been derived from Musa Adamu, while Exhibits ‘O’ and ‘E’ evidenced the Sale of the said property by Nigeria-Arab Bank to the Appellant via judicial process pursuant to Section 15 of the Sheriffs and Civil Process Law, Laws of Kano State. He contended that the purported transaction between the same Musa Adamu and the 1st Respondent in 1988 over the same piece or parcel of land, is invalid since Musa Adamu’s title has been divested by an earlier grant in favour of Nigeria-Arab Bank. He cited the cases Okafor Egbuche vs. Chief Idigo (1934) 1 SCNLR 168; Ugo vs. Obiekwe (1989) 1 N.L.R. 140; Adams Akeye vs. Chief Suen (1925) 6 N.L.R. 87; Sanyaolu vs. Coker (1983) 3 S.C. 124 at 163; (1983) 1 SCNLR 168; and Ugo vs. Obiekwe (1989) 1 NWLR Part 99 page 566, in support.

He further relied on the maxim,’Nemo Dat Quod Non Habet’; meaning that no one can give that which he does not have. Counsel argued that the same grantor cannot subsequently and lawfully vest the same Statutory Right of Occupancy in respect of that same piece of land to the 1st Respondent. The case of Kari vs. Ganaram (1997) 2 N.W.L.R. Part 488 page 380 at 403 was relied upon by Counsel. He submitted that the only way a third party like the 1st Respondent can acquire any interest over the property in dispute is for him (the 1st Respondent) to settle the indebtedness of his vendor who mortgaged the property to Nigeria-Arab Bank Ltd.

Counsel further relied on the cases of Kayode vs. Odutola (2001) 11 NWLR Part 725 page 625 at 682-683, paragraphs H-B, Yaro vs. Arewa Construction Ltd (2007) NWLR Part 1063 page 332; Mohammed vs. Klargester Nig. Ltd (2002) 18 NWLR Part 787 page 335 at 360 paragraphs D – G, Alhaji Juradat Animashaun vs. G. A. Olojo (1990) 5 NWLR Part 154 page 111; Oguyemi Dada & Ors vs. Olusegun Oshinkanlu (1995) 5 NWLR Part 398 page 755 at 772, Okoye vs. N. C. & F. Co. Ltd (1991) 6 NWLR Part 199 page 105; U.N.N. vs. Orazulike Trading Co. (1989) 5 NWLR Part 119 page 19 at 26; M.B.A vs. Owoniboys Tech. Service Ltd (1994) 8 NWLR Part 365 page 705 at 717; Tewogbade vs. Obadina (1994) 4 NWLR Part 338 page 326 at 347 – 348; Boulos vs. Udunsi (1958) W.R.N. 169; Coker vs. Animashaun (1960) L.L.R. page 7; Adam Akeye vs. Chief Suen (1925) 6 N.L.R page 87 and Egbuche vs. Chief Idigo, 11 N.L.R 140, and submitted that priority of interest over the Respondent cannot be subject of any controversy. He stated that the 1st Respondent acquired his purported title or interest over the property in 1988, three years after the property in dispute was mortgaged to Nigeria-Arab Bank Ltd. Counsel explained that the Deed of Legal Mortgage executed by Adamu Musa who was the vendor of the 1st Respondent was registered at the Land Registry Kano as No: 39 at page 30 in Volume 9 (Mortgages) of the Land Registry in the Office at Kano. Counsel submitted that the nature of a mortgagor’s interest left after mortgaging his property is known as equity of redemption that the said Musa Adamu can part with.

He then referred to the holding of the trial Court at page 90 of the record and said that the trial Court’s decision that validated such sale in the absence of evidence that the mortgagor, the said Alhaji Musa Adamu Abdullahi has repaid the mortgage sum is perverse. He pointedly argued that the only interest the said Alhaji Musa Adamu Abdullahi can pass to the 1st Respondent is his equity of redemption. Counsel further emphasized that the registration of the said Deed of Legal Mortgage constituted a Notice to the whole world, therefore, the 1st Respondent cannot be described as a bona fide purchaser for value without notice. He, further, made reference to the judgments in Suit Nos. K/347/92 and K/258/1993 and then queried; “whether the judgment in K/258/1993 delivered on 31/1/2000 could operate to nullify the parallel judgment in K/347/1992 delivered on 27/11/92, and the order dated 19/5/1993 by which the said property was attached and eventually sold to the Appellant?” He submitted that no Judge of the High Court possesses the power to review the decision of his fellow Judge of co-ordinate jurisdiction. Learned Counsel contended that by the judgment in Suit No. K/347/92 delivered on 27/11/1992 and the order dated 19/5/93, Musa Adamu’s title over the property has already been divested and conferred on the Appellant by the trial Court. He, then, urged this Court to hold that the decision of the High Court was perverse.

Regarding issue No.2, i.e. “whether the decision of the trial High Court was not wrong in determining the Appellant’s case on the basis of principle of estoppel when the Appellant’s case was based on priority of title and competing interest as it affects parallel judgments of co-ordinate Courts”; Counsel referred to the questions presented in the Originating Summons dated 10/9/2009, the two issues formulated therefrom and the holding of the trial Court at page 91 of the record of appeal at which it resolved the issue of estoppel against the plaintiff, and, submitted that the trial Court’s decision that addressed estoppel as against priority of title, occasioned a miscarriage of justice by failing to give the Appellant the opportunity to be heard on it. He urged the Court to allow this appeal.

As I earlier demonstrated in this judgment, the Respondents raised a Preliminary Objection to this appeal, and, in that regard, the cases of Our Line Ltd vs. S.C.C. Nigeria Ltd & anor (2009) 17 N.W.L.R. Part 1170 page 382 at 423; per Chukwuma-Eneh; J.S.C.; Chief Igboama Ezekwesili & Ors vs. Chief Gibson Onwuagu & Ors (1998) 3 N.W.L.R Part 541 page 217 at 238 paragraph B; Olalonu Industries Ltd vs. Nigerian Industrial Dev. Bank Ltd (2009) 16 N.W.L.R Part 1167 page 266 at 286; and Lesere Idaayor & anor vs. Chief Sampson Tigidam (1995) 2 N.W.L.R. Part 377 page 359 at 378, were made reference to and relied upon by their Learned Senior Counsel, D.E.B. Offiong, S.A.N. Learned Counsel further submitted that the Appellant is barred from raising a point he never raised nor canvassed before the trial Court on appeal. He stated that the Appellant’s ground No. 1 in his Notice of Appeal did not represent the question he raised at the Court below. He stated that the Appellant’s claim was hinged on the fact that he obtained title to the property pursuant to the judgment entered in Suit No. K/347/92 delivered on 27/11/92. He then urged that the Appellant’s Ground No.1 and issue No. 1 be struck out for being incompetent.

Submitting in respect of the issues formulated by them in the appeal, the Respondents’ Senior Counsel began by attacking the phrase; “Parallel judgment” used by the Appellant in describing the judgments’ obtained in suit Nos. K/347/92 and K/298/93 respectively by the parties. He argued that such phrase is not a legal term and ought to be discarded. Counsel preferred to use the word ‘contradictory’. He stated that in determining whether the two judgments were contradictory to one another, the meaning ascribed to the word ‘Judgment’ must be ascertained first. He then, sought for refuge in the Supreme Court’s decision in Lawrence Adebola Oredoyin & Ors vs. Chief Akala Arowole & Ors (1989) 4 N.W.L.R. Part 114 page 172 at 211, per Oputa, J.S.C, and submitted that a claim that one judgment is contradictory to the other means that:
(1) The rights and claims of the parties in the two cases were the same.
(2) The dispute in the two cases on the same claims and Rights were resolved in such a way that they are opposed to each other or could not exist side by side.

Learned Counsel further posed the questions thus:
(1) Were the claims and rights submitted to the Court in Suits Nos. K/347/92 and K/258/93 the same.
(2) Was there a resolution of the claims in Suit Nos. K/347/92 and K/258/93 in such a way that they opposed each other or could not exist side by side.

In tackling the questions posed, learned Counsel stressed that the subject matters in the two suits are different, the reliefs being sought and the rights presented for adjudication and determination by the two Courts are unrelated, nor were the resolutions in them contradictory to each other. He restated the reliefs sought for in suit No. K/347/92, a suit commenced under the undefended list, and, then, referred to the parts of the judgment of the lower Court in which same were determined. Learned Counsel, also, reproduced the third relief in Suit No. K/347/2009 and argued that it is not a Claim for a debt or liquidated money demand, therefore, the Respondents’ suit as constituted in the Writ of Summons, not being wholly a claim to recover a debt or liquidated money, did not satisfy the requirement for being heard under the undefended List as prescribed by Order 23 Rule 1 of the Kano State High Court (Civil Procedure) Rules, 1988. He emphasized that there is no jurisdiction in any Court to enter judgment in a case under the undefended list where one or more of the Claims endorsed on the Writ is/are not a Claim(s) for recovery of a debt or liquidated money demand.

He submitted that the claim for foreclosure of the property of Alhaji Musa Adamu could not have been heard and endorsed for hearing under Undefended List. Counsel further explained that the only rights and obligations of the parties determined in Suit No. K/347/92 were as they pertained to Alhaji Musa Adamu’s indebtedness to Nigeria-Arab Bank Ltd in the sum of N109,970.32 plus the interest awarded. He argued that the order of the High Court of Kano State made on 19/5/93 was a nullity, being an ex-parte application for leave to attach the immovable property of a Judgment Debtor.

He referred to Leedo Presidential Motel Ltd vs. Bank of the North (1998) 10 NWLR Part 570 page 353 at 380-381 and submitted that a High Court lacks the jurisdiction to order the attachment and sale of immovable property by an ex-parte application, and where it was so ordered, it is a nullity and all things done pursuant to it, i.e., the attachment and sale of immovable property, are equally a nullity because every proceeding founded on a void act is, also, bad and incurably bad. He then submitted that the judgment in suit No. K/347/92 was never reviewed in Suit No. K/258/93. It was simply decided in Suit No. K/258/93 that the said Alhaji Musa Adamu had, by the Contract made in 1988 sold the said property to the 1st Respondent.

On issue No.2, learned Counsel for the Respondents pointedly argued that the Nigeria-Arab Bank Ltd never had a Deed of Legal Mortgage under which it could exercise a power of sale. He argued that Exhibit ‘A’ was neither signed, sealed nor delivered by the said Alhaji Musa Adamu to the Nigeria-Arab Bank Ltd as a mortgagor. He referred to Sections 2 and 17 of the Land Registration Law, Cap 77, Laws of Kano State, 1999. He stated that ex-facie, there is no evidence of execution of Exhibit A by Alhaji Musa Adamu, and without execution, Exhibit A cannot confer a right on Nigeria-Arab Bank Ltd. Therefore, since it is not a certified true copy as permitted in section 28(2) of the Land Registration Law and was not executed, it cannot constitute evidence in the case and as such the issue of priority of title does not arise.

With regard to the third issue, Counsel for the Respondents submitted that the judgment of the Kano State High Court was not against the weight of evidence and that Section 15 of the Sheriffs and Civil Process Law of Kano State does not apply to transactions which are null and void. He further referred to Dr Taiwo Oloruntoba-Ojie & 4 Ors vs. Professor Shuaibu O. Abdulraheem & 3 Ors (2009) 13 NWLR Part 1157 page 83 at 132 and Leedo Presidential Motel Ltd (supra) at page 380 and submitted that a plea of estoppel arising from an order made without Jurisdiction cannot succeed. He, therefore, persuaded that this appeal be dismissed.

Then replying to the points raised by the Respondents in their Brief of Argument, the Appellant stated that all the arguments on the preliminary objection raised, and on the issue that the order of the Kano State High Court made on 19/5 /93 granting Leave to the Nigeria-Arab Bank Ltd to sell the property at No. 93. Ibrahim Umar Street, off Court Road Gyadi – Gyadi Quarters, Kano was a nullity, and, that the purported acquisition of interest in the said property was not through the exercise of the power of sale under a Deed of Legal Mortgage, but, through an attachment and sale of property pursuant to an ex-parte order of leave to attach immovable property obtained in suit No. K/347/92 were all misconceived. He reiterated his argument based on the provisions of Sections 46 and 47 of the Sheriffs and Civil Process Law, Laws of Kano State, and stated that the said order can only be set aside by an application made within 21 days of the making of such order.

Before dissecting the issues propounded in this appeal, it is exceedingly important to note that there is only one Notice of Appeal filed by the Appellant herein. The said Notice of Appeal is against the decision of the lower Court in Suit No. K/403/2007 delivered on the 14th October, 2008. The record of appeal further reveals that there is no appeal before this Court against any order made by any Court in Suit No. K/347/92. It may, also, be interesting to note that no Cross-Appeal was filed by the Respondents in this appeal against the said order made by another Kano State High Court presided over by a different Judge granting leave to the Judgment Debtor therein to attach and sell the immovable property of the Judgment Debtor therein i.e. Alhaji Musa Adamu Abdullahi.

The Respondents had, via their counsel, strenuously argued about the validity of the said order made by the said Kano State High Court in suit No. K/347/92 instituted by Nigeria-Arab Bank Ltd against Alhaji Musa Adamu Abdullahi. Although Suit No. K/347/92 was mentioned in this appeal, there was no appeal lodged by the Respondents or Alhaji Musa Adamu Abdullahi against the said ex-parte order for attachment of Alhaji Musa Adamu Abdullahi’s immovable property made therein by another Court. I must also observe that there is no record before this Court indicating that the said ex-parte order made on the 19th May, 1993 in Suit No. K/347/92 has been set aside either by the Court that made it or on appeal. It must be emphasized that since there was no application before the Court that made the said order to discharge it nor was any appeal filed against such order for it to be set aside, the said order still subsists.

It is, therefore imperative to note that even if the said order for attachment of the said property was made ex-parte by the lower Court in Suit No. K/347/92, and it is being branded as a nullity by the 1st Respondent’s Counsel, it can never detract from the fact that the said order still subsists and has not been set aside. It is well established that the option available to a person against whom an order is made, is to apply to the Court to discharge the order or appeal against it, rather than filing a fresh action.

It is, also, well entrenched that an order, no matter how unorthodox and unconventional, irrespective of whether or not the trial Judge was right to make it, is a subsisting order of the Court, unless it is set aside. Likewise, a judgment of a Court of law, no matter how incorrectly arrived at, subsists until set aside by a competent Court. Therefore, a Court cannot ignore an order which it made and strike out a suit because such order is still a subsisting order of a Court until it is set aside. See Obi vs. Obi (2004) 5 NWLR Part 867 page 647, where it was held that because of the subsisting order of the Court, the trial Judge was wrong in striking out the suit.
In the same vein, it was observed in N.L.M.S. Ltd vs. U.S.A. Ltd (2004) 12 NWLR Part 888 page 599, that for a Federal High Court to commence to make orders that strike violently at the heart of the order of the State High Court of well known coordinate jurisdiction is to lend a helping hand in causing confusion in our Courts by purporting unwillingly to appear to sit on appeal to the decision of a State High Court, per Pats Acholonu, J.S.C. It cannot be over-emphasized that it is a plain and ungratified obligation of every person against, or in respect of whom an order was made by a Court of competent jurisdiction, including the Court that made the order, or to which the order is directed, to obey the order, unless and until that order is discharged or set aside. This is so even in cases where the person affected by the order believes it to “be irregular or even void. So long as the order exists, it must be obeyed to the letter. See Obi vs. Obi (supra) and Olu vs. Jolaoso (2005) 16 NWLR Part 950 page 178 per Katsina-Alu J.S.C. at 195.

In Unam vs. Military Governor of Akwa Ibom State (2009) 3 F.W.L.R. Part 482 page 6165, I observed thus:
“A party who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It is immaterial whether the order was drawn up. It is the law that a person affected by an order of the Court which can properly be described as a nullity is entitled as a matter of right, ex debito justitiae to have it set aside to meet the ends of justice. See Integrated Builders vs. Damzag Ventures Nig. Ltd. (2005) 2 NWLR Part 909 Page 97.”

It is, therefore, instructive to note that by the foregoing, it does not lie in the mouth of learned Counsel for the Respondents to keep characterizing the said order made in Suit No. K/347/92 as a nullity, when no Court of law has pronounced it so or set it aside. In this respect, I hereby discard all the arguments tendered on behalf of the Respondents on the validity of the said ex-parte order made on 19/5/93, as the order still subsists having not been set aside.

I have given a deep consideration to the issues raised by the parties in their respective Briefs and the preliminary objection raised by the Respondents. I must state at the outset that the preliminary objection raised by the Respondents is untenable. It seems that Counsel derive pleasure from raising preliminary objections even where they seem most unwarranted and baseless. I must observe that ground No. 1 of the Appellant’s Notice of Appeal arose out of the judgment of the lower Court and this is clearly shown at page 90 of the record. Accordingly, the preliminary objection raised is hereby overruled.

As I earlier remarked, the issues raised for determination in the main appeal had been thoroughly dissected by this Court, and I would not hesitate to observe as was noted by the Respondents’ Counsel that the document attached to the Appellant’s affidavit in support of his Originating Summons described, supposedly, as a ‘Deed of Legal Mortgage’, was never executed between any parties. It is discernible from the record that the document titled “Deed of Legal Mortgage shown at pages 11 – 17 of the record was not signed by the Alhaji Musa Adamu Abdullahi as a Mortgagor nor was any signature thereon witnessed by any person. This document though stamped, only portrayed an intention on the part of the Bank and Alhaji Musa Adamu Abdullahi to create a legal mortgage which can conveniently be accommodated within the scope of equitable mortgage. I had painstakingly examined all the records before this Court and was still unable to come across the all-important Deed of Legal Mortgage tenaciously held on to by the Appellant. I was equally taken aback by the reaction of the Appellant’s Counsel to the persuasive and piercing submissions of the Respondents’ Counsel on the non-existence of any Deed of Legal Mortgage. He kept mum about that, and that to me, is worrisome because the issue whether the Appellant was first in time via Nigeria-Arab Bank of Nigeria, was squared on the phantom execution of the Alleged Deed of Legal Mortgage between defunct Nigeria-Arab Bank, and Alhaji Musa Adamu Abdullahi.

What seems clear to me, as copiously demonstrated in the record before this Court, particularly, in the certified true copy of the judgment obtained by defunct Nigeria-Arab Bank Ltd on 27/11/92 against the said Alhaji Musa Adamu is that, the said Alhaji Musa Adamu secured a loan from Nigeria-Arab Bank Ltd, and then deposited the title Deeds of his property situate at Hotoro, Kano State, that is to say, the two Certificates Of Occupancy Nos. RES/RC/82/644 and LKN/RES/RC/82/1/1750. Probably, the parties in Exhibit ‘B’ , i.e., Nigeria-Arab Bank and Alhaji Musa Adamu Abdullahi signalled the intention to execute the said or create a Deed of legal mortgage, unfortunately, it slipped through their memories, and they were left with mere deposition of the said title documents by Alhaji Musa Adamu Abdullahi.

Now, dealing with the substance of this appeal, it is pertinent to note that the fulcrum of this appeal is whether the properties covered by the aforementioned Certificates of Occupancy, the subject matter in the suit between the parties were subject to any mortgage, and, who amongst the Appellant and the 1st Respondent acquired any title over the said property. These took care of the two issues formulated by the Appellant, and in that regard, the two issues shall be considered together in this judgment.

In terms of the definition, the following are the characteristics of a mortgage:
“(a) A mortgage can be effected only on immovable property. Immovable property includes land, benefits that arise out of land and things attached to earth like trees, buildings and machinery. But a machine which is not permanently fixed to the earth and is shiftable from one place to another is not considered to be immovable property.
(b) A mortgage is the transfer of an interest in the specific immovable property. This means the owner transfers some of his rights only to the mortgagee. For example, the right to redeem the property mortgaged.
(c) The object of transfer of interest in the property must be to secure a loan or performance of a contract which results in monetary obligation.
Transfer of property for purposes other than the above will not amount to mortgage. For example, a property transferred to Liquidate prior debt will not constitute a mortgage.
(d) The property to be mortgaged must be a specific one, i.e., it can be identified by its size, location, boundaries etc.
(e) The actual possession of the mortgaged property is generally with the mortgagor.
(f) The interest in the mortgaged property is reconvened to the mortgagor on repayment of the loan with interest due on.
(g) In case, the mortgagor fails to repay the loan, the mortgagee gets the right to recover the debt out of the sale proceeds of the mortgaged property.”

A mortgage may be either legal or equitable. A legal mortgage arises when the owner of a property surrenders his legal title of property to a lender or creditor to secure payment of the owner’s debt. The legal title reverts to the original owner the moment the loan is repaid or debt is liquidated. A legal mortgage is the most secure and comprehensive form of security. It transfers legal title to the mortgagee and prevents the mortgagor from dealing with the mortgaged property while it is subject to the mortgage. Legal mortgage is created by Deed of Mortgage or Mortgage Deed.
On the other hand, equitable mortgage has been described as a mortgage in which the lender is secured by taking possession of all the original title documents of the property that serves as security for the mortgage. It is effected by mere delivery of documents of title to property to the mortgagee. The mortgagor through Memorandum of deposit undertakes to grant a legal mortgage if he fails to pay the mortgage money. Equitable mortgage requires that;
“(i) there must be a debt existing or future,
(ii) there must be deposit of title deeds; and
(iii) the title deeds should be deposited as security for the debt.”
It gives the mortgagee the right to foreclose on the property, sell it, or appoint a receiver in case of non-payment.

Due to the reckless use of, the phrase; Legal Mortgage, “by the Appellant’s Counsel in this appeal, it may be necessary to somewhat highlight a bit difference between legal or ‘registered mortgage and, equitable mortgage. Black’s Law Dictionary 9th Edition described equitable mortgage as “a transaction that has the intent but not the form of a mortgage, and that a Court of equity will treat as a mortgage.”
It was further expressed in Black’s law Dictionary (supra) that “Courts” of equity are not governed by the same principles as Courts of law in determining whether a Mortgage has been created, and generally whenever a transaction resolves itself into a security, or an offer or attempt to pledge land as security for a debtor’s liability, equity will treat it as a mortgage, without regard to the form it may assume, or the name the parties may choose to give it.

It is clear in this appeal that the method adopted by Alhaji Musa Adamu, Abdullahi to secure the said loan from the defunct Nigeria-Arab Bank Ltd was by depositing the title Deeds of his two properties with the said Bank. Thus, it is apparent from the characterization given that the transaction the defunct Nigeria-Arab Bank Ltd and the said Alhaji Musa Adamu Abdullahi had in respect of the loan granted to him by the Bank, was not a legal mortgage, but, an equitable mortgage which was evidenced by deposit of the said Alhaji Musa Adamu Abdullahi’s two title documents over his said Land at Hotoro, Kano State. Therefore, the mere deposit of Alhaji Musa Adamu Abdullahi’s title documents with Nigeria-Arab Bank to secure the loan he obtained from it, gave rise to an equitable mortgage. This is because, equity is prepared to recognize any action which clearly shows an intention to create a mortgage including the mortgagor depositing the title deeds or land certificate with the mortgagee in return for a loan. See the case of Yaro vs. Arewa Construction Ltd (2007) 17 NWLR Part 1063 page 333; where Chukwuma Eneh, J.S.C opined:
“It is settled that the deposit of title deeds with a bank as security for a loan, creates an equitable mortgage as against legal mortgage which is created by deed transferring the legal estate to the mortgagee. See: Ogundiani v. Araba & Anor. (1978) 6-7 (Reprint) 42; (1978) NSCC (Vol. II) 55. An important feature of mortgages both legal or equitable is that once a mortgage always a mortgage and nothing but a mortgage. See: Adjei V. Dabanka (1930) 1 WACA 63 at 67; Kadiri v. Olusaga (1956) 1 FSC & Bank of New South Wales v. O’Connor (1889) 14 AC 273.”

As could be gleaned from the rights of the mortgagee of an equitable mortgage, enumerated above, the defunct Nigeria-Arab Bank Ltd could sue for recovery of the said sum of N109,970.32 which it had already done and obtained judgment, thereon under the undefended list special procedure. It is on record that after obtaining the said judgment, rather than exercising its right under the equitable mortgage, the defunct Bank applied for attachment of the said Alhaji Musa Adamu Abdullahi’s immovable properties under the Sheriffs and Civil Process Law, Laws of Kano State. Following the Motion filed, an order was made by the High Court of Kano State in Suit No. K/347/92 enabling the said defunct Nigeria-Arab Bank to attach the property and sell the same. The Appellant happened to be the purchaser. It is glaring that the order made by the Court in suit No. K/347/92 was not as a result of any application made in respect of the mortgagee’s powers under the equitable mortgage, but, as a result of the judgment the Bank obtained under the Undefended List special procedure.

It has been roundly stated that the right of any equitable mortgagor has over a mortgaged property is the Right of Redemption i.e. the right to repay the mortgage and to have in return the property released from the charge upon it i.e. the discharge of the mortgage.

I find it rather surprising that the lower Court did not border to consider the nature of the interests possessed by Alhaji Musa Adamu Abdullahi after he had obtained a loan of N250,000.00 from the Bank using the said property as a collateral and the effect of the existing Courts order for the said immovable property to be attached and sold, which said order was duly complied with. Both the lower Court and the Respondents’ Counsel were mainly concerned with who sold the said property first, and, not whether the said Alhaji Musa Adamu Abdullahi had powers to sell the property to the 1st Respondent in the face of the equitable mortgage created by him, and the order of sale of the said immovable property made by the Kano State High Court following the judgment obtained against him in another suit No. K/347/92 for recovery of the debt owed to the defunct Nigeria-Arab Bank by him.

In the instant appeal, the mortgage debt fell due. Then, despite repeated demands made by the Appellant, the said Alhaji Musa Adamu Abdullahi failed to exercise his right of redemption. He did not bother to take any step until the Bank had obtained a judgment against it and the said property was attached and sold via a court order. It must be emphasized that the Respondents’ counsel not being a competent Court with the jurisdiction so to do, cannot sit in his chambers or while preparing the Respondent’s Brief of Argument, declare the said Court order made by a Court of Law on 19/5/93 null and void or illegal. Etiquette demands him to approach the Court that made the order as stipulated in the Kano State High Court (Civil Procedure) Rules and the Sheriffs and Civil Process Law, Laws of Kano State to have the order set aside or approach the Appellate Court by way of appeal against the said orders. Unfortunately, none of the Respondents herein were parties to the said Suit No. K/347/92, nor was this Court made to understand that the present Respondents’ Counsel is, also, Counsel for the said Alhaji Musa Adamu Abdullahi.

The trial Court ought to have taken cognizance of the existence of the said order irrespective of whether it was regularly or improperly obtained. See the case of Alhaji Baba M. Saleh vs. Alhaji Shetima Monguno (2006) 15 NWLR Part 1001 page 26 where the Supreme Court, per, Tabai, J.S.C., adopted a more radical approach in interpreting the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria 1990 (or of the Sheriffs and Civil Process Law Cap.123, Laws of Northern Nigeria). In that case, the 1st Respondent commenced an action against the Appellant under the undefended list procedure in the Borno State High Court for the recovery of the debt of N1,412,926.00. On 16/12/82, judgment was entered in favour of the 1st Respondent with N5,000 costs awarded against the Appellant. The judgment was appealed against but no order for stay of execution of the said judgment was obtained by the Appellant. During the pendency of the appeal, the 1st Respondent filed a Motion on 26/1/84 for leave to attach three specific immovable properties of the Appellant in Maiduguri covered by Certificates of Occupancy Nos. NE 1776, NE 1777 and NE 1828. On 29/2/64 leave was granted to the 1st Respondent by the trial Chief Judge. Execution was indeed levied and the said 3 properties were sold together with another four properties of the Appellant that no leave was obtained for their attachment and sale. Later, the appeal filed by the Appellant was allowed and the judgment delivered on 16/12/82 giving rise to the said attachment and sale of the immovable properties was set aside for being a nullity. Then, on 15/7/86 and on the application of the Appellant, the trial Court set aside the order of sale it made on 29/2/84. As a result of that, the Appellant filed a Motion on 25/8/87 praying the Court for an order directing the 3rd – 8th Respondents to deliver up possession of the said three houses sold at an auction by the 2nd Respondent at the instance of 1st Respondent and purchased severally by the 3rd – 8th Respondents pursuant to the said order of the Court made on 29/2/84 which order had been set aside on 15/7/86 thereby rendering the sale of the said houses null and void. Similar order was sought for in respect of the other four houses that were illegally sold without the leave/order of the trial court. When the matter eventually got to the Supreme Court, Tabai, J.S.C. in the leading Judgment at pages 51 – 52, paragraphs C – E, stated that:

“On the sale of the properties in relief (A) of the motion, the submission of counsel for the respondents is in my view, unassailable. By the motion on notice of the 26/1/84, the 1st Respondent/Judgment Creditor sought the leave and authority of the trial Court to attach and sell the three specific properties of the Appellant on relief ‘A’ of the motion. There is no indication on the record that the Defendant/Appellant contested the application. And on the 29/2/84 the trial Court granted the leave/order for their sale in satisfaction of the balance of the judgment debt of N1,137,986,00 and they were accordingly sold. Sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 (or of the Sheriffs and Civil Process Law, Cap. 123, Laws of Northern Nigeria) on which the Respondents and the Courts below relied provide:
47. “At any time within 21 days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity.
48. If no such application as mentioned in Section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the court shall make an order confirming the sale; and in like manner, if the objection be allowed the court shall make an order setting aside the sale for irregularity.”

With particular reference to the three properties comprised in relief (A) therefore the sale in respect thereof comes squarely within the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990. I am in total agreement with the reasoning and conclusion of the courts below therefore that by reason of the provisions thereof, the auction sale not having been challenged within 21 days from the date of sale, was deemed to become absolute and effectively transferred title in the three properties to whoever of the 3rd – 8th respondents that bought them. In the event, I hold that there is no substance in the complaint on the properties listed in relief (A) of the motion paper. I hold also that the principle in Leedo Presidential Motel Ltd. Vs. Bank of the North Ltd. & Anor. (supra) cited by appellant’s counsel does not apply.”

The question is; which principle of law could have been more apt for the present case than the majority decision of the Supreme Court in Saleh vs. Monguno (supra) where the sale of the immovable properties therein was still upheld despite the fact that the judgment upon which the execution was based and the sale of those immovable properties carried out, had been declared a nullity and set aside? The sale therein was deemed absolute by virtue of the provisions of Section 48 of the Sheriffs and Civil Process Act in the absence of an application made within 21 days to have the sale set aside as mandated by the provisions of Section 47 of the said Act.

In the instant appeal, the judgment obtained against the said Alhaji Musa Adamu Abdullahi under the undefended list procedure is still intact, it has not been set aside by any Court. Also, the order made by the Kano State High Court in the said suit No. K/347/92 authorizing the attachment and sale of the Alhaji Musa Adamu Abdullahi’s immovable property is still in existence and has not been set side, so too, the auction sale. It must be emphasized that the present appeal is not against the said order made in the said suit No. K/347/92 nor against the sale of the said immovable property. Until that order and sale are set aside, the said property sold to the Appellant pursuant to the said Court’s order is still recognizable in law. It is crystal clear on the record of this appeal that no application was made by the said Alhaji Musa Adamu Abdullahi within 21 days from the date of sale of the said immovable property to the Court that made the order in Suit No. K/347/92 to set aside the sale as required by Section 47 of the Sheriffs and Civil Process Law, Laws of the Kano State. It follows therefore that since no such application was made as stipulated by Section 47 of the Sheriffs and Civil Process Law, Laws of Kano State, the sale of Alhaji Musa Adamu Abdullahi’s immovable property as ordered by the Kano State High Court in Suit No. K/347/92 automatically became absolute at the expiration of 21 days from the date of sale of the property as envisaged by Section 48 of the Law. I must observe that, the case of Leedo Presidential Motel Ltd vs. Bank of the North Ltd anor (1998) 10 N.W.L.R Part 570 page 353 would have been applicable had the said Alhaji Musa Adamu Abdullahi paid the judgment debt before the execution of the judgment or auction sale of his said property by the Court and/or availed himself of the provisions of Section 47 of the Sheriffs and Civil Process Law, Laws of Kano State by applying within 21 days, from the date of sale of the said immovable property for the same to be set aside. As I earlier opined, the sale of the property had become absolute by Section 48 of the Law. It is clear, in the decision of the Supreme Court in Saleh vs. Monguno (supra) that nothing could be done to assuage the position of the Respondents in this appeal.

It is worthy to note that as at the date of the sale, the said Alhaji Musa Adamu Abdullahi was still defaulting in repaying the loan or paying the judgment debt.

It must be emphasized that the issue of who was first in time does not arise at all since the said property was sold in accordance with the order of the Court made under the Sheriffs and Civil Process Law, Laws of Kano State. It is glaring on the record that the judgment debt was not liquidated by the said Alhaji Musa Adamu Abdullahi before the sale of his said immovable property under the Sheriffs and Court Process Law. The order has not been appealed against before us nor has the sale been set aside. It is on this basis I would not hesitate in resolving the two issues formulated by the Appellant in his favour.

Accordingly, this appeal is found meritorious and it is hereby allowed. The judgment of the trial High Court delivered on the 14th October, 2008 is hereby set aside. In its place, this Court, by virtue of the provisions of Order 19 Rule 11(1) and (2) of the Court of Appeal Rules, 2011 hereby declares as follows:
“(1) That the Judgment of the lower Court in Suit No. K/258/1993 delivered on the 31st January, 2000 is a nullity regard being had to the existence of the Judgment of the Kano State High Court in Suit No. K/347/1992 delivered on the 27th day of November, 1992 which was valid and subsisting as at the time the judgment in Suit No. K/258/1993 was delivered.
(2) That the right to litigate and prosecute Suit No. K/258/1993 as at the time of the institution of the suit had been defeated by the existence of Suit No. K/347/1992 and the principles of estoppel, res judicata, laches and acquiescence and standing by.
(3) The said judgment of the Kano State High Court in Suit No. K/258/1993 delivered on 31/1/2000 is hereby set aside.
(a) The title of the Plaintiff over the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled Order of this Court dated the 19th day of May, 1993, the bailiffs receipt dated the 3rd day of January, 1995 and the Certificate of Purchase dated the 19th day of August, 1993 evidencing the sale of the landed property is hereby confirmed.
(5) The Respondents are hereby ordered to deliver possession of the said property to the Appellant.
(6) The Respondents by themselves, agents, servants or whomsoever are hereby restrained by an order of perpetual injunction from further trespassing or disturbing the Appellant’s possession and enjoyment of the property covered by Certificate of Occupancy No. LKN/RES/RC/82/1750 as vested in him in pursuance of the enrolled order of the High Court of Kano State dated the 19th day of May, 1993 and Certificate of Purchase of Land dated the 19th day of August, 1993 evidencing the sale of the landed property”.
I make no order as to costs.

ABDU ABOKI, J.C.A.: I agree.

AHMAD OLAREWAJU, BELGORE, J.C.A.: I agree.

Appearances

A.A. Malami, S.A.N. with N.A. Dangiri Esq, Dr Maman Isah and A.K. Shawaki Esq.For Appellant

AND

O.E.B. Offiong, S.A.N. with K.B. Olawoyin Esq and A.T. Falole Esq., for 1st and 2nd RespondentsFor Respondent