KACHALLA v. BANKI VOL 1, LRLR

KACHALLA v. BANKI

FACTS OF THE CASE

The appellant claimed against the respondents before the High Court of Borno State, a declaration that he is the bona fide owner of the disputed property; a declaration that the sale of property is null and void and should be set aside and that the property be restored to him; a declaration that the judgment debtor before the trial court has no interest or right in the appellant’s property; an order of perpetual injunction restraining all the respondents from interfering with the appellant’s property including their agents, servants, and privies; an award of N5,000.00 (five thousand naira) as damages against the respondents for trespass as well as costs in the suit.

Pleadings were filed and exchanged between parties and the suit proceeded to trial. At the hearing, the parties testified and called witnesses to testify in favour of their respective cases. Documentary evidence was also relied upon. At the close of the addresses of counsel, judgment was delivered. The trial judge dismissed the claims of the appellant having found them devoid of substance.

Aggrieved, the appellant appealed to the Court of Appeal, which dismissed his appeal. Aggrieved still, the appellant lodged a further appeal at the Supreme Court.

HELD

On rule as to priority where there are competing interests on land –

It was stated that in property law, many different questions of priority may arise, these may concern rival conveyances of property or as in the instant 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. Thus, 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 which can defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land.

Per Kalgo, JSC stated thus:

“This action concerned the sale to or purchase of one landed property by two different people. That is, the appellant and the 2^nd respondent. According to the evidence at the trial, the appellant bought the property from the sales agent (PW1) at N1,200,000.00 (One million, two hundred thousand naira) on 16^th March, 1994. He paid the purchase price and was given a receipt, a deed of assignment and the certificate of occupancy on the land. He was then put in possession of the property. He could not register his interest in the property with the lands authority due to some intervening circumstances.

On the 18^th April, 1995 the 2^nd respondent bought the same property at an auction sale for the sum of N520,000.00 (five hundred and twenty thousand naira). From the above, it is very clear that the appellant bought the property on 16^th March, 1994 and the 2^nd respondent bout the same on 18^th April 1995 over one year later. There is no doubt therefore that the sale to the appellant was first in time and ordinarily he should have priority over that of the 2^nd respondent… The fact that the 2^nd respondent bought by auction on the purported execution of a judgment of a court, does not give him any priority over that of the appellant.

On interest protected by the Land Use Act, 1978 –

It was stated that 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 in the instant case, 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. The tenor of the Land Use Act was to nationalize 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. Thus, in the instant case, the interest the appellant acquired cannot be inferior to the interest acquired by the 2^nd respondent.

The Supreme Court allowed the appeal and held that the plaintiff (appellant) is the bona fide owner of the property which is the subject matter of the suit.

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