GARBA v. ABDULLAHI (2020)

GARBA v. ABDULLAHI

(2020)LCN/14854(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/CV/419/2020

RATIO

APPEAL: DUTY OF AN APPELLANT WHO WANTS THE APPELLATE COURT TO SET ASIDE THE FINDINGS AND CONCLUSION OF A LOWER COURT OR TRIBUNAL

The law is trite an Appellant who wants the Appellate Court to set aside the findings and conclusion of a Lower Court or Tribunal must establish that the Court or Tribunal was influenced by extraneous facts and that the said Court or Tribunal made improper use of the opportunity of its having seen and heard the witnesses testified before it. It must be proved that the learned Trial Judge or Tribunal did not properly appraise the oral and documentary evidence placed before it. The Appellant must demonstrate that the failure on the part of the Trial Court or Tribunal actually occasioned a miscarriage of justice. See;
1. CHIEF ALEX OLUSOLA OKE ANOR. VS. DR. R. O. MIMIKO & ORS. (2014) 1 NWLR (PART 1388) 332 at 397 G — H; CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O. AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503A, per OGUNBIYI, J.S.C. who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a Trial Court is, whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system.

The measuring yardstick is the consideration of the totality of the entire case thus, arriving at the just determination of the issues in controversy. The test is that of the perception by an ordinary reasonable man. See Woluchem v. Gudi (1981) 5 SC p. 291.
The Trial Court has the benefit of hearing and assessing the demeanour of witnesses. It is not within the powers of the Appellate Court to encroach upon that privilege by way of interfering with the Trial Judge’s findings unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible.” PER OLABISI IGE, J.C.A.

APPEAL: POWER OF THE APPELLATE COURT TO INTERVENE IN EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

Where, however, an Appellant accused the lower Court of perverse decision on the oral and documentary evidence led by this Court is in the same position as the lower Court to examine the evidence, oral and documentary in order to discern if the lower Court misused or misapplied them in arriving at its decision. In other words, where the evidence led before the lower Court is improperly evaluated this Court will intervene to right the wrong.
1. IKECHUKWU IKPA V THE STATE (2018) 4 NWLR (PART 1609) 175 AT 226 F TO 227 A – D per AUGIE, J.S.C. who said:

“It is settled that findings on primary facts are matters within the province of a trial Court. There is a rebuttable presumption that its findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see Ibhafidon v. Igbinosun (2001) 8 NWLR (Pt. 716) 653 at 662 paras. D – E SC, wherein this Court, per Karibi-Whyte, J.S.C., stated as follows-
“It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because, such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross- examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony. Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.”
It is also settled that the duty of an appellate Court to interfere with improper findings or correct any erroneous conclusions, would only come into play where a trial Court fails to properly examine and evaluate the evidence adduced by the witnesses. PER OLABISI IGE, J.C.A.

COURT: PRIMARY DUTY OF THE TRIAL COURT

In other words, there is not much this Court can do when an appeal turns on credibility. It is the trial Court that is in the vantage position to believe or disbelieve the witnesses, and that advantage can never ever be recaptured by an appellate Court.
The trial Court’s liberty and privilege to believe one side or disbelieve the other can only be questioned on appeal if it is against the drift of the evidence when considered as a whole – see Adelumola v. State (1988) 1 NWLR (Pt. 73) 683 wherein Oputa, J.S.C., aptly captured the essence of this principle thus-
For example, we all know that 2 plus 2 makes 4. If a witness testifies that 2 plus 2 makes 5, and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him. There, and in such a case, an appellate Court can intervene.” (underlining mine). PER OLABISI IGE, J.C.A.

COURT: DUTY OF COURT TO CONSIDER ISSUES BEFORE IT

It is true and that is the settled position of the law that all issues raised or posed for determination by a party before Court must be considered and pronounced upon, see:
1. GENERAL M. A. GARBA (RTD) VS MOHAMMED & ORS (2016) 12 (PT. 2) SCM 372 AT 409 B – D per KEKERE- EKUN, J.S.C.
2. HONEYWELL FLOUR MILLS PLC VS ECOBANK NIG LTD (2019) 2 NWLR (PART 1655) 35 AT 51 G – 52 A – B per PETER-ODILI, J.S.C. PER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MALLAM ABUBAKAR ADAMU GARBA APPELANT(S)

And

BILY YAAMINU ABDULLAHI RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By his writ of summons filed at the High Court of Niger State, Suleja Judicial Division on 16th October, 2017 the Plaintiff/Appellant sought against the Respondent at the said Court the following:
1. A DECLARATION by this Honourable Court that the parcel of land situated behind Zuma Barracks, along Abuja – Kaduna, express way, in Tafa Local Government Area of Niger State, having an area of 100ft by 50ft being the subject matter of this suit belongs to the Plaintiff, being part of large parcel measuring 100ft by 300ft belonging to the plaintiff and that the Defendant herein is a trespasser on the said land.
2. AN ORDER of perpetual injunction restraining the Defendant, his privies agents and successor in title or any one claiming through him from trespassing or committing any further acts of trespass on the said parcel of land.
3. AN ORDER of the Court mandating the Defendant to remove the structure built therein forthwith.
4. General Damages of the sum of Two Million Naira (2,000,000) only against the Defendant.
5. The sum of Three Hundred and Fifty Thousand Naira

against the Defendant as cost of this suit.
6. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this case.

The matter proceeded to trial and after the addresses of Learned Counsel for the parties the Learned trial Judge gave a considered judgment on 12th February, 2020. The Learned trial Judge, Hon. Justice MOHAMMED S. A. MOHAMMED gave judgment in favour of the Defendant/Respondent as follows:
Consequently, I agree with the submission of the defendant that the plaintiff has failed in proving his claim against the defendant and his claims should be dismissed. Issue one is resolved against the plaintiff.
On issue two, I adopt my reasons in respect of issue one and add that from the contents of exhibit F and the testimony of DW1, DW2 and DW3 I’m convinced that the defendant bought the land in dispute from Alhaji Sale Lango on 10th October, 2010 and as at the time he sold the same land to Alhaji Umar Ibrahim Rikidawa on 25th October, 2010 he has nothing left to transfer to him. The defendant has acquired valid title from the document produced before this Court which is exhibit F. Issue two is

therefore resolved in favour of the defendant. I hold that the defendant has prayed his counter claim and is entitled to judgment.
On the whole, the claim of the plaintiff is hereby dismissed and title to the land in dispute is hereby declared for the defendant/counter claimant Bilyaminu Abdullahi.
1. Bilyaminu Abdullahi is the rightful owner of that land situated behind Zuma Barracks by Karfe Town Tafa LGA of Niger State.
2. The plaintiff, his agents, servants’ privies or anybody claiming through him are hereby restrained from trespassing or disturbing the peaceful possession the defendant.
3. The sum of N200,000 is hereby awarded as general damages for trespass.
4. The sum of N500,000 as cost of litigation or the amount paid for legal services.

The Appellant was aggrieved by the decision and has by his Notice of Appeal dated and filed on 17th March, 2020 appealed to this Court on two (2) grounds which without their particulars are as follows:
1. The lower Court erred in law when it glossed over the issue raised before it for its determination thereby occasioned miscarriage of justice.
2. The judgment of the lower Court was against the weight of evidence.

The Appellant’s Brief of Argument dated 29th July, 2020 was filed on 4th August, 2020, while the Respondent’s Brief of Argument dated 7th October, 2020 was filed same day.

The appeal was heard on 15th October, 2020 when the Learned Counsels to the Appellant and Respondent adopted their briefs of argument.

The Learned Counsel to the Appellant B. Y. YARIMA ESQ. who settled the Appellant’s Brief of Argument distilled two issues for determination as follows:
Issue (1)
Whether the Learned trial Court was legally right to have deliberately refused to make any pronouncement on issue raised and sufficiently argued before it (Ground 1)
Issue (2)
Whether the Respondent by his Counter Claim has been able to discharge the burden of proof required of him to secure judgment of title to the property subject of this appeal (Ground 2).

The Learned Counsel to the Respondent B. T. MAIGASKIYA, Esq. adopted the two issues nominated by the Appellant.

The appeal will be determined on the issues raised by the Appellant, which I will take together.

Issue (1)
Whether the Learned trial Court was legally right to have deliberately refused to make any pronouncement on issue raised and sufficiently argue before it. (Ground 1)
Issue (2)
Whether the Respondent by his Counter Claim has been able to discharge the burden of proof required of him to secure judgment of title to the property subject of this appeal. (Ground 2).

The Learned Counsel to the Appellant contended that the Statement on oath of DW1 lacks any evidential value and is liable to be discountenanced. That DW1 informed the Court on page 142 of the record that he thumb-printed the written statement in his lawyer’s office. He relied on the case of BUHARI vs. INEC & ORS (2009) vol. 167 LRNC page 114 and AKANMODE v. DINO & ORS (2008) LPELR 8405 CA.

He argued that the trial Court refused to consider the fact that DW1 did not appear before the Commissioner for Oaths to swear to, and sign his statement. That the Court is duty bound to consider and make pronouncement on all issues raised and argued before it. He relied on the following case:
1. MEKWUNYE V. LOTUS CAPITAL LIMITED & ORS (2018) LPELR – 45556 (CA)

IROLO V. UKA (2002) 14 NWLR (PART 786) 195 at 225 para D – F.
3. OKONJI & ORS VS. NJOKANMA & ORS (1991) LPELR – 2476 (SC)
4. BAMGBOYE V. UNILORIN & ANOR (1999) LPELR – 737 (SC)
5. ADEBAYO V. A. G. OGUN STATE (2008) LPELR – 80 (SC)

That the witness statement in contention, was made by the witness to his lawyer in Hausa Language and the lawyer translated same in to English Language and filed same in Court without the Hausa version filed alongside.

He urged this Court to resolve this issue in favour of the Appellant.
In response to issue one, Learned Counsel to the Respondent contended that the position of the law is that the Court and parties are bound by the record of appeal. That all issues were raised and resolved at the trial Court. He relied on the case of ALIYU vs. BULAKI (2019) LPELR-46513 (CA).

That the Appellant at the lower Court raised two issues for determination. That these issues are contained in page 118 of the Record of Appeal and were evaluated and answered by the lower Court, arrived at a just conclusion. He relied on the case of ADEGOKE MOTORS VS. ADESANYA (1989) 5 SC 116.

That even if the evidence of DW1 is expunged, it will not have negative effect on the case of the Respondent as the evidence of other defence witnesses i.e., DW2 and DW3 positively supported and established the claim of the Defendant/Respondent.

That the law is trite that, where the claim of a party is clearly established and supported by credible evidence, the burden to prove otherwise has been shifted to the other party. He relied on the case of BUHARI VS INEC (2008) 19 NWLR (PART 1120) 246 at 355 B – D and Section 136(2) of the Evidence Act, 2011.

He relied on the case of KRAUS THOMPSON ORGANIZATION LIMITED VS. UNIVERSITY OF CALABAR (2004) 4 SC 85 to state there is no miscarriage of justice or failure of justice where it is not shown that the decision reached is prejudicial or inconsistent with the substantial rights of the party.

Learned Counsel submitted that the burden of proof placed on Appellant to establish his claims against the Defendant/Respondent has not been discharged as the Appellants didn’t, in any way, establish the claim of the Plaintiff/Appellant and the standard of proof expected in the case of this nature was not discharged by the Plaintiff/Appellant.

That the witness did not place material evidence before the trial Court even when all opportunities were given to the Appellant.

That it is not every mistake or error in a judgment that will result in setting it aside. It is only when the error is substantial in that, it has occasion a miscarriage of justice that an appellate Court is bound to interfere. He cited the case of LASISI ADEGBESAN ABIMBOLA V. SAKA ABATAN (2001) 5 SCM 1. He urged this Court to resolve this issue in favour of the Respondent and dismiss the Appeal.

On issue 2, Learned Counsel to the Appellant submits that the Respondent, by his Counter Claim has not been able to discharge the burden of proof required of him to secure judgment in respect of title to the property subject of this appeal. That the trial Court did not evaluate the evidence adduced in arriving at a decision.

That the testimony of DW2 was given in Hausa Language and the Hausa version was filed alongside the English translation. That the testimonies of DW2 and DW3 who were both subpoenaed witnesses and DW2 informed the Court that he does not know the date of the transaction which he claimed to have witnessed.

That he said people were in attendance during the transaction and two persons signed whereas, DW3 told the Court that only four (4) persons were in attendance during the transaction.

He submitted that a Counter Claim is an independent action that is considered separately and a Counter Claimant in every respect is akin to a plaintiff in an action and is vested with the same onus of proof to discharge. He cited the case of NBN Limited vs. ATEC Limited (2007) 5 WRN 182 RATIO 3.

He concluded by relying on the cases of AGBABIAKA V. SAIBU & ORS (1998) 7 SC (PART 2) 167 and ARIJE VS. ARIJE & ANOTHER (2018) LPELR – 44193 (SC) to state that both the trial Judge and the Appellate Courts have equal right to evaluate the evidence led on both sides, but where such evaluation results in a perverse conclusion, the Appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just conclusion. He urged this Court to allow this appeal and dismiss the Counter Claim.

In response to Issue 2, Learned Counsel to the Respondent submits that the burden placed on the Respondent in proof of his counter claim was discharged to warrant the judgment

of the lower Court in his favour. That the Appellant filed a defence to the Counter Claim and abandoned same. He led no evidence in defence of the Counter Claim which suggested that the Appellant did not dispute the Counter Claim. That it is settled, that the Court is bound to act on an unchallenged and credible evidence placed before it. He relied on the case of AUGUSTINE OBINECHE & ORS VS. HUMPHREY AKUSOBI & ORS (2010) 185 LRCN 1 at 9.

He submitted that the Appellant argument as contained in paragraph 4.1.2 of the Appellant’s Brief of Argument is a fallacy and nowhere to be found in the Record of Appeal. That there is no contradiction in the evidence of Defendant/Respondent. That DW2 was referring to the transaction while DW3 is referring to the number of witnesses who signed for the transaction.

That the lower Court has properly evaluated the evidence and testimonies of the parties and arrived at a just conclusion on the rights of the parties before the Court. That the record of appeal at page 140 to 145 stated clearly that all the witnesses are unanimous on the fact that the land in dispute is measuring 50ft by 100ft and all the

subpoenaed witnesses were affirmed at the lower Court before they gave evidence.

That the Plaintiff/Appellant abandoned and failed to give any defence against the Counter Claim. He relied on the case of AHMED VS. THE REGD TRUSTEE OF ARCH OF KADUNA CATH. CHURCH (2019) 2 SCM Page 1 at 3 ratio 1. He concluded by urging this Court to uphold the decision of the trial Court and dismiss this Appeal.

CHIEF O. B. AJIBULU VS. MAJOR GENERAL O. O. AJAYI (RTD) (2014) 2 NWLR (PT. 1392) 483 AT 502 D-H to 503A, per OGUNBIYI, J.S.C. who said:
“The law is well established, that under our adversarial system of jurisprudence, civil cases are decided on preponderance of evidence. See Mogaji v. Odofin (1978) 3-4 SC 91. In summary, before the trial Court accepts or rejects the evidence of either side, it is expected of the Judge to construct an imaginary scale of justice whereupon he is expected to weigh the evidence of both sides for purpose of determining to which side the pendulum will tilt; the determination which is not dependent upon number of witnesses called. It is rather the credibility that gives probative value to witnesses.
In the evaluation of evidence therefore, the central focus expected of a Trial Court is, whether it made proper findings upon the facts placed before it. In other words, as long as a Trial Court Judge does not arrive at his Judgment simply by considering the case of one party and not the other but properly evaluate both sides, the decision will not be set aside merely because he adopts a method which is novel to the usual system.

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The complaint of the Appellant under issue one is that, the lower Court was wrong in failing to make pronouncement on issue raised and “sufficiently argued before it”. The question is what is the issue raised and not considered by the lower Court? The learned Counsel to the Appellant at the lower Court formulated two issues as follows:-

Whether from the totality of evidence adduced the Plaintiff had proved his claim on the preponderance of admissible evidence to entitle him to the reliefs sought.
2. Whether the defendant has proved his Counter Claim on preponderance of evidence to entitle him to the reliefs sought in his Counter Claim.

The learned trial Judge had found as follows: –
”The Courts have held that, once a document of title is tendered and admitted in evidence, the Court adjudicating on the dispute must carefully scrutinize and evaluate the document, with a view to determining whether:
(a) The document is genuine and valid;
(b) The document was duly executed, stamped and registered,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(c) The grantor has the authority and capacity to make the grant,
(d) The grantor, in fact, had what he purported to grant,
(e) The document has the effect claimed by the holder of the document.”
Now, from the evidence before me, the above requirements were not challenged by the parties, rather each claims the root to one and only one source, that is Alhaji Sale Lango. None of the parties called him as witness. To effectively determine the effect of these documents between the parties the Court will examine them and find out which of them was first in time.
Again, both subpoenaed witnesses testified that they were present when the transaction between the defendant and Alhaji Sale Lango took place. They both signed as witnesses and identified the copy of the agreement (exhibit F).
While exhibit A was signed or executed between the plaintiff and one Alhaji Umar Ibrahim Rikadawa who was not joined as a party on 18th April, 2011, exhibit F was signed or executed on 10th February 2010 by the same Alhaji Sale Lango. It should be noted that exhibits B, C and D were signed or executed on 25th October 2010 by the same

Alhaji Sale Lango in favour of Alhaji Umar Ibrahim Rikadawa. The simple Arithmetic is that Alhaji Sale Lango signed the land document transferring his title to the land in dispute to the defendant before he signed another document in respect of the same land to the plaintiff. The reasonable inference is that, as at the time he was signing exhibits B, C and D he has nothing to transfer to Alhaji Umar Ibrahim Rikidawa. The purported transfer was therefore, a nullity ab initio. See the judgment of this Court in suit No. NSHC/SD/122/2017, Incorporated Trustee of Four Square Church vs Pastor Lawrence Alonge and Anor, delivered on 10/10/2019.
Let me add here quickly, that it was a misconception on the part of the learned Counsel to the plaintiff to say that DW1 and DW2 were not affirmed before they testified in this Court. My record shows the contrary. Both DW2 and DW3 are subpoenaed witnesses. The power to issue subpoena is vested in the Court in the exercise of its powers. The subpoena is therefore an order of the Court. It may be for the person to attend the Court and testify only, in which case, it is known as subpoena ad testificandum or for a witness to

come produce documents in his possession or control which is referred to as subpoena duces tecum or for the witness to testify and to also produce document. See the case of Hon. Chidi Ibe vs Nnanna Igbokwe (2012) LPELR 15361 (CA).
The two subpoenaed witnesses in this case falls within the first category, i.e., Supoena ad testificandum. They are also not required to file a written statement on oaths before the Court. See the case of Lagos State Urban Renewal Authority vs Chief Ganiyu (2010) LPELR 4421 (CA). Consequently, I agree with the submission of the defendant that the plaintiff has failed in proving his claim against the defendant and his claims should be dismissed, issue one is resolved against the plaintiff.”

See pages 156 – 157 of the record. And as the lower Court was entitled to do, it adopted the reasoning and conclusion under issue 1 to answer issue 2. The lower Court also found against the Appellant and rightly also that from the contents of Exhibit F coupled with the testimony of DW1, DW2 and DW3, the lower Court was convinced that the defendant now Respondent bought the land from ALHAJI SALE LANGO on 10th October 2010 and that as at

the time he sold the same land to Alhaji Umar Ibrahim (Rikidawa) (Appellant’s predecessor-in-title on 25th October, 2010 he (ALHAJI SALE LANGO) has nothing he could sell to the said ALHAJI UMAR RIKIDAWA who the Appellant pleaded in paragraph 3 of his Statement of Claim sold the land to him, the Appellant, on 18th day of April, 2011. Nemo dat Quod NON HABET. The Appellant bought nothing. See
1. AMBASSADOR A. S. OTHMAN MALAMI OFR & ANOR VS I. OHIKHUARE & ORS (2019) 7 NWLR (PART 1670) 132 at 178 E – C per EKO, J.S.C. who said:
“I wish to do a little accretion to the judgment on two principles. The law is settled that “no one gives what he possesses not”. It is founded on the maxim: Nemo dat quod non habet” which translates to “he gives nothing who has nothing”. The grantor who has no little in law cannot validly give to the grantee the title he does not have, in the first place.
The holding that the purported relocation of the plaintiff/1st appellant’s title to the disputed piece of land by the 2nd respondent was a nullity means that the interest or title of the plaintiff/1st appellant over the same plot No. 865, evidenced by the Certificate

of Occupancy No. FCT/ABU/SO. 201, remains inviolate, and it was first time to the subsequent title purportedly issued by the 2nd respondent during the subsistence of the plaintiff/1st appellant’s title. The Nigerian Land Law has this fundamental principle that once there is a subsisting title or Right of Occupancy any subsequent adverse title issued in purported competition with the subsisting primary title is a nullity: Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53. Flowing from this fundamental principle is yet another, equally very forceful, to the effect that: where a common grantor, as the 2nd respondent was, subsequently vests title in favour of another grantee in respect of the same parcel of land during the subsistence of the first or primary title, the subsequent title is invalid: Kari v. Ganaram (1997) 2 NWLR (Pt. 488) 403.
2. MAJOR MURITALA GBADAMOSI RTD & ORS v. AKINLOYE (2013) 15 NWLR (PART 1378) 445 at 478 F – H to 479 A – E per ONNOGHEN, J.S.C. later CJN RTD who said:
“However, common sense says that you cannot eat your cake “and still have it back”. That is the simple answer to a very simple case as revealed by the record of appeal. Without making

magic or abracadabra, can you eat your cake and still have it back? Fortunately, this is a Court of law which has absolutely nothing to do with magic or abracadabra neither does the Court allow itself to be used as an engine for the perpetration of fraud, in whatever guise.”
In the case of Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53 at 83 para. Hand 91 – 92 paras. H-A, this Court held, inter alia, as follows: –
“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid…..
Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet. i.e. he cannot give that which he no longer has.”
It is very unfortunate that the respondents claimed title to the whole of their family land compulsorily acquired by the Lagos State Government including the portion earlier sold to the father of the appellants and in which they were in effective possession. The claim so made

without disclosing the truth and excluding the said portion so sold is clearly made in bad faith and smacks of insincerity. To put it mildly, it is very unconscionable and consequently against the principles of equity and good conscience. It is worst when the respondents, after obtaining judgment and entering into a settlement agreement which expressly excludes the land of appellants to still insist and hold unto that land when they know that they had much earlier divested themselves of the title to the said portion.”
3. NAPOLEON ORIANZI VS. THE A. G. RIVERS STATE & ORS (2017) 6 NWLR (PART 1561) 224 at 284 per AUGIE, J.S.C., who said:
“In Tewogbade v. Obadina (1994) 4 NWLR (Pt 338) 326 at pp 347-348 paras. H-A this Court per Iguh, J.S.C. hit the nail right on the head, as follows-
“Where two contesting parties trace their title in respect of the same piece of land to the same grantor the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor. The reason is obvious as a grantor

having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet, as no one may convey what no longer belongs to him.”

The particulars given in ground 1 of the Appellant’s Notice of Appeal are quite extraneous to the complaint in ground 1 of the Notice of Appeal. The two grounds of appeal have nothing to do with findings of the trial Judge on the oral and documentary evidence before the trial Court.

The trial Judge emphatically found that the Appellant did not prove his title to the land in dispute yet the Appellant’s learned Counsel’s argument dwelt on witness statement on oath of the Respondent and whether there was affirmation or oath taking before DW2 and DW3 gave evidence in Court.

An examination of the record pages 143 – 144 thereof shows that DW2 and DW3 affirmed before they gave evidence.

The Learned Counsel to the Appellant duly cross examined the DW1, DW2 and DW3 and they all testified concerning the sale of the land in dispute to the Defendant nine (9)

years before they testified, on October 2019 and 12/11/2019 respectively. See pages 141 – 145 of the record.

The Learned trial Judge properly evaluated the oral and documentary evidence before him and the conclusion and finding of the learned trial Judge cannot be assailed. The Appellant has not shown or established his title to the property in dispute and has not pointed out any reasonable fault against the judgment of the lower Court.

The Appellant also failed to specifically appeal against the earlier quoted findings of lower Court against him and the finding in favour of the Respondent. The Appellant must be taken to be comfortable and satisfied with those findings.
See:
1. ATIKU ABUBAKAR & ANOR VS. INEC & ORS (2020) 12 NWLR (PART 1737) 37 at 121 C – E per I. T. MUHAMMED, CJN who said:
”I am surprised that the appellants whose case depended on this issue of server did not specifically appeal against the above findings of the lower Court as the PW59 stated at the Court below that the server belongs variously to a whistleblower. Anonymous and/or an INEC Staff. It ought to have dawned on the appellants that their game was

up because the server which the result was allegedly obtained was said by them to be that of INEC. Having not linked the said server to INEC in their evidence, it is my view that the Court below was right to reject every result gotten from the anonymous server or the one from a whistle blower or the one owned by an INEC staff. The law is trite that where a party does not challenge a finding by way of an appeal, that finding stands against him. See Leventis Technical Ltd v. Petrojessica Ent. Ltd (1999) 6 NWLR (Pt. 605) 45, Iseru v. Catholic Bishop (1997) 3 NWLR (Pt. 495) 517, Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181.”
2. MULTICHOICE NIGERIA LIMITED V. MCSN NIG LTD GTE (2020) 13 NWLR (PART 1742) 415 at 515 C – F per OGBUINYA, J.C.A.

Upon a calm view of all the argument of Appellant’s Learned Counsel, the judgment of the lower Court and the two grounds of appeal filed against the decision, I am of the firm view that the findings of the lower Court cannot be faulted. They are well founded. The two issues distilled for determination by the Appellant are resolved against the Appellant.

Consequently, Appellant’s appeal has no merit and it is hereby dismissed. The judgment of the High Court of Justice Niger State delivered on 12th February, 2020 (Coram M. S. A. MOHAMMED, J.) is hereby affirmed.
The Appellant shall pay N30,000 (Thirty Thousand Naira) cost to the Respondent.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother, PETER OLABISI IGE, J.C.A.

I agree with the reasoning and conclusion reached therein. I therefore dismiss the appeal. I also affirm the judgment of the High Court of Justice Niger State delivered on 12th February, 2020. (Coram M. S. A Mohammed, J).
I make no order as to costs.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE, J.C.A. I agree with the reasoning, conclusion and orders therein.

Appearances:

ABDUMALIK BELLO For Appellant(s)

T. MAIGASKIYA, ESQ. with him, C. A. UCHE, ESQ., M. A. AHMED and IBRAHIM MUSA For Respondent(s)