ADEOYE & ORS v. OLOPO & ORS (2020)

ADEOYE & ORS v. OLOPO & ORS

(2020)LCN/14634(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Tuesday, September 08, 2020

CA/EK/63/2019

RATIO

PLEADINGS: AIMS OF PRELIMINARY OBJECTIO TO AN ACTION

Generally, the whole aim of a preliminary objection to an action, including an appeal is to short-circuit an action/appeal based on preliminary points of law to show that the action/appeal cannot be maintained and sustained. Therefore, the law is well settled that when the competence of an appeal is challenged as in the instant appeal, the Court is duty bound to first and foremost consider the charge of incompetency and rule on it. See the cases of: (1) Alabi vs. Amoo (2003) 12 NWLR (pt. 835) p. 537; (2) NEPA vs. Ango (2001) 15 NWLR (Pt. 737) p. 627; (3) A.-G., Fed. vs. ANPP (2003) 12 SCNJ p. 67 and (4) Afribank (Nig.) Plc. Vs. Akwara (2006) 5NWLR (Pt. 974) p. 619. Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS: APPEAL – TIME FRAME TO FILE, DEATH OF A PARTY TO AN APPEAL.

The Appellant having not filed this appeal within the said period allowed renders this appeal incompetent. He relied on the cases of: (1) Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) p. 237; (2) Funduk Engineering Ltd. V. J. Mcarthur & 4 Ors. In RE Madaki (1996) 7 NWLR (Pt. 459) p. 153 SC and (3) N.E.W. Ltd. V. Denap Ltd. (1997) 10 NWLR (Pt. 459) p.481 at P.517. It is a trite and fundamental principle of law that an appeal which is filed out of time, without the permission of Court is incompetent. Therefore, this Court, indeed no Court, has jurisdiction to entertain an incompetent appeal. On this legal position, he referred to the cases of: (1) Creek View Property Dev. Co. Ltd. V. Ebun Olu Adegboruwa (2011) 3 NWLR (Pt. 1234) p. 239 at p. 246 para. F and (2) Ebokam v. Ekwenibe & Sons Ltd. (1993) 6 NWLR (Pt. 297) P. 108 at P.119, paras. B-C. Order 15 makes provision for the death of a party to an appeal.
Rule 3 of the said order provides as follows:-
“Where an appeal has been set down for hearing and the Court is or became aware that a necessary party to the appeal is dead the appeal shall be struck out.”
However Rule 2 of this order provides for substitution of dead party to an appeal. The situation at hand does seem to fall within the ambit of Order 15, in that all appeals are by way of rehearing of the case that begun at the lower Court.
Where the only appellant or the respondent is dead, surely the appeal cannot go on because if the dead person is the appellant, no one will prosecute and enforce the decision if the appeal succeeds or in case of the respondent who is dead, there will be no defendant that will be held accountable. To that extent, the notice of appeal is irregular since there is no appellant or respondent to sustain the appeal.
In that scenario the appeal is liable to be struck out in absence of substitution. Where a dead party is joined with a living party on either side, the living parties can sustain the appeal even when the dead party is struck out, as a result of amendment to the notice of appeal. In otherwords, the notice of appeal does not become incompetent by joining a deceased person with a party that is alive.
The law is very clear that the only reason which makes it necessary to make a person or an institution a party to an appeal is to make him or it to be bound by the result of the appeal.
Therefore in determining who a necessary party is the question is whether the appeal cannot be effectually and completely be determined unless that person or institution is made a party. See UKU V. OKUMAGBA (1974) 3 SC 35; JIDDA V. KACHALLAH (1999) 4 NWLR (pt. 599) 426. The appeal can be sustained even as the original 1st Defendant died as the outcome of the appeal is capable of being enforced. Just as a single valid ground of appeal out of several incompetent grounds of appeal can sustain an appeal, so also a single competent party to an appeal which contains some incompetent can sustain such appeal.
In YAKUBU ABDULHAMID KWARA V. LAGI INNOCENT & 40 ORS (2010) 7 EPR 523, this Court, per O.F. Omoleye at page 547 said:-
“By virtue of the provisions of Order 6 Rule 6 of the Court of Appeal Rules, a notice of appeal can be struck out if an appeal is found to be incompetent or for any other sufficient reason. However, if one or more grounds are found to be competent, the notice of appeal would be saved and the competent grounds can be argued.”
In NWOSU V. IMO STATE ENVIRONMENTAL AGENCY (1990) 2 NWLR (PT. 135) 688 at 717, the Supreme Court, per Nnaemeka Agu JSC of blessed memory said:-
“As we have stated several times, the days when parties could pick their way in this Court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into Limbo of forgotten things…” By Order 6 Rule 2(1), all appeals are by way of rehearing the case that was decided at the lower Court. A Notice of Appeal therefore that contains the names of the parties that commenced the case at the lower is not incompetent even though the party died before the appeal is filed. It is the practice of the Court to allow for substitution of the dead parties. It is therefore my firm view that the inclusion of a dead party in the notice of appeal may be irregular, but certainly such notice of appeal cannot be incompetent.
In this instant case, it is revealed that the Notice of Appeal was filed on 10th February, 2017 whilst the original 1st Defendant was still alive Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS: PRIVITY OF CONTRACT

It is an elementary principle of law that the doctrine of privity of contract is to the effect that a person who intends to enforce a contract must show, not only that he gave consideration, but also that he is a party to that contract. In law, a contract exists only between the parties to it. A person who is not a party to the contract cannot sue upon it. By the doctrine of privity of contract, a contract cannot confer rights or impose obligations arising therefrom on any person except parties to it. Put simply, a stranger cannot acquire rights or incur obligations arising from a contract to which he is not a party. See REICHIE v. NBCI (2016) LPELR (40051) 1 at 25, REBOLD INDUSTRIES LTD v. MAGREOLA (2015) LPELR (24612) 1 at 22-23 and INCAR v. OJOMO (supra). It is instructive that the Appellants who are not privy to the contract of sale of their family property have no rights or obligations under the said contract of sale. Mr. Chris Dura Aondo v Benue Links Nigeria Limited (2019) LPELR -46876(CA), the Court held thus: “By the doctrine of privity of contract, only a party to a contract can sue or be sued on it. It cannot be enforced by or against a non-party even if it is made for his benefit and purports to give him the right to sue or make him liable upon it See Ikpeazu v ACB Ltd. (1965) 1 NMLR 347. Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS: EVALUATION OF EVIDENCE – ADMISSION, FORMAL AND INFORMAL AND PROOF.

Evaluation of evidence involves the assessment of evidence, so as to give value or quality to it, and there must be on record, how the Court arrived at its conclusion of preferring one piece of evidence to the other. See – Alake v State (1992) NWLR Part 265.
It is only where a judge fails to properly examine and evaluate the evidence before the Court, that the duty of an appellate Court to interfere with any improper findings or correct any erroneous conclusions will come to play. An admission in pleadings is one that generally puts an end to the requirement of proof and the parties need not join issues on the point or fact admitted. As NIKI TOBI J.S.C. put it, proof presupposes a dispute and since admission removes the element of dispute, proof becomes superfluous. See AKANINWO V NSIRIM (2008) 9 NWLR (Pt.1093) 439. It is also not the law that admissions are conclusive against the maker as every admission must be carefully evaluated and considered against the backdrop of the circumstances under which it was made admission can be classified into two categories, formal and informal admission and these are:
“Formal admissions are admission made by a party in a civil proceedings so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in a pleading need not be proved any longer but are taken as established. Formal admissions may also take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the service of the trial of a civil suit. The Court however even in the case of a formal admission in a civil proceeding has discretion to require the admitted fact to be proved by some other evidence other than by the admission itself.
“Informal admissions, on the other hand, do not necessarily or strictly speaking bind their maker and may therefore be explained or contradicted. The weight of an informal admission depends on the circumstances under which it was made and these circumstances may always be proved to impeach or enhance its credibility. Thus an informal admission, unless it amounts to an estoppel, may be established by the party against whom it is tendered to be incorrect, untrue or to have been made under a mistake of law or fact or some compelling or vitiating circumstances. Accordingly, the value of an informal admission depends on the particular circumstances under which it was made and it is for the trial Court to determine the issue and to give due weight to the alleged admission and the examplanatory circumstances thereof.”
See NWANKWO v. NWANKWO (1995) LPELR-2110 (SC).The law is that once an admission against self interest in unequivocal and clear, the Court is entitled to act on such facts. An admission of a party in law is the best evidence, in the sense that the opposing party need not make any strenuous effort to prove the admitted facts. Thus, a Court of law is entitled to give judgment based on an admission by a party if the admission is relevant to the facts in issue. In civil cases, admission by a party is evidence of the facts asserted against him. Unless explanations are given which satisfy the Court that admissions should not be so regarded, due probative weight should be given to them as such. See: Our Line Ltd V SCC Nig. Ltd (2009) 7 SCNJ 358; Salawu V Yusuf (2007) 5 SCNJ 354.Improvements of family property, even by a member of the family does not divest the property of its original character, it remains a family property, much less improvements by someone who was in possession only by reason of a temporary license as the Appellants in this case; see SHELIE v. CHIEF ASAJON OF OLOJA EREKO 11 (1957) SCNLR 286; (1957)2 F.S.C. 65. Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS SELLING OF FAMILY LAND AS A PERSONAL PROPERTY.

When family land is sold by a member of the family as his own property the purported sale is void. See KALIO & ANOR v WOLUCHEM & ANOR (1985) 1 NWLR (Part 4) page 610, OYEBANJI v OKUNOLA (1968) NWLR 221 and OJOH v KAMALU & ORS (2005) 18 NWLR (Part 958) 523. Even where the sale was done by the head of the family as personal property, it has the same legal effect. See EJILEMELE v OPARA & ANORS (2003) 9 NWLR PT. 826.P. 536; USIOBAIFO & ANOR v USIOBAIFO & ANOR (2005) 3 NWLR (Pt. 913) 665; AIYEOLA v PEDRO (2014) LPELR – 22915 (S.C.). Such a sale is void ab initio. It follows from the above that the sale of the land in dispute by 1st Defendant to 3rd Defendant as personal property in the face of the finding of the lower Court that the said land was a family land was void ab initio and not voidable. See ACHILIHU & ORS v ANYATONWU (2013) 12 NWLR (Pt. 1368) P. 256. According to Aboki J.C.A in ALIYU & ANOR v GWADABE & ORS (2014) LPELR – 23463 (C.A.): “It is trite law that where a person who has no title to a property sells it to another the sale is void ab initio. This is based on the principle of NEMO DAT QUOD NON HABET meaning he who has not cannot give out. See AGEY v TORTYA (2003) 6 NWLR (Pt. 816) P.385 at 396. “The learned trial Judge on page 471 of the record of appeal further held thus: “The claimant and the 1st Defendant cannot eat their cake and have it. Particularly when there is a 3rd party interest that is involved. If they are not ready to release the property they must indemnify the 3rd Defendant particularly when they failed to raise objection to the rebuilding of the house.” It appears to me with due respect that the averments in the pleadings do not support the statement of the learned trial Judge. I have carefully gone through the averments in the Statement of claim and statement of defence as well as the evidence before the trial Court, l am unable to find any support for the above statement of his Lordship. Earlier in the judgment, his Lordship identified the issue for determination thus: “Whether the 3rd Defendant is entitled to the reliefs sought in his counter- claim”. Ratification and facts in support thereof unlike in this case should be pleaded. See U.B.A. Plc v BTL INDUSTRIES LTD (2005) 10 NWLR (Pt. 933) 356, otherwise it cannot be raised. See KANO v OYELAKIN (1993) 3 NWLR (Pt. 282) 399 at 404. Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS: CONSPIRACY

Conspiracy is a criminal allegation, and it is trite law, that if the commission of a crime by a party to any proceedings is in issue, civil or criminal, it must be proved beyond reasonable doubt. Section 135 of the Evidence Act, 2011 states the law explicitly. See Ogele v Dare(2008) LPELR-3727(CA); State v Nwode (2018) LPELR-44950(CA). In this case, there is no scintilla of evidence from the Respondents proving the allegation of conspiracy against the Appellants, which the trial judge could have relied on to make the above findings and consequently award of damages against the Appellants. Per FATIMA OMORO AKINBAMI, J.C.A

RATIO

PLEADINGS: RAISING A NEW ISSUE OR MATTER NOT RAISED AT THE LOWER COURT AT THE COURT OF APPEAL.

It is trite law that a party is not be allowed in his brief to raise a new issue or matter, not raised at the lower Court. See K Line INC V K. R INT’L (Nigeria) Ltd & Anor (1993) LPELR-142928 (CA); Itako v Orowunmi & Ors (2014) LPELR-22341 (CA); Eze v Okweremuo(2010) LPELR -4025 (CA), Aliucha v Elechi(2012) LPELR- 7823 (SC); Odega v Olloh (2015) LPELR-24568(CA). The settled position of the law that no party is allowed to depart from the contents of the records in arguing his appeal as done in this case. See Odega v Olloh (2015) LPELR- 24568 (CA) where the Court held: “The inescapable position of the law is that the Appellate Court is bound by the record of proceedings before it, and cannot depart from it on the ipsi dixit of counsel or on speculation. Records of proceeding are the only indication of what took place in a Court, it is always the final reference of events, step by step of what took place in a Court…
The story of the Respondent’s counsel which is not supported by the record of appeal before this Court is solely to throw dust into the eyes of this Court. Needless to say, the story cannot fly in the face of the record before this Court.”
In the case of TELEPOWER (NIG) LTD V. NICHOLAS BANNA (2002) FWLR (PT. 95) 255 Ratio 2, it was held that:
“Equity does not act in vain and should not be taken for granted but is buttressed or grounded on solid facts that would induce the Court to act in favour of the applicant.”
As between the appellant and the respondent, there are no grounds, legal of factual, for the invocation of equity jurisdiction, for equity does not act in vain. Appellant has failed to show that he deserves the relief he seeks in equity. Contrary to the equitable maxim that he who comes to equity must come with clean hands. See Salako V. Williams (1988) 11 NWLR (pt. 574) 505 at 521 Paras D-F). Appellant has come to equity with empty hands. Per FATIMA OMORO AKINBAMI, J.C.A

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

MRS. FEYISAYO ADEOYE 2. EVANGELIST EMMANUEL OLOPO 3. MRS. STELLA ESAN 4. ELDER EBENEZER OLOPO (For Themselves And As Beneficiaries Of The Estate Of Late Joseph Fabiyi Olopo) APPELANT(S)

And

1. MR. CHRISTOPHER KEHINDE OLOPO 2. PRINCE ADEFOLAJU AKINOLA 3. ALHAJI SULAIMAN AKINBAMI RESPONDENT(S)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ekiti State High Court, sitting at Ado-Ekiti, in the Ado-Ekiti Judicial Division, delivered by C.I Akintayo, J on the 16th day of December, 2016 in Suit No. HAD/120/2011.

The suit before the trial High Court was initiated by an amended Writ of Summons dated the 18th day of November, 2015 and filed on 24th day of November, 2015, wherein the claimants sought the following reliefs:
1. A declaration that the property lying and situate at No 15 Barracks Road, Okesa, Ado-Ekiti and known as lle Aba Olopo forms part of the estate of late Joseph Olopo.
2. An order of Court setting aside and declaring null and void the deed of conveyance dated the 5th December, 1977, and registered as No.9 at page 9 in Volume 52 at the Land Registry, Akure or any other documents purportedly conveying or transferring the said property to the 1st defendant.

An order of perpetual injunction restraining the defendants jointly and severally whether by themselves, their agents, privies or any other person however described from claiming ownership, taking possession

and disturbing the claimants and the persons they represent in their enjoyment of the property, lying, being and known as No 15, Barrack’s Road, Ado- Ekiti.

The 3rd Defendant also filed a counterclaim dated the 17th February, 2016 and filed on 19th February, 2016 claiming against the claimants:
1. A declaration that by the sale agreement duly executed in favour of the 3rd defendant, the 3rd defendant is entitled to the Statutory Right of Occupancy in respect of the property formerly situate, lying and being at 7, Barracks Road, Ado-Ekiti, but now known and called 8, Barrack Road, Ado-Ekiti and which is covered by a Deed of Conveyance dated 5th December, 1977 and registered as No 9, at page 9 in Volume 52 of the Land Registry, Ado-Ekiti as well as covered by survey plan No: BM37 dated 22nd October, 1977.
2. A declaration that the 1st defendant having held himself out or paraded himself to the 3rd defendant as the bonafide owner of the aforesaid parcel of land on which confidence and trust or basis the 3rd defendant has trustingly acted by entering into a duly executed contract of sale, and for which all original title documents have been

handed over to the 3rd defendant, the defendant is thereby stopped from asserting otherwise.
3. An order directing the 1st Defendant to receive the sum of N3,000,000.00 (Three Million Naira) from the 3rd defendant as the full final and balance payment of the mutually agreed purchase price for the land in dispute.
4. An order of perpetual injunction restraining the claimants and the 1st defendant either by themselves, representatives, agents, privies, assigns or any other person whosoever from claiming ownership, disposing, selling, alienating, tampering, trespassing or further trespassing in whatever forms on the parcel of land which is the subject matter of this suit.

3rd Defendant in the alternative claimed as follows:-
1. A refund of the sum of N4,000,000.00 (Four Million Naira) being the part payment of the purchase price paid to and received by the 1st Defendant from the 3rd defendant on 28th day of April, 2011.
2. A sum of N2,250,000 (Two Million, Two Hundred and Fifty Thousand Naira) being the aggregate sum of the incidental expenses on the sale transaction to cover documentation fees, agency fees, and professional fees, paid

by the claimant.
3. A sum of N25,000,000.00 (Twenty Five Million Naira) as general damages for breach of contract of sale of land, psychological trauma, agony, stress and inconveniences suffered by the 3rd defendant on the account of the untoward conduct of the 1st defendant with active conspiratorial support of the claimants.

The claimants filed a 16 paragraph defence to counter claim of the 3rd defendant on 8th day of May, 2014.
The 2nd and 3rd defendants filed a joint reply to the statement of defence of the claimants to counter claim on the 19th of May, 2014.
The 1st defendant filed an amended statement of defence dated the 2nd day of July, 2014.
The claimants called three(3) witnesses while the 1st, 2nd and 3rd defendants testified in person and called no other witnesses.

At the hearing of the action, the Appellants who were the Claimants called three witnesses who testified as CW1, CW2 and CW3 respectively. The 3rd Respondent testified as 1st defence witness.

At the conclusion of the hearing, the learned trial judge upheld the relief sought by the claimants, declared as illegal the purported sale of the property in

dispute by Samuel Olopo to the 3rd Defendant, and consequently declared null and void the agreement between the 1st Respondent, and Asa family, but rather granted the alternative reliefs sought by the 3rd Defendant in his counter-claim, and ordered the claimants and Samuel Olopo to restitutions the 3rd Defendant for failing to raise objections when the 1st Defendant rebuilt the property in dispute from the proceeds he received as purchase price from the 3rd Respondent.

Before the appeal was entered Samuel Olopo passed away and he was substituted by order of Court with his son a Christopher Kehinde Olopo.

Briefly put, the facts that led to the suit relates to a house, lying and being at No.15 Barracks Road, Ado-Ekiti known as lle Aba Olopo, which is a family property of the Claimants, as well as the 1st Defendant. The said house is part of the estate of late Pa Fabiyi Olopo, who died interstate. Sometime in 2010, the Claimants/Appellants became aware of moves and intention of the 1st Defendant, the first child of the late Pa Fabiyi Olopo, to sell the property in dispute as the absolute owner thereof; the Appellants consequent thereupon reported the

matter to the palace of the Ewi of Ado – Ekiti for mediation.

While all this was going on, the 3rd Respondent had purportedly made a part-payment to the late Samuel Sunday Olopo/1st Defendant and further issued a post dated cheque dated 30th June, 2011, for the balance of the purchase price.

It was in the course of the imbroglio generated by the attempt of the 3rd Respondent to exercise acts of ownership and take possession of the property, that the Appellants became aware that their brother Sunday Olopo had received part payment for the purchase of their father’s house, that led to the institution of this action. It was in the course of the fracas occasioned by the 3rd Respondent attempting to take possession, that the Claimants/Appellants became aware that the 1st Defendant had purportedly illegally, transferred the property in dispute to himself by virtue of a Deed of conveyance dated 5th, December, 1977, between the 1st Defendant and principal members of the Asa family, who granted the late Fabiyi Olopo land upon which the property in dispute was built. The Claimants/Appellants consequent thereupon instituted this action.

The 1st Defendant by his amended statement of defence contained at pages 268-269 of the record, had admitted therein that he assumed ownership of the property on the belief, that as the 1st child of the late Pa Fabiyi Olopo, the property devolved to him absolutely.

The 2nd and 3rd Defendants on their part filed joint defence, whereof they averred that, the 3rd Defendant entered into a contract to purchase the property from Sunday Olopo based on the representations made to him by the said Sunday Olopo particularly a Deed of conveyance between him and the Asa family the original owners of the land in dispute dated 5th December, 1977, and registered at 9/9/52 at the Lands Registry.

At the conclusion of the hearing, the learned trial judge upheld the relief sought by the Claimants/Appellants, declared as illegal the purported sale of the property in dispute by Samuel Olopo to the 3rd Defendant and consequently declared null and void the agreement between the 1st Respondent and Asa family, but rather granted the alternative reliefs sought by the 3rd Defendant in his counter-claim and ordered the claimants jointly with Samuel Olopo to restitute the 3rd

Defendant for failing to raise objections when the 1st Defendant rebuilt the property in dispute from the proceeds he received as purchase price from the 3rd Respondent.

Before the appeal was entered, Samuel Olopo passed away, and he was substituted by order of Court with his son Christopher Kehinde Olopo.

It is against the judgment directing that the Appellants restitute the 3rd Defendant that the Defendants/Appellants have approached this Court about, by filing their Notice of Appeal dated 6th February, 2017, subsequently amended by order of Court on the 2/7/2020, consisting a lone ground of appeal.

Parties subsequently filed and served their respective briefs of argument which they adopted and relied upon at the hearing of the appeal on 2/7/2020.

In the appellants’ brief of argument filed on 7/10/2019, deemed properly filed on the 27/1/2020 the following issue was formulated for determination:
“Whether having regard to the facts and circumstances of this case, can the learned trial judge’s grant of the counter claim against the Appellants be justified in law and in fact.”

The 3rd Respondent on his

part adopted the sole issue formulated for determination by the Appellants.

Before dealing with the issue, it would be necessary to dispose of the Preliminary objection of the 3rd Respondent. The gist of the said objection, argued on pages 8-12 of the 3rd Respondent’s brief, was that there is no valid or competent notice of Appeal which can sustain this appeal.

In arguing the objection, the 3rd Respondent’s counsel submitted that it is trite law, that there is no valid Notice of Appeal upon which the Appellants can sustain the instant appeal. He urged this Court to dismiss the appeal for being incompetent.

He noted that the lower Court delivered judgment on the 16th day of December, 2016. And the Appellant’s filed a Notice of Appeal 10th February, 2017. The Appellants prayed the lower Court for an order granting leave to them to substitute the 1st Respondent who had passed on with his first surviving son Christopher Kehinde Olopo.

The said application came before this Court on the 12th day of April, 2018, but it was withdrawn by Appellants, and consequently struck out same being incompetent, due to the fact, that the

appeal had not been entered in this Court, because the Appellants had not compiled and transmitted the record of appeal from the lower Court to this Court at the material time.

The Appellants went to the lower Court vide an application number HAD/536M/2018 filed on the 4th day of October, 2018. They prayed the lower Court for an order granting leave to them to substitute the 1st Defendant, who had passed on, with his eldest surviving son, Christopher Kehinde Olopo as a personal representative of the estate of Mr. Samuel Sunday Olopo, the 1st Defendant. The application was granted on the 12th of December, 2018.

Learned counsel contended that, by law Mr. Samuel Olopo is no longer a party to the appeal, his name having been substituted with that of Mr. Christopher Kehinde Olopo. Therefore the Notice of Appeal dated 6th day of February, 2017, filed on 10th February, 2017 ceased to have any legal validity, the parties in the appeal having now being altered by the substitution order granted by the lower Court on the 12th day of December, 2018. Learned counsel further submitted, that by the time the order of substitution was granted by the lower Court on

12th December, 2018, the time within which Appellants were to file Notice of appeal against the judgment of the lower Court had clearly lapsed.

In the circumstance, the Appellants ought to brought an application for enlargement of time pursuant to Section 25(2)(a)(4) of the Court of Appeal Act Cap C37 LFN 2004 within which to file a fresh Notice of Appeal, which would now reflect the name of the substituted Mr. Christopher Kehinde Olopo as a proper party in the appeal. But that the Appellants, instead of first filing a competent Notice of appeal, they went ahead to compile and transmit the Record of Appeal based on the original Notice of Appeal which did not contain the name of the substituted 1st Respondent on record.

Learned counsel then submitted that a Notice of Appeal, just like a Writ of Summons is the originating process of an appeal, and as such, an invalid or incompetent Notice of appeal cannot sustain an appeal and same must be dismissed. See: Okomu Oil Palm Co v Tajudeen (2015) ALL FWLR (PT. 806) 350 at 376. He further submitted that placing a proper party before the Court is fundamental and goes to the root of adjudication without which

the Court will be robbed of the requisite jurisdiction to entertain such matter. He reiterated the fact that where a procedure has been laid down or prescribed for doing a thing, any other way or method of doing that thing is unacceptable. See Ademola v Ayeoba (2009) ALL FWLR (PT. 458) 355; Kayode & Anor v The State (2008) 6 ACLR 256 @ 261. Learned counsel submitted that, the failure of the Appellants to file a fresh Notice of Appeal pursuant to the Order of substitution granted to them to reflect a proper party in the appeal has robbed this Court of the jurisdiction to entertain the Appellants’ appeal. He urged this Court to so hold. See Kanu v Obeta (2015) ALL FWLR (PT810) 1164; Amuda v Ajobo (1995) 7 NWLR (PT. 406) 170; Onwunalu v Osademe (1971) 1 ALL NLR (PT. 1) 14; Okunriboye v Osuma (2017) ALL FWLR (PT. 866) 342.

Learned counsel on the decision in Okunriboye v Osuma submitted that where a party’s name has been substituted with the name of another person in a suit as done in this case by the Appellants, failure to join the name of the party whose name has now been substituted is fatal and will render such a suit incompetent. He went on to

submit that there is no appeal without a valid Notice of Appeal. He urged this Court to so hold and dismiss this appeal. He also urged this Court to discountenance the Record of Appeal and the Appellants’ brief same having been filed on a fundamentally defective Notice of Appeal. He urged this Court to dismiss the appeal.

It was further submitted by learned counsel that the law is trite that a defective originating process cannot be regularized. See Petgas Resources Ltd v Mbanefo (2018) ALL FWLR (PT. 969) 123 at 146-147; Auto lmport Export v Adebayo &ors (2002) 18 NWLR (PT. 799) 554; Sken Consult Ltd v Ukey (1981) 1 SC 6 at 26; Elelu-Habeeb v Attorney-General Federation (2012) ALL FWLR (PT. 629) 10-11; Madukolu v Nkemdilim (1962) ALL NLR.

Finally learned counsel urged this Court to dismiss this appeal for want of jurisdiction, and on the ground of incompetence.

Appellants’ counsel in his response to the argument on preliminary objection, referred to paragraphs 3.00-3.24 of the 3rd Respondent’s brief, that arguments contained therein are not only flawed, but grossly misconceived. The complaint of the Respondents’ counsel

on the reflection of the name of Mr. Samuel Sunday Olopo (a dead person) on the Notice of appeal as the 1st Respondent, not withstanding having been granted leave by the lower Court to substitute him with his son Christopher Kehinde Olopo by order made on 12th December, 2018 before the record of appeal was transmitted to this Court. Learned counsel noted emphatically that the Notice of Appeal was filed on 10th February, 2017, whilst the 1st Defendant died on 4th October, 2017. He further contended that the objector’s arguments and contention would have been of any moment, if late Sunday Olopo was the only Respondent to this appeal, however there are two other parties and as such the Notice of Appeal he submitted is competent and maintainable. See Union Bank Plc v Garilla (Nig) Ltd (2012) LPELR-15379(CA) 8 para A-B.; Diamond Hotel Ltd & Anor v Obikoya (2018) LPELR-45533 (CA)14-17; Awoyemi v Fasuan (2006) LPELR-8227 (CA).

In his further submissions, learned counsel submitted that failure to include the name of the substituted party is a misjoinder in law, the non-joinder or misjoinder of a party will not affect the jurisdiction of the Court to

entertain a matter or impact on the Court’s competence to adjudicate therein. See Bello v INEC (2010) LPELR (SC), Sapo & Anor v Sunmonu (2010) LPELR-3015 (SC); In Re Chief Nwoja (1992) SCNJ (PT1) 76.

Learned counsel submitted that the order of substitution granted to the Appellants in December, 2018 is contained in the record of appeal. Moreover, the 3rd Respondent acknowledged that fact when he referred to the substituted party as the 1st Respondent in his brief, and other processes. The Appellants have an application pending before this Court to amend the Notice of Appeal to reflect the proper parties in the appeal. Learned counsel contended that the objector is not misguided as to who the proper parties are. Learned counsel submitted that the case of Okunriboye v Osuma (2017) All FWLR (PT. 866) 242 does not advance the 3rd Respondent’s argument on this issue. The facts and circumstances therein are totally different and distinguishable from the facts herein. He rather commended the case of Oni v Gov of Ekiti State (2019) LPELR-46413 (SC).

Concluding, learned counsel reiterated the fact that preliminary objection is viable only when

it is capable of completely uprooting and terminating an appeal. See Jim Jaja v COP Rivers (2013) 6 NWLR (PT. 1350) 225; Nut Taraba State v Habu (2018) 15 NWLR (PT.1642) 381 @ 390.

of Appeal, an originating process, it is rightly a jurisdictional issue that must first be resolved. For the competence of a notice of appeal is fundamental to the due process of law, in the commencement of an appeal and consequentially a condition precedent to the adjudicatory jurisdiction of the Court of Appeal over the Appellants’ appeal. I shall therefore tackle this point of law first, what is more, it is capable of terminating the entire appeal in limine, if of a fact, it is ruled that the notice of appeal is invalid.

On this point, the learned counsel for the 3rd Respondent submitted that there is no interlocutory order of injunction being appealed against by the Appellant was made on the 5th of September, 2017, while the appeal against that decision was lodged at the Registry of the trial Court through its notice of appeal filed on the 9th of October, 2017, a period clearly outside the fourteen days required by Section 24 of the Court of Appeal Act, 2004. The Appellant having not filed this appeal within the said period allowed renders this appeal incompetent. He relied on the cases of: (1) Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) p. 237;

(2) Funduk Engineering Ltd. V. J. Mcarthur & 4 Ors. In RE Madaki (1996) 7 NWLR (Pt. 459) p. 153 SC and (3) N.E.W. Ltd. V. Denap Ltd. (1997) 10 NWLR (Pt. 459) p.481 at P.517.

It is a trite and fundamental principle of law that an appeal which is filed out of time, without the permission of Court is incompetent. Therefore, this Court, indeed no Court, has jurisdiction to entertain an incompetent appeal. On this legal position, he referred to the cases of: (1) Creek View Property Dev. Co. Ltd. V. Ebun Olu Adegboruwa (2011) 3 NWLR (Pt. 1234) p. 239 at p. 246 para. F and (2) Ebokam v. Ekwenibe & Sons Ltd. (1993) 6 NWLR (Pt. 297) P. 108 at P.119, paras. B-C.

Order 15 makes provision for the death of a party to an appeal.
Rule 3 of the said order provides as follows:-
“Where an appeal has been set down for hearing and the Court is or became aware that a necessary party to the appeal is dead the appeal shall be struck out.”
However Rule 2 of this order provides for substitution of dead party to an appeal. The situation at hand does seem to fall within the ambit of Order 15, in that all appeals are by way of rehearing of the case that

begun at the lower Court.
Where the only appellant or the respondent is dead, surely the appeal cannot go on because if the dead person is the appellant, no one will prosecute and enforce the decision if the appeal succeeds or in case of the respondent who is dead, there will be no defendant that will be held accountable. To that extent, the notice of appeal is irregular since there is no appellant or respondent to sustain the appeal.
In that scenario the appeal is liable to be struck out in absence of substitution. Where a dead party is joined with a living party on either side, the living parties can sustain the appeal even when the dead party is struck out, as a result of amendment to the notice of appeal. In otherwords, the notice of appeal does not become incompetent by joining a deceased person with a party that is alive.
The law is very clear that the only reason which makes it necessary to make a person or an institution a party to an appeal is to make him or it to be bound by the result of the appeal.
Therefore in determining who a necessary party is the question is whether the appeal cannot be effectually and completely be

determined unless that person or institution is made a party. See UKU V. OKUMAGBA (1974) 3 SC 35; JIDDA V. KACHALLAH (1999) 4 NWLR (pt. 599) 426.
In the instant amended notice of appeal, the necessary parties are 1. Mrs. Feyisayo Adeoye, 2. Evangelist Emmanuel Olopo 3. Mrs. Stella Esan 4. Elder Ebenezer Olopo as the Appellants and 1. Mr. Christopher Kehinde 2. Prince Adefolalu Akinola 4. Alhaji Sulaiman Akinbami as the respondents. The appeal can be sustained even as the original 1st Defendant died as the outcome of the appeal is capable of being enforced. Just as a single valid ground of appeal out of several incompetent grounds of appeal can sustain an appeal, so also a single competent party to an appeal which contains some incompetent can sustain such appeal.
In YAKUBU ABDULHAMID KWARA V. LAGI INNOCENT & 40 ORS (2010) 7 EPR 523, this Court, per O.F. Omoleye at page 547 said:-
“By virtue of the provisions of Order 6 Rule 6 of the Court of Appeal Rules, a notice of appeal can be struck out if an appeal is found to be incompetent or for any other sufficient reason. However, if one or more grounds are found to be

competent, the notice of appeal would be saved and the competent grounds can be argued.”
In NWOSU V. IMO STATE ENVIRONMENTAL AGENCY (1990) 2 NWLR (PT. 135) 688 at 717, the Supreme Court, per Nnaemeka Agu JSC of blessed memory said:-
“As we have stated several times, the days when parties could pick their way in this Court through naked technical rules of procedure the breach of which does not occasion a miscarriage of justice are fast sinking into Limbo of forgotten things…”
By Order 6 Rule 2(1), all appeals are by way of rehearing the case that was decided at the lower Court. A Notice of Appeal therefore that contains the names of the parties that commenced the case at the lower is not incompetent even though the party died before the appeal is filed. It is the practice of the Court to allow for substitution of the dead parties. It is therefore my firm view that the inclusion of a dead party in the notice of appeal may be irregular, but certainly such notice of appeal cannot be incompetent.
In this instant case, it is revealed that the Notice of Appeal was filed on 10th February, 2017 whilst the original 1st Defendant was still alive.

The said 1st Defendant died on the 4th of October, 2017.

The preliminary objection being baseless as the appellants have taken step to regularize the notice of appeal. Accordingly, the preliminary objection is hereby dismissed.
Having disposed of the preliminary objection, l will proceed to the main appeal.

The Appellant’s counsel is of the view that in the facts and circumstances of this case, the learned trial’s conclusions, that the Appellants restitute the 3rd Respondent based on the evidence proffered by both parties is shocking , perverse and unsustainable.

In that the evidence placed before the trial Court was that, the 1st Defendant, who claimed ownership of the property in dispute, had no authority to so do, as the property did not belong to him absolutely, but to all the beneficiaries of the Estate of late Pa Fabiyi Olopo to which the 1st Defendant is the first son and the Appellants his siblings.

The fulcrum of this appeal, is the lone issue for determination, whether the trial judge’s grant of counter-claim can be justified in law and in fact.

This Court is called upon in this appeal to determine

whether the lower Court rightly evaluated the evidence placed before it by the parties. I believe it to be the law, that facts on any issue in a Court case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue, on either side of an imaginary balance, and weighing them together whichever outweighs the other ought to be accepted.
It is well settled that if the Court of trial unquestionably evaluates the evidence, then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court.
It is no doubt the law that where possession is doubtful or equivocal the law attaches it to title.”
It is the duty of the trial Court to assess witnesses form impressions about them and evaluate their evidence in the light of the impression which the Court forms of them.

I will examine the evidence placed before the trial Court by the Appellants.
CW1, Mrs Stella Esan at page 82-84 of the record of appeal in her witness statement which she adopted before the trial Court, she stated as follows: “That we, the claimants as well as the 1st Defendant are children of

late Pa Joseph Fabiyi Olopo. That the claimants and the 1st defendant jointly own through inheritance from their father, the property located at 15 Barracks Road, Okesa, Ado-Ekiti, popularly known as “lle Aba Olopo”. That the property was inherited jointly with some of them having their rooms there after the death of their father.”

CW2, Secretary of the Asa Family, gave evidence contained on pages 88-90 of the record of appeal. He was not cross-examined or challenged on the material issue of his unequivocal affirmation that the Asa family only granted land to the father of the Appellants, and not the 1st Defendant, and that those who allegedly purported to convey the land on behalf of the Asa family to Samuel Olopo, were at no time members of the Asa family, nor had the capacity to convey family land not being principal members of the family. He denied the Asa family conveyance of the land to Samuel Olopo.

CW3, Samuel Sunday Olopo in answer under cross examination stated on page 387 of the record of appeal as follows “As at today none of my father’s properties has been partitioned among my siblings, sometimes l did share the

rent I collected from the tenants in the house with my siblings.” His evidence was emphatic as to the status of the property as family as well as all efforts he made challenging his brother’s claim as the sole owner of the property, including reporting the matter to the palace for mediation.
The learned trial judge rightly evaluated the evidence in relation to the property being family property, and came to the right conclusion as contained at page 468 of the record that:
“The uncontradicted evidence before the Court is that the property in dispute was originally owned by late Pa. Olopo, who begat the 1st Defendant and the Claimants. The property devolved on the children after his death … In my consideration of these evidence, it is my humble view that since the property has not been partitioned amongst the children of Pa Olopo, it remains a family property.”

In his evaluation of the evidence before the Court, the learned trial judge on page 468 rightly found thus:
“The 1st Defendant has used the deed of conveyance to convince the 3rd Defendant that he was the sole owner of the property and lured him to

buy the property for N7million only of which he has collected N4million .”

From the pleadings and evaluation of evidence before the trial Court, the learned trial judge found that at all material times the property in dispute is a family property.

The 3rd Defence witness Samuel Sunday Olopo, under cross-examination stated-
“I executed a sale agreement with Alhaji Akinbami. I sold the house to Alhaji Akinbami for N7million, and he has paid N4million out of it on 28/4/11. On that day he also gave me a post dated cheque for N3million. I promised Alhaji Akinbami that the tenants would vacate the house within two months. I notified the tenants to vacate the house.
When issues arise on the sale and my brother took me to Court. I engaged Adedayo Ajakaiye as my lawyer. I again asked Alhaji Akinbami to loan me N100,000.00 to give my lawyer who came from Ibadan and he did. I equally swore to an affidavit that l sold the house to Alhaji Akinbami. It was because of the crises that arise from the sale that made Alhaji Akinbami to withdraw the cheque of N3million naira from me. I used the money l collected from Alhaji Akinbami to process

another house where l intend to live. I initially filed a defence to this action through my counsel Adeyemi. Initially l said what l did was right, as everything looked different from now.
Now, l am saying that l sold the property in question because all my siblings and my children are against me because l did not have the right to sell the property. When l was selling the house, l did not know whether my siblings were aware of the sale, but they were against me in selling the place.
The frankers between me and my siblings was because l was assuming the sole ownership of the property to myself. I acknowledge the Asa family as my father’s grantor. I have no cause to doubt any evidence that Asa family has come to give in this case in respect of the property.”

Clearly what resonates all through the evidence and pleadings is that the 3rd Respondent dealt solely with the 1st Respondent, who misrepresented, that he was the absolute and sole owner of the property. And he alone received part payment on the property. I have carefully perused the record of appeal, and l cannot find any scintilla of evidence that the Appellants participated in

any way in the sale of the property. Neither is there any evidence that they were given any part of the proceeds of sale of their family property. I find that on the contrary, 1st Respondents’ family members challenged him for falsely ascribing ownership of the property to himself.

CW1 in her reply under cross examination answered “l know Mr. Samuel Olopo the 1st Defendant. I know that he made a fake deed of conveyance to the 3rd defendant.
Mr. Ebenezer, the 4th claimant came to tell me that some people were coming to inspect the house and that he went to Chief Olotin to report and the chief said he should go and stay put and go and write this house is not for sale on it.”

CW3 under cross examination stated; “ l am not aware that 1st Defendant has sold the house to the 3rd Defendant, until my tenant intimated me about it. I don’t know that the 1st Defendant collected a lump sum of money from the 3rd Defendant as l was not living there.”

Findings on primary facts, are within the province of the Court of trial, and there is a rebuttable presumption, that a judges’ findings and conclusions on the facts are correct.

The learned trial judge based on law rightly held that the property remains family property.

But l find it very difficult to understand the unfounded, contention of the learned trial judge that the Appellants were privy or clouded with 1st Defendant when he unilaterally sold the family property in issue to the 3rd Defendant. There is no such evidence before the trial Court.

The issue raised by the conclusion of the learned trial judge, is whether a party who is not privy to a contract can be made liable under such a contract as the learned trial judge has done in this case.
It is an elementary principle of law that the doctrine of

privity of contract is to the effect that a person who intends to enforce a contract must show, not only that he gave consideration, but also that he is a party to that contract. In law, a contract exists only between the parties to it. A person who is not a party to the contract cannot sue upon it. By the doctrine of privity of contract, a contract cannot confer rights or impose obligations arising therefrom on any person except parties to it. Put simply, a stranger cannot acquire rights or incur obligations arising from a contract to which he is not a party. See REICHIE v. NBCI (2016) LPELR (40051) 1 at 25, REBOLD INDUSTRIES LTD v. MAGREOLA (2015) LPELR (24612) 1 at 22-23 and INCAR v. OJOMO (supra). It is instructive that the Appellants who are not privy to the contract of sale of their family property have no rights or obligations under the said contract of sale.
The Appellants, being strangers to the contract can neither sue nor be sued on the contract.
Accordingly, the decision of the lower Court cannot enforce the contract based on the doctrine of privity of contract, it is perverse.

Mr. Chris Dura Aondo v Benue Links Nigeria Limited (2019) LPELR -46876(CA), the Court held thus: “By the doctrine of privity of contract, only a party to a contract can sue or be sued on it. It cannot be enforced by or against a non-party even if it is made for his benefit and purports to give him the right to sue or make him liable upon it. See Ikpeazu v ACB Ltd. (1965) 1 NMLR 347.
From the record of appeal, the totality of the evidence of the Appellants through their witnesses CW1, CW2 and CW3, it is clear that there was no where they gave evidence that the Appellants collected money from the 3rd Defendant, or even dealt with them in relation to the sale of the property.
The 3rd Defendant under cross examination “The 2nd Defendant was the one who was approached by the owner of the land that he wanted to sell his land. The 2nd Defendant then introduced me to the owner of the land, who took me to the land. I visited the land in company of the owner of the land 1st Defendant, the 2nd Defendant together with my lawyer Barrister Adetifa. I went to the Ministry of Lands and they confirmed that the 1st Defendant is the owner of the property. I first paid N390,000.00 to the Ministry of Commerce

where the 1st Defendant was owing and l paid N3,710,000.00 to make it N4,000,000. I paid the money by cheque. The name of the owner of the land is in Exhibit D and it was confirmed to me in the Ministry of Lands, so l didn’t need to go to Asa family. When l was asking him when the tenants will pack out of the property, he informed me that some people from his family who were his brothers and sisters were troubling him. That the people troubling him are now the claimants in this case.
I met the 4th claimant Elder Ebenezer Olopo for the 1st time in this Court. I am not aware there is a dispute between the claimants and the 1st Defendant in respect of this land.”
It is well documented in the record of appeal as reproduced above, that the 3rd Defendant throughout his pleadings/evidence and under cross-examination, maintained that he paid money to the 1st Defendant, and he had no dealings with the Appellants, he went further to state that he met the 4th claimant for the first time at the trial Court.
It is easily deductible as submitted by Appellants’ counsel, that the evidence of the 2nd and 3rd Respondents is an admission as to

the fact that none of the Appellants collected any sum of money from or had any dealings with them in respect of the property in dispute.

An admission in pleadings is one that generally puts an end to the requirement of proof and the parties need not join issues on the point or fact admitted. As NIKI TOBI J.S.C. put it, proof presupposes a dispute and since admission removes the element of dispute, proof becomes superfluous. See AKANINWO V NSIRIM (2008) 9 NWLR (Pt.1093) 439. It is also not the law that admissions are conclusive against the maker as every admission must be carefully evaluated and considered against the backdrop of the circumstances under which it was made admission can be classified into two categories, formal and informal admission and these are:
“Formal admissions are admission made by a party in a civil proceedings so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in a pleading need not be proved any longer but are taken as established. Formal admissions may also take the form of clear admissions filed or made by a party to a civil

proceeding or by his counsel in the service of the trial of a civil suit. The Court however even in the case of a formal admission in a civil proceeding has discretion to require the admitted fact to be proved by some other evidence other than by the admission itself.
“Informal admissions, on the other hand, do not necessarily or strictly speaking bind their maker and may therefore be explained or contradicted. The weight of an informal admission depends on the circumstances under which it was made and these circumstances may always be proved to impeach or enhance its credibility. Thus an informal admission, unless it amounts to an estoppel, may be established by the party against whom it is tendered to be incorrect, untrue or to have been made under a mistake of law or fact or some compelling or vitiating circumstances. Accordingly, the value of an informal admission depends on the particular circumstances under which it was made and it is for the trial Court to determine the issue and to give due weight to the alleged admission and the examplanatory circumstances thereof.”
See NWANKWO v. NWANKWO (1995) LPELR-2110 (SC).

The law is that once an admission against self interest in unequivocal and clear, the Court is entitled to act on such facts. An admission of a party in law is the best evidence, in the sense that the opposing party need not make any strenuous effort to prove the admitted facts. Thus, a Court of law is entitled to give judgment based on an admission by a party if the admission is relevant to the facts in issue. In civil cases, admission by a party is evidence of the facts asserted against him. Unless explanations are given which satisfy the Court that admissions should not be so regarded, due probative weight should be given to them as such. See: Our Line Ltd V SCC Nig. Ltd (2009) 7 SCNJ 358; Salawu V Yusuf (2007) 5 SCNJ 354.

Improvements of family property, even by a member of the family does not divest the property of its original character, it remains a family property, much less improvements by someone who was in possession only by reason of a temporary license as the Appellants in this case; see SHELIE v. CHIEF ASAJON OF OLOJA EREKO 11 (1957) SCNLR 286; (1957)2 F.S.C. 65.
In this instant case, though the land in dispute was not sold to the 3rd defendant as family

property. It was sold as personal property of 1st defendant. It is of fundamental importance to bring out this distinction because they have different legal consequences. When family land is sold by a member of the family as his own property the purported sale is void. See KALIO & ANOR v WOLUCHEM & ANOR (1985) 1 NWLR (Part 4) page 610, OYEBANJI v OKUNOLA (1968) NWLR 221 and OJOH v KAMALU & ORS (2005) 18 NWLR (Part 958) 523. Even where the sale was done by the head of the family as personal property, it has the same legal effect. See EJILEMELE v OPARA & ANORS (2003) 9 NWLR PT. 826.P. 536; USIOBAIFO & ANOR v USIOBAIFO & ANOR (2005) 3 NWLR (Pt. 913) 665; AIYEOLA v PEDRO (2014) LPELR – 22915 (S.C.). Such a sale is void ab initio. It follows from the above that the sale of the land in dispute by 1st Defendant to 3rd Defendant as personal property in the face of the finding of the lower Court that the said land was a family land was void ab initio and not voidable. See ACHILIHU & ORS v ANYATONWU (2013) 12 NWLR (Pt. 1368) P. 256. According to Aboki J.C.A in ALIYU & ANOR v GWADABE & ORS (2014) LPELR – 23463 (C.A.): “It is trite law that

where a person who has no title to a property sells it to another the sale is void ab initio. This is based on the principle of NEMO DAT QUOD NON HABET meaning he who has not cannot give out. See AGEY v TORTYA (2003) 6 NWLR (Pt. 816) P.385 at 396. “The learned trial Judge on page 471 of the record of appeal further held thus: “The claimant and the 1st Defendant cannot eat their cake and have it. Particularly when there is a 3rd party interest that is involved. If they are not ready to release the property they must indemnify the 3rd Defendant particularly when they failed to raise objection to the rebuilding of the house.” It appears to me with due respect that the averments in the pleadings do not support the statement of the learned trial Judge. I have carefully gone through the averments in the Statement of claim and statement of defence as well as the evidence before the trial Court, l am unable to find any support for the above statement of his Lordship. Earlier in the judgment, his Lordship identified the issue for determination thus: “Whether the 3rd Defendant is entitled to the reliefs sought in his counter- claim”. Ratification and

facts in support thereof unlike in this case should be pleaded. See U.B.A. Plc v BTL INDUSTRIES LTD (2005) 10 NWLR (Pt. 933) 356, otherwise it cannot be raised. See KANO v OYELAKIN (1993) 3 NWLR (Pt. 282) 399 at 404. Since it was not the 3rd defendant’s case at the lower Court that the said sale was ratified, I am of the humble view that the learned trial Judge ought not to have invoked it in the case. Whereas same judge clearly said on page 469 of the record of appeal that “The evidence on record is overwhelming in favour of the claim of the claimants and to which the 1st Defendant from whom the 3rd Defendant derived his title offered no defence. The evidence of the 1st Defendant is nothing but a compromise with the claimants case which to my mind is rather unfortunate as he is now saying that he sold the house in error. The law is trite that the 1st Defendant could not transfer to the 3rd Defendant what did not belong to him under any disguise. The 1st Defendant has chosen a dishonorable path in this case to the detriment of the 3rd Defendant. From my holding issue one and in view of the evidence on record in this case, l hold that in view of the state

of the pleadings of the parties and the evidence before the Court, the claimants have established their entitlement to the reliefs sought by them.” Clearly, the learned trial judge rightly found that the claimants proved their case at the lower Court and the learned trial Judge was right to have held that the land in dispute was a family property. It is clear from the evidence that the purported sale of the said land was not as a family property but as a personal property of the vendor. The law is settled that such sale is void. See KALIO & ANOR v WOLUCHEM (supra).”

I find that the learned trial judge in the light of the evidence of the 2nd and 3rd Defendant admitting not having any dealing with the Appellants to have gone further to say that the claimants should then indemnify the 3rd Defendant for the money he had paid to the 1st Defendant on the wrongful and established pretex that he did not have the capacity to ascribe ownership of the property to himself for standing by and allowing Samuel Olopo to use the money to develop the family house is not only perverse but a gross miscarriage of justice and a denial of justice .

I find from the record of appeal, that in the pleadings of the 1st Defendant and his evidence before the Court, that he dealt solely with the 3rd Defendant and that all monies were paid to the 1st Defendant. I am unable to understand how the learned trial judge arrived at his findings of evidence which no witness gave evidence before the trial Court that the claimants stood by conspired with the 1st Respondent, and or benefitted from the sums of money which the 3rd Respondent paid to the 1st Respondent.

The Appellants’ counsel rightly submitted that, at no point

throughout the proceedings at the lower Court either by way of his pleadings or evidence was any issue relating to equity and or indolence of the Appellants raised and made an issue by the 3rd Respondent. It is being raised in this Court for the first time; albeit without leave of Court and therefore of no moment.
It is trite law that a party is not be allowed in his brief to raise a new issue or matter, not raised at the lower Court. See K Line INC V K. R INT’L (Nigeria) Ltd & Anor (1993) LPELR-142928 (CA); Itako v Orowunmi & Ors (2014) LPELR-22341 (CA); Eze v Okweremuo(2010) LPELR -4025 (CA), Aliucha v Elechi(2012) LPELR- 7823 (SC); Odega v Olloh (2015) LPELR-24568(CA). The settled position of the law that no party is allowed to depart from the contents of the records in arguing his appeal as done in this case. See Odega v Olloh (2015) LPELR- 24568 (CA) where the Court held:

“The inescapable position of the law is that the Appellate Court is bound by the record of proceedings before it, and cannot depart from it on the ipsi dixit of counsel or on speculation. Records of proceeding are the only indication of what took place

in a Court, it is always the final reference of events, step by step of what took place in a Court…
The story of the Respondent’s counsel which is not supported by the record of appeal before this Court is solely to throw dust into the eyes of this Court. Needless to say, the story cannot fly in the face of the record before this Court.”
In the case of TELEPOWER (NIG) LTD V. NICHOLAS BANNA (2002) FWLR (PT. 95) 255 Ratio 2, it was held that:
“Equity does not act in vain and should not be taken for granted but is buttressed or grounded on solid facts that would induce the Court to act in favour of the applicant.”
As between the appellant and the respondent, there are no grounds, legal of factual, for the invocation of equity jurisdiction, for equity does not act in vain. Appellant has failed to show that he deserves the relief he seeks in equity. Contrary to the equitable maxim that he who comes to equity must come with clean hands. See Salako V. Williams (1988) 11 NWLR (pt. 574) 505 at 521 Paras D-F). Appellant has come to equity with empty hands.

This appeal is meritorious, consequently the award of damages against the

Appellants jointly and severally is hereby set aside.
Cost is assessed at N50,000.00 against the 3rd Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother FATIMA OMORO AKINBAMI JCA in this appeal.

My noble Lord has meritoriously considered all the issue raised and arrived at a just decision that I have nothing else to add.

I therefore agree with him that this appeal is meritorious and highly sustainable.
It is also allowed by me.
I also abide with the issue as to costs.
Appeal allowed.

Appearances:

OLALEKAN OLATAWURA, ESQ., with him, I. A. OMOLADE, ESQ., and E.E. NWORIE, ESQ. For Appellant(s)

E. K ADETIFA, with him, ANTHONY EJERE, ESQ., and SAMUEL O. DADA, ESQ. for the 3rd Respondent For Respondent(s)