AKERELE v. AKERELE (2021)

AKERELE v. AKERELE

(2021)LCN/15161(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/IL/20/2020

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

EVANGELIST MOSES OLAREMILEKUN AKERELE APPELANT(S)

And

JAMES AYODELE AKERELE RESPONDENT(S)

RATIO

IMPORTANCE OF SERVICE OF COURT PROCESS ,WHERE SERVICE IT IS REQUIRED, TO THE EXERCISE OF THE COURT’S JURISDICTION

The law is settled that service of Court process where service is required is a condition precedent to the exercise of the Court’s jurisdiction to adjudicate on a matter, particularly an originating process such as the notice of appeal. Where the originating process is not served on a defendant or a respondent in an appeal, the Court proceedings including any judgment or decision resulting from such proceedings is rendered a nullity. See IDISI V. ECODRIL (NIG.) LTD & ORS (2016) LPELR-40438 (SC) AT 23-25 (D-C). ADEGBOLA V. OSIYI & ORS (2017) LPELR-42471 (SC) AT 18-19 (F-C). IHEDIOHA & ANOR. V. OKOROCHA & ORS (2015) LPELR-40837 (SC) AT 69-70 (B-A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

INTERPRETATION OF ORDER 2 RULE 1 OF THE COURT OF APPEAL RULES, 2016 REGARDING WHERE OBJECTION TO THE HEARING OF THE APPEAL ON GROUND OF LACK OF PERSONAL SERVICE OF THE NOTICE OF APPEAL SHALL NOT BE ENTERTAINED

The words of Order 2 Rule 1 are very clear and unambiguous “If the Court is satisfied that the notice of appeal has in fact been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.” Though the word “shall” may sometimes be construed as “may” where it is used in a negative phrase such as “shall not” which implies that something must not be done. See UGWU & ANOR V. ARARUME & ANOR. (2007) LPELR-24345 (SC) AT 36-37 (B-A). The word “shall” used in the provision of Order 2 Rule 1 (a) connotes a command and a mandatory directive. There is no room for an exercise of discretion. The notice of appeal having been communicated to the respondent via the record of appeal, no objection to the hearing of the appeal on ground of lack of personal service of the notice of appeal shall be entertained by this Court. See LUBCON LTD. V. CLASSMATE TECHNOLOGIES CO. LTD. (2019) LPELR-47414 AT (CA) 30-33(C-D). AMALGAMATED TRUSTEES LTD. V. ASSOCIATED DISCOUNT HOUSE LTD. (2007) LPELR-454 (SC) AT 23-26 (B-A). IWUNZE V. FRN (2014 LPELR-22254 (SC) AT 38 (C-F), 26 (B-F). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER PERSONAL SERVICE OF A COURT PROCESS CAN BE WAIVED BY A PARTY ON WHOM THE PROCESS IS TO BE SERVED

… the law is settled that where the rules of Court stipulate personal service of a Court process, such requirement can be waived by a party on whom the process is to be served. See SALEH V. MUHAMMED & ANOR. (2010) LPELR-11068 (CA) AT 6-10 (D-F). JULDE V. MUBARAK & ORS. (2019) LPELR-47222(CA) AT 26-29(B-B). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHO CAN APPEAL AGAINST A DECISION OR ORDER OF A COURT

It is settled that the right to appeal against a decision or order of a Court is a constitutional right of a person aggrieved by the decision. It is also settled that a “person aggrieved” must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. See S.G.B.N. LTD. V. AFEKORO & ORS. (1999) LPELR-3082 (SC) AT 25 (A-D). ABACHA V. FRN (2014) LPELR-22014 (SC) AT 50-51 (E-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHO IS A NECESSARY PARTY IN A CASE

For a person to qualify as a necessary party in a case, he must first be of a juristic personality and possess the legal standing to sue and be sued. The law is settled that a necessary party is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence, the questions or the issues placed before the Court cannot be effectively and effectually determined fairly with finality. If the Court can decide the claim of the plaintiff with the parties before it, it will proceed to do just that. See FBN PLC V. OZOKWERE (2014) 3 NWLR (PT.1395) 439 AT 460. ONUEGBU & ORS. V. GOV OF IMO STATE & ORS (2019) LPELR-47535 (SC) AT 14-24(A-D). In AZUBUIKE V. PDP (2014) LPELR- 22258 (SC) AT 15-16 (G-C) the Supreme Court Per FABIYI, J.S.C. stated that: “A necessary party is one who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. (Black’s Law Dictionary, 9th Edition at page 1232). In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this Court held that: “A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER MIS-JOINDER OR NON-JOINDER OF A PARTY WILL RENDER THE PROCEEDINGS A NULLITY

… the law is settled that mis-joinder or non-joinder of a party will not defeat an action or render the proceedings a nullity. See BELLO V. INEC (2010) LPELR-767 (SC) AT 77-78 (F-D) PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

CONDITION FOR THE INTERFERENCE OF AN APPELLATE COURT WITH THE FINDING AND DECISION OF THE TRIAL COURT

The law is trite that evaluation and ascription of probative value to the evidence led is the primary duty of the trial Court that heard and saw the witnesses testify. Where the trial Court has satisfactorily performed its duty of evaluating and ascribing probative value to the evidence led and made the right findings, the appellate Court has no business interfering with the finding or conclusion of the Court and substituting its own views. The appellate Court can only interfere with the finding and decision of the trial Court where it is shown that the trial Court failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse. See among the plethora of authorities on this principle of law, AGBABIAKA V. SAIBU & ORS. (1998) LPELR-222 (SC) AT 19-21 (G-B), FRN V. UMEH & ANOR (2019) LPELR-46801 (SC) AT 6-7 (E-C). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER ADMITTED FACT NEEDS TO BE PROVED AT THE TRIAL

The law is settled that a fact which is admitted by the defendant in his pleadings needs not be proved at the trial. See AJUWON V. AKANNI & ORS. (1993) LPELR-311 (SC) AT 27-28 (F-A). ALHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR-40083 (SC) AT 20 (E-F). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

POSITION OF THE LAW REGARDING CREATION OF FAMILY PROPERTY

In OLOWOSAGO & ORS. V. ADEBANJO & ORS. (1988) LPELR-2601 (SC) AT 19 (E-B), (1988) 4 NWLR (PT.88) 275 AT 287, the Supreme Court Per KARIBI-WHYTE, J.S.C stated how a family property is created and how a land qualifies as a family land as follows: “The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the corner stone of our Indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. See Lewis v. Bankole 1 NLR 81. Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family – See Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR. 83 George v Fajore (1939) 15 NLR. 1, Shaw v Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.” See also GAJI & ORS V. PAYE (2003) LPELR-1300 (SC) AT 27 (A-C) where the Supreme Court Per TOBI, JSC held that: “Family property could be created by a number of ways, including death intestate (devolution), conveyance inter vivos, will and gift or allotment. For land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status. See Alhaji Olowosago v. Alhaji Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 287. See also Lewis v. Bankole (1908) 1 NLR 81; Nelson v. Nelson (1951) 13 NLR 248; Re: Edward Forster (1938) 14 NLR 83; George v. Fajore (1939) 15 NLR 1; Shaw v. Kehinde (1947) 18 NLR 129.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered in suit no. KWS/106/2015 on 3/2/20. The appellant and the respondent are full blood brothers. The appellant is the senior. The respondent instituted the action against the appellant and two other defendants namely, Director-General Bureau of Lands, Kwara State as the 2nd defendant and First Bank of Nigeria, Plc as the 3rd defendant. In the statement of claim filed along with amended writ of summons on 9/8/2018 the respondent sought for the following reliefs:
1. “A declaration that the Deed of Assignment purportedly executed by the claimant in favour of the 1st defendant is illegal, null, ineffectual, to convey or transfer any title to land and void.
2. An order on the second defendant to cancel the Certificate of Occupancy No: KW 9608.
3. A declaration that the Deed of Mortgage purportedly executed by the 1st defendant is illegal, null, ineffectual and void.
4. An order directing the 3rd defendant to deposit the original Certificate of Occupancy No.KW9608 to the Claimant and to

execute a deed of release of the said Certificate of Occupancy from Mortgage to the 2nd defendant.
5. Two million naira (N2,000,000.00) as general damages.”

The appellant in his Further Amended Statement of Defence and Counter-Claim sought for the following reliefs against the respondent:
a. “An order of this honourable Court awarding the 5 bedroom of the disputed property to the 1st defendant/claimant, and the 3 bedroom flat thereon to the claimant.
b. Order of this honourable Court, affirming the equitable right of the 1st defendant counter-claimant to the continuous direct or indirect occupation of the 5 bedroom flat of the disputed property developed by the 1st defendant, in perpetuity, notwithstanding the issuance of the Certificate of Occupancy in respect of disputed property in the name of claimant.
c. Order of this honourable Court forbidding the claimant to dispose of the disputed property and/or take any step deemed injurious to the peaceful occupation of the 5 bedroom flat of the disputed property developed by the 1st defendant.”

The respondent’s case as garnered from his pleadings is that around

1990, one Samuel Adewole wanted to sell his uncompleted twin flats of 3 bedrooms at Tanke, Ilorin. The appellant encouraged him to buy it. A sum of twenty-three thousand naira (N23,000.00) was sent to the appellant to help him purchase the property and obtain necessary title documents, including processing the Certificate of Occupancy (C of O) and the appellant did.

In and around 1995, the appellant asked the respondent to allow him roof one of the twin three (3) bed rooms flat because his landlord was going to eject him from his rented apartment. The request was granted. The appellant subsequently roofed one of the two flats and moved into the property. Later, the appellant again requested that he be allowed to roof the second flat to accommodate guests coming for the wedding of his child. The request was granted by the respondent.

Sometimes in 2007, the appellant invited the respondent to Ilorin. On his arrival, the appellant took the respondent to his lawyer’s office. The lawyer, Olugbenga Ogidiolu Esq., (Appellant’s counsel in this appeal) informed the respondent that the appellant wanted to take a bank loan and needed

respondent’s property as collateral and for that purpose, the respondent was to sign an already prepared deed of assignment in favour of the appellant. The respondent enquired from the lawyer, the legal implication of his signing the Deed of Assignment. The lawyer explained that upon signing, the respondent would be transferring his property to the appellant. The respondent refused to sign, left in annoyance and returned to Lagos that same day. He later demanded from the appellant, the return of title documents of his property. The appellant refused to release the documents. The matter was reported to several persons who intervened with a view to settle the matter amicably without any positive result. When the respondent got to know that the appellant had used the property as collateral for a bank loan, he instructed his lawyer to conduct a search at the Kwara State Bureau of Lands. The result of the search revealed that the appellant and his lawyer actually proceeded to sign the Deed of Assignment the respondent refused to sign in the lawyer’s office. Other relevant documents necessary for assignment were also signed by appellant and submitted to

2nd defendant who changed the name on the C of O to that of the appellant without the consent or knowledge of the respondent.

The case of the appellant is that truly, the respondent purchased the property through him. Since the respondent is an illiterate without formal education, he, that is the appellant, signed all the documents for the respondent. The appellant claimed to have expended all his earnings and that of his wife to develop the property because there was an oral agreement between him and the respondent that the property be jointly developed and owned as family property.

The 3rd defendant filed a statement of defence on 2/6/2015. It seems the 3rd defendant’s name was struck out from the case pursuant to its application dated 10/8/2015 and filed on 14/8/2015 before the commencement of trial. The respondent testified in support of his case and called one other witness. Six (6) witnesses including the appellant and his wife testified in defence. 2nd defendant called one witness. The Court below in its considered judgment struck out the 2nd defendant’s name from the suit on the ground that the 2nd defendant is not a juristic

person that is capable of being sued. The Court entered judgment in favour of the respondent and dismissed the appellant’ counter-claim.

Aggrieved by the decision of the lower Court, the appellant filled a notice of appeal containing 15 grounds of appeal on 17/3/2020. The record of appeal was transmitted to this Court on 25/6/2020. The appellant’s brief of argument was filed on 17/8/20. The respondent’s brief of argument was filed on 27/10/2020. The appellant’s reply brief was filed on 6/11/2020. The record of appeal and all the briefs were deemed as properly filed and served on 9/2/2021. Counsel to both parties adopted their respective briefs as their arguments for and against the appeal.

From the 15 grounds of appeal, the appellant raised the following issues for determination:
1. “Whether in view of the striking out of the 2nd defendant, a necessary party, in the judgment appealed against, the claims of the claimant(sic) has not been rendered a nullity. (Ground of Appeal No. 1)
2. Whether the learned trial Court evaluated and/or properly appraised or evaluated and ascribed probative value to the evidence

led at the trial before reaching his findings, conclusion and decision. (Grounds of Appeal Nos 9, 11, 14 and 15)
3. Whether or not the trial Court’s findings of fraudulent processing of deed of assignment and re-assignment of the Certificate of Occupancy against the 1st defendant(sic)/appellant is supported by evidence and/or proved beyond reasonable doubt. (Grounds of Appeal Nos 3 and 6)
4. Whether or not the 1st defendant(sic) proved his counter-claim before the trial Court. (Grounds of Appeal Nos 4, 5, and 7)
5. Whether or not the trial Court misapprehend the nature of 1st defendant’s(sic) counter-claim. (Grounds of Appeal Nos. 10 and 13)
6. Whether or not the trial Court ought to make pronouncement on the issue of want or lack of credibility of claimant’s evidence, having regard to the inconsistent, contradictory, and contradicted evidence led by the claimant, as raised in 1st defendant’s (sic) final written address. (Ground of Appeal No. 8)
7. Whether or not the trial Court acted properly in dismissing 1st defendant’s (sic) counter-claim without considering the decisions of the apex Court cited by the

1st defendant’s counsel in the final written address. (Ground of Appeal No. 12).

The respondent on his part formulated the following issues:
1. “Can the entire proceedings, including the judgment of the lower Court declared nullities(sic) on the ground of absence of proper parties or denial of fair hearing when the 2nd defendant was a party who participated in the proceedings up till judgment and when appellant has failed to show a miscarriage of justice by the striking out of the 2nd defendant.
2. Whether from the totality of the credible evidence adduced before the lower Court, the learned trial judge was right to have found for the respondent and also right in his findings that the appellant fraudulently processed and obtained the re-assignment of the respondent’s property to himself, and whether the finding that the appellant did not come to equity with clean hands is justified in the circumstance. Grounds 3, 6 and 7.
3. From the state of pleadings and the evidence adduced by the parties, was the learned trial judge right in holding that the subject matter of the case is ownership of property and is the dismissal of

the appellant’s counter-claim proper in the circumstance? Grounds 2, 4, 5, 10, 12 and 13.
4. Whether the decision of the learned trial judge in the case on appeal show a proper evaluation, appraisal and ascription of probative value to the evidence adduced before him on the findings and conclusion reached by the learned trial judge. Grounds 8, 9, 11, 14 and 15.”

The respondent by a notice of preliminary objection incorporated in his brief raised objection to the hearing of the appeal on the ground that the appeal as presently constituted is incompetent as a condition precedent to filing a competent appeal is absent. Counsel submitted that the failure to serve the notice of appeal being the originating process by which an appeal is commenced on the respondent is a fundamental failure which deprives the Court of the jurisdiction to entertain this appeal. He referred to EMEKA V. OKORO-AFOR (2017) ALL FWLR (PT.915) 1166 AT 1217 (C-F), OLAJOKE V. GOVERNOR OF KWARA STATE (UNREPORTED), APPEAL NO. CA/IL/75/2019 delivered on 5/12/2019. ADEGBOLA V. OSIYI (2017) LPELR-42471 (SC), (2018) 4 NWLR (PT.1608) 1 AT 14-15 (E-F). He further submitted that it

is immaterial that the notice of appeal forms part of the record of appeal served on the respondent. He urged the Court to strike out the appeal.

In his response to the preliminary objection, the appellant’s counsel argued that the respondent has waived his right to complain of non-service of the notice of appeal having compiled additional record of appeal and filed a counter affidavit to the appellant’s motion for stay of execution. He referred to UWEMEDIMO V. MOBIL PROD. (NIG) UN LTD. (2019) 12 NWLR (PT.1685) 1 AT 19-20 (E-B). He urged the Court to dismiss the preliminary objection.

RESOLUTION:
The law is settled that service of Court process where service is required is a condition precedent to the exercise of the Court’s jurisdiction to adjudicate on a matter, particularly an originating process such as the notice of appeal. Where the originating process is not served on a defendant or a respondent in an appeal, the Court proceedings including any judgment or decision resulting from such proceedings is rendered a nullity. See IDISI V. ECODRIL (NIG.) LTD & ORS (2016) LPELR-40438 (SC) AT

23-25 (D-C). ADEGBOLA V. OSIYI & ORS (2017) LPELR-42471 (SC) AT 18-19 (F-C). IHEDIOHA & ANOR. V. OKOROCHA & ORS (2015) LPELR-40837 (SC) AT 69-70 (B-A).

Order 2 Rules 1, 2, 7, 8 and 9 of the Court of Appeal Rules, 2016 provides that:
“1.(a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.
(b) Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Court to be served personally.
Service of Notice on Parties mentioned.
2.The registry of the Court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal but it shall not be necessary to serve any party not directly affected:
Provided that the Court may, of its own motion, or

on the application of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order(s) as might have been made if the persons served without notice had been originally parties to the appeal.
7. The Court may in any case direct that the notice of appeal be served on any party to the proceedings in the Court below on whom it has not been served, or on any person not party to those proceedings.
Directions as to service of Respondent’s Notice.
8. In any case in which the Court directs that the notice of appeal shall be served on any party or person, the Court may also direct that any Respondent’s notice shall be served on him.
Effect of direction as to Service.
9. The Court may in any appeal where it gives a direction under Rules 12 and 13 of this Order-
(a) postpone or adjourn hearing of the appeal for such period and on such terms as may be just; and
(b) give such judgment and make such order on the appeal as might have been

given or made if the persons served in pursuance of the direction had originally been parties.”
In the instant appeal, the parties are ad-idem that a true copy of the notice of appeal was not served on the respondent after it was filed in the registry of the Court below as stipulated by Order 2 Rule 2 of the Court of Appeal Rules, 2016. However, the respondent was served with the record of appeal which contains a copy of the notice of appeal. There is therefore no doubt that the notice of appeal has in fact been communicated to the respondent. The words of Order 2 Rule 1 are very clear and unambiguous “If the Court is satisfied that the notice of appeal has in fact been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.” Though the word “shall” may sometimes be construed as “may” where it is used in a negative phrase such as “shall not” which implies that something must not be done. See UGWU & ANOR V. ARARUME & ANOR. (2007) LPELR-24345 (SC) AT 36-37 (B-A). The word “shall” used in the

provision of Order 2 Rule 1 (a) connotes a command and a mandatory directive. There is no room for an exercise of discretion. The notice of appeal having been communicated to the respondent via the record of appeal, no objection to the hearing of the appeal on ground of lack of personal service of the notice of appeal shall be entertained by this Court. See LUBCON LTD. V. CLASSMATE TECHNOLOGIES CO. LTD. (2019) LPELR-47414 AT (CA) 30-33(C-D). AMALGAMATED TRUSTEES LTD. V. ASSOCIATED DISCOUNT HOUSE LTD. (2007) LPELR-454 (SC) AT 23-26 (B-A). IWUNZE V. FRN (2014 LPELR-22254 (SC) AT 38 (C-F), 26 (B-F).

Even if the respondent’s objection can be entertained, the law is settled that where the rules of Court stipulate personal service of a Court process, such requirement can be waived by a party on whom the process is to be served. See SALEH V. MUHAMMED & ANOR. (2010) LPELR-11068 (CA) AT 6-10 (D-F). JULDE V. MUBARAK & ORS. (2019) LPELR-47222(CA) AT 26-29(B-B).

Pursuant to Order 8 Rule 6 of the Court of Appeal Rules, 2016 which provides that “Where any party to the appeal considers that there are additional records which may be necessary in disposing of

the appeal, he shall be at liberty, within 15 days of the service on him of the records, to compile and transmit to the Court such records to be known as the additional records of appeal” the respondent compiled an additional record of appeal and transmitted same to this Court on 10/8/2020. Upon the oral application of the respondent’s counsel, the additional record of appeal was deemed as properly compiled and transmitted on 9/2/2020. The respondent having exercised his right under Order 8 Rule 6 of the Court of Appeal Rules, 2016 upon been served with the record of appeal which contains the notice of appeal filed on 17/3/2020, he by his conduct waived his right to insist on service of the notice of appeal as stipulated by Order 2 Rule 2 of the Court of Appeal Rules, 2016. The objection fails. It is hereby dismissed.

I have considered the issues formulated by counsel along with the grounds of appeal. I find issues 1 and 2 of the appellant apt for the consideration and determination of this appeal. Issue 1 is “Whether in view of the striking out of the 2nd defendant, a necessary party, in the judgment appealed against, the claims of the

claimant(sic) has not been rendered a nullity.’’ On this issue, the appellant’s counsel submitted that in view of reliefs 1 and 2 sought by the respondent at the Court below, the 2nd defendant whose name was struck out from the case is a necessary party. He argued that the Court below having made specific findings against the 2nd defendant and having made an order that the 2nd defendant should issue the C of O in the name of the 1st respondent after striking out the 2nd defendant’s name, the legal implication is that the Court made an order against a party who is not before the Court and was not heard before the order was made. He submitted that where there is failure to hear all necessary parties to the dispute before a decision is reached, there is a denial of fair hearing guaranteed under Section 36(1) of the 1999 Constitution (as amended) and the proceedings in including any judgment or decision rendered is a nullity. He referred to NURTW V. ROAD TRANSPORT (2012) 1 SCNJ 330 AT 333, (2012) 10 NWLR (PT.1307) 170. MAKARFI V. POROYE (2017) 10 NWLR (PT.1574) 419 AT 434C, 438 (A-B). AKPAMGBO V. CHIDI (NO.1) (2015) 10 NWLR (PT.1466) 171 AT 206.

In his response, the respondent’s counsel argued that it cannot be said that the 2nd defendant that fully participated in the entire proceedings from the commencement till judgment was denied his right to fair hearing. He referred to F.H.A. v. KALEJAIYE (2010) 19 NWLR (PT.1226) 147 AT 170 (A-F). He submitted that reliefs 1 and 2 sought by the respondent can be granted without the presence of the 2nd defendant because relief 1 centres on the procurement of the Deed of Assignment, Exhibit P9 or Exhibit D5 by the appellant and relief 2 is a consequential relief or order to reliefs 1. Counsel also argued that it is the 2nd defendant to whom the order is directed that can complain of lack of fair hearing not the appellant who is a complete meddlesome interloper and busy body as regards that order. He submitted that the appellant failed to show the injury or injustice suffered by him as a result of the order directed at the 2nd defendant. Counsel argued that assuming without conceding that 2nd defendant was a necessary party, failure to join a necessary party in a proceeding will not render the proceedings a nullity. He referred to BELLO V. INEC

(2010) ALL FWLR (PT.526) 397 AT 424 (E-F). C.B.N. V. INTERSTELLA COMMUNICATION LTD. (2018) ALL FWLR (PT.930) 442 AT 507 (G). GREEN V. GREEN (2001) FWLR (PT.76) 795 AT 813 (C).

In his reply, the appellant’s counsel argued that since the grievous allegations made against the appellant and 2nd defendant form the basis for reliefs 1 and 2, it is futile to argue that relief 1 is not made jointly against the appellant and 2nd defendant or that any of the reliefs can be granted in the absence of the 2nd defendant. He argued further that the issue of parties been an issue of jurisdiction, the appellant needs not have personally suffered any miscarriage of justice before he can raise it on appeal.

RESOLUTION:
It is settled that the right to appeal against a decision or order of a Court is a constitutional right of a person aggrieved by the decision.

It is also settled that a “person aggrieved” must be a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. See S.G.B.N. LTD. V. AFEKORO & ORS.

(1999) LPELR-3082 (SC) AT 25 (A-D). ABACHA V. FRN (2014) LPELR-22014 (SC) AT 50-51 (E-C).

In the instant appeal, the first complaint of the appellant is that the grant of relief 2 by the Court below amount to a denial of fair hearing. First, relief 2 was sought and granted against the 2nd defendant. If the contention of the appellant is correct, the party who is purportedly denied fair hearing is the 2nd defendant. That is the person that can be said to have been wrongfully deprived of his right and who in law has the constitutional right of appeal on ground of denial of fair hearing. The 2nd defendant has not appealed against the decision of the Court below. Secondly, the 2nd defendant has not appealed against the striking out of its name by the Court below on the ground that it is not a creation of a statute and has no capacity to sue or be sued. The only person affected by that order is the 2nd defendant. The appellant’s counsel having conceded in paragraph 5.02 of his brief that the finding of the Court below that the 2nd defendant is a non-juristic personality is right, the argument that the 2nd defendant is a necessary party in the case is absurd.

For a person to qualify as a necessary party in a case, he must first be of a juristic personality and possess the legal standing to sue and be sued. The law is settled that a necessary party is a party who is not only interested in the subject matter of the proceedings but also a party in whose absence, the questions or the issues placed before the Court cannot be effectively and effectually determined fairly with finality. If the Court can decide the claim of the plaintiff with the parties before it, it will proceed to do just that. See FBN PLC V. OZOKWERE (2014) 3 NWLR (PT.1395) 439 AT 460. ONUEGBU & ORS. V. GOV OF IMO STATE & ORS (2019) LPELR-47535 (SC) AT 14-24(A-D). In AZUBUIKE V. PDP (2014) LPELR- 22258 (SC) AT 15-16 (G-C) the Supreme Court Per FABIYI, J.S.C. stated that:
“A necessary party is one who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. (Black’s Law Dictionary, 9th Edition at page 1232). In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this Court held that: “A necessary party is one who is not only interested in the subject

matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…”

The two main issues before the Court below were (1) whether the Deed of Assignment of the respondent’s property, exhibit P9 was executed with his consent and approval. (2) Whether the appellant acquired an equitable right to own or occupy part of the property in perpetuity. These are issues which have nothing to do with the 2nd defendant. No order was made against the 2nd defendant and the 2nd defendant is not affected by any of the declarations made by the Court below. Even if the 2nd defendant is a juristic personality and ought to have been joined, the law is settled that mis-joinder or non-joinder of a party will not defeat an action or render the proceedings a nullity. See BELLO V. INEC (2010) LPELR-767 (SC) AT 77-78 (F-D) for the above reasons, issue 1 is resolved against the appellant.

Issue 2 is whether the learned

trial Court evaluated and/or properly appraised or evaluated and ascribed probative value to the evidence led at the trial before reaching his findings, conclusion and decision. On this issue, the appellant’s counsel embark on detail analysis of the evidence led and what he considered to be discrepancies in the evidence led by the respondent. He submitted that the evidence of DW1 contradicted and exposed the lies in the evidence of the respondent and thereby eroded the cogency, if any in the entire evidence adduced by the respondent while the appellant and his witnesses adduced credible, unchallenged and uncontradicted evidence, yet the trial Court failed to act on the appellant’s evidence. He further submitted that failure of the Court below to act on the unchallenged and uncontradicted evidence adduced by the appellant and his witnesses justifies interference by this Court as the judgment rendered by the Court below is perverse. He referred to LAWAL V. DAWODU (1972) 1 ANLR 2. INTERDRILL (NIG) LTD V. UBA PLC (2017) 13 NWLR (PT.1581) AT 76-77 (H-A). Counsel contended that the Court below erred in relying on the respondent’s ipse dixit

denial of the oral agreement by the parties to jointly develop the property in dispute as a family property as a party cannot contradict evidence led by merely disagreeing with his opponent’s evidence. He referred to SANNI-OMOTOSHO V. OBIDAIRO (2014) AFWLR (PT.745) 210 AT 234 (G).

Counsel argued that allegation of fraud being a criminal matter it must be expressly pleaded with particulars and proved beyond reasonable doubt. He referred to KOTUN V. OLASEWERE (2010) 1 NWLR (PT.1175) 411 AT 4151. NWOBODO V. ONOH (1984) 1 SCNLR I. It is the contention of counsel that if the Court below had considered all the relevant evidence before it, it would not have reached a decision that the appellant was fraudulent in signing Exhibit P, (Deed of Assignment) and Exhibit P6 to obtain a bank loan because the respondent admitted the fact the appellant had been in possession of all the documents since the property was purchased and had signed all documents for him as Ayo Akerele. He submitted that the invitation of the respondent to Ilorin for briefing on the intention of the appellant to assign the property to himself for the purpose of obtaining a bank loan and the

explanation of the appellant’s counsel on the legal implication of the assignment of the property to the appellant negates the allegation of fraud against the appellant. It is submitted that the findings of the Court below suggesting or insinuating that the process was concealed is not supported by the evidence on record, perverse and has occasioned a miscarriage of justice. He referred to IGBIKIS V. STATE (2017) 11 NWLR (PT.1575) 126 AT 143 (C-E).

Counsel argued that by the evidence of the appellant that he developed the 3 and 5 bedroom flats on the respondent’s land to the knowledge and approval of the respondent and the admission of that fact by the respondent, an equity has been created by which the respondent is estopped from asserting his legal ownership against the appellant’s equitable right to the continuous occupation of the 5 bedroom flat. He referred to YUSUF V. DAUDA (1990) 4 NWLR (PT.146) 657 AT 681 (A-D). IBADAN CITY COUNCIL & ANOR. V. AJANAKU (1969) NSCC 44 AT 49. OGBONNA V. K.S.D & P. CO. LTD (2014) 11 NWLR (PT.1471) 185 AT 198 (B-C), 202 (B-C). A.G. RIVERS STATE V. A.G. AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 31 AT

157 (C-E). OKECHUKWU V. ONUORAH (2000) 15 NWLR (PT.691) 597 AT 618 (C-D) which he alleged were ignored by the Court below. He also referred to Section 31 of the High Court Law of Kwara State, Cap H2, Laws of Kwara State.

In his response, the respondent’s counsel also embarked on a detailed and comprehensive analysis of the evidence led by both parties and the submissions of the appellant’s counsel. He submitted that considering the unreliable, conflicting, unreasonable and incredible evidence of the appellant and his witnesses viewed along with the highly reprehensible conduct of the appellant assigning the property of his junior brother to himself despite objection thereto in breach of the trust reposed in him by the respondent, the dismissal of the counter-claim is well founded in law. He submitted that in addition to the above, the appellant’s conduct deprived him of the equitable reliefs sought by him as no Court of law will allow itself to be used as an engine of fraud by one party against the other. He referred to STANBIC IBTC BANK PLC V. L.G.C. LTD (2018) 10 NWLR (PT.1626) 96 (CA). HUEBENER V. A.E.E. & P.M CO. LTD. (2017) 14 NWLR

(PT.1586) 394 AT 441 (G-H). He further submitted that the respondent’s case is not founded on fraud neither was commission of a crime directly in issue though the Court below rightly made findings of fact that the act of the appellant was fraudulent and a breach of trust, the use of a strong language in describing one’s conduct or motive in a transaction does not ipso facto convert the basis of a claim to crime. He referred to NWAKWERE V. ADEWUMI (1997) NMLR 45. Counsel referred to the evidence of the appellant on how exhibit P9 was signed and his admission that he signed the document but the respondent did not sign it. He submitted that the finding of the Court below that the appellant fraudulently procured exhibit P9 despite the respondent’s opposition is borne out by the evidence before the Court. He further submitted that the evaluation and findings of the Court below is flawless, impeccable as it is supported by the pleadings and the evidence led. He also referred to the findings of the Court below at pages 269 and 270 that the respondent is the legal and rightful owner of the land upon which buildings were constructed and that the

appellant failed to show that the land is a family land. He submitted that the appellant having failed to appeal against those findings, they remain binding on him. He referred to ODIMEGWA V. IBEZIM (2020) ALL FWLR (PT.1037) 492 AT 425 (F-G). On the submission that the appellant has acquired an equitable right to the property in dispute, counsel submitted that whatever is perceived to be the equitable right of the appellant cannot override the respondent’s legal right to the property. According to counsel, granting the appellant’s counter-claim will amount to the Court aiding the perpetration of fraud. He finally submitted that the appellant woefully failed to establish the complaint of non-evaluation, improper or wrongful evaluation and appraisal of evidence considering the evidence in the record of appeal.

In his reply, the appellant’s counsel submitted that the averments in paragraphs 34 and 39 of the Amended Statement of Claim on page 80 of the record of appeal is a replica of a paragraph in the Amended Statement of Claim in the case of ILORIN V. ISHOLA (2018) 15 NWLR (PT.1641) 77 AT 95 (C) and 97(G-H) which the Supreme Court held to

be an imputation of crime of forgery which must be proved beyond reasonable doubt. On the submission that the appellant did not appeal against the finding of the Court below that the respondent is the legal owner of the property in dispute, counsel argued that since the appellant is not contesting legal ownership of the respondent the appellant needs not appeal against the finding.

RESOLUTION:
The main complaint of the appellant is about the evaluation and findings made by the Court below which resulted in the decision to allow the respondent’s claim and dismiss the appellant’s counter-claim.

trial Court failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse. See among the plethora of authorities on this principle of law, AGBABIAKA V. SAIBU & ORS. (1998) LPELR-222 (SC) AT 19-21 (G-B), FRN V. UMEH & ANOR (2019) LPELR-46801 (SC) AT 6-7 (E-C).

Applying the above principles to this case, I will first refer to the pleadings and the evidence led as it is settled that the case being made by the parties are donated by their pleadings. The respondent averred the following facts in paragraphs 6, 7, 8, 9, 10 and 11 of the Amended Statement of claim titled statement of claim on pages 77-81 of the record of appeal:
6. “The 1st defendant is the older brother of the claimant.
7. The 1st defendant in and around 1990 during the creation of Kogi State informed the claimant that Samuel Adewole of No. 7, Amilegbe Street, Ilorin wanted to sell his landed property comprising of a twin flats of three bedroom each at lintel level situate and lying at Tanke-Ilorin (Now known as No. 7, Gospel Street, Along Ogo-Oluwa Baptist Church Road, Tanke-Ilorin) measuring 200ft x 100ft (hereinafter

referred to as the developed property or twin flats).
8. The 1st defendant encouraged the claimant to buy the developed property.
9. The claimant sent over N23,000.00 to the 1st defendant to help him to purchase the developed property, obtain all necessary documents, and process the Certificate of Occupancy from the 2nd defendant, which he did.
10. Among the relevant documents obtained for the claimant by the 1st defendant was an affidavit in support of sale of land prepared by one Samuel Adewole in favour of the claimant. The claimant shall rely on the CTC of the affidavit of 19/11/90, which he submitted to the 2nd defendant while processing the C of O of the developed property for the claimant.
11. The 1st defendant further helped the claimant to process a C of O No. KW:9608 issued in favour of the claimant.”

The appellant admitted the above averments in paragraph 1 of the Further Amended First defendant’s Statement of Defence and Counter Claim. His own averments in paragraphs 3-6 of his Further Amended Statement of Defence reinforced the admission of the facts averred in paragraphs 6-11 of the Amended Statement of Claim.

This admission was again re-inforced by the evidence of the appellant at the trial that he encouraged the respondent to purchase the property in dispute and he signed all the relevant documents in the respondent’s name. The Court below at page 266 of the record of appeal stated that:
“A perusal of Exhibit D2 i.e. the receipt for the purchase of the said uncompleted building at Tanke village dated 19/11/90 state:-
“This is to acknowledge the receipt of N23,500,00 (Twenty three thousand and five hundred naira) only being purchase money in respect of my land and uncompleted building at Tanke Village, Ilorin from Mr. James Ayo Akerele.”
Same was signed by the receiver as Samuel Adewole and duly autheriticated with the appending of his signature.
This exhibit corroborates the evidence of the claimant and the 1st defendant who I see as the main players, actors,

parties and witnesses in this instant matter.
The said exhibits D2 and D3 corroborates the evidence of the claimant and the 1st defendant that the 1st defendant purchased the said twin uncompleted building on behalf of his younger brother the claimant who both testified that the claimant sent the said purchase price of N23,500.00 (Twenty three thousand and five hundred naira) only as testified to by the 1st defendant or N23,000,00 (Twenty three thousand naira) only as testified to by the claimant to be over N23,000.00 (Twenty three thousand naira) only.
A perusal of exhibit D3 i.e the affidavit of sale deposed to by Samuel Adewole, the seller of the said property in question dated 19/11/90 wherein he deposed that he purchased the said land measuring 200ft by 100ft from one Alhaji Jimoh Akande of Tanke Village, Ilorin and built it up to lintel level of two flats sold to Mr. James Ayodele Akerele and that he has divested himself of all interest in the said land in favour of the said buyer Mr. James Akerele equally buttress the claimant’s evidence that the 1st defendant purchased the said land on his behalf.”

Based on the above evidence and evaluation of same by the Court below, the Court held that the respondent is the legal and rightful owner of the properly in dispute. In paragraph 5:15 of the appellant’s reply brief, counsel submitted that the appellant is not contesting the legal ownership of the property by the respondent. It is clear that from the pleadings and the evidence, both oral and documentary, led by both parties, the finding of the Court below that the respondent is the legal owner of the property in dispute is unassailable.

From the pleadings and the evidence on record, the contention of the appellant is that though the respondent is the legal owner of the property, the character of the ownership has changed. According to the appellant the parties mutually agreed that since the respondent had purchased another land in Lagos where he is living, the property in dispute would be treated as a family property. Sequel to that understanding, he pulled down the uncompleted building on the land and constructed a new building of 3 and 5 bedroom flats on the land. He asserted that the respondent by his words and actions encouraged the defendant and his wife to

spend their entire income, savings and retirement benefits on the property, unknown to them that the respondent was deceiving them all along. The respondent denied the assertions of the appellant and averred that the appellant was living in a rented apartment and the landlord wanted to eject them from the house around 1995. The appellant appealed to him to allow him roof one of the two flats and made it partially habitable. Again in 2006, when one of the appellant’s children was about to get married, the appellant again appealed to the respondent to allow him to roof the second flat so that his guests would have a place to stay. The respondent again obliged the appellant.

The law is trite that he who asserts must prove. There is no doubt that the onus was on the appellant to prove the mutual agreement between him and the respondent that the respondent’s property should be turned to a family property. In OLOWOSAGO & ORS. V. ADEBANJO & ORS. (1988) LPELR-2601 (SC) AT 19 (E-B), (1988) 4 NWLR (PT.88) 275 AT 287, the Supreme Court Per KARIBI-WHYTE, J.S.C stated how a family property is created and how a land qualifies as a family land as

follows:
“The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the corner stone of our Indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. See Lewis v. Bankole 1 NLR 81. Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family – See Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR. 83 George v Fajore (1939) 15 NLR. 1, Shaw v Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.”
See also GAJI & ORS V. PAYE (2003) LPELR-1300 (SC) AT 27 (A-C) where the Supreme Court Per TOBI, JSC held that:
“Family property could be created by a number of ways, including

death intestate (devolution), conveyance inter vivos, will and gift or allotment. For land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status. See Alhaji Olowosago v. Alhaji Adebanjo (1988) 4 NWLR (Pt. 88) 275 at 287. See also Lewis v. Bankole (1908) 1 NLR 81; Nelson v. Nelson (1951) 13 NLR 248; Re: Edward Forster (1938) 14 NLR 83; George v. Fajore (1939) 15 NLR 1; Shaw v. Kehinde (1947) 18 NLR 129.”

The appellant has not been able to establish any of the ways and means by which a personal property translates into a family property. The appellant’s case is that the respondent’s personal property became a family property by mutual agreement of both parties. The respondent denied such agreement. The Court below at pages 262-270 carried out a detailed and meticulous analysis and evaluation of the evidence led before arriving at the conclusion that the property in question is not a family property but the sole property of the claimant. I cannot find any reason to disturb the finding of the Court below. No cogent and credible evidence was presented to the Court to

support the ipse-dixit evidence of the appellant that the respondent agreed that the property in dispute be turned into a family property. The appellant’s evidence is that he pulled down the existing building on the land and constructed a new one comprising of 3 and 5 bedroom flats. The land on which the appellant claimed to have pulled down an existing building and erected another one is covered by a C of O registered as 144/144/XXII of the Lands Registry at Ilorin. Clause 4 in the C of O stipulates that any building or structure to be erected on the land must be approved by the Town Planning Authority. DW4 said he saw a building plan with the appellant’s name on it. The appellant never said he made a building plan and none was tendered. The appellant stated in paragraph 14(a) of his statement on oath sworn to on 28/5/2015 page 209 of record which he adopted as his evidence before the Court on 14/3/2017 that he had earlier purchased a piece of land in Tanke, Ilorin in 1988 and he secured the approval of the Town Planning Authority to develop same for residential purpose on 19/7/91. The appellant knew the importance of a building plan. If truly,

the appellant had pulled down the entire building on the property in dispute, re-designed and re-constructed a new building on the property in dispute, he would have made a building plan for the new building and secure the approval of the Town Planning Authority. The only inference which the Court can draw from the appellant’s failure to tender a building plan is that the structure on the land was never pulled down. The appellant merely improved the one already on the land when it was purchased for the respondent.

The second inference is that if the appellant had tendered the plan, it would have been against them. A close perusal of DW4’s Statement on Oath and his evidence under cross- examination raises a serious doubt about the truthfulness of the appellant’s assertion that he pulled down the structure on the land. DW4 was the contractor that was engaged by the appellant to work on the property. In paragraphs 3- 7 of his statement of oath, he stated that he noticed that the structure on the land was weak and no proper ventilation. He advised the appellant to pull down the structure and start a new design from foundation level. The appellant

agreed and the building was demolished and a new one was constructed. Under cross-examination, he stated that he told the appellant that the house is weak as there were holes all over the building and that some repairs should be done to make it habitable. Pulling down a building is not the same as doing some repairs on it to make it habitable. According to DW4 it was in 1992 that he was hired to work on the property in dispute. DW3, was hired to roof a three bedroom flat in 1995. The evidence of DW6 was that the appellant was living in his boys’ quarters until 1995. He left DW6’s house in 1995. It was in the same year that the respondent said the appellant approached him to allow him to roof one of the flats in the uncompleted building because DW6 wanted to eject him from his house. According to the appellant, he purchased a land in the same Tanke area in Ilorin in 1988 and had secured the approval of the Town Planning Authority to develop same for residential purpose on 19/7/1991. It is unbelievable that the appellant had enough money to construct a building from the foundation up to roofing level in 1992 but he chose not to build on his own land

rather he chose to pull down the respondent’s building and re-built same. I do not believe any man in his right senses without an ulterior move would take that decision. It is unreasonable and simply not believable at all. When something is not reasonable, it is not true. No Court should believe that story. The evidence of the respondent that the appellant approached him in 1995 with a request to roof one of the twin flats because his landlord was going to eject him from the one room boys quarters he was living is more probable. If the appellant had enough money to construct a building from foundation level to roofing level in 1992, he would have spent the money on his own land not on respondent’s land.

The Court below after a thorough and detailed analysis and evaluation of the evidence led held at page 270 of the record as follows:
“Now we come to the question of equitable right or interest.
It is clear that the land in question was purchased for the claimant by the 1st defendant sometimes in 1991 with a twin uncompleted building at the time of purchase.
If indeed the 1st defendant completed the said 2 buildings without the

contribution of the claimant as he testified to or with the permission of the claimant on two different occasions for 2 different reasons as testified to by the claimant, does the 1st defendant have any equitable right to any of the said building? Be it the 5 bedroom flat as he counter claimed and stated that the 3 bedroom flat be ordered and assigned to the claimant.
From the foregone, it has been determined that the claimant is the legal and rightful owner of the said land upon which the said building were constructed.
It has also been determined that the 1st defendant has failed to show his assertion or allegation as pertaining to the alleged agreement between him and the claimant that it’s a family land, thus I hereby hold that the said land in question is not a family land but the sole property of the claimant.
The question is, can any equitable right be inferred or allotted to the 1st defendant considering the circumstances of this peculiar case?
I am of the considered view that it cannot be inferred that there was an agreement between the parties i.e the claimant and the 1st defendant to jointly develop and occupy the property

as a family property.
As foresaid, if indeed the 1st defendant who asserted and testified to an alleged unproved, unshown and unsubstantiated agreement of the property being a family property, why would he turn around to want to claim the buildings on the said land as his personal property?
The parties i.e claimant, 1st defendant and DW5, the 1st defendant’s wife Mrs Ebun Akerele having testified that the claimant refused to agree and sign the documents allowing the title document to be assigned to the 1st defendant for the purpose of the 1st defendant obtaining a loan from the bank, the fact that the 1st defendant still went ahead to process the application and eventually obtained same amounts to fraud, deceit and an attempt to defraud his younger brother of his legal, lawful property which is the land upon which the said 5 bedroom and 3 bedroom flats were built.
Exhibits P11, D12, the application for the re-assignment of the said title documents of the said land, i.e the Right of Occupancy and Certificate of Occupancy, and Exhibits D7, P8, D8, D5, D9 all confirms the fraudulent and condemnable act and action of the 1st defendant.”

I cannot find any reason to disturb the finding of the Court below which is amply supported by the evidence on record. The conclusive and irrefutable evidence before the Court is that the respondent alone paid the purchase price of the property. DW6 confirmed the fact that as at 1993, 1994 and 1995 the sum of N23,000.00 (Twenty three thousand naira) paid by the respondent for the property was a huge sum of money in Nigeria. The fact that the appellant spent money on the improvement of the respondent’s property cannot divest the respondent of his title to the property. Just as improvement of family property by a member of the family does not divest the property of its original character, improvement of a personal property by a family cannot divest the property of its original character. It remains the personal property of the owner. See RABIU V. ABASI (1996) LPELR-2935 (SC) AT 5 (D-E). Without a conscious and voluntary relinquishment of his title to the property, the fact that the appellant made improvements on the property does not divest the property of its character as the personal property of the respondent. From the entire

evidence on record, the respondent is not ready to relinquish his property to the appellant as family property.

The appellant’s counsel argued that the respondent is no longer the absolute legal owner of the property in dispute. According to counsel, the respondent’s ownership of the property in dispute cannot over ride the appellant’s equitable right to perpetually occupy the 5 bedroom flat which he allegedly constructed from foundation. The general principle laid down in the cases of YUSUF V. DAUDA (SUPRA). IBADAN CITY COUNCIL & ANOR. V. AJANAKU (SUPRA). OGBONNA V. K.S.D & P. CO. LTD (2014) (SUPRA). A.G. RIVERS STATE V. A.G. AKWA IBOM STATE (SUPRA). OKECHUKWU V. ONUORAH (SUPRA), is that where a person has expended money on the land of another, in the expectation induced or encouraged by the owner of the land that he would be allowed to remain in occupation thereof, an equity is created such that the Court would protect his occupation of the land and the Court has power to determine what way the equity so arising could be satisfied. It is referred to as the doctrine of equitable estoppel or estoppel by conduct. In the instant

case, the conclusive and irrefutable evidence on record is that the appellant has been in occupation of the property in dispute since 1995 without any disturbance from the respondent until the appellant requested the respondent to sign a Deed of Assignment to transfer the property to him. There is nothing on record to show that the respondent has ever occupied or rented out any part of property in dispute or receive any income from the property. Rather it is the appellant that has been enjoying the property since it was purchased and he wants to continue to enjoy the property in perpetuity. None of the cases relied on by the appellant’s counsel laid down a principle that an improvement of a property by the occupier entitles the occupier to joint ownership of the property or occupation in perpetuity. If equity should come to the aid of any of the parties in this case, it is the respondent. The respondent invested good money on the property. He has not gained or realise anything from his investment on the property. He did not at any time agree to relinquish his property to the appellant or make him believe that the property has become a family property. It

is the appellant who has been occupying the property for more than twenty years and devising all sorts of tricks to implement his greedy desire to wrestle the property away from the respondent. The Court below was right in refusing to grant the counter-claim of the appellant as to do so would amount to putting a judicial stamp on the greedy and illegal devices of the appellant to deprive the respondent of his property.

The appellant’s counsel strenuously argued against the finding of the Court below that the action of the appellant in signing, processing and obtaining consent to re-assign the property to himself without the consent of the respondent of his property is fraudulent. I agree with the appellant’s counsel that the respondent did not plead fraud or forgery. Where a party has not made fraud the basis of his claim, the Court has no power to suo motu raise it.

In the instant case, the Court below did not raise the issue of fraud or made it the basis of its decision. The Court for want of a strong term merely employed the words, fraud, fraudulent and deceit to describe the action of the appellant. In AROWOLO V. IFABIYI (2002) LPELR-562 (SC) AT

23-24 the Supreme Court held that the use of a strong language to describe one’s conduct or motive in a transaction as was done by the Court below in this case does not ipso facto convert the basis of the claim to a crime. The standard of proof required of the respondent in the instant case is preponderance of evidence or balance of probability and not prove beyond reasonable doubt.

Both parties are ad-idem that when the legal implication of the respondent signing the Deed of Assignment was explained to the respondent, he refused to sign. He went back to Lagos that day. The appellant said the respondent phoned him three weeks later that he should sign the document. The appellant signed both as the assignor and the assignee. The appellant justified his action on the ground that he has been signing documents relating to the property in the name of the respondent. First, the respondent denied ever phoning the appellant to sign the Deed of Assignment. The appellant did not present any other evidence to support his ipse-dixit that the respondent phoned him and told him to sign the Deed of Assignment as the Assignor and the Assignee. Secondly, whether or

not the respondent authorised the appellant to sign the Deed of Assignment as the Assignor and the Assignee, the act of one person signing a document as two persons amounts to forgery and deceit. It is illegal. There is no justification for it. It is the same document that the appellant presented to the Bureau of Lands to secure the re-assignment of the property to himself, the same appellant that is claiming that the property had become a family property long before the assignment to him. To confirm the intention of the appellant to deceive the respondent to transfer the property to him, he refused to surrender the title documents of the property he obtained upon the purchase of the property to the respondent. There is no doubt that the conduct of the appellant in going ahead to sign the document after the respondent refused to sign it, using the document to obtain the approval or consent of the governor to the assignment of the property to himself, refusal to release the respondent’s title documents and turning around to claim that the property is a family property which in essence is a claim of joint ownership of the property in perpetuity is

despicable and fraudulent. There is no other way to describe the conduct of the appellant. See AMUZIE V. ASONYE (2010) LPELR-4758 (CA), BANJOKO & ORS V. OGUNLAJA & ANOR. (2013) LPELR-20373 (CA) AT 24 (D-E). ADEPOJU V. STATE (2014) LPELR-23312 (CA) AT 23-24 (E-A).

The appellant’s counsel submitted that the respondent admitted under the cross-examination that the appellant was to sign the Deed of Assignment, Exhibit P9. I have perused the entire evidence of the respondent including his evidence on pages 203 of the record. I cannot find such admission. Rather, the evidence of the respondent at page 203 of the record is that he did not agree to sign Exhibit P9 and he insisted that the appellant should not sign. It is unlawful for counsel in the guise of advocacy to lead evidence or concoct facts in the final address or brief. See OGHENEOVO V. F.R.N. (2019) 13 NWLR (PT.1689) 335 AT 270 (B-D).

The alleged contradiction in the evidence of the respondent on the signing of exhibit P9 exists only in the imagination of the appellant’s counsel. There is no such admission by the respondent in the record before this Court. The appellant’s

counsel enumerated some parts of the evidence of respondent which he believed are fatal contradictions. The law is settled that it is not every minor inconsistency or contradiction that will be sufficient to discredit a witness. For a contradiction to affect the credibility of a witness, the contradiction must be substantial and must relate to a material point or issue in controversy. See TAIWO & ORS V. OGUNDELE & ORS. (2012) LPELR-7803 (SC) AT 23 (A-B). ISIBOR V. STATE (2002) LPELR-1553 (SC) AT 8-9 (F-A). YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732 (SC) AT 19 (A-F). In the instant case, it is immaterial whether DW6 was going to force out the appellant from his premises or that the appellant left voluntarily, the main issue is whether the appellant approached the respondent to allow him roof one of the flats in the property in dispute. From the entire evidence on record the Court below was right to believe the evidence of respondent. Another discrepancy referred to by the appellant relates to how the respondent left the appellant’s counsel’s office. It is absolutely immaterial whether the respondent left the counsel’s office in

annoyance to Lagos or whether he left with the appellant to the property in dispute. The material fact which was not refuted is that the respondent refused to sign Exhibit P9. The other discrepancy referred to by the appellant’s counsel is on the signing of documents of title relating to the property in dispute. It is of no moment that the appellant has been signing the documents of the land for or as the respondent. The crucial fact is that the appellant did not have the instruction and consent of the respondent to sign Exhibit P9 as the assignor and assignee of the property. The above minor discrepancies are not sufficient for the Court to reject the entire evidence of the respondent. The Court below rightly ascribed probative value to the evidence of the respondent that there was no agreement between the parties to convert the property in dispute to a family property.

From the entire evidence on record, I am of the firm view that the appellant by his conduct right from the beginning nursed the desire to take over the respondent’s property and appropriate same to himself because according to him, the respondent had acquired another property in

Lagos. This view is reinforced by the firm position of the appellant that his own property purchased before the respondent’s property cannot be converted to a family property, the evidence of the appellant that he did not change the property back to the name of the respondent because it is not necessary as he allegedly gave the respondent a sum of N200,000.00 out of the loan he obtained from the bank which allegation was not established in any way, the evidence of the appellant’s wife, DW5 that she was aware of the change of C of O to the appellant’s name, the evidence of the appellant that DW5 did not raise objection to the change coupled with the refusal to release the respondent’s document. There is no explanation whatsoever for stating in exhibit P9 that the respondent collected a sum of One Million Naira (N1,000,000.00) for the property when in fact he did not pay any money to the respondent.

The Court after a careful evaluation of the evidence led held as follows at pages 276 of the record that:
It is trite that he who comes to equity must come with clean hands. Can it be said that the 1st defendant seeking for an equitable

relief has come with clean hands? The answer would certainly be in the negative. The 1st defendant having attempted and actually defrauded his brother the claimant by processing the claimant’s Certificate of Occupancy reassigned to himself without the knowledge and permission of the claimant, the legal and lawful owner of the said land or property; the 1st defendant in my candid and considered view in considering the totality of the evidence adduced for the parties and documents admitted as exhibits in particular exhibits P11, D5, P9 and D8 intended depriving the claimant and his heirs in title of the said property and would have succeeded without this instant suit.
The 1st defendant could not have built on air without the said land which he paid no kobo for and even would not consider giving any of his personal property as a family land which he deceitfully proposed on the said land. I wonder why the 1st defendant would go to the extent of spending an unproved, unsubstantiated alleged amount of money on the said land when he and his wife DW5 testified that he had personal landed properties in Tanke, Ilorin which he could have developed for himself

and his family.
I am of the considered view that the 1st defendant has not been truthful in this matter and his defence that the claimant lives in a personal house in Lagos and has other properties while he the 1st defendant has only the said property on which is built the 5 bedroom and 3 bedroom flat in which he lives with his family would not avail him as a valid defence for his defraudful and condemnable act. It is the principle of equity that a party cannot be allowed to benefit from his own wrong.”

In refusing to grant the counter-claim of the appellant, the Court relying on SALEH V. MONGUNO (2006) LPELR-2992 (SC) AT 31 (C-D) and some other decisions of Supreme Court held as follows at pages 276-277 of the record:
“I am of the considered view that the 1st defendant cannot benefit from his own illegality and wrong from wanting to convert the claimant’s house to his personal property and even going to the extent of illegally preparing the deed of assignment between himself and the claimant, signing for the assignor and assignee as he testified to under cross-examination in exhibit P9 and actually processing same and

collecting the re-assigned Certificate of Occupancy without the consent and signature of the claimant.
Thus the Court cannot grant the counter claimant(sic) of the 1st defendant wherein he seeks that the five bedroom flat on the disputed property be awarded to him, neither can the Court order the award of the 3 (three) bedroom flat to the claimant, defendant to the counter claim. Equally the Court cannot grant prayer 2 (two) of the 1st defendant’s counter claim wherein he seeks the Court’s order to affirm the 1st defendant’s equitable occupation of the 5 bedroom flat on the disputed land in perpetuity, notwithstanding the issuance of the Certificate of Occupancy in respect of the disputed property in the name of the claimant, the Court having found that the 1st defendant has no legal title or is not entitled to any equitable right.
On the 3rd counter claim, wherein the 1st defendant seek the Court’s order to forbid the claimant from disposing the disputed property and/or take any step deterring injurious to the peaceful occupation of the five (5) bedroom flat developed by the 1st defendant, the Court is not in a

position to so order having found that the disputed property belongs to the claimant.”

From all that I have said so far, Issue 2 is resolved against the appellant. The appellant has failed to show any legally acceptable or valid reason to warrant an interference with the decision of the Court below to grant the respondent’s claim and to dismiss the appellant’s counter-claim. My conclusion is that this appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Kwara State delivered in suit no. KWS/106/2015 by H. O. Ajayi, J on 3/2/20 is hereby affirmed. Each Party shall bear their own costs.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUF, JCA.
I agree with his reasoning and final conclusions. I have nothing useful to add.
I therefore dismiss this Appeal, for being unmeritorious.

IBRAHIM SHATA BDLIYA, J.C.A.: I was privileged to have read the lead judgment prepared by my lord, Justice MISITURA OMODERE BOLAJI-YUSUFF, JCA, before now. I entirely concur with the reasoning and

decision reached in dismissing the appeal, being unmeritorious. I too, dismiss the appeal. I abide by the order made on costs.

Appearances:

S. Ogidiolu For Appellant(s)

B. John-Ake For Respondent(s)