ALAKIJA V ABDULAI
In the Supreme Court of Nigeria
Friday, May 8, 1998
Case Number: SC.42/1994.
SALIHU MODIBBO ALFA BELGORE, JUSTICE SUPREME COURT (Presided)
IDRIS LEGBO KUTIGI, JUSTICE SUPREME COURT
UTHMAN MOHAMMED, JUSTICE SUPREME COURT.
SYLVESTER UMARU ONU, JUSTICE SUPREME COURT.
1. DR. OLAWALE ALAKIJA
2. DR. ANTHONY OLADIPO ALAKIJA
3. BOLARINWA PEDRO
DOCTRINE OF LIS PENDENS
The doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency of the action. The doctrine is applied to any purchaser of such property and it is not founded on the equitable doctrine of notice, actual or constructive but upon the fact that the law does not allow to litigant parties or give to them during the pendency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the parties to the litigation. Per Emmanuel Obioma Ogwuegbu.
EMANUEL OBIOMA OGWUEGBU JSC (Delivering the leading judgement):
The appellants as plaintiffs and Executors/Executrix of the estate of Olajide Alakija Instituted the action leading to this appeal in the High Court of Lagos State against the defendant who is the respondent herein claiming as follows:-
“(a) A declaration that they are the owners of all that piece or parcel of land with the structures thereon situate and lying and being at lpaja, Orile-Agege, in Ikeja Division of Lagos State of Nigeria which parcel of land is vested in the plaintiffs’ late father, Mr. Olajide Alakija by virtue of a Deed of Conveyance dated 30th July, 1965 and registered as No. 11 at page 11 in Volume 871 of the Land Registry, Ibadan then Western State of Nigeria. In the alternative the plaintiffs claim a declaration that they are the people entitled to a Certificate of Occupancy in respect of the said piece or parcel of land mentioned in paragraph 1 above, pursuance (sic) to the provisions of Land Use Decree (1979),
The case was heard on the pleadings filed and exchanged by the parties following an order of the court to that effect. At the close of hearing, Oshodi, J., in a reserved Judgment dismissed the plaintiffs’ claim in its entirety. The plaintiffs were aggrieved by the decision of the learned trial Judge and appealed to the Court of Appeal, Lagos Division. Their appeal to that Court was dismissed hence the further appeal to this court.
The facts of the case in a nutshell are that in 1962, Ewedairo Family sold the parcel of land in dispute to Barrister Olajide Alakija (deceased). The said transaction was evidenced by a Deed of Conveyance dated 30-7-65 and registered as No. 11 at page 11 in Volume 871 of the Land Registry, Ibadan which was then the appropriate Registry. The appellants’ late father put some tenants on the land. In January, 1979, the respondent together with his servants and agents commenced the erection of a fence on the land and this led to the action leading to this appeal. The respondent’s case is that he is the owner of the legal estate in his plot of land by virtue of a Deed registered as No. 99 at page 99 in Volume 1769 of the Lands Registry in the office at Lagos. That the said plot of land forms a portion of a large area of land which originally belonged to one Alhaji Abudu Gafari Olalabi Sulu by virtue of purchase at an auction sale conducted by one Mr. Abayomi in December, 1958 and the said Alhaji Abudu Gafari Olalabi Sulu was put into undisturbed Possession thereof and he exercised unfettered right of Possession as absolute owner. By a Power of Attorney dated 8-5-74 Alhaji Abudu Gafari Olalabi Sulu appointed Rafiu Abiola Olalabi Sulu as his lawful attorney in respect of all his lands including the large area of land of which the respondent’s land forms part. The said lawful attorney conveyed the respondent’s plot of land to him in 1977. The latter was put into Possession and he remained in undisturbed Possession until early in 1979 when unidentified persons started to lay claim to the said plot of land.
As stated earlier in this judgment, the plaintiffs who were dissatisfied with the decision of the Court of Appeal appealed to this court. Briefs of argument were filed by the Parties in compliance with the rules of this court and from the grounds of appeal filed, the appellants submitted the following issues for determination in the appeal.
2. Whether the learned Justice of Appeal who wrote the lead judgment, concurred by a second Justice, was not in error when he held that the learned trial Judge was right to have compared the evidence of P.W.2 in the present suit with the evidence of the witness in an earlier suit with a view to assessing the witness’s credibility.
4. Whether the court below was right when it held that the judgment of the Court in Suit No. HK/68/60, Exhibit E, does not fall within the type of judgment envisaged in the decision of the Supreme Court in J. B. Daniel & Ors. V. Paul- Cardoso, SC/144/74, and that the judgment puts the respondent on a better footing than the appellants with regard to the ownership of the land in dispute and that it conclusively decided the issue of ownership and possession of the land.
The respondent did not agree with the total formulation of ISSUES by the appellants either because the issues constitute unnecessary fragmentation of what in effect are single issues or, because some of the issues raised and argued are not open to the appellant. However, the defendant/respondent identified the following three issues as arising for determination:
- Whether a court can properly compare the evidence given by a witness before him with that given by him in another suit with a view to using such other evidence in assessing the credibility of the witness.
- Whether the judgment in Suit NO. HK/68/60 Exhibit E operated as ithhold so as to bar the plaintiffs’ action.’
- Whether in the circumstances of this case it was not too late to raise the issue of the irregularity arising from the delay in concluding the evidence of P.W.2.”
Mr. Molajo who argued the appeal adopted and relied on the appellants’ brief of argument filed by Kehinde Sofola, Esq. S.A.N., on 17-5-94. He also made oral submissions in expatiation of the arguments contained in the brief. He submitted in respect of the first issue for determination that the learned trial Judge rejected the evidence of P.W.2 because it is completely at variance with the Pleadings of the appellants, and also, that it was similar to his (witness’s) evidence referred to in Exhibit “E” which was rejected in that exhibit. It was further submitted that the learned trial Judge was of the view that the evidence of P.W.2 was completely at variance with the pleadings of the appellants without demonstrating how and in what respect it was so and that he failed to evaluate the evidence of P.W.2 as given before him as regards the traditional history of the land but merely rejected the traditional evidence because it was rejected in the earlier suit. We were urged to hold that the learned trial Judge was in error and that the court below was similarly in error not to have re-evaluated the evidence of P.W.2 in the exercise of its powers of re-hearing the appeal before it. The case of Onwuchuruba v. Onwuchuruba (1993) 5 NWLR (Pt. 292) 185 at 199-200 was cited and relied upon.
Chief Ajayi, S.A.N., for the respondent in reply to the first issue submitted that it was not open to the appellants in this court to raise or argue this point in this appeal as the proper time to do so was during their appeal to the court below against the decision of the High Court. He agreed that the appellants raised the issue in the course of their arguments in the court below and that objection was taken on the ground that they did not appeal against the decision of the High Court on that point and the objection was sustained.
It was the contention of the respondent that the appellants did not appeal against the rejection of the evidence of P.W.2 by the learned trial Judge on the ground that it was at variance with the plaintiffs’ pleadings and that the court below did not decide and had no need to decide on whether the evidence of P.W.2 was at variance with the plaintiffs’ pleadings. It was further submitted that the appellants were trying indirectly to get this court review the determination of the High Court on the issue. We were urged to discountenance the issue and all arguments advanced on it as formulated by the appellants.
“Finally, there is the finding of fact by the learned trial Judge that the traditional evidence of the appellants in respect of the land in dispute was at variance with their pleadings and this was one of the reasons given for the dismissal of the appellants’ case. The appellants have not appealed against this finding and one may add that even if all their grounds of appeal succeed (which have not) the appeal will still stand dismissed”.
Since the court below did not decide and was not called upon to decide whether the learned trial Judge was in error in rejecting the evidence of P.W.2 because it was at variance with the plaintiffs’ pleadings, the decision of the learned trial Judge on the said point remained final there being no appeal to the Court of Appeal on it, it is therefore too late in the day to raise that issue in this court as the appellants had attempted to do in ground six of their grounds of appeal and in their first issue for determination in this appeal. This court does not have the jurisdiction to hear appeals from the decisions of the High Court direct. Both ground six of the grounds of appeal and issue (1) based on it are incompetent. They are struck out together with the arguments based on them.
The complaint in the second issue is that the court below (by a majority) held that the learned trial Judge was right to have compared the evidence of P.W.2 in the present suit with the evidence of the witness in an earlier suit with a view to assessing the witness’s credibility by relying on the case of Olujinle v. Adeagbo (1988) 4 SCNJ 1; (1988) 2 NWLR (Pt.75) 238. It was submitted in the appellants’ brief that the dissenting opinion of Akpata, JCA., (as he then was) on the point is the correct statement of the law and that the majority of the court below was in error in holding otherwise and in placing reliance on Olujinle v. Adeagbo (supra) and that it would be extremely dangerous to permit a trial Judge to make use of the review of the evidence of a witness given before another Judge to discredit the witness.
The substance of the appellants’ second issue is similar to the first issue for determination formulated by the respondent. It was argued on behalf of the respondent that the learned trial Judge did not reject the evidence of P.W.2 because the Judge in Exhibit “E” had rejected similar evidence and that it was evident from the judgment of Babalakin, JCA., as he then was) that the learned trial Judge in dealing with the evidence of P.W.2 treated it as (a) going to no issue as it was at variance with the plaintiffs’ pleadings and (b) making a ridiculous claim to ownership of the whole of Agege for his family.
I will set out the passages of the judgments of the learned trial Judge and those of Akpata and Babalakin, JJCA., (as they then were) before I determine whether the appellants’ complaint is justified. At page 185 of the record, the learned trial Judge held as follows:
Following the traditional evidence given, one would find that it is completely at variance with the pleadings of the plaintiffs. In fact he is claiming the whole of Agege for his predecessors in title. At this stage, I am bound to refer to the evidence of the same 2nd Plaintiff Witness as given in Exhibit “E”. This same story was rejected and I am of the same view that the old man is not clear of the traditional history he gave in respect of this land. I do not accept this traditional evidence.”
Babalakin, JCA., (as he then was) who wrote the lead judgment said: