ALARO v. JIMBA & ORS (2020)

ALARO v. JIMBA & ORS

(2020)LCN/13965(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, February 21, 2020

CA/IL/9/2019

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ALHAJI ABDULGAFAR ALARO APPELANT(S)

And

MALLAM IBRAIM AYINLA JIMBA 2. ALHAJA KADIJAT ALUKO 3. MALLAM BABATUNDE AKANBI YUSUF (Trading Under The Name And Style Of ALAMA ENTERPRISES) RESPONDENT(S)

RATIO

WHETHER OR NOT ESTATES AND INTERESTS RANK IN ORDER OF CREATION WHERE THERE ARE COMPETING INTERESTS IN AN ESTATE OR LAND PROPERTY

The law is trite, where there are competing interest in an estate or land property in general between two or more persons, the interest or legal right in the property is ranked in the order of their creation. This principles of law have been espoused in a litany of decisions of the Apex Court, and this Court. For instance, in Kachalla vs Banki (2006) 2-3 S.C 41 @ 50-51; Mustapher JSC as he then was (of blessed memory), had this to say:
“In property law, many different question of priority may arise, these may concern rival conveyance of property or as in this case competing interest in the holding of the right of occupancy the fundamental rule is that competing interest will generally rank according to the order of their creation.”
The law is trite, in law and equity, the basic principles of law is that estates and interest primarily rank in the order of creation. The maxim is Qui prior est tempore potior est jure which literally means that he who is earlier in time is stronger in law. This principle is however, applicable where the equities are equal. See Ugbo vs Aburime (1994) 8 NWLR Pt. 160 P. 1019. In Ashiru vs Olukoya (2006) 11 NWLR Pt. 990 P.1 @ 23, the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities pursuant to the well-recognized maxim, Qui prior est tempore, portior est jure, meaning that he who is first has the strongest right, dictates that the first in time takes priority. Atanda vs Ajani (1989) 3 NWLR Pt.111; Auta vs Ibe (2003) 13 NWLR Pt. 837 P.247.
The principle of law governing the priority of estates and interest has been enunciated in the case of Labode vs Otubu (2001) 7 NWLR Pt. 7122 P.256 @ 281 by the Apex Court to be:
“At law and equity, the basic rule is that estates and interest primarily rank in order of creation. He who is earlier in time is stronger in law. Also, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. Where the equities are equal and neither claimant has the legal estate, the first in time prevails.”
Where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite, one can grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. See FBB Ind vs Mutnci Co. Nig Ltd. (2012) 6 NWLR Pt. 1297 P.487 @ 524; Omiyale vs Macaulay (2009) 7 NWLR Pt. 1141 P. 597; Ibrahim vs Osunde (2009) 6 NWLR Pt. 1137 P. 382; Ashiru vs Olukoya (2006) 11 NWLR Pt. 990 P.1 and Dantsoho vs Mohammed (2003) 6 NWLR Pt. 817 P.457. PER BDLIYA, J.C.A.

EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IN THE DECISION MAKING PROCESS BY A COURT

What then is evaluation of evidence and the ascription of probative value thereto in the decision making process by a Court of law. This question has long been put to rest by the Supreme Court in A.R Magaji & Ors vs Madam R. Odofin & Ors (1978) 4 SC 91 @ 94 when it held that:
“….. before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to whom evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by the both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable that that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted. PER BDLIYA, J.C.A.

WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE ADDUCED BY WITNESSES CALLED BY PARTIES

It is the primary duty of a Trial Court to evaluate and ascribe probative value to evidence adduced by witnesses called by parties before making a pronouncement on the case presented before it for adjudication. A Trial Court is duty-bound to put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. It is after doing this that it will then see which is heavier, not by the number of witnesses called by each party, but by the quality of probative value of the testimonies of the witnesses called. This exercise is a binding duty on a Trial Court before it can arrive at a just decision in a matter place before it for adjudication. Where a trial court failed in its binding duty to evaluate and ascribe probative value to the evidence adduced before it, an Appellate Court will not hesitate in entering the shoes of a Trial Court by doing what the Trial Court ought to have done but failed to do. See Adenuga vs Okeola (2008) All FWLR (Pt.398) 292 P.42 Paras B-E.
The law is trite, a Trial Court has the duty to evaluate the evidence adduced before it and ascribe probative value thereto in deciding or preferring which evidence is credible, and which evidence is unreliable before taking a decision on any matter in dispute. On the duty of a Trial Court to evaluate evidence, Eso JSC (of blessed memory) had this to say in the case of Chief Frank Ebba vs Ogodo LC 499 @ 507-508:
“Indeed, it was the duty of the Trial Court to asses witness, from impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the Trial Court is named a ‘Trial Court’. It is the Trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial judge that has he duty to see and indeed in the case, has seen the witnesses and also heard their evidence.”
The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe vs B.C.C ltd (2014) All FWLR Pt.747 P.707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighted together. That is the admissible and relevant evidence of the plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed determine whose evidence weighed more or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of probative value of their piece of evidence.” PER BDLIYA, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE BY THE TRIAL COURT

The law is settled, where a Trial Court has had evaluated the evidence adduced by the parties in reaching a decision, an Appellate Court cannot interfere or disturb such exercise of judicial duty unless it can be established that such exercise of judicial duty has not been properly carried out, or if carried out, not properly done or in violation of settled principles of law. In Ike vs The State (2001) 14 NWLR Pt. 723 P.2211 @ 255, the Supreme Court, Per Iguh JSC posited the law thus:
“It cannot be over-emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw, heard and assessed the witnesses as they testified in the witness box. See Akinliye & Anor vs Eyiyola & Anor (1968) NMLR 92 @ 95; Woluchem vs Gudi (1981) 5 SC 291 @ 320 etc. it is only where an Appellate Court is in as good a position as the Trial Court to evaluate evidence which has been given in a case, such as where the issue is essentially a matter of inference that can be drawn from proved facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the Trial Court that it must not hesitate to do so. See Okafor vs Idigo III (1984) 6 SC 1 @ 36; The Registered Trustee of the Apostolic Faith Mission & Anor vs James & Anor (1987) 2 NWLR Pt. 61 P.556 @ 567.”
An Appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following:
(1) Where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
(2) Where the Trial Court fails to make finding of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
(3) Where the Trial Court gives an unfair treatment on the evidence of the parties before it.
See NEPA vs Arobieke (2006) 7 NWLR Pt. 979 P.245 @ 272. PER BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kwara State, (the lower Court) in suit No. Kws/123/2009 delivered on the 14th day of December, 2016, wherein the reliefs sought by the 1st respondent were granted and the counter-claim of the 2nd respondent was dismissed for lacking in merit. The brief facts on which the suit at the lower Court was predicted are thus: sometime in 1997, the 1st respondent claimed to have purchased uncompleted bungalow of 4 bedrooms house situate, lying and being at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, from the 3rd respondent, per Exhibit “1”. The 1st respondent later sold the said property to the appellant. When the 2nd respondent knew that the said property was sold to the appellant, she instituted a civil suit before an Upper Area Court, Ilorin, challenging the said transaction. The suit was struck out by the said Court for lacking jurisdiction to adjudicate on same. The 2nd respondent contested the sale of the house to the appellant. The appellant approached the 2nd respondent and renegotiated the sale of the same

property to him. It became clear that the appellant purchased the same house from the 1st and 2nd respondents at different times. The appellant claimed he was the title holder of the property in dispute and instituted suit No: Kws/123/2009 before the lower Court against the respondents. The lower Court after the hearing of the suit entered judgment in favour of the 1st respondent, and dismissed the counter-claim of the 2nd respondent in a judgment delivered on the 14th day of December, 2016.

Aggrieved by the decision of the lower Court, the appellant filed Notice of Appeal on the 10th of March, 2017, which was amended and filed on the 31st of May 2019, out of time, and deemed properly filed on the 27th June, 2019. The record of appeal was transmitted to this Court on the 17th of January, 2019. An additional record of appeal was transmitted to this Court on 18th day of April, 2019, out of time, which was by an order of Court deemed filed on the 7th of June, 2019. A further additional record of appeal was filed on the 18th of October, 2019, out of time, and same was deemed properly filed on the 22nd of October, 2019.

argument was filed on the 31st day of May 2019, which was deemed properly filed on the 27th of June, 2019, wherein, three (3) issues for determination of the appeal were culled out of the amended Notice and grounds of appeal on pages 4-5 thereof. The 1st respondent filed brief of argument on the 18th of October, 2019 but deemed properly filed on the 22nd of October, 2019, wherein on page 4 thereof, the three (3) issues for determination contained on pages 4-5 of the appellant’s brief of argument were adopted. A reply brief was filed by the appellant on the 31st of October, 2019. The 2nd and 3rd respondents did not file briefs of argument in the appeal.
The issues for determination in the appeal are thus:
(1) Whether the evidence adduced before the Lower Court justifies the conclusion of the learned judge that the 1st respondent rather than the 2nd respondents is the rightful person to sell or transfer the property known as No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, kwara State to the appellant. (Grounds 2, 5 and 7 of the grounds of Appeal contained in amended Notice of Appeal).
(2) Whether the evidence adduced before the Lower

Court justifies the invalidation of the sale of the property at No: 71/71 Oko-Erin Road, Ilorin by the 1st respondent to the appellant. (Grounds 3, 4 and 8 of the grounds of appeal contained in the amended Notice of Appeal).
(3) Whether the lower Court properly evaluated the totality of the evidence in arriving at its decision that the 1st respondent rather than the 2nd respondent is the rightful person to sell or transfer the property at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, Kwara State to the appellant and consequently invalidated the sale of the property at No: 71/73, Oko-Erin Road, Ilorin by the 1st respondent to the appellant. (Grounds 1 and 6 of the grounds of Appeal contained in the amended Notice of appeal).

RESOLUTIONS OF ISSUES
Issues 1 and 2 are taken together, then issue 3 in the determination of the appeal.

ISSUE ONE (1) AND TWO (2)
Learned counsel to the appellant, Abdulwahab Bamidele Esq, who settled the brief of argument, did contend that on the totality of the evidence before the lower Court, the conclusion arrived at, that the 1st respondent is the rightful person having title to the disputed property

and validly transferred such title to the appellant rather than the 2nd respondent cannot be justified. That the appellant acquired valid title in the disputed property from the 2nd respondent. Learned counsel referred to the pleadings in paragraphs 36 to 39 of the 1st respondent’s pleadings wherein he admitted that having no valid title to the property in dispute and undertook to refund the sum of money which the appellant paid to the 2nd respondent which admission, the lower Court ignored or disregarded in arriving at the decision in favour of the 1st respondent. That an admission by a party in a dispute is the best evidence which can be relied on to take a decision as enunciated in the case of Salawu vs Yusuf (2007) All FWLR Pt. 384 P.236 @ 252, which has been totality ignored by the lower Court in its judgment wherein, it held that the 1st respondent had title to the said property, rather than the appellant.

Submitting further, learned counsel referred to paragraphs 1-18 of the 2nd respondent’s statement on oath, and adumbrated that by the said depositions, the 2nd respondent had proved her title to the disputed property, but the lower Court

failed to consider same when taking a decision as to who had better title to the said property, (the 1st respondent or the 2nd respondent). It has been further contended that, Exhibit “4” is the only authentic document before the Court, not Exhibit 1 as to who owned or had title to the property in dispute. Learned counsel relied on the statement on oath of the 2nd respondent when giving evidence-in-chief, especially paragraphs 9 to 14 thereof, to reinforce the submission supra.

On the invalidation of the sale of property at No: 71/73, Oko-Erin Road Ilorin by the 1st respondent to the appellant, learned counsel did submit that there is no basis for doing so in view of the evidence adduced before the lower Court, especially Exhibit D3, which was validly entered into by the 1st respondent and the appellant. That an agreement freely entered into by parties is binding and enforceable in law as espoused in the case of Osun State Environment vs Dalami (Nig) Ltd (2007) All FWLR Pt. 365 P.438 @ 468. Learned counsel referred to the re-sworn statement on oath of the 1st respondent, especially paragraphs 30-33 thereof to reinforce the submission supra.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Concluding, learned counsel did urge that issues 1 and 2 be resolved in favour of the appellant for the reasons enunciated on pages 33 to 34 of the appellant’s brief of argument.

For the 1st respondent, A.R Aminu Esq, of learned counsel, did submit that the law is trite, where there are competing interest over a parcel of land or estate, as the case may be, the first to be created shall take precedence over the latter as espoused in the cases of Kachalla vs Banki (2006) 2-3 S.C 41 @ 50-51; Ejuetami vs Olaiya (2001) 12 SC Pt.II P.175 @ 198. It has been further adumbrated that since the property in dispute No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, was transferred to the 1st respondent as the legal representative of Salamat Bola Ibrahim by the 3rd respondent as contained in Exhibit “I”, which is earlier than Exhibit “4”, the basis of the 2nd respondent’s claim of title, the learned judge of the lower Court was right in arriving at the decision that the 1st respondent has the valid title to the said land and can legally transfer same to another person.

On Exhibit “4” which the appellant

asserted was executed after Exhibit “1” was destroyed, the 1st respondent denied being a party to it having not signed same, nor did he authorize anyone to do so on his behalf. Learned counsel did contend that the 3rd respondent having admitted signing Exhibit ‘1’ and ‘4’, he is bound by it, therefore he had no legal right or title in the property in dispute having transferred same to the 1st respondent. That he could not have transferred title in the property to the 2nd respondent. That in view of the foregoing, by the principles of “prior est tempore, prior est jure” meaning, he who is first in time has the strongest right, would apply to render the Exhibit ‘4’ of no evidential value in the determination of who has the legal title in the disputed property. The principles of law propounded in the cases of Olukoya vs Ashiru (2006) 5 SC Pt. 2 P.1 @ 12 and Atanda vs Ajani (1989) 6 SC P.87, have been cited and relied on to buttress the submissions supra.

Learned counsel further submitted that at the time the 1st respondent transferred title in the property to the appellant per Exhibit ‘D2’

he had valid title to have done having regards to the dates Exhibits “D2” and “D3” were made which can easily resolve this issue because Exhibit ‘D2’ is valid by virtue of Exhibit ‘I’. It is learned counsel contention that the 2nd respondent had no title to transfer to the appellant, property at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, having invalidated the sale of property at No. 71/73 Oko-Erin Road, Ilorin by the 1st respondent to the appellant.

In the Reply brief, learned counsel pointed out that the lower Court wrongfully invalidated the sale of property No: 71/71 Oko-Erin Road Ilorin in view of Exhibit “D3” and “D9” since the 1st respondent failed to join issues on same. The principles of law espoused in Adesanya vs Otuewu (1993) 1 NWLR Pt 270 P.414 has been cited and relied on to reinforce the submissions supra.

It has been further submitted that the 1st respondent is estopped in law from challenging the 2nd respondent’s sale of property at No. No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, to the appellant having admitted that he had no authority

to sell same. That in view of the foregoing, the principles of law espoused in Kachalla vs Banki (2006) 2-3 S.C 41 @ 50-51; Ejuetami vs Olaiya (2001) 12 SC Pt.II P.175 @ 198 and Olukoya vs Ashiru (2006) 5 SC Pt. 2 P.1 @ 12, relied on by the appellant are not applicable to the extant appeal.

Who, among the 1st and 2nd respondents, had acquired legal title over the property known and called No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, Kwara State, on the evidence adduced before the lower Court? Was the invalidation of the sale of property No: 71/73 Oko-Erin Road, Ilorin, by the 1st respondent to the 2nd respondent justified in law. That the 1st respondent relied on Exhibits “1” and “D2” in establishing his right of title to the disputed properly, whereas the 2nd respondent relied on Exhibit “4” and “D1” on which he predicated her claim of title to the same. Exhibit “I” is a DEED OF CONVEYANCE between the 3rd respondent and Salamat Bola Ibrahim through her Guardian ad litem, Mallam Ibrahim Ayinla Jimba, the 1st respondent. It is dated 20th December 1997. Exhibit “D2”, is the

DEED OF ASSIGNMENT between Salamat Bola Ibrahim (acting through her guardian) Mallam Ibrahim Ayinla Jimba, the 1st respondent) and Abdulgafar Alaro, the appellant. It is dated 4th of February 2006.

Whereas, Exhibit “4” DEED OF CONVEYANCE between Mallam Mohammed Yusuf the 3rd respondent and Madam Khadijat Ibrahim (the 2nd respondent). It is dated and executed on the 20th day of December, 1997. Exhibit “D1” the DEED OF TRANSFER between Alhaja Khadijat Alake Aluko, the 2nd respondent and Alhaji Abdulgafar Alaro the appellant, it was executed on the 19th of July, 2006.

Apart from the documentary evidence which are Exhibits “I”, “D2”, Exh 4 and D1, Oral evidence were taken from witnesses which have been recorded in the proceedings of the lower Court. The evidence of the witnesses have reinforced the divergent positions taken by the parties, on the disputed property. The relevant or material portions of the testimony of the witnesses are reproduced hereunder as recorded in the further additional record of appeal which was complied and transmitted to this Court on the 16th of October, 2019 and deemed properly

transmitted on the 22nd of October 2019. The 1st respondent in his re-sworn affidavit, which is located on pages 99 to 107 of the record of appeal, particularly paragraphs 6 to 11 thereof, deposed as follows:
6. On 20th Day of December, 1997, I entered into an agreement with the 3rd Defendant for the transfer/sale of his landed property at No. 2c, Ogori Road, Adewole Housing Estate, Ilorin, Kwara State for a Sum of N300,000:00 (Three Hundred Thousand Naira) Only.
7. I entered into the said agreement on behalf and for the benefit of my daughter.
8. The 3rd Defendant issued me an acknowledgement receipt in form of a written agreement as evidence of payment of money in respect of the said transaction. I can identify the said agreement.
9. Upon the execution of the said agreement the 3rd Defendant put me in immediate physical possession of the said landed property consisting of a land measuring 100ft x 100ft (One Hundred feet by One Hundred feet) together with one number uncompleted bungalow of four (4) bedroom with Kitchen, garage and convenience. I commenced development on the said property until sometime in 2006.
10. The 3rd Defendant

derived his title in respect of the said landed property from Alhaja Mulika Bola Atobiloye of New Yidi Road, Ilorin, who derived her title from Alhaji Omotosho Alabi by virtue of a written agreement executed in her favour by Alhaji Omotosho Alabi of No.35, Adewole Road, Ilorin, Kwara State. Alhaja Mulika Bola Atobiloye executed a document dated 25th day of June, 1996 in favour of the 3rd Defendant as receipt for payment of money in respect of the transaction.
11. The said Alhaji Omotosho Alabi derived his title from Alhaja A. Iyabo Aleshinloye (now deceased) of Kwara State Property Development Corporation, Ilorin, the allottee of the said landed property by virtue of letter of allocation dated 24/01/94 issued by the Kwara State Property Development Corporation, Ilorin. An agreement was executed by the said Alhaja A. Iyabo Aleshiloye in favour of Alhaji Omotosho Alabi as receipt of payment of money.

He gave evidence as Pw1 before the lower Court as recorded on pages 282 to 286 of the main record of appeal transmitted to this Court on the 22nd of October, 2019. When cross-examined, on Exhibit “I”, the document of title he relied on as the

title holder of the disputed property he stated as follows as could be located on pages 287 to 288 of the record of appeal:
“It is true that the agreement is in the name of my daughter. It is true I signed on her behalf that day. The counsel that prepared the agreement is H.R. Mohammed. The original of the document is given to Alhaji Gafar Alaro i.e. the 2nd defendant when I sold it. It is not true that the original of the document was burnt. In the office of the 3rd defendant between me and my wife. In our agreement my wife was a witness to the agreement. It is not true that the agreement was prepared by me but the counsel A.R Mahmoud. It is not true that when the original agreement was burnt, I went and forge another one. It was not the advice of the 3rd defendant that gave my wife for preparing the document he made in her name. Pw1 looks at an agreement and said that it is not the agreement made. The first one is clearly my signature is not on it and I am not aware of it. I am not a signatory expert. I cannot see difference in the signature on Exhibit 1 and Exhibit 4. The signature of my wife Khadijat on Exhibit 1 and Exhibit 4 are not the

same.”

The 2nd respondent, Alhaja Khadijat Aluko, testified as DW1 as could be found on pages 271 to 294 of the record of appeal. Before giving her evidence, she adopted the statement on oath as her testimony before the Court. In paragraphs 6 to 10 of the statement on oath, she deposed as follows as could be located on pages 59 of the record of appeal:
6. I took the claimant to the 3rd defendant who prepared the agreement and agreed with the claimant to put the name of our only daughter Miss. Salamat Bola Ibrahim as the purchaser. The claimant signed the agreement as Guardian ad-litem while I signed as a witness. The said agreement was dated 20/12/1997. I can recognize the agreement.
7. Some days later when the agreement dated 20/12/1997 was executed, the 3rd defendant told us that our daughter in whose name we executed the agreement was just 4 years old and that in future someone may queried how she came to own a property at that age. I went to the 3rd defendant that the agreement dated 20/12/1997 be changed to my name, because it was my property. The 3rd defendant then informed me that since at the time of executing the agreement, I

came with the claimant, the claimant had to be there and consented before the name can be changed.
8. Some days later the claimant came home from his working place and we went together to the office of the 3rd defendant where the matter was discussed and the claimant informed the 3rd defendant that in view of the age of our daughter, the agreement should be changed to my name since I was the real owner.
9. We then instructed 3rd defendant to brief his lawyer to prepare a new agreement in my name. The 3rd defendant then informed me and the claimant that a new agreement will be drafted by his Lawyer H.R. Mahmud of Oniyangi Chamber, Taiwo Road, Ilorin but that the first agreement dated 20/12/1997 in our daughter’s name has to be destroyed because there cannot be two agreements on a single property.
10. I went with the claimant to the kitchen and took a match box and we went down stair which the claimant of the 3rd our building to burn the two copies of the agreement dated 20/12/1997 which the claimant signed as guardian ad-litem for our daughter.

She gave evidence as recorded on pages 281 to 296 of the further additional record of

appeal. She deposed as follows, particularly on pages 291 to 292 of the further additional record of appeal:
“Cross-examination by Mr Aminu – That I also signed as a witness in the agreement between the 3rd defendant and my daughter (Miss Bola Salamat Ibrahim). It is true it has been burnt and destroyed. In Exhibit 4 the agreement between the Dw1 and 3rd defendant. It is true that the Claimant did not sign it. It is true when I went to the 3rd defendant at Adewole in respect of the property he sold, I didn’t come with the claimant to him. I also went with the Claimant when he returned. I was told that my daughter is under age and cannot own property. They have to change the name to the claimant, the claimant said I should pay for the change of ownership since its belong to me and I did by paying N 5,000.00.”

The 3rd respondent gave evidence as Dw2 which have been recorded on pages 294 to 296 of the further additional record of appeal. He adopted his statement on oath. The depositions in paragraph 7 to 14 thereof are as follows as could be located on pages 63 to 64 of the record of appeal.
“(7). An agreement was prepared

and executed in respect of the said property at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, by Lawyer H.R Mahmud of the Law Firm of Oniyangi & Co. I can recognize the agreement
(8). I later informed the 1st defendant that Miss Salamat Bola Ibrahim was a minor and cannot own a property and thereafter advised her not to put her name on the agreement.
(9). After sometimes, the 1st defendant came to my office and requested that the agreement prepared and executed in respect of No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, be changed to her name.
(10). I informed the 1st defendant that at the time the agreement was made in the name of the their daughter the claimant was around and that if there could be any change in the buyer’s name the claimant should be around and approve it.
(11). Later the 1st defendant and the claimant came to my office and informed me that a new agreement should be made in the name of the 1st defendant in respect of No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, as the 1st defendant is the real owner.
(12). I advised the 1st defendant and the claimant to destroy the first agreement

prepared and executed in the name of their daughter, Miss salamat Bola Ibrahim, before a new agreement can be prepared because there should not be two agreement on a single property. The agreement prepared in the name of Miss. Salamat Bola Ibrahim and executed by the claimant as her guardian ad-litem was destroyed at the down stair of their house.
(13). The 1st defendant and the claimant instructed me to brief Lawyer H.R Mahmud to prepare another agreement in the name of the 1st defendant and Lawyer H.R Mahmud prepared same in the name of the 1st defendant.
(14). A new agreement was prepared and executed by the parties, myself as the seller with my witnesses and the 1st defendant and here witnesses as the buyer. I can recognize the agreement.”

His evidence before the Lower Court as recorded on pages 294 to 295 of the further additional record of appeal are thus:
“I am Akanbi Babatunde Yusuf, I live at Odota behind Alade Petrol Station Ilorin. I am an auctioner, Aloma Enterprises is name of my business office. Aloma Enterprises is at 165 Ibrahim Taiwo Road, Ilorin. I know all the parties in this case. On 16/12/2010, I deposed to

a statement on oath in defence of this suit. DW2 identify his written statement on Oath. I want the Court to admit the statement as evidence in this case.”

Hassan Rasaq Mohammed, a legal practitioner, gave evidence as Dw5. His evidence before the Court are as follows as recorded on pages 301 to 303 of the further additional record of appeal, particularly on pages 302 to 303 of the record of appeal:
“Cross Examination by Mr Aminu – it is true I once prepared an agreement before one Mallam Babatunde Akanbi Yusuf and Salamat Bola Ibrahim. It is true the agreement was prepared and ddated 20/12/1997. It is true that the agreement is in respect of the property as Exhibit 4. The parties did not sign in my presence. Salamat then was a minor and she acted through a guardian by name Khadijat Ibrahim in Exhibit 4.
In Exhibit 4 acting capacity is not stated there.
DW5 looks at Exhibit 4.
In my statement before the Court paragraph 3, I said the agreement I earlier prepared between mallam Babatunde Akanbi Yusuf and Salamat Bola Ibrahim was destroyed in Exhibit 4. It is not true that an earlier agreement has been destroyed. I would not know

that the issue of destruction is an afterthought. I was not a party to the destruction of the first agreement I relied on what the 3rd defendant told me because he was the person that brought the 1st and 2nd defendants issue to me. Apart from the 1st agreement i.e. for the sale, no consideration was paid later for the second agreement.
Cross-examination by Mr Suleman – Exhibit 1 indicate that Salamat was acting through a guardian and not Exhibit 4. It is true I prepared the 2nd agreement after been told that the first one was destroyed and there was agreement between the claimant and 1st defendant being the parent of the Salamat Bola Ibrahim.”

A perusal of the documentary evidence, that is Exhibits ‘I’, ‘D2’ ‘4’ and ‘D1’ considered together with the evidence of the witnesses PwI, Dw1, Dw2 Dw3 and Dw5, it is established that Exhibit “I” was executed before Exhibit “4”. So also Exhibit D2, executed on the 4th of February, 2006 whereas Exhibit D1 was executed on the 19th of July, 2006. Therefore, the creation of the title of the 1st respondent to the disputed property, No: 2C,

Ogori Road, Adewole Housing Estate, Ilorin, kwara State was first in time. The law is trite, where there are competing interest in an estate or land property in general between two or more persons, the interest or legal right in the property is ranked in the order of their creation. This principles of law have been espoused in a litany of decisions of the Apex Court, and this Court. For instance, in Kachalla vs Banki (2006) 2-3 S.C 41 @ 50-51; Mustapher JSC as he then was (of blessed memory), had this to say:
“In property law, many different question of priority may arise, these may concern rival conveyance of property or as in this case competing interest in the holding of the right of occupancy the fundamental rule is that competing interest will generally rank according to the order of their creation.”
The law is trite, in law and equity, the basic principles of law is that estates and interest primarily rank in the order of creation. The maxim is Qui prior est tempore potior est jure which literally means that he who is earlier in time is stronger in law. This principle is however, applicable where the equities are equal. See Ugbo vs Aburime

(1994) 8 NWLR Pt. 160 P. 1019. In Ashiru vs Olukoya (2006) 11 NWLR Pt. 990 P.1 @ 23, the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities pursuant to the well-recognized maxim, Qui prior est tempore, portior est jure, meaning that he who is first has the strongest right, dictates that the first in time takes priority. Atanda vs Ajani (1989) 3 NWLR Pt.111; Auta vs Ibe (2003) 13 NWLR Pt. 837 P.247.
The principle of law governing the priority of estates and interest has been enunciated in the case of Labode vs Otubu (2001) 7 NWLR Pt. 7122 P.256 @ 281 by the Apex Court to be:
“At law and equity, the basic rule is that estates and interest primarily rank in order of creation. He who is earlier in time is stronger in law. Also, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. Where the equities are equal and neither claimant has the legal

estate, the first in time prevails.”
Where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite, one can grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. See FBB Ind vs Mutnci Co. Nig Ltd. (2012) 6 NWLR Pt. 1297 P.487 @ 524; Omiyale vs Macaulay (2009) 7 NWLR Pt. 1141 P. 597; Ibrahim vs Osunde (2009) 6 NWLR Pt. 1137 P. 382; Ashiru vs Olukoya (2006) 11 NWLR Pt. 990 P.1 and Dantsoho vs Mohammed (2003) 6 NWLR Pt. 817 P.457.
It is not in dispute any longer that the property No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, was first transferred to the 1st respondent for and on behalf of his daughter, a minor of under age, by the 3rd respondent, as per Exhibit

“I”. See pages 112 to 115 of the record of appeal. Both the 1st and 2nd respondents signed Exhibit “I” as witnesses. On the evidence, both documentary and oral, prior to the creation of the agreement Exhibit “4” between the 3rd respondent and 2nd respondent in respect of the property at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, there was already in existence a legally or validly binding contract, as expressed in Exhibit “1” wherein the 3rd respondent transferred the same property to the 1st respondent as guardian of Miss Salamat Bola Ibrahim. There is no clause in Exhibit “4” to show that the earlier agreement Exhibit “1” was burnt or destroyed. There is also no admissible evidence to show that the 1st respondent gave instruction for the destruction of the earlier agreement or the making of a new one. In fact Dw5 Barrister H.R Mahmud, under cross-examination, by Mr. Aminu on 27/5/2015 admitted that it is not true that an earlier agreement has been destroyed. See pages 266 lines 20-21 of the additional record of appeal and page 302 lines 15-16 of the further additional record of

appeal, where the 5th witness, under-examination had said thus:
“It is not true that an earlier agreement has been destroyed.”
The 3rd respondent, having admitted to have signed Exhibit “1” and “4” the contention that Exhibit “1” was destroyed before Exhibit “4” was subsequently made is no longer tenable in that Exhibit “1” was never destroyed. Thus, the 3rd respondent having signed Exhibit “1” is bound by its contents, hence he was left with no right or interest in the property he had validly transfer to the 1st respondent as he has been divested of all right in the said property. In Olukoya vs Ashiru (2006) 5 S.C Pt.11 P.1 @ 12 and 13, Onu JSC Espoused that:
“As I have already pointed out, parties claimed to have acquired the land in dispute from a common grantor, the Jalingo Local Government. Whereas in the present case, the two or more competing documents of title upon which parties to a land in dispute rely for their claim of title to such land originated from a common grantor, the doctrine of priorities pursuant to the well-recognized maxim qui

prior est tempore, prior est jure, meaning that he who first has the strongest right dictates that the first in time takes priority vide Atanda vs Ajani (1989) 6 S.C Pt. 11 P.87; (1989) 3 NWLR Pt 111 P 511.”

Having held that on the totality of the evidence before the Lower Court, the 1st respondent, the “ad-litem” guardian of Salamat Bola Ibrahim, a minor, has been vested with the legal title or interest in property No: 2C, Ogori Road, Adewole Housing Estate, Ilorin,, I am in full agreement with the learned judge of Lower Court, when he held in the judgment delivered on the 14th of December, 2016 at page 230 of the record of appeal that:
“Based on the foregoing, I am of the humble view that Exhibit “1” is validly made between the claimant and the 3rd defendant and no amount of extrinsic evidence can contradict the content of Exhibit “1”. In other words Exhibit “1” DEED OF CONVEYANCE dated 20th December, 1997 remains only valid document in the transaction affecting the property situated at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, between the claimant (who executed Exhibit 1 on

behalf of his daughter) and the 3rd defendant, just as pleaded by the 1st and 3rd defendants there are cannot be two documents and/or agreement on a single property. See Olubodun vs Lawal (2008) All FWLR Pt. 434 P.1468 @ 1525, Paras B-C; Ibachem Ltd vs Visa Investment & Securities Ltd (2009) All FWLR Pt. 485 P.1770 @ 1787, Paras B-C
I agree with the submission of the learned counsel to the claimant that Exhibit D2 is valid since the claimant had the title to transfer the property located at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, to the 2nd defendant by virtue of Exhibit “1”. Exhibit D2 (DEED OF ASSIGNEMENT) between Salamat Bola Ibrahim (acting through/by here guardian ad-litem) and Abdulgafar Alaro on 4th February, 2006 is validly made and I therefore hold that the 2nd defendant cannot rescind from the terms of Exhibit D2. Consequently, the claimant transferred a valid title to the 2nd defendant whose title is still subsisting till now.”

On the sale of the 1st respondent’s property No. 71/73 Oko-Erin Road, Ilorin to the appellant, the decision arrived at that the 1st respondent had the legal title over the

property No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, and validly acquired same from the 3rd respondent, therefore, there was no legal basis to warrant the alleged transfer of title to the appellant. I am in total agreement with the learned judge of the Lower Court when he held on page 231 of the judgment of the Lower Court that the basis for the transfer of property No: 71/73 Oko-Erin Road Ilorin owned by the 1st respondent to the appellant can no longer be sustained and same was declared invalid, per the decision of the lower court that:
“It is in line with foregoing, that I hold that the sale of the claimant’s property situated at 71/71/Oko-Erin Road is invalid because you cannot put something on nothing and expect it to stay there. It will collapse. (Borrowing the dictum of Lord Denning) in the celebrated case Macfoy vs United Africa Company Ltd (West Africa) PC 27 Nov 1961.
In other words, since the claimant has validly transferred the property at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, to the 2nd defendant he is not under obligation again to convey his interest in property situated as No. 71/73 Oko-Erin Road,

Ilorin to the 2nd defendant doing that will not only be prejudice to the claimant but it will also constitute a grave injustice to the claimant.”
Consequently, I resolve issues 1 and 2 against the appellant.

ISSUE THREE (3)
Whether the learned judge of the Lower Court evaluated the evidence and ascribed probative value thereto in arriving at the decision that the 1st respondent is the person with title to the disputed property, and could transfer same to the appellant, hence invalidating the sale of property No: 71/73 Oko-Erin Road Ilorin, to the 2nd respondent by the 1st respondent?

On this issue, Abdulwahab Bamidele Esq, did contend that the decision reached by the Lower Court in holding that, it is the 1st respondent, rather than the 2nd respondent, that can only transfer title over the disputed property to the appellant, cannot be supported by the evidence adduced by the parties. That had the learned judge of the Lower Court properly evaluated the evidence, and ascribed probative value thereto, a different decision could have been reached in the judgment delivered on the 14th of October, 2016. Learned counsel went on to contend

that in view title to the disputed property No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, when he was confronted by the 2nd respondent, the Lower Court was in error when it nevertheless arrived at a contrary decision to the determent of the 2nd respondent. Counsel cited and relied on the case of Salawu vs Yusuf (2007) All FWLR Pt. 384 P.236 @ 252, wherein, the Apex Court espoused that, an admission by a party if validly made, is the best of evidence on which a Court can rely on same to take a decision in the matter before it.

Submitting further, learned counsel adumbrated that the 2nd respondent adduced credible evidence in support of her claim of title to the disputed property, which if the Lower Court had properly evaluated, the decision of the Lower Court would have been otherwise. It is also learned counsel’s contention that the evidence of the 2nd respondent have not been discredited by the 1st respondent, yet, the Lower Court failed to ascribe probative value thereto, which consequently led to the unjustifiable decision of the Court occasioning a miscarriage of justice, being perverse, and this Court has been urged to evaluate the

evidence, ascribe probative value thereto, and arrived at a just decision in favour of the 2nd respondent.

On Exhibits ‘1’ and ‘4’, it is learned counsel’s submission that on the overwhelming evidence adduced by the 2nd respondent and the appellant, the Lower Court ought to have declared Exh ‘4’ as the only valid and legal document which transferred title in the disputed property to the 2nd appellant rather than Exhibit ‘1’ the basis of the Lower Court’s decision in favour of the 1st respondent. As to how to evaluate evidence and ascribe probative value thereto in the decision making process, the principle of law in the case ofAdeleke vs Iyanda (2001) All FWLR Pt. 331 P.1387 @ 1407 and Adeyeye vs Ajiboye (1987) 3 NWLR Pt. 61 P.432 have been cited and relied which this Court has been urged to apply same to evaluate the evidence before the Lower Court, ascribe probative value thereto, and to arrive at the right and just decision.

For the 1st respondent, A.R Aminu Esq, of learned counsel, referred to his submissions in respect of issue 1 and adopted same as the argument canvassed to issue 3.

It is learned counsel’s contention that the Lower Court properly evaluated the evidence adduced by the parties and ascribed probative value thereto as being credible and reliable, and having applied same arrived at the decision that the 1st respondent has proved a better title to the disputed property as could be located on pages 228-233 of the record of appeal. Even if the Lower Court did not properly evaluate the evidence, learned counsel did urge this Court to do so and take the appropriate decision on the evidence before it. Learned counsel did urge that issue 3 be resolved against the appellant.

Abdulwahab Bamidele Esq, of learned counsel to the appellant contended that the learned judge of the Lower Court did not properly evaluated the evidence, ascribed probative value thereto and apply same in the decision making process, which led him to arrive at the wrong decision, that it is the 1st respondent that has legal title to the property No: 2C, Ogori Road, Adewole Housing Estate, Ilorin, by virtue of Exhibit ‘1’ and ‘D2’ instead of the 2nd respondent who claimed title to the said property by virtue of Exhibit

“4” and “D2”. What then is evaluation of evidence and the ascription of probative value thereto in the decision making process by a Court of law. This question has long been put to rest by the Supreme Court in A.R Magaji & Ors vs Madam R. Odofin & Ors (1978) 4 SC 91 @ 94 when it held that:
“….. before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to whom evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by the both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:
(a) Whether the evidence is

admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable that that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.
It is the primary duty of a Trial Court to evaluate and ascribe probative value to evidence adduced by witnesses called by parties before making a pronouncement on the case presented before it for adjudication. A Trial Court is duty-bound to put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. It is after doing this that it will then see which is heavier, not by the number of witnesses called by each party, but by the quality of probative value of the testimonies of the witnesses called. This exercise is a binding duty on a Trial Court before it can arrive at a just decision in a matter place before it for adjudication. Where a trial court failed in its binding duty to evaluate and ascribe probative

value to the evidence adduced before it, an Appellate Court will not hesitate in entering the shoes of a Trial Court by doing what the Trial Court ought to have done but failed to do. See Adenuga vs Okeola (2008) All FWLR (Pt.398) 292 P.42 Paras B-E.
The law is trite, a Trial Court has the duty to evaluate the evidence adduced before it and ascribe probative value thereto in deciding or preferring which evidence is credible, and which evidence is unreliable before taking a decision on any matter in dispute. On the duty of a Trial Court to evaluate evidence, Eso JSC (of blessed memory) had this to say in the case of Chief Frank Ebba vs Ogodo LC 499 @ 507-508:
“Indeed, it was the duty of the Trial Court to asses witness, from impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the Trial Court is named a ‘Trial Court’. It is the Trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial judge that has he duty to see and indeed in the case, has seen the witnesses and also heard their evidence.”
36

The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe vs B.C.C ltd (2014) All FWLR Pt.747 P.707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighted together. That is the admissible and relevant evidence of the plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed determine whose evidence weighed more or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of probative value of their piece of evidence.”

Did the learned judge of the lower Court properly evaluate the evidence adduced by the parties in arriving at its decision in the judgment delivered in sit No Kws/123/2009 on the 14th of October 2006? The judgment of the lower Court can be located on pages 214 to 234 of the record of appeal compiled and transmitted to this Court on the 17th of January, 2019. On pages 233 to 234 in arriving at the decision of the Lower

Court, the learned judge evaluated the evidence of the parties, arrived at the decision as to which set of evidence is preferably credible and reliable when he arrived at the decision thus:
“In the case at hand, the claimant was able to establish a better title against the 1st defendant because there is no proper foundation for Exhibit 4 a stated in this judgment. The 1st defendant alleged that the claimant consented to the making of Exhibit 4 but she failed to prove how the claimant gave the said consent. The recital in Exhibit 4 is silent about the earlier agreement i.e Exhibit 1. It is on record that Exhibit 1 and Exhibit 4 are dated 20th December, 1997; the law is settled that where there are competing interest such as in this case the law places priority on the earlier in time, in this case it is not in dispute that Exhibit 1 was earlier in time and as such it remains the only valid document in respect of the property situates at No: 2C, Ogori Road, Adewole Housing Estate, Ilorin. In other words, Exhibit 1 (Deed of Conveyance) dated 20th December, 1997 between the claimant (who executed Exhibit 1 on behalf of is minor daughter Miss Salamat

Ayobola Ibrahim) and the 3rd defendant is for all purpose stronger than exhibit 4.”

facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the Trial Court that it must not hesitate to do so. See Okafor vs Idigo III (1984) 6 SC 1 @ 36; The Registered Trustee of the Apostolic Faith Mission & Anor vs James & Anor (1987) 2 NWLR Pt. 61 P.556 @ 567.”
An Appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following:
(1) Where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
(2) Where the Trial Court fails to make finding of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
(3) Where the Trial Court gives an unfair treatment on the evidence of the parties before it.
See NEPA vs Arobieke (2006) 7 NWLR Pt. 979 P.245 @ 272.
The contention of Bamidele Esq., of learned counsel to the

appellant, that the Lower Court failed to or neglected to re-evaluate the evidence in order to arrive at a just decision which the Trial Court failed to do cannot be justified as earlier demonstrated in this judgment. The evaluation of the evidence by the Lower Court may not be at its best, but what is important is the consideration of the evidence of both parties and ascribing probative value thereto in arriving at a decision. In my view, the Lower Court satisfactorily performed the duty expected of it in evaluating the evidence adduced by the parties before arriving at a just decision. The decision of the Lower Court cannot be perverse as contended by the learned counsel to the appellant.

A decision is perverse when it runs counter to pleadings and evidence on record or where the Court whose findings or decision is being reviewed is shown to have taken into account matters which it ought to have taken into account or shut its eyes to the obvious; and by its very nature the finding or decision has occasioned a miscarriage of justice. See Adimora vs Ajufo (1988) 3 NWLR Pt 1063 P 333; Olaniyan vs Fatok (2013) 12 17 NWLR Pt. 1384 P.477 @ 492.

I resolve issue 3 against the appellant. In the end result, having resolved all the 3 issues for determination in the appeal against the appellant, the appeal fails “in toto”. Accordingly same is hereby dismissed for being unmeritorious. The judgment of the Lower Court delivered on the 14th of October, 2016 in suit No. Kws/123/2009, is hereby affirmed. Each of the respondents is entitled to costs, assessed at N50,000.00. same is award to each of them accordingly.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree

BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading the leading judgment of my learned brother Ibrahim Shata Bdliya, JCA in draft. I am in total agreement with the reasons given in resolving the three issues for determination against the appellant, and adopt same as mine in also dismissing this appeal for lacking in merit. The judgment of the Lower Court in suit NO: KWS/123/2009 delivered on the 14th October, 2016 is hereby affirmed by me. I abide by the order of cost made in the leading judgment.

Appearances:

H.G Ibn Mahmud, Esq. For Appellant(s)

Kamaldeen Esq. for the 1st Respondent

2nd and 3rd Respondents are Absent For Respondent(s)