ALHAJI H. A. OGIREN v. MRS. AMZAT OLUFUNMILAYO & ORS (2015)

ALHAJI H. A. OGIREN v. MRS. AMZAT OLUFUNMILAYO & ORS

(2015)LCN/7768(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of February, 2015

CA/AK/17/2012

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE HAS THE DISCRETION TO FORMULATE ISSUES FROM THE GROUNDS OF APPEAL

EVIDENCE: BURDEN OF PROOF; THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE

In an action for declaration of title, the onus lies on the Plaintiff to prove his case with credible evidence and he must succeed on the strength of his own case and not on the weakness of the defence except where the case for the defence supports the Plaintiff’s case. See Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 354 and Uche v. Eke (1998) 9 NWLR (Pt.564) 24. per. JAMES SHEHU ABIRIYI, J.C.A.

PRACTICE AND PROCEDURE: COUNTERCLAIM; THE NATURE OF A COUNTERCLAIM

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

ALHAJI H. A. OGIREN Appellant(s)

AND

1. MRS. AMZAT OLUFUNMILAYO
(NEE OSUNKIYESI)
2. OLUWATOBI OSUNKIYESI
3. JUMOKE OSUNKIYESI
(For themselves and on behalf of Osunkiyesi family of Odigbo) Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court sitting at Ondo delivered on the 3rd August 2011.

In the Lower Court, the Respondents were the Plaintiffs and the Appellant was the 2nd Defendant.

The claim of the Respondents as contained in their Amended Statement of Claim was for the following:
(a) Declaration that the plaintiffs’ family are the person(s) entitled to Statutory Right of Occupancy of all that piece or parcel of land situate, lying and being at Orita Ojo, Ota Gbelure Quarters, along Ondo/Ore Road, Odigbo. The identity of the land is well known to the parties.
(b) N100,000,000.00 (One hundred million naira) being general damages suffered by the Plaintiffs when sometimes in the year 2007 without the consent and authority of the Plaintiffs the Defendants went unto their family land at Orita Ojo, Ota Gbelure Quarters along Ondo/Ore Road, Odigbo leased same out and constructed BTS station thereon.
(c) Perpetual injunction restraining the defendants, their agents servants, privies, representatives or anybody, company/ies claiming through and/or under them from committing further acts of trespass on the said land.

On his part, the Appellant by an Amended statement of Defence and Counterclaim amended on 1st June 2011 pursuant to an order of the Lower Court counterclaimed for the following:
(a) A declaration that the 2nd Defendant/Counter-claimant is the better person to be entitled to a Certificate of Occupancy of all that piece or parcel of land measuring 100ft x 100ft approximately 795.31sq. metres, lying, being and situate at along Ondo/Ore Road, Orita Yarabomo via ORE in Odigbo L.G.A. of Ondo State. The Land is will (sic) know (sic) to both parties.
(b) Two Hundred Million Naira being general damages for the trespass committed by the Plaintiffs and Mrs Bosede Osunkiyeisi by themselves and their agents when they disturbed and destroyed the 2nd defendant tenants development and his crops on said the (sic) land.
(c) Perpetual injunction restraining the plaintiffs and Mrs Bosede Osunkiyesi, whether by themselves or by their agents servants, privies or anybody claiming through them from further trespass on the said land in dispute.

The facts of the case are simple and short. The Respondents are siblings – children of Late Edwin Akinsiku Osunkiyesi who was the owner of the land in dispute before his death as shown by Exhibits A1 and A2. The land measures about 100ft x 100ft. The father of the Respondents bought the land from Olalekan Balogun. But the family of Famaiye later said it was family land. So the father of the Respondents had to re-purchase it from the family.
The Respondents took over the land after the death of their father in 1993.

In 2007, the 1st Defendant started trespassing on the land.
The Pw1 contacted a Solicitor who wrote to the 1st Defendant. When the 1st Defendant did not stop trespassing on the land, Pw1 contacted another Solicitor who wrote again to the 1st Defendant MTN Nigeria Communications Ltd.
The Pw1 had taken the Appellant to the land and asked him to help her get a buyer. To this end, she gave him photocopies of the title documents.
The Appellant turned round to claim that the Pw1 sold the land to him and proceeded to lease part of it to the 1st Defendant who erected a mast on it.
The Respondents denied selling the land to the Appellant.

On his part, the Appellant stated that he bought the land in 1977 from Famaiye Lasun family and was issued a receipt, Exhibit P5 and two copies of judgments Exhibits P6 and P7.
Since 11th November 1977, when he was put in possession of the land, he started exercising acts of possession. He farmed on the land. He planted vegetables and cassava. He put sand and stones on the land. He had been weeding the land continually.

At the front of the land somebody started building a structure on the land and he later discovered that the Respondents’ family had bought the uncompleted structure at the entrance of the land.

Sometimes in 2003/2004, the PW1 came with the 2nd and 3rd Respondents that they should “resolve this problem.” That they needed money and they wanted to sell. They agreed on N800,000 as consideration. He paid the Pw1 in the presence of other people; Kayode and Dele Oyebade. Pw1 told the tenants in front of the house to vacate because he told her to remove all the tenants she placed there.
He started to develop the place. His contractor started working on the land. He also erected a sign board on the land. There was no problem until M.T.N completed their mast on it.
Pw1 later called to say that the money paid to her was too small considering the fact that MTN was on the land.

After hearing witnesses and considering addresses of counsel, the Lower Court in a considered judgment dismissed the Appellants counterclaim and entered judgment in favour of the Respondents. It is for this reason the Appellant filed a notice of appeal containing nine grounds of appeal from which he presented nine issues for determination. The issues presented for determination reproduced immediately hereunder read as follows:
(1) Whether the respondents by their pleadings and evidence have been able to discharge the onus imposed on them by law to prove their title and that of their vendor when the appellant in his counterclaim denied the respondent vendor’s title to the land in dispute?
(2) Whether the learned trial Judge was right to have considered and gave legal value to Exhibit A1 and A2 as valid document/evidence upon which the Court held that the Respondents have proved their title to the land in dispute?
(3) Whether the position/finding by the trial judge that the Appellant is not contending the tile of E. A. SUNKIYESI amounts to misdirection?
(4) Whether the trial Judge was right when he failed to consider the issue/principle of priority that arose from Pleadings and evidence of the parties?
(5) Whether the learned trial judge was right/correct in law when he held that the appellant failed to prove that he bought the land from the Famaiye Lasun family and has not shown a better title over the piece and parcel of land in dispute when there are material facts and conclusive evidence placed before it?
(6) Whether the trial judge was right to grant the respondents claim for trespass and injunction against the appellant when the respondents were unable to prove exclusive possession of the land in dispute?
(7) Whether the address of the respondents counsel on an issue which is not support by pleadings and evidence can take the place of evidence that the trial judge could rely on to reach a decision in judgment against the appellant?
(8) Whether the learned trial judge was right when he held that the respondents are entitled to a statutory right of occupancy over the land in dispute when there was no evidence placed before him in their pleadings and evidence during the course of trial in support of same?
(9) Whether the decision reached by the learned trial judge without carefully considering the issues and evidence that arose from the pleadings and evidence adduced amounts to a breach of the appellant right to fair hearing?

The Respondents on their part formulated the following five issues for determination:
(1) Whether from the totality of the evidence before the Lower Court, the judgment of the Lower Court could be said to be against the weight of evidence. This issue covers grounds 1, 3, 5, 6, and 7.
(2) Whether from the Appellant and his wife’s depositions in Exhibits P2 and P3 which were sworn to on the 16th day of August 2007 and exhibits P4 (all of which were the title documents presented by the Appellant to convince the 1st Defendant of his (Appellant’s) ownership of the land in dispute) the Appellant can reasonably be said to be contesting the title of Edwin Akinsiku Osunkiyesi. This issue covens ground 2 of the grounds of appeal.
(3) Whether in view of the findings of fact of the Lower trial judge at page 164 of the record of appeal (last 2 paragraphs) and the first two paragraphs of page 165 of the record of appeal, the Appellant can be said to have established his claim of purchase of the land in dispute from Lasun Famaiye family to warrant the trial judge’s consideration of the principle of priority, This issue covens ground 4 of the grounds of appeal.
(4) Whether the learned trial judge was not justified in placing reliance on exhibit A1 and A2 in view of Exhibits P2, P3 and P4 (all coming from the Appellants) and which exhibits supported exhibits A1 and A2. This issue covens ground 8 of the grounds of appeal.
(5) Whether the combined effect of the Respondents proof of better title to the land in dispute and the Appellant’s leasing of the land to the 1st Defendant are not enough to entitle the Respondents to a claim of trespass and injunction. This issue covers ground 9 of the grounds of appeal.

This Court in Kalu v. Uzor (2006) 8 NWLR (Pt.981) 66 has held that it will generally confine itself to the issues raised before it by the parties in the determination of matters. However, where the issues formulated by the parties are fragmented, the Court would be entitled to distil other issues from the grounds of appeal filed. In such a case the Court of Appeal has the discretion to formulate issues from the grounds of appeal which will determine the vital questions between the parties. Where the issues formulated by an Appellate Court are derived from the grounds of appeal and are addressed by counsel in their briefs of argument, the need for the Court to call for address by the counsel to the parties on the issues formulated by the Court becomes unnecessary. See also Ifabiyi v. Adeniyi (2000) 5 SC 31. It appears to me that the issues for determination in this appeal having been fragmented; the Court should distil other issues from the grounds of appeal which are themselves fragmented and prolix. This appeal can in my view be resolved on the following issues:
(1) Whether the Respondents proved their claim to the land to be entitled to judgment.
(2) Whether the Appellant proved his counterclaim to be entitled to judgment.

Arguing the appeal, the Appellant submitted that the only relevant evidence in proof of the Respondents’ title to the land was that of hru1 and that the Respondents failed to discharge the burden of proof on them. This is because the burden of proof in a claim for declaration of title as in this case is on the party who seeks declaration and he must succeed on the strength of his own case and not on the weakness of the defendants’ case. That there are five ways of proving title to land as shown in Idundun v. Ohunmagba (1976) 9 – 10 SC 227. These are:
(a) By traditional evidence.
(b) By document of title;
(c) By various acts of ownership numerous and positive and extending over a length of time to warrant the presumption of ownership;
(d) By acts of long possession and enjoyment of the land and
(e) By proof of possession of adjacent land or connected land which renders it probable that he who is the owner of such adjacent land would in addition be the owner of the land in dispute.

It was submitted that the Respondents failed to plead and prove the origin of the title of Olalekan Balogun their vendor or grantor which was denied and that was fatal to their case. We were referred to Nwandiogbu v. Nnadozie (20011 6 NSCQR 943. The production of Exhibit A1 alone was not sufficient to discharge the burden. We were referred to Lawson v. Ajibulu (1997) 51 LRCN 1549 at 1572.

It was submitted that failure of the Respondents to plead and prove the origin of Olalekan Balogun’s title in Exhibit A1 rendered Exhibit A1 invalid legal evidence. Also Exhibit A2 was null and void, none of the people who signed it, having not been called as a witness. Also, Exhibit A2 was void having contravened Section 26 of the Land Use Act and Section 315 of the Institution. Reliance was placed on Onamade v. ACB Ltd (1997) 46 LRCN 117.

Exhibits A1 and A2, it was pointed out were tendered and admitted in evidence by the trial Judge subject to stamping. It was submitted that this condition precedent was not fulfilled by the Respondents before the same trial Judge considered and gave full legal value to them. Exhibit M, it was further submitted was not pleaded by the Respondents. Paragraph 14 of the Respondent’s consequential amended reply and defence to 2nd Defendant’s statement of defence and counterclaim was not such pleading.

That the Lower Court was wrong to find that the Appellant bought the land from the Pw1 for N800,000, it was submitted. That what the Appellant said was that he decided to settle the Respondents for the sake of peace.

It was submitted that the Appellant established by pleadings and evidence that he bought the land from Famaiye Lasun Family on 11th November 1977 by virtue of Exhibit P5 and he was also given Exhibits P6 and P7. Therefore the Lower Court was wrong to have come the finding that the Appellant was not contending the title of the Respondents’ father (E. A. Osunkiyesi). It was submitted that Exhibit A2 dated 30/11/1989 ranked below Exhibit P5 dated 11/11/1977. It was submitted that the vendor who sold the land in 11/11/1997 by virtue of Exhibit P5 had nothing to sell to the Respondent.

The Appellant, it was submitted, showed that he was the owner of the land and that Respondents’ vendor invaded it and was taken to Court and judgment entered in favour of Appellant as shown by Exhibit P7. It was submitted that the Lower Court was obliged to consider Exhibits P5, P6 and P7 tendered by the Appellant.

The Respondents, it was submitted were not entitled to the grant of reliefs 2 and 3 of their claim since they did not adduce evidence of unbroken exclusive possession of the land since 12/12/77 up to the time of institution of the action against the Appellant. So they could not maintain an action in trespass. The Appellant on the other hand, it was submitted, proved possession of the land since 1977.

It was further submitted that the Lower Court erred in law when it held that it agreed with the learned counsel for the Respondents that the story of the Appellant that he bought the said land from Famaiye Lasun Family is not true.

That the Respondents had the opportunity to controvert Exhibits P5, P6 and P7 and that Exhibits P6 and P7 cannot be manufactured.

It was submitted that the Respondents did not plead that the land was in urban area to entitle the Respondent to be issued a Statutory Right of Occupancy and the grant of that relief amounted to a breach of the Appellants Fundamental Right to fair hearing.

Finally, it was submitted that the Lower Court was wrong when it reached a decision or judgment without first considering the evidence and this amounted to breach of the Appellant’s right to fair hearing. Also that the Lower Court entered judgment in favour of the Respondent, before it considered the counterclaim of the Appellant which also amounts to a breach of the Appellant’s right to fair hearing.

On his part the Respondents’ counsel, submitted that the depositions in Exhibits P2 and P3 supported and corroborated the pleadings and evidence of the Respondents that their father bought the land first from Olalakan Balogun and later repurchased same from the Lasun Famaiye family as shown on Exhibits A1 and A2. It was submitted that Exhibits P2 and P3 support Exhibits A1 and AZ as well as the Respondent’s oral evidence. It was submitted that oral evidence becomes more credible where documentary evidence supports same. We were referred to Military Governor of Lagos State & Ors v. Adebayo Adeyiga (2012) 205 LRCN 1 at 50 – 51.

It was submitted that the evidence of the Appellant to the effect that he was forced to buy the land from the Respondents when the Respondents needed money and his further evidence that he bought the land from the original owner and that he became original owner since 11/11/1977 and tendering Exhibits 5 to buttress his assertion are nothing but a ruse and an attempt to pull wool over the eyes of the Court in view of the following facts:
i) As at 1977 when the Appellant claimed to have bought the land, he was a minor aged 14 years. At that age the Appellant’s capacity to enter into contracts was limited to necessities such as food and clothing alone. At that age the Appellant lacked the capacity to enter into the transaction leading to the execution of Exhibit 5. We were referred to Labinjoh v. Abake (1924) 5 NLR 33.
ii) The Appellant and his wife failed to depose to the fact that the Appellant derived title to the land in dispute from the Lasun Famaiye family when they were making the sworn affidavits Exhibits P2 and P3 when the Appellant was trying to convince the 1st Defendant of his title to the land.
iii) Why was the Appellant forced to pay the sum of N800,000 to the Respondents if actually he had earlier bought the land from the Lasun Famaiye family, the radical title owners?
iv) Why will the Appellant, a 47 year old legal practitioner with 16 years post-call experience part with N800,000 without obtaining a receipt or document to that effect.
v) How did the Appellant come about the alleged purchase from the Respondents’ father on 30th March 1995 when in actual fact the Respondents’ father died in 1993 as shown by Exhibit A3?

It was submitted that the failure of the Appellant to provide convincing and credible answers to these posers informed the conclusion of the trial court.

Learned counsel for the Respondents further asked how Exhibit P4 dated 30/3/95 could be receipt for payment of the sum of N800,000 in 2004.

It was submitted that the findings and conclusions of the Lower Court are unassailable. The findings and conclusions, it was submitted, were based on a thorough and proper assessment of the credibility of witnesses before the Lower Court.

It was submitted that it is the duty of the trial court to assess the credibility of witnesses. We were referred to Wachukwu v. Owunwane (2011) Vol 197 LRCN 73.

In both Exhibits P2 and P3, the Appellant and his wife, it was submitted traced his title to the land by deposing therein that he bought from the Respondents’ father. They swore further that the Respondents’ father in turn purchased the land from Olalekan Balogun and had to repurchase same from the Lasun Famaiye family of Odigbo.

That in a nutshell, Exhibits P2 and P3 are essentially in tandem with Respondents’ Exhibits A1 and A2 as well as the oral testimonies of the Respondents.

Learned counsel for the Respondents asked whether it can rightly be said that the Appellant who with his wife deposed to Exhibits P2 and P3 can be contesting the title of the Respondents’ father. It was submitted that Exhibits P2 and P3 coming from the Appellant further strengthen the oral testimonies of the Respondents that their father bought from Olalekan Balogun and had to repurchase same from Lasun Famaiye family of Odigbo.

The Appellant, it was submitted, must not be allowed to say that he bought the same land from Lasun Famaiye before the Respondents’ father bought. If he had bought the land from the Lasun Famaiye family what would have prevented him from deposing to that fact while dealing with the 1st Defendant?

It was submitted that the Respondents’ case relating to their proof of title of the land was more probable. Therefore there was no need for the Lower Court to resort to the principle of priority as postulated in Olukoya v. Ashiru (2006) ALL FWLR (Pt 322) 1499, cited by the Appellant.

It was submitted that the pleading and evidence on the Respondents’ root of title were supported by the Appellant himself and his wife in Exhibits P2 and P3 in which the Appellant is deemed to have admitted the Respondents’ root of title. We were referred to Oseni v. Bajulu & 2 Ors (2010) Vol. 178 L.R.C.N 26 at 45 and Ntuks & 9 Others v. N.P.A. (2008) Vol. 157 L.R.C.N 131 at 152.

It was submitted that proof of ownership is prima facie proof of possession. We were referred to Omotayo v. Co-Op Supply Association (2011) Vol. 202 LRCN 134 at 161 E.

It was submitted that the Respondents having established a better title to the land in dispute the Lower Court must as a matter of established principle of law grant their claim for trespass and injunction. We were referred to Wachukwu & Anor v. Owunwanne (2011) Vol. 197 LRCN 33 at 75.

The Appellant filed a reply brief in which he attacked the issues formulated by Respondents. Since the Court formulated its own issues for determination it is not necessary to consider the attack.

The Appellant more or less in the said reply brief re-argued his appeal. Since a reply brief is not the place to re-argue the appeal, it is not necessary also to consider it. I will therefore not consider it.

The case of the Respondents at the Lower Court was short. According to the only two witnesses who testified for the Respondents the land in dispute belonged to the father of the Respondents before his death. The father of the Respondents bought it from Lekan Balogun and was given a receipt (Exhibit A1). Later the family said the land sold to the Respondents’ father was family land. The Respondents’ father had to re-purchase it from the family. He did and was issued another receipt (Exhibit A2) dated 30th November 1989. The earlier receipt was dated 12/12/1977. The Respondents’ father died in 1993 and the Respondents inherited the land. Let me quote Pw1 a little. This is what she said at page 111 of the record of appeal:
“I took the 2nd Defendant as a lawyer and I don’t know how he leased the land to the 1st Defendant. The 2nd Defendant did not buy any land from my husband. It is not true that my husband sold the land to the 2nd Defendant and issue receipt dated 30th March 1995, my husband died in October 1993 and he could not have come back to sell the land in 1995.”

The 2nd Defendant is the Appellant. When Exhibits A1 and A2 were tendered, the Lower Court admitted them, subject to stamping-whatever that means. Although they were not subsequently stamped the Lower Court nevertheless relied on them to give weight to the case of the Respondent. Learned counsel for the Appellant took a swipe at the reliance on those Exhibits even though not subsequently stamped. I see nothing wrong with what the learned trial Judge did. Purchase of land can be proved by a purchase receipt or by agreement of sale or by any fact that shows that such transaction did take place. Where the purchaser has paid the purchase price to the vendor he has acquired and equitable interest in the land. See the decisions of this Court in Adepate v. Babatunde (2002) 4 NWLR (Pt.756) 99 and Ohiaeri v. Yusuf (2004) NWLR (Pt 855) 548. Exhibits A1 and A2 being receipts of purchase were properly admitted and there was nothing wrong in the trial court relying on them.

According to the Respondents, they contacted the Appellant to help them sell the land in dispute. To this end he collected photocopies of Exhibits A1 and A2 and survey plan to enable him do so.
He now turned round to claim the land.

Confronted with the claim and evidence of the Respondents, the Appellant in defence now cooked up all sorts of stories to establish that he was now owner of the land. The initial story he told to the 1st Defendant MTN Nigeria Communications was that he bought the land from the Respondents’ father in 1995 even though the Respondents’ father died in 1993. Providence has a way of exposing the sins that lie hidden in our souls. A dead man selling land to the Appellant. Not done, the Appellant and his wife proceeded to swear to an affidavit each that the land was bought by the Appellant from the dead person even though they correctly stated the person from whom the Late Engineer E. A. Osunkiyesi, Respondents’ father had bought which is not surprising since the Appellant had earlier been given photocopies of Exhibits A1 and A2. See Exhibit A6 to which purchase receipt and transfer of title to land dated 30/03/95, sworn affidavit of Alhaji H. A. Ogiren and sworn affidavit of Chief (Mrs) T. O. A. Ogiren both dated 16/8/2007 are attached. See particularly Exhibits P2 and P3 which the Appellant recognized as documents made by him and the wife. See also Exhibit P4, the purchase receipt showing that the Appellant bought the land in 1995.

The Appellant in his evidence in chief said he did not know Engineer Edwin Akinsiku Osunkiyesi from whom he purportedly bought the land in 1995. It is not surprising since at the time he bought, the seller was already late.
The Appellant’s other vendor was the Pw1. He claimed to have bought the land from the Pw1, wife of the late vendor who purportedly sold to him in 1995. There is no evidence that he paid her N800,000 for which he claimed to have purchased the land from her. Under cross-examinations he maintained that he purchased the land from the Pw1 and did not collect any document.

Then the Appellant claimed to have purchased the land in 1977 from the same family both his wife and himself had deposed that Respondents’ father bought from. Under cross-examination, he said that at the time he bought from that family too and about a month earlier, he was 14 years old.

It is clear from what I have shown above that the Appellant not only violently contradicted himself but presented the Court with some impossibilities as defence. It is not surprising that the Lower Court said he was confused and thoroughly confused. Undoubtedly, a confusion of the head arising from a corruption of the heart.

Confronted with this type of defence, no Court would rely on it.

Learned counsel for the Appellant claimed that the Lower Court shut its eyes to the evidence of purchase of the land in 1977 by the Appellant and the accompanying documents two judgments Exhibits P6 and P7. In the light of what I have stated above, the Lower Court rightly ignored the purported purchase receipt Exhibit P5 and the two judgments Exhibits P6 and P7 because the Lower Court was not entitled to choose among the three different vendors as to which of them actually sold the land to the Appellant. That is whether he, the Appellant bought the land in 1977 from the Lasun Famaiye family or from a dead person in 1995 or from the Pw1.

If the defence of the Appellant is rejected in its entirety as it was rejected by the Lower Court, then there could be nothing on the other side of the imaginary scale of justice.

On the other side of the scale, the Respondents led credible evidence in support of their claim.

Therefore issue 1 formulated by me is resolved in favour of the Respondents and against the Appellant.
The Appellant complained that the Lower Court first considered the claim of the Respondents before considering the counterclaim.

A counterclaim is a separate and distinct action and a counterclaimant like all other Plaintiffs must prove his claim against the person being counterclaimed before he can obtain judgment on the counterclaim. There is no need citing any authority in support of this well known principle of law because there is a rain of authorities. See however Ogbonna v. A – G Imo (1992) 1 NWLR (Pt.229) 647, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260.
On the counterclaim, the Lower Court stated thus:
“2nd defendant did not establish purchase directly from E. A. Osunkiyesi or the plaintiffs. He did not prove that he bought the land from Lasun Famaiye family”
I agree. That was a correct finding. Having failed to show that he purchased the land, the Lower Court correctly dismissed the Appellant’s counterclaim. In the light of this issue 2 formulated by me is resolved in favour of the Respondent and against the Appellant.

The two issues having been resolved in favour of the Respondents, this appeal in my view should be dismissed.

It is accordingly dismissed by me.

The judgment of the Lower Court is affirmed by me.

Respondents are awarded N50,000 costs to be paid by the Appellant.

SOTONYE DENTON WEST, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother James Shehu Abiriyi, JCA just delivered. I agree entirely with all the reasoning and conclusions of His Lordship.

By way of an addendum, it is an assault on reason that a piece of land is bought by one person three times. In his dealings with MTN Nigeria Communication, the Appellant said he bought the land subject matter of this action, from the Respondent’s father in 1995 even though the Respondent’s father died in 1993 as confirmed by Exhibit A3. It is impossible for a dead man to contract a sale after his death.

In Appellant’s examination-in-chief, he denied knowing the Respondent’s father he had earlier on claimed to have bought the land in question. In another breadth, he claimed to have bought the same piece of land for N800,000 from PW1 sometime in 2003/2004. It beats my imagination why the Appellant, a legal practitioner with 16 years’ post call experience would pay N800,000 for a parcel of land without obtaining a receipt or document to that effect.

Yet in another breadth; the Appellant claimed to have bought the land in question, from the family of Lasun Famaiye family in 1977, the same family that the Respondent’s father derived his title. These contradictions are so fundamental as they are glaring. It is indeed very unfortunate that a legal practitioner could descend so low to betray the trust reposed on him by fraudulently concealing relevant facts divulged to him by his client to play a fraud on his client. Legal practitioners’ relationship with his client is founded on utmost good faith. This betrayal of good faith must be strongly deprecated. See: Alhaji Mustapha Bukar Mulima & Ors. vs. Alhaja Aishatu Usman & Ors. (2014) 16 NWLR (Pt.1432) 160 @ 202 – 203 paras H – D.

For this and the more detailed reasoning ably marshalled out in the lead judgment, I also hold that the appeal lacks merit and is hereby dismissed in its entirety. I abide by all consequential orders, including orders as to cost.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.

Appearances

Alhaji H. A. OgirenFor Appellant

AND

Aderemi A. SuleimanFor Respondent