ALHAJI IDRIS ALAYA V. ENGR. ADEWUMI ADEMOLA ISSAC
(2012)LCN/5436(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/IL/34/2010
RATIO
“…ageless principle of nemo dat quod non habet, no one gives out what he does not have, see Ojengbede vs. Esan (supra); Omiyale vs. Macauley (2009) 7 NWLR (Pt. 1141) 597; Ibrahim vs. Osunde (2009) 6 NWLR (Pt. 1137) 382; Ashiru vs. Olukoya (2006) 11 NWLR (Pt. 990) 11.” Per OGBUINYA, J.C.A.
“A verdict of court of law is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence or it has occasioned a miscarriage of justice. Baridian vs. The State (supra); Nnorodim vs. Ezeani (supra); Lagga vs. Sarhuna (supra); Onyekwelu vs. Elf pet (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1270) 217; Joseph vs. State (2011) 16 NWLR (Pt. 1273) 226.” PeR OGBUINYA, J.C.A.
“There is no gain saying the fact that the Supreme Court, being at the pinnacle of the judicial ladder, its decisions enjoy the monopoly of finality in any proceedings in the Nigerian legal system. It is a right donated to the court by section 235 of the 1999 Constitution, as amended, see Atolagbe vs. Awuni (supra), Ada vs. NYSC (2004) 13 NWLR (pt. 891) 639; Ibero vs. Obioha (1994) 1 SCNJ 44; Dairo vs. UBN Plc (2007) 16 NWLR (Pt. 1059) 99.” Per OGBUINYA, J.C.A.
“The other principle, issue estoppel, which is narrower in scope, shares similar objects/purpose, conditions and effect with res judicata. It is an impediment which bars or prevents a party from relitigating a particular issue which has been isolated and raised in a particular proceeding and finally determined therein, see Inakoju vs. Adeleke (supra); Omnia (Nig.) Ltd vs. Dyktrade Ltd. (supra); Bamegbegbin vs. Oriare (supra) 1 (2009) 13 NWLR (Pt.1158) 370; Adone vs. Ikebudu (supra); Dim vs- Enemuo (2009) 10 NWLR (pt. 1149) 353; Bwacha vs. Ikenya (2011) 3 NLWR (pt. 1235) 610.” Per OGBUINYA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI IDRIS ALAYA Appellant(s)
AND
ENGR. ADEWUMI ADEMOLA ISSAC Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the judgment of the High Court of Kwara State sitting in Omu-Aran, Coram, Hon Justice Mahmud Abdulgafar, in suit No KWS/OM/64/2008 delivered on 19/10/2009 wherein it granted the claimant’s/respondent’s claims and dismissed the defendant’s/appellant’s counterclaim.
As can be gleaned from the processes filed, the facts of that case, which culminated into this appeal, are wendy. The subject-matter of the case, situated at Tanke Area, Ilorin Kwara state, had, between 1993 and 2007, witnessed the first tranch of court action/litigation which meandered from the High court of Kwara state to the Supreme Court. In that first case, one Pastor J. A. Akinduro claimed to be the owner of the said parcel of land. The Pastor, as a plaintiff, then instituted an action against the appellant, as a defendant, in the High court of Kwara State in which he claimed for declaration of title, injunction and damages over the said piece of land. The High Court awarded Judgment in favour of the plaintiff pastor. The present appellant appealed against that decision to this court, Kaduna Division, which upturned/reversed the judgment of the High court. The Pastor’s appeal to the Supreme Court was a stillborn in that the apex court affirmed the judgment of the Court of Appeal.
The appellant, armed with the judgment of the Supreme Court, took steps to enforce that decision by taking possession of the land. Meanwhile, the respondent claimed that he bought the land from the Pastor after he obtained judgment in the High court of Kwara state on 30/06/1993. It was at that juncture that, the respondent instituted the action in the lower court on 16/04/2008 and claimed declaratory and injunctive reliefs and damages against the appellant over the land. In a swift reaction to that suit, the appellant filed his statement of defence wherein he prayed the lower court to dismiss it as being unmeritorious. Also, the appellant incorporated a counter-claim in which he counter-claimed for damages for trespass and injunction against the respondent over the land. The respondent filed reply to the appellant’s statement of defence and counter-claim. Sequel to that, there were pre-trial proceedings as required by the Kwara State High Court (Civil Procedure) Rule, 2005 (hereinunder abridge to “the Rules”).
Thereafter, the case went into a full-scale trial. The respondent testified in person, as PW1, without calling any other witness, and tendered nine documentary evidence, exhibits 1 – 9, to prove his claims. Similarly, the appellant testified in person, as DW1, fielded no other witness, and tendered three documentary exhibits, exhibits 10 – 12, in disproof of the respondent’s claim and in proof of his counter-claim.
After the close of the cases for the respective parties, the parties filed written addresses which were duly adopted by their learned counsel in line with the provisions of the Rules. The lower court delivered its judgment on 19/10/2009 wherein it granted the respondent’s reliefs, declared him the holder of the statutory right of occupancy in respect of the land, restrained the appellant and his agents from disturbing the respondent’s enjoyment of same and awarded N50,000 damages against the appellant for trespass on the land. The lower court dismissed the appellant’s counter-claim as lacking in merit. The appellant was, obviously, dissatisfied with the verdict of the lower court. Hence, the appellant, on 28/10/2009 filed a notice of appeal hosting seven grounds, encapsulated on pages 232-239 of the record of appeal, and prayed this court to: “(i) Allow the appeal (ii) Dismiss the claims of the claimant/Respondent (iii) Grant the reliefs adumbrated on the Defendant/Appellant’s counter claim”. Following that, the parties filed and exchanged their briefs of argument in the manner required by law.
On 14/03/2012, the appeal was heard. In this wise, learned counsel for the appellant, K. K. Eleja, Esq., on that day, adopted the appellant’s brief of argument, filed on 02/03/2011 and the appellant’s reply brief of argument, filed on 01/03/2012, as representing his arguments in support of the appeal. He urged the court to allow the appeal. In the same vein, learned counsel for the respondent, Lanre Badmus, Esq., adopted the respondent’s brief of argument, filed on 20/07/2011, but deemed filed on 23/02/2012, as forming his submissions against the appeal. He prayed the court to dismiss the appeal.
The appellant, in his brief of argument, crafted three issues for determination of the appeal to wit:
“1) whether the trial court was not in error in holding that the issues in the case on appeal and those in the previous suit are different and in refusing to uphold the defence of estoppel per rem judicata and issue esoppel.
2) Whether the trial court was not in error having regard to the facts at its disposal especially exhibits 10, 11 and 12 that the alleged transfer of the land in issue from pastor J. A. Akinduro to the Respondent, the issuance of Right of occupancy and certificate of occupancy was not caught by the principles of lis pendens so as to render same ineffectual; and
3) Whether the trial court, having regard to the pleadings and the fact at its disposal, was right, in law, in granting the reliefs sought by the respondents while dismissing the appellant’s counter claim”.
On the other hand, the respondent, in his brief of argument, distilled three issues for determination of the appeal viz:
“(a) Whether the Trial court was right in holding that the issues in the case on Appeal and those in the previous suit are different and in refusing to uphold the Defence of estopel (sic) per rem judicata and issue estoppels.
(b) Whether the Court was right to have held that the safes of land from pastor J. A. Akinduro to the Respondent and the assurance (sic) of Right of occupancy and certificate of occupancy was not caught by the principles of lis pendens.
(c) whether the court was right to have granted the Respondent’s reliefs and dismissing Appellant’s Counter Claim”.
A juxtaposition of the appellant’s issues with those of the respondents, clearly, shows that they are symmetrical The appellant’s issue one mirrors the respondent’s issue one. The respondent’s issue two can be, duly, subsumed under the appellant’s expansive issue two. The appellant’s issue three is the same with the respondent’s issue three, one a clone of the other. As a result of those striking similarities, I will consider the appeal on the appellant’s issues for determination taking into account that he is the one peeved by the decision of the lower court.
Argument on the issues
Issue One.
Learned counsel intimated the court that the issue was targeted at an examination of the correctness or otherwise of the holding of the lower court that the issues in the case now on appeal and those in the previous cases, which led to exhibit (2) were not the same. Learned counsel, then, submitted that the lower court was on a very slippery premise in reaching that conclusion. He drew the court’s attention to the finding of the lower court, on page 221 of the record of appeal, which he reproduced, and posited that the lower court was in palpable error in that finding. He reasoned that a exhibits 10, 11 and 12, clearly revealed that the live issue in the previous case, between Pastor J. A. Akinduro, the respondent’s purported predecessor-in-title, and the appellant was whether the land in issue was sold to the said pastor so as to entitle him claim against the appellant. He referred the court to the reproduced reliefs in the two cases, the previous and the later one that led to the appeal, and paragraphs 4, 5, 7, 8, 9 and 10 of the respondent’s statement of claim and maintained that the issue in the two cases was one and same-who owned the same piece of land in dispute, the respondent’s alleged predecessor-in-title, pastor J. A. Akinduro, or the appellant. He specifically, called the court’s notice to the reproduced paragraph 16 (2) of the respondent’s statement of claim, and took the stand that all other reliefs sought by the respondent in his own case were dependent on that quoted relief.
Learned counsel further submitted that a trial court, seized with facts of a matter, had an abounding duty to give reasons for whatever finding made otherwise it would be acting contrary to the dictates of its sacred office by jumping into conclusion without laying the facts as to how it had come to that conclusion. He referred to the case of A. G. Leventis (Nig) Plc vs. Akpu (2007) 17 NWLR (pt. 1063) 447. He insisted that the lower court did not follow that principle of law as it, woefully, failed to give the basis for its finding that the issue in the two stated cases were different; adding that it merely compared the claims in these cases and came to the conclusion that the issues in them were different.
It was part of learned counsel’s submission that that finding of the lower court, that the issues in two cases were different, was utterly perverse and liable to be set aside because it shut its eyes to the obvious fact, which amply supported the appellant’s case, that the issue in the two cases was the same. He cited the cases of Bardian v. The State (1994) 1 NWLR (Pt. 320) 250 at 260; Nnorodim vs. Ezeani (1995) 2 NWLR (Pt. 378) 448 at 467; Lagga vs. Sarhuna (2008) 16 NWLR (Pt. 1114) 427 at 474 on what constituted perverse decision. He maintained that the decision of the lower court was perverse and occasioned miscarriage of justice to the appellant because it was due to that finding, that the issue in the two were different, that it led it to overrule the appellant’s contention that the case was caught by the principles of res judicata and issue estoppels. He reminded the court, by reproducing the finding of the lower court on page 226 of the record of appeal, and noted that it agreed the subject-matter in the two cases were the same and that the respondent was a privy to pastor J. A. Akinduro before the Supreme Court in the previous case. He insisted that the issues in the two cases were same and that the pleas of estoppels per rem judicatam and issue estoppel applied to the respondent’s case to justify its dismissal without much ado. In support of that view, he relied on the cases of Ezeanya vs. Okeke (1995) 4 NWLR (pt. 388) 142 at 1 61 -1 62; Adigun vs. Governor Osun State (1995) 3 NWLR (Pt. 38s) 513 at 542.
Learned counsel contended that the doctrine of issue estoppel, also, applied to the case since the question as to whether or not the appellant transferred the land in issue to pastor J. A. Akinduro, which was the live issue in the two cases, had been decided by the Supreme Court, in the previous case, against late pastor J. A. Akinduro and, consequently, dismissed the case in its entirety. He noted that since that issue was decided by the Supreme Court, the respondent became precluded, by virtue of that decision, from raising it for all times and purposes. He placed reliance on the cases of Inkoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 631; Omnia (Nig.) Ltd. vs. Dyktrade Ltd (2007) 15 NWLR (pt.1058) 576 at 624-625.
He further contended that all the ingredients for a successful invocation of the principle of issue estoppel were present in the respondent’s case and the lower court ought to have upheld the applicability of the principle. He urged the court, by virtue of section 15 of the Court of Appeal, to uphold the applicability of the principle by dismissing the respondent’s case in its entirety.
He concluded his submission on the issue by submitting that the upholding of either of the defences of res judicata or issue estoppels was capable, on its own right, of leading to a verdict of dismissal of the respondent’s case in its entirely; adding that in the event of either or both of the defences being found applicable, the effect would be to dismiss his case in its entirely. Learned counsel prayed the court to resolve the issue in favour of the appellant.
For the respondent, learned counsel informed the court that issue one was aimed at testing the veracity or otherwise of the trial court’s holding that the issues in the two cases were different so that res judicata and issue estoppel would not avail the appellant. He described the lower court’s holding as versatile and went on to state the laid down conditions which would make the plea of estoppel per rem judicata to succeed in an action to include: (a) That parties or their prives must be the same in both the previous and present proceedings (b) The claim or issue in dispute in the two cases must be the same (c) The subject matter in the two cases must be the same (d) The decision relied on to support the plea must be valid subsisting and final (e) The court that gave the decision the previous decision in must be a court of competent jurisdiction. He added that all the conditions must exist to sustain the plea so that failure to satisfy any of them meant its failure in its entirety.
Learned counsel argued that the plea made by the appellant must fail, and did fail, because even though the parties, in the two cases, were the same, the court was competent, the decision was final, but the criteria of issues and reliefs were not satisfied. He repeated that to sustain the plea, all the conditions must be satisfied. In support of that argument, he relied on the cases of Akote vs. Along (2009) ALL FWLR (Pt. 468) 295 at 201; Adone vs. Ikebudu (2001) FWLR (Pt.72) 1893 at 1895; 1896; Bamegbegbin vs. Oriare (2009) All FWLR (Pt. 484) 1461 at 1463.
Learned counsel called the court’s attention to the holding of the lower court, on page 227 of the record of appeal concerning the point that the issue in the two cases was different. He, also, drew the court’s attention to the reason, on page 227 of the record of appeal, given by the lower court in holding that the issue in the two cases was different- whether it was the same evidence that would support the two actions.
He, then, submitted that in determining whether the issue, the subject-matter of the two actions and the parties were the same, the court would study the pleadings, the proceedings and the judgment in the previous action. He posited that going through the pleadings and evidence given in the proceedings, it was obvious that the issues in the two suits were different so that the plea must fail as held by the lower court.
Learned counsel gave some examples to support his argument. He stated that the appellant in the previous suit did not counter-claim, but counter-claimed in the later one, the writ and the statement of claim and the document tendered were different. It persisted that the issues were, totally, different and it was trite that the plea must not stand. He placed reliance on the cases of Adone vs. Ikebudu (supra) and Nkuks vs. N.P.A. (2007) 5-6 SC 1 at 16. He noted that the appellant’s submission that the lower court did not give reason for its finding, that the issue in the two cases was different, did not hold water given the reason he explained above that it gave.
He described that lower court’s reason as viable and supported it with the case of Nigerian Air Force vs. Akukatia (2008) All FWLR (Pt. 441) 967 at 972. Learned counsel insisted, based on the above arguments, that the appellant did not fulfil all the conditions which made the plea to succeed. He urged the court to resolve the issue in favour of the appellant. On points of law, learned counsel for the appellant argued, per contra, that the fact that there was no counter-claim in the previous suit did not alter the issues in the two cases nor did the fact that different documents were tendered make the issues therein different. Learned counsel cited all the cases cited by the respondent on issue one and maintained that they were correctly decided, but inapplicable to the case in hand. He urged the court to resolve the issue against the respondent.
Issue Two.
On the issue, learned counsel for the appellant took the view that the issue examined the correctness or otherwise of the view and conclusion reached by the lower court that the purported acquisition transfer by the respondent from pastor J. A. Akinduro and the right of occupancy and certificate of occupancy, predicated on that purported acquisition, was not caught by the principle of lis pendens and that same was in order.
Learned counsel, then, set out certain facts which he considered indisputable and undisputed, from the totality of the materials before the lower court, to wit:
(1) That the Appellant herein was/is the owner of a wide expanse of land at Tanke, Ilorin, part of which form the basis of the litigation in the earlier suit and the case of appeal.
(2) That one pastor J. A. Akinduro acting under the impression that he bought the particular piece of land in dispute from the appellant started construction on same.
(3) That the appellant herein went to the land and prevented the workmen of the said pastor J. A. Akinduro from carrying on with developments on the land.
(4) That pastor J. A. Akinduro felt aggrieved by the appellant’s conduct and accordingly instituted a case at the Kwara state High court against the appellant herein, claiming those reliefs that are reproduced in exhibits 10, 11 and 12
(5) That the Kwara State High Court in its decision of 30th June 1993, entered judgment in favour of pastor J. A. Akinduro as shown in exhibit 10.
(6) That being aggrieved by the said decision, the appellant herein filed a Notice of Appeal dated 26th day of August 1993 to the court of Appeal Kaduna, which said court in its judgment of 24th February 1998 allowed the appeal and dismissed the claims of pastor J. A. Akinduro while also awarding a gratuitous relief to the said pastor J. A. Akinduro. The judgment is exhibit 11 in this proceeding.
(7) That pastor J. A. Akinduro appealed to the Supreme Court against the decision in exhibit 11 while the appellant herein also cross appealed against the gratuitous award made in favour of the said pastor J. A. Akinduro.
(8) That the supreme court, in its judgment of 22nd day of June 2007, dismissed the appeal of pastor J.A. Akinduro while it allowed the cross appeal of the appellant herein.
(9) That it was after this decision and in a bid to prevent the appellant herein from levying execution that the respondent herein wrote exhibit 3 to the defendant/appellant stating that he had acquired the said piece of land in dispute from pastor J. A. Akinduro by virtue of an agreement which was admitted as exhibit 1 before the trial court.
(10) That the respondent also purportedly obtained an approval of grant of Right of Occupancy which was admitted as exhibit 5 and subsequently the Certificate of Occupancy which was admitted as exhibit 4 before the trial court.
(11) That the respondent was aware of litigation on the matter as he stated that pastor J. A. Akinduro handed over to him exhibit 10 the judgment of the High Court as at the time of the purported purchase.
(12) In sum, the purported purchase, preparation of the land agreement, exhibit 1, issuance of the Certificate of Occupancy, exhibit 4 and approval of grant of Right of Occupancy, exhibit 5, took place between the date of judgment of the High Court and the determination of the appeals by both the court of appeal and the Supreme Court.
Learned counsel submitted that it was against the foregoing backdrop that the appellant pleaded in paragraph 10 of his statement of defence that everything done by the respondents was caught by the principle of lis pendens. He reproduced the said paragraph and persisted that the appellant adduced evidence in support of that averment both in his written deposition and oral testimony as well as the evidence of the respondent under cross-examination to the effect that the transactions conducted on the land were caught by the principle of lis pendens as shown on page 128 of the record of appeal and in paragraph 6 of his (respondent’s) witness deposition.
He demonstrated how and why the lower court came to the erroneous conclusion that the case was not caught by the principle of lis pendens to include: That the appeal which resulted in exhibit 11 was filed in 1996 and that as at 14/10/1994 when the land was sold to the respondent’s by pastor J. A. Akinduro there was no lis pending in any court for lis pendens to apply. That even though the certificate of occupancy’ dated 16/10/1997, was caught by the principle since the approval for its grant was dated 03/05/1996.
He reproduced the findings of the lower court as shown on pages 229-230 of the record of appeal.
Learned counsel reasoned that the conclusion of the lower court was perverse and should be set aside for the reasons he offered as follows: That the respondent was aware that there was a case on the matter as he said he was given a copy of the judgment, exhibit 10, by Pastor J. A. Akinduro. That the High court, which gave exhibit 10, was not the final court on the matter and the respondent was presumed to be aware of the maxim, caveat emptor. That an appeal was a continuation of a trial matter such that litigation on a particular subject-matter would not be treated as having come to an end until after pronouncement on it by the Supreme Court. He relied on the case of Tinubu vs. I.M.B Securities Plc (2001) 16 NWLR (pt. 740) 670. He insisted that the lower court was wrong to hold as it did having regard to the provisions of sections 240, 241 and 235 of the 1999 constitution, as amended. He further insisted that only a final decision of the Supreme Court on a matter which could absolve a party, who was aware of a High court proceedings, from the applicability of the principle of lis pendens.
Learned counsel argued that, contrary to the view of the lower court on lack of appeal when the land was purchased, the case of the respondent on pleadings was that he was not informed of the existence of an appeal against the High Court judgment, exhibit 10. He added that it was the lower court that raised the issue of lack of appeal and used it as the basis for deciding that the principle of lis pendens was not applicable. He noted that the issue of ignorance of the law pleaded by the respondent was not congnisable in law and referred to the case of Agubiobo vs. Okagwe (2001) 15 NWLR (pt. 731) 502 at 535. He pointed out that the lower was in error in relying on the evidence of the appellant under cross-examination to conclude that the appeal was filed in 1996 given the provision of the Evidence Act which prescribed production of appropriate court process as evidence of what was contained therein. He referred to the further evidence of the appellant under cross-examination, on page 131 of the record of appeal, to the effect that he saw the respondent on the land and cautioned him against doing anything therein.
He reiterated the point that the lower court was in error in trying to create an imaginary lacuna as to the time as to the alleged delay in filing the appeal. He maintained there being an appeal, which was heard and determined in favour of the appellant in exhibit 11, negated the alleged gap between the time the exhibit 10 was delivered and when the appeal was filed. He placed reliance on the case of Dan-Jumbo (1999) 11 NWLR (Pt.627) 445 at 456.
Learned counsel further argued that the express averments on the principle of lis pendens lite in paragraphs 9 and 10 of his statement of defence were never expressly, controverted by the respondent in his reply to the statement of defence and counter-claim so that the principle was admitted by implication. He repeated the point that the lower court raised the issue of the alleged date of filing the appeal and thereby set up a new case for the respondent; adding that it was illegal for the lower court to do that as its duty was to decide the submitted to it by the parties for adjudication. He cited, in support of that argument, the cases of Adeniji vs. Adeniji (1972) 4 SC 10; Ranx Xerox (Nig.) Ltd. vs. Centrex (Nig.) Ltd. (1995) 1 NWLR (Pt. 374) 703; Nitel Plc v. Rock Onoh (1995) 2 NWLR (pt. 378) 473.
He took the view that the court should intervene with the finding of the lower court that the principle of lis pendens was not applicable to the case because it was perverse in the extreme and occasioned a grave miscarriage of justice on the appeal. He relied on the case of Omomeji vs. Kolawole (2008) 14 NWLR (Pt.1106) 180 at 203 and 207. He prayed the court to hold that the principle of lis pendens applied to the case and resolve issue two in favour of the appellant. On behalf of the respondent, learned counsel submitted that the two exhibits, sale agreement and certificate of occupancy, were not caught by the principle of lis pendens and so valid for the subject-matter of the case. He stated that the judgment of the High court was entered on 30/06/1993 and, from the pleadings and evidence of both parties in the lower court, the respondent bought the land on 14/10/1994. He added that the appellant did not appeal against that judgment until sometime in 1996, well over three years, and that although the appellant denied that the suit was not filed in 1996, he called on the court to take judicial notice of the time of filing which was even apparent from the suit number.
Learned counsel further submitted that there was no pending suit during the time the land was sold; adding that there was a decision of the High court in favour of the respondent’s predecessor-of-title in that previous case and acting on that judgment and on the belief that the appellant had accepted the court’s verdict in view of his ‘non-appeal’ against the decision sold the land to the respondent. He reasoned that both in equity and common law, a suit would never be caught by lis pendens until service of process; noting the the appellant never affirmed in his statement of defence and testimony that he served the respondent with notice of appeal, but only stated that he told him, the respondent, that he owned the land which could be owned by anybody. He urged the court to hold that in view of the non-service of the notice of appeal on the respondent after the judgment in 1993, the principle of lis pendens would not avail the appellant, relying on the case of Nig. Ind. Dev. Bank vs. Kan Biscuit Co. Ltd (2008) All FWLR (pt. 427) 67 at 71.
He contended that the purport of lis pendens was to prevent transfer of any property while a suit remained pending. He persisted that there was no pendency in that case since it was determined in 1993 and there was no appeal until 1996.
He queried: how many years would the respondent’s predecessor-or-title wait or hold on for the appellant to act over a meritorious judgment? He, then, posited that the equity would only aid the vigilant, those watchful and not those asleep. He insisted that the appellant was, obviously, asleep for over three years before he verbally intimated the respondent of an appeal against exhibit 10. He referred to the case of Network Security Ltd. vs. Dahiru (2008) All FWLR (Pt. 419) 475 at 483.
He further contended that the respondent innocently bought the land acting on exhibit 10 given to him by his predecessor-in-title. He stated that the principle of laches, essentially, consisted of substantial lapse of time coupled with enforcement of a claim. He enumerated the factor that must exist to involve laches to include: (a) Knowledge of the plaintiff of his right (b) Delay by the plaintiff in instituting an action. He relied on the case of Lamidi Ige vs. Alhaji Fabohun (2002) FWLR (Pt. 127) 1140 at 1147. He repeated that the appellant had the knowledge of his right of appeal against the judgment of the High Court within 90 days after its delivery, but he indolently and intentionally refused to do so on time and two years after the sale, he ran to the Court of Appeal. He persisted that if a party had a case to persecute slept on his right and, unduly, delayed he would be caught by laches. He cited the case of Okeniyi vs. Akanibi (2002) FWLR (pt. 84) 113 at 117 in support of the argument.
Learned counsel reiterated the point that there was no pending suit when the land was sold to the respondent so that the principle would not avail the appellant. He described lis pendens to mean a pending action or controversy in court, particularly in relation to the subject-matter and for the principle to apply the party relying on it must prove the following:
(a) The object of the suit must be to recover or assert title to a specific properly. (b) The property must be real property. (c) At the time of the sale of the property, the suit in question must be pending. He added that if those conditions were not met, then the principle of lis pendens would fail. In support of that argument, he referred to the cases of Olori Otors & Co. vs. UBN Plc. (2006) All FWLR (pt.318) 732 at 746 and Ekene vs. I.M.B. Nig. Ltd (2001) All FWLR (pt. 349) 1053 at 1053 at 1057. He distinguished the case of Dan. Jumbo vs. Dan-Jumbo (supra), cited by the appellant, as inapplicable to the case in hand in that in that case there was a pending appeal unlike in the latter one. Learned Counsel, based on the above submissions urged the court to hold that the principle did not avail the appellant and to resolve the issue in favour of the respondent.
On points of law, learned counsel contended, regarding take judicial notice of appeal number of the previous suit, that whereas notice of appeal would be filed at the registry of the High Court, appeal number would be assigned by the Court of Appeal registry after record of proceedings must have been complied and transmitted to the Court of Appeal. He added that the argument of the respondent tending to show that because of alleged time lag between the date of judgments of the High court and the Court of Appeal, the principle of lis pendens was inapplicable was misconceived; appeal being a continuation of an original suit. He cited the case of Efet vs. INEC (2011) 7 NWLR (Pt.1247) 423 at 460 in support of the argument. Learned counsel recited all the cases cited by the respondent on issue two and described them as inapplicable to the case in hand.
Issue three:
Learned counsel reproduced the findings of the lower court in awarding the respondent the reliefs claimed, on page 230 of the record appeal, and remarked that it relied on exhibits 1 and 2 to show that Pastor J. A. Akinduro acquired the land from the appellant and transferred same to the respondent. He posited that the lower court could not in view of exhibit 12, the Supreme Court decision, review the case and upturn that decision. He referred the court to exhibit 12. He, also, referred the court to the averments in paragraphs 4, 5, 6, 7 and 8 and claims of the Pastor J. A. Akinduro’s statement of claim in the previous case and those counter averments in paragraphs 3, 4, 5, 6 and 7 of the appellant’s statement of defence in that previous case, reproduced all of them, traced the history of that case from the High court to the supreme court and persisted that exhibit 12 was a final pronouncement on the land in issue between Pastor J. A. Akinduro, from where the respondent claimed to have derived title to the land, and the appellant. Learned counsel drew the court’s attention to the resume of exhibit 12 as contained on page 96 of the record of appeal and insisted that the Supreme Court finally pronounced that the respondent’s predecessor-in-title was not entitled to the land and that what the lower court did amounted to sitting on appeal on the decision of the Supreme Court and upturning its decision on the merit. He described what the lower court did as a constitutional sacrilege and judicial impertinence premised on its flagrant disregard for settled hierarchy of courts. He persisted that the Constitution has settled the finality of the Supreme Court’s judgment and not subject to review by any other court. In support of the contention, he cited the cases of Atolagbe vs. Awuni (1997) NWLR (pt. 522) 536. He added that what the lower court did to exhibit 12 amounted to investigation which it had no power to do. He referred to the case of Iwo LG vs. Adigun (1992) 6 NWLR (pt.250) 723 at 743. He further added that what the lower court did was an indirect way of saying that the judgment of the Supreme Court was reached per incuriam which it had no power to do. He relied on the case of Onyeamaizu vs. Ojiako (2000) 6 NWLR (Pt.659) at 40 – 41. He concluded that the above points were sufficient to show that the lower court’s conclusion to award the claims to the respondent should be set aside.
Learned counsel further submitted that the lower court was wrong to award the reliefs to the respondent in that those reliefs were declaratory which he must establish his entitlement to them and not to rely on weakness or admission by the appellant. He cited the cases of Okedare vs. Adebara (1994) 6 NWLR (Pt. 349) 157 at 171 – 172; Ogunjumo vs Ademolu (1995) 4 NWLR (pt. 389) 254; Onwugbufor vs. Okoye (1996) 1 SCNJ 1 at 23. He observed that if the lower court had been guided by that principle of law, it would have declined any relief to the respondent since he failed to establish his entitlement to them.
He noted that of the five ways of proving title to land, the respondent relied on purchase from Pastor J. A. Akinduro. He took the view that on the basis of exhibit 12, Pastor J. A. Akinduro had no title to the land so that he had no title to transfer to the respondent on the principle of nemo dat quod non habet, nobody could transfer what he did not have, relying on the case of Ojengbede vs. Esan (2002) FWLR (Pt. 90) 1406 at 1427 – 1428.
Learned counsel further contended that the respondent alleged ownership of the land in issue and he had an imperative duty to prove not only possession, but a better title than that of the appellant. He cited in support of that contention, the case of Olukoga vs. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 527. He fosited that the respondent failed, woefully, to establish any title to the land in dispute is his root of title was pound faulty in exhibit 12 so that the lower court ought to have dismissed his case in its entirety. He referred the court to the case of Dada vs. Ogunremi (1967) NWLR 181; Akinduro vs. Alaya (2007) 15 NWLR (Pt. 1057) 312 at 332.
He prayed the court to substitute a verdict dismissing the respondent’s case.
Regarding the counter-claim, learned counsel held the view that the lower court was in gross error in dismissing it. He reasoned that the title of the appellant to the land in issue was never in question since the respondent traced the title of his supposed predecessor-in-title to the land to the appellant. He relied on paragraph 7 of the respondent’s statement of claim on page 4 of the record of appeal. He added that the respondent’s contention that the appellant parted with his title to pastor J. A. Akinduro was untenable by virtue of exhibit 12.
Learned counsel submitted that the lower court ought to have drawn appropriate inference of the appellant’s ownership of the land from the facts and materials before it. He referred to paragraph 10 of the respondent’s statement of claim, on page 4 of the record of appeal, where he averred writing a letter of plea to the appellant through his counsel in addition to other personal contact to settle the matter amicably. He added that the respondent furnished the averment with oral testimony and tendered exhibit 6 as evidence of the step he took in acknowledgment of the appellant’s title on the land. He maintained that those materials strengthened the more the appellant’s title over the land He lamented that the lower court failed to use those materials in hastily concluding that the counter-claim was not proved He described the decision of the lower court, dismissing the counter-claim, as perverse because it shut its eyes to proved and obvious facts in favour of the appellant. He placed reliance on the case of Nnorodin vs. Ezeani (1995) 2 NWLR (pt. 378) 448 at 467.
Learned counsel noted that the certificate of occupancy, exhibit 4, and the approval for a grant of it, exhibit 5, to the respondent weighed heavily in the mind of the lower court in granting the respondent’s claims and dismissing the appellant’s counter claim. He, stoutly, argued that those documents, exhibits 4 and 5, by themselves would not confer indefensible title to land; explaining that where a party, like respondent, could not establish a pre-existing valid title to the land before their issuance they would be useless he relied on the case of Ofoeze vs Ogugua (1996) 6 NWLR (pt. 455) 451 at 461 for that argument.
He took the view that for the appellant to succeed on his counter claim, his duty was to demonstrate that he never transferred his right/interest to Pastor J. A. Akinduro since both he and the respondent acknowledged the original ownership of the land by the appellant. He maintained that the corollary of the above was that judgment of the lower court was rendered against the weight of evidence proffered by the parties and that the case of the appellant was corroborated, inferentially, by the respondent. He contended that, whilst a judgment of a trial court would not be set aside merely because of commission of certain errors, it was axiomatic that same would be set aside where there had been errors that, occasioned a miscarriage of justice on the appellant as happened in the case in hand. Learned counsel, finally, prayed the court to set aside the judgment of the lower court entered for the respondent and, in its stead, grant the reliefs in the appellant’s court.
Contrariwise, learned counsel for the appellant submitted that the lower court was right to have dismissed the appellant’s counter-claim because he was a mere trespasser. He stated that from the pleadings and testimonies of parties, it was clear, vide exhibit 2, that the predecessor of the respondent bought the land from the appellant and that from his shaky testimony he actually sold the land to him. He referred to the judgment of the lower court where it resolved the point clearly.
Learned counsel argued that the appellant’s arguments on the issue three amounted to bringing up fresh issue what he did not talk about in his testimony or written address. He insisted that a fresh point not taken in the lower court would be incompetent unless prior leave was obtained except if the issue concerned jurisdiction. He persisted that those fresh points, contained on pages 35-52 of the appellant’s brief, did not concern jurisdiction and he urged the court to hold them as incompetent and that the lower court was right to have dismissed the counter-claim as the appellant was a trespasser.
He referred the court to the case of Afolalu vs. State (2008) All FWLR (Pt.446) 1882 at 1890; In re: Ogundahunsi (2008) All FWLR (Pt. 420) 671 at 685 to support to his argument.
On points of law, learned counsel for the appellant contended, on the contrary, that no new issue was raised by the appellant as the appellant’s submissions related to the issues which were agitated before the lower court which included: the issue of estoppels, the entitlement or otherwise of the respondent to the reliefs awarded to him by the lower court and whether-the appellant’s counter-claim was made out. He posited that the arguments canvassed by the appellant on issue three arose from the materials at the disposal of the lower court including, but not limited, to exhibits 11 and 12 tendered by the appellant. He reiterated to the cases, relied on by the respondent on the issue, and persisted that they were cited out of con. He referred his prayer for the resolution of issue three against the respondent.
Resolution of the issues.
As a matter of law, I will take off with a consideration of issue one. This is because it is a threshold and fundamental issue of jurisdiction. It is a vitriolic attack on the jurisdiction of the court to entertain the respondent’s action on account of estoppels, estopel per rem judicatam, res judicata, and issue estoppel.
The expression, estoppel per rem judicatam, which has acquired the sobriquet, “res judicata”, traces its lexical roots to Latin Language in the original term of res adjudicata. Res judicata, now a common place term in the Nigerian legal system, simply connotes, “a thing adjudicated.” The very essence of the principle of res judicata is that a verdict that was previously handed down in the court of law would constitute a bar to another present action in the same terms. It is a principle that is grounded on a public policy with the aim to put an end to litigation on a particular subject-matter between the same parties which is clearly encapsulated in the two legal maxims- interest reipublicaeut sit finis litium, it is in the interest of the public that there be a limit to litigation, and nemo debet bis verari pro una eadem causa, no man should be troubled twice for one and the same cause. For the principle to apply, it must be shown that: the parties in the previous action and in the present action are the same, the subject-matter in the two actions are the same, the issue (s) in the two actions are the same and the court that decided the previous action must be a court of competent jurisdiction which gave a final decision. These meaning and attributes of res judicata have been confirmed in a battery of judicial authorities, see Ezeanya vs. Okeke (supra); Adigun vs. Governor, Osun State (supra); Igwego vs. Ezeugo (1992) 6 NWLR (pt. 249) 561; Okposim vs. Assam (2005) 14 NWLR (Pt.945) 495; Abubakar vs. B. O. A.P. Ltd. (2007) 18 NWLR (pt. 1066) 319; Atapo vs. Agbokare (2010) 1 NWLR (Pt. 1198) 30; Yusuf vs. Adegoke 11 NWLR (Pt. 1045) 332; Ayaya vs. Yorin (2011) 10 NWLR (Pt.1254) 135; D. T. T. Ent. Co. (Nig.) Ltd. vs. Buhari (2011) 8 NWLR (Pt- 1249) 387; Makum vs. F. U. T., Minna (2011) 18 NWLR (Pt. 1279) 190.
It is germane to remark that where a plea of res judicata, generally employed as a shield by a defendant and not as a sword by a plaintiff, is successful, a court of law is disrobed of the requisite jurisdiction to adjudicate over the matter in court in which it is raised. Of course, needless to say that the reverse is true, that is, where the plea is a non-starter, the court will be invested with the vires to entertain the matter in question, see Adigun vs. Gov., Osun State (supra) 1 (1995) 3 SCNJ 1 ; Ajibola vs. Ishola (2006) 13 NWLR (pt. 998) 628; Dakolo vs. Rewane-Dakolo (2011) 16 NWLR (pt. 1272) 22.
The other principle, issue estoppel, which is narrower in scope, shares similar objects/purpose, conditions and effect with res judicata. It is an impediment which bars or prevents a party from relitigating a particular issue which has been isolated and raised in a particular proceeding and finally determined therein, see Inakoju vs. Adeleke (supra); Omnia (Nig.) Ltd vs. Dyktrade Ltd. (supra); Bamegbegbin vs. Oriare (supra) 1 (2009) 13 NWLR (Pt.1158) 370; Adone vs. Ikebudu (supra); Dim vs- Enemuo (2009) 10 NWLR (pt. 1149) 353; Bwacha vs. Ikenya (2011) 3 NLWR (pt. 1235) 610.
Now, having, painstakingly, brought to the fore the aims and hallmarks of these two species of estoppels, my next bounden duty is to situate them with the case in hand with view as to ascertaining whether the appellant, who is laden with the burden of establishing them, satisfied the conditions to earn their benefits. Exultantly, my herculean task on this assignment has been pruned down to the barest minimum This is because the feuding parties are consensual on the fact that the parties and the subject-matter in the two actions, id est, the previous one instituted by pastor J. A. Akinduro against the appellant’ which fed to exhibits 10, 11 and 12, and the present, the progenitor of this appeal, filed by the respondent against the appellant, are one and the same. The two parties, who are in a judicial/legal duel, are, too, at one that the decision in the previous action is valid, subsisting and was made by a court of competent jurisdiction. It is only on the oneness or otherwise of the issue (s) in the two actions that the party took discordant stands. Whereas, the appellant is of the view that the issue (s) in the two suits is/are the same, the respondent holds an opposite view that they are not. On this premise, the consideration of this critical issue, which is now within a narrow compass, will be zeroed in on whether or not the issue (s) in the two actions is/are the same so as to come under the refuge of the plea of res judicata or issue estoppel.
To do justice to this point, it is imperative to marry the claims in the two actions. The claims, made by pastor J. A. Akinduro in the previous suit, are a recurring decimal in exhibits 10, 11 and 12 delivered by the High court, Court of Appeal and Supreme Court respectively. To this end, I will pay a visit to those exhibits and cull those claims from exhibit 12 in the manner following:
“(1) A declaration that the land at Tanke, Ilorin sold to the plaintiff by the defendant is at all times his property.
(2) An order of perpetual injunction restraining the defendant from preventing the plaintiff or any of his agents and workmen from enjoying quiet possession of the premises.
(3) The sum of N40,000 00 (forty thousand naira) being special and general damages for loss sustained by the plaintiff, as a result of the defendant’s obstruction of the plaintiff on his land.”
In the same vein, I will pluck the respondent’s claims against the appellant, from page 6 of the record of appeal, thus:
“16- WHEREOF the claimant claims from the defendant as follows:
1. A DECLARATION that the claimant being the holder of a certificate of occupancy No KW11475 issued by the Kwara State Government and dated 16th day of April, 1997 covering a piece of land situate at Tanke Alangua village, Ilorin, Kwara State consisting of 601.61 square metres is the owner of the piece of land covered by the said certificate of occupancy.
2. A DECLARATION that an earlier transfer of the piece of Land to the claimant by the pastor J. A. Akinduro is valid and enforceable.
3. AN ORDER of perpetual injunction restraining the Defendant, his agents, servants and privies form disturbing (sic) a quiet enjoyment and ownership of the piece of land and the structures thereon.
4. The sum of Two Million Naira (N2,000.000) as general damages for trespass to the piece of land of the claimant”
Before I delve into the meat of the point, whether or not the issue (s) in the two actions is/are the same, let me settle one side point, adjunct to the main point, raked up by the appellant that the lower court did not give reason for holding that the issue was not the same. The respondent, expectedly, was at odds with him insisting that the lower court gave reason.
I think the appellant’s contention here is feeble and stands on a weak wicket. Indisputably, a court is bound by law to give reason for a view expressed or a finding reached as sanctified by the Supreme Court in the case of A. G. Leventis (Nig.) Plc vs. Akpu (supra). The lower court, duly, respected this principle of law when, on page 227 lines 6-10 of the record of appeal, it relied on the “inquiry whether the same evidence will support both” as one of the criteria for determining the issue in the two actions on the authority of the case of Ntuks vs. NPA (supra. (2007) 13 NWLR (Pt. 1057) 392. The rightness or otherwise of that reason is a different ball game That is to say, even if that reason is offensive or at variance with the law, it is nonetheless a reason. Afterall, a court has the right and jurisdiction to err or goof in law without incurring its wrath, see Jacob Ndaeyo vs. Godwin Ogunnaya (1977) I IMSLR 300 at 305-306; Dauda vs. A-G., Lagos State (2011) 13 NWLR (pt. 1265) 427. In the light of these, I hold the view that that finding by the lower court, sought to be impugned by the appellant, is not void of a reason and does not, ipso facto, deserve the strictures passed on it by the appellant. In sum, that finding cannot be deflated for want or paucity of reason. I will return to that reason in the fullness of time on this issue. I now retreat to the hub of the point at stake I have situated the claims in the two actions which I have just reproduced verbatim ac litteratim above. I have, also, given a close study to them, with the prying eyes of every court. It seems clear to me that the heart of pastor J. A. Akinduro’s claims in the previous suit was that he was the owner, by purchase, of the land in dispute, not the appellant. The hub of the respondent’s claims, to my mind, is that he was the owner of the land in dispute, by purchase too, and not the appellant.
In the aggregate, the nucleus of the claims in the two actions revolves around who owns the land in dispute, the respondent and his predecessor-in-title on the one divide or the appellant on the other side of the divide. In holding this view, I do not take into account the reliefs for injunction and damages that dot the two sets of claims. My raison d’etre for so holding is that those claim, injunction and damages, are ancillary to the declaratory reliefs in them. Those subsidiary reliefs are parasitic or symbiotic, as the case may be, on the principal declaratory claims. In law, once the declaratory claims bear fruit, those ancillary ones, as a matter of band wagon effect, will follow and vice versa, see Fagunwa vs. Adibi (2004) 17 NWLR (Pt. 903) 544; Alaya vs. Akinduro (supra). I have another reason to justify and fortify my view point on the oneness of the issue in the two cases. I browsed through the pleadings, the statements of claims, in the two actions, which were forerunners of those claims, and garnered the mainstay of their grievances to be: who owns the land in dispute? In doing that exercise. I was armed with the hallowed principle of law that a court has to read pleadings holistically, not in bits and pieces, in order to discern a flowing story of a party. This cardinal rule of law received the imprimatur of the apex court in the case of Okochi vs. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Adone vs. Ikebudu (supra). I, therefore, re-affirm that the issue in the two actions is one and the same.
The lower court and the respondent invoked the reason of “similar evidence” and placed high premium on the case of Ntuks vs. NPA (supra) to consolidate their stance that the issue in the two actions was different. I have given an intimate reading to the case of Ntuks vs NPA (supra), on which they pegged their view, and I have my doubts if it will be on hand to them. To begin with, the facts of that case, Ntuks, are not in pari materia with the instant matter under consideration. Owing to the facts differentials, that case, de jure, will not be employed herein. It is not lost on me that facts are the arrow or fountain heads of the law. In other words, there must be similarity in facts of cases before the application of the doctrine of stare decisi, see Ugwu vs. Ararume (2007) 18 NWLR (Pt. 1048) 367; Obasi Bros Co. Ltd vs. M. B. A. S. Ltd (2005) 9 NWLR (Pt. 929) 117.
At any rate, the principle of “inquiry whether the same evidence will support” cases, invited by the respondent still holds sway and good here. This is because, from the record, both pastor J. A. Akinduro and the respondent, traced their ownership, by dint of evidence, to the appellant. That impregnable evidence, the establishment of which would tilt the case in their favour, was at the epicentre of the two actions.
Simply put, the two actions are not divorced from similar evidence principle as to make the principal issue in them distinct and without parallel. For clarity, the two actions are, to all intents and purposes, like Siamese twins, in terms of ownership of the land in dispute. In the result, I hold that the issue in the two actions, previous and present, are one and the same.
Having regard to the above finding, oneness of issue in the two suits, it is almost surplus to requirement to consider whether the present suit was caught by issue estoppel. The reason is not far-fetched. The finding, which has completed the conditions for a successful invocation of res judicata, has, totally, enveloped the issue estoppel which is embedded in it. I am sure, the appellant factored the plea of issue estoppel into is brief ex abundant cautela, in case the more encompassing principle of res judicata failed. Suffice to say, however, that since the Supreme Court has, vide exhibit 12, decreed that pastor J. A. Akinduro was/is not the owner of the disputed land, the respondent, being his purported successor-in-title, is restrained/precluded from relitigating that crucial and decisive point. In my view, that judgment in exhibit 12, being ex cathedra, for coming from the Supreme Court, is conclusive proof against the parties, pastor J. A. Akinduro, the respondent and the appellant, in keeping with the provision of section 173 of the Evidence Act, 2011.
The appellant, not resting on his oars, went further to excoriate the lower court’s decision as perverse. A verdict of court of law is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence or it has occasioned a miscarriage of justice. Baridian vs. The State (supra); Nnorodim vs. Ezeani (supra); Lagga vs. Sarhuna (supra); Onyekwelu vs. Elf pet (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1270) 217; Joseph vs. State (2011) 16 NWLR (Pt. 1273) 226.
I have matched the finding of the lower court, that the issue (s) in the two cases was/were different for lack of similar evidence, against the tenets of the all-pervading elements of perverse decision. Flowing from what I have dissected above, I hold the considered view that that finding overlooked the pleadings and evidence, oral and documentary, before it. On this score, it, the finding, is marooned in the ocean of perverse decision chronicled above.
Not only that, that finding reeks of miscarriage of justice. A miscarriage of justice denotes such departure from the rules which pervades all judicial procedure as to make what transpired, in court, not, in the proper sense of it, judicial procedure at all. A miscarriage of justice comes to limelight when a court, after a thorough examination of the entire case, inclusive of the evidence, which encompass both viva voce and documentary, is of the view that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error the appellant complained of, see Amadi vs. NNPC (2000) 10 NWLR (Pt.674) 76 at 112; Akpan vs. Bob (2010) 17 NWLR (Pt. 1223) 421. Again, given all that I have displayed above, it is obvious that the appellant would have received more favourable result if the lower court had properly examined the incorruptible documentary evidence, especially exhibits 10, 11 and 12, vis-a-vis the claims in the two actions. That perfunctory examination of the evidence, with due reverence to the lower court, inflicted miscarriage of justice on the appellant.
Against the backdrop of the foregoing expositions, made with the aid of the law, I hold the humble view that the respondent’s action, whence this appeal germinated, was entrapped in the miasma of estoppel per rem judicatam, res judicata, and issue estoppel. The telling effect of that is not a moot question. The lower court was, completely, drained of the requisite jurisdiction to entertain the matter ab initio. All in all, I resolve issue one in favour of the appellant.
Having done away with issue one, I proceed to treat issue two. By way of recap, the fulcrum of the appellant’s grouse on the issue is that the sale of the land in dispute to the respondent by Pastor J. A. Akinduro was done during the pendency of the appeal and caught by the principle of lis pendens. In a nutshell, the issue raises the principle of lis pendens against the respondent’s root of title.
The doctrine of lis pendens, the acronym for pendent lite nihil innovetur, means during a litigation nothing new should be introduced. It is intended to prevent foisting a fait acompli on a court over an unconcluded matter before it. The hallowed principle denotes that any transaction involving transfer of interest or right, such as alienation of real property, executed during the pendency of any proceeding in respect of a subject-matter/res in court will be visited with nullity by the court. In the case of Akinkugbe vs. E. H. (Nig) Ltd (2008) 12 NWLR (Pt. 1098) 375 at 377, Aderemi, JSC, confirmed that:
“Judicial authorities abound that it has always been a doctrine common to all courts and the doctrine rests upon the foundation that it would plainly be impossible that any action or suit or even motion or application could be brought to a successful end if alienation pendente lit were permitted to prevail. This, in a nutshell, is a practical explanation of the doctrine of lis pendens’ – which doctrine prevents the effective transfer of rights in any property, as in the instant case, which is the subject-matter of an action pending in court during the pendency in court the action or of application.”
See, also Dan-Jumbo vs. Dan Jumbo (supra); Obi vs. INEC (2007) 11 NWLR (Pt.1046) 436; Amaechi vs- INEC (2008) 5 NWLR (Pt. 1080) 227; Agbakoba vs. INEC (2008) 18 NWLR (Pt.1119) 499.
Bearing the meaning and far-reaching consequence of lis pendens in mind, the vexed question is: was the transfer of the land in dispute to the respondent by pastor J. A. Akinduro caught by the principle? In order to arrive at an appropriate answer, it is imperative to relive the historical legal background of both the disposition of the land and the pending cases. From the evidence before the lower court, particularly exhibits 10, 11 and 12, the judgment of the lower court, High court, in pastor J. A. Akinduro’s action against the appellant, suit No KWS/11/96, was delivered on 30/06/1993. That judgment was in favour of Pastor J. A. Akinduro, the plaintiff therein and that is exhibit 10. The judgment in the appellant’s appeal, in appeal No. CA/K/18/96 to this court, Kaduna Division, against the decision in exhibit 10 was handed down on 24/02/1998. That is exhibit 11. The appeal favoured the appellant in part. Then, Pastor J. A. Akinduro’s appeal against that decision and the appellant’s cross-appeal thereto, in Appeal No. SC.296/2002, to the Supreme Court was concluded and judgment delivered therein on 22/06/2007. The Supreme Court upheld the majority decision of the Court of Appeal. In short, Pastor J. A. Akinduro lost ownership of title over the land in dispute to the appellant. That is exhibit 12.
While that case journeyed, with its millipede speed, from the High Court through the Court of Appeal to the Supreme Court, the land in dispute was sold to the respondent by Pastor J. A. Akinduro, via an agreement dated 14/10/1994. That is exhibit 1. The point of discord between the parties is as to whether exhibit 1, upon which exhibits 4 and 5, the certificate of occupancy and approval of grant of right of occupancy respectively, is predicated was made when those proceedings, which gave rise to exhibits 10, 11 and 12, were pending in court.
The respondent had urged the court to take judicial notice of the fact that appeal in the Court of Appeal was filed in 1996 owning to its appeal number, CA/K/18/96, so that the alienation transaction in exhibit 1 was made before the appeal. While this court, indeed any other court, has the licence of the law, under section 122(2) (m) of the Evidence Act 2011, to take judicial notice of proceedings in courts established under the constitution, I beg to differ with the respondent, who is not at home with the law, on his contention. I am rather persuaded by the stance of the appellant that appeals are given Court of Appeal numbers on transmission of records of appeal to it, while notices of appeal are filed in the registry of the court below. On account of this reason, I hold that the Court of Appeal No. CA/K/18/96 is not the right index or barometer to determine when that appeal was filed.
The appellant canvassed the argument that the appellant’s notice of appeal in that appeal, No. CA/K/18/96, was filed on 26/08/1993. I am afraid, I have, like the lower court, searched all the exhibits, in particular 11 and 12, but all my efforts ended in a fiasco in the sense that I could not locate where it is specifically stated, in black and white, that the appellant’s notice of appeal in that appeal was filed on 26/08/1993. Exhibit 11 ought to be the most veritable and dependable source of that date. My noble Lord, Ige, JCA, of the blessed memory, delivered the majority leading judgment in that appeal. At the dawn of that exhibit, His Lordship stated “The Defendant/Appellant is dissatisfied with a part of the judgment delivered on 30/6/93 by Ajayi J. and has appealed to this court…. In his notice of appeal dated 26th day of August, 1993 the appellant filed 4 grounds of appeal….” That, to my mind, makes it crystal clear that the appellant’s notice of appeal, in that appeal No. CA/K/18/96, was dated 26/08/1993, but not filed that same day as the appellant is pressing and nudging the court to believe and act upon. A court of law takes cognizance and rely on a date a process of court is filed, not the day it is dated. Thus, in the case of Eke vs. Ogbonda (2006) 18 NWLR (pt. 1012) 506 at 532, Tobi, JSC, Intoned:
“… I should say for clarity that the date of filing a court process comes in between the date the court process was prepared and the date if is fixed for hearing. And for purposes of computation of time, the date the court process was prepared is not important. I realize that I am repeating myself. I think it is good for emphasis. I think the appellant had so/ne thing to hide when he avoided the date of filing the motion. That is not good”.
The rationale behind this rule is not susceptible to any conjecture. It is a common place, in legal practice, for litigant parties to date their processes, meant for filing in court, months before they are, eventually, filed. Put simply, there is no hard and fast rule that a party is bound, whilly-nully, to file a court process on the date endorsed on it.
Going by the foregoing highlights, it becomes most unclear as to the exact day the appellant’s notice of appeal was filed. This is further compounded by the legal right which the appellant’ like every other aggrieved litigant, enjoys to fire an appeal beyond the statutory period with leave/permission of court. The appellant would have saved all from wallowing in this uncertainty by placing before the lower court his notice of appeal which would have, naturally, showcased the precise date/day it was filed vide an endorsement by an official of the lower court. As it stands, it is possible the appellant filed that appeal prior or subsequent to 14/10/1994 when exhibit 1 was executed. I dare say, that failure, perhaps an oversight to present his notice of appeal which must bear the date of filing, is a costly one.
The point must be rammed home that the appellant lost that case in the High Court as evidenced in exhibits 10 and 11. Since there is no concrete evidence, pointedly, showing that the appellant’s appeal was filed on 26/08/1993 or between 30/06/1993, when exhibit 10 came to life, and 14/10/10/1994, when exhibit 1 was born, it is difficult, nay impossible, to buy the appellant’s postulation that the alienation of the land in exhibit 1 was made during the pendency of that appeal. I without reservations, fall in with the appellant that an appeal is a continuation of the original suit. Of course, I have no cause to disagree with him on this point as it represents the correct position of the law, see Efet vs. INEC (supra); Tinubu vs. I.M.B. Securities Plc (supra); H.D.P.V. (2011) 18 NWLR (Pt.1278) 80. Nevertheless, that is the extent I am prepared to share the appellant’s view.
It seems to me that an appeal qualifies as a continuation of the case at the trial court or lower court when one is filed and not otherwise. That is to say, an action being appealed against continues/lives on as a pending matter the moment an aggrieved party lodges his appeal, hence the constant use of the noun ‘continuation’. In a situation, as in the instant case, where there is no tangible evidence demonstrating that an appeal is filed, a judgment will remain valid and subsisting until it is set aside by an appellate court. In the case in hand, pastor J. A. Akinduro, the vendor who sold the land to the respondent, was armed with exhibit 10 which was in his favour and the same was potent, as at 14/10/1994, when he divested himself of the fruits of exhibit 10 to the respondent. The case of Dan-Jumbo vs. Dan-Jumbo (supra), the appellant solicited the court to apply here, is distinguishable because there was a pending appeal therein. The facts of that case are not on all fours with the case in hand and so inapplicable hereto. In a spirited bid to rope in exhibit 10 into the unsavoury den of lis pendens, the appellant submitted, dazzlingly, that Pastor J. A. Akinduro knew that the High Court was not the last court and that the appellant had the right to appeal up to the Supreme Court. That submission, in my view, finds succour in criminal proceedings involving capital offences. It is castrated in the province of civil proceedings. In the result, I will not subscribe to it.
In the glaring absence of impregnable evidence depicting clearly when that appellant’s appeal was filed, I am minded to agree, through and through, with the contention of the respondent that Pastor J. A. Akinduro must not wait ad infinitum before he would reap/harvest the judgment awarded to him in exhibit 10. By the same taken of imprecision of date of filing the appeal, I endorse, intoto, the finding of the lower court that: “The transaction between the claimant and pastor Akinduro was not therefore caught by the doctrine of lis pendens” located on page 229 of the record of appeal. Ditto for the lower court’s concurrent finding regarding exhibit 5, approval of grant of right of occupancy to the respondent, found on pages 229 – 230 of the record of appeal. Nonetheless, I am not with the lower court on its finding that exhibit 4, the certificate of occupancy, issued to the respondent was not plagued by lis pendens. It was bedeviled by lis pendens having been made on 16/04/1997, a date it was obvious that appeal was already pending.
However, I must add, pronto, that my alignment with the appellant, that exhibit 4 was entangled in the web of lis pendens gives him nothing for now. The reason is that exhibit 1 is the bedrock of the respondent’s claim of title to the land. It can exist, independently and validly without exhibit 4. Going by the foregoing reasons, which have answered the question I posed earlier, I resolve issue two in favour of the respondent.
That gives me the permit to attend to issue three. The kernel of this issue is whether the lower court, given the facts and evidence before it, was right in granting the respondent’s reliefs and dismissing the appellant’s counter-claim. Here my first port of call is to deal, albeit briefly, with the respondent’s complaint that the appellant raised new issues in his contentions on the issue (three) and so incompetent because he did not obtain the leave of court to do so I have given a careful examination to that objection vis-a-vis the arguments of the appellant on the issue. In my view, the appellant’s submissions are miles are away from fresh issue. The submissions, sprouted from and related, in a remote and proximate manner, to the factual and evidential materials at the lower court’s disposal for utilization in the course of its judgments. To this end, the respondent’s objection is, grossly, misconceived. I find no jot of merit in it. It is, accordingly, overruled and dismissed.
With the dispensation of that objection, the coast is cleared for me to look into the arguments on the issue The appellant, heavily, derided the finding of the lower court relating to the position of exhibits 1 and 2 vis-a-vis exhibit 12. By way of recapitulation, exhibit 1, dated 14/10/1994, was a transfer agreement between Pastor J. A. Akinduro and the respondent over the land in dispute. Exhibit 2, dated 10/06/1977, was another transfer agreement between the appellant, as the vendor, and Pastor J. A. Akinduro, as the transferee, over the land in dispute. On the other hand, exhibit 12 was the judgment of the Supreme Court awarding title of the land to the appellant.
There is no gain saying the fact that the Supreme Court, being at the pinnacle of the judicial ladder, its decisions enjoy the monopoly of finality in any proceedings in the Nigerian legal system. It is a right donated to the court by section 235 of the 1999 Constitution, as amended, see Atolagbe vs. Awuni (supra), Ada vs. NYSC (2004) 13 NWLR (pt. 891) 639; Ibero vs. Obioha (1994) 1 SCNJ 44; Dairo vs. UBN Plc (2007) 16 NWLR (Pt. 1059) 99.
That prerogative and constitutional right of finality attaches to exhibit 12. Given this omnipotent and domineering position of exhibit 12, it is unarguable that exhibits 1 and 2 must, willy-nilly, genuflect and bow to its superiority over them. The net effect of exhibit 12 is that it confirmed and solidified the appellant’s inalienable and vested interest in the land in dispute, that is, that the appellant is the absolute owner of it. The exhibit 12 put paid to and extinguished any right which Pastor J. O. Akinduro thought he had over the land. The exhibit, 12, on page 96 of the cold record of appeal, is blunt on the right of pastor J A. Akinduro when it ruled that: “For the avoidance of doubt, the claim of the plaintiff before the trial court is hereby dismissed in it entirety.” With that ex-cathedra decision, whatever tinge of right Pastor J. A. Akinduro claimed to have in the land in dispute evaporated into the thin air. The above amply signifies that exhibits 1 and 2 lost their substratum and had nothing to cling to in order to be potent and viable. On this score, the lower court, with due deference to it, wrongly and undeservedly, elevated and promoted them, exhibits 1 and 2. over exhibit 12.
In the eyes of the law, exhibit 12 exhibits dire and inimical consequences on the respondent’s purported title to the land. It is a knockout blow to Pastor J. A. Akinduro’s seeming interest in the land and constituted an albatross around his, the pastor’s, right to transfer any proprietary interest therein to the respondent or any other person Since the exhibit destroyed Pastor J. A. Akinduro’s purported right, what he passed on to the respondent, vide exhibit 1, is eclipsed by the ageless principle of nemo dat quod non habet, no one gives out what he does not have, see Ojengbede vs. Esan (supra); Omiyale vs. Macauley (2009) 7 NWLR (Pt. 1141) 597; Ibrahim vs. Osunde (2009) 6 NWLR (Pt. 1137) 382; Ashiru vs. Olukoya (2006) 11 NWLR (Pt. 990) 11. What Pastor J. A Akinduro transferred to the respondent, drawing on this agelong principle of law, is a spent and hollow title that is worthless to him.
That is not all. The respondent’s case was anchored to production of documents of title to land, one of the, duly, recognized five ways of proving title to land, see Madu vs. Madu (200s) 6 NWLR (Pt. 1083) 296; Odunnukwe vs. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Ayanwale vs. Odusami (2011) 18 NWLR (pt. 1278) 328. The respondent’s documents of title are exhibits 1 , 2, 4 and 5. Those documents, which the respondent paraded as his in corruptible evidence of title to the land in dispute, carry with them the further need for the court to inquire into them about the following:
(a) whether the document is genuine and valid;
(b) whether the document has been duly executed, stamped and registered;
(c) whether the grantor had the authority and capacity to make the grant;
(d) whether the grantor had in fact what it purported to grant; and
(e) whether it had the effect claimed by the holder of the document.
These crucial inquires had been noted in a sea of cases, see Kyari vs. Alkali (2001) 5 SCNJ 421; Romaine vs. Romanie (1992) 4 NWLR (Pt. 238) 650; Dabo vs. Abdullahi (2005) 7 NWLR (pt. 923) 181; Oyeneyin vs. Akinkugbe (2010) 14 NWLR (pt. 1184) 265; Jolasun vs. Bamgboye (2010) 18 NWLR (pt. 1225) 285; Ayanwale v. Odusami (supra).
In due obeisance to the law, I have subjected the respondent’s documents of title to the furnace of those questions. To begin with, as already noted shortly, the almighty exhibit 12 has made mincemeat of exhibits 1 and 2 such that they are far from being genuine and valid. By exhibit 12, their grantor, pastor J. A. Akinduro, was stripped of any authority and ‘capacity to grant them to the respondent. The spiral effect of that is that neither pastor J. A. Akinduro had what he purported to grant nor do they, the documents, have the ownership effect which their possessor, the respondent, claims.
Incidentally, exhibits 4 and 5, the certificate of occupancy and the approval of grant of right of occupancy, both in the name of the respondent, have exhibits 1 and 2 as their springboard. Flowing from the above analyses, the legal base of exhibits 4 and 5, exhibits 1 and 2, have been swept away by exhibit 12. In the circumstance, the ominous and multiplier effect of exhibit 12 on exhibits 1 and 2 contaminates and vitiates the potency of exhibits 4 and 5. The exhibit 12 makes them, exhibits 2 and 5, lose their genuineness and validity. It, also, clearly indicates that their grantor, Governor of Kwara State, was not cloaked with the necessary authority and capacity to grant them for want of substratum. After all, it is settled that a certificate of occupancy, usually issued under the Land Use Act, is not a conclusive evidence of any valid title to land in favour of the grantee and can be rendered invalid, null and void in observing situations, in favour of a person with a better title. see Ofoeze vs. Oguguai Omiyare vs. Macauley (supra); Adole vs- Gwar (2008) 11 NWLR (pt. 1099) 562; Ilona vs. Idakwo (2003) 11 NWLR (pt. 830) 53; Admin/Exea, Estate, Abacha vs. Eke-spiff (2009) 7 NWLR (pt. 1139) 97.
The foregoing reasons have, to my mind, torpedoed any authority and vesting power which those documents of title, exhibits 1, 2, 4 and 5, ought to possess to the benefit of the respondent. Alas, those documents, to borrow the words of the appellant are ‘”not worth more than the paper on which it (they) was (were) issued.” I, without mincing words, label each of them nudum pactum.
For the sake of completeness, I share in the alluring submission of the appellant about the respondent’s declaratory claims The respondent’s main claims, already reproduced ipsissima verba under issue one, come, squarely, within the perimeter of declaratory reliefs. It is trite law that a party such as the respondent, who pegs his claims in the domain of declaration has to succeed on the strength of his own case and not on the weakness of and admission by his opponent, see Okedare vs. Adebara (supra); Ogunjumo vs. Ademolu (supra); Onwugbufor vs. Okoye (supra); Odunukwe vs. Ofomata (201 0) 18 NWLR (Pt. 1225) 404. The doomed fate of the respondent’s documents of title disabled him from succeeding on the strength of his own case.
It remains to handle, the appellant’s killer onslaught against the decision of the lower court wherein he chastised it as being against the weight of evidence. A castigation of an appeal bordering on judgment being against the weight of evidence, usually couched as omnibus ground, connotes that the decision of the trial court cannot be supported by the weight of evidence advanced by the successful party which the court either wrongly accepted or that the inference it drew or concussion it reached, based on the accepted evidence, is unjustifiable. It, also, implies that there is no evidence, which if accepted, will buttress the finding of the trial court. It, as well, denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the court, see Anyaoke & Ors vs. Adi & Ors (1986) 2 NSCC 799 at 806 (1986) 3 NWLR (pt.31) 731.
I have placed the verdict of the lower court side by side with the vitiating elements/ingredients of judgment/finding being against the weight of evidence. Given all that I have adumbrated, I find sufficient persuasion in the appellant’s attack against the decision. The lower court’s finding wherein it made the appellant’s exhibit 12 to play a second fiddle to exhibits 1, 2, 4 and 5, tendered by the respondent, is unjustifiable and without the backing of the law. A comparison of the evidence, particularly documentary ones, adduced by the competing parties amply demonstrates, as I had shown with the aid of the law, that those of the appellant far outweighed those of the respondent, not in terms of quantity, but in quality. I, therefore, agree, completely, with the appellant that the finding of the lower court on this issue is against the weight of evidence available to it.
The overall result of the foregoing considerations is that exhibit 12, which came from the bowel of the Supreme Court, bestowed on the appellant absolute title or interest in the land in dispute. Put starkly, it give the appellant better title over the land in relation to the respondent whose phantom title, illegally acquired with his exhibits 1, 2, 4 and 5, fizzled out in the overriding face of exhibit 12. In view of the appellant’s title, conferred on him by exhibit 12, the respondent’s possession of the land in dispute metamorphosed into encroachment on the former’s right which, using the proper legal clich’e/jargon, constituted trespass.
The lower court, at the tail end of his judgment, on page 230 of the printed record of appeal, found as follows:
“Adverting to the claimant’s action, I find as a fact that the claimant vide exhibit 1 acquired his interest in the land in dispute from Pastor Akinduro. I also find as a fact that Pastor Akinduro had vide exhibit 2 acquired the land in dispute from the defendant in this case. I prefer the evidence of the claimant that he acquired the land from Pastor Akinduro in 1994 and thereafter if proved on it and put tenants’ thereon. I disbelieve the case of the defendant that he did not sell the land to pastor Akinduro especially in the light of his performance under cross examination where he denied knowing that the claimant had a certificate of occupancy on the land when he had stated that in his statement on oath that the claimant obtained the certificate dandestinely (sic) and his evidence that it was Titcome he sold the land to, a damage that was not redeemed despite the best endeavors of his counsel with his evidence under re-examination that it is not the land in dispute he sold to Titcome.”
I think that what I x-rayed above, substantiated with relevant judicial authorities, have, with respect to the lower court, punctured and demolished its finding. Let me add, for clarity’ that the appellant, under the crucible of re-examination, on page 132 line 1 of the record of appear, with the best endeavour of his counsel, redeemed the damage that he sold the land in dispute to Titcome when he stated: “…that the land I sold to Titcome is not the land in dispute”. In holding this view, I take shelter under the prescription of section 215(3) of the Evidence Act, 2011 which provides that “The re-examination shall be directed to the explanation of matters referred to in cross-examination…” With that, I hold that the lower court’s finding, disclosed above, is an affront to the law and susceptible to impeachment by this court.
Let me place on record that the respondent, unwittingly, admitted the contentions of the appellant on this issue three. Indisputably, the respondent raised objection to them branding them as fresh points argued without leave. However, the respondent, not being a clairvoyant, would not have known the fate of his objection. The respondent should have, as a matter of not leaving anything to chance, reacted to those weighty submissions by way of alternative arguments in the likely or unlikely event that his objection failed. The telling effect of that neglect or omission, now that his objection is doomed, is that his brief of argument is bereft of any counter-submissions to meet those of the appellant. In the daily legal parlance, respondent the has admitted, whole heartedly, all the points raised by the appellant on the issue. The law is now settled that a party who fails to reply to arguments in briefs is deemed to have conceded the opponent’s submission, see Okongwu vs. NNPC (1989) 4 NWLR (pt. 115) 296, Nwankwo vs. Yar’Adua (2010) 12 NWLR (Pt.1209) 518.
The respondent, in his infinite wisdom, played into the waiting hands of the appellant by failing to respond to those submissions. The respondent has himself to blame.
For the avoidance of doubt, what I have examined above apply mutatis mutandis, to the appellant’s counter-claim since parties incorporated the arguments on it on this issue, what the parties did in my humble view, given the circumstances of the intertwined evidential relationship between the main action and the counter-claim, is quite in consonance with the law. Their admirable method has saved the scarce judicial time for all this court inclusive. All in all, on account of the foregoing legal expositions, I resolve issue three in favour of the appellant.
Before I leave for the final verdict, let me couple the resolutions on the issues with a view to discovering where the scale of justice tilts. I resolved issue one, issue estoppel per rem judicatam and issue estoppel, in favour of the appellant.
As I noted, at the twilight of that issue, the lower court was ab initio robbed of the necessary jurisdiction to entertain the respondent’s action due to the apparent presence of the principles of res judicata and issue estoppel, duly, erected by the appellant against it. Nothing has cropped up to make me tinker or upset that finding. Indeed, that finding was sufficient enough to decide the appeal. I went further to consider the other two issues in that the law compels this court, as a penultimate court, to resolve other issues in an appeal even when it arrives at a finding, like in this case, that the lower court had no jurisdiction to hear the matter. It is in accord with that that I considered issues two and three so that the Supreme Court, on appeal to it, will have the benefit of my view points on them, see Ada vs. NYSC (supra); Tanko vs. UBA Plc (2010) 17 NWLR (pt.1221) 80; Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465.
Secondly, there is in existence a counter-claim which, the lower court and this court ought to consider as fortune. This is because a counter-claim, such as the appellant’s, is an independent action which is not an appendage of the main claim, see. Obasi Bros Co. Ltd. v. M.B.A.S. Ltd. (supra); Ogbonna v. A.-G; Imo State (1992) 14 NWLR (pt.220) 647. Incontestably, resolved issue two in favour of the respondent that the transaction in exhibit 1 was not enmeshed in the long waiting arms of lis pendens. Be that as it may, that finding fetches nothing for the respondent. I dare say, it is a pyrrhic victory given the resolution of issues one and three in favour of the appellant. It is settled law that where a court, like the lower court, has no jurisdiction to entertain a matter, the order to make is one striking it out. See Okoto vs. UBA Ltd. (2004) 3 NWLR (pt. 859) 87; Dairo vs. UBN Plc (2007) 10 NWLR (pt.1059) 99; Owners of the MV “Arabella” vs. NAIC (2008) 11 NWLR (Pt. 1097)192.
On the whole, going by reasons advanced heretofore, I hold that the appellant’s appeal is replete merit. For being meritorious, I allow the appear consequently, I hereby set aside the order of the lower court granting the respondent’s reliefs, made on 19/10/2009, in suit No KWS/OM/64/08 for want of legality. In its stead, I strike out the respondent’s said suit No. KWS/OM/64/08 for want of the lower court’s jurisdiction to adjudicate over it. In the same vein, I vacate the lower court’s order dismissing the appellant’s counter-claim. In its place, I grant the appellant’s counter-claim in the manner it is prayed. The parties shall bear their respective costs of prosecuting and defending the appeal
TIJJANI ABDULLAJI, J.C.A.: I have had the privilege of my reading in draft the lead judgment of learned brother, Ogbuinya, JCA just delivered. His Lordship has meticulously and exhaustively treated all the live issues that call of determination in this appeal and rightly in my view resolved them in favour of the Appellant. I entirely agree with his reasoning and conclusions arrived thereat.
I too allow the appeal and set aside the judgment of the lower court and grant the counter-claim as contained in the read judgment. I abide by the order as to costs contained therein.
ITA G. MBABA, J.C.A.: I have had the advantage of reading the draft of the judgment just delivered by my learned brother O. F. Ogbuinya JCA.
I agree with him completely that the appeal is meritorious and should be allowed.
I think, this Appeal, again, calls to question the serious duty lawyers have to their clients and to the Court, to assist the Court to uphold the tenets of truth and justice, and save litigants unnecessary stress rigour and expense associated with litigation, where proper and sound legal advice can save the situation.
In a situation, as in this case, where the dispute about the ownership of the land in question had been fought from the High Court of Kwara State to the Supreme Court and the case finally determined and the owner of the land decided and confirmed by the Supreme Court, the principles of estoppel and res judicata were applicable to restrain the aggressor from further litigation over the same plot of land.
The Respondent, who bought the land in dispute from one pastor Akinduro, who had been adjudged, on appeal, not to be the owner of the land (and he bought the land from the Pastor after the latter had won the case at the High Court, and Appeal against the judgment was pending), should have known or be advised by his Counsel that he bought a dummy or farce, after the Court of Appeal and the Supreme Court had ruled the case in favour of the Appellant in this case. The Pastor therefore had no title to transfer to the Respondent. See Ojengbede vs. Esan (2001) 12 SCNJ 401
The Respondent should have rather thought of how to recover his money and other investments in the property from his vendor (or his estate, as the vendor later died), on becoming aware of the victory of the Appellant in the Court of Appeal and the Supreme Court over the land. That is the legal duty his Counsel owed him – to advise him on, properly, and that would have saved him further trauma, spending, legal stress and litigation over the same subject matter.
I too, allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
K. K. Eleja, Esq. (with him, T. Aduagba, Esq., T. Alubarika, Esq., A. W. Raji, Esq., H. I. Akingbinsite, Esq. and I. O. Imoru, Esq.) for the appellant.For Appellant
AND
Lanre Badmus, Esq.For Respondent
