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BUO ANEKAKWE & SONS (NIG) LTD & ANOR v. NMA & ANOR (2022)

BUO ANEKAKWE & SONS (NIG) LTD & ANOR v. NMA & ANOR

(2022)LCN/16088(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 23, 2022

CA/A/926/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Between

(1) BUO ANEKAKWE & SONS NIGERIA LIMITED (2) CHIEF B.U.O. ANEKWE APPELANT(S)

And

(1) ALHAJI AHMADU NMA (2) UNION BANK PLC RESPONDENT(S)

 

RATIO:

ANY SALE OF LANDED PROPERTY ACQUIRED DURING THE PENDENCY OF LITIGATION IS A NULLITY

It is now settled that any sale of landed property acquired during the pendency of litigation is a nullity. In the case of Osagie Vs. Oyeyinka & Anor. (1987) LPELR-2786  SC. It was held that the doctrine of lis pendens is:

“Simply put the doctrine of lis pendens operates to prevent the effective transfer of any property in dispute during the pending of that dispute. It is quite irrelevant whether the purchaser has notice …actual or constructive. The doctrine is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any right over the property during the currency of the litigation or pending of the suit. That being so, the principle of nemo dat quod non habit will apply to defeat any sale or transfer of such property made during the currency of litigation or the pending of the action (Per Oputa) P. 18 A-D”
Flowing from the foregoing, it follows that the purchase by the buyer knowingly or unknowingly during a pending litigation is not absolved from the consequences of lis pendens. OLASUMBO OLANREWAJU GOODLUCK, J.C.A. 

THE DETERMINATION OF WHAT CONSTITUTES SPECIAL DAMAGES

“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the context of a nominal award”. It was further held in that case that “where the Respondent failed to allocate costs to the items claimed in special damages, after he had duly documented and pleaded the damaged items he should at least lead evidence at the trial to prove the value of the damaged items to be able to win the discretion of the Court in his favour. He should produce the receipts or documents, showing how and where he bought those items and their costs … That I believe, would have presented some basis for evaluating the claims of the Respondent under the special damage and how to arrive at the amount awarded.”
The damages in this case are mostly for the reinstatement of the damages building structures, on the property, one would have expected a builder who is knowledgeable in construction to give professional evidence on the reinstatement cost of the damaged buildings, such evidence will include the bills of quantity, bills of cost, etc. all these ought to have been elicited at trial Court. It is for the foregoing reasons that the claim for special damages is declined and is hereby dismissed. OLASUMBO OLANREWAJU GOODLUCK, J.C.A. 

APPEALANT COURTS DO NOT NORMALLY DISTURB FINDINGS OF FACTS BY THE COURT BELOW

In the case of Ezeafulukwe Vs. John Holt Ltd. 1996 LPELR-1196 SC this Court espoused that the Appellate Court should not disturb the finding of the trial Court and went on to hold that:
“This is because, although appeal Courts do not normally disturb findings of facts arrived at by the Court below or indeed or should be reluctant or slow in doing so, based upon errors apparent from the printed record of proceedings, the Appeal Court will however rise to the call of duty as in the instant case and in the instant of justice, to alter, reserve or set aside the lower Courts findings of facts if on the printed record such findings cannot be supported or are not supported or are not proper conclusions and inference to be drawn from the evidence.” OLASUMBO OLANREWAJU GOODLUCK, J.C.A. 

THE DOCTRINE OF LIS PENDIS

In the Olatunbosun’s case supra, it was held:
“The doctrine of lis pendis prevents the transfer of rights in any property which is the subject matter of an action pending in Court during the pendency in Court of the action, it is applicable against any purchase of such property. The doctrine is not founded on the equitable doctrine of notice, actual at constructive, but upon the fact that the law does not allow to litigating parties or give to them during the currency of litigation involving any property rights in such property (i.e. the property in dispute) so as not to prejudice any of the litigating party.” OLASUMBO OLANREWAJU GOODLUCK, J.C.A.

THE ESSENTIAL COMPONENTS WHICH A GOOD JUDGMENT MUST INCORPORATE

I find the decision in Union Bank vs. Nwaigwe (2019) LPELR-46907 CA quite illuminating, there, this Court cited the decision of Aloysius Iyorgyer Katsina-Alu, JSC in Ojolo & Ors. vs. Ojolo & Ors. (2003) LPELR SC, his Lordship held:
“It is no longer in doubt that writing a judgment is an art and as such each judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of an action before the Court, the issues in controversy, a review of the case for the parties, a consideration of the relevant law raised and applicable to the case, specific findings of his fact and conclusion. The reason for arriving at the conclusion must also be stated.”
In the light of the foregoing considerations, this Court’s answer to Appellants, and 1st Respondent’s issue one is answered in the affirmative, the trial Court failed to comply with the essential requirements of a valid judgment. OLASUMBO OLANREWAJU GOODLUCK, J.C.A.

OLASUMBO OLANREWAJU GOODLUCK, J.C.A. (Delivering the Leading Judgment): The Appellants are the owners of the property located and situated along the Katareji Road in Bida in Gbako Local Government Area by virtue of a Certificate of Occupancy issued by the Niger State Government, hereafter referred to as the “Property”.

In June, 2016, the 1st Respondent trespassed into the property and embarked on the demolition of the  church building Chapel Hall, Power House Store, fence and Bishop’s Four Bedroom apartment built on the property.

The 1st Respondent asserts that the property was sold to him by the 2nd Respondent following the 1st Appellant’s default in the payment of its loan facility which the property was used as a collateral under an All Assets Debenture executed between the 1st Appellant and 2nd Respondent.

It is instructive to note that in 1989, the 2nd Respondent appointed a Receiver Manager to take over the assets of the Appellants, which happens to be a franchise given to the Appellants to manufacture Pfizer Feeds (on the property). By 1993, the receivership was terminated by the 2nd Respondent, vide a Deed of Appointment, which was tendered as Exhibit D, however, the Appellants were still indebted to the 2nd Respondent at the time the receiver was discharged of his duty.

The Appellants subsequently instituted Suit No. NSHC/BD/12/1993 at the High Court of Niger State, in Minna against the 2nd Respondent contending that the 2nd Respondent as grantor of the overdraft facility to the Appellants had perpetrated several illegalities with the Appellants’ account, and generally mismanaged the assets of the Appellants thereby resulting to huge financial loss. The Appellants by the suit sought for special and general damages against the 2nd Respondent and also sought for an order for the 2nd Respondent to return 1st Appellant’s Certificate of Occupancy in respect of the property.

Appellants insists that the 2nd Respondent had no right whatsoever to sell its property to the 1st Respondent particularly when suit NSHC/BD/12/1993 was still subsisting at the time of the sale to 1st Respondent, moreso as its indebtedness to the 2nd Respondent was a subject of litigation at the Niger State High Court.

Aggrieved by the entry of the 1st Respondent on its property and the wanton destruction perpetuated threat, the Appellants, as Claimants instituted Suit No. NSHC/BD/16/2016 at the High Court Niger State against the 1st Respondent, the purported buyer of the property and the 2nd Respondent, the 2nd Defendant in the lower Court.

By the action, the Appellants are praying for a declaration that the 1st Appellant is entitled to exclusive possession of the property covered by a Certificate of Occupancy No. NSG 2871, issued in favour of the 1st Appellant by the Niger State Government.

Appellants are also praying for an order for an award of special damages in the sum of N63,283,915.00 against the 1st Respondent for trespass committed on the property. Finally, Appellants are also praying for an order of perpetual injunction restraining the 1st Respondent his privies, agents or any other person(s) acting on the instructions of the Respondent from further trespass on its property covered by the Certificate of Occupancy No. NSG 2871.

The 2nd Respondent, counter-claimed against the Appellants for all the unpaid sum N26,840,363 and interest at the rate of 26.5% from 28/10/2015 and annual interest rate of 10% until judgment sum is fully paid.

The suit went to trial and upon conclusion on 2nd July, 2018, Musa Abdul J., the trial judge, dismissed the Appellants’ claims and ordered that the sale of the property to 1st Respondent was in good faith. The trial judge also gave judgment in favour of the 2nd Respondent’s counter-claim by ordering that the 2nd Respondent is entitled to the payment of 26,840,363 at the interest rate of 26% representing the sum owed by the Appellants for the facility advance.

Not satisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated 16/8/2018 wherein four grounds of appeal were raised therein. The Appellants also sought for the entire judgment of the 2nd July, 2018 to be set aside.

Two issues were distilled from the four grounds of appeal by the Appellants in the Appellants’ brief of argument dated 26th November, 2018 they are:
(1) Whether the judgment of the trial Court complied with the essential requirements of a valid judgment (Distilled from Ground 1 of the Notice of Appeal).
(2) Whether the trial Court correctly evaluated the facts and evidence before it in arriving at its judgment (Distilled from Ground 2, 3 and 4 of the Notice of Appeal).

The 1st Respondent’s counsel, S.M. Zhigun Esq., in the 1st Respondent’s Brief of Argument filed and deemed as properly filed on the 25th February, 2019 adopted the issues for determination formulated by the Appellants. Counsel for the 1st Respondent sought to withdraw its preliminary objection encapsulated in the 1st Respondent’s brief of argument. This Court obliged hence the preliminary objection of the 1st Respondent was struck out.

2nd Respondent’s counsel, Peter Onuh Esq., in the 2nd Respondents brief of argument, filed on the 21st February, 2019 formulated four issues for determination as follows:
(1) Whether the judgment of the lower Court satisfy the requirements of a ‘good’ judgment as to form and content, and if not, does that fact alone ipso facto, invalidate it/ occasion a substantial miscarriage of justice or was the decision nevertheless correct, albeit for the wrong reason? (Distilled from Ground 1 of the Notice of Appeal).
(2) To the extent that the Appellants initiated the proceedings on appeal herein, as well as a similar one pending at all material times between the parties i.e. Suit No. NSHC/BD/12/1993, they are estopped from asserting that the 2nd Respondent’s counter-claim at the lower Court was an abuse of Court process on account of its similarity to the one which was filed in said Suit No. NSHC/BD/12/1993? (Distilled from Ground 2 of the Notice of Appeal).
(3) Whether the lower Court was correct to have granted the 2nd Respondent’s counter-claim, and if not, did the decision occasion a substantial miscarriage of justice (Distilled from Ground 3 of the Notice of Appeal).
(4) Whether the lower Court was right to hold that the appellants failed to prove their claims for declaration, damages for trespass and injunction, and if not whether that decision occasioned a substantial miscarriage of justice (Distilled from Ground 4 of the Notice of Appeal).

In addition to the exchange of briefs of argument, Appellants subsequently filed the Appellant’s reply to the 1st Respondent’s brief of argument which was filed on the 29th January, 2021 and deemed as duly filed by this Court on the 6/12/2021 whilst the Appellants reply to 2nd Respondents brief of argument dated 20th February, 2019 was filed on the 29th January, 2021.

In considering the submissions of the Appellants’ counsel on his first issue for determination, 1st Respondent’s submission on this issue as well as 2nd Respondents shall be taken together. Appellants’ counsel has urged this Court to examine the judgment of the trial Court at pages 424-461 of the record of appeal and submitted that the judgment did not correctly set out the facts relied upon by the Appellants nor were the issues arising therefrom correctly considered by the trial judge.

Appellants’ counsel then commended this Court to the decision in Ishola V. Folorunsho 2010 13 NWLR (Pt. 1210) 169 at 194 – 195 paragraph G-H and the case of Grand System Petroleum Ltd V. Access Bank Plc (2015) 3 NWLR (Pt. 1446) Pg. 317 Pp. 347-348 paragraphs F-A.

In theIshola Vs. Folorunsho’s case supra the Court held thus:
“The fundamentals of writing a good judgment, which a trial Court is enjoined to adhere to.
Comprise of the following:
a) Making a brief statement of the type of action/offence being adjudicated upon
b) Setting out the claim or offence in full or in part
c) A review of the evidence led
​d) Appraisal or evaluation of such evidence
e) Making findings of the fact therefrom
f) Consideration of the legal submissions and making of findings of law on them, and
g) Conclusion, that is, the verdict or final decision or orders.”

Applying the foregoing considerations to the judgment of the lower Court, Appellants’ counsel has submitted that the trial Court was wanting in terms of items (c), (a), (e) and (f) in the Ishola Vs. Folorunsho’s case supra as the lower Court’s judgment is totally bereft of the factors itemized as c – f in the Ishola Vs. Folorunsho’s case.

Appellants’ counsel in emphasising these salient missing factors in the lower Court’s decision, drew this Court’s attention to pages 424 – 457 of the record of appeal where the trial Court merely rehashed the pleadings, evidence of witnesses and written address of both counsel and thereafter held at page 459 thus:
“…In the instant case, from the evidence adduced by the plaintiffs more importantly evidence adduced by PW1… I hold that the plaintiffs have not adduced credible and admissible evidence to entitle them to the relief sought in paragraph 18 of the Amended Statement of Claim. Consequently, the plaintiff’s claim is hereby dismissed.”

Counsel for the Appellants has further submitted that the trial judge’s decision did not arise from a review of the evidence elicited nor was it predicated on the evaluation of same. He submitted that the trial Court did not arrive at any finding(s) of fact(s) from the evidence adduced but concluded that the Appellant did not adduce credible and admissible evidence to entitle them to the reliefs sought.

Appellants’ counsel further argued that the trial Court did not even reflect on the facts disclosed in the Appellant’s reply to the Statement of Defence and counter-claim of the 1st and 2nd Respondents as contained at pages 168-189 and pages 221-227 of the records in its judgment.

Appellants assert that its pleadings on why the 1st and 2nd Respondents ought not to have sold the property was ignored by the Court. To this end, Appellants’ counsel referred to the Respondent’s Statement of Defence at pages 127-167 of the records, pages 190-220 of the record as well as the Appellants’ reply at pages 168-189 and 221-227 of the records. The combined effect of the foregoing pages referred to according to Appellants reveals that Exhibits ‘F & J1′, the Certificate of Occupancy covering the property was used as a collateral. Aside from this, the facts disclosed therein are to the effect that by Exhibit ‘D’, the Deed of Appointment the 1st Appellant was discharged of any indebtedness to the 2nd Respondent, consequently, the 2nd Respondent had no legal right over Exhibit ‘F and J1′. In effect, Appellants’ counsel submitted that the averments in its pleadings are to the effect that the property cannot be validly transferred to the 2nd Respondent. Besides, Appellants’ counsel has submitted that by ignoring the aforestated pages in the records of appeal the trial judge failed to take into consideration that the ownership of the property, Exhibits ‘F and J1′ and the discrepancies over the loan transactions is a subject matter of dispute in suit in NSHC/BD/12/1993. Appellants’ counsel has submitted that the trial judge totally failed to avert his mind to these crucial facts in arriving at his judgment.

Appellants’ counsel further noted that the crucial and fundamental facts that were pleaded by the Appellants to show why the 1st and 2nd Respondents ought not to have been involved in any transaction in respect of the property which is subject of the suit was totally ignored by the trial Court.

1st Respondent’s counsel, on issue one submitted that the Appellants have failed to state how they have been occasioned any miscarriage of justice as a result of the purported lack of good judgment writing. He posits that the judgment of the lower Court has fully satisfied the essentials of a valid judgment and commended this Court to the decision in Okorie Vs. Okorie (2016) LPELR- 41503.

Respondent’s counsel further submitted that the Appellant has failed to state the consequence of non-compliance with the essentials of a valid judgment and how such non-compliance has affected their case. He raised the poser on what is the effect of issue one. In so far as the resolution of issue one, would, according to him, not lead to the determination or resolution of the real issues in this appeal, 1st Respondent’s counsel urged this Court to disregard issue one as it is a mere academic exercise.

Peter Onuh Esq., counsel for the 2nd Respondent has submitted that the lower Court’s judgment has met the requirements of a good judgment and commended this Court to the decision in Ovunwo Vs. Woko (2011) ALL FWLR Pt. 587 Pg. 596 at 612 B where the Apex Court held that:
“Every judgment has to state facts of the case, state the points at issue requiring the Court’s pronouncement, then the Court’s decision, with the reasons for same.”

2nd Respondent’s counsel went further to submit that even though without conceding that where the judgment of the Court did not comply with aforestated enunciated guidelines, such lapse did not occasion a miscarriage of justice. He commended this Court to the decision in Sanusi Vs. Ameyogun (1992) 4 NWLR (Pt. 237) Pg. 527 SC the Apex Court held thus:
“A miscarriage of justice occurs if what occurred is not justice according to the law” whilst in the Court defined it as a “decision or outcome of legal proceedings that is prejudicial or inconsistent with the substantial rights of a party.”

2nd Respondent’s counsel has also submitted that the Appellants at the lower Court failed to prove they have a better title than the 1st respondent. He went on to contend that the property in dispute was used as a security for overdraft facilities granted to the 1st Appellant since 1986 and the facilities remained unpaid until the 2nd Respondent appointed a receiver. He submitted that the property was sold to the 1st respondent who has a better title.

It appears that the 2nd Respondent’s counsel totally missed the point raised by the Appellants on issue one which is that the trial Court palpably failed to establish how it came to its decision. Putting it another way, the Respondent’s counsel is merely repeating the submissions of counsel which were totally neglected by the trial judge, it is these neglect that is basis of the Appellants’ grievance. The judgment as one sees it is like flesh bereft of a skeleton to hold it as a complete body. The Court owes it a duty to leave all parties before it with the impression that justice has not only been done but must be seen to have been done. The Court in its judgment is duty bound to set out briefly the case before it, stemming from the pleadings filed by all the parties, it must also review the evidence both oral and documentary and arrive at finding(s) from the evaluation of all the evidence led at trial. The Court must also resolve all the issues for determination against the background of the probative value ascribed to the evidence elicited at trial together with the applicable law before arriving at the final verdict on the reliefs sought by allowing or refusing the reliefs sought in whole or in part. Litigants should not be at a loss on how the Court arrived at judgment. The entirety of the judgment must be articulate enough to avail either party the opportunity of knowing how and why he was adjudged in the case presented before the Court, indeed, compliance with the enunciated factors for a valid judgment will assist an aggrieved party in his decision to appeal particularly in raising the grounds upon which he can appeal against the judgment of the Court. In the instant case, the trial judge left parties in the limbo on how it arrived at the judgment of the 2nd July, 2018.
The trial judge through his omission left several issues unresolved by failing to evaluate the evidence led at trial and making findings on it. The issues raised by counsel and the position of the law in relation to aspects such as the doctrine of lis pendens, the issue of trespass and whether the counter-claim was an abuse of Court process etc. were totally disregarded by the Court. It has been said and indeed will always be said that justice must not only be done but it must seen to have been done. I am inclined to hold that a miscarriage of justice is occasioned where the trial judge reached a final decision without regard to pertinent evidence led and or failure to resolve issues thus, leaving parties in the dark on how it arrived at his judgment.

Counsel has further argued that the Appellants have not adduced credible and admissible evidence to entitle them to the reliefs sought in paragraph 18 of the Amended Statement of Claim. Indeed, he posits that from the totality of evidence adduced at the lower Court, the appellants failed to discharge the onus of proof placed on them by the Evidence Act, 2nd Respondent’s counsel further argued that the Appellants failed woefully to establish that the Appellants has a better title than the 1st Respondent. He recounted that the loan facility remained unpaid to the extent that the 2nd Respondent appointed a receiver to recover the unpaid debt since 2008, See Exhibit D.

In sum, 2nd Respondent’s counsel contends that the lower Court rightly dismissed the Appellants’ claims for failure to establish a better title than the 1st Respondent. 2nd Respondent’s submissions as I see it, are his own views regarding who has a better title, the issue here is that the trial judge failed to do the needful.

In reply to the submissions of the Respondent’s counsel, on issue one, the Appellants’ counsel has submitted that the trial judge completely ignored the issue of lis pendens raised by the appellant in their final written address, the trial judge’s failure to pronounce on it according to Appellants’ counsel is not a mere technicality but amounts to a perverse decision that has ultimately affected the outcome of the case.

I have carefully considered the submissions of all counsel on issue one. From the onset, I am inclined to hold that the onus is on the Appellants who is contending that the lower Court failed to comply with the essential requirements of a judgment to establish with specific facts as to how the trial Court had been wanting.

It is noted that Appellants relied on the factors espoused in the Ishola Vs. Folorunsho’s case supra in contending that the lower Court’s judgment was lacking in compliance. He submitted that factors itemised as (c) (d) (e) and (f) noted in the Ishola Vs. Folorunsho’s case where missing in the judgment, I find it pertinent to reproduce the factors itemized in the Ishola vs. Folorunsho’s case hereunder:
(c) A review of the evidence led
(d) Appraisal or evaluation of such evidence
(e) Making findings of facts therefrom
(f) Considerations of the legal submissions and making of findings of law on them.
I have applied the foregoing factors in C – F to the judgment of the lower Court and I am inclined to allude with the Appellants’ submission that the judgment is bereft of these salient considerations. The judgment spans through 37 pages, see pages 424-461 of the records of appeal. 34 pages out of the 37 pages are replete with what can best be described as the records of proceedings at trial, which included record of the interlocutory applications moved and granted in the course of trial, records of processes filed, evidence led by the witnesses, records of documents admitted and or rejected at trial. The substantive judgment and the judgment in the counter-claim covered less than three pages of pages 459-461. After all the recording noted at pages 424-461 above, the judgment in the substantive suit is as follows:
“In the instant case, from the evidence adduced by the Plaintiff more importantly evidence adduced by PW1 Lottona Anaekwe and vital exhibits tendered and admitted in evidence by Plaintiff’s mortgage.
(1) Exhibit “A” Certified True Copy of Court process from Minna High Court in Suit No: NSHC/BD/12/93
(2) Exhibit “B” All Asset Debenture
(3) Exhibit “C” Deed of All Assets, indemnity by Barclays Bank and;
(4) Notice of Appointment of receiver and discharge admitted in evidence and marked as Exhibit “D”. I hold that the Plaintiffs have not adduced credible and admissible evidence to entitle them to the reliefs sought in paragraphs 18 of the Amended Statement of Claims. Consequently, the Plaintiff’s claim is hereby dismissed.”
The learned trial judge failed to review the evidence led by the three witnesses at trial not to talk of coming to a finding on their testimony. Similarly, he failed to reflect on the documents tendered at trial other than itemising them as shown supra. The trial judge totally omitted to resolve the issues for determination one way or the other nor did he resolve the issues submitted by all counsel in their respective written addresses. There is no way one can decipher how he arrived at the verdict that “…The Plaintiff had not adduced credible and admissible evidence to entitle then to the reliefs sought”. None of the Appellants’ evidence was evaluated and no reason was given for holding that the evidence elicited at trial is not credible and admissible.
Though the learned trial judge set out the issues formulated for determination by the respective counsel before him, he stopped at the reproduction of the issues for determination canvassed by counsel. He failed to resolve the issues for determination by applying the law nor did he come to a finding on any of the issues. Suddenly, without regard to the issues formulated by counsel, he unilaterally formulated two issues for determination out of which he merely brushed over the surface of issue one without regard to the evidence led at trial. The lone issue formulated on the substantive suit by him was unresolved other than to hold that the Appellant did not adduce credible evidence, he thereafter proceeded to dismiss the plaintiff’s claim.
I find the decision in Union Bank vs. Nwaigwe (2019) LPELR-46907 CA quite illuminating, there, this Court cited the decision of Aloysius Iyorgyer Katsina-Alu, JSC in Ojolo & Ors. vs. Ojolo & Ors. (2003) LPELR SC, his Lordship held:
“It is no longer in doubt that writing a judgment is an art and as such each judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of an action before the Court, the issues in controversy, a review of the case for the parties, a consideration of the relevant law raised and applicable to the case, specific findings of his fact and conclusion. The reason for arriving at the conclusion must also be stated.”
In the light of the foregoing considerations, this Court’s answer to Appellants, and 1st Respondent’s issue one is answered in the affirmative, the trial Court failed to comply with the essential requirements of a valid judgment.

One is at a total loss as to how he came about the judgment regardless of the copious documents and evidence led at trial, and more importantly, the judgment did not take these salient factors into consideration.

More baffling is the lower Court’s judgment as it relates to the counterclaim, though he recounted some of the evidence of DW1 and DW2 and he gave judgment on it, his reference to the evidence however has no nexus to the claim set up by the counter-claimant.
It is needful to reproduce here issue two formulated by the learned trial judge.
“Whether the evidence adduced by the defendants more importantly evidence adduced by 2nd Defendant/counter-claim. The 2nd Defendant have proved his counterclaim.”
The reliefs sought in the counter-claim, briefly stated are for payment of the sum of N26,840,363.00 (Twenty Six Million Eight Hundred and Forty Thousand, three hundred and Sixty-three naira only) being the sum remaining unpaid as at 27/10/2015 as well as 26.5% interest rate on the outstanding sum.
The trial judge in his selective review of the testimony of DW1 and DW2 went totally off tangent by holding that the 2nd Defendant exercised its right of sale and the 1st Defendant (1st Appellant) no longer has any interest on the property. He also held that the property was sold to the 1st Appellant with the permission of the 2nd Defendant consequently the property covered by Exhibits F and JI was sold to the 1st Defendant in good faith. It is wondered want is the relevance of these unsolicited findings in the counter-claim. These extraneous findings, I say extraneous, as they have no relevance or nexus with the counterclaimant’s claim before the Court. It is instructive to note that it was based on the foregoing evidence that the trial judge held that the 2nd Respondent is entitled to the claim in paragraph 13(a) and (b) of the counter-claim. There is no connection between the findings of the trial judge in his unilaterally formulated issue two and the judgment in the counterclaim, in other words, the decision of the trial judge is perverse as it is not predicated on any evidence to support the monies owed by Appellants.

Turning to the Appellants’ second issue for determination, on whether the Court correctly evaluated the facts and evidence before arriving at its judgment, Appellants’ counsel referred to the 1st and 2nd Respondents’ statement of Defence at pages 127 – 167 of the Records in pages 190 – 220 of the record of appeal. Lastly, reference was made to Appellants’ reply at pages 168 – 189 and 221 – 227 of the records. Learned counsel for the Appellants contends that the loan transaction had long been concluded by virtue of Exhibit D consequently 2nd Respondent no longer had a legal right over Exhibits F and J1 hence, the property is not transferable to a third party such as the 1st Respondent.

Besides, it is further submitted that the alleged outstanding indebtedness of the Appellants which is a subject of controversy and the issue of ownership of Exhibits F and J1 are all in dispute in Suit No: NSHC/BD/12/93. In effect, Appellants counsel has submitted that the doctrine of lis pendis affects the sale of the property.

He contends that the doctrine of lis pendis is designed to prevent a situation of helplessness which will arise if the sale of the property is allowed to stand, counsel rightly submitted that unless the sale of the property is declared a nullity and set aside, a situation of helplessness will be foisted on the judgment in Suit No. NSHC/BD/12/93 Exhibit A having regard to the property which is the subject matter of this appeal.

Appellants counsel has further submitted that the 1st and 2nd Respondents, entered into the sale transaction in respect of the property in bad faith hence, he has urged this Court to invalidate the sale. Counsel then commended this Court to the decision in Oronti v. Onigbanjo 2012 LPELR 7804 SC and the decision in Olatunbosun & Anor. vs. Amogun & Ors. (2018) LPELR 43738 (CA). In the Olatunbosun’s case supra, it was held:
“The doctrine of lis pendis prevents the transfer of rights in any property which is the subject matter of an action pending in Court during the pendency in Court of the action, it is applicable against any purchase of such property. The doctrine is not founded on the equitable doctrine of notice, actual at constructive, but upon the fact that the law does not allow to litigating parties or give to them during the currency of litigation involving any property rights in such property (i.e. the property in dispute) so as not to prejudice any of the litigating party.”

Counsel also noted that DW1 while under cross-examination at pages 394 – 396 especially at page 395 admitted that he did not carry out any legal search before going into the transaction leading into the sale.

The Appellants’ counsel also reasons that the Respondents’ position that the sale was carried out in the exercise of the mortgagee’s right of sale is fallible. He submitted that before this right arises, the mortgagee must have issued and served statutory notices which weren’t served on the Appellants in the instant case. Reference was made to the cross-examination of DW2 at pages 411 – 414 of the records when he was told to show any notice served on the Respondent and he said there was no notice served on 1st Appellant prior to 2nd Respondent’s authorization of the sale of the property.

Appellants further recounted that the position of the Appellants in Suit No. NSHC/BD/12/2023 Exhibit A, is to the effect that the whole loan sum had been fully recovered by the Receiver Manager appointed pursuant to Exhibit ‘D’ and it is the 2nd Respondent that is indebted to the Appellants, and not the other way round. Appellants’ counsel has further submitted that aside from non-service of the pre-sale statutory notices, the sale of property to 2nd respondent was in bad faith because the Respondents knew that the Appellants was not indebted to 2nd Respondent. He said that the Appellants case in suit NSHC/BD/12/93 was to the effect that the Respondents had been fully paid. He concluded that suit NSHC/BD/12/93 is a bar to the exercise of the mortgagee’s right to sell the property. Appellants’ counsel then submitted that the trial Court failed to appreciate the doctrine of lis pendis in the judgment. He submitted that the trial judge totally disregarded his arguments on the doctrine of lis pendis, consequently, Appellants counsel is urging this Court to do the needful having regard to the facts and circumstances of this case and set aside the sale of Exhibits F and J1.

It is also submitted by the Appellants’ counsel that the counsel in the instant Appeal is the same as counsel in Suit No. NSHC/BD/12/93 and the Counter Claim in the Minna High Court as shown in Exhibit L’ which is still pending.

Appellants’ counsel has argued that the 2nd Respondent’s counter-claim in this suit constitutes an abuse of Court process. He relied on the decision DINGYADI & Anor vs. INEC. & Ors. (2011) LPELR 950 SC and submitted that the proper step for this Court to take is to dismiss the counter-claim.

Appellants’ counsel has further submitted that the sale of the property is covered by the Certificate of Occupancy; Exhibits F and J1 is a nullity in the light of the pending Suit No. NSHC/BD/12/93 wherein the 2nd Respondent had also counter-claimed as shown in Exhibit L. he reiterated that Appellants in Suit No. NSHC/BD/12/93, Exhibit A are demanding for the return of their Certificate of Occupancy, Exhibits F and J1 from the 2nd Respondent and regardless of this fact, the 2nd Respondent went ahead and sold the property.

Appellants’ counsel submitted that the trial judge did not consider his submission in this regard in the entire judgment at pages 424 – 461.

In sum, Appellants’ counsel has urged this Court to intervene by way of this appeal, having regard to the facts and evidence led before the lower Court and give judgment in favour of the Appellant.

On Issue two, learned counsel for the 1st Respondent S. M. Zhigun Esq., emphasized that the Appellants principal relief at the lower Court is for: A DECLARATION that the 1st Plaintiff is entitled to exclusive possession of all that piece of property situate at Bida-Karaereji Road industrial site, opposite General Hospital consisting of 1:13 hectares described in the schedule, and more particularly delineated in the plan annexed to Certificate of Occupancy No. NJ62871 issued in favour of the 1st Plaintiff by the Niger State Government.

He noted that the second reliefs are for special and general damages and injunction which are ancillary to the relief for exclusive possession. 2nd Respondent’s counsel then posits that the action in this suit is rooted in tort of trespass to property. He submitted that the Appellants completely abandoned his claim and focused on the loan agreement which is a subject matter of another suit, see Exhibit A. He further argued that there is no relief or prayer by the Appellants for a declaration that the Deed of Agreement in favour of the 2nd Respondent is null and void which is the basis of ground 2 of the notice of appeal and issue 2. He further submitted that a Court of law is not a charitable institution, hence it is not the duty of the Court to render unto anyone that which is not sought. See Rabiu V. T.A. Hammond Projects Ltd. (2007) LPELR 8328.

2nd Respondent’s counsel contends that the Appellants’ case of trespass in respect of the property was not proved by the Appellants. He then submitted that the trial Court righty held that the Appellants had failed to adduce credible and admissible evidence to entitle Appellants to the relief sought.

He argued that trespass is actionable at the instance of the person in possession citing the decision in Olanrewaju Commercial Services Ltd vs. Sogaolu & Anor (2014) LPELR – 24086 and submitted that exclusive possession gives the person in possession the right to retain the property and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. He submitted that the 2nd Respondent was in actual possession of the property before it was sold to the 1st Respondent. This Court’s attention was also drawn to Appellants’ statement of claim, paragraphs 7 and 10. There, the Appellants averred that they had, since 1989 been entitled to exercise his possessory right, free from any encumbrance whilst in 1993 they, that is, the Appellants put Eckankar into possession of the property, and the said Eckankar had been using it to conduct their religious activities. He also noted that under cross-examination PW1 admitted that where the 1st Appellant is in default, the 2nd Respondent is to manage and take over the affairs of the Appellants which was what happened in 1989.

Still on who is in actual possession of the property at the time 1st Respondent entered the property, this Court’s attention was drawn to the Appellants’ pleadings in Exhibit A, i.e. the Appellants’ Amended Statement of Claim in Suit NSHC/BD/12/93, specifically paragraphs 15 and 16. There, the Appellants aver in paragraph 16:
The Plaintiff aver that the receiver/manager referred to in paragraph 18 took over control of the affairs of the 1st Plaintiff. The Plaintiff aver that by this action of the 1st and 2nd Defendants, and their agents (the receiver/manager) the workers and staff of the 1st Plaintiff were all thrown into confusion as they stayed away from the premises in order not to be seen or accused of interfering with the job of the receiver manager see page 175 of the record.
At paragraph 38 also, page 179, the Appellants pleaded as follows:
The Plaintiffs aver that the said receiver manager took over again from the 1st and 2nd Defendants/their agents again from the 1st and 2nd Defendants/their agents, the affairs and physical possession of the 1st Plaintiff premises and assumed management of same in the 1st week of June, 1993 from the 1st Defendant/its agents.
(See paragraph 39 at page 179).

It is also recounted that in paragraphs 41 and 42 of Exhibit “A”, the Appellants maintained that the 2nd Respondent remained in possession of the premises while Suit NSHC/BD/12/93 was still pending in Court. In effect, Respondent counsel has submitted that the 2nd Respondent has been in exclusive possession till 2016 when it sold the property to the 1st Respondent.

Counsel for the 1st Respondent thus argued that the Appellants, have not proved that they were in exclusive possession of the property at a time 1st Respondent entered possession. Reference was also made to paragraphs 41 and 42 of Exhibit “A” where the Appellants maintained that the 2nd Respondent remained in possession of the premises even whilst Suit No. NSHC/BD/12/1993 is still pending in Court.

1st Respondent counsel submitted that all the foregoing pieces of evidence are to the effect that the Appellants were not in physical possession in 2016 when the property was sold to the 1st Respondent.

1st Respondent’s counsel submitted that in so far as Appellants has not proven exclusive possession of the property, the claim for trespass against the 1st Respondent must fail as the 1st Respondent has shown a better title to the property. See Exhibit F1. He commended this Court to the decision in Adetono & Anor Vs. Zenith International Bank Plc. (2011) LPELR- 8237 (SC).

Finally, 1st Respondent’s counsel further submitted that the title of the property was not in issue in Suit No. NSHC/BD/12/1993 hence the sale to the 1st Respondent cannot be defeated by the doctrine of lis pendis. He argued that the claim in the suit exhibit ‘A’, See pages 173-189 of the record of appeal are for damages occasioned by the purported mismanagement of the Appellants’ account maintained with the 2nd Respondent. In sum, 1st Respondent’s counsel has submitted that the Appellants’ claim is rooted in trespass, the Appellants having failed to prove that they were in possession, he has urged this Court to dismiss the Appellants’ claim and reliefs sought before this Court.

Before I proceed to evaluate the evidence and submissions of all counsel on the issue of trespass against the Appellants, I find it needful to consider 2nd Respondent’s fourth issue for determination. Peter Onuh Esq, 2nd Respondent’s counsel has submitted that the Appellants relief at the lower Court are three folds (i) declaration of possessory right he has submitted that the claim for trespass and injunction are predicated on the establishment of trespass as both (ii) and (iii) are not granted in vacuo.

2nd Respondent commended this Court to the decision in Ufomba Vs. Ahuchaogu (2003) 6 SC in 189 where it was held that “where a plaintiff claims damages for trespass and injunction, and the defendant also claims ownership of the land, title is put in issue, accordingly, in order to succeed, the plaintiff must prove not only that he was in possession when the alleged trespass was committed, but also that his own title is better than that of the defendants.” See Ufomba Vs. Ahuchaogu (2003) 6 SC in 189. 2nd Respondent’s counsel has argued that the appeal before this Court borders on a claim by the Appellants for a declaratory relief and urged that declarations should not be granted lightly hence the power to grant a declaratory order should be exercised sparingly, with great care, and utmost certainty and with a proper sense of responsibility. See Agbaje vs. Agboluaje (1970) 1 ALL NLR 21 at 26. He espoused that the declaratory and injunctive orders should not be made against the 2nd Respondent whom he submitted was wrongly joined as a party in the suit.

The attention of this Court was likewise drawn to the testimony of PW1 at page 368 of the record of appeal, where PW1 said under cross-examination thus:
“It is true, I said the 1st Defendant forcefully entered the property in dispute. I reported the case to (b) Division of the Nigeria Police, Bida. The counsel for the 1st plaintiff also wrote petition to the Inspector General of Police on the issue… To the best of my knowledge, I don’t know if the 1st Defendant has been presented by the Police.”

Arising from the foregoing statement, 2nd Respondent’s counsel has submitted that it would be an injudicious exercise of judicial discretion had the lower Court declared that the 2nd Respondent was in trespass and or ordered an injunction against it. In sum, he reasons that the 2nd Respondent was wrongly joined by the lower Court as a party in the suit and by extension he is wrongly before this Court. He relied on the decision in EcoBank Plc. Vs. Gateway Hotel 1999 11 NWLR Pt. 627 Pg. 397 at 417 NWLR Pt. 627 PG. 397 at 417 as well as the decision in Okeaya-lnneh Vs. Quality Finance Ltd. (2006) ALL FWLR Pt. 300 Pg. 1632 at 1644 g. There the Court held: “A party made a defendant in a suit against whom no cause of action is disclosed is not a proper party and he is entitled to have his name struck out.”

He therefore urged this Court to strike out the name of the 2nd Respondent from this appeal.

Having considered the submissions of all counsel on Appellants and 1st Respondent’s second issue and the 2nd Respondent’s fourth issue for determination, I am of the view that the salient consideration is for this Court is to determine whether the decision of the lower Court that the Appellants failed to adduced credible admissible evidence to entitle him to the relief sought is right in the light of the lower Court failure to evaluate the evidence, oral and documentary, admitted at trial and failure to arrive at findings on such evidence.

In addition, the fact that the trial judge failed to consider the legal submissions of counsel and did not make findings on the evaluation of evidence before reaching a verdict of dismissal of the Appellants’ claim ought to be addressed by this Court. It will be recounted that this Court had hitherto held that the trial judge totally disregarded the essential factors that ought to be taken into consideration by a judge before arriving at its final decision.

Ordinarily, the appellate Court will not interfere with the exercise of discretion by a trial Court unless it is shown that such exercise of discretion was based on wrong principles or mistake of law or under a misapprehension of the facts or took into account irrelevant matters thereby occasioning injustice” Per Onu JSC Pg. 23 para 6. See Kuforiji vs. V.Y.B Nigeria Ltd.1981 6-7 SC 40 at 84.”

In the instant case, the Appellants contends and quite rightly too that the trial Court totally failed in the evaluation of evidence and ascription of probative value to the evidence elicited at trial. It is also glaring that the lower Court failed to resolve and pronounce on the issues raised for determination by counsel.
It behooves on this Court to do the needful to avert a miscarriage of justice.
In the case of Ezeafulukwe Vs. John Holt Ltd. 1996 LPELR-1196 SC this Court espoused that the Appellate Court should not disturb the finding of the trial Court and went on to hold that:
“This is because, although appeal Courts do not normally disturb findings of facts arrived at by the Court below or indeed or should be reluctant or slow in doing so, based upon errors apparent from the printed record of proceedings, the Appeal Court will however rise to the call of duty as in the instant case and in the instant of justice, to alter, reserve or set aside the lower Courts findings of facts if on the printed record such findings cannot be supported or are not supported or are not proper conclusions and inference to be drawn from the evidence.”
It is for this reason that this Court is mindful of doing that which the trial Court palpably failed to do. At this point, it is also crucial to note that the Appellants made heavy whether on the fact that the sale of the property which is the subject matter of this appeal was carried out whilst Suit No. NSHC/BD/12/1993 was pending at the High Court in Niger State, Exhibit A. Appellants contends that this salient issue was totally discountenanced by the trial judge in his judgment.

The wide powers of this Court to intervene in an appeal is statutorily provided in Section 15 of the Court of Appeal Act, which provides inter alia that this Court shall have “… full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and then rehear the case in whole or in part or may remit it to the Court below for the purpose of rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court.”

Going by the entire gamut of the pleadings, the evidence led at trial and the submissions of counsel which the trial Court failed to avert to in its judgment, I am of the view and will so hold that another crucial issue for determination in this appeal is whether the 1st Respondent was in trespass when he forcefully entered the Appellants’ property. The resolution of counsel’s submissions on this point was also ignored by the lower Court. Issues are vehemently joined between the Appellants and the Respondents on trespass. The submissions on this point has been hitherto noted in the earlier part of this judgment. Whilst the 1st Appellant in its statement of claim at pages 97-101 contends that it is a holder of a certificate of occupancy, Exhibit F over the land in dispute, the 2nd Respondent is objecting to the claimant’s right to the property and maintains that it is a subject of a charge for a loan facility advanced to the Appellants by way of an All Asserts Debenture, Exhibit ‘B’ which collateral includes the certificate of occupancy, Exhibit ‘F & J1’ also deposited with the 2nd Respondent.

In addition, the Appellants asserts that the 1st Appellant and one Mr. Mohammed Abdul executed a personal guarantee in favour of the 2nd Respondent, Exhibit ‘C’.

The 2nd Respondent contends that it exercised its powers of sale over the property covered by the certificate of occupancy following the Appellants’ failure to discharge its objections under the mortgage. The 2nd Respondent further maintains that it sold the property to the 1st Respondent for the sum of N7,000,000.00 thus leaving an unpaid balance of N26,840,363 (Twenty Six Million, Eight Hundred and Forty Thousand, Three Hundred and Sixty-Three Naira) by the 1st Appellant consequently, the 2nd Respondent counter-claimed at the lower Court against the Appellant for the outstanding sum of N26,840,363 (Twenty Six Million, Eight Hundred and Forty Thousand, Three Hundred and Sixty Three Naira).

The Appellants in reply to the 2nd Respondent’s statement of Defence and counterclaim asserts that the property covered by Exhibit ‘F’ is a subject of litigation in Suit No. NSHC/BD/12/1993 where the 1st Appellant and 2nd Respondent are parties thereto, Appellants contend that they are surprised to know that the property was sold whilst Suit No. NSHC/12/1993 was still pending in Court, moreso, as the 2nd Respondent is a party in the said suit, hence it is aware that the appellants are by the suit praying the Court for the return of the certificate of occupancy, Exhibit ‘F’. Under cross-examination, PW1 testified that the 1st Respondent forcefully entered the property in dispute. He admitted that the certificate of occupancy, Exhibit ‘F’ was used by the 1st Appellant severally for the overdraft facilities granted by the 2nd Respondent. He also admitted that Exhibit ‘D’, the Deed of Discharge merely discharged the Receiver and did not discharge the 1st Appellant of its indebtedness to 2nd Respondent.

The 1st Respondent, who testified as DW1 disclosed under cross-examination that he was only given a photocopy of the certificate of occupancy in respect of the property in dispute at the time he purchased it. He admitted that he did not conduct a search before he purchased the property. He said he allowed some Hausa Men to farm on the property.

DW2, 2nd Respondent Chief Marketing Officer tendered amongst other documents, Exhibit ‘I’, record of proceeding in Suit No NSHC/BD/12/1993. He said he is aware of the pending Suit No. NSHC/BD/12/1993 in Minna before Hon. Justice Maiyaki. He also admitted that the property covered by Exhibits ‘F’ and ‘J1′ is the property he was directed to sell. He said he was appointed a receiver by the 2nd Respondent though he did not know when the 2nd Respondent took over possession of the property in dispute. He said that the original of the certificate of occupancy, Exhibit ‘F’ is still in possession of Union Bank, the 2nd Respondent. Still under cross-examination, he said that it was as a result of the 1st Appellant’s failure to repay the loan that the 2nd Respondent exercised its right of sale.

Finally, DW2 disclosed under cross-examination that the 1st Respondent having paid the sum of Seven Million Naira representing the purchase price to 2nd Respondent, the 1st Respondent is the legal owner of the property.

Going by the evidence of the witnesses, it is not in doubt that parties commonly agreed that there is a pending suit, Suit No. NSHC/BD/12/1993, Exhibit ‘A’ where the 1st Appellant is claiming inter alia for the release of the certificate of occupancy no. NGS 2871 in respect of the property. There is also uncontroverted evidence that the property was sold during the subsistence of suit no. NSHC/BD/12/1993.

There is also evidence that the 1st Respondent purchased the property from 2nd Respondent and went into possession of the property in dispute. He even admitted that after the purchase, he allowed Hausa Men to farm thereat though he denied destroying the buildings on the property.

The poser that arises from the sale is whether the entry of 1st Respondent on the land amounts to trespass.

Exhibit ‘A’, the Amended Statement of Claim in Suit No. NSHC/BD/12/1993 corroborates the evidence of PW1 that there had been lingering discrepancies over the state of indebtedness of the 1st Appellant as well as allegations of mismanagement and questionable charges payable by the 1st Appellant which discrepancies ultimately led to the institution of NSHC/BD/12/1993. Throughout the evidence led at trial, there is no evidence that Suit No. NSHC/BD/12/1993 had been finally determined. The evidence that can be garnered from the record of proceedings is that the suit is still pending.

I am inclined to endorse the submission of the Appellants’ counsel that the sale of the property which is the subject matter of this suit, is affected by the doctrine of lis pendis since it was sold at a time when litigation was pending. It is recounted that the Appellants claimed amongst other things in Exhibit ‘A’ is for the 2nd Respondent to return the certificate of occupancy in respect of the Appellants factory site along the Katereaji Road. The sale would undoubtedly foist a state of helplessness on the lower Court in Suit No. NSHC/BD/12/1993 upon its final determination in the event that the Court orders delivery of the Certificate of occupancy to the 1st Appellant.

It is now settled that any sale of landed property acquired during the pendency of litigation is a nullity. In the case of Osagie Vs. Oyeyinka & Anor.(1987) LPELR-2786  SC. It was held that the doctrine of lis pendens is:

“Simply put the doctrine of lis pendens operates to prevent the effective transfer of any property in dispute during the pending of that dispute. It is quite irrelevant whether the purchaser has notice …actual or constructive. The doctrine is really designed to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any right over the property during the currency of the litigation or pending of the suit. That being so, the principle of nemo dat quod non habit will apply to defeat any sale or transfer of such property made during the currency of litigation or the pending of the action (Per Oputa) P. 18 A-D”
Flowing from the foregoing, it follows that the purchase by the buyer knowingly or unknowingly during a pending litigation is not absolved from the consequences of lis pendens.
The fact that the purchaser was not put on notice of the litigation at the time of the sale does not avail the purchaser. In the instant case, 2nd Appellant’s counsel S. M. Zhigun Esq., has argued that the Appellants, pleaded in their Amended Statement of Claim in Suit NSHC/BD/12/93 paragraphs 15 and 16 that the receiver/manager had taken over absolute control of the affairs of the 1st Appellant similarly the Appellants pleaded in paragraph 38 of the claim that the Receiver Manager took over control from the 1st and 2nd Appellants’ agents and physical possession of the 1st Plaintiff’s premises from the 1st week of June, 1993. All these arguments are to the effect that the Appellants were not in possession at the time of the sale of the property to the 2nd Respondent. He went on to submit that the Appellants claim to possession of the property must fail. Relying on the decision in Adetono & Anor vs. Zenith International Bank Plc, he posits that only one person can be in exclusive possession of the mortgage property at a time, consequently, the 1st Respondent who derived title from the 2nd Respondent has a better interest and right to possession.
I am disinclined to allude to the submission of 1st Respondent’s counsel. As held in the Osagie case supra, the 2nd Respondent conveyed nothing to the 1st Respondent as he lacked the legal capacity to do so. Consequently, Respondent’s submission that he had a better right to the property in dispute cannot arise even with its legal right, it cannot convey whilst the action in Court is pending. The sum effect is that the 2nd Respondent’s entry into the Appellants’ property is without any valid possessory or legal right. In effect, the 1st Respondent was in trespass when he entered the Appellants’ property.

It must be noted here that the 1st Appellant having executed Exhibit D, the All Assets Debenture, it continues to have an estate in the property until he exercises his equity of redemption. See the decision in EKPO v. ISHIE MICROFINANCE BANK (NIG.) LTD. 2017 LPELR – 43524 CA where this Court held that:
“… the nature of a mortgagor’s interest after mortgaging his property is known as equity of redemption, which otherwise is an estate in the land. See also Usen Fowakan v. Idowu (1925) NSCC (Vol. 1) 175.”

In the light of the foregoing considerations, I am of the view and will so hold that the Appellants sufficiently proved their case on the preponderance of evidence and is entitled to possession sought in the first leg of the Appellants’ claim. In the circumstance, I hold that the trial judge erred in law when he held that the Appellants have not adduced credible and admissible evidence to entitle them to the reliefs sought. Accordingly, I hold that the 1st Appellant is entitled to exclusive possession of all that piece of property situate at Bida – Karaereji Road, Industrial Site, opposite Bida General Hospital.

Leg 2 of the Appellants’ claim however fails, it being noted that the reliefs sought in leg two is predicated on special damages in the sum of N63,263,912.5 arising from the damages occasioned by the 1st Respondent’s trespass on the property. It is long settled that special damages must be strictly proved. The Appellants merely pleaded and stated the value of the various buildings on the property that was damaged without giving credible and plausible evidence of how they arrived at the figures claimed. The Appellants’ claim seems to have been based on estimates which were not specifically proven at trial. In the case of Nwankwo & Anor vs. Agwo & Anor. 2016 LPELR 40808 CA, it was held that:
“Plaintiff must go further to prove the cost of the damaged items, as per the prices or cost of each of the items, by production of receipts, or his acceptable costs of the items as pleaded, where the same has not been admitted by the defence.” See Iroaganachi v. Madubuko & Anor. (2016) LPELR-40048 CA.
In the case of Udeagha v. Nwogwugwu (2013) LPELR-21819 (CA), this Court held:
“The determination of what constitutes special damages is therefore not a matter of conjecture, assessment or estimation by the Court and can therefore not be considered in the context of a nominal award”. It was further held in that case that “where the Respondent failed to allocate costs to the items claimed in special damages, after he had duly documented and pleaded the damaged items he should at least lead evidence at the trial to prove the value of the damaged items to be able to win the discretion of the Court in his favour. He should produce the receipts or documents, showing how and where he bought those items and their costs … That I believe, would have presented some basis for evaluating the claims of the Respondent under the special damage and how to arrive at the amount awarded.”
The damages in this case are mostly for the reinstatement of the damages building structures, on the property, one would have expected a builder who is knowledgeable in construction to give professional evidence on the reinstatement cost of the damaged buildings, such evidence will include the bills of quantity, bills of cost, etc. all these ought to have been elicited at trial Court. It is for the foregoing reasons that the claim for special damages is declined and is hereby dismissed.

On the 2nd Respondent’s issue 3 which appears to have been erroneously noted as having been distilled from ground 3 instead of ground 4 of the appeal, it will be assumed that reference to ground 3 was in error as the submissions of 2nd Respondent’s counsel borders around the 4th Ground of Appeal which is predicated on the counter-claim.

Counsel for the 2nd Respondent has submitted that the trial judge correctly reviewed the evidence elicited by the 2nd Respondent in proof of the counter-claim. I am totally unpersuaded by the Respondent’s counsel submission. Aside from the fact that he has not drawn the attention of this Court to the record of appeal where the judge evaluated the evidence of DW2 on the counter-claim, I have exhaustively examined the judgment of the trial judge and noted that no mention whatsoever was made by the judge regarding the testimony of DW2 on the monies allegedly owed by the 1st Appellant. Besides, the trial judge did not review Exhibit ‘N’ by relating it to the counter-claim. Much as the trial judge held that he was satisfied that the 2nd Respondent/counter-claimant has adduced evidence in support of the pleaded fact in support of the relief sought in the counterclaimant, the trial Court’s “evaluation” of evidence leading to the judgment in the counter-claim are totally unrelated and extraneous to the relief sought by the 2nd Respondent in the counter-claim. It is thus crucial to reproduce the trial Court’s so called evaluation of evidence at page 460 of the record of appeal in order to show.

At page 460 of the record of proceedings the trial judge held:
“I am satisfied that the 2nd Defendant/counter-claimant has adduced evidence in support of the pleaded facts to entitle the 2nd Defendant/counter-claimant to the reliefs sought in the counter-claim and I so hold I shall consider the evidence adduced by DW1 and DW2.
DW1 in his evidence in chief testified that he concluded search in respect of the property for the loan he look from the 2nd Defendant and upon his failure to pay the loan, the 2nd Defendant exercised its right of sale under the mortgage agreement.”

DW1; Isah Abdulazeez under cross-examination (sic) that the 1st plaintiff used Certificate of Occupancy Exhibit “F” as guaranteed and collateral for the then DW2 stated under cross-examinations that:
“The land in dispute is the possession of the 1st Defendant and after selling the property Union Bank 2nd Defendant no longer have interest in the property DW2 further stated under cross-examination that it was as a result of the failure on the part of the 1st plaintiff to pay the loan that prompted Union Bank 2nd Defendant to exercise its right of sale and sold the property in contention to 1st Defendant Exhibit ‘G1’, ‘H’ clearly indicated that the 2nd Defendant’s agent Alhaji Mohammed Salihu sold the property in contention to 1st Defendant with express permission of 2nd Defendant.
Accordingly, I hold that the property covered by Exhibit ‘F’ was sold to defendant in good faith.
In view of my findings above, the defendant is hereby entitled for 2nd Defendant/counter-claim as per reliefs 13(a) (b) of the counterclaim.”

It was on the basis of the foregoing findings that the 2nd Appellant was ordered to pay the sum of N26,840,363 with interest at the rate of 26.5% for the remaining unpaid balance of monies owed by 1st Appellant. Clearly, the evidence relied upon by the trial judge in his decision to give judgment in favour of the 2nd Respondent are totally unrelated and unhelpful to the counterclaim and the reliefs sought. As rightly pointed out by the Appellants’ counsel, issues were joined on the counterclaim and it is obvious that the assertions in the Appellants’ reply and defence to counter-claim at page 223 of the record of appeal were totally ignored by the lower Court. Indeed, Exhibit ‘N’, the 1st Appellant’s statement of account was not subjected to scrutiny by the trial judge in arriving at the judgment in the counter-claim. I hold that the judgment in the counter-claim was perverse and this Court is empowered to consider the evidence that are relevant albeit ignored by the trial Court:
“Where a Court of trial fails in its duty to properly consider the evidence before it, and the failure led it to draw wrongful conclusion for the accepted evidence, the Appellate Court is perfectly entitled in evaluating and considering the whole decision in order to arrive at a just decision – Woluchem vs. Gudi (1981) 5 SC, 291, AG, Oyo State vs. Fairlakes Hotel Ltd No. 2 (1989) 5 NWLR (Pt. 121) at 255 at285. See also the case of Iheonuekwu V. The State (2009)2 SCNJ 223 at 257 PARA 20. The Apex Court held that, where the trial Court failed to properly evaluate the pieces of evidence adduced by parties an appellate Court is eminently empowered to re-evaluate same and make appropriate findings to meet the justice of the case. See Woluchem Vs. Gudi (1981) SC 291, AG, Oyo State vs. Fairlakes Hotel Ltd. No. 2 (1989) 5 NWLR (Pt. 121) at 255 at 285.”

Having examined the state of pleadings and evidence, I hold that the trial judge erred when he wrongly applied unrelated evidence in holding that the counter-claimant had proved its case.
He ought to have examined Exhibit ‘N’, the statement of account of the 1st Appellant maintained with the 2nd Respondent. Aside from tendering Exhibit ‘N’, DW2 only drew the attention of the Court to the last page of Exhibit ‘N’ which according to him shows the amount the 1st Appellant is owing. Diverse figures are reflected on the last page of Exhibit ‘N’ which does not tally with the sum of N26,840,363 being claimed in the counter-claim. DW2 just dumped Exhibit ‘N’ without eliciting any evidence to connect Exhibit ‘N’ to the 2nd respondent’s claim before the trial Court. The sum effect of all the misapplied evidence and failure to link Exhibit ‘N’ to the counter-claimant’s case is that there is no evidence in proof of the counterclaim, hence the counterclaim is not substantiated with plausible evidence.
In APGA V. AL Makura 2016 LPELR- 47053 SC, the Court deprecated the practice of dumping of documents at trial without evidence to link it to the case before the Court:
“On the issue of dumping documents, it is trite law that documents apart from what they contain, do not speak. Therefore, a document cannot serve any useful purpose in the absence of oral evidence explaining its essence. The fact that a document has been admitted from the bar or by consent of parties does not necessarily mean that similar weight or any weight at all, should be automatically ascribed to it without further proof. It is the duty of the party tendering documents to relate each document tendered to that part of the case it intends to prove. This will enable the opposing party ask appropriate question. It does not lie in the Court to fish for evidence for the party tendering from the bar, from those documents.”

Lastly, the Appellants’ counsel has submitted that the 2nd Respondent’s counter-claim is an abuse of Court process since it is a rehash of the counterclaim of suit No. NSCH/BD/12/1993, pending before the High Court of Niger State in suit No. NSCH/BD/12/1993. He contends that the counter-claim in that suit is pending before the Court in Minna. He has therefore submitted that the counter-claim in this suit is an abuse of Court process. He commended this Court to the decision in DINGYADI & Anor vs. INEC & Ors. 2010 LPELR-951 SC. Appellants’ counsel urged this Court to dismiss the counter-claim in the light of the decision of FBN Vs. TSA INDUSTRIES LTD (2012) LPELR- 9714 where the Apex Court held that “Where the Court comes to the conclusion that its process is abused, the appropriate order is that of dismissal of the process.” I am disinclined to endorse the submission of learned counsel for the Appellants for the simple reason that this objection ought to have been raised upon service of the counterclaim. Having taken further steps in reaction to the counterclaim he cannot be heard to challenge the counterclaim. It is too late in the day when the counterclaim has gone through a full-fledged trial and all that is left is for judgment to be delivered. Having kept silent till the determination of this appeal, Appellants’ counsel should keep his peace forever.

In the light of the foregoing considerations and findings, as well as the submission of counsel on this issue, I am of the view and so hold that the Appellants’ appeal is meritorious. I will proceed to make the following orders:
1) It is hereby declared that the Appellants are entitled to exclusive possession of all that piece of property situate at Bida, Katereji Road industrial site opposite Bida General Hospital consisting of 1.13 hectares described in the schedule and more particularly delineated in the plan annexed to the Certificate of Occupancy No. NGS 2871 issued in favour of the 1st Appellant by the Niger State Government
2) The Appellants’ second leg of the relief claimed at the lower Court is hereby declined and is accordingly dismissed.
3) General damages in the sum of N10 Million is awarded against the 2nd Respondent in favour of the 1st Appellant.
4) 1st Respondent, his privies, agents, servants and any other person(s) otherwise whosoever called acting or purporting to act on his behalf or instructions from further trespassing on all that property situate at Bida Katereji Road, Industrial site opposite Bida General Hospital consisting of 1.13 hectares, described in the schedule and are particularly delineated in the plan annexed to Certificate of Occupancy No. NGS 2871 issue in favour of the 1st plaintiff by the Niger State Government.

The judgment of the lower Court on the counter-claim of the 2nd Respondent is hereby set aside.

In sum, the judgment of the lower Court in the substantive suit and the counter-claim are hereby set aside. This appeal succeeds. Costs in the sum of N250,000.00 shall be paid by the 2nd Respondent in favour of the 1st Appellant.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft, the judgment just delivered by my learned brother, Olasumbo Olanrewaju Goodluck, JCA.

I am in agreement with the reasoning and the conclusion which I adopt as mine. I therefore allow the appeal and set aside the judgment of the trial Court.

I abide by the consequential orders inclusive of the order as to costs made therein.

SYBIL ONYEJI NWAKA GBAGI, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my brother OLASUMBO OLANREWAJU GOODLUCK, JCA. I agree with his guidelines and conclusion that this appeal is one that must succeed. This appeal succeeds, I abide by the consequential order made in the lead judgment as to costs.

Appearances:

…For Appellant(s)

…For Respondent(s)