KUMO v. BAPPARI & ORS
(2022)LCN/16953(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/G/140/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ALH. ISA UMARU KUMO APPELANT(S)
And
1. ALH. MAHMOOD BAPPARI 2. GOMBE STATE URBAN PLANNING & DEVELOPMENT BOARD 3. MINISTRY OF LANDS & SURVEY GOMBE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON A BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE, IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The Appellant has argued that he bought the land in good faith without notice of any adverse claim. In other words, that he (Appellant) is a bona fide purchaser for value without notice. A bona fide purchaser for value without notice is a person who purchased property for valuable consideration without notice of any prior right or title which, if upheld, will derogate from the title which he has purported to acquire – Best (Nig.) Ltd V Blackwood Hodge (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95. The law is that only a bona fide purchaser of a legal estate for value without notice of any defect in title can take priority over someone who had acquired a prior equitable interest or title over the property – Ohiaeri V Yussuf (2009) LPELR-2361(SC). A purchase without notice exists only if the purchaser had no notice of the existence of the equitable interest. When a person is said to be a bona fide purchaser for value without notice, such notice may be actual, constructive or imputed, and it refers to notice of matters which might affect the efficacy of the title of the vendor.
The fundamental principle in all land transactions is captured in the Latin maxim, “caveat emptor”, which means, let the buyer beware. A purchaser is required in law to first of all conduct a search in the relevant registries before committing his money in any property transaction. Once a purchaser carries out all the necessary searches required of him and there is nothing adverse discovered, having exercised all due care and diligence, interest in the property will pass even if it is subsequently claimed that there was a defect in title and irregularities not on the part of the purchaser – Ageh V Tortya (2003) 6 NWLR (Pt. 816) 385, 396, Owo V Kasumu (1932) 11 NLR 116.
In the case of Animashaun V Olojo (1990) 6 NWLR (Pt. 154) 111, 122-123, Obaseki, JSC expounded the law as follows:
“What is the meaning of ‘bona fide purchaser of the legal estate for value without notice’?
Bona fide is defined as ‘in good faith, honesty, without fraud, collusion or participation in wrong doing’. Purchasing for value – ‘Purchaser’ in its technical sense does not necessarily imply purchaser for value. ‘For value’ are included to show that value must be given to earn the immunity. ‘Value’ means any consideration in money, money’s worth (e.g. other lands, stocks and shares or services or marriage…). ‘Of a legal estate’ – As Courts of equity break in upon the Common Law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate… ‘Without notice’ He must have neither actual notice nor constructive notice nor imputed notice.
A person has actual notice of all facts of which he had actual knowledge however that knowledge was acquired… PER SANKEY, J.C.A.
THE BURDEN OF PROOF WHERE A PARTY SEEKS TO INVOKE THE PRINCIPLE OF LAW THAT HE IS THE BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE
I have given close consideration to the submissions of all learned Counsel in their respective briefs of argument. It is clear that the law requires a party who seeks to invoke the principle of law that he is a bona fide purchaser for value without notice to establish that he exercised due care and was diligent in his search to verify the title of his vendor. Thus, he must have neither actual, constructive or imputed notice that the property in question was encumbered. As aforesaid, the principle of law in property transactions is caveat emptor. The risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing the purchase. Thus, a purchaser would only be able to successfully plead the absence of notice if he has made all usual and proper inquiries and has still found nothing to indicate the existence of any equitable interest. PER SANKEY, J.C.A.
WHETHER OR NOT A COURT CAN MAKE INCIDENTAL OR CONSEQUENTIAL ORDERS TO ITS JUDGEMENT IN ORDER TO CARRY OUT ITS MEANING
It is settled law that in appropriate cases, a Court has inherent jurisdiction to make incidental or consequential orders to its judgment in order to carry out its meaning or to make its meaning plain – Uba V Etiaba (2010) 10 NWLR (Pt. 1202) 343, Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Olurotimi V Ige (1993) 8 NWLR 311. As aforesaid, as a consequential order, it necessarily flows directly and naturally from the judgment, and is inevitable and consequent upon the findings in the Judgment of the lower Court – Eyigebe V Iyaji (2013) LPELR-SC/216/2004; Awoniyi V AMORC (2002) 6 SCNJ 141. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Gombe State delivered in Suit No. GM/118/2019 on 5th October, 2021, Coram: Ibrahim Mohammed, J.
Briefly put, the facts of the case leading to the appeal are that the Appellant filed a suit before the trial Court against the Respondents vide a Writ of Summons and Statement of Claim. Therein, he claimed declaratory reliefs over a plot of land, to wit: Plot No. C168 in GDP/16 covered by an approval for a grant of a Right of Occupancy No. GM/14437. He claimed to have bought the property from the original allottee, Maigari Usman, whom he claimed was allocated the land by the 3rd Respondent (Ministry of Lands & Survey Gombe State) in 2007. The 1st Respondent also laid claim to ownership of the land which he also claimed was allocated to him by the same 3rd Respondent in 2004. Thereafter, the documents of title were processed and a Certificate of Occupancy was issued to him.
Parties duly exchanged pleadings and issues were joined. To prove his claim, the Appellant adduced evidence through three witnesses and six exhibits. The 1st Respondent, in his defence, also adduced evidence through one witness and four exhibits; while the 2nd and 3rd Respondents adduced evidence through one witness each and one exhibit.
At the close of trial, the lower Court visited the locus in quo on 13th August, 2021. Thereafter, Counsel delivered their closing arguments and the trial Court delivered judgment on 5th December, 2021 dismissing the claim of the Appellant. Aggrieved by this decision, the Appellant appealed to this Court vide his Notice and Grounds of Appeal filed on 12th October, 2021 wherein he complained on five grounds. He prayed the Court to allow the appeal and set aside the Judgment of the lower Court.
At the hearing of the appeal on 23-03-22, learned Counsel for the Appellant, I.S. Said, Esq., adopted the submissions in the Appellant’s Brief of argument filed on 17-01-22, as well as those in the Appellant’s Reply Brief of Argument filed on 08-03-22, both Briefs of Argument settled by the same Counsel, in urging the Court to allow the appeal.
Learned Counsel for the 1st Respondent, Dennis Eze Esq., also adopted the arguments in the 1st Respondent’s Brief of Argument filed on 04-02-22 and settled by him, in urging the Court to dismiss the appeal and affirm the decision of the trial Court. In the same vein, learned Counsel for the 2nd and 3rd Respondents, M.N. Abdu Esq., Acting DCL Ministry of Justice Gombe State, adopted the arguments in the 2nd and 3rd Respondents’ Brief of Argument filed on 28-02-22 and settled by M.I. Isah Esq., in urging the Court to dismiss the appeal and uphold the judgment of the trial Court.
The Appellant, in his Brief of Argument, formulated five issues for determination from the five grounds of appeal as follows:
1. “Whether the Appellant has proved his case on a preponderance of evidence having bought the land in dispute in good faith and without notice of any adverse claim? (Ground 1)
2. Whether looking at the defence of the 1st Defendant, the Defendant is entitled to any relief before this Court? (Ground 2)
3. Whether the lower Court was right when it held that the Appellant avoided to prove the allegation of falsification of document even when same is not part of the claim before the Court? (Ground 3)
4. Whether the lower Court was right when it dismissed the case of the Appellant without evaluation of oral and documentary evidence? (Ground 4)
5. Whether the lower Court was right when it declared the transaction between Maigari Usman and the Appellant as null and void? (Ground 5).”
The 1st Respondent distilled one issue from the grounds of appeal thus:
“Whether or not the trial High Court was right in dismissing the claims of the Plaintiff/Appellant? (Grounds 1, 2, 3, 4 & 5).”
On the part of the 2nd and 3rd Respondents, they framed the following sole issue for determination:
“Whether from the facts and circumstances of this case, the Appellant has proved his case based on the preponderance of evidence? (Grounds 1-5)”
From a consideration of the three sets of issues for determination, I am of the view that the five issues culled by the Appellant can be collapsed under any of the lone issues crafted by the Respondents. In my considered view therefore, the following issue will serve to resolve the complaints contained in the Appellant’s five grounds of Appeal:
“Whether from the facts and circumstances of this case, the Appellant proved his case based on the preponderance of evidence?
ARGUMENTS
In arguing the appeal, learned Counsel for the Appellant drew the Court’s attention to the case of the Appellant, as Plaintiff before the lower Court. His claim for a declaration of title to the property in dispute was hinged on title documents. In this regard, he tendered Exhibits MU1, MU2, MU3, MU5 and MU6 and also called two witnesses and one more witness on subpoena. PW1 was his root of title, Maigari Usman, PW1 who was allotted the land in 2007 and subsequently sold it to the Appellant. The Appellant developed the land and had been in possession uninterrupted. The Court is therefore urged to hold that his acts of possession were sufficient to equate ownership.
Counsel submits that since the 1st Respondent did not file any counter-claim, the lower Court erred in granting him reliefs. He therefore submits that the findings of the lower Court that the 1st Respondent has a better claim than the Appellant and that the allocation to Usman Maigari is null and void, should be set aside. In addition, Counsel asked the Court to hold that the failure of the 1st Respondent to testify to his ownership of the land, being the acclaimed original allottee as disclosed in Exhibit MB4, is fatal to the Respondents’ case because his evidence is vital and indispensable.
Yet again Counsel faulted the lower Court for finding that the Appellant made no attempt to prove the allegation of falsification of documents which, he however contends, was not a part of his claim. Counsel contends that this issue was raised suo motu by the lower Court and, without availing parties an opportunity to address on it, he made findings thereon. He therefore submits that the judgment is perverse because it was decided against the claims and evidence placed before the lower Court; and because the lower Court took matters into account that were not relevant and which were outside the issues canvassed before it, while ignoring important facts and evidence. This he argues, has occasioned a miscarriage of justice.
Counsel further submits that the lower Court failed to evaluate the evidence placed before it and also failed to pronounce on the issues raised in the written addresses of Counsel. He therefore invited this Court to re-evaluate the evidence contained in the Record of Appeal.
Counsel also faults the lower Court for declaring the transaction for sale of land between the Appellant and Maigari null and void on the basis of whether there was an application for the Governor’s consent. He contends that this was also not an issue before it. There was also no such relief sought for by the 1st Respondent and so the finding was made suo motu.
Counsel submits that the lower Court was not right in declaring the transaction null and void when the vendor did not deny that he sold the land to the Appellant, and the Respondents did not make the validity of the sale an issue. Counsel referred to a host of decided cases for principles of law applicable in substantiation of his submissions. Finally, Counsel urged the Court to allow the appeal and set aside the judgment of the lower Court.
In response, learned Counsel for the 1st Respondent submits that the settled law is that a plaintiff succeeds on the strength of his case and not on the weakness of the defence. Therefore, where the Appellant fails to prove his case, the Court will be right to dismiss it for want of merit. He referred to the evidence of PW1, Maigari Usman, who testified that he was allocated the land in dispute on 15-08-07, and who therefore expressed surprise that the 1st Respondent was allocated the same piece of land on 01-04-05. Counsel submits that the Appellant only concentrated on establishing to the lower Court how he bought the disputed land from PW1, without conducting a search on the validity of PW1’s title at the office of the 3rd Respondent. Thus, the documents placed before the lower Court did not validly connect PW1 to the land.
Counsel submits that the case of the parties is essentially documentary and that the Appellant failed to establish his claim. Having failed to discharge the onus on him, the claim was liable to be dismissed. On the contention that the failure of the 1st Respondent to testify was fatal to his case, Counsel submits that it is a gross misconception because such does not support the case of the Appellant who failed to prove his case by establishing a valid title coupled with actual possession.
Counsel submits that where a party relies on and pleads a grant as his root of title, he is under a duty to prove such a grant. The 1st Respondent pleaded his source of title in his Amended Statement of Defence. He referred to the evidence of DW1 who testified as to how he, on behalf of the 1st Respondent, went through all the processes to obtain the title documents in respect of the disputed land and tendered the genuine and valid documents of allocation issued by the 3rd Respondent in 2005. The documents were issued two years before the same land was purportedly allocated to the Appellant. They were duly pleaded and admitted in evidence as Exhibits MB2-MB5 1-4. He also referred to the evidence of the 2nd and 3rd Respondents and, in particular, the evidence of DW2. DW2, an officer of the 3rd Respondent, testified that the offer of allocation of the land in dispute to the Appellant coming subsequent to that already offered to the 1st Respondent, overlapped into the existing allocation. Reference is made in particular to Exhibit RM1, the ‘Report of dis-recommendation’ due to the over-lap. Counsel therefore submits that the lower Court duly appraised the evidence and ascribed probative value to it before arriving at its findings, which is the primary business of the trial Court which saw and heard the witnesses. Counsel submits that the appellate Court will not lightly interfere with this exercise unless there are compelling reasons to do so, such as where the decision is perverse.
In respect of the submission of Appellant’s Counsel faulting the pronouncement of the lower Court that the transaction between PW1 and the Appellant was null and void, Counsel submits that even where a claimant has a Certificate of Occupancy, it will not defeat the right of a person with a better title. In this case, the Appellant was allocated the land two years after it had already been allocated to the 1st Respondent.
On the contention that the trial Court gave the 1st Respondent a relief he did not ask for, Counsel refers to paragraph 10 of the Amended Statement of Defence. In addition, he refers to the decision in OSIEC V AC (2010) 12 (Pt. 2) SCM 224 where it was held that a consequential order is one made giving effect to the judgment and that a Court has the power to grant a party the relief it did not ask for as a consequential order. Counsel therefore submits that the said pronouncement of the lower Court is valid.
However, that even if the consequential order is set aside, the Appellant’s case still stands dismissed for want of merit. The suit is therefore dead even without the additional pronouncement of the lower Court that the allocation to PW1 is null and void, and it cannot be resurrected through technicalities. Counsel relied on a cloud of cases to support his submissions. Finally, he urged the Court to dismiss the Appeal and affirm the decision of the trial Court.
On his part, learned Counsel for the 2nd and 3rd Respondents submits that parties are agreed that they (Appellant through PW1, and 1st Respondent) derived title from a common source (3rd Respondent); for whereas the Appellant in his pleadings and evidence claims that the disputed land was allocated to him by the 3rd Respondent in 2007, the 1st Respondent also claimed that the 3rd Respondent allocated the land to him in 2005. In proof of his claim, the Appellant tendered his allocation letter and the letter of Grant of Right of Occupancy dated 15th August, 2007 and 31st January, 2012 (Exhibits MU1 & MU5 respectively). In his defence, the 1st Respondent tendered his letter of offer dated 1st April, 2005, letter of Grant of Right of Occupancy dated 29th April, 2007 and a Certificate of Occupancy dated 23rd April, 2018 (Exhibits MB2, MB3 & MB4 respectively). The 2nd and 3rd Respondents on their part, tendered a Survey Report (Exhibit RM5) through DW2. This document was issued by the Survey Department dis-recommending the allocation made to PW1, the subsequent allocation being an overlap of the existing plot earlier granted to the 1st Respondent. It is therefore submitted that PW1 who is the root of title of the Appellant, did not have a valid title to transfer to the Appellant. Consequently, that the documents of title issued to the 1st Respondent, being earlier in time, must take pre-eminence over that of the Appellant. Counsel argues that the Appellant’s documents of title, being later in time; and his acts of possession, cannot take pre-eminence over the title of the 1st Respondent.
Counsel submits that since there were two contending parties to the land in dispute, it was proper for the lower Court to determine the validity of the two sets of title documents as the very basis for dismissing the suit. He submits that the trial Court was thus right to pronounce that the purported sale of the disputed land by PW1 to the Appellant was null and void, having found that the PW1’s title was later in time. The trial Court did not however go on to confer the ownership of the disputed land on the 1st Respondent. Thus, the lower Court did not act in excess of its powers.
On the contention of the Appellant that the trial Court failed to evaluate the evidence, Counsel concedes that the evaluation and ascription of probative value was the duty of the trial Court. He submits that in instant case, both the Appellant and the 1st Respondent contended that they were issued the documents of title by the office of the 3rd Respondent. This therefore informed the decision of the trial Court to narrow down its judgment to the issue of title, there being no conflict on facts, as the case was based mainly on documentary evidence without further need for recourse to oral evidence. He submits that the lower Court was therefore right to dismiss the claim. He relied on numerous decisions in support of these submissions. Finally, Counsel urged the Court to dismiss the appeal and uphold the judgment of the trial Court.
In the Appellant’s Reply Brief, he essentially re-argued the appeal and re-hashed the arguments in the Appellant’s Brief of argument. It was mainly a submission on facts which did not address any new points of law raised by the Respondents. This is neither the purpose nor purport of a Reply Brief of argument.
RESOLUTION OF SOLE ISSUE
The Appellant has argued that he bought the land in good faith without notice of any adverse claim. In other words, that he (Appellant) is a bona fide purchaser for value without notice. A bona fide purchaser for value without notice is a person who purchased property for valuable consideration without notice of any prior right or title which, if upheld, will derogate from the title which he has purported to acquire – Best (Nig.) Ltd V Blackwood Hodge (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95. The law is that only a bona fide purchaser of a legal estate for value without notice of any defect in title can take priority over someone who had acquired a prior equitable interest or title over the property – Ohiaeri V Yussuf (2009) LPELR-2361(SC). A purchase without notice exists only if the purchaser had no notice of the existence of the equitable interest. When a person is said to be a bona fide purchaser for value without notice, such notice may be actual, constructive or imputed, and it refers to notice of matters which might affect the efficacy of the title of the vendor.
The fundamental principle in all land transactions is captured in the Latin maxim, “caveat emptor”, which means, let the buyer beware. A purchaser is required in law to first of all conduct a search in the relevant registries before committing his money in any property transaction. Once a purchaser carries out all the necessary searches required of him and there is nothing adverse discovered, having exercised all due care and diligence, interest in the property will pass even if it is subsequently claimed that there was a defect in title and irregularities not on the part of the purchaser – Ageh V Tortya (2003) 6 NWLR (Pt. 816) 385, 396, Owo V Kasumu (1932) 11 NLR 116.
In the case of Animashaun V Olojo (1990) 6 NWLR (Pt. 154) 111, 122-123, Obaseki, JSC expounded the law as follows:
“What is the meaning of ‘bona fide purchaser of the legal estate for value without notice’?
Bona fide is defined as ‘in good faith, honesty, without fraud, collusion or participation in wrong doing’. Purchasing for value – ‘Purchaser’ in its technical sense does not necessarily imply purchaser for value. ‘For value’ are included to show that value must be given to earn the immunity. ‘Value’ means any consideration in money, money’s worth (e.g. other lands, stocks and shares or services or marriage…). ‘Of a legal estate’ – As Courts of equity break in upon the Common Law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate… ‘Without notice’ He must have neither actual notice nor constructive notice nor imputed notice.
A person has actual notice of all facts of which he had actual knowledge however that knowledge was acquired…
Constructive Notice – The Court of Chancery insisted that the purchaser should inquire about equitable interest with no less diligence about legal which they could ignore only at their own peril. The motto of English Conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries and had still failed to detect the equitable interest.
Imputed Notice –There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual or constructive notice… which the agent receives is imputed to the purchaser…” (Emphasis supplied)
His Lordship explained further as follows:
“The key element in a plea of bona fide purchaser for value without notice is the concept of caveat emptor which postulates that a purchaser should beware and ought not to be ignorant that he is purchasing the rights of another. It is the primary responsibility of a purchaser of land to mount vigorous search in order to satisfy himself that the land is free from encumbrances and to ensure that the rights he is purchasing belong to the vendor. It is for a party to a contract to take all necessary precautions to avoid entering into a bad bargain. The principle is as old as the law itself…” (Emphasis supplied)
Again, in Onyido V Ajemba (1991) 14 NWLR (Pt. 184) 203, 228, D-H, Uwaifo, JCA (as he then was), explained the principle further thus:
“It follows, in my view, that a purchaser must be careful to know the full details about the land he is buying so as to acquire a good title by ensuring that the vendor has the necessary title to what he offers to sell. The rule is caveat emptor – let the buyer beware. It is a very old and useful rule. To quote Richards C.B. in Purvis V Royer (1821) 9 Price 488 at 518:
“It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person, generally speaking, offers anything for sale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualifications, and in the way in which he, the vendee, understood that he bought it; that is, so as to afford him an assurance of having bought what he wanted, and meant to buy, or, at least, he may reject the contract.” (Emphasis supplied)
An example of how far the principle of caveat emptor can be extended was demonstrated in the case of Eholor V Osayande (1992) 6 NWLR (Pt. 249) 524, where the Supreme Court held that a grantee of land which gets affected by town planning regulations must take his land as he finds it and cannot turn to the grantor or the holder of an adjoining land for compensation for his loss thereby, as town planning regulations were part of what the grantee should have investigated in the process of his investigation of the title.
Now the question to be answered in the instant appeal is: whether on the facts of the instant case, the Appellant acquired a good title to the land and can be described as a bona fide purchaser for value without notice? From the facts on record, there is no dispute that the Appellant bought the property for value from PW1. The evidence discloses that he paid the sum of N900, 000.00 to PW1 who claimed to be the owner of the property. The question is: given the facts and circumstances of the case vis-à-vis the law on the subject, can the Appellant be said to have bought the property bona fide and without notice?
I have given close consideration to the submissions of all learned Counsel in their respective briefs of argument. It is clear that the law requires a party who seeks to invoke the principle of law that he is a bona fide purchaser for value without notice to establish that he exercised due care and was diligent in his search to verify the title of his vendor. Thus, he must have neither actual, constructive or imputed notice that the property in question was encumbered. As aforesaid, the principle of law in property transactions is caveat emptor. The risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing the purchase. Thus, a purchaser would only be able to successfully plead the absence of notice if he has made all usual and proper inquiries and has still found nothing to indicate the existence of any equitable interest.
In the instant case, there was no evidence of the enquiries made by the Appellant when he purchased the land from PW1. In view of the evidence of DW1 and DW2, the latter of whom is an officer of the 3rd Respondent (Ministry of Lands& Survey Gombe State), if the Appellant had simply bothered to investigate the title of PW1 at the Registry of the 3rd Respondent before he paid for the property, he would have discovered that there was an encumbrance on the land which was in the form of the prior title of the 1st Defendant. Having not bothered to conduct any investigation or enquiry into the title of PW1 before he entered into the transaction of sale of land, he is taken by law to have constructive notice of the prior title of the 1st Respondent. In the light of this, he does not qualify as an innocent or bona fide purchaser for value without notice.
In respect of the contention of the Appellant that the failure of the 1st Respondent to testify in defence of the claim was fatal to his defence, the law is trite that there is no compulsion for the 1st Respondent to have testified if his defence can be presented and substantiated by evidence adduced by any other witness or witnesses or documentary evidence he presents. This is the case even in criminal cases where an accused person is not compelled to testify if the prosecution has not made out a case against him. It is the law that the burden of proof in civil matters is first on the person who asserts and who would fail if no evidence at all is adduced on either side. Thereafter, the onus shifts to the defendant to disprove, and so on and so forth until all the facts in issue between the parties are resolved – Sections 131-133 of the Evidence Act, 2011.
In the instant case, the onus was on the Appellant to first prove his claim. After the Appellant had adduced evidence through three witnesses, including his root of title being the vendor of the property, PW1 and several documents, the 1st Respondent also adduced evidence through one witness, DW1, and several documents. This witness clearly testified that he submitted the 1st Respondent’s application for an allocation of land and followed up on all the processes with the 3rd Respondent from 2005 when the property was allocated until 2007 when the Grant of the Right of Occupancy was issued, and 2018 when the Certificate of Occupancy was finally issued. Having been intricately involved in the process on behalf of the 1st Respondent, he gave detailed evidence and tendered all the 1st Respondent’s documents of title. His evidence was supported and confirmed in all material particulars by the witness of the 3rd Respondent, DW2, an officer of the Ministry of Lands & Survey.
Both the Appellant and the 1st Respondent are in agreement that the 3rd Respondent was the source of their titles. DW2 also confirmed the same. However, DW2 testified in line with the 1st Respondent’s defence that the title of the 1st Respondent was first in time and that the allocation of the same land to the Appellant two years later was an overlap. When this overlap or duplication was discovered, the 3rd Respondent dis-recommended the allocation to the Appellant.
The logical deduction from all these pieces of evidence tied together is that the Appellant did not carry out his due diligence when he purchased the land from PW1. From the evidence of DW1 and DW2, if the Appellant had bothered to embark upon a search at the Land Registry on the property in dispute, he would undoubtedly have discovered that there was an encumbrance on it, the land having been previously allocated to the 1st Respondent. Thus, constructive notice is imputed to the Appellant. Therefore, he cannot, based on the facts and circumstances of the instant case, be a bona fide purchaser for value without notice. In the same vein, the fact that the 1st Respondent did not personally testify is immaterial since facts were adduced through oral and documentary evidence which established a credible defence against the claim.
The Appellant has also faulted the Judgment of the trial Court in its holding that the Appellant did not prove falsification of the documents of the 1st Respondent. This submission was made by the Appellant in closing arguments and repeated in this Court vide the Appellant’s Brief of argument. The Appellant having raised this, the trial Judge was entitled to make a finding thereon in determining the claim because by this, the Appellant was impugning the integrity of the 1st Respondent’s documents of title. His assertion imputed that the 1st Respondent’s documents were not genuine and that they had been deliberately falsified in order to give an unwarranted benefit to the 1st Respondent. The learned trial Judge cannot therefore be accused to have gone outside the claim and reliefs of the Appellant.
In addition, the allegation of falsification of documents, in other words: using as true a certificate known to be false or using as genuine a forged document, is no doubt a criminal one. See Sections 163 and 366 of the Penal Code Law. That being the case, even though it was raised by the Appellant in a civil proceeding, it must be proved beyond reasonable doubt in order for the trial Court to act on it, and for same to have any impact on the case. The learned trial Judge was therefore right to have considered the allegation, albeit that it was raised belatedly in Counsel’s address. His Lordship was also right when he held that the Appellant was obliged to prove such a criminal allegation beyond reasonable doubt.
The Appellant has also complained that the trial Court did not evaluate the evidence adduced before it. I have perused the judgment of the trial Court contained at pages 212-215 of the Record of Appeal. It is apparent therein that the learned trial Judge considered the evidence adduced by the parties and the exhibits tendered, in conjunction with the final written addresses of Counsel. Based on such consideration, he came to a decision that a determination of the issues raised by the pleadings and evidence could largely be made on the documentary evidence tendered by both parties. I cannot fault this finding. From the Record of Appeal, the pleadings and evidence disclose that both the Appellant and the 1st Respondent traced their root of title ultimately to the 3rd Respondent, Ministry of Lands & Survey Gombe State, who issued the letters of allocation and Rights of Occupancy, as well as the 1st Respondent’s Certificate of Occupancy to each of the two parties. The facts adduced from the oral evidence adduced was therefore not in doubt. Thus, the crux of the case boiled down to which of the two allocations supported by the documents of title were valid in law. Having thus cut to the chase, it was no longer necessary for the learned trial Judge to plough through the oral evidence since the case was fought mainly on documentary evidence placed before the lower Court. There was no dispute as to facts. The law is settled that documentary evidence is the hangar on which oral evidence is tested/assessed.
From the oral evidence of PW1 and DW1, the vendor to the Appellant (PW1) and the 1st Respondent were each allocated the land in dispute in 2007 and 2005 respectively by the 3rd Respondent. It was therefore left for the trial Judge to determine which of the two allocations, and the documents of title issued as a result of these allocations, were valid in law. This determination he made from a consideration of the documentary evidence presented by both parties. The documents disclosed that the documents of title issued by 3rd Respondent to the 1st Respondent were first in time and so the 1st Respondent had prior title. From Exhibits MU1, MU3, MU5 and MU6 tendered by the 1st Respondent and Exhibits MB1A-4A, MB2, MB3 and MB4 tendered by the Appellant, PW1 was allocated the land in 2007, two years after the allocation to the 1st Respondent in 2005. Consequently, in law, at the time PW1 sold the land in question to the Appellant, he had no title to pass since title was already vested in the 1st Respondent. Based on this, I am of the considered view that the learned trial Judge, in basing his decision mainly on the documentary evidence placed before the lower Court, cannot be faulted.
Finally, learned Counsel for the Appellant has faulted the pronouncement of the learned trial Judge that the Appellant’s title was null and void, following his finding that the 1st Respondent had a better title than the Appellant. He contends that this was wrong since the 1st Respondent had no counter-claim and so had sought no such relief. I agree with the Respondents that this line of argument is misconceived. This is because the pronouncement that the Appellant’s documents of title were null and void (at page 215 of the Record) was in consequence of his earlier findings. The law is trite that one of the justifications of a consequential order is to give effect to the Judgment or to give meaning to the Judgment. See the locus classicus on this in Obayagbona V Obazee (1972) LPELR-2159(SC) 7-8, F-A, per Sowemimo, JSC.
In the more recent case of Noekoer V Executive Gov. Plateau State (2018) LPELR-44350(SC), 41-42, C, the Supreme Court, per Peter-Odili, JSC, held as follows:
“The Supreme Court had made clarifications on matters pertaining to consequential orders and I specifically refer to the case of Chigozie Eze & 147 Ors V Governor of Abia State & Ors (2014) 7 SCNJ 38 at 57-88 thus:
“A consequential order is an order that gives effect to a judgment, it gives meaning to the judgment. It is traceable or following from the judgment prayed for and made consequent upon the relief claimed by the Plaintiff. A consequential order must be incidental and flow directly and naturally from the reliefs claimed. It is an offshoot of the main claim and it owed its existence to the main claim. It gives effect to the judgment already given.”
In his contribution, W.S.N. Onnoghen JSC (as he then was), at paras 15-25 had this to say:
“It is under the above general principle of law that another principle was developed or emerged; that of consequential relief is a principle that enables a Court of Law to grant to a party a relief incidental to the main relief(s) and which was/were not claimed by the party in question. It is designed to enable the Court do justice between the parties.” (Emphasis supplied)
In the instant case, the Appellant had sought for a declaration of title to the land covered by an Approval for a grant of Right of Occupancy No. GM/14437 in his favour, as well as a declaration that the Certificate of Occupancy No. GM/5696 in the name of the 1st Respondent is null and void and of no effect. That being the case, upon the lower Court’s finding that the Appellant had failed to prove his case, and in order to give effect and meaning to the judgment, the learned trial Judge pronounced as follows at pages 214-215 of the Record:
“On the whole, the plaintiff has failed to prove his claim on a preponderance of evidence before this Court, the case is hereby dismissed for lack of merit. The 1st defendant is shown from available evidence to have better title than the plaintiff, the 1st defendant title being first [in] time. The sale of land between Maigari Usman and the plaintiff was ab initio null and void.” (Emphasis supplied)
Taken in context, the final pronouncement of the lower Court did not amount to granting the 1st Respondent any relief. Instead, it was clearly issued to give effect and meaning to the judgment in respect of the claim of the Appellant wherein two declarations were sought, to wit: a declaration of title over the land that the Appellant bought from PW1, Maigari Usman, and a declaration that the Certificate of Occupancy issued to the 1st Respondent was null and void. Based on the evidence, the transaction between the Appellant and PW1 was declared null and void, the trial Court having found that the 1st Respondent’s title was first in time. It therefore followed that, at the time the Appellant purchased the land, PW1, Maigari Usman, had no title to pass to him. From the above, I am of the considered view that the pronouncement made does not in any way detract from the judgment, but simply gives effect/meaning to it. The lower Court did not also make any positive award or grant any relief to the 1st Respondent since, as rightly stated by the Appellant, the 1st Respondent did not counter-claim neither did he seek any relief from the trial Court. In my view, the pronouncement only stated the legal status of the two sets of documents of title in direct relation to the claim of the Appellant. I do not see the pronouncement as different from the result of the Judgment.
It is settled law that in appropriate cases, a Court has inherent jurisdiction to make incidental or consequential orders to its judgment in order to carry out its meaning or to make its meaning plain – Uba V Etiaba (2010) 10 NWLR (Pt. 1202) 343, Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Olurotimi V Ige (1993) 8 NWLR 311. As aforesaid, as a consequential order, it necessarily flows directly and naturally from the judgment, and is inevitable and consequent upon the findings in the Judgment of the lower Court – Eyigebe V Iyaji (2013) LPELR-SC/216/2004; Awoniyi V AMORC (2002) 6 SCNJ 141. I therefore agree with the 1st Respondents’ Counsel that the pronouncement complained of is consequential, following the dismissal of the Appellant’s claim. The submission of the Appellant in this regard only amounts to splitting hairs and is without substance.
Therefore, based on all the above findings, I resolve the sole issue for determination against the Appellant and in favour of the Respondent.
Consequently, I find the appeal lacking in merit. It fails and is dismissed.
Accordingly, I affirm the judgment of the High Court of Gombe State in Suit No. GM/118/2019, delivered on 5th October, 2021, Coram: Ibrahim Mohammed, J.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the benefit of reading the draft judgment of my Lord, JUMMAI HANNATU SANKEY, JCA. My Lord painstakingly considered the issue raised in this appeal and resolved same against the appellant. I am in agreement with my Lord’s resolution of the sole issue and do not consider it necessary to say anything more. Suffice it that the appeal lacks merit. I also dismiss it and affirm the judgment of the High Court of Gombe State in Suit No. GM/118/2019, delivered on the 5th of October, 2021.
EBIOWEI TOBI, J.C.A.: The Appellant and the 1st Respondent in this appeal were all claiming title to the subject property to wit: Plot NO. C168 IN GDP/16 covered by an approval for a grant of a Right of Occupancy No. GM/14437. Their claim is not completely out of line or place as from the facts in the record of appeal containing the writ and the pleadings, exhibits and submission of counsel and the judgment of the lower Court, it shows that the 2nd and 3rd Respondents at one time or the other, allocated the land in dispute to the Appellant and the 1st Respondent. Both parties legitimately could lay claim to the land but in law since the land was allocated to both of them and their equities seem to be equal, the first in time will prevail and be awarded title to the land. See Achilihu vs Anyatonwu (2013) 12 NWLR (pt 1368) 256.
From the records, the Appellant was allocated the land on 15/8/2007 while the 1st Respondent was allocated the land on 1/4/05. The calendar year 2005 comes before 2007. This is a period of 2 years difference. On the principle of first in time, the lower Court was right in dismissing the case of the Appellant as Plaintiff in the lower Court. The Appellant did not show that it had a superior title to that of the 1st Respondent. On that ground alone the lower Court was right.
The other position of the law that favours the decision of the lower Court is the principle of law that, where two parties claim title to land from a common source the person with a better title will be awarded title to the land. See Ogbu v. Wokoma (2005) LPELR-2293(SC). In the contention for ownership of the property from the same source in this instance, the Appellant and the 1st Respondent, the title of the property will be awarded to the person with a better title or the person who was first in time in the allocation. See Francis Adesina Ayanwale vs Olumuyiwa Olumide Odusami (2011) 18 NWLR (pt 1278) 328. In this respect, I wish to also cite the case of Emmanuel Ilona vs Sunday Idakwo & Anor (2003) LPELR-1496 (SC) where the apex Court held thus:
“The law is well settled that where, as in the present case, there are competing interests by two or more parties claiming title to the same piece or parcel of land from a common grantor, the position, both at law and in equity, is that such competing will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure which simply means that he who is earlier in time is stronger in law. See Ahmadu Bello University v. Fadinamu Trading Co. Ltd. & Anor (1975) 1 NMLR 42, Abiodun Adelaja v. Olatunde Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 at 151, Barclays Bank Ltd. v. Bird (1954) Ch. 274 and 280.”
Taking the two above principles into consideration, the only way the Appellant can be in contention for the land is, if he can prove that he is a bona fide purchaser for value without notice. My learned brother, J.H. Sankey, JCA has adequately stated the position of the law that I agree with absolutely. A bona fide purchase for value without notice is a person who purchased property for valuable consideration without notice of any prior right or title over the land which. See Best (Nig) Ltd vs B.H. (Nig) Ltd (2011) 5 NWLR (pt 1239) 95, Young Shall Grow Motors Ltd vs Onolaja (2021)3 NWLR (pt 1763) 300.
It is clear that for a person to enjoy the benefit of being a bona fide purchaser for value without notice he must act honestly, in good faith without intention to defraud. See Animashaun v. Olojo (1990) LPELR-491(SC). The person must show that there was no negligence on its part, that is to say that he must have done due diligent search and never found an encumbrance on the property. It is not just enough to make casual search but must be diligent search meaning overturning everything about any possibility of any encumbrance on the land. It is like using a touch light to check for a lost pin. The whole search must be complete and approved by any reasonable person that shows that indeed nothing else need to be done. The principle implies therefore that the law requires that proper investigation be done over the property. See Mohammed vs Mohammed (2012) 11 NWLR (pt 1310) 1. Failure to do that is detrimental to the claim of the Appellant in the lower Court. The reason for this is because a buyer of a property is expected to beware before committing his money. If the buyer is careless, he will take responsibility for his action. The buyer that can take advantage of the benefit of the defence must be who has a legal estate over the previous buyer with an equitable interest. See Malami vs Ohikhuare (2019) 7 NWLR (pt 1670) 132.
The evidence before the Court seem to show that the Appellant did not conduct any search in the appropriate quarters before buying the land which was earlier allocated to the 1st Respondent. In the circumstance, it is only reasonable to hold that the Appellant cannot come under the benefit of bona fide purchaser for value without notice. If the Appellant had done due search, he would have known that there was encumbrance on the land. Apart from that, there is no evidence that he has a legal estate over the interest of the Respondent.
For the above reason and for the fuller reason in the lead judgment of my learned brother, J. H. Sankey, JCA, I also hold that this appeal lacks merit and it is dismissed. The judgment of Ibrahim Mohammed J., is hereby affirmed.
Appearances:
I.S. Said, Esq. For Appellant(s)
Dennis Eze, Esq. – for 1st Respondent
Mohammed Isa Usman, Esq. Ag. DCL Ministry of Justice Gombe State, with him, S.O.Y Zagi, Esq. and M.N. Abdu, Esq. – for 2nd and 3rd Respondents For Respondent(s)
