LIMAN v. MOHAMMED & ORS
(2022)LCN/17030(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, June 21, 2022
CA/A/CV/358/2021
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
USMAN USMAN LIMAN APPELANT(S)
And
1 MR. IBRAHIM MOHAMMED 2 JON DEDABULUS 3 MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA 4 FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY, ABUJA RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES AND THE COURT ARE BOUND BY THE PLEADINGS
The law is trite that parties as well as the Court or tribunal are bound by the pleadings. See PEOPLES DEMOCRATIC PARTY V. SANI ALI & ORS, (2015) LPELR 40370 (CA), OLUWAROTIMI AKEREDOLU, SAN & ANOR V. RAHAMAN O. MIMIKO & ORS, (2013) LPELR 20889 (CA). In the case of PEOPLES DEMOCRATIC PARTY (PDP) V. INEC, (2014) LPELR 23808, the Supreme Court of Nigeria per OKORO, JSC held thus:
“It is trite law that at all times, parties are bound by their pleadings. A party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial Court. See American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (pt. 171) 15, Osho V. Foreign Finance Corporation & Anor, (1991) 5. SC 59.” PER SENCHI, J.C.A.
THE POSITION OF LAW ON THE DOCTRINE OF PRIVITY OF CONTRACT
As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to the contract. In other words, only the parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract, or enquire about its performance. In the case of OSHEVIRE LIMITED V. TRIPOLI MOTORS (1997) LPELR 1584, the Supreme Court of Nigeria held as follows:
“The doctrine of privity of contract, according to Chitty on Contracts, 23rd Edition page 453 paragraph 971, may be stated as follows: a contract cannot confer rights or impose obligations arising under it on any person except the parties to it.” PER SENCHI, J.C.A.
WHETHER OR NOT THE ADDRESS OF A COUNSEL CAN TAKE THE PLACE OF PLEADED FACTS AND EVIDENCE
In a nutshell and without much ado, the submissions of learned senior Counsel is not supported by the Appellant’s pleadings or evidence. Thus, Address of Counsel, no matter how eloquent and sound it might be, cannot take the place of pleaded facts and evidence. In the case of NEKA B.B.B. MANUFACTURING COMPANY LTD V. AFRICAN CONTINENTAL BANK, (2004) LPELR 1982, the Supreme Court per PATS-ACHOLONU, JSC (of blessed memory) held as follows:
“It cannot be overemphasized that neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be a substitute for evidence that was given. Evidence whether oral or documentary consists of facts, and facts are the fountain head of law.” PER SENCHI, J.C.A.
WHETHER OR NOT A COURT CAN GRANT A RELIEF NOT CLAIMED BY PARTIES
Now, this issue was settled in the case of HIGH CHIEF JACOB IGBEKELE AKEREMALE & ORS. VS. CHIEF BABATUNDE SAANUMI, (2015) LPELR 25812, where this Court held as per OWOADE, JCA on whether the Court can grant a relief not claimed; exception to the general rule, as follows:
“In deciding issue one, I would have thought that the learned counsel for the Appellant was right to have said that a Court does not have jurisdiction to grant a prayer that was not asked for by a party. However, I stumbled across the decision of the Supreme Court in the case of Hon. Chigozie Eze and 148 Ors. vs. Governor of Abia State & 2 Ors. (2014) (Pt. 1426) NWLR 182. PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014 delivered on the 17th day of December, 2020 by ABUBAKAR IDRIS KUTIGI, J.
The 1st and 2nd Respondents (as Claimants) at the Court below, by their Amended Joint Statement of Claim which was filed on the 14th day of October, 2014 pursuant to the order of the lower Court granted on the 8th day of October, 2014, claimed against the Appellant (as 1st Defendant) and the 3rd and 4th Respondents (as 2nd and 3rd Defendants) as follows:
(a) Declaration that the 2nd plaintiff is the rightful Assignee and Beneficial Donor of Plot No. 70 measuring 2.117 M2 Cadastral Zone B08, Jahi District, Abuja Federal Capital Territory.
(b) An order of perpetual injunction restraining the Defendants and their servants, agents or representatives from interfering with the plaintiff’s quiet possession and enjoyment of the said property.
(c) The sum of N300,000,000.00 only as general damages.
(d) The sum of N500,000.00 only as legal fee and expenses.
(e) 10% of the judgment sum from the date of judgment until the entire amount is liquidated.
The Appellant filed his Amended Statement of Defence and counter-claimed against the Respondents as follows:
(a) An Order of this Honourable Court dismissing in entirety, the Plaintiff’s claims as contained in the Further Amended Joint Statement of Claims.
(b) A Declaration of this Honourable Court that the 3rd Defendant is the only valid, rightful and lawful Allotee of the Statutory Right of Occupancy over Plot No. 70 Cadastral Zone B08, Jahi District, Abuja, measuring 2, 117.12m2 with File No. KN62553, the subject matter of this suit.
(c) A Declaration of this Honourable Court that all the rights, interest, privileges, title and ownership vested on Plot No. 70 Cadastral Zone B08, Jahi District, Abuja, measuring 2,117.12m2 with File No. KN62553, the subject of this suit, covered by a Statutory Right of Occupancy dated 25/02/14 are valid and subsisting.
(d) An Order of this Honourable Court declaring as trespass the Plaintiffs and/or their agents(s) visit and/or continued to visit to Plot No. 70 Cadastral Zone B08, Jahi District, Abuja.
(e) An Order of perpetual injunction restraining the Plaintiffs jointly and/or severally either by themselves, their agents, privies, assigns, administrators, successors-in-title, heirs however so described claiming through them from trespassing, alienating by way of gift, selling, mortgaging, or in any way transferring or laying claim of ownership of Plot No. 70 Cadastral Zone B08, Jahi District, Abuja.
(f) The sum of One Million Naira Only (N1,000,000.00) as professional fees paid to Messrs Koneks Chambers, Counsel to the 3rd Defendant/Counter-Claimant for prosecuting this suit.
(g) The sum of Seven Million Naira only (N7,000,000.00) as general and punitive damages.
(See page 56-58 of the Supplementary Record of Appeal).
The 3rd and 4th Respondents filed their Statement of Defence on the 1st day of June, 2015, while the 1st and 2nd Respondents filed a reply to the Appellant’s Statement of Defence and counter-claim on 20/05/2015.
Pleadings having duly been filed and exchanged between the parties at the lower Court, on 7th December, 2015, the 1st and 2nd Respondents (Plaintiffs) commenced hearing by calling three witnesses who testified, and their respective Witness Statements on Oath were adopted as their evidence. Documents were equally tendered and admitted in evidence on behalf of the Plaintiffs at the lower Court. The witnesses of the Plaintiff were cross-examined and discharged by the order of the lower Court.
The Appellant, in his defence and also in order to prove his counter-claim called one witness and tendered in evidence, documents that were admitted as exhibits. The 3rd and 4th Respondents at the lower Court called a sole witness who testified by adopting his Witness Statement on Oath. At the end of cross-examination of the witnesses called by the defence, the witnesses were discharged by the order of the lower Court. At the conclusion of defence, Final Written Addresses were ordered to be filed and exchanged between the parties. Pursuant to the order of the lower Court, Final Written Addresses were filed and adopted.
The brief facts of this case before the lower Court as revealed by the Record of Appeal pertain to a dispute between the Appellant and the 1st and 2nd Respondents over a piece of land, Plot 70, measuring about 2,117m2 lying and situate at Cadastral Zone B08, Jahi District, Abuja.
The Appellant was granted the plot in dispute by the 3rd and 4th Respondents. He accepted the offer of Statutory Right of Occupancy by an acceptance letter dated 27/02/2014. However, the Appellant later discovered the presence of the 2nd Respondent on the plot in dispute claiming the same plot of land. On 17th December, 2020, the lower Court delivered its judgment and held as follows:
“Now on the evidence as demonstrated I had found that the allocation Exhibit “P1” was to the 1st Claimant. That allocation in respect of plot 70 remains valid. It is also in evidence that the 1st claimant appointed the 2nd claimant as his attorney vide the irrevocable Power of Attorney admitted as Exhibit “P10” and also became his assignee vide Deed of Assignment admitted as Exhibit “P11”.
It was on the basis of these documents that 2nd claimant moved to the land, fenced same and put a security gate and drilled a borehole. He similarly received the bills related to the plot and paid the ground rent and has on the evidence being in possession. As stated earlier, these critical pieces of evidence were not on the evidence seriously challenged or controverted.”
(See paragraphs 3 and 4 of page 279 of the Record of Appeal).
The lower Court further held, as contained at page 282 of the Record of Appeal as follows:
“The 3rd Respondent cannot on the evidence be said to be a purchaser for value without notice. The 1st and 2nd Respondents may have allocated 1st claimant’s plot no. 70 predicated on the purported revocation of 1st claimant’s title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially. I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an order which is an offshoot of the main relief sought and which owes its existence to the main relief. See Adediji Adedoyin v. Doyin Sonuga & Ors, (1999) 13 NWLR (pt. 635) 355 at 363.”
In conclusion, the lower Court held:-
(1) It is hereby declared that the 2nd plaintiff has equitable title or interest over plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District, Abuja, Federal Capital Territory.
(2) The Defendants and their servants, agents or representatives are restrained from acts capable of affecting the lawful and subsisting interest of claimants over plot No. 70, measuring 2,117m2 in Cadastral Zone B08, Jahi District, Abuja, Federal Capital Territory as guaranteed under the Land Use Act and the 1999 Constitution.
(3) Reliefs (c), (d) and (e) fail.
(4) I award cost assessed in the sum of N50,000.00 in favour of claimants payable by the 1st and 2nd Respondents. The 3rd Defendant’s counter-claim… in its entirety and is hereby dismissed.”
(See pages 288 – 289 of the Record of Appeal).
Dissatisfied with the judgment of the lower Court, the Appellant filed a Notice of Appeal on 26/02/2021 wherein nine (9) Grounds of Appeal were raised as follows:
GROUND ONE
The Honourable Judge erred in law when His Lordship though faced with a determination of the entitlement of the Plaintiff to “a declaration that the 2nd Plaintiff is the rightful Assignee and Beneficial Owner of Plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja, Federal FCT” proceeded to find that:
“The issue of the application of the provision of Section 22 of the Land Use Act is therefore of no consequence in the circumstances to the clear extent that it does not change or alter the dynamics with respect to the validity of the allocation of 1st Claimant and adds nothing of value to the case made out by 3rd defendant with respect to the claim of ownership of Plot No. 70.”
GROUND TWO
The Honourable Judge erred in law when His Lordship held that the Appellant even though a defendant in an action pertaining to root of title does not have the right to raise issues about:
“The second point has to with the contention that the 1st plaintiff did not accept the offer of the Statutory Right of Occupancy, Exhibit “P1” made by 1st and 2nd defendants. I really here do not understand the basis of this contention. The 3rd defendant is not the 1st and 2nd defendants. He equally does not work with them and certainly did not make the offer to 1st claimant.
If the 1st and 2nd defendants did not make any case that the 1st claimant did not accept the offer, then it is not open to the 3rd defendant through the conduct of his address to make such contentions. This issue appears to me entirely academic and of no consequence in the trajectory of this case. Thereby breaching the right to fair hearing of the 3rd Defendant-Appellant.”
GROUND THREE
The Honourable Judge erred in law when His Lordship held that:
“On the question or complaint of alleged change of date of issuance of title in respect of Plot 70 from 18th April, 2003 to 16th September, 2006 has not been pleaded, and accordingly that Exhibits “P3” and “P4” containing these dates be discountenanced as not been pleaded, I think that these submissions borders on the identity of the disputed land. The identity of land will be in dispute if the defendant in his statement of Defence make it so by specifically disputing either the area or size covered or the location as described in the statement of claim. See Adenle V. Olude (2003) FWLR (Pt. 157 1074) at 1086 par. C-E.”
GROUND FOUR
The Honourable Judge erred in law when His Lordship found that the Exhibits tendered by the Plaintiffs are admissible in spite of the fact that they were not tendered by the makers of the document. The trial Court erred in law when His Lordship found that:
“The allusion to Section 83(1) of the Evidence Act and maker by the learned counsel to the 3rd Defendant is therefore with respect clearly misconceived and has no application.”
GROUND FIVE
The Honourable Judge erred in law when His Lordship after finding that:
“The 3rd defendant cannot on the evidence be said to be a purchaser for value without notice. The 1st and 2nd defendants may have allocated 1st claimant’s plot No. 70 predicated on the purported revocation of 1st claimant’s title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially. I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an order which is an offshoot of the main relief sought which owes its existence to the main relief.” See Adedeji Adedoyin V. Doyin Sonuga & Ors (1999) 13 NWLR (Pt. 635) 355 at 363.
GROUND SIX
The Honourable Judge erred in law when His Lordship reduced the status of the legal question of the evidential value of Exhibits “P1”, “P10” and “P11” relied by the 1st and 2nd Respondent in proof of the Plaintiff’s claim as matters which can only be raised if such is contained in the pleadings of the Appellant when His Lordship held that:
“There is nothing in the pleading of the 3rd defendant/counter-claimant on the following points over which extensive submissions were made by the counsel to the 3rd Defendant/counter-claimant in the final address thus:
a. Validity of the Power of Attorney and Deed of Assignment between the 1st and 2nd Claimant and failure to obtain governors consent.
b. The question of acceptance by the 1st claimant of Exhibit “P1” the offer of statutory right of occupancy and
c. Breach of contract of Exhibit “P1”.
Now I had earlier in this judgment referred to the settled position that the pleadings of parties remain the sole template which streamlines and situates the issues that remain to be resolved by the Court. Anything outside it cannot have any significance in the context of the dispute.
GROUND SEVEN
The learned trial Judge erred in law when he said the submissions of the 3rd Defendant/Appellant within the context of Section 22(1) and 26 of the Land Use Act Cap L5 LFN 2004 must be discountenanced because it was not pleaded and so have no significance to the issue in dispute.
GROUND EIGHT
The learned trial Judge erred in law when his Lordship refused to consider the Appellant’s Counter-Claim on the ground that:
“In the circumstances, there is no dispute or argument that the offer of terms of Grant/conveyance of approval conveying the Honourable Ministers approval of a Grant of Right of Occupancy in respect of Plot of about 2,117m2 (plot No. 70) within Jahi District vide Exhibit “P1” dated 18th April, 2003 to 1st claimant is EARLIER in time to the offer of statutory right of occupancy of Plot No. 70 having an area of approximately 2,117.12m2 in Cadastral Zone B08 of Jahi vide Exhibit “D1” dated 25th February, 2014 granted to 3rd defendant/counter-claimant.
It is correct that in law, that where two competing titles originate from a common grantor, the first in time takes priority and the trial Court must in addition to finding as fact that both parties derive title originally from a common grantor, proceed to ascertain whether there is credible evidence, the priority of the competing titles. See Uzor V. D.F. (Nig). Ltd (2010) 13 NWLR (Pt. 1217) 553 at 576, Atanda V. Tijani (1989) 3 NWLR (Pt. 135) 74, Gege V. Nande (2006) 10 NWLR (pt. 988) 256.”
GROUND NINE
The judgment is against the weight of evidence.
The Record of Appeal was transmitted to this Court on 23/06/2021 and the supplementary record transmitted on the 28/07/2021. The Appellant’s Brief of Argument was filed out of time by the order of this Court and deemed duly filed on 26/01/2022. The 1st and 2nd Respondents filed their Brief of Argument on 25/02/2022 and the Appellant filed a Reply Brief of Argument on 10/03/2022.
On 20/03/2022, this appeal was heard and argued. The Appellant adopted his Brief of Argument and the Reply Brief of Argument and urged the Court to allow the appeal.
The 1st and 2nd Respondents equally adopted their Brief of Argument and urged the Court to dismiss the appeal and affirm the decision of the lower Court.
ISSUES OF DETERMINATION
The Appellant’s Brief of Argument was settled by Abdul Mohammed SAN and he formulated five (5) Issues for Determination as follows:
(1) When a principal relief sought cannot be granted by the Court, would it be right for the Court to grant an ancillary relief not sought before it? Distilled from Grounds 1, 5, 6 and 7.
(2) When there is a laid down rule and procedure for an offer to be accepted, would the offeror be bound by the contract if same was not accepted by the offeree? Distilled from Ground 3.
(3) Was the trial Court right to discountenance the fundamental issue of failure to plead the surreptitious change of date of grant of Exhibit “P1”, “P3” and “P4”? Distilled from Ground 3.
(4) Is it appropriate for a Court to attach probative value to a document that was not tendered by its maker? Distilled from Ground 4.
(5) Was the trial Court right to have dismissed the counter-claim of the Appellant even though the issue arose from the content of the relief sought? Distilled from Grounds 8 and 9.
The 1st and 2nd Respondents’ Brief of Argument was settled by Abdul Karim Audu Esq., and he raised two (2) Issues for Determination as follows:
(1) Whether the 1st and 2nd Respondents have established on preponderance of evidence that they are entitled to all or any of the reliefs claimed at the lower Court? (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7)
(2) Whether the Appellant as Counter-Claimant at the Court below has equally established on a preponderance of evidence his entitlement to any or all of the reliefs claimed? (Distilled from Grounds 8 and 9).
ARGUMENTS ON ISSUES
APPELLANT’S SUBMISSIONS
APPELLANT’S ISSUE ONE
At paragraphs 17-22 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that the trial Court was wrong to have granted a substituted relief in place of the first relief sought by the 1st and 2nd Respondents on ground of equity after finding that the relief as sought cannot be granted because a consequential order by its very nature is predicated on a principal order, without which it must crumble. He submitted further that the granting of a consequential order is not an occasion for a trial Court to intervene in a suit on behalf of one party to the disadvantage of the other party; and by coming to the conclusion that the main relief cannot be granted, the action of the Plaintiffs must fail. He relied on the cases of HENRY O. AWONIYI V. AMORC (2002) 6 SCNJ 141, DR. M.T.A. LIMAN V. ALHAJI MOHAMMED (1999) 6 SCNJ 142, BADEWOLE V. GOV, LAGOS STATE & ORS (2020) LPELR-50085 (CA), SALUBI V. NWARIAKU (2003) LPELR-2998 (SC). At paragraphs 23–25 of the Appellant’s Brief of Argument, learned Senior Counsel submitted to the effect that where the case made out at trial is not compatible with the reliefs sought from the Court, the case must be dismissed. He relied on the cases of UZOUKWU V. EZEONU II (1991)6 NWLR (PT. 200) 708 AT 784, MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE V. INEC & ORS (2015) LPELR-25651 (CA). At paragraphs 26-50 of the Appellant’s brief, learned senior Counsel submitted that the seeker of a declarative relief must prove his entitlement to same by cogent evidence, however, the evidence provided by the Plaintiff was found by the trial Court to be insufficient, thus, the appropriate thing the trial Court ought to have done is dismiss the Plaintiff’s claim. He submitted further that because the relief claimed was sought to be proven by evidence that is inconsistent with the provisions of Section 22(1) and 26 of the Land Use Act Cap L5 LFN 2004, the Court ought to also dismiss same in due fidelity with the provisions of the Land Use Act. Learned Senior Counsel submitted that the grant of consequent relief not claimed by the 1st and 2nd Respondent was done in error and should be set aside.
APPELLANT’S ISSUE TWO
At paragraphs 52-66 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that for there to be a valid contract, there must be an offer and a properly communicated acceptance which depicts the meeting of minds of both the offeror and the offeree; and where a procedure is laid for doing a certain act, only that procedure and none other is acceptable. He relied on the case of MPPP V. INEC & ORS (2015) LPELR-25706 (SC). He submitted further that there is no iota of evidence tendered before the trial Court to show that the 1st Respondent accepted Exhibit P1, therefore, there is no binding contract between the 1st Respondent and the 3rd and 4th Respondent from the outset. The learned senior Counsel contended that the inability to adduce evidence to show that the 1st Respondent accepted the Offer of Terms of Grant has failed to establish any binding contract of grant pursuant to which the Trial Court relied on Exhibit P1 to grant a declaratory relief in favour of the 1st and 2nd Respondents, thus the Trial Court erred in law.
APPELLANT’S ISSUE THREE
At paragraphs 67-78 of the Appellant’s Brief of Argument, learned senior Counsel to the Appellant submitted to the effect that Exhibits P3 and P4 are of no issue, in so far as they do not relate to the Offer of Term of Grant/Conveyance of Approval with Reference No. MFCT.LA/ZA 315 dated 18/04/03. He submitted further that throughout the pleadings, there was nothing to explain the reason of change of date of grant of the offer of the Statutory Right of Occupancy from 18th April, 2003 to 16th September, 2006 and it is trite that evidence led that is not supported by pleading goes to no issue. He relied on the case of BUHARI V. OBASANJO (2005)13 LRCN 1925; 2152, ADEPOJU V. AWODUYILEMI (1999) 5 NWLR (PT. 603) 364. It is the contention of the learned senior Counsel that there is nothing tendered before the trial Court to show that the recertification of the said property was done in respect of the plot claimed by the 1st and 2nd Respondent to have been issued on 18/04/03, thus, the assumption by the trial Court that because various demand notices were made for payment of ground rent to the 1st Respondent, then there is a grant in favour of the 1st Plaintiff, is misconceived, because under the Land Use Act, the only evidence of proof of title to land is the Certificate of Occupancy and nothing more. He relied on the cases of OTUKPO V. JOHN & ANOR (2012) LPELR-25053 (SC) and NDUUL V. WAYO & ORS (2018) LPELR-45151 (SC).
APPELLANT’S ISSUE FOUR
At paragraphs 79-94 of the Appellant’s Brief of Argument, learned Counsel submitted to the effect that the 1st and 2nd Respondents’ witness cannot rely on the documents that they are not the maker, to claim that the 1st Respondent has title and PW1 cannot give evidence in respect of Exhibit P2 because he is not the maker of the document, neither is he associated with it. He submitted further that the trial Court was bound to follow the latest decision of the Apex Court on this issue, even if he prefers a previous decision of the Apex Court, and to refuse to do same is clearly an attempt to refuse to follow judicial precedent.
APPELLANT’S ISSUE FIVE
At paragraphs 95-103 of the Appellant’s Brief of Argument, learned Senior Counsel submitted to the effect that a counter-claim is an independent claim that stands as a Cross Action and not merely a defense to the Plaintiff’s claim. He relied on the case of OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985(SC). He submitted further that the quality of evidence led by the Appellant was direct evidence of every piece of document in support of his claim before the trial Court, however, the 1st and 2nd Respondents did not succeed in establishing that the case and the averments of the Defendant are untrue and inadmissible, thus, the oral and documentary evidence adduced by the Appellant were unchallenged and uncontroverted. He submitted further that the law is that an unchallenged piece of evidence ought to be accepted by the trial Court as proof of the facts or issue in respect of which the evidence was given, and judgment given in favour of the party whose evidence is not controverted. He submitted that the trial Court erred in law by refusing to consider the counter-claim. In conclusion, learned senior Counsel to the Appellants urged this Court to allow this appeal and grant the reliefs as contained in the Notice of Appeal.
1ST AND 2ND RESPONDENTS’ SUBMISSIONS
1ST AND 2ND RESPONDENTS’ ISSUE ONE
At paragraphs 4.01-4.54 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the 1st and 2nd Respondents submitted to the effect that the pleading of the 3rd and 4th Respondents is shorn of the required particulars of the facts of fraud they alleged against the 1st and 2nd Respondents and it was not creditably proved at all by the 3rd and 4th Respondents. He submitted further that the 3rd and 4th Respondents also failed woefully to comply with the procedure for revocation of right of occupancy according to law, and all the complaints on non-service of revocation notice, which were fundamental and touching on denial of the Claimant’s right of fair hearing under the Constitution, remained unanswered by the 3rd and 4th Respondents. It is the contention of the 1st and 2nd Respondents’ Counsel that given the facts and circumstances of this case where the 2nd Respondent as an assignee has taken physical possession of the disputed land, the registerable instrument conferring the status of an assignee on him, even though not registered, can still be used to prove an equitable interest in the land. Counsel contended further concerning the Deed of Assignment that the absence of the Governor’s Consent would not have rendered the transaction between the 1st and 2nd Respondent void or illegal because the contract stage does not require the Governor’s consent, as there must be a valid and subsisting contract of alienation of a right of occupancy before the question of obtaining the consent of the Governor can arise. He relied on the case of DAHIRU LTD V. TRADE BANK NIGERIA PLC (2009)13 NWLR (PT. 1159) 577. Learned Counsel contended further that contrary to the submissions of the Appellant, parties are clearly at ad idem on the identity of the disputed land, therefore, any errors with respect to dates cannot be fatal. He relied on the case of BABATOLA V. ALADEJANA (2001)12 NWLR (PT. 728) 597 AT 614 C. Counsel argued that in law, it is not hearsay to narrate what one was told in so far as the evidence does not seek to establish the truth of what the witness was told but the fact that he was so informed, therefore, contrary to the argument of the Appellant, the learned trial Judge correctly held that the evidence of PW1 is not hearsay and it was rightly admitted.
1ST AND 2ND RESPONDENTS’ ISSUE TWO
At paragraphs 4.55-4.62 of the 1st and 2nd Respondent’s Brief of Argument, learned Counsel submitted to the effect that the Appellant has not established on a balance of probability that he is entitled to the reliefs sought on his counter claims before the Lower Court. He submitted further that the Appellant, as a counter-claimant, has the same burden as the Claimant for a Declaration of a title to land, he must succeed on the strength of his own case and not on the weakness of the case of the person counter-claimed against. Counsel relied on the case of AWOSUNLE & ANOR V. FAGBEMI & ANOR (2011) LPELR-8912 P. 25, PARAS A-G (CA). In conclusion, learned Counsel to the 1st and 2nd Respondents submitted that this appeal should be dismissed.
APPELLANT’S REPLY
Learned Senior Counsel to the Appellants submitted that the contention of the 1st and 2nd Respondents relying on the cases of OGUNBAMBI V. ABOWABA (1951) 13 WACA 222, ORASANMI V. IDOWU (1956) 4 SC 40, OBIJURU V. OZIMS (1985)2 NWLR (PART 2) 167 and OYEBANJI V. LAWANSON (2003) 26 WRN 101 will not apply to this case because fundamentally, the jurisprudence pertaining to title to land in the Federal Capital Territory is different from the jurisprudence pertaining to land in other parts of Nigeria such that title cannot be acquired by long possession but by acquisition of title either by grant as made pursuant to the Land Use Act or by alienation as envisaged by the Land Use Act. He relied on the case of HRH NDAKUZO LUGBE & ORS V. FCDA & ORS (2021) LPELR-53182 (CA). Learned Appellant’s Senior Counsel submitted further that the arguments of the 1st and 2nd Respondents pertaining to the inability of the 3rd and 4th Respondents to prove the allegations of forgery or fraud of the 1st and 2nd Respondents as the basis for the revocation of the 1st and 2nd Respondent’s title at the trial Court has no place in this appeal because this is not the 4th and 5th Respondents’ appeal nor is there any ground of appeal containing any complaint about the finding of the trial Court in that regard. Counsel argued that the jurisprudence recognizing the exception to the need to obtain consent does not apply to this instant case, as the facts in the case of MONKOM V. ODILI are in stark contrast with the facts in this case. It is the contention of Counsel to the 1st and 2nd Respondents that the dicta of the Supreme Court in AG CROSS RIVER STATE V. AG FED & ANOR (2005)15 NWLR (PT 947) 71 quoted by the 1st and 2nd Respondents to the effect that “while a Court cannot award more than what a Plaintiff claims, it can award less” pertains to the award of monetary entitlement of a party in a matter, and therefore, it is not applicable to this case and the trial Court has no powers to substitute a relief not claimed with the one which it has already found to be “not grantable”. Counsel submitted that the mere fact that a document is a public document and admissible because of its status does not automatically mean that a Court is bound to place probative value on the document. In conclusion, learned Senior Counsel to the Appellant urged this Court to discountenance the submissions of the 1st and 2nd Respondents and proceed to allow the appeal and grant the reliefs as contained in the Notice of Appeal.
RESOLUTION OF ISSUES
This appeal shall be determined based on the issues formulated by the Appellant’s learned senior Counsel. I therefore adopt the Appellant’s issues as mine and the arguments of the 1st and 2nd Respondents’ Counsel shall be considered thereunder as well.
ISSUES 2, 3 AND 4 TAKEN TOGETHER
The learned Senior Counsel submits at paragraphs 52–65 of the Appellant’s Brief of Argument to the effect that the 1st Respondent did not accept the offer of Statutory Right of Occupancy Exhibit “P1” as provided by Clause 4 and therefore there is no valid acceptance of the offer made by the 3rd and 4th Respondents. Senior Counsel for the Appellant submits that where the offer was not accepted in the mode provided by the 3rd and 4th Respondent, then there is no contract capable of being enforced.
On the other hand, the 1st and 2nd Respondents’ learned Counsel submits at paragraphs 4.44–4.46 of the Respondents’ Brief of Argument to the effect that this contention of the Appellant does not form the nucleus of the case presented at the lower Court by the Appellant as same is not contained in the pleadings of the Appellant. He submits further on behalf of the 1st and 2nd Respondents that the Appellant lacks capacity to query the manner of the acceptance of offer made by the 1st Respondent.
As rightly submitted by the learned Counsel to the 1st and 2nd Respondents, the Appellant did not canvass or plead facts pertaining to the 1st Respondent’s acceptance of the Statutory Right of Occupancy, Exhibit “P1”. The law is trite that parties as well as the Court or tribunal are bound by the pleadings. See PEOPLES DEMOCRATIC PARTY V. SANI ALI & ORS, (2015) LPELR 40370 (CA), OLUWAROTIMI AKEREDOLU, SAN & ANOR V. RAHAMAN O. MIMIKO & ORS, (2013) LPELR 20889 (CA). In the case of PEOPLES DEMOCRATIC PARTY (PDP) V. INEC, (2014) LPELR 23808, the Supreme Court of Nigeria per OKORO, JSC held thus:
“It is trite law that at all times, parties are bound by their pleadings. A party will not be allowed to set up a new case on appeal other than that which was ventilated at the trial Court. See American Cyanamid Company v. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (pt. 171) 15, Osho V. Foreign Finance Corporation & Anor, (1991) 5. SC 59.”
In the instant case, I have perused the Appellant’s Statement of Defence at paragraphs 46–50 of the Record of Appeal and I am unable to lay my hands where the Appellant raised the issue either in his pleading or sworn testimony on oath of the witness. Thus, it is therefore wrong for the Appellant to depart or set up a new case in this appeal before us.
Secondly, the Appellant has no capacity to interrogate the 1st Respondent’s acceptance of the offer of Statutory Right of Occupancy by the 3rd and 4th Respondents, as the Appellant is not a party to the contract between them. As a general rule, the doctrine of privity of contract is that a contract cannot confer or impose obligations arising under it on any person except the parties to the contract. In other words, only the parties to a contract can sue or be sued on the contract, and a stranger to a contract cannot sue or be sued on the contract, or enquire about its performance. In the case of OSHEVIRE LIMITED V. TRIPOLI MOTORS (1997) LPELR 1584, the Supreme Court of Nigeria held as follows:
“The doctrine of privity of contract, according to Chitty on Contracts, 23rd Edition page 453 paragraph 971, may be stated as follows: a contract cannot confer rights or impose obligations arising under it on any person except the parties to it.”
The 3rd and 4th Respondents in their pleadings never made out an issue on the acceptance of the Statutory Right of Occupancy by the 1st Respondent neither did the 3rd and 4th Respondents aver facts as to the manner the 1st Respondent ought to have accepted the offer of Statutory Right of Occupancy. (See pages 67 – 69 of the Record of Appeal).
The Appellant cannot therefore cry foul more than the bereaved in the circumstance of this case.
I completely agree with the submissions of the learned counsel to the 1st and 2nd Respondents at paragraph 4.45 and 4.46 of the 1st and 2nd Respondents’ Brief of Argument that the existence or absence of the evidence as to how the 1st Respondent accepted the offer by the 3rd and 4th Respondents is of no moment in view of the evidence of PW1 and the documents admitted in evidence as exhibits on the demand and payment of ground rents by the 1st Respondent to the 3rd and 4th Respondents. In other words, the doctrine of acquiescence would apply. See also FGN V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162.
The Appellant’s senior Counsel submits at paragraphs 67–71 of the Appellant’s Brief of Argument to the effect that the re-certification and re-issuance of Certificate of Occupancy, the exercise was not meant to change the date of grant of title documents belonging to title holders.
In a nutshell and without much ado, the submissions of learned senior Counsel is not supported by the Appellant’s pleadings or evidence. Thus, Address of Counsel, no matter how eloquent and sound it might be, cannot take the place of pleaded facts and evidence. In the case of NEKA B.B.B. MANUFACTURING COMPANY LTD V. AFRICAN CONTINENTAL BANK, (2004) LPELR 1982, the Supreme Court per PATS-ACHOLONU, JSC (of blessed memory) held as follows:
“It cannot be overemphasized that neither the pleadings nor the most forensic eloquence of any brilliant lawyer can be a substitute for evidence that was given. Evidence whether oral or documentary consists of facts, and facts are the fountain head of law.”
As I said earlier, the Appellant would not be allowed in law to depart from the case he canvassed at the lower Court and to now raise new issues in this appeal. The Appellant must be bound by his pleadings and in both issues 2 and 3, I hold the view that the Appellant is precluded from raising and arguing new or fresh issues in this appeal without leave of this Court, and I so hold.
In respect of the Appellant’s senior Counsel’s argument on whether it is appropriate for a Court to attach probative value to a document that was not tendered in evidence by its maker, from the submissions of both the senior Counsel for the Appellant and the 1st and 2nd Respondents’ learned Counsel, Exhibit “P1” is the Statutory Right of Occupancy emanating from the 3rd and 4th Respondents to the 1st Respondent in respect of the plot in dispute in this appeal. This means Exhibit “P1” in contention, for all intents and purposes, is a public document.
Now, I have perused the evidence of the witnesses called by the 1st and 2nd Respondents at the lower Court. On 7th December, 2015, one Samuel Bulus testified as PW1 and Exhibit “P1” was tendered and admitted through him (See pages 194 – 195 of the Record of Appeal). And as I said earlier, Exhibit “P1” is a public document and PW1, Samuel Bulus, is not the maker of it. However, in the case of HON OKOTO FOSTER BRUCE V. MREBIKEME FRANK ERE & ORS, (2004) LPELR 7376, this Court held thus:
“The document sought to be tendered is Federal Form EC25B. It is the document, which itemize the list of Electoral Officers in the Election. The Tribunal rightly describes it as a public document but failed to appreciate that its contents can only be proved by primary evidence, and the person who tendered it need not be its maker.”
See ALI V. OBANDE (1999) 9 NWLR (PT. 620) 363 at 516. In the case of MAJOR ABU V. ALHAJI TIJANI AHMED, (2017) LPELR 43179 this Court as per DANIEL-KALIO, JCA held thus:
“The Appellant’s learned counsel also argued that maker of Exhibit “P2” was not called to testify and consequently Exhibit “P2” is a worthless document and no evidential value should be attached to it. Exhibit “P2” is a letter of the Land Use and Allocation Committee of the Federal Ministry of Works and Housing dated 30th April, 2003. It is an offer letter of plot No.1, No.6 Ethiopia Crescent Kaduna to Lawal A. Augie. That letter is a public document. In the case of ADELODUN UMORU & ORS V. MEMUDUN JIMOH ORIRE & ANOR, (2010) LPELR 9065 (CA), it was held by this Court per AGUBE, JCA that to prove a public document in Court there is no need to call the maker. Also in the case of GBOYEGA BAKARE V. FRN, (2016) LPELR 41361 (CA). I stated thus “with regard to Exhibit “P2”, it is a public document. It is admissible and can be relied upon even when the maker is not called.” Further, Exhibits “P3(1) and (2)”, “P2(1) and (2)” and “P4(1), (2) and (3)” fall in the same category as Exhibit “P1”. (See page 195 items 2, 3 and 4 of the Record of Appeal).
Thus, on the whole, I am of the view that Issues 2, 3 and 4 be, and they are hereby resolved against the Appellant and in favour of the 1st and 2nd Respondents.
ISSUE ONE
It is the submission of learned senior Counsel that a Plaintiff that he who seeks a declaratory relief must show that he has an interest or right which forms the foundation for the right. The Plaintiff must establish a right in relation to which the declaration can be made. Learned senior Counsel relied on the case of AYIDA & ORS V. TOWN PLANNING AUTHORITY & ANOR, (2013) LPELR 409 (SC).
Then at paragraphs 30–34 of the Appellant’s Brief of Argument, learned Senior Counsel submits to the effect that the evidence provided by the plaintiff in proof of the principal relief was found by the trial Court not grantable, but another relief altogether was granted, instead of dismissing the claim.
The learned Counsel to the 1st and 2nd Respondents on the other hand submits at paragraphs 4.32–4.37 of the 1st and 2nd Respondents’ Brief of Argument to the effect that the trial Court held that the 1st and 2nd Respondents’ relief (1) has merit and then granted a consequential relief.
Now for a better understanding of the issue in controversy, let me first state the principal relief sought by the 1st and 2nd Respondents in their Amended Statement of Claim at the Lower Court, thus:
“Declaration that the 2nd Plaintiff is the rightful assignee and beneficial owner of plot No. 70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja, Federal Capital Territory.”
The learned trial Court, after evaluating the evidence before it, held as follows:
“Now on the evidence as demonstrated, I had found that the allocation Exhibit “P1” was to the 1st Claimant. That allocation in respect of plot No. 70 remains valid. It is also in evidence that the 1st Claimant appointed 2nd Claimant as his attorney vide the irrevocable Power of Attorney admitted as Exhibit “P10” and also because his assignee vide the Deed of Assignment admitted as Exhibit “P11”. (See page 279 of the Record of Appeal)
The learned trial Court continued at page 282 of the Record of Appeal thus:
“The 3rd respondent cannot on the evidence be said to be a purchaser for value without notice. The 1st and 2nd Defendants may have allocated 1st Claimant plot No.70 predicated on the purported revocation of 1st Claimant title but that revocation, the Court has found to be invalid. Flowing from the above, Relief (1) has merit but cannot be granted on terms as sought as demonstrated above but an order recognizing the equitable interest must enure consequentially. I recognize that a Court has no jurisdiction to make or grant a relief not sought but this does not mean that a Court cannot make an Order which is an offshoot of the main relief sought and which owes its existence to the main Relief.” (See page 282 of the Record of Appeal).
The learned trial Court then held as follows:
“It is hereby declared that the 2nd Plaintiff has equitable title or interest over Plot No.70 measuring 2,117m2 in Cadastral Zone B08, Jahi District Abuja FCT.”
The learned trial Judge relied on the case of ADEDIJI ADEDOYIN VS. DOYIN SONUGA & ORS (SUPRA).
Now, this issue was settled in the case of HIGH CHIEF JACOB IGBEKELE AKEREMALE & ORS. VS. CHIEF BABATUNDE SAANUMI, (2015) LPELR 25812, where this Court held as per OWOADE, JCA on whether the Court can grant a relief not claimed; exception to the general rule, as follows:
“In deciding issue one, I would have thought that the learned counsel for the Appellant was right to have said that a Court does not have jurisdiction to grant a prayer that was not asked for by a party. However, I stumbled across the decision of the Supreme Court in the case of Hon. Chigozie Eze and 148 Ors. vs. Governor of Abia State & 2 Ors. (2014) (Pt. 1426) NWLR 182.
The question before the Supreme Court in that case was whether the Court of Appeal was not in error when it failed to make a consequential order directing the payment of salaries and allowances of the Appellants after it granted all the reliefs sought by the Appellant except relief No.8 which was a claim for reinstatement of the Appellants to their offices. The Appellants in that case argued that it was futile for the Court of Appeal to resolve all the issues in their favour without granting a consequential order that would be of benefit to them as they won, they therefor urged the Supreme Court to make an order on the 1st respondent to pay N10,451.99 per year to each of them in lieu of their reinstatement to their office. The Respondents argued that the Supreme Court ought not to grant payment of money to the Appellants because they did not ask for such relief and the Supreme Court lacked the power to grant unclaimed reliefs. The Supreme Court held sundrily in the Eze vs. Governor Abia State (supra) as follow: First, at page 217 Rhodes Vivour JSC (who read the judgment).
“A careful reading of the above provisions reveals unlimited power available to this Court to do substantial justice in deserving cases. A consequential relief can be granted by this Court in the interest of justice even where such has not been specially claimed. “Justicia Villi-tus in ut at pefectus quod futures perpectus.” Equity looks as done that which ought to be done.” Second, at pages 218–219, Onnoghen, JSC” it is a general principle of law of great antiquity to the effect that when there is a violation of right there must be a remedy. Put in another way, Ubi jus Ibi remedium where there is a right there must be a remedy. See Bello vs. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 823, FBN Plc. vs. Associated Motors Co. (Nigeria) Ltd. (1998) 10 NWLR (Pt. 570) 441; Labode vs. Otubu, (2001) 7 NWLR (Pt. 712) 256; Oyekanmi vs. NEPA (2000) 12 SC (Pt. 1) 70 at 84. It is under the above general principle of law that another principle was developed or emerged, that of consequential relief which 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 to do justice between the parties. It is in line with the above that this Court had ordered payment of salary and wages for the intervening period even though not… claimed, such as in the case of Ekpenyong vs. Nyong, (1975) 2 SC 7 at 81 – 82; Nneji vs. Chukwu, (1998) 3 NWLR (Pt. 210 443 at 457.”
In the instant appeal, the learned trial Court was right when it granted at page 288 of the Record of Appeal as follows:
“It is hereby declared that the 2nd Plaintiff has equitable title or interest over plot no.70 measuring 2,117m2 in Cadastral Zone B08, Jali District Abuja Federal Capital Territory.”
The evidence on record established the fact that the 1st Respondent (Claimant at the lower Court) had proved that he is a purchaser for value of Plot 70 measuring 2,117m2, Cadastral Zone B08, Jahi District, Abuja. In the case of MAJOR ABU V. TIJANI (supra), it was held that:
“It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not be registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See BELLO, JSC (as he then was) in the case of OKOYE V. DUMEZ (1985) 1 NWLR (Pt. 4) 783.”
The reasoning of the learned trial Court in granting this relief cannot be faulted and its decision is sound in law. Therefore, the decision cannot be disturbed by this Court. The refusal of the learned trial Court to grant the counter-claim cannot also be faulted. In effect, all the issues set out for determination by the Appellant are hereby resolved against the Appellant and in favour of the 1st and 2nd Respondents. Consequently, this appeal lacks merit and it is hereby dismissed.
Accordingly, the judgment of the learned trial Judge of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014, delivered on the 17th day of December, 2020 by ABUBAKAR IDRIS KUTIGI, J. is hereby affirmed.
No order as to cost.
PETER OLABISI IGE, J.C.A.: I had the advantage of reading in draft the lead judgment of my learned brother, SENCHI, JCA and I agree with it.
I also affirm the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1499/2014 delivered by ABUBAKAR IDRIS KUTIGI, J. on the 17th day of December, 2020.
I abide with the consequential order as to costs.
BIOBELE ABRAHAM GEOREGWILL, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my noble lord Danlami Zama Senchi JCA, and I am completely satisfied with the lucid reasoning and impeccable conclusions reached therein to the effect that the appeal lacks merit and is thus, liable to be dismissed.
My Lords, in law when an Appellant alleges as in ground nine of the Notice of Appeal that the lower Court had not properly evaluated the evidence led by the parties, it is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if it finds that the trial Court had not done so, then to proceed to and re-evaluate the evidence in the printed record to determine if the trial Court had made correct findings borne out by the evidence as led by the parties. It is thus the law that it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties. So. until an appellate Court arrives at such a conclusion the need for re – evaluation or evidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) per Sir Biobele Abraham Georgewill JCA. See also Cornet Cubbit Ltd & Anor V. Federal Housing Authority & Ors (2022) (CA) per Sir Biobele Abraham Georgewill JCA; Williams V. Tinubu (2014) All FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (Pt. 217)347.
In the leading judgment, after a thorough review of the pleadings of the parties and painstaking evaluation or the evidence led as in the Record of Appeal it was impeccably found, as was also correctly found by the lower Court, that the 1st Respondent through whom the 2nd Respondent claim title to the land is a purchaser for value of Plot 70, measuring 2.117M2 Cadastral Zone 1108. Jahi District, Abuja. In law, possession whether actual or constructive, once coupled with the purchase receipts and or a memorandum of sale would amount clearly to an equitable title in the land in dispute in favour of the 1st Respondent which is as good as a legal estate and can stand against even a legal title if acquired with notice of such an equitable title, this includes a Statutory Right as flaunted by the Appellant. See Ozua V. Suleiman & Anor (2009) 11 WRN 154 AT p. 176, where it was stated inter alia thus:
“When a purchaser of land or a lease is in possession of the land by virtue or a registrable instrument which has not been registered and has paid the purchase money or rent to the vendor or the lessor, then in either ease, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate.”
See also Mr. Frank Anyi & Ors V. Chief Harry Ayoade Akande & Ors (2017) LPELR-41973(CA) per Sir Biobele Abraham Georgewill JCA; M. L. Mande Enterprises Limited V. The Registered Trustees of Seventh Day & Ors (2022-05) Legal Pedia 03915 (CA).
Thus, once a document is pleaded and tendered as evidence of payment for a land transaction but not to assert any legal title to a land in dispute, it is admissible in evidence for that purpose or which it was pleaded and tendered in evidence. It follows that were such evidence of payment of purchase price for land transaction is coupled with possession and exercise of acts of ownership it would undoubtedly confer on such a person equitable title to the land in dispute. This finding by the lower Court is both unimpeachable and impeccable and must be allowed to stand. See Section 15 of the Land Registration Act, Cap 515 of the Laws of the Federal Capital Territory. In Adesanya V. Otuewu (1993) LPELR – 146 (SC), the Supreme Court had stated inter alia thus:
“It is well settled law that the payment of purchase price coupled with being put in possession confers an equitable title enabling a purchaser in possession to call for a document of title. The title so acquired is capable of defeating subsequent purchasers.”
Sec also Akinduro V. Alaya (2007) LPELR – 344 (SC), where the Supreme Court had stated inter alia thus:
“A document inadmissible for a purpose may be admissible for another purpose. In the instant case, Exhibit I which is inadmissible in proof of title would have been admissible in proof of an appropriate equitable relief claimed.”
See further Nsiegbe V. Mgbemena (2007) – 2065 (SC), where the Supreme Court had reiterated inter alia thus:
“A purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered, has thereby acquired an equitable interest which is as good as a legal estate.”
It is thus, good law that where a purchaser of land or a lessee is in possession or the land by an instrument that had not been registered but has paid the purchase money or the rent to the vendor or the lessor. then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent. See Atufe V. Oghomienor (2004) 13 NWLR (Pt. 809) 327 AT pp. 347 – 348. See also Savage V. Sarrough (1973) 13 NLR 141, Ogunbamhi V. Abowab (1951) WACA 222, Fakoya V. St. Paul’s Church Shagamu (1966) 1 ALL NLR 74, Dr J. C. Okoye V. Dumez Nig. Ltd. & Anor. (1985) 6 SC 3 AT p. 12.
It is for the above few comments of mine but for the fuller reasons adroitly marshaled out in the leading judgment that I too hold that the appeal lacks with merit and is thus liable to be dismissed. I too hereby dismiss the appeal. I shall abide by the consequential orders made in the leading judgment including the order as to no cost.
Appearances:
Abdul Mohammed SAN with him C. N. Ayo For Appellant(s)
Yusuf Abdullahi Esq. with him L. C. Ani Esq. for the 1st and 2nd Respondents.
Mathias O. Agboni Esq. for the 3rd and 4th Respondents. For Respondent(s)
