MADAM LATIFAT AMOKE OLAGUN V. MR. MUFUTAU AKERELE (2012)

MADAM LATIFAT AMOKE OLAGUN V. MR. MUFUTAU AKERELE

(2012)LCN/5341(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2012

CA/L/771/2008

RATIO

LAND LAW: WHO HAS CLAIM WHERE BOTH PARTIES SUCCEED IN TRACING THEIR TITLE TO THE DISPUTE PROPERTY TO THE SAME GRANTOR

It is the law that where both parties in a dispute claim and succeed in tracing their title to the dispute property to the same grantor, the latter in time to obtain a grant cannot maintain an action against the person who first obtained the grant. This is summed up in the Latin maxim “Qui prior est tempore potior est jure”. See: Aminu v. Ogunyemi (2004) 10 NWLR (Pt. 882) 457; Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554. PER KUMAI BAYANG AKAAHS, J.C.A

LAND LAW: WHETHER AN EQUITABLE OWNERSHIP OF LAND COUPLED WITH POSSESSION CAN BE OVER-RIDDEN BY A LEGAL ESTATE

EQUITY: WHEN WILL A PURCHASER BE ADJUDGED TO HAVE CONSTRUCTIVE NOTICE

In Kaba & Ors V. Young (1944) 10 WACA 135 it was held that notice of the land being in occupation of a person other than the vendor is notice to the purchaser that the person in possession has some interest in the land and a purchaser having notice of such fact is bound by all equities which the person in possession could enforce against the vendor. Moreover a purchaser is deemed to have constructive notice of all interests that he could have discovered if he had properly investigated the vendor’s title. See: Barclays Bank v. Olofintuji (1961) 1 All NLR 799; (1961) WNLR 255. Where he fails to act in good faith in making all the necessary investigations, he acts malafide and cannot be availed an equity. PER KUMAI BAYANG AKAAHS, J.C.A

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

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

Between

MADAM LATIFAT AMOKE OLAGUN
(Suing by her Attorney Alhaji Lateef Olaogun) Appellant(s)

AND

MR. MUFUTAU AKERELE Respondent(s)

KUMAI BAYANG AKAAHS, J.C.A (Delivering the Leading Judgment): The claimant now appellant issued a Writ of Summons dated 18th July 2002 against the Defendant now Respondent claiming the following reliefs:-
(a) A declaration that the Plaintiff is the owner by purchase and therefore entitled to possession of the property consisting the ONE BEDROOM UNIT at BL Street, House 11 Federal Low Cost Housing Scheme Ipaja, Lagos State.
(b) Possession of the said ONE BEDROOM UNIT at ‘BL Street, House 11 Federal Low Cost Housing Scheme, Ipaja Lagos State.
(e) The sum of N250, 000.00 being damages for the illegal and unlawful detention of the said property as damages for use and occupation of same from 5th April, 2000 until possession is given up.
The Defendant filed a Statement of Defence incorporating a Counter claim dated 29th March, 2005. This process was amended twice with the leave of court. The 2nd Amended Statement of Defence and Counter Claim is dated 28th June, 2007. In the said amended Statement of Defence the Defendant claimed that he bought the property prior to its being sold to the Claimant/Appellant from the same vendor. He asked for the following declaratory reliefs in the Counter – Claim:-
“(a) A Declaration that the Defendant is the owner by purchase of the property, being lying, situate and known as House II BL Street Federal Low Cost Housing Scheme Ipaja Lagos State.
(c) A Declaration that the action is Statute barred under the Limitation Law of Lagos State.”
The Claimant filed a Reply to the Defence and Counter Claim dated 19th April, 2005.
The claimant called two witnesses and tendered seven exhibits while one of the documents front loaded and proposed to be relied upon as a purchase receipt and pleaded in paragraph 7 of the Statement of Claim was rejected by the learned trial Judge
In his judgment the learned trial judge dismissed the Claimant’s case for want of evidence of purchase. It is against this decision that the claimant appealed asking this Court to set aside the decision of the lower court and enter judgment in her favour.
The appellant formulated four issues for determination as follows:-
1. Whether the document captioned “Deed of Assignment” but which was actually pleaded as a “Receipt” (paragraph 7 of Statement of Claim page 4 of record) and deposed to in first witness deposition as receipt (page 102 paragraph 1) was not wrongly rejected as evidence of purchase and had therefore affected the decision of the learned trial Judge which had occasion (sic) a miscarriage of justice? Ground 5.
2. Whether from the pieces of evidence tendered by claimant and already admitted before the court (i.e. exhibit A & B, E2 to E4) and the legal admissions against interest therein contained coupled with the positive assertions of the two witnesses called in this case by the Claimant it can seriously be said that there is no evidence upon which conclusion of sale could be made in favour of the Claimant to justify the declaration sought in contrast to the Defendant’s claim Ground 1, 4 and 6.
3. Whether mere assertion in Statement of Claim in Suit ID/1377/00 can be metamorphosed (sic) into evidence to reach the conclusion that the claimant’s vendor was still laying claim to the property even after giving undertaken (sic) to give vacant possession to the claimant and whether claim of ownership by claimant’s vendor was an issue submitted for adjudication before the learned trial fudge Ground 2.
4. When in equity was property redeemed? Was it when Exhibit E4 dated 27/3/2000 was paid discharging all obligations on the mortgage or when Certificate was issued by the mortgagor to the borrower (Exhibit E Ground 3).
The respondent had five issues for determination which are:-
1. Whether the Deed of Assignment (the rejected document) can metamorphose into a purchase receipt evidencing sale of subject matter of dispute from the alleged common vendor to the appellant so as to confer on the appellant a legal title to the property.
2. Whether apart from this rejected document referred to above, there were other pieces of evidence or sufficient evidence to establish a better title in favour of the Claimant/Appellant in respect of the property in issue: A one bedroom unit flat situate at BL Street, Housing 11, Federal Low Cost Housing, Ipaja, Lagos State.
3. Whether in consideration of the demise of the vendor, there exists any nexus between the Claimant/Appellant suing the Defendant/Respondent as to warrant the Claimant/Appellant suing the Defendant/Respondent more especially in the light of the Order of a competent court dismissing the claim of the Vendor /Plaintiff in the Suit No. ID/1337/2000.
4. Whether the suit No. ID/1237/2002 leading to this appeal is not statute barred.
5. Whether issue No. 4 (paragraph 2.04) of the Appellant’s brief of argument is ever in issue and even if it was, whether it is material in this appeal.
Arguments
On issue No. 1 learned counsel for the appellant is contending that the document titled “Deed of Assignment” was wrongly rejected as evidence of payment in this suit as the Claimant pleaded the document as a “Receipt” and the habendum of the document also shows that it was an acknowledgment of the payment of the money. He submitted that it is the purpose for which a document is tendered that it can be used for by the court. He relied for this submission on the case of Etajata v Ologbo (2007) All FWLR (Pt. 386) 564; (2007) 16 NWLR (Pt. 1061) 554. He argued that even if the document was a registrable instrument which has not been registered, it is admissible to prove an equitable interest and also to prove the payment of purchase money or rent and cited the following cases in support: Okoye v Dumez Nig. Ltd. (1985) 1NWLR (Pt. 4) 783 Agwunedu v Onwumere (1994) 1 NWLR (Pt. 321) 2 Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167. Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326; Ojonye v Ibrahim (2002) 1 NWLR (Pt. 747) 166 Obienu v Okeke (2006) 16 NWLR (Pt. 1005) 225. He finally submitted on this issue that the learned trial fudge would have entered judgment for the claimant and so the rejection of the document has occasioned a grave miscarriage of justice to the appellant. He therefore urged this court to set aside the ruling of the learned trial judge and admit the document in evidence and resolve the issue in favour of the appellant. He submitted further that the Land Use Act has actually modified the Land Instrument Registration Law of Lagos State such that it has become unnecessary for the document rejected to be registered. He relied on the case of Oraetoka v Ajia (2006) All FWLR (pt. 321) 1312 at 1322 for this submission. On issue 2 learned counsel for the appellant argued that there is no dispute between the parties as to whether the property was sold to the claimant or not since the Respondent in paragraph 10 of his 2nd Amended Statement of Claim as well as in his oral evidence acknowledged that the property was sold to the appellant and it is trite law that what is admitted need no further proof. He said that what the Respondent was contending was that the claimant vendor had earlier sold the property to him and so had nothing more to sell at the time he purportedly sold the property to the appellant. He contended that what the learned trial Judge was called upon to resolve was whether indeed there had been a previous sale to the respondent or not. He submitted that the combined effect of Exhibits A & B coupled with Exhibits E – E4 all point to the irresistible admission on the part of the Claimant’s vendor which is binding on the principal which is admission against proprietary interest. He cited Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 367 and Sections 4 (6) 5(1)(a)(2) and 6 of the Law Reform Contract Law Cap 114 Laws of Lagos State 1994 to buttress his argument that Exhibits A and B were sufficient memorandum to justify the learned trial Judge granting the declarations sought by the claimant.
Turning to issue 3 learned counsel for the appellant submitted that pleadings no matter how well drafted cannot be synonymous with evidence. He argued that exhibits C and D which were pleadings in Suit ID/1277/00 were not put through the crucible in the case it was prepared for and so could not be used by the trial judge to arrive at the conclusion that the appellant’s vendor is still laying claim to the property in issue. He observed that it is no where stated in the evidence of his solicitor (which is the only evidence on behalf of the vendor before the court) that the appellant’s vendor was still claiming ownership of the property already sold to the appellant and urged this court to reverse the said finding because it is perverse since it runs counter to the pleadings and evidence. He said it was based on inference deduced from a document which assertions therein are not supported by evidence. The following cases were cited in support: Onu v Idu (2006) All FWLR (Pt. 328) 691; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561; Re – Alase (2002) 10 NWLR (Pt. 776) 553 and U.B.N. Plc v Adjarho (1997) 6 NWLR (Pt. 507) 112. He further contended that the issue was not submitted for adjudication and so was raised suo motu and submitted that the learned trial judge cannot go outside the pleadings of the parties to make a case for either of the parties and placed reliance on the following cases: Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608; Adegoke v. Alabi (1992) 5 NWLR (Pt. 242) 420; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1; Adeniran v. Alao (2001) 18 NWLR (pt. 749) 361 and Shekse v. Plankshak (2008) 10 MISC 95.
Learned counsel submitted on issue 4 that the property was redeemed the moment the outstanding amount on it was paid on 27/3/2000 by Exhibit E4 and not on 25/4/2000 when the redemption certificate was issued as the issuance of the redemption certificate is a purely administrative process and has nothing to do with the date the mortgage was redeemed. To this end therefore then claimant/Appellant vendor had the right to sell the property to the Claimant on 30th March, 2000 after redeeming the mortgage. He submitted that there had been a valid transfer of the property in equity between the claimant and her vendor. He therefore urged this court to resolve all the issues in favor of the Appellant. In reply to the respondent’s submission in paragraph 4.1 of his brief to the effect that the appellant did not plead and deed of Assignment but a Purchase Receipt, learned counsel argued that by the rules of pleading parties are enjoined to state only material facts and not evidence and placed reliance on the case of Ibezim v. Ndulue (1992) 1 NWLR (Pt. 216) 153. He went on to contend that issues 3 and 4 argued in the respondent’s brief do not arise from the grounds of appeal filed by the appellant and therefore should be discountenanced and struck out.
In his response to the appellant’s submission learned counsel took issue I first. He quoted paragraph 7 of the Statement of claim and argued that there is no where in the said paragraph of the pleading that the Deed of Assignment was pleaded as a Purchase Receipt and wondered how a vendor can issue a purchase receipt and title in a different name. He submitted that a Deed of Assignment was for the purpose of effecting an agreement of transfer of land between the vendor and purchaser and must as a matter of law be registered before it can be pleaded and admitted in evidence. He contended that even if the habendum portrayed evidence of payment in his transaction with the vendor, the Habendum of the Deed of Assignment cannot metamorphose into a purchase receipt and cannot confer on the appellant a legal title to the property sufficient to grant her judgment especially in the light of the canons of interpretation.
On issue No. 2 learned counsel contended that there is admission of the appellant in paragraph 9 of the Statement of Claim that while negotiation between her and the vendor was going on, it was discovered that respondent was already in possession and that he had made payment since 1987. He argued that by admission of the appellant, there was a previous sale of the same property in 1987 to the respondent supported by long period of possession and so no further proof is needed to grant judgment to the respondent. He further argued that beyond the proof of money payment, the real issue in controversy between the parties is the proof of the ownership of the land which the court is invited to declare in favour of the appellant. It is learned counsel’s contention that even where a registrable instrument which is not registered is admissible to prove an equitable interest and payment, the Deed of Assignment in the instant case even if admitted would not help the case. It is submitted that since the appellant admitted that she isn’t in possession of the land and that she found the respondent on the land this is fatal to her case and relied on Aminu v. Ogunyebi (2004) 10 NWLR (pt. 882) 457 where the court declared that once there is proof that money was paid for the land coupled with an entry into possession it is sufficient to defeat the title of the subsequent purchaser of the Legal estate if the possession is continuously maintained. He said the Supreme Court in Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554 put it succinctly thus:
“Where a purchaser of land or lessee is in possession of land by virtue of a registered instrument which has not been registered, and has paid the purchase money or the rent to the vendor or lessor, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate”
He said the case of the appellant fell so short of the standard put forth by the Supreme Court since the appellant has not shown the purchase receipt she pleaded and even where the unregistered document would have solved that, in the absence of her possession of the land she has not acquired any equitable interest and if she bought the property, she is a subsequent purchaser with notice of the interest of the respondent. He therefore invoked the principle of Qui prior est tempore potior est jure – he who is earlier in time is stronger in law.” This principle of law was applied in Aminu V. Ogunyebi supra where it was held that “Where both parties to a land in dispute claim and succeed in tracing their title in respect of the same parcel of land to the same grantor, the latter in time to obtain a grant cannot maintain an action against the person who first obtains a grant.”
In issues 3 & 4 which appellant said did not arise from the grounds of appeal filed, the respondent argued that there was no nexus between the appellant and respondent in Suit ID/1377/2000 which was between the vendor as claimant and the respondent and in any event the claim of ownership of the land by the vendor was dismissed. Therefore since there is no declaration of ownership in favour of the claimant (alleged common vendor) the respondent who was in possession and still in possession retains a recognisable valid interest in the land over and above the vendor himself until otherwise determined. The original owner of the land having sold to the respondent and put him in possession since 1987 had no interest whatsoever to transfer to anybody at all and so the principle of Nemo dat quod non habet applies. Since the appellant has not proved a better title, even if the respondent is in possession unlawfully or by trespass, the appellant cannot maintain an action against him for trespass. The respondent’s possession of the land will be adverse only when it derogates from and is inconsistent with the ownership title of a person who claims to be the true owner of the land. See: Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 133.Learned counsel for the respondent is contending that Suit No. ID/1237/2002 leading to this appeal is statute barred because it is a follow up to Suit ID/1377/2000 instituted 13 years after the cause of action arose.
On issue 5 learned counsel submitted that the fundamental issue before the court is who actually owns the land subject matter of this suit by valid purchase and transfer from Alhaji Umar Imam and not necessarily whether the mortgage was redeemed as the issue of redemption is strictly within the purview of the relationship between the original owner of the land and the Mortgage Institution and hence not relevant to the issues at stake in the appeal.
In order to resolve the issues raised in the appeal, it is necessary to state the background facts. According to the Plaintiff, it was sometimes in March, 2000 that she became aware that the property in dispute known as House II BL Street Federal Low Cost Housing Scheme Ipaja which was a one bedroom flat was available for sale. She instructed her Solicitor Alhaji Lateef Olaogun who contacted Barrister Debo Oduguwa, Attorney to the seller and negotiated for the sale of the property where the purchase price was agreed upon in the presence of the seller. Before the completion of the sale, the seller informed the Plaintiffs Solicitor that the property was subject of mortgage by the Federal Mortgage Finance Limited which would be redeemed immediately the Plaintiff paid the purchase price. Upon the payment of the agreed price, the vendor liquidated the mortgage and was issued with a redemption certificate which he handed over to the Plaintiff. During the period of negotiation, the Plaintiff noticed that the respondent was on the property and she queried the vendor, he explained to her that he initially let in the respondent into the property at the request of a friend, one Alhaji Usman Ahmed. The respondent was allowed temporary stay until he could secure his own accommodation but later the respondent made an offer to purchase the property for N10, 000.00 which he (vendor) agreed to. The respondent made a part payment of N5, 000.00 and was issued with a temporary purchase agreement. He the vendor handed over the title documents to Alhaji Usman Ahmed. It was agreed that title to the property would pass upon the payment of the remaining balance of N5, 000.00 on or before 30/9/87 failing which the title documents will be returned to the Plaintiff who would look for another buyer. The respondent was unable to pay the balance and so the Plaintiffs vendor collected the original documents on 13/10/83 to enable him sell the property to another person and refund the deposit to the respondent. The respondent failed to pay the balance up till March, 2000 when the property was sold to the Plaintiff. After the sale of the property to her, the Attorney to the vendor wrote to the respondent on 29/3/2000 and 4/4/2000 asking him to vacate and give up possession of the property but the respondent refused and this led to the institution of the action.
The respondent denied the claim and averred that the property in dispute was allotted to Alhaji Umar Imam who sold it to him in 1987. The said Alhaji Umar Imam handed over the letter of allocation, letter of acceptance and other Mortgage documents on completion of the sale of the property in 1987. He alleged that Umar Imam fraudulently induced him (respondent) to give him (Umar Imam) allocation documents early in 2000.
He pleaded the following documents:
(i) Temporary Purchase Receipt
(ii) Allocation documents
(iii) Final purchase receipt in the sum of N10, 000.00 (ten thousand naira) to cover payments in two instalments.
(iv) Mortgage agreement between Alhaji Umar Imam and Federal Mortgage Bank.
(v) Design and Survey plan of the house.
(vi) Payment receipt slip issued to Alhaji Umar Imam by the Federal Mortgage Bank dated 26th of October 1984.
The main thrust of the appellant’s appeal is that if the document titled “Deed of Assignment” was not wrongly rejected as evidence of payment, judgment would have been entered in his favour. But learned counsel for the respondent countered this argument when he referred to paragraph 7 of the Statement of Claim and argued that in paragraph 4 of the deposition of the 1st witness of the Claimant, he did not mention the Deed or the purchase receipt. In paragraph 7 of the Statement of Claim, it was averred as follows:-
“7. The Plaintiff pleads and shall rely on the Power of Attorney given by the Plaintiffs vendor one Alhaji Umar Imam to Barrister Debo Oduguwa of Debo Oduguwa & Associate. The power of attorney given by Plaintiff to Alhaji Lateef Olaogun. The purchase receipt issued by Plaintiffs vendor and all other document relating to the over to the Plaintiff by his vendor.”
The document which was tendered and rejected was properly rejected because it was an unregistered Deed of Assignment.
In the witness deposition on oath of Alhaji Lateef Olaogun he stated as follows:-
“I know the Plaintiff in this case who is my half sister and I am her lawful attorney as she is based mostly in Europe but comes home occasionally whenever time permits. Attached herewith and marked Exhibit LA1 is a copy of my power of Attorney.
The Defendant became known to me during and after the transaction leading to the subject of this suit had been completed.
I also know the property the subject matter of this suit, which said knowledge came to me and the Plaintiff sometime in March 2000 when it came to our knowledge that the property known as House II BL Street Federal Law Cost Housing Scheme Ipaja a one bedroom flat was available for sale. Armed with this information I proceeded to look for the Solicitor to the owner one Barrister Debo Oduguwa for the purchase of same.
On my approaching the said Solicitor he showed me all the title documents to the property and thereafter fixed the second day for me to come and meet the owner so as to negotiate the purchase price which was done the following week and sale was concluded.
The seller however during the negotiation informed me that the property is subject matter of mortgage with the Federal Mortgage Finance Limited and that once the purchase price is paid he will redeem the mortgage. He showed me the letter of allocation which he had been redeeming the mortgage herewith attached marked Exhibit LA3.
I therefore paid the purchase price and he issued me a purchase receipt which he titled Deed of Assignment to evidence the payment of money for the house. Same is attached and marked Exhibit LA4”
If this witness deposition had stood unchallenged, I have no doubt in my mind that judgment would have been entered in favour of the Plaintiff/Appellant. In the 2nd Amended Statement of Defence the Defendant averred in paragraphs 4, 5, 6, 7, 8 and 17 thereof as follows:-
“4. The Defendant further to paragraph 3 above states as Follows:
(a) The Defendant asserts that before buying the house now in dispute, he was residing at B.E. 30, near BL II (subject matter of this suit)
(b) That the house now in dispute was allotted to one Alhaji Umar Imam of No. 298 Borno Way, Ebutte Meta, Lagos State.
(c) That the house in dispute known as No. II BL Street, Federal Low Cost Housing Scheme, Ipaja, Lagos was sold to the Defendant by Alhaji Umar Imam in 1987
(d) That further to sub paragraph c above the said Alhaji Umar Imam handed over the letter of allocation, letter of acceptance and other mortgage documents toto the Defendant on the completion of sale of the property in 1987.
(e) That further to sub paragraph d above, the said Umar Imam fraudulently induced the Defendant to give him (Umar Imam) the allocation documents sometimes in the early part of the year 2000, 13 years after the said documents had been delivered to the Defendant.
5. The Defendant in further denial of sub paragraphs 9a and 9b of the Statement of Claim avers as follows:
(a) That it was the said Alhaji Umar Imam who approached his friend Alhaji Usman Ahmed to purchase the said House II, BL Street Federal Low Cost Housing Scheme Ipaja:
(b) That further to sub paragraph a above, Alhaji Usman Ahmed then approached the Defendant to purchase the house in dispute after which negotiation for sale of the house was concluded.
6. The Defendant in further denial of sub paragraphs 9c, 9d, 9e, 9f of the Statement of claim avers as follows:
(a) That the said Umar Imam agreed to sell the property in dispute to Mr. Mufutau Akerele at the cost of N10,000.00 (ten thousand naira only).
(b) That the title documents were never handed over to Alhaji Umar Imam after the property was sold to the Defendant in 1987.
(c) That after the conclusion of the sale transaction, the Defendant on Friday 2nd of October 1987, sent a thank you letter to Alhaji Umar Imam and requested for the sending of the final Purchase Receipt to the Defendant. The Defendant hereby pleads and at the trial will rely on the letter dated, 2nd of October 1987.
(d) That further to sub paragraph a, b, and c, above the sale transaction between the Defendant and Alhaji Umar Imam in respect of the property in dispute was witnessed by Alhaji Usman Ahmed and Alhaji Kabir Adebayo Yusuf.
7. The Defendant pleads and shall at the trial find and rely on the following documents delivered to him by Alhaji Umar Imam:
(i) Temporary Purchase Receipt
(ii) Allocation Documents
(iii) Mortgage agreement between Alhaji Umar Imam and Federal Mortgage Bank
(iv) Design and Survey Plan of the house
(v) Payment receipt slip issued to Alhaji Umar Imam by the Federal Mortgage Bank dated 25th October 1984.
8. The Defendant avers that ever since 1987 he has been in quiet and peaceable possession of the property in dispute.
17. The Defendant avers that the purported sale of the house now in dispute was a fraud therefore a sham being that:
(a) The signature of Umar Imam in the alleged Deed of Assignment dated 29/02/2000 allegedly used by Umar Imam to convey the subject matter of this Suit to the Claimant differ from his signature in the temporary receipt dated 29/08/1987 executed by Alhaji Umar Imam in favour of the Defendant.
(b) That Alhaji Umar Imam surreptitiously and fraudulently obtained the original documents with the Defendant in the guise of conveying the mortgage to the favour of the Defendant only to use it in conjunction with his Solicitor, with the intent to resale the house to other person.”
In the Reply filed by the Plaintiff dated 19th April, 2005, the Plaintiff challenged the Defendant to strictly prove the allegation contained in paragraph 17 of the Statement of Claim and Counter – claim.
In his Written Statement on oath, the Defendant deposed to the following facts in paragraphs 11, 12, 13 and 14:
“11. On completion of sale and on entering into possession, I paid the sum of N1, 000.00 (One thousand naira) as part of his indebtedness to the Mortgage Bank to Account No. 8001272 4 and was issued a receipt/payment slip dated 20th of January 1992.
12. Sometime in the early part of the year 2000, Alhaji Umar Imam informed me that the Federal Mortgage Bank is requesting for documents in respect of the said property so as to effect necessary changes in respect of mortgage records to reflect my name, because all the correspondence in respect of the mortgage were usually directed to him (Alhaji Umar Imam) because we were yet to effect necessary changes.
13. Believing that Alhaji Umar Imam was acting in good faith, I handed all the aforementioned documents to him. All I have in my custody is photocopies of some of these documents.
14. Since 1987 when Alhaji Umar Imam sold the property in dispute to me, he has never requested for rent from me and I have never paid rent, as I am the owner. For over 13 years I have been in quiet and peaceable possession of the property before the purported sale by Alhaji Umar Imam to the Claimant in the year 2000.”
The Defendant called Alhaji Usman Ahmed who adopted his witness deposition as DW1. He identified the temporary receipt which Alhaji Umar Imam issued to the Defendant after he had paid for the house. The temporary receipt was admitted as Exhibit DWA. He said he was one of those who initiated the sale of the house to the Defendant. When he was cross – examined he replied the purchase price of N10, 000.00 was given to him in two instalments of N5,000.00 which he paid to Alhaji Umar Imam and after the second payment Alhaji Umar Imam handed some documents over to him.
The Plaintiff claimed in paragraphs 4, 5 and 6 of the Reply to the Defendant’s Statement of Defence and Counter – Claim that what transpired between the Plaintiffs vendor, late Alhaji Umar Imam and the defendant was only an agreement to sell with certain conditions specified which were never complied with and which led Alhaji Umar Imam to sell the property to the Plaintiff. This assertion can only be proved by Alhaji Umar Imam or someone else who was present and witnessed what actually took place and not the Plaintiff. The Defendant called DW1 who was present and through whom the payments were made.
I have critically examined the Temporary Purchase Receipt which the Plaintiff tendered as Exhibit E and the one tendered by the Defendant marked DWA. Whereas it is stated that Alhaji Umaru Imam gave the original document of the house to Alhaji Usman Ahmed for safe keeping until the balance is paid, there is an endorsement on Exhibit “E” but not contained in Exhibit DWA that Alhaji Usman Ahmed returned the said original document of the house to Alhaji Umar Imam on 13th October, 1987 when the Defendant failed to pay the balance of N5,000.00. But there is also Exhibit DWB dated 2nd October 1987 wherein the Defendant requested to be issued with the final purchase receipt since he had paid the balance of the N5,000.00 some three weeks back.
It does appear that the endorsement of 13th October, 1987 was made after Alhaji Umar Imam had tricked the Defendant into parting with the Original of the Temporary Receipt so as to lend credence to the claim that the Defendant refused to pay the balance of N5, 000.00 which left Alhaji Umar Imam with no option but resell the house to the Plaintiff/Appellant.
The Appellant’s claim would have been strengthened if Suit No. ID/1377/2000 had been determined in favour of Alhaji Umar Imam, despite having initiated the action in Suit No. ID/1377/2000 it was dismissed on 10th May, 2007 as shown in the enrolment order tendered by the Defendant as Exhibit DWD. The Plaintiff could therefore not maintain an action against the Defendant over the disputed property.
It was pleaded in paragraphs 9 and 10 of the Statement of Claim that at the time negotiation was going on for the purchase of the property, the Plaintiff noticed the presence of the Defendant on the property and when the Plaintiff queried the vendor, he admitted that the Defendant had earlier expressed interest in the property and proceeded to make part payment of N5,000 out of the agreed N10,000, the balance of which was to be paid on or by 30/9/87 failing which the vendor was at liberty to sell the property to any willing buyer. With this pleading it is clear that the Defendant/Respondent was in possession of the property. The respondent asserted that he paid the agreed amount for the property and was let into possession. This is a case of both parties making a claim of having paid money to the same grantor for the disputed property. It is the law that where both parties in a dispute claim and succeed in tracing their title to the dispute property to the same grantor, the latter in time to obtain a grant cannot maintain an action against the person who first obtained the grant. This is summed up in the Latin maxim “Qui prior est tempore potior est jure”. See: Aminu v. Ogunyemi (2004) 10 NWLR (Pt. 882) 457; Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554.

It is also the law that if a party receives title to land under native law and custom and there is proof or evidence that money was paid for the land coupled with an entry into possession, it will be sufficient even to defeat the title of a subsequent purchaser of the legal estate, if the possession is continuously maintained. In other words if the land is sold to a party without the execution of a formal deed of conveyance, his interest is no more than equitable, if it is coupled with possession, it cannot be over ridden by a legal estate. See: Oshodi v. Balogun 4 WACA 1: Suleiman v Johnson 13 WACA 213: Soremekun v. Shodipo (1959) LLR 30 and Orasanmi v. Idowu (1959) SCNLR 97. In this instant case, having collected the purchase price from the respondent, the vendor had no interest that he could transfer to the appellant or for which he could give a valid undertaking as the principle of law of Nemo dat quod non habet was fully operational at the time the vendor purportedly gave the undertaking to the appellant.
It is preposterous to argue as learned counsel for the appellant did that the combined effect of Exhibit A & B coupled with Exhibits E – E4 portends an irresistible admission on the part of the claimant/appellant’s vendor to the effect that the vendor sold the property to the appellant. Learned counsel has misapplied both the statutory and judicial authorities. Even if there was such an admission, I do not see how it will adversely effect the position of the respondent. Exhibit A is a letter from the alleged vendor’s Solicitor to the defendant/respondent purportedly notifying him that the vendor has sold the property to the appellant. Considering the said scenario, the defendant/respondent is not in a position to know if the alleged vendor had a transaction with the claimant/appellant. This transaction if any is later in time and any interest acquired thereon is deemed secondary to the interest of the respondent who had an earlier transaction and had been in occupation from 1987 to date and as such cannot be defeated. Secondly, a mere letter purporting to communicate a wrongful act of the vendor from a Solicitor can never amount to admission. It only communicated that a wrongful act was done but cannot be viewed as having admitted facts on which the court can rely to give judgment to the appellant. The vendor if he sold a property belonging to the respondent by virtue of an earlier sale to the latter, committed a tort and if the letter from the Solicitor to the victim of the tort (respondent) must be regarded as admission of any sort, it follows that it can only be regarded as an admission by the vendor that he committed a tort against the respondent for which the respondent is entitled to an action for fraud, trespass or breach of contract against the vendor. The alleged admission of the vendor against his interest has no meaning in the present Suit. It would have been a different thing if respondent had made an admission to the effect that he is not entitled to the property or that the property had been sold to the appellant with his (respondent’s) knowledge and consent. Only the respondent who obviously has and maintains an interest in the property can make an admission against his own interest in the property. The appellant did not establish any agency between the vendor and the respondent and there is no how anybody can suppose that the vendor in this case was an agent of the respondent.
Thirdly it is absurd to construe Exhibit B which is a letter of undertaking from the vendor to the appellant as an admission against proprietary interest on the part of the vendor. The undertaking was a private and secret agreement given by the vendor to the appellant over the property which the respondent had earlier acquired from the vendor and in respect of which the vendor put him in possession. The vendor no longer had any interest that he could transfer. Since the appellant found the respondent in occupation of the property, his presence ought to put the appellant on inquiry and it was incumbent on the appellant to enquire from the respondent the extent of his interest on the property.
The appellant cannot claim to be a bonafide purchaser for value since he had both actual and constructive notice of the respondent’s interest in the property. In Kaba & Ors V. Young (1944) 10 WACA 135 it was held that notice of the land being in occupation of a person other than the vendor is notice to the purchaser that the person in possession has some interest in the land and a purchaser having notice of such fact is bound by all equities which the person in possession could enforce against the vendor. Moreover a purchaser is deemed to have constructive notice of all interests that he could have discovered if he had properly investigated the vendor’s title. See: Barclays Bank v. Olofintuji (1961) 1 All NLR 799; (1961) WNLR 255. Where he fails to act in good faith in making all the necessary investigations, he acts malafide and cannot be availed an equity. In the instant case, the fact that the vendor purported to have handed over the property of another to the appellant and vowed to see to it by whatever means, does not and can never amount to admission against the proprietary interest on the part of the vendor.
The appeal is completely lacking in merit and it is accordingly dismissed with N50, 000.00 in favour of the respondent against the appellant.

JOHN INYANG OKORO, J.C.A: I was privileged to read in draft the Judgment of my learned brother, Akaahs, JCA just delivered which I entirely agree. Although both the Appellant and Respondent trace their title to the disputed property to the same vendor, it is my view that the Respondent who first Paid for the property and also maintained an unbroken possession of the property has an upper hand in the matter. The reason is that as at the time the Appellant paid money for the property, the vendor had nothing again to sell having already transferred title to the Respondent and the maximum Nemo dad quod non habet applies. I think the Appellant was not circumspect when he went to buy the property. Although it is in evidence that he saw the Respondent in the property and queried his presence, he did not do enough before paying for the property which title had already been transferred to the Respondent.
I agree that the appeal is lacking in merit and is also dismissed by me. I also award costs of N50, 000.00 to the Respondent herein.

M. A. DANJUMA, J.C.A: I have read the judgment of my lord K. B. AKAAHS JCA before now and agree that the appeal is without merit and deserves to fail.
The Appellant was a purchaser with knowledge or Notice of the subsisting and prior interest of the Respondent who had been let into possession. This prior interest, created first in time to the Appellant’s cannot be destroyed by any subsequent equitable interest.
Where, the equities are equal, the first in time prevails. What is more, in this case on appeal, the Respondent’s equity has graduated to a legal interest as it was coupled with possession which ought have constituted imputed Notice to the Appellant and in favour of the Respondent. The boasting or bravado by their common vendor in favour of the Appellant does not create an estoppel against the Respondents other than to constitute an admission against self in favour of the Respondent as relating to whatever action for the breach of contract or tort of deceit, fraud or misrepresentation that may be instituted by him.
For the above and the comprehensively set out reasons in the lead judgment, I concur that this appeal has no merit and must fail.
Appeal dismissed. I abide by the order relating to costs.

Appearances

S.O. Kuyoro with F.A. DinaFor Appellant

AND

Olalekan Yusuf with Lawal AlebiosuFor Respondent