MR. TAORED MAJEOLOGBE v. ALHAJI I.A.D. SOLARIN (2015)

MR. TAORED MAJEOLOGBE v. ALHAJI I.A.D. SOLARIN

(2015)LCN/7988(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of August, 2015

CA/I/M30/2011

RATIO

COURT: JURISDICTION; THE DEFINITION OF JURISDICTION AND WHEN THE ISSUE OF JURISDICTION CAN BE RAISED

Jurisdiction is defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought. Equally, it is trite that issue of jurisdiction can be raised at any time by a party even on appeal to this Court or the Supreme Court. The caveat is that it should be raised timeously by and resolved – See A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, Daplanlong v. Dariye (2007) 8 NWLR (Pt.1036) 332, Manson v. Halliburton Energy Service Ltd. (2007) 2 NWLR (Pt.1018) 211, Messrs. N.V. Scheep v. The M.V. “S Araz” (2000) 12 SC (Pt.1) 164, Jeric Nig. Ltd. v. UBN Plc. (2000) 12 SC (Pt.11) 13 and Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

COURT: JURISDICTION; WHAT MAKES A COURT COMPETENT

The next question is what makes a Court competent? It is settled that a Court is competent when the Court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or the other, the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction and the case before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587; Magaji v. Matari (2000) 5 SC 46; Galadima v. Tambai (2000) 6 SC (Pt.1) 196; Luftansa Airline v. Odiese (2006) 7 NWLR (Pt.978) 39. The determination as to whether the Court has jurisdiction to entertain a matter would be guided by the claim of the plaintiff. That is to say that the Writ of Summons and the statement of claim has to be examined. A careful look at the amended statement of claim by the respondent before the lower Court creates no doubt that the matter before the lower Court is a land matter and of which jurisdiction is conferred on the High Court – See Gafar v. Govt Kwara State (2007) 4 NWR (Pt.1024) 375; Nkuma v. Odili (2006) 6 NWLR (Pt.977) 587. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

COURT: JURISDICTION; WHETHER IT IS ONLY PROPER PARTIES THAT CAN INVOKE THE JURISDICTION OF THE COURT

The general rule is that only proper parties can invoke the jurisdiction of the Court. That is to say that only a proper party can sue and be sued. Equally it is only that party that can be bound by the outcome of the proceeding. In order to ascertain a proper party to a suit, it is the fact of the case that would determine it. The Court always would ensure that proper parties are brought before the Court. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

COURT: POWER OF THE COURT; WHETHER A COURT HAS THE POWER TO SET ASIDE ITS OWN JUDGEMENT OR DECISION IN APPROPRIATE CASES

Agreed, the law is that a Court has the power to set aside its own judgment or decision in appropriate cases and amongst others where judgment was given in the absence of a party as in the case at hand. See Igwe v. Kalu (2002) 14 NWLR (Pt.787) 435; Ukachukwu v. Uba (2004) 10 NWLR (Pt.881) 294. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

LAND LAW: JOINT OWNERSHIP; WHETHER JOINT OWNERSHIP OF LAND PRESUPPOSES OWNERSHIP OF SUCH LAND BY MORE THAN ONE PERSON OR BY A GROUP OF PERSONS

Where joint ownership is certain as in this appeal, each party has a right of ownership in the land. Joint ownership of land presupposes ownership of such land by more than one person or by a group of persons. See the cases of Sunday Obasohan v. Thomas Omorodun & Anor. (2001) 10 SC 85; Osuji v. Ekeocha (2009) 6-7 SC (Pt.1) 91. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

LAND LAW: TITLE TO LAND; THE MODE OF ACQUISITION OF LAND UNDER THE CUSTOMARY LAW

The mode of acquisition of title to land under the customary law are:
(a) First settlement on the land and deforestation of the virgin land
(b) Conquest during tribal wars
(c) Gift
(d) Grant customary
(e) Sale
(f) Inheritance. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MR. TAORED MAJEOLOGBE Appellant(s)

AND

ALHAJI I.A.D. SOLARIN Respondent(s)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal was the plaintiff before the Ogun State High Court, Sagamu Judicial Division hereinafter referred to as the lower Court. The appellant was the defendant. The claim of the respondent before that Court as contained in paragraphs 14 of the amended statement of claim dated 10th day of May, 2001 and filed same date is as reproduced herein below:
(a) Declaration that the property situate, lying and being at No. 9/10 Alhaji Mojeed Sodeinde Street, Sabo, Sagamu, Ogun State is a joint property of the plaintiff and his junior sister Mrs. Adenike Odusina by virtue of a deed of gift dated 5th day of August, 1976.
(b) Declaration that the purported sale of the said property to the defendant in February 1994 by Mrs Adenike without the knowledge and or consent of the plaintiff is null and void and of no effect.
(c) An order of injunction restraining the defendant, his servants, agent, privies and whosoever from committing further act of trespass on the said property which has the following boundaries i.e.
(i) On the right by Lateef Sodehinde’s House.
(ii) On the left by Methodist Church’s Street.
(iii) On the back by Wusa Bello’s House.
(iv) On the front by a road.

Trial commenced before the lower Court on the 19th April, 2004. The respondent gave evidence and called two witnesses. In support of his case, the respondent tendered in evidence as exhibit the following:
(1) Deed of gift of the land in dispute dated 5th August 1976 admitted as Exhibit ‘A’.
(2) Certified true copy of judgment in Suit No. HCS/87/94 admitted as Exhibit ‘B’.
(3) Survey plan No. KLA/OG/11/2001 dated 28/03/01 marked Exhibit ‘C’.

At the close of evidence by the respondent there was move for amicable settlement. The move failed and hence the case proceeded to defence. The appellant failed to enter his defence after several adjournments and hence he was foreclosed. Upon an application by the appellant, the defence was opened vide a considered ruling of the Court on the 21st day of February, 2006.

The appellant gave evidence as DW3 and called two witnesses who are DW1 and DW2 respectively. He also tendered in evidence the following as Exhibits –
(1) Survey plan dated 4th August 1982, No. FN3635 as Exhibit D.
(2) Government agreement dated 2/2/06 – Exhibit ‘F’.

In the end, the learned trial judge Hon. Justice O.O. Olapade in his considered judgment delivered on the 22nd day of May, 2006 concluded as follows:
“……The Court is left with the version of the plaintiff as to how the land in dispute devolved. That is as gift to both the plaintiff and his sister Mrs Odusina.
I find the plaintiff’s evidence as presented by the plaintiff witnesses in line with the statement of claim. I find as highly plausible, the story presented to this Court by the plaintiff witnesses in line with the statement of claim. I find as highly plausible, the story presented to this Court by the plaintiff.
I find the plaintiff witnesses credible witnesses. I therefore hold that the property in question was given to the plaintiff and Mrs Odusina by Alhaji Mojeed Sodeinde on 5/08/76.
That being the case, the position in Law is stated in the well established legal maxim nemo dat quod non habet meaning no one may give that which does not belong to him.
First, there is nothing by way of documentary evidence showing a conveyance to the defendant. The evidence proffered by the defendant is also devoid of evidence of sale under the customary law.
Where a property belongs to more than one person, even with customary law, same can only be disposed of by or with the knowledge and consent of the co-owners or whoever they have authorized to do such transaction on their behalf.
The plaintiff said he never consented to the sale to the defendant by his co-owner. He was not a party to it. I do not hesitate to grant the 2nd claim herein and in effect the purported sale to the defendant is declared null and void.
The 3rd claim is for an order of injunction restraining the defendant from committing further trespass on the said property. The purported sale to the defendant having been declared null and void, the defendant has no legal basis for staying any longer on the property. He has no valid interest legal or equitable in respect thereof. The grant of an injunction normally follows a successful claim in trespass. The combined effect of the defendants in claims 1 and 2 is that the defendant has been a trespasser on the land. It therefore becomes necessary to legally keep him off the said property and this is where the order of injunction becomes relevant.
There is nothing on record herein restraining the Court from stopping a further trespass in this case. I belief the interest of the plaintiff would be further protected if the order of injunction is granted forth with and such is hereby granted him.
In all, the claim of the plaintiff succeeds and the plaintiff is entitled to the 3 (three) claims before this court which are hereby granted him”.

The facts of the case leading to the foregoing conclusion of the Court is that some time in 1976, the uncle of the plaintiff by name Mojeed Adesanya gave the land described as and lying at No. 8/10 Sodehinde Street, Sagamu with the boundaries as follows:
(1) Mojidi Sodeinde Street in front
(2) Madam Wasamotu Tijani Bello’s land at the back
(3) Lateef Sodeinde’s land on the right
(4) Church Street on the left;
jointly to both the plaintiff and Mrs Adenike Odusina (See Deed of Gift Exhibit A).

It is the evidence of the plaintiff that in 1989, his sister approached him and sought for his permission to develop the land in the interest of both of them and he the plaintiff gave consent but with the agreement that two flats on top would be for the plaintiff and the other two on the ground floor for his sister.

Based on that agreement, his sister developed the constructing land by a block of four flats thereon in 1994.

Without his consent, his sister Mrs Odusina sold off the structure before she fully completed it. The plaintiff filed a suit against his sister and the purchaser who is the present appellant in suit number HCS/87/94 (See Exhibit B).

The defendant failed to enter defence in the said suit hence a default judgment was entered against the defendants. The present appellant filed an application to set aside the judgment against him. The trial Court heard his application and granted same. In its considered ruing on the 6/6/1996, the Court set aside its judgment against the appellant. See page 7 of the record where the Court said:
“The 2nd defendant is granted leave to defend in the action while the judgment is set aside in respect of the 2nd defendant only. It subsists in respect of the 1st defendant. Cost in the course. Case adjourned to 30th July, 1993 for mention.”

The matter then went into full trial against the appellant which led to the conclusion of the Court as herein before reproduced.

Aggrieved by the said judgment, hence this appeal against the respondent. The original notice of appeal dated 1st day of August, 2006 was filed same date and contains three grounds.

Vide the order of this Court granted on the 17/10/2011 and amended notice of appeal was filed on 11/2/2011 and deemed as properly filed on 17/10/2011. It contains five grounds. I reproduce herein under the five grounds but without the particulars. They are:
Ground One
The learned trial judge erred in law in declaring the sale of the land and building thereon and to the defendant by Mrs Adenike Odusina (Nee Solarin) as null and void.

Ground Two
The learned trial judge misdirected herself in Law when she held as follows:
“The plaintiff has said he never consented to the sale to the defendant by his co-owner. He was not a party to it. I do not hesitate to grant the 2nd claim herein and in effect the purported sale to the defendant is declared null and void.

Ground Three
The judgment of the learned judge cannot be supported having regard to the evidence adduced.

Ground Four
The learned trial judge erred in law in proceeding with the case to hearing and judgment without the joining of a necessary party to the action.

Ground Five
The learned trial judge erred in law when she did not make sure that evidence of lack of interest in the property was not given by the parties to the action.

RELIEFS SOUGHT FROM THE COURT OF APPEAL
That the appeal be allowed and the judgment of the High Court be set aside.

Based on the foregoing and at the hearing of this appeal, counsel filed and adopted their respective Brief.

The adopted brief of argument by the appellant is dated and filed on 25th day of November, 2011. Therein he distilled the following two issues for determination:
(1) Whether the absence of Mrs. Adenike Odusina as a party in the case that led to this appeal did rob the lower Court of the jurisdiction to entertain the case before that Court.
(2) Whether there was evidence before the lower Court of the joint ownership of the house put up on that vacant land by Mrs Odusina pursuant to which the consent of respondent was required before the sale of the house by Mrs Odusina to the appellant.

The learned counsel for the respondent did not distill any issue but adopted the two issues formulated by the appellant for the determination of this appeal. I would therefore proceed to resolve the two issues distilled by the appellant for the determination of this appeal.

Issue A
Whether the absence of Mrs Adenike Odusina as a party in the case that led to this appeal did rob the lower Court of the jurisdiction to entertain the case before that Court.

The argument of the learned counsel representing the appellant on this issue can be found on pages 12-31 of the adopted brief of argument by the appellant. The summary of the argument of the appellant is that Mrs Adenike Odusina was the one whom the respondent alleged wrongly and illegally sold the landed property to the appellant. He argued that the property in dispute which comprised a building of four (4) flats was jointly owned by him and Mrs Adenike Odusina before the latter sold it to the appellant without his respondent’s consent, and yet the said Mrs Adenike Odusina appropriated the sale proceeds. He relied on the following paragraphs of the statement of claim by the respondent before the lower Court:
Paragraph 4
“The land in dispute forms a portion of a large expanse of land holding which originally belonged to late Alhaji Mojeed Adesanya Shodeinde who was an uncle of the Plaintiff.

Paragraph 5
Under and by virtue of a document dated 5th day of August, 1976, Late Alhaji Mojeed Adesanya granted the land in dispute as a gift to the plaintiff and his full-blooded sister – Mrs Adenike Odusina (Nee Solarin) jointly, in an undivided share.

Paragraph 6
The plaintiff avers that since grant maintained in paragraph 5 supra, the land in dispute has always been held jointly in undivided share by himself and his said sister.

Paragraph 7
Sometimes in the year 1989, while the land was under the joint physical control of both the plaintiff and Mrs Adenike Odusina, Mrs. Odusina approached the plaintiff for permission to develop the land by erecting a structure/building thereon for the mutual benefit of both.

Paragraph 8
The plaintiff avers that he consented to the request/idea broached by Mrs Odusina on the condition that any development carried on the land would enure to the benefit of both of them.

Paragraph 9
Sometimes in the year 1994, Mrs Adenike Odusina unilaterally sold the land in dispute together with the building erected thereon by her to the defendant without the knowledge or consent of the plaintiff.

Referring to the evidence of the respondent before the lower Court as contained from page 64 of the record he submitted that it is crystal clear that if the respondent had any cause of action against some people in the case at the lower Court the first among such people ought to have evidently been Mrs Adenike Odusina, his sister. The pleading and evidence of the respondent were mainly against Mrs Adenike Odusina.

Realizing this, the respondent in the earlier case, suit No. HCS/87/94 made Mrs Adenike Odusina as the first defendant with the appellant as the second defendant. He added that in his view the reason why the respondent did not join Mrs Adenike Odusina in this case was because the respondent had thought that he already had a judgment against Mrs Adenike Odusina in the said earlier case wherein the sale of the instant property to the appellant had been nullified by the Court. This, according to the appellant’s learned counsel informed the averment in paragraph 10 of the amended statement of claim where the respondent aver as follows:
“In suit No. HCS/87/94, the plaintiff obtained judgment against Mrs Adenike Odusina, the defendant vendor in consequence of which the sale of the land in dispute to the defendant was declared illegal by the Court.”

Further to this, he brought out the evidence of the respondent in support of that averment where he said on pages 65 of the record as follows:
“I took action against her and the buyer the present defendant in the High Court in HCS/87/94. The sale was declared unlawful, illegal and unreasonable.”

Further to this is the evidence of the respondent contained in page 66 of the record where he admitted that Exhibit “B” (the record of proceeding in the said case of HCS/87/94) the judgment was entered against Mrs Adenike Odusina and the appellant.

On the finding of the Court, where the learned trial judge said he did not have any judgment (be it default or otherwise) before her which showed that the respondent did not in fact have subsisting judgment against either Mrs Adenike Odusina or the appellant. He referred to the finding of the Court on page 109 of the record as follows:
“I however need to add at this stage that Exhibit “B” is not useful in this case. I do appreciate its relevant to the issue herein. Moreover Exhibit “B” does not show the claim in that suit. It only shows the proceeding of 15/4/96 and 13/5/96. The subject matter of that suit is not stated therein. The defendant could therefore be correct as he averred that it does not deal with same subject matter as in this present case.”

He submitted that failure to have tendered documents that pertained to the said suit was the reason why the judge held that there was no subsisting judgment in favour of the respondent against Mrs Adenike Odusina wherein the sale of the instant property to the appellant had been nullified. He added that the position taken by the lower Court cannot be faulted. Further he added that the joinder of Mrs Adenike Odusina had become imperative. The respondent by that would be able to make out the case against her. He cited in aid the cases of Green v. Green (1987) 3 NWLR (Pt.61) 640 and Osun State Government v. Danlami Nig. Ltd. & Anor (2003) 7 NWLR (Pt.818) 72 at pg. 107 para A-B.

The cases are to bring to fore who is a proper party. He also referred to the cases of Re Benson (2003) NWLR (802) 50 and Yusuf v. Obasanjo (2005) 18 NWLR (Pt.956) 96.

He urged the Court to hold that Mrs Adenike Odusina was a necessary party to the case that led to this appeal and absence of whom invalidates the order of the lower Court.

In his respondent brief, the learned counsel representing the respondent in reaction to the submission of the appellant’s counsel on issue A which is on non-joinder of Mrs Adenike Odusina as a party in the suit before the lower Court argued whether or not Mrs Adenike Odusina is made a party in the case is a matter of pleadings and evidence. This, he said, was never raised before the lower Court nor ever pleaded by the appellant. A point of law or fact which was not raised in the lower Court can only be raised on appeal when it is clear that no further evidence could have been on the point in the lower Court which could have affected the decision in the issue. He relied on the case of K. Akpene v. Barclays Bank of Nig. Ltd. & Anr. (1977) 1 SC at page 47, Shonekan v. Smith (1964) ALL NLR page 173 and Stool of Abinabina v. Chief Kojo Enyimalu (1953) AC 209 at 275.

He argued that party in a suit means not only a person named as such but also one who being cognizant of the proceedings and of the fact that party therefore is professing to act in his interest allows his battle to be fought by that party intending to take the benefit of the championship in the event of success. It therefore follows that if an individual was content to stand by while his battle was fought and concluded by another in same interest he must be and is indeed bound by the result and should not be allowed to reopen the case. He relied on the case of Omiyale v. Macaulay (2009) Vol.37 (Pt.2) NSCQR page 903 to 904 ratio H-C.

He added that the appellant, while answering a question under cross examination, admitted that Mrs Adenike Odusina was aware of this case herein on appeal (He referred to page 81 of the record of appeal) and (the subpoena application of the appellant) but Mrs. Adenike Odusina refused to come to Court either as a witness and or as a party. Jurisdiction of the Court can be challenged even for the first time before the Court of Appeal. He relied on the case of Drexel Energy v. TIB (2008) Vol.36 part 2 NSCQR page 1248 to 1249.

The conditions laid down in that case to vest competent jurisdiction on a Court are available in the suit before the lower Court and therefore that Court has the jurisdiction to hear and determine the suit.

Burden of proof in civil cases, he submitted, is not that rigidly placed on the claimant like in the criminal cases. The burden in civil cases is on who would fail if no further evidence is given in a given case. The respondent in the lower Court proved his case on balance of probability and leaving the appellant to put up an unassailable defence but which the appellant failed to do. The evidence of DW2 (at page 79 of the record of Appeal) knocked out the bottom of the appellant’s defence if any at the lower Court. The failure of the appellant to call Mrs Adenike Odusina whom he claimed sold the land and building thereon to him. Any uncontroverted and unchallenged evidence is a proof of fact established by it. He referred to the case of Shell v. Edamakwe Koko & Nwuikwunce (2009) Vol. 39 NSCQR page 639 ratio B.

On this issue he submitted finally that the documentary evidence as well as the oral evidence adduced by the respondent and his witnesses proved that he (respondent) is entitled to judgment of the Court below. He urged this Court to hold that the respondent has proved his case at the lower Court and therefore urged the Court to dismiss the appeal with substantial cost.

The appellant in his reply brief responded to the submission of the learned counsel to the respondent by submitting that a party can raise an issue for the first time at the Court of Appeal if it is a legal issue.

My understanding of issue number one as couched by the appellant tend to challenge the competence of the action before the lower Court having regard to the absence of Mrs Adenike Odusina as a party in that she is the one who sold the land in dispute to the appellant.

Equally, it is trite that issue of jurisdiction can be raised at any time by a party even on appeal to this Court or the Supreme Court. The caveat is that it should be raised timeously by and resolved – See A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, Daplanlong v. Dariye (2007) 8 NWLR (Pt.1036) 332, Manson v. Halliburton Energy Service Ltd. (2007) 2 NWLR (Pt.1018) 211, Messrs. N.V. Scheep v. The M.V. “S Araz” (2000) 12 SC (Pt.1) 164, Jeric Nig. Ltd. v. UBN Plc. (2000) 12 SC (Pt.11) 13 and Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623.

The determination as to whether the Court has jurisdiction to entertain a matter would be guided by the claim of the plaintiff. That is to say that the Writ of Summons and the statement of claim has to be examined. A careful look at the amended statement of claim by the respondent before the lower Court creates no doubt that the matter before the lower Court is a land matter and of which jurisdiction is conferred on the High Court – See Gafar v. Govt Kwara State (2007) 4 NWR (Pt.1024) 375; Nkuma v. Odili (2006) 6 NWLR (Pt.977) 587.

Having gone this far, the question now left for determination is whether the absence of Mrs. Adenike Odusina as a party would rob the trial Court of the jurisdiction to entertain the matter.

A quick look at the fact of this case is that ownership of the land in issue was vested on the Respondent by virtue of a joint gift of the land in issue by their uncle Alhaji Mojidi Sodeinde in 1976. This story is not disputed by neither of the parties. It is further strengthened by the evidence of PW3, Mr. Abdul Lateef Sodeinde, the son of the said Alhaji Mojidi Sodeinde who gave the land to the Respondent as a gift to the Respondent and his sister (Mrs. Adenike Odusina). It is on record that both the Respondent and the aforesaid sister have a joint ownership of the land in issue. It is also the evidence of the Respondent that his sister (the co-owner) approached him and requested for permission to erect a 4 flat structure on the land and for which he agreed but on the condition that they would share the structure into two. That is, the respondent would take two flats on the 1st floor and the sister would take [he two flats on the ground floor. There was a consensus. Surreptitiously, the Respondent noticed the presence of the Appellant on the land and upon enquiring, he realized that his sister sold the property to the Appellant. He initiated an action against both his sister and the Appellant.

That gave birth to suit number NSC/87/94 between:
ALH. I.A.D. SOLARIN
V.
(1) MRS. ADENIKE ODUSINA (NEE SOLARIN)
(2) MR. TAOREED MAJEOLAGBE

See page 25 of the record for the certified true copy of the Statement of Claim. Therein by paragraph 9 the Plaintiff who is the Respondent in this appeal claimed against the Appellant and his sister Mrs. Adenike Odusina as follows:
“Paragraph 9(a): Wherefore the plaintiff claims declaration that he and the 1st defendant entitled to joint statutory right of occupancy of the land in dispute.
Paragraph 9(b): That the purported sale at Sagamu of 1st defendant’s house on the land in dispute is irregular, null and void.
Paragraph 9(c): Perpetual injunction restraining the 2nd defendant and both his agents and privies from entering the land/house in dispute”.

The Ogun State High Court presided over by Hon. Justice G.A. BAKRE took cognizance of the matter and trial commenced. On the 13th day of May, 1996, the Court in its wisdom entered default judgment upon hearing of the application by the Respondent calling for judgment pursuant to Order 14 Rule 5 of the Ogun State High Court Rules against the defendants. The Court entered judgment against the defendant for default of appearances and awarded a cost of N250:00 for the plaintiff (Respondent). See page 40 of the Record of Appeal.

Upon an application by the Appellant, the trial Court on the 6th day of June, 1996 set aside the judgment against the present appellant.

That led to the institution of another action against the appellant which is suit number HCS/64/97 and which led to the judgment upon which this appeal is predicated.

In the light of the foregoing, it is as clear as crystal that the default judgment entered against the appellant and Mrs. Adenike Odusina contained on page 40 of the record is still subsisting against the said Mrs. Odusina who was the 1st defendant in that suit. Upon a careful reading of paragraphs 3, 4, 5, 6 & 7 of the statement of claim in that suit, it is evident that the suit is on the same subject matter as the one leading to this appeal. Paragraph 3 of the said statement of claim reads:
“The plaintiff avers that the piece or parcel of land at 9/10 Alhaji Mojidi Sodeinde Street Sagamu is jointly owned by the plaintiff and the 1st defendant being part of larger piece of land belonging to Alhaji Mojidi Sodeinde.

Paragraph 4.
Plaintiff avers that the said land was given to the plaintiff and the 1st defendant by their late uncle Mojidi Sodeinde as per document dated August 1976 which I shall be releid (sic) upon at the trial of this suit.

Paragraph 5.
The plaintiff avers that he consented and approved the development of the land in dispute by the 1st defendant for the benefit of the plaintiff and 1st defendant.

Paragraph 6.
The plaintiff further avers that there was a joint agreement that the plaintiff would be entitled to the two flats in the house built by the 1st defendant.

Paragraph 7.
The plaintiff avers that the 1st defendant clandestinely sold the house built on the land in dispute without the knowledge, approval and consent of the plaintiff to the 2nd defendant in February 1994. Plaintiff avers that he fruitlessly called the attention of the 1st defendant to the unprecedented sale by the 1st defendant”.

If the foregoing paragraphs of that statement of claim is compared with paragraphs 3, 4,5, 6, 7, 8, 9 & 10 of amended statement of claim in suit number HCS/64/97 contained on pages 69 to 70 of the record which led to the judgment appealed against on page 100 – 115 of the record, one would be left in no doubt that both action are on the same subject matter and same parties.

Therefore in the circumstances that the default judgment against the 1st defendant Mrs. Adenike Odusina which is on the same subject matter is still subsisting and valid, there would be no need to join her again to the suit against the appellant. Otherwise it would constitute an abuse of process. The appellant having promptly taken step to set aside the said default judgment against him hence the institution of the second suit against him so as to recover possession of the land.

However, there is always a presumption of correctness in favour of a judgment until that presumption is rebutted and the judgment is set aside. Such judgment subsists and must be obeyed. What I am saying is that Order of a competent Court are valid, subsisting and must be obeyed. They remain binding on parties thereto until set aside by a superior Court of competent jurisdiction or declared null and void. See the cases of S.P.D.C. (Nig.) Ltd. v. X.M. Fed. Ltd. (2006) 16 NWLR (Pt.1004) 189 SC and Oshiomhole v. FGN (2005) 1 NWLR (Pt.907) 414.

In the light of the foregoing therefore, I am left with no other option than to come to the one and only conclusion that the absence of Mrs Adenike Odusina as a party in the case that led to this appeal did not rob the lower Court of the jurisdiction to entertain the case before it. Accordingly, I discountenance the argument of the learned counsel representing the appellant on joinder of parties and answer issue A in the negative and against the appellant.

Issue B
Whether there was evidence before the lower Court of the joint ownership of the house put up on the vacant land by Mrs. Odusina pursuant to which the consent of respondent was required before the sale of the house by Mrs. Odusina to the appellant.

The argument by the appellant is that the learned trial judge concluded that the property in dispute was a joint property of the respondent and Mrs Adenike Odusina and that Mrs Odusina had sold the same to the appellant without the consent of the respondent (See page 113 and 114 of the record of appeal). At page 65 of the record, the Court found as follows:
“That year before she fully completed the house, she sold the house without my knowledge and consent”.

He argued that what was given as a gift to both the appellant and the respondent is vacant land and not the building. Further to this, he contended that there is nothing in the pleadings suggesting the building on the land belong to the two. But surprisingly he referred the Court to paragraph 8 of the amended statement of claim by the respondent before the lower Court. The said paragraph reads:
PARAGRAPH 8 (Amended Statement of Claim)
“The plaintiff avers that he consented to the request/idea broached by Mrs Odusina on the condition that any development carried on the land would enure to the benefit of both of them”.

Since the issue is not pleaded, he submitted that the evidence of the respondent and PW3 go to no issue. The inference that could be drawn in the light of the foregoing is that Mrs Odusina developed that land without accepting the condition attached to the same by her brother (The respondent). The truth is that the respondent was persuaded by Mrs Odusina and PW3 to allow her develop the land for her use only and alone. There is nothing in the record which would have made Mrs Odusina to agree to build a house for her brother, a lawyer. There is also nothing on record which would have made the respondent, a lawyer, to demand that a younger sister should build a house for him. The land would have been equally shared by the two of them for their individual development. The respondent being a lawyer ought to have tendered a document to prove this arrangement. He further urged the Court to hold that the house in dispute is not a joint property of the respondent and Mrs Adenike Odusina pursuant to which Mrs Adenike Odusina, as the sole owner, had the right to sell same to the appellant. He also put forward his view that the consideration of affection and blood influence which passed between the late Alhaji Mojeed Adesanya Shodeinde on the one hand, and the respondent and Mrs Odusina on the other hand, culminating in the Deed of Gift (Exhibit A) was the same consideration which Mrs. Adenike furnished her brother culminating in the development of the land by Mrs Odusina for her use alone without the acceptance of the condition attached to the sale by her brother, the respondent. He urged the Court to enter an order validating the sale of the property by Mrs Odusina to the appellant. Finally he urged the Court further to allow the appeal on the following grounds:
(A) The non-joinder of Mrs Adenike Odusina either as a co-defendant or as a co-plaintiff removed the jurisdiction of the lower Court to have entertained the case that led to this appeal as the said Mrs Adenike Odusina was a necessary party.
(B) What was a joint property of the respondent and Mrs Adenike Odusina was the vacant land on which the property in dispute stands. The property itself was solely owned by Mrs Adenike Odusina, pursuant to which she had the right to sell the same to the appellant without the consent of the respondent.

Learned counsel to the respondent in reaction to the submission of the learned counsel to the appellant argued that from the totality of the pleadings and evidence of the plaintiff, in this suit there was never a time the respondent gave an impression that the building construction and or any development of the land jointly owned by Mrs Adenike Odusina and the respondent was not a jointly owned property. He submitted that the appellant was wrong when he submitted that the building on the jointly owned property at No. 8A, Alhaji Mojeed Sodeinde Street, Sabo Offin, Sagamu, Ogun State is not a jointly owned property of Mrs Adenike Odusina and the respondent. He argued that the learned trial judge was right in his conclusion contained on page 113 and 114 of the record. The document depended by the appellant to be the source of title of ownership of Mrs Adenike Odusina (Exhibit F) upon which sale was conducted to the appellant was found to be a non-executed document.

Further, he submitted that DW2’s evidence as well as the statement of defence of the appellant did not successfully prove the fact that Mrs Adenike Odusina is sole owner of the property sold. He referred to paragraph 3 of the statement of defence of the appellant contained on page 50 of the record of appeal and the evidence of DW2 on pages 78 and 79 and the finding of the learned trial judge on pages 112 to 114 of the record of appeal. He added that the learned trial judge was right to have applied the well established regal maxim “Nemo Dat Quod non Habet” meaning no one may give that which does not belong to him. Mrs. Adenike Odusina is not the sole owner of the disputed property but a jointly owned landed property of the respondent and Mrs Adenike Odusina.

Further he said, the appellant was quite aware of the fact that what he bought from Mrs Adenike Odusina was “Nothing” hence he failed to call any witness from the family directly connected with the land. The pleading and evidence of the respondent support the fact that the land in dispute in this case was given to them by their uncle Alhaji Mojeed Sodeinde and same was a plausible one. He relied on the case of Omiyale v. Macaulay (2009) Vol. 37 (Pt. 2) NSCQR page 201 ratio. D-F.

He argued that the respondent has locus standi to prosecute this matter as he has done. A person is said to have locus standi to prosecute a matter if he has shown sufficient interest in that action and that his civil rights and obligations, have been or are in danger of being infringed on and that due onus of proof is on the party who has initiated the proceeding. He relied on the case of Ojukwu v. Ojukwu (2008) Vol. 36 (Pt.2) NSCQR page 1300 ratio A – D.

Locus standi is not determined on the merit/success of a case but on whether the plaintiff has sufficient interest or legal right in the subject matter of the dispute. Therefore, the lower Court was right to hear and determine the suit leading to this appeal.

He urged the Court to dismiss the appeal for lacking in merit.

The learned trial judge on pages 113-114 concluded as follows on this issue:
“…The Court is left with the version of the plaintiff to how the land in dispute devolved. That is as gift to both the plaintiff and his sister Mrs Odusina.
I find the plaintiff’s evidence as presented by the plaintiff witness in line with the statement of claim. I find as highly plausible, the story presented to this Court by the plaintiff.
I find the plaintiff witnesses credible witnesses. I therefore hold that the property in question was given to the plaintiff and Mrs Odusina by Alhaji Mojeed Sodeinde on 5/08/76.
That being the case, the position in law is stated in the well established legal maxim nemo dat quod non habet meaning no one may give that which does not belong to him.
First there is nothing by way of documentary evidence showing a conveyance to the defendant. The evidence proffered by the defendant is also devoid of evidence of sale under the customary law.
Where a property belongs to more than one person, even under customary law, same can only be disposed of by or with the knowledge and consent of the co-owner or whoever they have authorized to so do such transaction on their behalf.
The plaintiff has said he never consented to the sale to the defendant by his co-owner. He was not a party to it. I do not hesitate to grant the 2nd claim herein and in effect the purported sale to the defendant is declared null and void”.

In the circumstance of the case at hand, there is abundant pleading and evidence pointing to no other thing than that the land in dispute situate lying and being at 9/10 Alhaji Mojeed Sodeinde Street, Sabo Offin, Sagamu, Ogun State is bounded as:
(a) In the front by Alhaji Mojeed Sodeinde Street.
(b) At the back by Madam Musa Tijani Bello’s land
(c) On the right by Lateef Sodeinde’s land
(d) On the left by Methodist Church Street, Sabo Sagamu Ogun State.

The said land, herein referred to, devolve on the respondent and Mrs. Adenike Odusina consequent upon the gift of the said land to them by their uncle Late Alhaji Mojeed Adesanya in 1976. See the averment in paragraphs 3-6 of the amended statement of claim by the respondent contained on page 69 of the record.

Further to this, the evidence of PW1 and PW3 and DW1 is sacrosanct on this issue. In essence what the respondent have is joint ownership of the land in dispute.

The applicable mode in the case at hand as revealed in evidence before the trial Court is that the land was given as a gift to the respondent and Mrs Adenike Odusina by their uncle Late Alhaji Mojeed Sodeinde.

Having said this, the pertinent question is whether Mrs Odusina can independently, and without the consent of her co-owner, transfer the ownership of the land in issue. My answer is in the negative. As long as he is not the sole owner, he needed the consent of his co-owner to legally and properly sell or transfer ownership in such land to a 3rd party. I find no fault in the conclusion of the trial Court relying on the maxim nemo dat quod non habet meaning no one can validly give what he does not have. See the case of Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt.781) 159, Olagunju v. Yahaya (2004) 11 NWLR (Pt.883) 24, Egbuta v. Onuma (2007) 10 NWLR (Pt.1042) 293 and Samuel Onanuju & Anr. v. Att. Gen. of Anambra State & 2 Ors. (2009) 4-5 SC (Pt.1) 163.
Having established by preponderance of evidence that the land is jointly owned by the respondent and Mrs Adenike Odusina and was in that joint ownership up to the period of the purported sale of the said land to the appellant by Mrs Odusina without the consent of the respondent, the purported transaction transferring ownership to the appellant is void ab initio. The said Mrs Adenike Odusina has no legal right to sell the land to the appellant. What the appellant bought can simply be described as a legal suit and not any piece of land. That is what has played out by the action at the Court below and in this Court.
Accordingly, I also declare the alleged transaction leading to the purported sale of the land in dispute in this appeal void and of no effect.

Let me add that it sounds ridiculous for the learned Counsel representing the appellant to be canvassing argument that it was the property only that was sold. I am sure he might have heard before the maxim “QUIC QUID PLANTATUR SOLO SOLO CEDIT”. Meaning whatever is affixed to the soil becomes in contemplation of law as part of it. What this implies is that once a party is adjudged to be the rightful owner of the land in dispute, such land together with what is on it automatically becomes his. Therefore it cannot be said in this instance that Adenike Odusina sold only the property to the appellant without the land. What she attempted to do was to sell the land inclusive of the property on it.

In view of the evidence before the Court, pleading inclusive, which I consider uncontroverted as to the land being a gift jointly to the respondent and Mrs. Adenike Odusina, therefore the consent of the respondent is necessary and required before any purported sale of the said land in issue. Accordingly, I answer the issue in the affirmative.

Having therefore resolved the two issues against the appellant and in favour of the respondent, the one and only result is to pronounce this appeal unmeritorious. Therefore I conclude that the appeal lacks merit and is hereby dismissed with a token cost of N30,000.00 in favour of the Respondent and against the appellant.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the judgment just delivered by my learned brother, M.N. Oniyangi, JCA.

My learned brother has adequately considered and resolved the issues that came up for determination in this appeal. I agree with the reasoning and conclusion arrived at by my learned brother. I have nothing else to add.

I abide by the consequential orders made therein, including the order on costs.

NONYEREM OKORONKWO, J.C.A.: I have read in draft the judgment just delivered by my learned brother Mudashiru Nasiru Oniyangi, J.C.A. in this appeal.

This appeal, once again brings to the fore some incidence of Co-ownership of land particularly joint tenancy characterized by the existence of four unities namely:
1. Unity of time (2) Unity of interest (3) Unity of title and (4) Unity of possession. These “Unities” imply that so long as the joint tenancy subsists there cannot be any destruction of any of the “Unities”. It also means that no member can claim any portion of the property as his own; each member is as much entitled to possession as the other. See R.W. James Modern Land Law of Nigeria University of Ife press at 125.
The joint tenants hold their interest in undivided shares and none can solely alienate any part of the whole of the joint property without the concurrence of the other Co-owners.
In Chief Numogun Sam Adeyemi vs. Emmanuel Opeyori (1976) 9&10 SC 31, Idigbe JSC reiterates the principles of joint tenancy thus:
“Certainly, a co-owner can maintain an action in trespass against the other if he has actually been ousted or dispossessed of land to which both have communal ownership. Each of the co-owners is entitled to possession of the entire land and if one co-owner turns out the other from the entire land or even part of it, that is trespass.”

It was therefore trespassory for one joint tenant, in this case the appellant, to attempt to alienate any portion of the joint property without the concurrent consent of the other joint tenant, the respondent herein.

For other reasons adumbrated in the lead judgment, I will also dismiss the appeal as lacking in merit as my learned brother aforesaid has done.

Appearances

E.I. Ikwugbado, Esq.For Appellant

AND

Adekogun A. Adeola, Esq.For Respondent