OWAKAH v. RSHPDA & ANOR (2022)

OWAKAH v. RSHPDA & ANOR

(2022)LCN/5084(SC)

In The Supreme Court

On Friday, April 08, 2022

SC.113/2011

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

John Inyang Okoro Justice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Between

FELIX OWAKAH APPELANT(S)

And

1. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY 2. MRS. GRACE ANUM RESPONDENT(S)

RATIO:

HOW A CLAIMANT MAY ESTABLISH A CLAIM OF TITLE TO LAND

The law is settled that to succeed in a case of declaration of title to land, a party must plead and prove the method by which he acquired the said title, ownership of land cannot be claimed by a party without establishing ownership. See FASORO VS BEYIOKU (1988) 2 NWLR (Pt 76) 263, NWOFOR VS NWOSU (1992) 9 NWLR (Pt 264) 229, ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt 424) 2521 UNITED BANK FOR AFRICA PLC V. AYINKE (2000) 7 NWLR (Pt 663) 831, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265. A claimant must satisfy the Court on the following: (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of the title claimed. See OBAWOLE V. COKER (1994) 5 NWLR (Pt 345) 4161, ADESANYA V. ADERONMU (2000) 9 NWLR (Pt 672) 370 at 3821, EDOHOEKET V. INYANG (2010) 7 NWLR (Pt 1192) 251, OBINECHE VS AKUSOBI (2010) 12 NWLR (Pt 1208) 383. PER TIJJANI ABUBAKAR, J.S.C.

THE POWER OF AN APPELLATE COURT TO CONSIDER APPEAL

Where a Court of trial, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record to justify the conclusion reached by the trial Court. Once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere with such findings. See CHIEF J. OKEOWO V. ATTORNEY GENERAL OF OGUN STATE (2010) 5 – 7 SC (Pt. 11) 129, MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V. ADEBAYO ADEYIGA & 6 ORS (2012) 2 SC (Pt. 1) 68, OSUJI V. EKEOCHA (2009) 6 7 SC (Pt. 11) 91, CYRIACUS NNADOZIE & 3 ORS V. NZE OGBUNELU MBAGWU (2008) 1 SCNL 219, OYIBO IRIRI & OTHERS V. ESERORAYE ERHURHOBARA & ANOR (1991) 3 SCNJ 1. PER TIJJANI ABUBAKAR, J.S.C.

WHEN AN APPELLATE COURT WILL INTERFERE WITH THE FINDING OF A LOWER COURT

RELEVANCE AND ADMISSIILITY OF EVIDENCE

The trial judge should have known that it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered, see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe V. Asade (2010) 40 NSCQR 386 at 424. PER TIJJANI ABUBAKAR, J.S.C.

THE DISCRETIONARY POWER OF THE COURT TO AWARD GENERAL DAMAGES

Award of general damages is purely within the discretion of the Court. See ODULAJA V. HADDAD (1973) 11-12 SC 357, the lower Court expressly without mincing words said the Court used its discretion judiciously and judicially and awarded damages, general damages need not be specifically asked for by a litigant, as rightly held by the lower Court, upon general appraisal of the matter, the Court may in its discretion award what is determined to be just and appropriate. General damages are such as the Court may give when the Judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. See ODOGWU V. ILOMBU (2007) 8 NWLR (Pt. 1037) 4881, NICON HOTELS LTD V. NENE DENTAL CLINICS LTD (2007) 13 NWLR (Pt. 1051) 237. PER TIJJANI ABUBAKAR, J.S.C.

ON WHOM LIES THE ONUS TO PROVE THAT THE COURT DECIDED A MATTER WRONGLY

HOW A CLAIMANT MAY ESTABLISH HIS TITLE TO LAND

The law is well defined on the methods of establishing title to land by a party; that it can be proved by either of the five ways listed in Idundun Vs. Okumagba (1976) 6-10 SC 48, namely:
(a) by evidence of traditional history of title
(b) by grant or production of title document
(c) by acts of ownership
(d) by acts of possession long enough to warrant the inference that the person exercising such acts are the owners.
(e) by act of possession of adjoining or adjacent land to the land in dispute. PER JOHN INYANG OKORO, J.S.C

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal Port Harcourt Division delivered on the 24th day of November, 2010. The Court of appeal gave judgment in favour of the 2nd Respondent but held that the Appellant be paid the sum of N250,000 by the 1st Respondent as compensation for the purchase price paid by the Appellant.

At the trial Court, the Appellant got judgment, the trial Court held that there was valid sale between the Appellant and the 1st Respondent, it therefore ordered for specific performance. 2nd Respondent’s counter-claim was dismissed.

At the trial Court, by the second amended statement of claim of 16th November, 1994, the Appellant claimed as follows:
a) A declaration that the purported sale of the property No. 38 Elechi Street, Mile 3, Diobu, Port Harcourt to the 2nd Defendant, Mrs. Grace Anum. After the executed sales agreement with the claimant registered as No.50 at page 50 in volume 140 in the Lands Registry Part Harcourt is irregular, null and void.
b) An order of specific performance by the Housing and Property Development Authority of Clause 2(v) of the Sales Agreement dated 23rd August, 1988, the claimant having paid the balance of the purchase (money) or ALTERNATIVELY
The sum of N1 million as special and general damages as follows:
a) Deposit N36,800.00
b) Interest at 5% per annum until judgment.
GENERAL DAMAGES: N936,200.00

After service of the writ of summons, the defendants now Respondents in this appeal filed their separate statements of defence, the 2nd Respondent filed a counter-claim as follows at page 70 of the records of appeal:
1. A declaration that the 2nd defendant is the lawful owner and as such entitled to the statutory right of occupancy in and over the parcel of land with building situate at No. 38 Elechi Street mile 3 Diobu Port Harcourt.
2. The sum of N200,000.00 being and representing general damages for the trespass committed on the property before and during the pendency of this suit.
3. Perpetual injunctions restraining the plaintiff, his agents, privies, assigns or anybody purporting to claim through or in trust for him from tempering with or otherwise disturbing the peaceable ownership and possession of the property in disputeby the 2nd defendant/counter-claimant.

The land in dispute is located at No. 38 Elechi Street, Mile 3 Diobu, Port Harcourt. At the lower Court, the claimant/Appellant’s case was that he purchased the property in dispute from the 1st Respondent, (Rivers State Housing and Property Development Authority), and that he paid the amount which the 1st Respondent fixed for the property, and that he entered into an agreement which was eventually registered.

The property in dispute is one of the abandoned properties vested in the 1st Respondent to sell to members of the general public. The case of the 1st Respondent at the lower Court is that as a Government agency with the responsibility to sell the abandoned property, it caused publication to be made in the National Newspapers that the abandoned properties were offered for sale, and that the 2nd Respondent following the publication, purchased the property. On the part of the 2nd Respondent, at the trial Court, her argument was that at all material times, she lived in the property in dispute with her family as tenant paying rent to the 1st Respondent, and that she later became the owner in possession.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

After pleadings were filed and exchanged, the parties called witnesses and tendered various exhibits. At the conclusion of trial, the learned trial judge gave judgment in favour of the plaintiff. Aggrieved by the decision of the trial Court, the two Respondents filed their appeal at the Court of Appeal, Port Harcourt Division. The lower Court in its judgment partly allowed the appeal and held that the 2nd Respondent is the lawful owner of the property in dispute. Dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal to this Court containing 5 grounds of appeal on the 2nd day of February, 2011.

Learned counsel E.N Duru Esq., for the Appellant filed the Appellants brief of argument on the 6th June, 2011, counsel nominated 5 issues for determination. Learned counsel also, filed reply brief on the 2nd May, 2014, it was deemed as properly filed and served on the 4th June, 2014. The issues nominated for discourse by the Appellant are as follows:
1. Whether the Court of appeal is right to hold that the 2nd respondent was a bona fide purchaser of the property in dispute for value without notice when the property and the estate had already passed to the appellant.
2. Whether Exhibits AG and AH were rightly admitted without regard to the provisions of the Evidence Act and if not, whether their admission occasioned miscarriage of justice.
3. Whether the Court of appeal was right in holding that the 2nd respondent is the lawful owner of the property in dispute when the sale of the property in dispute to the appellant was not set aside or revoked
4. Whether having regard to the fact that the appellant paid complete purchase price for the property in dispute and sales agreement was executed by appellant and the 1st respondent, the Court of appeal was right in refusing to sustain the order of specific performance made by the trial Court.
5. Whether the Court of appeal was right in awarding compensatory damages of N250,000.00 to the appellant which appellant never sought.

On the other hand, learned Counsel for the Respondents Damian O. Okoro Esq., filed the Respondent’s brief on the 28th day of August, 2018 and nominated 3 issues for the determination, the issues are also reproduced as follows:
1. Was the Court below wrong to hold that 2nd respondent was the lawful owner of the property in dispute as a bonafide purchaser for value without notice of the appellant’s title? (Grounds 1 and 2)
2. Was the Court below wrong to admit Exhibits AG and AH in evidence. (Ground 2)
3. Was the Court below wrong to award damages to the appellant rather than uphold his claim for specific performance. (Grounds 4 and 5)

SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Learned Counsel for the Appellant submitted that the 1st and 2nd Respondents lost the case at the trial Court because they failed to prove the alleged fraud committed by the Appellant during purchase of the property in dispute.

Learned Counsel submitted that the pleaded defence of the 1st and 2nd Respondents as contained in paragraphs 2, 2 (1) and 6 of the 1st and 2nd Respondent’s amended statement of defence and paragraph 2 of 2nd of Respondent’s statement of defence and counter-claim cannot co-exist in this case with the fresh and non-pleaded issue of bona fide purchaser for value without notice of Appellant’s equitable interest.

Learned counsel submitted that the lower Court was wrong to have allowed the 2ndRespondent to prevaricate and begin to make a new case different from the one which she made at the trial Court. The contention of the 2nd Respondent at the trial Court is that she purchased the property in dispute because the earlier sale of the property in dispute to the Appellant was not legitimate and she failed to prove that in evidence.

Learned Counsel contended that the findings of the lower Court that the 2nd Respondent was a bona fide purchaser for value without notice of the equitable interest of the Appellant was erroneous as the findings did not follow the laid down legal principles applicable before the defence of a bona fide purchaser for value without notice could be sustained.

Learned Counsel submitted that from the available evidence on record, the 2nd Respondent had notice that the 1st Respondent had sold the property in dispute to the Appellant before she completed the purchase of the property in dispute.

Learned Counsel submitted that assuming without conceding that Exhibits AG and AH were properly admitted by the lower Court, Exhibits AG and AH without more do not support the findings of the lower Court that the 2ndRespondent is a bona fide purchaser for value without notice of Appellant’s equitable interest in the property in dispute, learned Counsel relied on the decision in ANIMASHAUN V. OLOJO (1990)6 NWLR (Pt. 154) Pg.111 at 114, he also relied on IDEHEN V. OLAYE (1991) 5 NWLR (Pt. 191) Pg. 344 at 354-355, and BANK OF THE NORTH LTD V. BELLO (2000) 7 NWLR (Pt. 664) 224 at 254-255.

Learned Counsel submitted that the 2nd Respondent did not lead evidence to prove that she conducted search in the lands registry before payment of purchase price to the 1st Respondent, counsel argued that the 2nd Respondent cannot be heard to complain that she had no notice of the agreement between 1st respondent and the Appellant. Learned Counsel therefore contended that the findings of the lower Court that the 2nd Respondent was a bona fide purchaser for value without notice of the equitable interest of the Appellant was erroneous, he further submitted that the lower Court did not follow the laid down legal principles applicable before the defence of purchaser without notice could be sustained.

Learned Counsel referred to the incidents and dates cited from 17th October, 1983to 28th March, 1990 to contend that the 2nd Respondent had notice that the 1st Respondent sold the property in dispute to the Appellant. Counsel therefore submitted that the 2nd Respondent had actual and constructive notice of the sale. Counsel again relying on JIWUL V. DIMLONG (2003) 9 NWLR (Pt. 824) 154 at 185 submitted that the purchaser would be able to plead absence of notice only if he made all usual and proper inquiries and still found nothing to indicate the existence of equitable interest. Counsel contented that the 2nd Respondent is not an innocent purchaser for value without notice and urged this Court to hold that the conclusion reached by the lower Court was erroneous and further urged that the issue be resolved in favour of the Appellant.

ISSUE TWO
Learned counsel for the Appellant submitted that the lower Court was wrong to have admitted exhibits AG and AH without considering whether the admitted exhibits satisfied the provisions of Sections 111 and 112 of the Evidence Act.

Learned counsel submitted that the evidence on record shows that DW2 never tendered the original Newspapers before the trial Court and the lower Court wastherefore wrong to have held that DW2 tendered the original Newspapers in evidence.

Learned counsel said the argument of learned counsel for the Respondents that the trial judge saw the original bound Newspapers and suo motu stood down the matter and ordered the witness to go and make photocopies of the papers is misleading and not substantiated, and that it is also not borne by the records. Learned counsel added that if the lower Court had compared the evidence on record carefully alongside the misleading interpretation of same by the Counsel for the Respondents, the lower Court would not have admitted Exhibits AG and AH.

Learned counsel also submitted that going by the provisions of Section 75 of the Evidence Act and the issue of admissibility of public documents, the finding of the lower Court was erroneous. Learned counsel finally submitted that the lower Court fell into grave error by admitting Exhibits AG and AH by its failure to consider the provisions of Sections 111 and 112 of the Evidence Act. Counsel submitted that issue of admissibility of documents is governed by Sections 111 and 112 of the Evidence Act and not Section 75 of the Act, Counsel relied on the decision in OKONJI V. NJOKANMA (1999) 14 NWLR (Pt. 638) at 267.

ISSUE THREE
Learned Counsel for the Appellant submitted that since the contract of sale had been concluded between the 1st Respondents and the Appellant, the 1st Respondent could no longer sell the same property to the 2nd Respondent, he relied on the decisions in AUTA V. IBE (2003) 13 NWLR (Pt. 837) Pg. 247 at 272, OKAFOR EGBUCHE V. CHIEF IDIGO (1934) 1 SCNLR, SANYAOLU V. COKER (1983) 1 SCNLR 168 and UGO V. OBIEKWE (1989) 1 NWLR (Pt. 99) 566.

Learned counsel for the Appellant submitted that it is on record that the Appellant paid complete purchase price for the property in dispute and agreement was executed to that effect. Learned Counsel said on the strength of Exhibit E which is Appellant’s executed sales agreement, the lower Court erred in law in refusing to sustain the order of specific performance made by the trial judge. Learned Counsel therefore urged this Court to resolve this issue in favour of the Appellant against the Respondents.

ISSUE FOUR
Learned counsel submitted that the Court of appeal was wrong to have chosen to compensate theAppellant with the sum of N250,000.00 instead of sustaining the order of specific performance made by the trial Court. Learned Counsel stated that the lower Court did not state in its judgment how it arrived at the finding that the 1st Respondent wrongfully accepted money bill from the Appellant for the offer of the property in dispute on the grounds of which it decided to judiciously and judicially award compensatory damages of N250,000.00. Counsel further submitted that the position of the law on specific performance is clear relying on the decisions in GAJI V. PAYE (2003) 8 NWLR (Pt. 823) Pg. 583, UNIVERSAL VULCANISING (NIG) LTD V. IJESHA UNITED TRADING AND TRANSPORT CO. LIMITED (1992) 9 NWLR (Pt. 266) at 388, EZENWA V. OKO (2008) 3 NWLR (Pt. 1075) Pg. 610. Learned Counsel therefore submitted that the Appellant is entitled to an order of specific performance, he so urged this Court. He urged that this issue be resolved in favour of the Appellant against the Respondents.

ISSUE FIVE
Learned Counsel for the Appellant repeated his submission on issue four, he submitted that the lower Court did not show how it arrived at awarding compensatory damages of the sum of N250,000 in favour of the Appellant against the Respondents. Learned Counsel for the Appellant said the Appellant did not seek for damages, and that the lower Court had no jurisdiction to award general damages since the Appellant did not ask for the relief, he therefore urged this Court to resolve this issue in favour of the Appellant against the Respondents.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS
ISSUE ONE
Learned counsel for the Respondents submitted that the property in dispute was renovated by the tenant pursuant to announcements on radio, thereafter, the property was registered as having no landlord, eventually, the property was officially published to the whole world via Nigerian Tide Newspaper. Learned counsel submitted that both the fact of non-ownership of the property in dispute, its consequent renovation by the residents and the subsequent publications in the print media announcing that it was free for sale to any interested buyer were facts pleaded and proved and indeed admitted in evidence by the weak and evasive responses of the Appellant.

Learned counsel submitted that in all the three public announcements for the renovation of the properties by landlord, registration of all houses without landlords and the invitation to the public to purchase properties including the property in dispute, the Appellant was silent, he did not deny these facts.

Learned Counsel for the Respondents submitted that contrary to the Appellant’s contentions in paragraph 3-42 at page 14 of his brief of argument that 2nd Respondent did not plead the equitable defence of bona-fide purchaser for value without notice, there was ample pleading and concomitant evidence led thereon.

Learned counsel stated that the decision in ANIMASHAUN V. OLOJO (supra) relied by the Appellant is not applicable in this case.

Learned Counsel submitted that the contention of the Appellant that the 2nd Respondent should not have been properly declared owner of the property in dispute because Appellant’s purported title was neither revoked nor his monies refunded to him is not well founded. Learned Counsel for the Respondents submitted that it is not important that the earlier sale to the Appellant must be set aside. Counsel said the title of the 2nd Respondent as a purchaser forvalue without notice is immuned against all allegations against the seller even if fraud is alleged.

Learned counsel finally submitted that the title of the 2nd Respondent acquired as a bona fide purchaser for value without notice is valid. Learned Counsel therefore urged that this issue be resolved in favour of the respondents against the Appellant.

ISSUE TWO
Learned counsel for the Respondents submitted that the Court below was clearly right when it admitted in evidence Exhibits AG and AH. Counsel maintained that these were Newspaper publications properly pleaded and tendered in evidence through their custodian, the chief librarian of the publishers.

Learned counsel said the documents in contention were in custody of one King Osila who was on subpoena. The said King Osila testified as DW2. Counsel further submitted that, DW2 while testifying before the trial Court mentioned that he had original copies of the Nigerian Tide of 11/8/1986 and 20/12/1985. Counsel then sought for the document to be tendered.

Learned counsel submitted that the rejection of the exhibits by the trial judge was illegal and completely unfounded.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Learned counsel submitted that it is the law that where a witness is shown a photocopy of a document and he admits that he authored the original, then the photocopy can be tendered and admitted there and then. Learned Counsel for the Respondents said the same trial Judge who heard the librarian testify as DW2 and saw him tender the original bound volumes of the New papers, turned round to reject the same documents. Counsel said this is surprising, he said the conclusion reached by the learned trial Judge on the exhibits was perverse and led to substantial miscarriage of justice to the 2nd Respondent. Counsel relied on the decision in KASSIM V. STATE (2017) LPELR-42586 (SC) to submit that the trial Court had no business looking for official title and name of the certifying officer when he was in the witness box before the Court. Counsel said the lower Court intervened and saw that they were properly pleaded, the conclusion reached by the Court at page 327 & 238 of the records of appeal, the lower Court observed that the documents were admissible, relevant coming from proper custody relying on OGBUNYIYA V. OKUDO (1979) 3 LRN 3181 UKPABI V. TONTI (2000)FWLR (Pt. 29) Pg. 2481. Learned Counsel therefore urged this Court to resolve this issue in favour of the Respondents against the Appellant.

ISSUE THREE
Learned counsel for the Respondent submitted that having found that the 2nd Respondent was a bona-fide purchaser for value without notice, the lower Court could not have contradicted itself by upholding Appellant’s plea of specific performance.

Learned counsel submitted that the trial judge was in grave error which error occasioned miscarriage of justice when he gave judgment in favour of the Appellant in spite of the abundant evidence against the Appellant.

Learned Counsel submitted that the Appellant knew very well that specific performance was not enforceable in his favour, he sought for an alternative remedy from his vendor who had testified in favour of the sale to the 3rd party who paid valuable consideration. Counsel relied on the decision in TAYLOR V. ARTHUR 12 WACA 179 to contend that where a defendant shows that he had sold the property in question for valuable consideration to a third party no performance could be enforced. Appellant failed to make a case for specificperformance, he made a case for refund of the monies he paid, he was therefore entitled to a refund for an incomplete sale of the property in dispute. Counsel relied on the decision in FRANCIS V. IBITOYE (1936) 13 NLR 11 at 12.

Learned counsel submitted that the lower Court rightly refused to sustain the grant of the order of specific performance since the 2nd Respondent’s case was within the principle which rendered the specific performance anaemic at his behest. Counsel said the Appellant lost nothing except his money which the lower Court restored to him. Learned counsel said order for specific performance could only be made where remedy for damages would be inadequate at common law, citing EZENWA V. OKO (2008) 3 NWLR (Pt.1075) 610. Learned Counsel for the Respondents said the lower Court found that order for compensation was adequate upon the dispassionate appraisal of the facts.

Counsel referred to BUSBY V. ACQUAH 14 WACA 574 and Snell’s Principles of Equity to contend that nothing can be clearer than that a purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right isentitled to priority in equity as well as in law. In such a case, equity follows the law, the purchaser’s conscience is in no way affected by the equitable right. Where there is equal equity the law prevails. Counsel submitted that the lower Court was right in awarding damages instead of affirming the illegal order of specific performance erroneously granted by the trial Court.

Learned Counsel urged this Court to resolve the three issues in favour of the Respondents, dismiss the appeal and affirm the judgment of the lower Court.

APPELLANT’S REPLY
In the Appellant’s reply brief, the Appellant apparently repeated the submissions in his brief of argument. The main purpose of reply brief is to answer any new points arising from the Respondent’s brief. It is filed when an issue or law or argument in the respondent’s brief calls for reply. A reply brief cannot be used to strengthen the Appellant’s brief by way of repeating the arguments made in the Appellant’s brief. Where there are no new points in a Respondent’s brief a reply by the Appellant becomes totally unnecessary. The instant reply brief does not address new issues. I willtherefore proceed to determine the appeal on the submissions of the contending parties.

RESOLUTION
In my humble view, the issues formulated by the learned Counsel for the Appellant in this appeal can conveniently be collapsed into or accommodated by the issues crafted by the Respondents. I will therefore adopt the Respondents’ issues as the issues apt for discussion in the determination of this appeal.

The Appellant is challenging the decision of the lower Court where the Court decided that the 2nd Respondent is a bona-fide purchaser of the property in dispute. The Appellant is therefore urging this Court to hold otherwise and reverse the decision of the lower Court, and restore ownership of the subject property in him as bona fide owner.

In her statement of defence and counter-claim at paragraphs 5 to 91 found at pages 60-61 of the records of appeal, the paragraphs have not only proved the ownership of the 2nd Respondent but also narrated how she legally acquired the property in dispute through the 1st Respondent. The relevant paragraphs are reproduced as follows:
5. “The 2nd defendant started living in the said property in 1972 as tenant and during the tenure of police commissioner Fidelis Oyakhilome as Governor of Rivers State, precisely in 1985, the Rivers State Government ordered all landlords to renovate and repair their houses and in the case abandoned properties, that the tenants should repair such houses and register them.
6. After the stipulated period for the renovation as ordered by the Rivers State Government and no claimant or owner of landlord came forward to execute the aforesaid repairs on the property now in dispute, the second defendant together with some other tenants did carry out the required repairs and renovation and further painted the said house and registered it accordingly. The said registration was published in the Nigerian Tide of Friday December, 20th 1985 at page 4 a No. 188. The said publication claimants were requested by the 1st defendant authority to come within 7 days of the said publication to substantiate their claims. The said Newspaper shall be relied upon at the trial.
7. The second defendant avers that neither the plaintiff nor any other person went up within the period stipulated by the publication in paragraph 6, hence subsequently the said No. 38 Elechi Street Diobu Port Harcourt was published for sale in the Nigerian Tide of Monday August 11th, 1986 at page 5 No. 119. The newspaper ishereby pleaded.
8. That sequel to the publication, the second defendant then paid the sum of N50.00 to purchase an application form as required by the said publication. The Pan African Bank Teller of 7th February, 1986 for N50.00 is hereby pleaded. In the form, the second defendant applied to purchase No. 38 Elechi street mile 3 Diobu Port Harcourt (the property in dispute) having lived there for 14 years as at that date. The second defendant submitted the original to the 1st defendant and retain a photocopy thereof and will rely on it at the trial of the case if the original copy is not produced. The 1st defendant hereby gives notice to produce the original copy.
9. That after the event in paragraph 8 above a letter of offer no. HPDA/PP.1189/VOL1/2 dated 30th October, 1989 was sent to the second defendant by the 1st defendant and the second defendant accordingly complied with the conditions of acceptance as required by the letter of offer. The letter offer is hereby pleaded.”

During cross-examination of the Appellant, at pages 117 to 118 of the records of appeal, he (the Appellant) was not aware of all the transactions and subsequent publications and correspondences between the 1st and the 2nd Respondents, he was also not aware that the property was renovated by the tenant as abandoned property. It is interesting to also note that the Appellant has not denied all this information during cross-examination, rather he claimed he was not aware. The settled position of the law is that in pleadings facts not disputed, challenged or controverted are deemed admitted. The Appellant having failed to traverse or join issues with the 2nd Respondent on his averments is deemed to admit the facts pleaded against him. See MEKWUNYE vs. IMOUKHUEDE (2019) LPELR-48996(SC), the law is also settled that facts pleaded by one party and admitted by the other will generally need no further proof. See ASAFA FOODS FACTORY LTD V. ALRAINE NIG. LTD (2002) 4 SC (Pt. II) 25.

The evaluation of evidence and the ascription of probative value to such evidence remains the primary function of the trial Court which saw, heard and duly assessed the witnesses.

Where a Court of trial, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record to justify the conclusion reached by the trial Court. Once there is sufficient evidence on record from which the trial Court arrived at its finding. of fact, the Appellate Court cannot interfere with such findings. See CHIEF J. OKEOWO V. ATTORNEY GENERAL OF OGUN STATE (2010) 5 – 7 SC (Pt. 11) 129, MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V. ADEBAYO ADEYIGA & 6 ORS (2012) 2 SC (Pt. 1) 68, OSUJI V. EKEOCHA (2009) 6 7 SC (Pt. 11) 91, CYRIACUS NNADOZIE & 3 ORS V. NZE OGBUNELU MBAGWU (2008) 1 SCNL 219, OYIBO IRIRI & OTHERS V. ESERORAYE ERHURHOBARA & ANOR (1991) 3 SCNJ 1.

Where the trial Court is shown to suffer grave misapprehension, or dwell under severe misconception of the facts and arrived at wrong conclusion as in the instant case, the Court of appeal will be justified in interfering with the findings of the trial Court, in the instant case, the trial Court erred in evaluating the evidence on record and the lower Court in its judgment rightly in our view set aside the findings of the trial Court. Appellate Courts only interfere with findings of fact by trial Courts if the facts or the evaluation of evidence by the trial Court is found to be perverse or clearly demonstrates misapprehension of the facts thereby leading to failure of justice. In arriving at a decision on whether it is proper to interfere with the findings or not, the Appellate Court considers whether there was evidence before the lower Court to concrete the decision, whether the lower Court accepted or rejected any evidence tendered or adduced at the trial, whether the evidence adduced by either party to the dispute was properly evaluated by the lower Court, and whether the evidence adduced was sufficient to support the decision arrived at by the trial Court. See MAFIMISEBI V. EHUWA (2007) 2 NWLR (Pt.1018) p.385, OMOMEJI V. KOLAWOLE (2008) 14 NWLR (Pt.1106) P.180 and HASSAN V. ALIYU (2010) 17 NWLR (Pt.1223) P.547. In the instant case, it is very clear from the records that the lower Court was justified in its decision to tinker with the findings of the trial Court, I fully endorse the decision of the lower Court because the conclusion reached by the trial Court is patently perverse and displays crass misapprehension of the evidence led at the trial. The 2nd Respondent as rightly found by the lower Court is the rightful and lawful owner of the property in dispute and a bona-fide purchaser for value without notice. This issue is accordingly resolved in favour of the Respondents against the Appellant.

Under issue number two, the contention of the Appellant is that the lower Court was wrong to have admitted Exhibits AG and AH in evidence without considering whether the evidence satisfied the provisions of Sections 111 and 112 of the Evidence Act. It is important to state here that Exhibits AG and AH are newspaper publications pleaded, tendered by its custodian, the Chief Librarian of the publishers before the trial Court.

The lower Court in its judgment at pages 327-328 of the records of appeal held as follows:
“In the instant appeal, I am of the considered finding that it was unnecessary for the learned trial judge to look at the issue of certification for admissibility of Nigeria Tide Newspaper which were pleaded, established and by tendering the original of the newspaper in a bulk volume because the respondent had no reply on the Tide Newspapers. It was a futile exercise as facts admitted need no further proof. It was therefore an error on the part of the trial judge, who on his wrong assumption, went on a frolic of his own, suo motu, ordered that the original had to be photo stated and be certified before its admissibility. The trial judge should have known that it is now firmly settled that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence and particularly documents, depend again, on the purpose for which it is to be tendered, see the erudite decision of Ogbuagu, JSC (rtd) in the case of Ogbe V. Asade (2010) 40 NSCQR 386 at 424. In the instant appeal, I accept the contention of the appellants that the trial judge relied on technicality and rejected the Nigeria Tide Newspapers of 11th august, 1986 and 20th December, 1985 respectively. The rejected publications made by the trial judge was perverse, and I hereby set it aside. The rejected Exhibits AG and AH are hereby admitted.”

Generally, admissibility is based on relevance, relevance determines admissibility, once evidence has probative value and is legally admissible, it is considered to be relevant and therefore admissible, because relevance determines admissibility. The moment it is determined that evidence is relevant for the proper determination of any fact in issue, the Court is bound to admit it in evidence if it is legally admissible, relevance is the key to admissibility.

In the instant appeal, Exhibits AG and AH were Newspaper publications properly pleaded and tendered in evidence through their custodian, the Chief Librarian of the publishers.

I agree with the learned counsel for the Respondents that the rejection of Exhibits AG and AH by the trial Court was perverse and resulted in grave miscarriage of justice to the 2nd Respondent. This issue is also resolved in favour of the Respondents against the Appellant.

Submitting on issue number three, learned Counsel for the Appellant contended that the lower Court was wrong in law to have awarded the sum of N250,000.00 as compensatory damages to the Appellant when the Appellant did not seek for that relief.

The lower Court at pages 329 to 322 of the records of appeal held as follows:
“In the instant appeal, an award of general damages as averred by the respondent is to compensate for the loss of the property in dispute which is presumed by law to flow from the 1st appellant wrongful acceptance of money bill on the alleged offer over the landed property in dispute. I therefore use my lawful discretion judiciously and judicially and award a general damages of N250,000.00 in favour of the respondent and payable by the 1st appellant.”

For any party to succeed in showing that the Court exercised its discretion wrongly, the party has the onus to establish that the discretion was not exercised judiciously and judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations. See NATIONAL BANK OF NIGERIA LTD V. GUTHRIE (NIG) LTD (1993) 3 NWLR (Pt 284) 643 and STATOIL (NIG) LTD V. STAR DEEP WATER PETROLEUM LTD (2015) 16 NWLR (Pt. 1485) 361.
There is no doubt that the purpose of awarding damages is to compensate the aggrieved party for the loss suffered. The lower Court in the instant appeal applied the correct principles and was therefore right in awarding general damages of N250,000.00, to the Appellant relying on the evidence before the Court. – See ONAGA V. MICHO & CO. (1961) 1 AII NLR 324; (1961) 2 SCNLR 101, UKOHA V. OKORONKWO (1972) 5 S.C. 260.

I also resolve this issue in favour of the Respondents against the Appellant.

Having resolved all issues in favour of the Respondents against the Appellant, it follows therefore that the Appellant’s appeal is devoid of a jot of merit and therefore deserves to be and is hereby dismissed. The judgment of the lower Court delivered on the 24th day of November, 2010 in Appeal No. CA/PH/03/2007 is affirmed.

Parties in this appeal shall bear their respective costs.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother, Tijjani Abubakar JSC and to register the support in the reasonings from which the decision came about I shall make some remarks.

This is an appeal against the decision of the Port Harcourt Division of the Court of Appeal or Court below or lower Court, Coram: I. Thomas, T.O. Awotoye JJCA and E. Eko JCA (as he then was), delivered on 24/11/2010. The Court below set aside the judgment of the High Court of Rivers State declaring the appellant as owner of the property in dispute. Appellant was substituted for his father, Mr. Felix Owakah who died during the pendency of this suit. He had claimed for specific performance “or Alternatively, the sum of N1,000,000.00 as damages” for breach of contract in the trial Court presided over by Obie Daniel-Kalio J. (as he then was).

FACTS BRIEFLY STATED
The appellant was the respondent at the lower Court while the1st and 2nd respondents were the 1st and 2nd appellants. The appellant’s case was based on his 2nd Amended statement of claim wherein his claim was that he bought the property in dispute from the 1st respondent and the 1st respondent entered into a Sales Agreement with the appellant which was registered as No. 50 at page 50 in Volume 140 of the Lands Registry, Port Harcourt.

Thereafter, the 1st Respondent subsequently sold the property in dispute to the 2nd Respondent without revoking or setting aside the contract of sale it entered into with the Appellant. The 1st Respondent did not refund the appellant the purchase price paid for the property and that the 2nd Respondent knew that the appellant had bought the property in dispute from the 1st respondent before she paid the price to the 1st Respondent for the same property.

The Respondents’ case was based on their 1st Defendants Amended Statement of Defence (pages 108-109 of the Record) and 2nd Defendants statement of Defence and counter-claim. Their case was that the appellant did not legitimately purchase the property in dispute from the 1st Respondent because the appellant committed fraud and colludedwith the officials of the 1st Respondent in purchasing the property in dispute and that the Appellant’s claim to the ownership of the property in dispute lacks a contractual basis as there was no offer and acceptance.

Additionally, the 2nd Respondent claimed that she bought the property in dispute from the 1st Respondent after the 1st Respondent had advertised the property in dispute for sale to the public in Nigeria Tide Newspaper.

In its judgment, the trial Court found that the Appellant established that he bought the property in dispute from the 1st Respondent and that he has a valid Sales Agreement which had been duly registered. It made an order of specific performance directing the 1st Respondent to Comply with clause 2 (v) of the said Sales Agreement. The trial Court then dismissed 2nd Respondent’s Counter- Claim which was not substantiated by evidence.

The Respondents aggrieved by the judgment of the trial Court appealed to the lower Court. The Respondents filed the seven grounds of appeal comprising a new issue of bona fide purchaser for value without notice. The Respondents complained in their grounds of appeal that the trial Courtwrongly held that he, Appellant established that he bought the property in dispute from the 1st Respondent. That the trial judge wrongly rejected Exhibits AG and AH and made the order of specific performance in error and that the trial Court was wrong in dismissing the counter-claim of the 2nd Respondent.

In its judgment, the lower Court allowed the appeal partly, admitted Exhibits AG and AH and held that the trial Court was in error to have rejected them and that by virtue of Exhibits AG and AH, the 2nd Respondent was the lawful owner of the property in dispute as she was a bona fide purchaser for value without notice. The lower Court awarded N250,000.00 damages in favour of the Appellant against the 1st respondent for wrongly accepting the purchase price for the property in dispute from the Appellant.

The appellant contend that the lower Court did not in its judgment consider whether or not the 2nd Respondent had notice of the Appellant’s interest in the property in dispute before purchasing same. That lower Court did not also consider whether the rejected Exhibits AG and AH met the requirements of Section 111 and 112 of the Evidence Act. That italso erroneously found that the original documents of Exhibits AG and AH were tendered in the trial Court when there was no evidence on record supporting that finding.

Aggrieved by the decision of the lower Court, the Appellant appealed to this Court. The Appellant filed five grounds of appeal in which it complained among others that the lower Court erred in holding that the 2nd Respondent is a bona fide purchaser for, value without notice and that the lower Court was wrong to have admitted Exhibits AG and AH and was equally wrong in awarding N25,000.00 damages to the Appellant against the 1st Respondent when the Appellant never sought that relief.

Learned counsel for the appellant, E.N. Duru Esq., adopted the brief of argument filed on 6/6/2011 in which he distilled five issues for determination, viz:
1. Whether the Court of Appeal is right to hold that the 2nd Respondents was a bona fide purchaser of the property in dispute for value without notice when the property and the estate had already passed to the Appellant.
2. Whether Exhibits AG and AH were rightly admitted without regard to the provisions of the Evidence Act and if not, whether their admission occasioned miscarriage of justice.
3. Whether the Court of Appeal was right in holding that the 2nd respondent is the lawful owner of the property in dispute when the sale of the property in dispute to the appellant was not set aside or revoked.
4. Whether having regard to the fact that the appellant paid complete purchase price for the property in dispute and sales agreement was executed by Appellant and the 1st respondent, the Court of Appeal was right in refusing to sustain the order of specific performance made by the trial Court.
5. Whether the Court of Appeal was right in awarding compensatory damages of N250,000.00 to the appellant which the appellant never sought.

Damian O. Okoro Esq., learned counsel for the respondents adopted the amended brief of argument filed on 28/8/2018 and deemed filed on 27/3/2019. He formulated three issues for determination as follows:
i) Was the Court below wrong to hold that 2nd Respondent was the lawful owner of the property in dispute as a bonafide purchaser for value without notice of the Appellant’s title? (Grounds 1 & 3),
ii) Was the Court below wrong to admit Exhibits “AG” and “AH” in evidence? (Ground 2).
iii) Was the Court below wrong to award damages to the appellant rather than uphold his claim for specific performance? (Grounds 4 & 5).

The issues crafted by the respondents simply arranged seem to me more convenient for use in the determination of this appeal and I shall make use of them.

ISSUES 1, 2 & 3
1. Was the Court below wrong to hold that 2nd respondent was the lawful owner of the property in dispute as a bona fide purchaser for value without notice of the appellant’s title.
2. Was the Court below wrong to admit Exhibits “AG” and “AH” in evidence.
3. Was the Court below wrong to award damages to the appellant rather than uphold his claim for specific performance.

Canvassing the position of the appellant, learned counsel stated that the 1st and 2nd respondents lost the case at the trial Court because they woefully failed to prove in evidence the pleaded facts on fraud committed by the appellant during the purchase of the property in dispute. That the pleaded defence of 1st and 2nd respondents cannot co-exist with the fresh and non-pleaded issue of bona fide purchaser for value without notice of appellant’s equitable interest.

For the appellant, it was contended that the lower Court fell into error when it concluded that the 2nd respondent was a bona fide purchaser for value without notice by admitting Exhibits AG and AH which had been rightly rejected by the trial Court. He cited Animashaun v Olojo (1990)6 NWLR (pt.154) 111 at 114 etc.

That the evidence on record showed that the 2nd respondent had notice that the 1st respondent had sold the property in dispute to the appellant before she completed all payments for the purchase of the disputed property.

It was submitted for the appellant that a purchaser would be able to plead absence of notice only if he had made all inquires and still found nothing to indicate the equitable interest. He cited Jiwul v Dimlong (2003) 9 NWLR (pt.824) 154 at 185.

Learned counsel for the appellant went on to contend that 2nd respondent had constructive notice of the appellant’s interest in the property on the strength of Exhibit E which was duly registered at the Lands Registry office in Port Harcourt before she purportedly bought the sameproperty from 1st respondent and so 2nd respondent is not a bona fide purchaser for value without notice.

He further stated for the appellant that the findings of the lower Court that Exhibits AG and AH are admissible is erroneous ground in view of Sections 111 and 112 of the Evidence Act. He referred to Okonji v Njokanma (1999) 14 NWLR (pt.638) 250 at 267.

That the Court below was in error when it held that the 2nd respondent was the legitimate owner of the property in dispute when the 1st respondent had fully divested itself of interest in the property before selling same to the 2nd respondent. It was submitted for the appellant that since the contract of sale of the property had been concluded between the 1st respondent and appellant, the 1st respondent could no longer sell the same property to the 2nd respondent on the principle of “Nemo datquod non habet”. He cited Auta v Ibe (2003) 13 NWLR (pt.837) 247 at 272 etc.

Learned counsel for the appellant further contended that on the strength of Exhibit E, the Court of Appeal erred in law in refusing to sustain the order of specific performance made by the trial Court. That the Court below was wrong to have awarded the appellant the sum of N250,000.00 as compensatory damages against the 1st respondent when appellant did not seek any relief praying for such.

In response, learned counsel for the respondent contended that 2nd respondent as 2nd defendant pleaded that she was a bona fide purchaser for value without notice at paragraph 4 of her statement of defence/counter-claim and evidence led in that regard hence the superior right to the property. He cited Air V IA Ltd v. Oriental Airlines ltd (2004) 9 NWLR (pt.878) 298 at 334.

That 2nd respondent was in possession and had an equitable interest thus a superior title. He cited Ayinla v Sijuwola (1984) NSCC 301 at 312 etc.

That the trial Court erred in not finding that the sale to the 2nd respondent was an impediment to granting an order of specific performance. He referred to Busby v Acquah 14 WACA 574.

RESOLUTION
In tackling the postures of the parties albeit disparate, I shall have recourse to the pleadings or part of what the respondents averred and which appellant contends were not established in evidence by the respondents. In paragraphs 2, 2(i) and 6 of the 1st Respondent Amended Statement of Defence at (pages 108 to 109 of the record) the 1st Respondent pleaded thus:
2. “Paragraph 5 and 6 of the statement of claim are denied. In further answer to paragraphs 5, 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16 of the statement of claim. Defendant avers that all requests for payments, acknowledgements, payment made and receipts issued therefore, assessments made and conveyed, the Sales Agreement entered into, notification to tenant that property had been sold to plaintiff, were all as a result of false misrepresentation, collusion, fraud and conspiracy between plaintiff and officials of Government and 1st Defendant.
2(i) “In the list of applicants approved by the Governor on 3/9/1983 to offer or offered to purchase several houses the plaintiff name had been inserted after removing the of the original allottee as No. 16
“Defendant will rely on the copy of the list of applicants referred to in paragraph 2 (i) above as the original documents in his possession or power referred to in this defence.”

The 2nd Respondent with the averments contained in paragraphs 2, 2(i) and 6 of the 1st Respondent’s Amended Statement of Defence when she pleaded in paragraph 2 of her statement of defence and counter-claim at (page 67 of the record) thus:
2. “The 2nd Defendant denies paragraph (i) of the statement of claim and in further answer thereto avers that the plaintiff did not legitimately obtain the purchase of the said No.38 Elechi Street and its subsequent registration hence the sale to the 2nd Defendant by the 1st Defendant of the said property.”

The respondents rejected the position taken by the appellant that respondents did not prove by evidence the claim of 2nd respondent to the property in dispute. It is necessary to state that there is in evidence the fact that the property in dispute was renovated by the tenants pursuant to the announcements on radio and thereafter the property was registered as having no landlord. With that registration as an ownerless the property was officially published to the whole world as such in the Nigerian Tide Newspaper of Friday, December 20th, 1985 and August 11, 1986. A recall to the claim of the appellant is that he bought the property in 1983.

At the trial Court, the following facts emerged: Upon cross-examination (please see page 117 of the records), Appellant was asked what he did when his alleged property was advertised for sale after its renovation by strangers (i.e tenants who did not pay rents to him). Only a full replay of his answers can expose Appellant’s scant support to his case and I shall recast his evidence.
Q: This property to your knowledge was registered by the tenants who renovated it as an abandoned property?
A: I don’t know.
Q: But you know that the tenants renovated the property
A: I don’t know.
Q: The period of 1984-1985 you remember was a period when landlords were told to renovate their properties?
A: I cannot recollect.
Q: You remember that during the time Police Commissioner Oyakhilome was in Rivers State as Administrator, there was a time owners of property were requested to renovate their houses?
A: I think so.
Q: Oyakhilome came to this State in 1984 as Governor?
A: I cannot remember.
Q: During Oyakhilomes’ time you did nothing to renovate the property?
A: I did not do anything because I had not been cleared by the Authority, 1st Defendant.
Q: Tellthe Court what steps you took to be cleared during the period:
A: I did not take any steps.
Q: This property, to your knowledge, was registered by the tenants who renovated it is an abandoned property?
A: I don’t know.
Q: But you know that the tenants renovated the property?
A: I don’t know that.
Concerning the advertisement of the property in the newspapers, Appellant was asked and he answered thus:
Q: You are aware of a newspaper publication wherein the property in dispute was published for same as an abandoned property after the purported offer to you.
A: I am not aware.
Q: You did not challenge the publication of the property as an abandoned property?
A: I was not aware of the publication.
Appellant’s answers of “I don’t know” and “I am not aware” to searching questions were instructive.

In Sosan Vs. Ademuyiwa (1986) 3 NWLR (Pt.27) 24 @ page 253 ‘F’, the Supreme Court, per Oputa, JSC, reiterated the point that a litany of “I do not know” does not constitute any positive step or sufficient denial of Defendants’ averments and evidence that the property in dispute wasadvertised for sale to the whole world after its registration and publication as an abandoned property. Both the fact of non-ownership of the property in dispute, its consequent renovation by the residents and the subsequent publications in the print media announcing that it was free for sale to any interested buyer were facts pleaded and proved and indeed admitted in evidence by the weak evasive responses of the Appellant.

Three salient points emerge from the evidence proffered, which are thus:
i) The renovation of all properties by landlords through the radio;
ii) The registration of all houses without landlords vide The Nigerian tide Newspaper of 20/12/1985 and
iii) The invitation to the public to purchase properties including the property in dispute as a registered but unclaimed property vide Nigerian Tide Newspaper of 11th August, 1986.

Appellant did not deny those points and admitted that he had been a mere tenant in the property.

Appellant averred thus in paragraph 8 of his Reply to Counter-Claim”
“8. Paragraph 4(b) and (c) of the counter-claim is misconceived, The plaintiff and the 2nd defendant were bothtenants of No.38.” (Underlining is supplied).

It was on the basis of his tenancy aforesaid that Appellant occupied two rooms which he locked up and would not open even after 2nd Respondent had bought the property. This is contrary to the claim of Appellant at (paragraph 3.30) on page 12 of his brief:
“That the appellant in exercise of his rights of ownership of the property in dispute locked up two rooms in the property in dispute.”

If he is the owner and claims authority and control over 2 rooms, what about the other 27 rooms, one is wont to ask! After all, there are 29 rooms in the property!

Appellant kept mute and neither denied nor challenged the Respondent’s averments concerning the radio announcements and newspaper publications. By his silence, which was not golden in the circumstances, Appellant concurred with his lordship at the Court below that:
“In law, the present respondent (now appellant) was bound to make response in paragraphs 6 and 7 of the statement of defence and counter-claim more so, 2nd appellant (now 2nd respondent) has pleaded Newspaper publications and expressed her determination to rely thereon.”
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Contrary to the assertion of the appellant, the 2nd respondent properly pleaded and led evidence that she was a bonafide purchaser for value. I refer to paragraphs 4, 6 and 7 of the statement of defence and counter-claim of 2nd respondent.

A bonafide purchaser is thus defined in Black’s Law Dictionary 5th Edition as one who has purchased property for value without any notice of any defects in the title of the seller. A bonafide purchaser for value is one who, without notice of another’s claims of right of right to or equity in property prior to his acquisition of title has paid the vendor a valuable consideration.
The Eighth Edition of the said Black’s Law Dictionary defines a bonafide purchaser as one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.
It is added in Blacks Law Dictionary that generally, a bonafide purchaser for value is not affected by the transferee’s fraud against third party and has a superior right to the transferred property as against the transferor’s creditor.

The word “bonafide” is a Latin word and is defined in the Dictionary of English Law by Earl Jowitt, Second Edition as “in good faith, honesty, without fraud, collusion or participation in wrong doing”. I rely on AIR VIA LTD v ORIENTAL AIRLINES LTD (2004) 9 NWLR (pt.878) 298 at 334.

I agree with learned counsel for respondent that contrary to the submissions of the appellant, it is posited that the pleadings, evidence and exhibits of Newspaper publications show unequivocally that the 2nd Respondent relied upon the equitable defence of a bonafide purchaser for value. But the point was not specifically addressed by counsel or decided upon by the trial Court. Consequently, 2nd Respondent sought leave of Court which was granted to her to argue that point as a substantial point of law at the Court of Appeal.

The appellant who was present in Court did not object. Counsel is therefore estopped from raising the said point in this Court. The Court below upheld the plea and rightly too.

Clearly, appellant’s submission on the doctrines of constructive notice, caveat emptor, nemo dat quod non habet etc are fresh issues which were neither pleaded at the trial Court nor taken up on appeal at the Court of appeal. They cannot therefore be raised for the first time before the Supreme Court without leave. Leave was not granted to raise them here. See HONIKA SAWMILL (NIG) LTD VS. HOFF (1994) 2 NWLR (326) 252 @ PAGE 20, PAGE 261.

Again, appellant counsel’s contention that 2nd Respondent should not have been properly declared owner of the property in dispute because appellant’s purported title was neither revoked nor his monies refunded to him is not well founded.
It is not important that the earlier sale to the appellant must be first revoked or set aside. This is because not having notice of the sale of the property to the appellant, 2nd Respondent’s title as a bonafide purchaser without notice is immuned from all such allegations against the seller even if fraud is alleged against her. See Black’s Law Dictionary, supra.

The claim of title of the 2nd respondent acquired as a bonafide purchaser for value without notice is valid which the Court below recognised. For effect, I shall recapture the findings of the Court below:
The lower Court, in considering the fresh issue of bona fide purchaser for value without notice held in its judgment at (page 322 of the Record, line 15) thus:
“I am of the view that issue 3 will encompass issue 1, and this is what I will do, because, if the rejected Nigeria Tide newspaper is found to be an error, and the publications are admitted, it will reach to the conclusion that 2nd Appellant will not be regarded as bona fide purchase for value without notice.”
At (page 328 of the Record, line 3-22) the lower Court further held:
“In the instant appeal, I accept the contention of the Appellants that, the trial judge relied on technicality and rejected the Nigeria Tide Newspapers of 11th August, 1986 and 20th December, 1985 respectively. The rejected Exhibits AG and AH are hereby admitted. It is to be noted that, in fact, the 2nd Appellant had no obligation to tender the publication because the respondent did not react to same, and in law, documents pleaded and established but not denied is deemed admitted, I therefore resolve issues 1 and 3 in favour of the Appellants and against the Respondent because by virtue of the two Nigeria Tide Newspapers of 20th December, 1985 and 11th August, 1986 respectively, the property in dispute situated and marked as No.38 Elechi Street, Mile 3, Diobu Port Harcourt was offered to the 2nd Appellant. It is therefore not in dispute that, the 2nd Appellant’s agreement with the 1st Appellant was valid. The 2nd Appellant was bona fide purchaser for value without notice.”

The same lower Court at (page 329 of the record) held thus:
“I believe that the Respondent had paid the purported offer of N36,800.00. He tender Exhibits showing payment of purported offer to the 1st Appellant.”

I am at one with learned counsel for the respondents that the Court below was right when it admitted in evidence Exhibits “AG” and “AH” which were the newspaper publications earlier pleaded and tendered in evidence through their custodian, the Chief Librarian of the publishers.

Some interesting aspects during the tendering need to be highlighted for full effect at this point.

Those Newspapers were documents in the custody of one King Osila. He was on subpoena. He testified as DW2. At page 204 of the record, the testimony of the said king Osila, the Chief Librarian of Rivers State Newspaper Corporation, Publishers of the Tide Newspapers was recorded. He was asked if he had copies of the Nigerian Tide of 11/8/1986 and 20/12/1985. He said he had them in bound volumes. Counsel then sought to tender the newspaper copy of 11th August, 1986 in its bound volume and original form.

During the question and answer at examination in chief of DW2 would be stated hereunder, thus:
“Question: Do you have copies of the Nigerian Tide of 11/8/1986 and 20/12/1985?
Answer: Yes, I have them in bound forms. If I see a bound form of the papers and the particular newspapers I will recognise them. This is the particular copy of the publication 11/8/1986 contained in a bound volume.
B.U. Ekuagha: I seek to tender the Newspaper copy of the Nigerian Tide of 11/8/1986 in the bound volume.
Court: Cases (sic) stood down to make photocopy.”

Learned counsel to Appellant at paragraph 3.57 on page 16 of his brief has submitted that “no trial judge can stoop so low to order a witness who is represented by counsel in Court to make copies of documents asCourts do not conduct cases for parties.”

Indeed, it is surprising that the same judge who heard the Chief Librarian testify as DW2 and saw him tender the original bound volumes of the Newspapers, later turned around upon unfounded and illegal reasons, to reject the same documents.

The learned trial judge rejected both documents and marked them Exhibit “AG” (Newspaper of 20/12/1985) and Exhibit “AH” (Newspapers of 11/8/1986) rejected. This was while DW2 was still in the witness box with the original copies!

Clearly, this was perverse and led to a grave miscarriage of justice to the 2nd Respondent, as the action of the learned trial judge cannot be logicalised in context.

This is because the learned trial judge saw and heard the witness testify and give his job title and name and then the same judge made an about turn to hold that the document before him did not bear the official title of the witness.

It is necessary to point out that certification of the document was not called for or needed in the circumstance.
This is so because, a public document can be proved by the production of the original copy of the document itself,and same admitted in evidence without the luxury or necessity of any certification. In other words, it is only in the absence of the original documents that certified true copies are admissible as secondary copies of public documents. That was not the case in the instant matter as the DW2 produced before the trial Court the original copies of the bound volumes of the Nigerian Tide Newspaper publications and sought to tender them in evidence as Exhibits. In the case of KASSIM VS. STATE (2017) LPELR-42586 (SC), this Court reiterated the time honoured position of the law thus:
“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with Adekeye JSC in Goodwill & Trust Investment Limited V. Witt & Bush Limited (2011) 8 NWLR 500; (2011) LPELR-1333 (SC), the essence of demanding for a certified true copy of a public document is the assurance of the authenticity of the document vis-a-vis the original. And so, why go for that assurance in the certified true copy vis-a-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the Court below that where the original copy of a document is available, it is admissible without the requirement of certification.”
The Court had no business looking for official title and name of the certifying officer on the documents. These could be added because the certifying officer was still in the witness box (as DW2) and his job title was already in evidence before the Court. At any rate, he needed not add those to make that document admissible since the learned judge and counsel on the other side had already seen the bound copy in its original form in Court and it came from proper custody! It was a proper case to admit the original and thereafter substitute with a photocopy.
Thankfully, the Court below intervened to halt an obvious miscarriage of justice through the wind pipe of naked technical justice.
As it is evident, the Court below had considered the pleadings and discovered the documents pleaded and there was no denial of the publications in the newspapers by the appellant and so no issues were joined thereby. Again important, is the fact that the originals were tendered in open Court by DW2, who had custody of them. The conclusion of the Court below speaks clearly the correct position and I shall quote thus:
“…It was unnecessary for the learned trial judge to look at the issue of certification for admissibility of the Nigerian Tide Newspapers which were pleaded, established and by tendering the original of the Newspapers in a bulk volume because the respondent had no rely on the Tide Newspapers… it was therefore an error on the part of the trial judge, who on his wrong assumption went on a frolic of his own, suo motu ordered that, the original had to be photo stated and be certified before admissibility…”
The learned Justices of the Court of appeal then added that since the originals of the publications were in Court and the appellant having not joined issues on them, it was simply a matter of what was admitted needing no proof under Section 75 of the Evidence Act.
Since the original copies of the documents were admissible; they were relevant and they came from proper custody. See OGBUNYIYA VS. OKUDO(1979) 3 LRN 318, UKPABI VS. TORTI (2002) FWLR (PT.29) PAGE 2481.
The material averments in paragraphs 4, 5, 6, 7 & 8 of the statement of defence and counter-claim of the 2nd Respondent related to publications in the newspapers concerning the property in dispute as being free for sale. The appellant did not specifically traverse those averments. The Respondents therefore bore no burden of proving them with or without the admission of Exhibits “AG” and “AH” in evidence.
Indeed, in Honika Sawmill (Nig) Ltd Vs. Hoff (1994) 2 NWLR (Pt.326) 252, the Supreme Court, per Ogwuegbu, JSC said at page 270:
“There is in the instant case a failure on the part of the appellant to deny specifically the material averment contained in paragraph 9 of the amended statement of claim. By implication, the appellant is deemed to have admitted the same and no further proof of that fact is necessary. This is a basic rule of pleading.”
The rejection of the documents after seeing their original in its bound forms stemmed from missing the pathway. Having seen the original in its bound form, it was no longer necessary to admit a certified true copy.Out of abundance of caution, the trial Court should have merely compared the portion photocopied pursuant to its order with the original and after confirming it to be correct, admit the photocopy. According to Tobi, JSC in ARAKA VS. EGBUE (2003) 17 NWLR (PT.848) 1 @ PAGES 20-21:
“On main objective behind Section 97(2) (e) of the Evidence Act, is to ensure the authenticity of the document tendered vis-a-vis the original.”
The law that where a witness is shown a photocopy of a document and he admits that he authored the original, then the photocopy can be tendered and admitted there and then without much ado.
In CARALETFI GIOVANNI VS. BONASCO LUIGI SC.402/67 (unreported decision of the Supreme Court delivered on 31/10/1969), FATAI WILLIAMS, JSC (as he then was) said:
“The matter does not however rest there. The defendant/appellant in his own testimony admitted when the copy of the declaration (Exhibit 9) was shown to him that he wrote and signed it. In view of his admission, we are bound to hold that the document could have been properly admitted in evidence at that stage of the proceedings. To hold otherwise would amount to denial ofjustice based on a technicality which to our mind is glaringly untenable.”
As in the Giovanni case above, the DW2 admitted that he kept the bound volumes in original form. He brought them to Court. He admitted he signed the photocopy made pursuant to the suo motu order of the learned trial judge. It therefore needed no certificate to be admitted. Even if certification was necessary which is not so, and in view of all that transpired in Court that morning; why would a judge who desired to do substantial justice not ask the witness whose job title and official name were already in his record to simply add these to the certification as did the Court of Appeal in Umogbai VS. AIYEHOBA (2002) FWLR (PT.132)192 @ 198 ‘C’.
See also ARIBISALA VS. OGUNYEMI (2001) FWLR (PT.31) 2867 @ 2875 where the Court of Appeal posited that the mistake of the official, DW2 in this case who certified the document should not be visited on the 2nd respondent. The Court below was clearly right to put down the necessity for substantial justice.

The stance of the appellant at this stage is curious as the appellant who asked to be declared owner in all thecircumstances of the case also asked for an alternative relief thus:
“The sum of N1,000,000.00 being special and general damages for breach of contract as follows:
Special damages … (a) deposit – N36,800.00
(b) Interest at 5% per annum until judgment
General damages – N963,200.00
Total – N1,000,000.00”

Confirming this claim in his oral testimony in Court, the Appellant asked the trial Court thus:
“Alternatively, the 1st defendant should pay me N1 million as special and general damages. I want payment of N36,800 as special damages with 5% interest per annum… I also want general damages of N963,200.00.”

Evidently, the appellant knew specific performance was not enforceable in his favour. He sought for an alternative remedy from his vendor who had testified in favour of the sale to a third party who paid valuable consideration. In TAYLOR VS. ARTHUR 12 WACA 179, citing Fry, on Specific Performance, 3rd Edition @ page 454 the Court said:
“Where a defendant (like first respondent in this case) shows that he had sold the property in question for valuable consideration to a third party (2nd respondent),no performance could be enforced.” (Brackets supplied pleased)
All the cases lay emphasis on possession. And 2nd Respondent was in possession. Even if it is a case of an equitable interest, where it is coupled with possession as in the instant case, a legal estate cannot defeat it. See AYINLA VS. SIJUWOLA (1984) NSCC 301 @ 312; OSHODI VS. BALOGUN (1936) 4 WACA 1.
Clearly, the claim for specific performance of the appellant was not made out. Appellant had asked for a refund of the monies he had paid. He was entitled to a refund for an incomplete sale of property in dispute. See Francis v Ibitoye (1936) 13 NLR 11 at 12.
The trial Court erred in not finding that the sale to the 2nd Respondent in all the circumstances of this case was an impediment to granting an order of specific performance vide BUSBY VS. ACQUAH 14 WACA 574. The learned authors of Snell’s Principles of Equity, 28th Edition, Sweet & Maxwell, page 48 put it admirably thus:
“Nothing can be clearer than that a purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equityas well as in law. In such a case, equity follows the law, the purchase’s conscience is in no way affected by the equitable right. Where there is equal equity, the law prevails.”

The appellant pleaded and asked for damages even in his oral testimony in Court. The Court of appeal was right in all the circumstances of the case to award damages instead of upholding the illegal order of specific performance granted by the trial Court but unsupportable from the facts of this case.

The decision and reasoning of the Court of Appeal are faultless and I see no reason to interfere with them.

The appeal lacks merit from the foregoing and I too dismiss the appeal. I abide by the consequential orders made.
Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, Tijjani Abubakar, JSC obliged me with a draft of the judgment just delivered. I agree that the appeal lacks merit and deserves to be dismissed.

In support and by way of emphasis, I shall comment briefly on the appellant’s issues 1 and 5.

By his issue 1, the appellant challenges the decision of the lower Court on the ground, inter alia, that the issue of the 2nd respondent being a bona fide purchaser for value without notice was raised for the first time at the lower Court, although with the leave of that Court and also that the defence was not open to her, having failed to conduct the necessary search at the Lands Registry, which would have revealed his prior interest in the property.

Where a party seeks to raise on appeal a fresh issue not raised at the Court below, he is required to seek and obtain the leave of the appellate Court to do so. This affords the Court hearing the application the opportunity to determine whether the new or fresh issue is likely to prejudice any of the other parties by setting up an entirely new case different from the issues as joined and fought on the pleadings at the trial Court. See Bulet International Nig. Ltd. & Anor Vs Olaniyi & Ors. (2016) 10 NLWR (Pt.1521) 580; (2016) LPELR-40303 (SC) @ 19-25 F – B, Gwede vs INEC (2014) 10 SC 1 where the fresh issue involves substantial points of law, substantive or procedural, the appellate Court may exercise its discretion in favour of the applicant, provided that all the facts required to determine the issues are before the Court and no further evidence would be required to reach a decision on the matter. The Court will also exercise its discretion in granting the application where it is satisfied that it would meet the justice of the case. See Nduul Vs Barr. Benjamin Wayo&Ors (2018) LPELR- 45151 (SC) @ 33 – 34 C -A.

It is on record, and the appellant concedes at paragraph 3.36 at page 13 of his brief, that leave was duly sought and granted to the 2nd respondent to raise the issue of bona fide purchaser without value as a fresh issue at the lower Court. In the absence of any appeal against the grant of the application, it no longer lies in the appellant’s mouth to complain.

Learned counsel for appellant argued that the 2nd respondent failed to conduct the necessary search at the Land Registry in Port Harcourt to determine if there was any existing interest in the property and was therefore not entitled to rely on the equitable defence of bona fide purchaser for value without notice. I am of the considered view that the facts and circumstances of this case rendered such a search unnecessary. The property in dispute was an abandoned property. Byher pleadings and unchallenged evidence before the trial Court, the 2nd respondent led evidence to show how, in response to the publication of the 1st respondent, as a sitting tenant in the property, she repainted and renovated it and thereafter registered it, according to the 1st respondent’s directives as an abandoned property. The registration was duly published in the Nigerian Tide on 20th December, 1985. In that publication anyone claiming ownership of any of the properties registered as abandoned properties was advised to produce evidence to substantiate his claim within 7 days of the said publication. No claim was submitted in respect of the property in dispute.

Thereafter, the 2nd respondent purchased an application form and subsequently, purchased the property. It is interesting to note that despite his contention that the property had been sold to him prior to the publication by the 1st respondent, he was unable to show that he took any steps whatsoever to lay claim to the property or to renovate it when renovation was called for.

Having followed and complied with all the conditions laid down by the 1st respondent and there being no reaction from anyone to the publication of the registration, there was no basis for the 2nd respondent to engage in another voyage of discovery. The lower Court was quite right to have held that the 2nd respondent was a bona fide purchaser for value without notice and had acquired a good title to the property.

On the issue of compensatory damages, learned counsel for the appellant has argued that the lower Court granted a relief not sought. With due respect to learned counsel, this is not correct. By his 2nd Amended Statement of Claim dated 16th June, 1994, the appellant sought the following reliefs in paragraph 21 thereof:
“21(i) a declaration that the purported sale of the property at No.58 Blechi Street. Mile 3 Diobu Port Harcourt to the 2nd defendant Mrs Grace Amien, after the executed Sales Agreement with the plaintiff registered as No. 50 at page 50 in Volume 140 in the Lands Registry Port Harcourt is irregular, null and void.
(ii) Specific performance by the Housing & Property Development Authority of Clause 2 (v) of the Sales Agreement dated 23rd August, 1988: the plaintiff having paid the balance of the purchase: OR
(iii) ALTERNATIVELY
The sum of 1,000,000.00 being special and general damages as follows:
Special damage –
(a) deposit N36,800
(b) 5% interest per annum until judgment
General damage – N963,200.00
N1,000,000.00.”

It is crystal clear that in the event that the main prayers for a declaration and specific performance failed, the appellant made an alternative claim for special and general damages. Having held that the 2nd respondent had acquired good title to the property, the appellant’s main reliefs could not be granted and were rightly refused. The Court was entitled to consider the alternative relief. It exercised its discretion in awarding the appellant N250,000 general damages as compensation for the loss of the property resulting from the wrongful act of the 1st respondent in accepting money from him. The discretion has not been shown to have been wrongly exercised. I am not persuaded that there is any justification to interfere with the sound reasoning of the Court below.

For these and the more detailed reasoning in the lead judgment, I dismiss the appeal for lacking in merit.

The parties shall bear their respective costs.Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I have had a preview of the lead judgment just delivered by my learned brother, Tijjani Abubakar, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal of this Appellant has no merit.

I wish to say a few words in support of the judgment and I shall be done. The law is trite that in an action for declaration of title to land, the Court would always give Judgment to the party with a better title as established in evidence. See Aromire Vs. Awoyemi (1972) 7 All NLR 10 per Coker JSC.

In this case, both the Appellant and the 2nd Respondent traced their title to grant by the 1st Respondent. The 1st Respondent in its evidence admitted that it authored the publications in Exhibits AG and AH first being the registration of the property as an abandoned property at page 4 of the Nigerian Tide of Friday, December 20, 1985 wherein the 2nd Respondent was required to substantiate her claim over the house within 2 days. The second publication was at page 5 of the same Nigerian Tide of Monday August 11, 1986 wherein the property was advertised for sale to the general public. Following these said publications, the 2nd Respondent duly purchased No.38 Elechi Street Mile 3, Diobu Port-Harcourt from the 1st Respondent.

Equity follows the law. In the case where there are multiple interests in land, the person with a legal interest is in the eyes of the law the person having a better claim to the land. In this case, I totally agree that the 2nd Respondent is an innocent purchaser for value without notice of the Appellant’s equitable interest over the same property. Her interest therefore supercedes that of the Appellant.

For the above remark and the reasons adumbrated in the leadjudgment, I also dismiss the appeal for lacking in merit. I also make no order as to costs.
Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now the lead judgment prepared by my learned brother TIJJANI ABUBAKAR, JSC with whom I am in agreement with the reasons adduced and the conclusion arrived thereat, that this appeal lacks merit and ought to be dismissed. My Noble Lord has quite admirably resolved all the salient issues distilled for the determination of this appeal.

I am in entire agreement with the reasoning and conclusion arrived at by my learned brother, TIJJANI ABUBAKAR, JSC that this appeal is lacking in merit.

The appeal is therefore dismissed by me. I endorse and affirm the decision of the Court of Appeal, Port Harcourt.

I also abide by the orders in the lead judgment, including the order as to cost.
Appeal dismissed.

Appearances:

Oladipo Tolani, Esq., with him, Mobolaji Oyeleke, Esq. and Kabi Momoh, Esq.For Appellant(s)

Dr. Adekunle Ojo, SAN, with him, Emeka Diribe, Esq.For Respondent(s)