PA. ADEBIYI (a.k.a. BABA LAGEGE) & ORS. V. MR. OLAWALE ABIODUN ADEOSOLA
(2012)LCN/5479(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of June, 2012
CA/I/176/2007
RATIO
APPEAL: NOTICE OF APPEAL: WHETHER MORE THAN ONE NOTICE OF APPEAL CAN BE FILED
Generally, there is no harm in filing more than one notice of appeal with ground(s) of appeal within the stipulated statutory period provided they are taken together or amended by incorporating them together vide Federal Airports Authority of Nigeria v. Nwoye (2012) 16 W.R.N. 154 at 175, Akeredolu v. Akinremi (1987) 2 NWLR 710, Harriman v. Harriman (1987) 2 NWLR 244, Tukur v. Gongola State Government (1988) 1 S.C.N.J. 61, Ifekandu v. Uzoegwu (2009) W.R.N. 128, Savannah Bank of Nigeria Plc v. C.B.N. (2009) 6 NWLR (Pt.1137) 237.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
EVIDENCE: WHETHER ORAL EVIDENCE CAN VARY DOCUMENTARY EVIDENCE
Moreover, documentary evidence is a hangar to assess oral evidence and the latter cannot vary the former, more so the pleadings and evidence agreed 1993 was the year of the land sale transaction vide Fashanu v. Adekoya (1974) 6 SC 83, Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238, Kimdey and Ors v. Military Governor of Gongola State and Ors. (1988) 2 NWLR (Pt. 77) at 448 and section 128(1) of the Evidence Act, 2011.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
LAND LAW: WHETHER A SURVEY PLAN IS PROOF OF TITLE
Besides, as rightly held by the court below, the survey plan, Exhibit E, is no means of proof of title to land and may be dispensed with in land matters as it is only a method of showing the identity of the disputed area of land, therefore it is irrelevant to the existence of purchase receipt of a piece of land and cannot be used to defeat a concluded land sale transaction. At best the court below could have jettisoned the survey plan vide Momoh v. Umoru (2011) ALL FWLR (Pt. 558) 797 at 829; therefore the appellants’ contention on issue (a) (supra) is untenable and is hereby discounted.
The issue of the alleged insanity of one Alhaji Kokumo Adebiyi was not pleaded. It arose under cross-examination by the appellants at the court below without any piece of pleadings on the material fact and should have been expunged by the court below – See Ihenacho v. Chigere (2004) 7 SC (Pt.11) 49 at 71 – 72, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 208, Sommer v. Federal Housing Authority (1992) 1 S.C.N.J. 73 at 84-85.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. PA. ADEBIYI (a.k.a. BABA LAGEGE)
2. MR. OLU AJIBOSE
3. MR. SIKIRU ADEBIYI
4. MR. BASIRU ADEBIYI
5. MR. SUNDAY OSIO ADEBIYI
6. MR. GILBERT AFASINU – Appellant(s)
AND
MR. OLAWALE ABIODUN ADEOSOLA – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The respondent’s land suit against the appellants was heard and granted in a judgment by the High Court of Justice, Ota, Ogun State, (the court below) declaring the respondent’s entitlement to customary rights of occupancy and an injunction in respect of a parcel of land measuring approximately 955.913 square metres located at Lambe road, Lambe near Akute, Ogun State.
In a nutshell, the respondent bought the disputed piece of land from the appellants’ family on 23.11.93 and built a bungalow comprising two flats thereon and placed his junior brother in part of the land who had been using it to carry on the business of welding for the past twelve and half (12?) years before the present dispute arose; that in June, 2004, the 2nd – 5th appellant into the land where they physically dispossessed the respondent’s brother of half (?) of the parcel of land and put the 6th appellant in occupation of it; whilst the 6th appellant’s stance was that 1st – 5th appellants of Adebiyi family were original owners of the disputed parcel of land from which he bought part of it thereof and was placed into possession by the 1st – 5th appellants. The court below accepted the respondent’s version and rejected the appellant’s, consequent upon which it gave judgment to the respondent against the appellants.
Pursuant to an order of the Court on 23.2.09, the appellants filed an amended notice of appeal with six grounds of appeal dated and filed on 16.2.09, but deemed properly filed on 23.2.09.
The appellants’ brief of argument dated and filed on 31.3.09 raised three issues for determination as follows:
“a. Whether the plaintiff/respondent led credible evidence as to entitle him to judgment.
b. Whether the judge relying on unpleaded facts and allowing same to affect his consideration of the matter in issue resulted in miscarriage of justice.
c. Whether the learned trial judge was right in dismissing the counterclaim of the Defendants/Appellants.” Issue (a) was related to grounds 1, 3, 4 and 5 of the amended notice of appeal under which the appellants submitted that the oral evidence and Exhibits A and E tendered for the respondent conflicted with paragraphs 5 – 7 of his statement of claim at pages 34 of the record of appeal (the record) on the date of Exhibit A, the purchase receipt, and Exhibit E, the survey plan, were made showing the survey plan was dated 2.11.93 before the purchase receipt dated 23.11.93 contrary to the oral evidence of the respondent as PW3 at page 94 lines 13-14 of the record that the date of survey of the disputed piece of land came after the date of the purchase receipt evidencing purchase of the disputed land by the respondent coupled with the evidence of the respondent that he was present at the time of signing the sale agreement but allowed his junior brother who is less literate than him to sign the sale agreement boiled down to deduction or conclusion that the respondent did not buy the disputed land from the 1st – 5th appellants and the documents tendered in respect of the transaction are “concocted falsehood”, forged or that the PW1 lied on oath establishing that the respondent’s irreconcilably contradictory case inclusive of his prevarication on whether he knew the 1st – 5th appellants as members of Adebiyi family did not discharge the burden of proof placed on him under sections 135 – 137 of the Evidence Act read with section 132(1)(9) and 3 thereof and the cases of Okhuarobo v. Ighareuba (2002) 5 SC (Pt. 1) 141, Eze v. Atasie (2000) 6 SC (Pt.1) 214 at 219, Ezemba v. Ibineme (2004) 7 SC (Pt.1) 56, Shittu v. Fasawe (2005) 7 SC (Pt. 11) 107 at 117 and Olohunde v. Adeyoju (2000) 6 SC (Pt. 11) 118 at 125 – 126.
In arguing issue (b) related to ground 6 of the notice of appeal, the appellants stated that the issue of insanity of one Alhaji Kokumo Adebiyi was not pleaded but only mentioned by the PW3 which went to no issue and the court below was in error when it heavily relied on it to arrive at its judgment occasioning miscarriage of justice to the appellants vide Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 208 and Civil Design Construction Ltd. v. SCOA Nig. Ltd. (2007) 2 SC 195 at 235; that the head of Adebiyi family denied the transaction in Exhibit A and the appellants plead and proved fraud in the making of Exhibit A which the court below overlooked to arrive at a “perverse” decision contrary to the facts pleaded and given in evidence by the appellants and the said judgment should be set aside vide Ugochukwu v. Cooperative and Commercial Bank Ltd. (1996) 6 NWLR (Pt. 456) 537. Baridan v. State (1994) 1 NWLR (Pt. 320) 250 at 260.
Arguing issue (c) covered by grounds 3 and 4 of the notice of appeal, the appellants referred to their evidence that the 1st – 5th appellants sold ? plot of their family land to the 6th appellant, but not to the respondent to contend that the court below did not properly evaluate the said pieces of evidence against the backdrop of the deficient evidence of the respondent lacking particulars of the vendor letting him into possession of the disputed land in the presence of witnesses and the lack of pleading and evidence of names of the persons that witnessed the sale transaction which tilted the case in favour of the appellants that the respondent was not in exclusive possession of the disputed portion of land to warrant the court below entering judgment for him in respect of it vide Cole v. Folami (1956) 1 FSC 66, Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 at 362, 364 and 366, Ojelade v. Soroye (1998) 5 NWLR (Pt. 549) 284 at 303, Erinosho v. Owokoniran (1965) NMLR 479, Olugbenga v. Ajagungbade III (1990)? (Pt. 141) 661, Ogunbambi v. Abowab (1951) 13 WACA 132, Orosanmi v. Idowu 4 FSC 40.
Consequently, it was argued that the counter-claim should have been granted by the court below based on proof of title to the land by 1st – 5th appellant and the 6th appellant’s purchase of ? plot of land from them evidenced by Exhibit J and the survey plan in Exhibit K together with the evidence that the 6th appellant took possession of the ? plot of land in vacant condition and erected an uncompleted building on it up to lintel level vide Okelola v. Adeleke (2004) 7 SC (Pt.1) 33 at 37.
The respondent’s brief of argument dated 21.10.09 and filed on 25.10.09 but deemed properly filed on 3.11.09 followed the issues for determination of the appellants with preliminary objection that there are two separate notices of appeal – one by the 1st – 5th appellants and another by the 6th appellants, therefore there is no valid notice of appeal to predicate the appellants’ appeal, and the appeal should be struck out on that ground.
The respondent’s brief argued in the alternative that he had been in unbroken possession of the disputed land for eleven (11) years since 1993 and had erected a building comprising two flats on part of the land and had placed his brother in ? plot of the land who operated a workshop on it since 2004, before the 1st – 6th appellants caused the ? plot of land to be fenced and forced respondent’s brother out of the disputed land, when the 2nd – 5th appellants are grandchildren of Adebiyi family that sold the disputed land to the respondent and do not have any role to play in the sale of Adebiyi family land without over the head of their parents who are the direct children of Adebiyi vide Lewis v. Bankole (1909) 2 NLR 82, Atolagbe v. Sodunka (1985) 1 N.L.R (?) (Pt.2) 36, Osafile v. Odu (?) (1994) 2 NWLR (Pt. 325) 175, more so there was serious discrepancy between the evidence of the 2nd appellant at page 101 of the record that the ?  plot of land was sold to the 6th appellant in 2003 and the pleadings of the appellants to the contrary that it was bought in 2004.
The respondent’s brief argued on the second issue that the issue of insanity of one Alhaji Kokumo Adebiyi emerged from the cross-examination of the respondent by 1st – 5th appellants’ counsel at the court below and is a diversion from established fact that the respondent bought the disputed land from Adebiyi family and the court below was right to hold at page 159 of the record that the omission to call Alhaji Kokumo Adebibi as a witness was not fatal to the respondent’s case.
The respondent’s brief argued on the third issue that the reliefs sought by the 1st – 5th appellants in their counterclaim are meaningless and unsustainable, while the evidence towards proof of the counterclaim is contradictory; all the more so the 6th appellant relied on a survey plan made during the pendency of the suit and the court below was right to declare the 6th appellant a trespasser and rightly dismissed the counter-claim vide Arase v. Arase (1981) SC 33 and the purported sale of the ? plot of land to the 6th appellant was carried by the 2nd – 5th appellants using the 1st appellant, an old man of over 100 years to give the transaction a “toga of legality”; consequently the principle of law that a sale of family land without the consent of the family head or principal members of the family is voidable while sale by family members without the concurrence of the family is void should apply to the case vide Babaye v. Ashamu (1998) 9 NWLR 9 NWLR (Pt. 567) 456, Lukan v. Ogunsusi (1972) 5 SC 40, Agunbiade v. Sasegbon (1968) NMLR 223.
The appellants’ reply brief dated 11.11.09 and filed on 13.11.09 that it was the printer’s devil that referred to the notice of appeal as the new notice of appeal as the correct one is the amended notice of appeal incorporating the 1st to 5th appellants’ notice of appeal and the 6th appellant’s notice of appeal upon which the appellant’s based their brief of argument without misleading the respondent who relied on the issues for determination of the appellants in responding to the appeal.
It was argued in the reply brief that the appellants denied the issue of long possession of the disputed land stating that they became aware of respondent’s presence on the land in 2004; that male or female member of the family can sue to protect family property vide Unity Bank Plc and Anor. v. Bouari (2008) 2 – 3 SC (Pt. 11) 1 at 19, Coker v. Oguntola and Ors. (1985) 1 ANLR (Pt. 1) 273; that 1st appellant is head of the family while 5th appellant is one of the sons of Emmanuel Alawode Adebiyi, so Lewis v. Bankole (supra) was quoted out of context in respect of 1st and 5th appellants contrary to the warning of the Supreme Court in the case of Nnaife v. Okafor (1987) NWLR (Pt. 64) 128 that counsel should not cite a case or authority out of context.
It was also argued in reply that the issue of insanity of one Alhaji Kokumo Adebiyi was not pleaded and arose under cross-examination and should have been disregarded by the court below as going to no issue vide Okwejiminor (supra) and Ihenacho v. Chigere (2004) 7 SC (Pt.11) 49 at 71 – 72; that it was the duty of the court below to pronounce on the worth of the counter-claim which it failed to discharge and contrary to respondent’s arguments the head of the family joined the other family members to sell ? plot of their family land to the 6th appellant making the sate valid; that adverse possession no matter how long does not confer title to land; and that the appellants denied one Alhaji Kokumo Alawode was their family head, consequently the appeal should be allowed.
Generally, there is no harm in filing more than one notice of appeal with ground(s) of appeal within the stipulated statutory period provided they are taken together or amended by incorporating them together vide Federal Airports Authority of Nigeria v. Nwoye (2012) 16 W.R.N. 154 at 175, Akeredolu v. Akinremi (1987) 2 NWLR 710, Harriman v. Harriman (1987) 2 NWLR 244, Tukur v. Gongola State Government (1988) 1 S.C.N.J. 61, Ifekandu v. Uzoegwu (2009) W.R.N. 128, Savannah Bank of Nigeria Plc v. C.B.N. (2009) 6 NWLR (Pt.1137) 237. In the present appeal the 1st – 5th appellants’ notice and grounds of appeal and the 6th appellant’s notice and grounds of appeal were merged to form the amended notice of appeal upon which the appellants predicated their brief of argument to which the respondents reacted in their respondents’ brief of argument, therefore the respondents have not shown that they were taken by surprise or misled or prejudiced by the merger of the two notices of appeal into the amended notice of appeal, consequently there is no substance in the preliminary objection which is hereby discountenanced.
The issues for determination formulated by the appellants are apt for the discourse and, I hereby adopt them for the consideration of the appeal.
Paragraphs 4 – 7 of the statement of claim pleaded that the disputed piece of ground was bought “sometimes in 1993” by the respondent from Adebiyi family under Yoruba Native Law and custom and a survey plan of it was made in plan No. SED/OG/064/93 without pleading the date of the survey plan, while the approved building plan for it is plan No. PRA/1546/12/116/93 of 20/12/93, therefore the date of the purchase receipt bearing 23.11.93 was not pleaded as wrongly contended by the appellants. What was pleaded was that “sometime in 1993” the respondent bought the said disputed land; also, it was not pleaded that the survey plan was made on a particular date in 1993. It is therefore wrong to contend that the dates pleaded contradicted the evidence led at the trial by the respondent.
Moreover, documentary evidence is a hangar to assess oral evidence and the latter cannot vary the former, more so the pleadings and evidence agreed 1993 was the year of the land sale transaction vide Fashanu v. Adekoya (1974) 6 SC 83, Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238, Kimdey and Ors v. Military Governor of Gongola State and Ors. (1988) 2 NWLR (Pt. 77) at 448 and section 128(1) of the Evidence Act, 2011. Besides, as rightly held by the court below, the survey plan, Exhibit E, is no means of proof of title to land and may be dispensed with in land matters as it is only a method of showing the identity of the disputed area of land, therefore it is irrelevant to the existence of purchase receipt of a piece of land and cannot be used to defeat a concluded land sale transaction. At best the court below could have jettisoned the survey plan vide Momoh v. Umoru (2011) ALL FWLR (Pt. 558) 797 at 829; therefore the appellants’ contention on issue (a) (supra) is untenable and is hereby discounted.
The issue of the alleged insanity of one Alhaji Kokumo Adebiyi was not pleaded. It arose under cross-examination by the appellants at the court below without any piece of pleadings on the material fact and should have been expunged by the court below – See Ihenacho v. Chigere (2004) 7 SC (Pt.11) 49 at 71 – 72, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 208, Sommer v. Federal Housing Authority (1992) 1 S.C.N.J. 73 at 84-85. Accordingly, that portion of the evidence on the unpleaded alleged insanity of one Alhaji Kokumo Adebiyi which was incidentally considered peripheral to the dispute by the parties who left it out of their pleadings is hereby disregarded.
The denial of the land sale transaction in Exhibit A by the head of Adebiyi family and the allegation that Exhibit A was a fraud were met by the evaluation of the evidence of the head of the family by the court below at page 162 of the record thus –
“Although the 1st defendant is an old man of 100 years, I say with all due respect to him that he was being very economical with the truth when he said he never knew the plaintiff or knew of the sale to him. I believe totally the evidence of the PW1 and PW3 and disbelieve the evidence of the defendants’ witnesses. I find and hold that the Adebiyi family under the leadership and authority of the 1st defendant and with the concurrence of other principal members validly sold the said one and a half plots of land subject matter of this suit to the plaintiff in 1993 and put him in effective possession of the same.”
The court below saw or watched and heard the witnesses and observed their demeanour while they gave evidence in the witness-box and, equipped with that unique and singular advantage, it came to the findings copied above, therefore the Court is slow to intervene by reversing the said findings of fact based on the credibility of the witnesses and substituting its own findings in place of the findings of fact made by the court below as to do so would usurp the function of the court below which was adequately discharged by that court – See Akinola v. Oluwo (1962) 1 ALL LR (Pt. 2) 244, Ebba v. Ogodo (1984) 4 S,C. 84 at 90 and 98, Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559 at 574, Poooola v. A-G Kwara State (2012) 17 W.R.N. 33 at 62, Kimdev (supra) at 459-460, Ayanwale v. Atanda (1988) 1 S.C.N.J. 12 at 28, Duyile v. Ogunbayo (1988) 3 S.C.N.J. 1 at 7 and Ero v. Tinubu (2012) 8 NWLR (Pt. 1301) at 136-137.
The court below found as a fact at pages 159-160 of the record that the allegation of fraud or forgery of Exhibit A, the purchase receipt was not proved beyond reasonable doubt by the appellants that made the criminal allegation. I agree. Fraud or forgery is a criminal allegation. The full particulars of the alleged fraud or forgery must be pleaded and proved beyond reasonable doubt. The 1st – 5th appellants barely alleged fraud in their statement of defence and counter-claim particularly paragraph 5 thereof at pages 55-57 of the record without supplying the particulars thus:
“The 1st – 5th defendants family never sold any land to the plaintiff for which they issued receipt. The purported receipt is fraudulent in its entirety.”
Thus all the pieces of evidence towards proof of the criminal allegation of forgery or fraud were based on nothing and the court below was right to hold that the criminal allegation was not proved beyond reasonable doubt vide section 135(1) of the Evidence Act plus Higrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 S.C.N.J. 110, Okoli v. Morecab Finance Nigeria Ltd. (2007) 5 S.C.N.J. 25. Accordingly, I do not accept the contention of the appellants that Exhibit A was a fraud and uphold the holding of the court below that fraud was not proved beyond reasonable doubt.
The court below found as a fact that the respondent validly bought the disputed land from the 1st – 5th appellants’ family and was let into possession of it in the presence of witnesses whereupon he built two flats structure on part of it in 1993, and a septic tank and welder’s shop on the other part of the land since 1993, which was supported by the unshaken evidence of the PW1 and the PW3 upon which the court below appraised and rejected the appellants’ case and accepted the respondent’s case and based its judgment particularly at pages 157 – 163 of the record on the believed evidence for the respondent. Consequently, I do not agree with the contention of the appellants that the court below did not evaluate the evidence before arriving at its decision in favour of the respondent. There was therefore a proper evaluation and appraisal of the evidence and proper application of the law by the court below before it reached the just conclusion that the respondent was entitled to the reliefs sought in the suit by him vide Abasi v. Onido (1998) 5 NWLR (Pt. 548) 89 at 102, A-G of the Federation v. Abubakar (2007) 4 SCNJ 456 at 489 and Amokomowo v. Andu (1985) 1 NWLR (Pt.3) 530. The said evaluation of the evidence by the court below and the decision it reached thereat having not been shown to be perverse, I am chary to interfere with it vide Dokobo v. Rewane (2011) 16 NWLR (Pt. 1272) 22 at 60, Kimdey (supra) at 459 and Ajeigbe v. Odedina (1988) 3 SCNJ (Pt.1) 58.
In rejecting the counter-claim of the appellants the court below held at pages 160 – 161 and 162 of the record as follows –
“One other factor that convinces me to believe the evidence of the plaintiff as against that of the defendants and which indicates to me that 1st defendant and other members of the family sold, were aware and consented to the sale of the one and a half plots to the plaintiff in 1993 is that he was never disturbed or challenged on the land from 1993 until June, 2004. He got all his documents including an approved building plan in 1993. He started building on the land since 1993 and had built two flats up to lintel level. He was never challenged. He constructed a septic tank and a welder’s shop on the half plot since 1993, yet the defendants were alive, and never disturbed him until they suddenly woke up from their slumber in June, 2004. His evidence in this regard was never contradicted, so it must be accepted as the truth, and I so accept it. The acts of possession of almost 12 years exercised by the plaintiff in this case, without any challenge from the defendants are to me clearly an indication of their awareness, knowledge, concurrence and acquiescence to the title which their family passed to the plaintiff in 1993.
From the evidence before me, I also believe, and hold that the 6th defendant was not a purchaser for value without notice. I believe as asserted by the plaintiff; that he saw both the welder’s workshop and the septic tank on the half plot which he fenced in, with the connivance of the 1st – 5th defendants. He did not acquire a valid title to the half plot as the 1st – 5th defendants (i.e. Adebiyi family) having already divested themselves of their right in the same to the plaintiff since 1993; no longer had anything to convey to the 6th defendant. ‘Nemo dat quod non habed’.
Accordingly, I find and hold that the defendant, are all trespassers on the belonging to the plaintiff having entered and alienated the same without his consent.”
There is, in my opinion, sufficient pleading and evidence on the record supporting the above findings of fact by the court below. Because paragraph 11 of the defence to the counter-claim at page 21 of the record pleaded –
“The defendant shall at the hearing raise the equitable defence of LACHES AND ACQUIESCENCE against the plaintiffs which is now specifically pleaded. The plaintiffs are also guilty of standing by.”
While paragraph 3 of the respondent’s defence to the counter-claim of the 6th appellant at page 65 of the record pleaded –
“3. On the doctrine of laches and acquiescence the 6th defendant and his vendors cannot wake up only in June 2004 and to start challenging the title of the plaintiff or try to undo what their doers and fathers had done involving their Head of Family vide the sale of the land which land he developed immediately and in physical possession of the seized portion (i.e. ? plot in dispute.)”
The unshaken evidence of the PW1 and the PW3 supported the facts that the respondent bought and developed the purchased area of land by erecting two flats building on part of it, and a welder’s shop together with a septic tank on the other disputed portion of the land since 1993, after he purchased the land, while the appellants started disputing ownership of the land with him in 2004, an interval of about eleven (11) years. The equitable reliefs pleaded (supra), accordingly, availed the respondent against the counter-claim of the appellants, as rightly held by the court below – See Abibatu Folami and Others v. Flora Cole and Others (1990) 2 NWLR (Pt.133) 445 at 456 thus-
“Finally, equity must be considered. Where were the appellants since 1966 when the 3rd respondent purchased the land and erected a duplex house thereon….Nobody builds on open or empty land in secret and a person with interest in land surely must be vigilant as to what happens to it. Vigilantibus non dormientibus jura subveniunt. There is no evidence that from the time the 3rd respondent purchased from Bamgbose in 1966 to the time he erected the duplex house to the time he occupied part of the building and leased part of it, he was challenged. It was in 1975 that the appellants went to court …. The appellants not only facilitated but also stood by and did nothing to stop the 3rd respondent. Equity aids the vigilant not the indolent…”
See again page 457 of the same law report where Obaseki, Ag. C.J.N., also held inter-alia that –
“Although the sale and transfer of the property in dispute is by Flora A. Cole, the appellants slept over their right of action.”
See also Chukwuogo v. A.G. Rivers State (1998) 1 NWLR (Pt.534) 375 followed by this Court in Ero v. Tinubu (supra) at 129 (per the lead judgment of Mshelia, J.C.A.), Manko v. Bonso (1936) 3 W.A.C.A. 62, Esan v. Faro (1947) 12 WACA 135.
At any rate, as between the 6th appellant and the respondent the latter bought the disputed arm first before the former bought from the same source and, as rightly held by the court below, the respondent who bought the disputed area before the 6th appellant has a better title to the area in dispute than the 6th appellant on the principle of priority of title vide Dearle v. Hall (1824 – 34) ALL E.R, (Reprint) 28 at 35, Ugbo v. Aburime (1994) 8 NWLR (Pt.360) 1 at 19, Ero & Anr. V. Tinubu (supra) at 125 – 126, 140.
I conclude that the appeal lacks merit. I hereby dismiss it and affirm the judgment of the court below (Akinyemi, J.) with N30,000 costs against the appellants in favour of the respondent.
ADZIRA GANA MSHELIA, J.C.A.: I read before now in draft the judgment of my learned brother IKYEGH, J.C.A., just delivered. I agree with his reasoning and conclusion. For the same reasons ably stated in the lead judgment, which I adopt as mine, I too dismiss the appeal. I abide by the consequential orders made therein including the order on cost.
MODUPE FASANMI, J.C.A.: I agree entirely with the judgment prepared by my learned brother Ikyegh J.C.A., which I had the privilege of reading in advance.
I too dismiss the appeal as lacking in merit and abide by the consequential orders contained therein.
Appearances
Mr. N. Idowu For Appellant
AND
Mr. O. Shonibare For Respondent
