THE REGISTERED TRUSTEES OF GREATER EVANGELISM WORLD CRUSADE v. MR. GOGO JACK
(2019)LCN/13120(CA)
(2019) LPELR-47942(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/PH/446/2013
JUSTICE
CORDELIA IFEOMA JOMBO-OFO justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF GREATER EVANGELISM WORLD CRUSADEAppellant(s)
AND
MR. GOGO JACKRespondent(s)
RATIO
THE DOCTRINE OF LIS PENDENS
The doctrine of lis pendens operates to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any rights over the property during the pendency of the suit. See Enyibros. Foods Processing and Anor. vs. N.D.I.C. (2007) 3 S.C. Pt. II, pg. 175 at 207 & 209; Osidele & 2 Ors. vs. Sokunbi (2012) 7 S.C. 30 at 76; Enekwe vs. International Mech. Bank Ltd. (2006) 11-12 S.C., PG. 3 at 12; Oronti vs. Onigbanjo (2012) 5 S.C. Pt. 1, pg. 76 77, 79; and Bua vs. Dauda (2003) 6 S.C.N.J. 219 at 295; (1999) 12 NWLR Pt. 629, pg. 59. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering The Leading Judgment): This appeal is against the decision of the High Court of Rivers State (henceforth to be referred to as the lower/trial Court), coram Hon. justice S. H. Aprioku in suit No. PHC/2168/2010, delivered 1st November, 2012.
STATEMENT OF FACTS
The appellant as claimant in suit No. PHC/1123/1996 took out an action against the following as defendants:
1. Mr. Humphrey O. Chukwu
2. Mr. Friday Onukem
3. Oganco (Nig.) Ltd, (Chief Oganco).
After hearing the parties, the Court per Hon. justice P. E. Ebeku, J. in a considered judgment delivered 22nd December, 2009 found and held in favour of the claimant as follows:
1. That the sale of the land in dispute or its conveyance by the 1st defendant to the claimant as evidenced by the Deed of Conveyance made on 26th August, 1992 is valid.
2. That the claimants are the Owners/Landlords and person entitled to the Statutory Right of Occupancy or Deemed Right of Occupancy over the land in dispute situate at Okahia Ali Apa Egbelu lying along the East-West Road, Rumuodara, Port Harcourt measuring 1889.41 square
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metres and verged Green in Survey Plan SCB/RIV/003/97-LD dated 7th of July, 1997.
IT IS ORDERED that the claimant be and is hereby awarded N1,280,000.00 as Special damages and N5,000,000.00 as General damages against the 2nd and 3rd defendants.
IT IS ALSO ORDERED that Perpetual Injunction be granted restraining the 2nd and 3rd defendants either by themselves or through their agents, privies or servants from trespassing, entering into, tampering, building any fence or structure upon the claimants land or howsoever interfering with the claimants use of the said land. (See pages 4-5 and 28-45 respectively of the record of appeal).
None of the defendants appealed against the judgment hence it subsists.
Be that as it may, the appellant again as claimant on 27th August, 2010 took out an Originating Summons against UNKNOWN PERSON(S) as defendant in suit No. PHC/2168/2010, praying the lower Court for an order to recover possession of the landed property now called No. 9 East-West Road Rumuodara Port Harcourt, on the ground that the claimant is entitled to possession and the unknown person(s) in occupation is/are in
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occupation without Claimants licence or consent. A caveat in the Originating Summons reads thus:
Any person occupying the premises who is not named as a defendant by this summons may apply to the Court personally or by Legal Practitioner to be joined as defendant. If a person occupying the premises does not attend personally or by Legal Practitioner at the time and place above-mentioned such order will be made as the Court may think just and expedient.
The lower Court gave judgment in the Originating Summons on 8th April, 2011 granting the appellant authority to recover immediate possession and for the unknown persons to yield and give up vacant possession of the Claimants land and appurtenances situate at Akaohia Ali Apaegbelu in Rumuodara, known as No. 9 East-West Road, Port Harcourt forthwith. It was in the course of execution of the said judgment that the respondent herein appeared in the scene to claim ownership of the building on the land. He forthwith applied to the lower Court to be joined as a defendant and thus afford him the opportunity to defend the action and also to have the already obtained judgment set aside, claiming
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that it was obtained by fraud. See pages 1626 of the record of appeal. The Court on hearing the application granted it. Consequently the lower Court on 11th July, 2011 went on to set aside the judgment obtained on 8th April, 2011, and then to bring in the respondent as a defendant/counter claimant over the parcel of land in issue and set down the case No. PHC/2168/2010 for hearing on merit. (See pages 295297 and 795799 respectively of the record of appeal). The claimant/appellants statement of claim and the accompanying processes are copied at pages 314508 of the record of appeal, while the defendant/respondents statement of defence and the accompanying processes are contained at pages 509610 of the record of appeal. The reply to defence and defence to counter claim is copied at pages 611745 of the record of appeal. In their statement of claim particularly at paragraph 17 thereof, the appellant prayed as follows:
i. IMMEDIATE VACANT POSSESSION of the subject matter situate at Okahia Ali apaegbelu (wrongly called Ohia Ekwuegbelu) lying along the East-West Road, Rumuodara-Port Harcourt now
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municipally called No. 9 East-West Road Obio/Akpor Local Government Area of Rivers State and the sum of N10,000,000.00 (Ten Million Naira) only yearly for use and occupation of the same from August, 2001 till possession is delivered up to the Claimant.
ii. PERPETUAL INJUNCTION restraining the defendant either by himself or through his agents, privies, servants, etc from howsoever interfering with Claimants use, management or control of her land situate at Okahia Aliapaegbelu (wrongly called Ohia Ekwuegbelu) lying along the East-West Road, Rumuodara-Port Harcourt now municipally called No. 9 East-West Road Rumuodara Obio/Akpor Local Government Area of Rivers State.
At the trial the appellant called 2 witnesses and the respondent called one. The appellants case in the main is that they bought the land in dispute from the original owner (Mr. Humphrey Chukwu) who stood by them all the time to vouch for the title he passed on to them. The respondent on his part counter claimed that he is a bona fide purchaser of the property from his vendor Chief Christopher Okonkwo. In a considered judgment delivered 1st November, 2012, the learned trial
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Judge S. H. Aprioku J., dismissed the appellants claim, while the counter claim for declaration of title and the restraining order of injunction sought by the respondent succeeded.
Piqued by the judgment the appellants filed their Notice of Appeal on 31st January, 2013. The parties in compliance with the rules and practice of this Court filed their respective briefs of argument. The appellants brief dated 6th November, 2017, filed 17th November, 2017 and deemed on 15th January, 2019 and the appellants reply brief dated 16th November, 2017, filed 17th November, 2017 but also deemed on 15th January, 2019 were both settled by C. A. J. Chinwo, Esq. The respondents brief dated and filed 13th September, 2013 and equally deemed on 15th January, 2019 was settled by O. T. K. D. Amachree, Esq.
The appellant from the 5 (five) grounds of the notice of appeal formulated the following five issues for determination:
1. Was the learned trial Judge in the lower Court right when he assumed jurisdiction to hear and determine the issue of title in this case when it became clear that the subject matter of the action is the same land that
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had been the subject matter of the earlier decision of his learned brother of the same Court. Hon. justice Peter Ebeku in PHC/1123/1996 between the same parties or their privies? (Ground 1).
2. Was the learned trial Judge right in law and on the facts when he held that the defendant was a bona fide purchaser for value without notice? (Ground 2).
3. Assuming, without conceding, that the trial Court had jurisdiction to hear and determine this case, was the learned trial Judge right in law when he admitted and relied on Exhibit 006 as the defendants root of title without further evidence. (Ground 3).
4. Did the learned trial Judge not err in law when he held that the doctrine of lis pendis failed and the legal maxim of quic quid plantatur solo, solo cedit will not apply to grant possession to the claimant and defeat the claim of possession and lengthy possession by the defendant/counter claimant? (Ground 4).
5. Is the judgment in this case not against the weight of evidence? (Ground 5).
The respondent on his part raised a preliminary objection in addition to adopting and arguing the 5 (five) issues raised by the appellant. The
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preliminary objection reads:
Whether the appeal is competent as the Notice of Appeal was filed on 31/1/2013, settlement of record of appeal was on 14/2/2013 but the record of appeal was transmitted on 27/6/2013 without any order of the Court.
Being an issue touching on the competence or otherwise of the appeal, the preliminary objection as raised by the respondent has to be determined first before delving into the main appeal if need be.
In his submission on the preliminary objection, the learned counsel for the respondent submits that the appeal is in violation of Order 8 Rules (1) and (4) of the Court of Appeal Rules, 2011. That the appellant transmitted a record of appeal which they produced on 27/6/2013 which is 147 days after the filing of the notice of appeal and that this is irregular and incompetent.
In resolving the preliminary objection, I need to state out right that much as the appellant was out of time in their compilation and transmission of the record of appeal, they brought an application on 13th March, 2015 wherein they sought for a regularization of the process. The application was heard on 29th February, 2016, consequent
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upon which the time for compilation and transmission of the record of appeal was extended and the said record of appeal filed out of time on 26th June, 2013 was deemed properly compiled and transmitted on the said 29th February, 2016. The appeal is therefore competent and proper before the Court and as such the preliminary objection of the respondent is overruled.
I now proceed with the main appeal.
ISSUE (ONE)
Was the learned trial Judge in the lower Court right when he assumed jurisdiction to hear and determine the issue of title in this case when it became clear that the subject matter of the action is the same land that had been the subject matter of the earlier decision of his learned brother of the same Court. Hon. justice Peter Ebeku in PHC/1123/1996 between the same parties or their privies?
Appellant submits hereon that the learned trial Judge erred in law when he assumed jurisdiction to hear and determine issues earlier heard and determined by a Court of coordinate jurisdiction viz, the High Court of Rivers State presided over by Hon. justice Peter Ebeku in PHC/1123/1996 on the same subject matter and between the
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claimants/appellants and the defendant/respondents predecessor-in-title. Relying on the authorities of Dingyadi vs. INEC (2011) All FWLR Pt. 1426, pgs. 1456 1457; and Cotecna Intl. Ltd. vs. Churchgate (Nig.) Ltd. (2011) All FWLR Pt. 575, pg. 252, the appellant contended that if the learned trial Judge had critically looked at the statement of claim of the claimants and the counter claim of the defendant, it would have been clear to him that the case raised the same issue of title over the same piece of land between the same parties and privies as in the earlier case decided by Ebeku, J.
Appellant canvassed that the recital on the Deed of Conveyance executed between the respondent and Chief Christopher Okonkwo of Ogamco International Limited reveal that Friday Onukem sold the property to Chief Okonkwo on 27th September, 1996 and that the sale was done in bad faith when he knew that his right to the property was being challenged. Appellant canvassed that having seen the judgment of Ebeku, J., the learned trial Judge ought to have washed his hands off the matter, the same having been tried by his learned brother of the same
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jurisdiction. That he should have struck out the defendants counter claim and advised him to appeal against the judgment of Ebeku, J., if he thought he had title to the land. Appellant argued that all the ingredients that would divest a trial Court of jurisdiction in such circumstances existed. He urged that we resolve issue one in favour of the appellant.
In reaction, the respondent submitted that based on the facts as contained in paragraphs 11, 13 and 17 of the claimants/appellants affidavit in support of his Originating Summons, the trial Court gave judgment on 8th April, 2011 in favour of the appellants, ordering them to take possession of the land. However, on the contested application of the respondent, the trial Court set aside its own said judgment of 8th April, 2011, holding that same was obtained fraudulently. (See pages 295-297 and 795-799 respectively of the record of appeal). The respondent contended that although the appellant appealed against the said judgment as seen at pages 875887 of the record of appeal, but they abandoned it thereby allowing the judgment of 11th July, 2011 to stand unchallenged and
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subsisting. Respondent submits that the vendor of the land bought by him is Chief Christopher Okonkwo. See page 662 of the record of appeal. Respondent submitted that the trial Court dealt with the issue of who is the respondents vendor and found as follows at page 849 of the record of appeal:
In the instant case, I find that:- (1) the party sued as 3rd defendant and for which the claimant obtained the judgment was Oganco Nig. Ltd (Chief Oganco) and not Chief Christopher Okonkwo. The claimant attempt in this suit to allege that Oganco Nig. Ltd. is the same person as Chief Christopher Okonkwo is not supported by any piece of evidence in the previous suit or in this suit, as no witness was called to disclose the identity of Chief C. Okonkwo as the same person that answers Chief Oganco. In my considered view the claimant did not discharge the proof of burden that the parties or their privies are the same in both the previous and the present proceedings. Therefore the plea of res judicata is not applicable as the parties are not the same.
Learned counsel for the respondent submitted that the finding is binding on the parties and this
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Court as the appellants did not challenge it. See IYEN vs. FRN (2010) 2 NWLR Pt. 1177, pg. 1 at 13, paras. G-H; Ijale vs. A.G. Leventis & Co. Ltd. (1959) 1 NSCC 86; and Akpunonu vs. Beakart Overseas (2000) FWLR Pt. 7, pg. 1056. Respondent also relied on the finding of the lower Court at page 869 to the effect that there was no evidence that this land is the same land litigated in suit No. PHC/1123/96 as the size is different meaning that the portion of land in dispute in the two cases are not the same. He urged on us to resolve issue one in the affirmative and against the appellant.
RESOLUTION OF ISSUE (ONE)
The main question to be answered here is whether the subject matter of the earlier decision by Hon. justice Peter Ebeku, J., in PHC/1123/96 is the same as the one in issue in PHC/2168/2010 and if the parties are same or their privies as to constitute a res judicata in the later action. Now the parties in the first suit No. PHC/1123/96 per Hon. justice P. E. Ebeku, J. are thus:
THE REGISTERED TRUSTEES OF GREATER
EVANGELISM WORLD CRUSADE INC … CLAIMANT
AND
1. MR. HUMPHREY O CHUKWU
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2. MR. FRIDAY ONUKEM
3. OGANCO NIG. LTD. (CHIEF OGANCO)
See page 339 of the record of appeal.
On the other part, the parties in PHC/2168/2010 per Hon. justice S. H. APRIOKU, J., delivered 1st November, 2012 and now under appeal are:
THE REGISTERED TRUSTEES OF GREATER
EVANGELISM WORLD CRUSADE… CLAIMANT
AND
MR. GOGO JACK . .. DEFENDANT
See page 834 of the record of appeal.
From the foregoing, it is obvious that while the claimant remained the same in both actions, the defendants are different. Therefore, notwithstanding the fact that the subject matter in both is the landed property situate at Okahia Ali Apaegbelu in Rumuodara, Port Harcourt now called No. 9 East-West Road, Rumuodara, Port Harcourt, the parties in the two actions are not the same. It is trite that for purposes of sustaining the plea of res judicata, it must be shown that the parties and their privies, as well as the subject matter and issues are the same in both suits and the earlier decision must have
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finally determined the issues between the parties. See the authorities of Okere vs. Nwoke (1991) 8 NWLR Pt. 209, pg. 317 at 347; Ntuks and 9 Ors vs. Nigeria Ports Authority (2007 5-6 SC; Kuusu vs. Udom (1990) 1 NWLR Pt. 127, pg. 421 at 431; Coker vs. Sanyaolu (1976) 9-10 SC. 203, 223; and Adedayo vs. Babalola (1995) 7 NWLR Pt. 408, pg. 383 at 406. Since there is no evidence on record linking the parties in the previous decision in suit No. PHC/1123/96 and the ones in the later suit No. PHC/2168/10, the plea of res judicata cannot avail the appellant. Though the res or subject matter of both actions is the landed property situate at Okahia Ali Apaegbelu in Rumuodara, Port Harcourt now called No. 9 East-West Road, Rumuodara, Port Harcourt, the appellants claims thereon are not the same in both actions. In suit No. PHC/1123/96, the claim was for declaration, injunction and damages, while in PHC/2168/10 the claimant sought for possession of the land. I dare say that I find it rather weird that the appellant is the one raising the issue of res judicata by questioning the jurisdiction of the learned trial Judge of the lower Court to hear and determine
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suit No. PHC/2168/10 before him. The concept of res judicata is available in law as a defence to an action. Both suit Nos. PHC/1123/96 and PHC/2168/10, were initiated at the instance of the appellant as claimant. To now turn around and begin to question the competence/jurisdiction of the learned trial Judge to determine the latter suit No. PHC/2168/10 before him, tantamount to the claimant/appellant indicting himself for instituting same.
Be that as it may, since it is duly established that neither the parties more especially the defendants and their privies, nor the issues involved in both suits are the same, it follows that the learned trial Judge of the lower Court was indeed right when he assumed jurisdiction to hear and determine the issue of title raised by the appellant in suit No. PHC/2168/10. Issue 1 (one) in the event is resolved in favour of the respondent and against the appellant.
ISSUE (TWO)
Was the learned trial Judge right in law and on the facts when he held that the defendant was a bona fide purchaser for value without notice?
Appellants counsel began by submitting that whether or not a party has knowledge of a
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particular situation of things in law is matter of law and facts. The appellant contended that there is no competition on the validity of the titles and priority and notice will not arise. He canvassed that he bought from the owner of the land, while the defendant bought from a person who bought from a stranger and both his purported vendor and the grand-vendor were parties to the action. Referring to the cases of Omiyale vs. Macauley (2009) All FWLR Pt. 479, pg. 399; Atanda vs. Ajani (1989) NWLR Pt. 11, pg. 511, 538; and Sections 136 and 140 of the Evidence Act, 2011, the appellant submitted that the burden of proving that he did not have knowledge of a pre-existing interest, lies on the party who so asserts since a purchaser has a duty to beware. He contended that the issue here is not whether the respondent purchased or supplied consideration but whether he did so bona fide and without notice. See the learned author, Professor Emeka Chianu in his book, Law of Sale of Land, Lawlords Publication, Abuja, 2009 at pg. 453, where he said of course, the second purchaser must prove that he is a bona fide purchaser for value without notice of
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the earlier interest.
It was the further argument of the appellant that the defendant/respondent had both constructive and imputed notice that, even if he knew not that his title has no foundation at the time of purchase (which he knew), but that it was being contested in Court. He argued that even though it was recited to him that his vendor bought the land from Friday Onukem, he neither went to the Land Registry or to the Community to find out if Friday Onukem existed or had any title to the land. Appellant contended that it is the respondent rather than the appellant who could be accused of standing by in that he knew that the land he bought was a subject of litigation before he bought it and chose to ignore it on the ground of technicality that Chief Oganco or Ogamco is not Chief Christopher Okonkwo of Ogamco International Ltd. He argued that though there maybe acquiescence without undue delay, the acquiescence that will deprive a man of his legal rights must amount to fraud. See Kaiyaoja vs. Egunla (1974) 12 SC. 55; and in Estate of Abacha vs. Spiff (2003) FWLR Pt. 144, pg. 531 at 581. Appellant canvassed that the respondent did
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not try to prove his title to the land beyond producing the unregistered Deed of Conveyance. That the respondent failed to prove that he is a purchaser without notice in good faith. That since he the appellant was relying on the earlier judgment of the Court over the land, the respondent who was claiming entitlement to the same land or even to a different land had the burden to prove his entitlement. Appellant urged on us to resolve issue 2 (two) in his favour.
On the converse the respondent felt otherwise upon which he urged on us to resolve issue 2 (two) in the affirmative and in favour of the respondent and against the appellant.
RESOLUTION OF ISSUE (TWO)
The respondent herein holds himself out to be an innocent purchaser for value of the land in dispute and with no knowledge of any encumbrances on the land.
The appellants as evident in paragraphs 12, 14 and 15 of their statement of claim had pleaded facts to show that the respondent was at the time of purchase of the land, aware that it was in dispute. I deem it pertinent to reproduce the facts and they read:
12. Mr. Gogo Jack alleges to be the one who developed the subject matter
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and put in tenants. He also alleges that he bought the land from Chief Christopher Okonkwo who is popularly called Chief Oganco the 3rd defendant in PHC/1123/96 and also that Chief Christopher Okonkwos allegedly bought it from Mr. Friday Onukem the 2nd defendant in PHC/1123/96 which is untrue and all these transactions took place during the pendency of PHC/1123/96.
14. In the circumstances Mr. Gogo Jack allegedly bought claimants land from the 2nd and 3rd defendants in PHC/1123/96 with knowledge of the pendency of the suit. Mr. Gogo Jack therefore qualified as agent, servant or privy of the 2nd and 3rd defendants in suit No. PHC/1123/96 and therefore bound by the judgment therein. He is accordingly caught by the twin doctrines of lis pendens and nemo dat quod non habet.
15. Mr. Gogo Jack was aware of the pendency of suit No. PHC/1123/96 and was monitoring proceedings. That was why he quickly obtained certified true copy of the record of proceedings after the judgment. Despite his alleged interest through the 2nd and 3rd defendants in suit No. PHC/1123/96, Mr. Gogo Jack did not apply to join to defend the suit but allowed 2nd and 3rd
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defendants defend his said interest which they did but failed. He is now estopped to challenge the claimant as the bona fide owner and landlord of the subject matter and the claimant shall rely on the maxim of quic quid platatur solo, solo cedit. (See page 316 of the record of appeal).
The doctrine of lis pendens operates to prevent the vendor from transferring any effective title to the purchaser by depriving him (the vendor) of any rights over the property during the pendency of the suit. See Enyibros. Foods Processing and Anor. vs. N.D.I.C. (2007) 3 S.C. Pt. II, pg. 175 at 207 & 209; Osidele & 2 Ors. vs. Sokunbi (2012) 7 S.C. 30 at 76; Enekwe vs. International Mech. Bank Ltd. (2006) 11-12 S.C., PG. 3 at 12; Oronti vs. Onigbanjo (2012) 5 S.C. Pt. 1, pg. 76 77, 79; and Bua vs. Dauda (2003) 6 S.C.N.J. 219 at 295; (1999) 12 NWLR Pt. 629, pg. 59.
It is one thing in law to make an allegation of facts and another is to establish the facts alleged by credible evidence. The appellant indeed failed to lead evidence in substantiation of the facts as pleaded above. As I had noted earlier on in this judgment, the vendor to the respondent, i.e.
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Chief Christopher Okonkwo was not a party in PHC/1123/96. There is nothing on record to show that the said Chief Christopher Okonkwo is a privy of the defendant(s), neither was he aware of the pendency of the suit No PHC/1123/96 nor was he put on notice of it. The evidence adduced in suit No. PHC/1123/96 has nothing in it to satisfy the Court that the Chief Oganco mentioned therein as 3rd defendant, bore another name by or as Chief Christopher Okonkwo. It cannot therefore be concluded that the Chief Oganco (3rd defendant) in PHC/1123/96 is the same person as the Chief Okonkwo who the respondent referred to in PHC/2168/10 and who sold the land in dispute to him. With no such nexus linking the 3rd defendant in PHC/1123/96 with Chief Okonkwo (respondents vendor) there cannot be a privity between them.
There is undoubtedly paucity of evidence in substantiation of appellants pleadings. The learned trial Court having therefore decried the lack of evidence to prove the assertions by the appellants, rightly denied them of the benefits or cover of the legal/equitable doctrines of lis pendens, nemo dat quod non habet and quic quid solo, solo cedit etc
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sought by the said appellants to render void the sale of land by Chief Christopher Okonkwo to the respondent. The respondent in the event cannot be said to have had any form of notice of any prior interest in the land or even that it was a subject of litigation in suit No. PHC/1123/96.
I am on the whole saying that the learned trial Judge was right in law and on the facts when he held that the defendant (respondent) was a bona fide purchaser for value without notice. Issue 2 (two) is accordingly resolved in favour of the respondent and against the appellants.
ISSUE (THREE)
Assuming, without conceding, that the trial Court had jurisdiction to hear and determine this case, was the learned trial Judge right in law when he admitted and relied on Exhibit 006 as the defendants root of title without further evidence.
Appellants contention herein is that Exhibit 006 being an unregistered Deed of Conveyance, the Court cannot rely on it as evidence of title to land as such would be illegal. See Igbudu vs. Alamanjo (2007) All FWLR Pt. 372, pg. 1876, 1888-1889; and Timothy vs. Oforka (2008) All FWLR Pt. 413, pg. 1370 at 1382. Appellant
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submitted again that a party who bought a property while it is the subject of litigation and with notice of the existence of prior title, does not have any equitable interest since he has no clean hand. He contended that the learned trial Judge did not admit Exhibit 006 and did not use it as evidence of sale and purchase of land as that was not in issue, but as a root of title and as grounding a bona fide title for value without notice. In urging that the issue be resolved in favour of the appellants, he added that the learned trial Judge was in error admitting and relying on Exhibit 006 as evidence of title.
The respondent in the converse submitted that the respondent pleaded the unregistered Deed of Conveyance between his vendor Chief Christopher Okonkwo as a receipt of payment for the land. Respondent submitted that in view of the equitable doctrines relied on by the appellant in executing their cause, they cannot be heard to blame the trial Court for relying on Exhibit 006 as the respondents root of title. He submitted that the appellants did not object to the tendering of the document as a receipt. Respondent thus urged on us to answer issue 3
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(three) in the affirmative, in favour of the respondent and against the appellants.
RESOLUTION OF ISSUE (THREE)
It has earlier been settled in this judgment that the learned trial Judge had jurisdiction to hear and determine suit No. PHC/2168/10 now under appeal, and so there is no room for further assumption of same. The question that therefore calls for determination under this issue is whether the learned trial Judge was right to admit and rely on Exhibit 006 as the respondents root of title.
At paragraph 2 of the Statement of Defence and Counter Claim copied at page 509 of the record of appeal, the respondent pleaded inter alia that:
. The unregistered Deed of Conveyance between the defendant and Chief Christopher Okonkwo dated 2001 shall be relied upon as a receipt of payment.
In line with the foregoing and in the course of evidence the Deed of Conveyance was tendered by the respondent and admitted as Exhibit 006 with no objection from the appellant. By the provisions of Section 20 of the Land Instruments (Preparation and Registration) Laws of Rivers State (Cap 74, Laws of Rivers State of Nigeria), 1999, Exhibit
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006 being an unregistered deed is not admissible in evidence as proof of title. Albeit, it may be admissible as evidence of transaction of sale and purchase of land. Thus, its admissibility in Court is merely as a receipt of payment for land. See Ali vs. Ugwu (2012) All FWLR Pt. 619, pg. 1078; and Okoye vs. Dumez (1985) 1 NWLR Pt. 4, pg. 783.
I see nothing on record to suggest that the learned trial Judge relied on Exhibit 006 as the respondents root of title and without more. On the contrary the trial Court relied on it as proof of payment by the respondent to his vendor Chief Christopher Okonkwo. That is it for Exhibit 006. However, there is evidence that the respondent while in exclusive possession of the land erected thereon a two-storey building over a period of time. Even the appellant pleaded and bore evidence to the effect that certain persons affronted the Court and continued to build on the land during the pendency of suit No. PHC/1123/96. This unchallenged presence of the respondent on the land in dispute, which in turn tantamount to possession, as well as the failed doctrines of lis pendens, estoppel, nemo dat quod non habet etc. relied
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upon by the appellant, all weighed in the mind of the learned trial Judge before he came to the unequivocal conclusion that the respondent satisfied the burden of proof of ownership of the land in dispute. The appellant can therefore not be heard to say that the trial Court merely relied on Exhibit 006 in arriving at its conclusion. Nay, he relied on Exhibit 006 for what it is, a receipt of payment for the land. Issue 3 (three) is accordingly resolved in favour of the respondent and against the appellant.
ISSUE (FOUR)
Did the learned trial Judge not err in law when he held that the doctrine of lispendis (sic) failed and the legal maxim of quic quid plantatur solo, solo cedit will not apply to grant possession to the claimant and defeat the claim of possession and lengthy possession by the defendant/counter claimant?
The learned counsel for the appellant submitted that the attempt of the respondent to claim that the appellant did not prove that Chief Okonkwo of Ogamco International was not Chief Ogamco, seemed more like a legal quibbling and seeking to hide under the cloak of technicality. That such technical tactics should not avail him being
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one on a piece of land that is clearly identifiable and identified. More so as a search with the Corporate Affairs Commission has revealed that behind the corporate veil of Ogamco International Limited is Chief Christopher Okonkwo. See Exhibit CA-A. The appellants reasons for arguing that the doctrine of lis pendens is applicable to this case are as follows:
a) The land sold to the defendant by Chief Okonkwo (Chief Ogamco) or any person for that matter derived its root from Mr. Friday Onukem who had no title to pass as was held in PHC/1123/96 and was sold to the defendant during the course of the suit.
b) The learned trial Judge rightly, with respect, found and held that lis pendens means when litigation is pending.
c) Assuming, without conceding, that the Chief Okonkwo, defendants vendor, did not know of the suit in which his own vendors title was being challenged, he could not found his title on a person who had no title for nemo dat quod non habet and legal title cannot be found (sic) no title. This is more so when he conveyed to him in clear anticipation of dispute, assuming that the sale was not well after the action
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had been filed. The Court can see through the attempt to backdate the sale of land to Chief Okonkwo as recited in the defendants deed of conveyance. The nemo dat quod non habet rule is an ab initio rule rendering purchase of an apparently bogus title incapable of equitable relief. See Solomon vs. Mogaji (1982) 3 FNR 315, 333 per Eso, JSC.
d) The claimants having obtained a valid judgment of a competent Court has a title that is good against the whole world particularly the parties and their privies unless overturned by a superior Court and can found a claim for possession on it.
e) The learned trial Judge had earlier found that the defendant erected the building for over two years and over two years cannot be said to amount to long possession to defeat the claim of the claimants who has a judgment declaring title in his favour.
Appellant finally urged that we resolve issue 4 (four) in their favour.
In response the respondent canvassed that every extraneous argument with regard to Chief Christopher Okonkwo being a party to suit No. PHC/1123/96 will be contrary to Section 128 of the Evidence Act, 2011.
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Appellants final submission herein is that the trial Court did not err as there exist overwhelming body of evidence to support the findings, and that the appellants failed to discharge the burden placed on them.
RESOLUTION OF ISSUE (FOUR)
Considering my findings in issue 2 (two) above, it is obvious that issue 4 (four) has been determined to a substantial extent. In dealing with the doctrine of lis pendens etc., the learned trial Judge had this to say and rightly too:
The claimant pleaded and argued the doctrine of lis pendens as to defeat the counter claim. The phrase lis pendens means, when litigation is pending. To be caught by this phrase on the doctrine of lis pendens, the person making the document to purchase the property must be truly aware that litigation is pending. In the instant case, the vendor to the Defendant, Chief Christopher Okonkwo was not a party in the pending litigation in suit No. PHC/1123/96 and as that time the present Defendant acquired the land upon which he erected the structure, there was no actual or constructive notice of a pending litigation, to defendant/counter-claimants knowledge that, his vendor was a
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party in a suit. I also find as fact that the Defendant/Counter-Claimant did not buy a land that was in litigation in suit No. PHC/1123/96 as the claimant in his originating processes, in this suit was for a claim for possession of a vacant land, while the land now being disputed is land upon which a two storey building was erected by the Defendant/Counter-Claimant. The doctrine of lis pendens fails and the legal maxim of quic quid plantatur solo, solo, cedit will not apply to grant possession to the Claimant and defeat the claim of ownership and lengthy possession by the defendant/counter claimant. (See page 870 of the record of appeal).
The foregoing findings of facts as made by the learned trial Judge, are borne out of the pleadings and evidence placed before the Court by the parties. The facts are unimpeachable as they are insurmountable. The attempts by the appellants to link Chief Christopher Okonkwo to the Chief Oganco in suit No. PHC/1123/96 cannot be allowed, not even in the face of the extraneous Exhibit CA-A which did not form part of the evidence before the trial Court either in suit No. PHC/1123/96 or suit No. PHC/2168/10 under
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appeal. (See pages 339356). Exhibit CA-A or the purported result of search at the Corporate Affairs Commission, being a fresh issue or evidence before this Court, is totally inadmissible and belated in coming since its introduction herein is without the leave of this Court. To all intents and purposes, the parties whom the appellants proceeded against as 1st, 2nd and 3rd defendants respectively, in suit NO. PHC/1123/96 and as earlier stated, remain Mr. Humphrey O. Chukwu, Mr. Friday Onukem and Oganco (Nig.) Ltd. (Chief Oganco). There was no party like Chief Christopher Okonkwo at the trial Court. There was even no attempt by the appellant to establish a link or privy of any of the defendants with Chief Christopher Okonkwo. Thus, to allow the appellants smuggle in Chief Christopher Okonkwo or any evidence to that effect at this point or through the backdoor will indeed offend the provisions of Section 128 (1) of the Evidence Act, 2011 which for purposes of clarity is reproduced hereunder:
When a judgment of a Court or any other judicial or official proceeding, has been reduced to the form of a document or series of documents, no
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evidence may be given of the judgment or proceeding except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
As it is in my findings, the doctrine of lis pendens and the concomitant doctrines of nemo dat quod non habet, quic quid plantatur, solo, solo, cedit etc. are inapplicable herein. The learned trial Judge in this vein was right in law when he refused to grant possession to the appellant and thereby defeat the claim of lengthy possession by the defendant/counter claimant (respondent). Issue 4 (four) is thus resolved in favour of the respondent and against the appellant.
ISSUE (FIVE)
Is the judgment in this case not against the weight of evidence?
I need not dissipate much energy or time on this issue. Considering my reasoning so far, it is without doubt that this question which is duly subsumed in the preceding issues, is obviously answered in the negative. This is to say that the judgment of the lower Court in PHC/2168/10 is not against
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the weight of the evidence adduced before the learned trial Judge. Issue 5 (five) is in this vein resolved in favour of the respondent and against the appellant.
With all the 5 (five) issues raised for determination duly resolved in favour of the respondent and against the appellant, it follows that this appeal has hit its Waterloo. The appeal lacks merit and is therefore dismissed. The implication is that the judgment of the Rivers State High Court per. Hon. justice S. H. Aprioku, J., in suit No. PHC/2168/2010 delivered on 1st November, 2012, is hereby affirmed.
Parties to bear their respective costs borne in pursuance and or defence of this appeal.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother CORDELIA IFEOMA JOMBO OFO, JCA. I agree with the reasoning and conclusion reached therein. I too hold that the appeal lacks merit and I dismiss it. I also abide by all consequential orders reached that this appeal be struck out for want of jurisdiction. I
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have nothing to add. I also abide by all the consequential orders as contained in the lead Judgment.
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Appearances:
C.A.J Chinwo, Esq. with him, C.C Anosike, Esq. and S. Udesi, Esq.For Appellant(s)
O.T.K.D Amachree, Esq. with him, T. I. Graham-Douglas, Esq.For Respondent(s)
>
Appearances
C.A.J Chinwo, Esq. with him, C.C Anosike, Esq. and S. Udesi, Esq.For Appellant
AND
O.T.K.D Amachree, Esq. with him, T. I. Graham-Douglas, Esq.For Respondent