3PLR – ALHAJI MUKAILA OLAYINKA AKINSAYA V. ATT-GEN OF FEDERATION AND MINISTER OF JUSTICE & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI MUKAILA OLAYINKA AKINSAYA

V.

ATT-GEN OF FEDERATION AND MINISTER OF JUSTICE & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 30TH DAY OF APRIL, 2012

CA/L/950/2009 (CONSOLIDATED)

3PLR/2012/11(CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

KUMAI BAYANG AKAAHS, JCA

JOHN INYANG OKORO, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

BETWEEN

ALHAJI MUKAILA OLAYINKA AKINSAYA – CA/L/950/2009

AND

ALHAJI MUSKAILA O. AKINSANYA – LD/4611/95 Appellants

AND

1. ATT-GEN OF FEDERATION AND MINISTER OF JUSTICE
2. THE REGISTRAR OF TITLES LAGOS STATE
3. CHIEF E. I. IJEWERE
4. EBAKO & COMPANY – CA/L/950/2009

AND

1.       EBAKO & COMPANY LIMITED

2. CHIEF E.I. IJEWERE – LD/4611/95 – Respondents

 

APPEARANCES

1. B. Kasunmu – For Appellant

 

AND

1. E. Mbagwu with C. E. Andy – Eke (Mrs.) – for 3rd and 4th Respondents

   1st & 2nd Respondents – absent and not represented. – For Respondent

 

CONNECTED AREAS OF PRACTICE

1. Real Estate Law
2. Litigation

 

MAIN ISSUES

 

 

LAND LAW– whether the transferee’s title is free from any encumbrance where there is a lis pendens- whether a man who stands by and allows his battle to be fought for him in a given suit by his vendor, can turn round and claim that the judgment obtained against his vendor in the said suit does not bind him

 

 

PRACTICE AND PROCEDURE– INTERPRETATION OF STATUTES- “Section 53 of the Registration of Titles Law of Lagos

—————————–

 

1. LAND LAW – LIS PENDENS: Rule of lis pendens

“Where there is a lis pendens, the transferee’s title is not free from any encumbrance and where subsequently the transferor’s title is declared defective, the transferee cannot lay claim to the defective title simply because same had been registered. In such a case the successful party would be entitled to bring an action for rectification of the register. The purchaser cannot in the eyes of the law be deemed a purchaser for value. See: Attorney- General of the Federation v. C. O. Sode (1990) 1 NWLR (Pt. 128) 500 See also: Olori Motors Co. Ltd. & 2 Ors v. Union Bank of Nig. Plc (2006) 10 NWLR (pt. 586; Enekwe v. I.M.B (Nig.) Ltd (2006) 19 NWLR (pt. 1013) 146 as at the time Suit No. FHC/L/94/79 was instituted.” Per AKAAHS, J.C.A. (P.18, Paras.C-F)

 

2. ACTION – PARTY: Who is referred to as a party when an issue on res judicata arises

“It is well settled that a man who stands by and allows his battle to be fought for him in a given suit by his vendor, cannot turn round and claim that the judgment obtained against his vendor in the said suit does not bind him. As such, he is by virtue of that judgment barred from relitigating the matter, irrespective of whether he purchased the land in dispute from the said vendor before or after the suit was commenced. See: Adaran Ogundiani v O.A.L. Araba (1978) All NLR 165 at 183 – 184 per Idigbe JSC, where he said: – “Chief Williams learned counsel for the appellants has, however, argued with considerable force, on the issue of estoppels that a purchaser cannot be estopped by a decision or judgment in an action, touching the vendor’s title, which was commenced after the purchase (from the vendor) unless he was a party to the action; in the case in hand, Ashiru conveyed to the appellant in January 1966, but the judgment relied upon in support of the doctrine of estoppels by “standing by” was delivered on 6th May, 1974 and based on Suit HCJ/16/71 commenced on the 6th day of July 1971.” Per AKAAHS, J.C.A. (Pp.14-15, Paras.C-A)

 

3. ACTION – PARTY: Exception to the rule that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him in his absence

“Although the general rule is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence, this general rule admits of two exceptions, one is that a person who is in privity with the parties, a “party” as he is called is bound equally with the parties, in which case, he is estopped by res judicata; the other is that a person may have acted as from precluding himself from challenging the judgment in which case he is estopped by his conduct. See: Ekpoke & Anor v. Usilo & Ors. (1978) 6-7 SC (Reprint Edition 127 at 139) per Obaseki, JSC.” Per AKAAHS, J.C.A. (P.16, Paras.C-F)

 

4. INTERPRETATION OF STATUTE – SECTION 53 OF THE REGISTRATION OF TITLES LAW OF LAGOS STATE: Interpretation of Registration of Titles Law Cap 166 Laws of Lagos State

“Section 53 of the Registration of Titles Law of Lagos State provides as follows: “(1) Registration of any person as owner of any land, lease or charge, consequent on a forged disposition or any disposition which if unregistered, would be absolutely void confers no estate on such registered owner (2) Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such registered owner.” The reliance on Section 53 in arguing that the title of the Appellant has been registered is oblivious of the fact that there was a lis pendens when the purported title was registered.” Per AKAAHS, J.C.A. (P.17, Paras.A-E)

 

MAIN JUDGMENT

KUMAI BAYANG AKAAHS, J.C.A (Delivering the Leading Judgment):

This appeal is against the judgment of Alabi CJ in consolidated Suits M/620/93 and LD/4611/95 delivered on the 26th June 2009.

The Appellant was claimant in Suit M/620/93 and the Respondents were the Defendants, while in Suit LD/4611/93 the Appellant was the Defendant and the Respondents were the Claimants. The suits were tried on M/620/93.

The claim relates to the property situate at No. 69, Balogun Street, Lagos which was formerly owned by Ebaco & Co (the Claimants in Suit No. LD/4611/95. The said property was the subject matter of a forfeiture order made by the Federal Government after which the Federal Government divested its interest to the appellant who registered it under title no LO2593. Mr. E. I. Ijewere (a shareholder of Ebaco & Co – one of the Respondents) instituted an action against the Federal Government at the Federal High Court in Suit No. FHC/L/94/79 challenging the forfeiture of the said property and succeeded against the Federal Government. Thereafter the Federal Government promulgated a Decree returning the property to Ebaco & Co. (the claimants in Suit No. LD/4611/95). Both parties made competing claims to the property.

 

The Suit was tried on the pleadings filed by the Appellant as plaintiff dated 19th March, 2003 (see pages 3-6 of the Record of Appeal) and the Amended Statement of Defence and Counter – Claim of the 3rd & 4th Respondents dated 25th February 2004 which was further amended with the leave of the Court on 14th October, 2008 (See pages 23 – 28 of the Record of Appeal).

 

During the trial, the appellant called two witnesses but did not testify himself. The 1st and 2nd Respondents did not participate in the trial and therefore did not call any witnesses on their part. The 3rd and 4th Respondents however called two witnesses; DW1 was the appellant who gave evidence for the 3rd and 4th Respondents under subpoena while DW2 was the 3rd Respondent. Thereafter the Court ordered the parties to file written addresses. The appellant as well as 3rd and 4th respondents complied with the directive.

 

In his judgment dated 26th June, 2009 the learned trial Chief Judge dismissed the Appellant’s claims and granted the 3rd and 4th Respondents’ counter – claim (See pages 219 – 239 of the Record).

 

Being dissatisfied with the said decision, the Appellant filed an appeal against the said judgment.

 

The Notice of Appeal dated 17th September, 2009 contained 5 grounds of appeal (See pages 240 – 246 of the Records) from which learned Senior Counsel formulated the following 5 issues for determination:

 

1. Whether the lower court was right in holding that the Claimant/ Appellant in Suit No. M/620/93 is estopped by the judgment in Suit No. FHC/L/94/79 at the Federal High Court from bringing the present action.

 

2. Whether the Appellant’s registration of his Title at the Lands Registry does not entitle the Appellant to the protection of subsequent purchaser for value from a registered owner as stipulated in S. 53(2) of the Registration of Title Law.

 

3. Whether the Federal Government had any title to pass on to Ebako and Company Limited having regard to the fact that at the time the Federal Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree 1993 it had already divested itself of its title in the said property.

 

4. Whether there should be any dissimilarity in the judgment a Trial Judge read out in open court and the one signed by him.

 

5. Which of the two judgments dated the 26th of June 2009, delivered by the court is the judgment of court that is binding on the parties.

 

Learned Counsel for the 3rd and 4th Respondents distilled three issues for determination. They are: –

 

1. Whether the learned trial Judge was right to hold that the Appellant was bound by the judgment of the Federal High Court in Suit No. FHC/L/94/79 and was thereby estoppel from litigating the cause or matter in Suit No. M/620/93 herein.

 

2. Whether from the facts established before the trial court, the Appellant was able to prove a valid and/or better title to the property at 69 Balogun Street, Lagos, than that of the 4th Respondent thereto.

 

3. The question as to what constitutes the legally recognised judgment of the trial court in the Suit therein.

 

The main thrust of this appeal is incapsulated in Issue 1 of the Appellant’s as well as 3rd and 4th Respondents’ briefs. Learned Senior Counsel for the appellant argued that for the invocation of the principles of Res Judicata and issue estoppels to bar the appellant from litigating the case to apply, it must be shown that the appellant is a privy of the Federal Government of Nigeria. He cited the case of Coker & Anor v. Sanyaolu (1976) NSCC 566 at 575 where Idigbe JSC set out three classes of Privies for the applicability of the doctrine of res judicata or estoppels which are:

 

(a)     Privies in blood (as ancestor and heir)

 

(b)     Privies in law (as testator and executor, intestate and Administrator); and

 

(c)     Privies in Estate (as vendor and purchaser; lessor and lessee).

 

While conceding that the appellant is a privy in estate, he argued that a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase. Reliance was placed on the Supreme Court case of Talabi v. Adeseye (1972) NSCC 498 where Coker JSC held at page 508 that:

 

“A prior purchaser of land cannot be estopped as being privy in estate by a judgment obtained in an action against the vendor commenced after the purchase.

 

(See per Romer J. in Mercantile Investment and General Trust Company v. River Plate Trust Loan and Agency Company (1984) 1 Ch. D. 578 at 595). In Spencer – Bower on Res Judicata (Second Edition) at p.210, the following statement of the law appears:

 

“Where privity of estate is set up as the foundation of estoppels per rem judicata, the title relied on to establish such privity must have arisen after the judgment on which the res judicata is based, or at least after the commencement of the proceedings in the court of which that judgment was given”

 

He said the judgment sought to be relied upon was delivered on the 25th day of May, 1995 while the Suit itself was filed on 8th November, 1979 and the property in dispute which the Appellant purchased on 8th June, 1979 was formally transferred to the Appellant by his predecessor in title on 21st September, 1979 by way of Deed of Transfer. He therefore concluded that the appellant, being a prior purchaser of the property well before the institution of the Suit whose judgment is sought to be relied upon as creating estoppels against the appellant, cannot be said to be a privy in estate to the Federal Military Government for the purpose of the applicability of the doctrines of Res judicata and issue estopper and urged this Court to so hold.

 

The argument of learned Senior Counsel for the appellant appears formidable which on the face of it cannot be faulted. However learned counsel for the 3rd and 4th Respondents invoked the doctrine of estoppels of “standing by” and argued that the appellant was aware of the proceedings in Suit No. FHC/L/94/79 but deliberately chose to stand by and allow his vendor, the 1st respondent herein to fight his battle. He said this fact was clearly pleaded by the 3rd and 4th respondents in paragraph 13 of their Further Amended Statement of Defence and given in evidence by the 3rd respondent and the appellant confirmed the said fact while giving evidence under subpoena. He went further to argue that the Appellant’s title to the property in dispute arose after the commencement of the proceedings before the Federal High Court in Suit NO. FHC/L/94/79 which culminated in the judgment, Exhibit D13.

 

In paragraph 13 of the Further Amended Statement of Defence and Counter-Claim of the 3rd and 4th Respondents dated 14th October, 2008, the Defendants/Counter-Claimants pleaded as follows: –

 

“13.   The 3rd and 4th Defendants will contend that the Plaintiff knew about Suit No. FHC/L/94/79 at the Federal High Court, Lagos Division and allowed the Federal Military Government (his purported vendor) to fight the matter on his behalf. The Defendants will rely on the following documents at the trial showing that the Plaintiff was cognisant of the proceedings at the Federal High Court, Lagos:

 

(a)     Certified True Copy of the Plaintiff’s Statement of Defence dated 13/1/94 in Suit LD/3386/93 whereby the Plaintiff then relied on the record of Proceedings of Suit No. FHC/L/94/79.

 

(b)     Certified true Copy of Plaintiffs affidavit dated 18th September, 1995 where he admitted service of the Federal High Court Judgment and Order on himself.”

 

The 3rd Respondent, a director and shareholder in the 4th respondent’s company testified as DW2 (See pages 166-182 of the Record). He was led in evidence in-chief on his petition to the Federal Government complaining about the error in the Decree in which the property at No. 69 Balogun Street was forfeited to the Federal Government in which the Federal Government replied that they will look into it and he said: –

 

“Yes they set up a tribunal of inquiry to look into the petition and this culminated in a new Decree issued by the Military Government reversing their earlier decision.”

 

The following questions and answers ensued between Mr. Mbagwu who was leading the 3rd Respondent in evidence: –

 

“Mr. Mbagwu – To what effect?

 

Answer – Returning the properties to EBAKO & Co. and asking that all the … and getting it all registered back to the original owners.

 

Mr. Mbagwu – So why did the Government return the properties back to EBAKO & Co.?

 

Answer: Because they discovered that they based their earlier Decree on wrong information.

 

Mr. Mbagwu: Take a look at Exhibit P12, is that the Gazette through which the Federal Government returned the properties to you?

 

Answer: Yes this was the 2nd Decree.

 

Mr. Mbagwu: Now the suit you filed against the Federal Government at the Federal High Court, which culminated in the judgment Exhibit D13, was the Plaintiff in this Suit aware of that suit while it was pending before the Federal High court?

 

Answer: Yes he was, because we informed him about it, the counsel deliberately went and got informed about it.

 

Mr. Mbagwu: Did he do anything to join that suit or participate in that suit?
Answer: Not to my knowledge. I don’t think he did.

 

Mr. Mbagwu: After you got the judgment, was the Plaintiff made aware of the judgment as well?

 

Answer: Yes a copy of the judgment was also given to him as well (see pages 171-172 of the Records).”

 

The Plaintiff/Appellant was subpoenaed to testify as DW1 for the 3rd and 4th Defendants/Respondents. His evidence covers from pages 142-163 of the Records. In the course of his testimony the Certified True Copy of Statement of Defence in Suit No. LD/3386/93 – Chief E.I. Ijewere & Ebako and Company Limited v. Alhaji Mukaila Olayinka Akinsanya was admitted in evidence and marked Exhibit DII.

 

In the evidence of Olatunji Adeyemi (PW2) at page III of the record he produced a certified true copy of the register of the land and after stating the processes to be undertaken before an applicant can be registered in the proprietorship register which the Plaintiff undertook before he submitted his interest for registration on 19th March, 1980 but the Deed of Transfer was made on 12th September, 1979. Learned counsel submitted that as at the date the Title of the Appellant was registered, the matter was already in court.

 

I am in complete agreement with the submissions of learned counsel for the 3rd and 4th respondents that the Appellant is bound by the judgment in Suit No. FHC/L/94/79. Learned Senior Counsel for the Appellant has chosen to overlook the fact that for purposes of res judiciata a “party” does not only mean a person named as such in the proceedings in question, but also one who being aware of a matter in which he has interest at stake, allows his battle to be fought by another intending (or deemed to intend) to take benefit of his championship in the event of success. It is well settled that a man who stands by and allows his battle to be fought for him in a given suit by his vendor, cannot turn round and claim that the judgment obtained against his vendor in the said suit does not bind him. As such, he is by virtue of that judgment barred from relitigating the matter, irrespective of whether he purchased the land in dispute from the said vendor before or after the suit was commenced. See: Adaran Ogundiani v O.A.L. Araba (1978) All NLR 165 at 183 – 184 per Idigbe JSC, where he said: –
“Chief Williams learned counsel for the appellants has, however, argued with considerable force, on the issue of estoppels that a purchaser cannot be estopped by a decision or judgment in an action, touching the vendor’s title, which was commenced after the purchase (from the vendor) unless he was a party to the action; in the case in hand, Ashiru conveyed to the appellant in January 1966, but the judgment relied upon in support of the doctrine of estoppels by “standing by” was delivered on 6th May, 1974 and based on Suit HCJ/16/71 commenced on the 6th day of July 1971.
…………
…………

The doctrine of estoppels by “standing by” is, however, founded on justice and common sense and it applies where it will be against justice and common sense to allow a person who stood by and watched another fight his own battle intending for in circumstances where inference can reasonably be drawn that he so intended) to take the benefit of the championship in the event of success. One way of looking at the facts in these proceedings lies in trying to get a just and proper answer to this question: who would have taken the benefit of the decision of Olu Ayoola J in HCJ/16/71 had Ashiru succeeded? Certainly, it was not Ashiru who many years before the commencement of the proceedings ‘purported to’ have, and believed that he had, transferred the legal estate in the disputed property; undoubtedly, it was Ogundiani (the appellant) who stood to gain. As stated by Coussey J.A. in a case in which the facts are, substantially, not dissimilar ‘they (i.e. in those proceedings, the appellant) cannot now be heard to complain that they (i.e. Appellants in that case) were not parties (in the previous suit)’ – (Coussey J.A. in Esiaka & Other v. Obiasogwu & Others (1952) 14 WACA 178 at 180 – 1, See also G.B. Amancio Santos v Ikosi Industries Ltd & Epe Native Administration (1942) 8 WACA 29 particularly at 34 and 35″

 

The same scenario has been replicated in this case. From the evidence of the 3rd respondent, the appellant was kept abreast of the proceedings in FHC/L/94/79 and yet he did nothing. It was not until the Federal Military Government decided to right an apparent wrong it had committed against the interest of the 3rd and 4th respondents and after the valid judgment in FHC/L/94/79 had been entered against the Federal Military Government (the appellant’s vendor) that the appellant woke up from his slumber to institute Suit M/620/93.

 

The Appellant by his conduct is clearly estopped by Exhibit D13 from relitigating the cause and issues in M/620/93. Although the general rule is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence, this general rule admits of two exceptions, one is that a person who is in privity with the parties, a “party” as he is called is bound equally with the parties, in which case, he is estopped by res judicata; the other is that a person may have acted as from precluding himself from challenging the judgment in which case he is estopped by his conduct. See: Ekpoke & Anor v. Usilo & Ors. (1978) 6-7 SC (Reprint Edition 127 at 139) per Obaseki, JSC.

 

Learned Senior Counsel for the appellant relying on Section 53 of the Registration of Titles argued that the Appellant’s title is registered under the Registration of Titles Law Cap 166 Laws of Lagos State which gives statutory protection to the claimant even if he had a defect in the title of his predecessor in title. He said that this Section was considered by the Supreme Court in Yesufu & Anor v. Ojo & Others (1958) NSCC 99.

 

Section 53 of the Registration of Titles Law of Lagos State provides as follows:

 

“(1)   Registration of any person as owner of any land, lease or charge, consequent on a forged disposition or any disposition which if unregistered, would be absolutely void confers no estate on such registered owner

 

(2)     Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such registered owner.”

 

The reliance on Section 53 in arguing that the title of the Appellant has been registered is oblivious of the fact that there was a lis pendens when the purported title was registered. The Appellant’s title to the property in dispute arose after the commencement of the proceedings before the Federal High Court in Suit FHC/L/94/79 which culminated in Exhibit D13. The suit was filed on 8th November, 1979 while the Appellant’s interest and/or title was submitted on 19th March, 1980 and was registered at the Lagos Land Registry on 21st March, 1980 as shown in Exhibit P8. The transfer of interest could not have been considered as completed until on 21st March, L980 by which time the 3rd and 4th Respondents had instituted action in Suit FHC/L/94/79. At the time the suit was instituted title to the property was still vested in the Federal Military Government for Section 28(2) of the Registration of Titles Law provides that –
“The transfer shall be completed by registration of the transferee as owner of the land or charge transferred, and filing the transfer in the registry; but until such registration the transferor shall remain the registered owner of the land or charge.”

 

Where there is a lis pendens, the transferee’s title is not free from any encumbrance and where subsequently the transferor’s title is declared defective, the transferee cannot lay claim to the defective title simply because same had been registered. In such a case the successful party would be entitled to bring an action for rectification of the register. The purchaser cannot in the eyes of the law be deemed a purchaser for value. See: Attorney-General of the Federation v. C. O. Sode (1990) 1 NWLR (Pt. 128) 500 See also: Olori Motors Co. Ltd. & 2 Ors v. Union Bank of Nig. Plc (2006) 10 NWLR (pt. 586; Enekwe v. I.M.B (Nig.) Ltd (2006) 19 NWLR (pt. 1013) 146 as at the time Suit No. FHC/L/94/79 was instituted; the Appellant could not exercise any statutory power over the property and so could not invoke Section 53 of the Registration of Title Law of Lagos State to protect his interest.

 

Learned Senior Counsel made a heavy weather of the judgment which was delivered on 26th June, 2009; hence he challenged the version contained in the record of appeal. I wish to say straight away that this is a storm in a tea cup. The reliefs which the 3rd anal 4th Respondents claimed in the Further Amended Statement of defence and counter-claim dated 14th October 2008 were:

 

“(a)    A declaration that under and by virtue of Decree 54 of 1993 and the judgment of the Federal High Court, Lagos in Suit No. FHC/L/94/79 Coram Odunowo, J. the defendant no title/interest whatsoever in the property situate at No. 69 Balogun Street, Lagos.

 

(b)     An order that by virtue of the said Decree and judgment, the Plaintiffs were entitled to possession of No 69 Balogun Street Lagos

 

(c)     An. order that the Defendant vacate and deliver up possession of No. 69 Balogun Street, Lagos to the Plaintiffs forthwith.

 

(d)     An order of perpetual injunction restraining the Defendant, his agents, privies, servants or whosoever from interfering with the Plaintiffs’ interest on No 69 Balogun Street, Lagos

 

(e)     An order setting aside the Registration of the property at 69, Balogun Street, Lagos in the name of the Defendant at the Land Registry, Alausa, Ikeja Lagos.”

 

These are the reliefs granted in the judgment which learned senior counsel says are not contained in the judgment delivered on 26th June, 2009.

 

Although the learned trial Chief Judge did not react to the motion challenging the judgment since he has retired and no longer in service, of which I have taken judicial notice, I venture to say that in the delivery of judgment in open court, a fudge is not expected to pronounce on every word, phrase or sentence before the said judgment becomes valid. He merely needs to highlight some aspects of the judgment. I find myself unable to agree that the learned trial Chief Judge did actually dismiss the counter – claim after holding that registration of any document pursuant to the Registration of Titles Law of Lagos State does not cure any defect in any such document. The reliefs claimed in Suit No. FHC/L/94/79 at the Federal High Court were:-

 

1. A declaration that the purported taking over of the properties belonging to the 3rd Defendant Company by the Federal Military Government as well as the 3rd Defendant company, is illegal, wrongly and ultra vires the Articles of Association of the said 3rd Defendant Company.

 

2. A declaration that the following properties belong to and are vested in the 3rd Defendant Company i.e.

 

(a)     59 Balogun Street, Lagos State

(b)     69 Balogun Street, Lagos State

(c)     Plot 108, Victoria Island, Lagos

(d)     58/66, Calcutta Crescent Apapa, and

(e)     15 – 17 Maduike Street, S.W. Ikoyi.

 

3. A perpetual injunction restraining the 2nd Defendant from unlawfully taking over or meddling with the affairs of the 3rd Defendant Company”

 

So apart from item (b) in relief 2 wherein the 3rd Defendant (4th Respondent in the present suit) asked for a declaration that No. 69 Balogun Street Lagos belonged to and is vested in the 3rd Defendant Company, there is no other relief in the Counter – Claim which the learned trial Chief fudge could have said had already been re-litigated upon.

 

If in fact the judgment was altered as learned senior counsel has alleged, the police should have been called in to investigate to find out if the handwritten script of the judgment was different from the transcript of the recorded proceedings and also ensure that there was no interference with the tapes of the said recorded Proceedings.

 

I find that this appeal is completely devoid of merit and it is accordingly dismissed.

 

I award N50,000.00 as costs against the appellant in favour of the 3rd and 4th respondents.

JOHN INYANG OKORO, J.C.A.:

 

I read in draft the lead Judgment of my learned brother, Akaahs, JCA just delivered. I agree with the reasoning leading to the conclusion that this appeal is devoid of merit and ought to be dismissed. My learned brother has exhaustively resolved all the issues submitted for the determination of this appeal. I adopt both his reasoning and conclusion as mine. I abide by the order as to costs made in the lead Judgment.

1. A. DANJUMA, J.C.A.:

 

I have read in draft the lead judgment of my lord K. B. AKAAHS JCA just delivered. I adopt same in agreeing that the Appellant who had stood by and allowed his battle to be fought cannot reap the benefit of any registration of title done pendente litis an earlier suit that culminated in favour of the 3rd and 4th Respondents.

 

The Appellant was caught by the doctrine of standing by and res judicata and had no valid title superior to that of the Claimants/Respondents, (3rd and 4th Respondents as he was, in estate, a privy to the Federal Government i.e. 1st Respondent during the suit by the 3rd and 4th Respondents at trial.

 

The Allegation as to alteration of the substance of the judgment appealed from smarks of an allegation of the commission of an offence. Our criminal jurisprudence enjoins the proof of such on a level of proof beyond reasonable doubt by he that alleges. The invocation of the law for the protection of the society from criminality is a duty behoven on all good citizens, subject only to well established position of the good and reasonable or honest belief in setting the machinery of the law in motion.

 

I join in dismissing this appeal and abide the order relating to costs as made in the lead judgment.