3PLR – MAJOR S. G. IDAKWO (RTD) V. MALL. ALIYU IBRAHIM & ANOR.

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MAJOR S. G. IDAKWO (RTD)

V.

MALL. ALIYU IBRAHIM & ANOR.

 

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 12TH DAY OF JULY, 2011

CA/K/152/2003

3PLR/2011/56 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

THERSA NGOLIKA ORJI-ABADUA, JCA

JOSEPH TINE TUR, JCA

OBANDE OGBUINYA, JCA

 

BETWEEN

MAJOR S. G. IDAKWO (RTD) – Appellants

 

AND

1. MALL. ALIYU IBRAHIM

(For himself and on behalf or for the benefit of all heirs and persons entitled to inherit from late Alhaji Ibrahim Akpata)

2. MAJOR BALA LAWAL GUSAU (RTD) Respondents

 

REPRESENTATION

Mrs. J. K. Nuhu (holding brief for Prince Lanke Odogiyon) – For Appellant

AND

No representations for the respondents – For Respondent

 

MAIN ISSUES

1. EVIDENCE – BURDEN OF PROOF: Whether or not a plaintiff is expected to succeed on the strength of his case and not on the weakness of the defence

“In a common legal jargon, a plaintiff must succeed on the strength of his case and not on the weakness of the defence. see Tanko V. Echendu (supra) Nonetheless, this ancient principle of law is more appreciated in its exception rather than its rule. The rider to that rule is that where the evidence of a defendant buttresses the case of such a plaintiff, he is entitled to reap from that supportive evidence in establishing his case, see Eze Okafor V. Okeke (supra); Odunze V. Nwosu (supra); Aremu V. Adetoro (supra); Ashiru V. Olukoya (supra).” Per OBANDE OGBUINYA, J.C.A. (Pp. 55-56, paras. F-A)

 

2. LAND LAW – DOCTRINE OF LIS PENDENS: Meaning and nature of the doctrine of “Lis pendis”

“For the avoidance of doubt, the doctrine of lis pendens or pendent lite nihil innovetur, meaning, during a litigation nothing new should be introduced, is intended to prevent foisting fait accompli on a court with respect to a matter before it. On the premise of this hallowed and ageless principle, any act perpetrated or transaction, such as alienation of landed property, carried out during the pendency of any proceeding regarding the subject – matter or res in that matter will be visited with nullity or nullification by the courts. In the case of Akinkugbe V. E.H. (Nig) Ltd. (2008) 12 NWLR (Pt.1098) 375 at 397, Aderemi, JSC, confirmed that: “Judicial authorities abound that it has always been a doctrine common to all courts and the doctrine rests upon the foundation that it would plainly be impossible that any action or suit or even motion or application could be brought to a successful end if alienation pendente lit were permitted to prevail. This, in a nutshell, is a practical explanation of the doctrine of ‘lis pendens’ – which doctrine prevents the effective transfer of rights in any property, as in the instant case, which is the subject – matter of an action pending in court during the pendency in court of the action or application.” Also, see Obi V. INEC (2007) 11 NWLR (Pt.1046) 565; Amaechi V. INEC (2008) 5 NWLR (Pt.1080) 227.” Per OBANDE OGBUINYA, J.C.A. (Pp. 61-62, paras. E-D)

 

3. EVIDENCE – DOCUMENTARY EVIDENCE: Principle of law on Documentary Evidence

“In law, documentary evidence, due to the bald fact that they are permanent and incorruptible, remain the best evidence. see Agbareh V. Mimra (2009) 2 NWLR (Pt.1071) 378. Since exhibits 16 and 17 were from the appellant, I will deploy the principle of law that where the evidence of a defendant supports the case of a plaintiff, the latter can take advantage of it in proving his case, see Ezeokafor V. Okeke (supra); Ashiru V. Olukoya (supra). Besides, these evidence, to all intents and purposes, constitute admission by the appellant. By law, what is admitted need no proof even as a court is at liberty to act on it, see Minister, P. M. D. V. E.L. (Nig) Ltd. (2010) 12 NWLR (Pt.1208) 267; Jolasin v. Bamgboye (supra).” Per OBANDE OGBUINYA, J.C.A. (P. 61, paras. A-D)

 

4. EVIDENCE – ESTOPPEL: Classification of privies

“In the case of Coker V. Sanyaolu (1976) 10 NSCC 566 at 573, Idigbe, JSC classified privies in the manner following: “Privies are of three classes and they are: (1) Privies in blood (as ancestor and heirs); (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (which we think is germane to the case in hand) as vendor and purchaser, lessor and lessee”. See, also Adone v. Ikebudu (supra); Balogun v. Adeiobi (supra); Abuhukar V. B.O. & A.P. Ltd. (2007) 18 NWLR (Pt.1066) 319.” Per OBANDE OGBUINYA, J.C.A. (Pp. 41-42, paras. F-B)

 

5. CRIMINAL LAW AND PROCEDURE – FRAUD: Whether where fraud is made in issue in any proceedings, it must be pleaded with relevant particulars and evidence led thereon must be proved beyond reasonable doubt

“Incontestably, where fraud is made an issue in any proceedings, it must be pleaded with relevant particulars and evidence led thereon beyond reasonable doubt, see Olalomi Ind. Ltd. V. N.I.D.B. Ltd. (2009) 16 NWLR (Pt.1167) 266. That is to the extent I fall in with the viewpoint of the learned counsel for the appellant.” Per OBANDE OGBUINYA, J.C.A. (P. 56, paras. F-G)

 

6. APPEAL – GROUND OF APPEAL: Whether where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument the issue not so contested will be deemed conceded by the defaulting opponent

“By law, that neglect, whether intentional or inadvertent, smacks of admission of the stance of the first respondent that those grounds are deemed abandoned. This is one instance when silence is deemed as an acceptance in law. In the case of Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 at 556, the Supreme Court, per Onnoghen, JSC, held: “It is clear from the issues formulated and argued by learned senior counsel for the 1st and 2nd respondents in their brief of argument do not include argument on appellants’ said issue No. 8. It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent. I therefore, in the circumstance, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellants.” See, also, Adekeye v. Adesina (2010) 18 NWLR (Pt.1225) 449.” Per OBANDE OGBUINYA, J.C.A. (Pp. 39-40, paras. G-E)

 

7. APPEAL – GROUND OF APPEAL: Circumstances under which a ground of appeal can be rendered incompetent

“By law, a ground of appeal can only be rendered incompetent when it is totally void of any particulars either expressly or implicitly as ordained by order 6 rule 2(2) of the Rules. The requirement of this provision is amply satisfied if the particulars are outlined independently or made part and parcel of a ground of appeal. In the same case of Osasona v. Aiayi (supra), at page 546, (Uwatfu, JSC, stated: “It is therefore settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately i, not discovered through careful perusal as having been incorporated into the body of the ground of the appeal the ground of appeal will contravene the relevant rule, in the present case, is Order 3, rule 2(2) of the Court of Appeal Rules (now Order 6 rule 2(2) of the Rule). The ground will be incompetent and is liable to be struck out. See also, Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285; UBA Ltd. v. Achora (1999) 6 NWLR (Pt.156) 254.” Per OBANDE OGBUINYA, J.C.A. (Pp. 36-37, paras. G-E)

 

8. APPEAL – GROUND OF APPEAL: Whether where no issue is formulated from any ground of appeal the said ground is deemed abandoned

“In the eyes of the law, those grounds (six to nine) have unwittingly acquired the unfortunate status of being abandoned. They are moribund and impotent, waiting to be weeded out from the appeal. On this, I drum up support from the case of Adelekan V. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 49, in which Onnoghen, JSC, re-echoed this trite principle of law thus: “In the instant case, the objection is to the effect that the issues formulated by learned counsel for the appellant do not arise from the grounds of appeal. It is settled law that where no issue is formulated from any ground of appeal, the said ground is deemed abandoned. The same principle of law applies to a situation where it is found that issues formulated by an appellant do not relate to the grounds of appeal – the said grounds must be deemed abandoned since no issue(s) has/have been distilled from them and are therefore liable to be struck out. See, also, Saidu V. Mahmoud (supra).” Per OBANDE OGBUINYA, J.C.A. (P. 39, paras. B-F)

 

9. LAND LAW – IDENTIFICATION OF LAND IN DISPUTE: Duty of the plaintiff to establish the identity of the plot in dispute with precision

“Indisputably, the law makes it incumbent on the first respondent, the plaintiff in the lower court, to establish the identity of the plot in disputed with precision such that a surveyor using his evidence can draw a plan of it, else his action will fail, see Udeze V. Chidebe (supra); Iordye V. Ihyanbe (supra), Odunze v. Nwosu (supra); Orunengimo V. Egebe (2007) 15 NWLR (Pt. 1053) 630; Aremu V. Adetoro (2007) 16 NWLR (Pt.1060) 244; Okonkwo V. Okonkwo (2010) 14 NWLR (Pt.1213) 228.” Per OBANDE OGBUINYA, J.C.A. (P. 52, paras. A-C)

 

10. LAND LAW – IDENTITY OF DISPUTED LAND: Onus of proof on a plaintiff as to the identity of disputed land

“However, for a plaintiff to be saddled with this herculean burden, parties must be at odds on the identity of the disputed land. In law, the only way parties join issues on the identity of the disputed land is by the defendant making it an issue in his statement of defence. Where otherwise, it will be presumed that parties are at one or ad idem on the identity of any disputed land. In the case of Otanma V. Youdubagha (2006) 2 NWLR (Pt.964) 337 at 354, Musdapher, JSC, stated: “Although a plaintiff seeking a declaration to title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the defendant by his pleadings admitted the description location features and dimension of the land. In such a circumstance, the identity of the disputed and is not a question in issues and does not require proof.” Also, see Agundo V. Gberbo (supra), Nor V. Takkaa (supra), Ilona V. Idakwo (2003) 11 NWLR (Pt.830) 53; Ugoji V. Onukogu (2005) 16 NWLR (Pt.950) 97; Tanko V. Echendu (2010) 18 NWLR (Pt.1224) 253.” Per OBANDE OGBUINYA, J.C.A. (Pp. 52-53, paras. C-B)

 

11. LAND LAW – IDENTITY OF LAND: Whether where a defendants in a land matter counterclaims and seek the reliefs of joint ownership he cannot turn round to argue that the identity of the land was not established

“In the case of Ayanwu V. Uzowuaka (2009) 13 NWLR (Pt.1159) 445 at 476, Tabai, JSC, opined: “Furthermore it is my firm view that defendants in a land matter, as in this case, who counterclaim and therein seek the reliefs of joint ownership of the self some land and an injunction restraining the plaintiffs from doing certain things thereon without their concurrence, cannot turn round to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know. The court below was clearly in error when it raised the issue of the identity of the land in dispute when such an issue was not raised in the pleadings. Parties as well as the courts are bound by the issues raised by the parties in the pleadings.” See, also, Orunengimo V. Egebe (supra). It follows that the appellant’s counter-claim constitutes an albatross around his argument against the identity of the disputed plot.” Per OBANDE OGBUINYA, J.C.A. (Pp. 53-54, paras. G-E)

 

12. LAND LAW – NEMO DAT QUOD NON HABET: Principle of “Nemo dat quod non habet”

“on the firm footing of the ageless principle of nemo dat quod non habet, no one gives what he does not have. see Ashiru V. Olukoya (2006) 11 NWLR (Pt. 990) 1; Omiyale V. Macaulay (supra); Ilona V Idakwo (supra); Dadi V. Garba (supra), Nsiegbe V. Mgbemena (2007) 10 NWLR (Pt.1042) 364.” Per OBANDE OGBUINYA, J.C.A. (Pp. 47-48, paras. F-A)

 

13. INTERPRETATION OF STATUTE – ORDER 6 RULE 2(2) OF THE COURT OF APPEAL RULES 2011: Statutory provision of Order 6 rule 2(2) of the court of Appeal Rules, 2011

“The provision of order 6 rule 2(2) of the court of Appeal Rules, 2011 is, also, of the note and it reads: “ORDER 6 NOTICE AND GROUNDS OF CIVIL APPEALS (2)Where a ground of appeal alleges misdirection or errors in law, the particulars and the nature of the misdirection or errors shall be clearly stated.” Per OBANDE OGBUINYA, J.C.A. (P. 36, paras. A-B)

 

14. APPEAL – PARTICULARS IN A GROUND OF APPEAL: Functions and purposes of particulars vis-a-vis a ground of appeal

“For a dispassionate consideration of this objection, it is germane to understand the function of particulars vis-a-vis a ground of appeal. In the case of Osasona v. Ajayi (2004) 14 NWLR (Pt.894) 527 at 545, Uwaifo, JSC, identified their functions as follows: “Now, it should be realized that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make clear how complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the complaint in a ground of appeal but ancillary to it.” In a nutshell, the purposes of particulars are to throw light on a complaint against the judgment being challenged on appeal, indicate areas of pitfalls, itemize and project the errors or mistakes in it (the judgment).” Per OBANDE OGBUINYA, J.C.A. (P. 36, paras. B-G)

 

15. LAND LAW – REGISTRATION OF INSTRUMENT: Whether or not registration of instrument does create interest or right in land where there is none

“Besides, as already observed, registration does not create interest or right in land where there is none nor does it consolidate one that is improperly acquired. see Ashiru V. Olukoya (supra), Omiyale V. Macaulay (supra). In the case of Ayinla V. Sijuwola (1984) NSCC 301 at 311 or (1984) 1 SCNLR 410 at 422, the Supreme Court affirmed that: “Clearly between these two registered conveyances that of the respondent was first in time and took priority although the act of registration does not confer a better title. In fact registration of instruments is not concerned with the validity or authenticity of such instruments. Once the deed is registrable it will be accepted for registration even if its terms ore inconsistent with a deed in relation to the same land registered earlier.” Per OBANDE OGBUINYA, J.C.A. (Pp. 48-49, paras. E-B)

 

16. LAND LAW – SALE OF LAND: Whether where there is an agreement for sale of land either under native law and custom and purchaser makes full or part payment he is deemed to have acquired an equitable interest in the property

“The groundnorm of this aspect of sale of land was restated by the Supreme Court in Ohieri vs. Yusuf (2009) 6 NWLR Part 1137 page 207 at 224 that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representatives in favour of another person. In that regard, it must be re-echoed that he who comes to equity must come with clean hands, in that, before specific performance can be decreed in favour of a Plaintiff, he must show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to perform. The position of the law is that, if a purchaser fails to complete payment of the purchase price, the vendor can treat that as a repudiation and claim damages for breach of contract, or he may seek specific performance. It is trite that in the absence of a contrary intention, performance of the contract has to be carried out on the exact date specified in the contract, therefore, a party could treat the contract as repudiated if the other party’s performance was not completed on the fixed date, since time was “of the essence of the contract.” Per ORJI-ABADUA, J.C.A. (Pp. 63-64, paras. E-E)

 

17. LAND LAW – TITLE TO LAND: Ways of establishing title to land

“There are five recognized ways of establishing title to land in the Nigeria. These five methods trace their cradle to the case of Idundun V. Okumagba (1976) 9-10 SC 227 and they include proof: (a) by traditional evidence ; (b) by production of document of title; (c) by acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner; (d) by long possession; and (e) by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land. Needles to say that these five modes of proving title to land have been and recycled in a battery of decided cases, see Ashiru V. Olukoya (supra); Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) l; Nwokidu V. Okanu (2010) 3 NWLR (Pt.1181) 362; Madu V. Madu (2008) 6 NWLR (Pt. 1033) 296; Oyeneyin V. Akinkugbe (2010) 14 NWLR (Pt.1184) 265; Salami V. Lawal (2008) 14 NWLR (Pt.l108) 546; Jolasun V. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Odunukwe V. Ofomata (2010) 18 NWLR (Pt.1225) 404.” Per OBANDE OGBUINYA, J.C.A. (Pp. 49-50, paras. E-C)

 

18. LAND LAW – TITLE TO LAND: What a court must inquire from mode of proving title to land

“By law, this mode of proving title to land, production of document or instrument of title, is not conclusive. It carries with it, the need for a court to inquire into the following: (a) whether the document is genuine and valid; (b) whether the document has been duly executed, stamped and registered; (c) whether the grantor had the authority and capacity to make the grant; (d) whether the grantor had in fact what he purported to grant; and (e) whether it had the effect claimed by the holder of the document See, Romaine V. Romaine (1992) 4 NWLR (Pt.238) 650; Dabo V. Abdullahi (2005) 7 NWLR (Pt.923) 181; Oyeneyin V. Akinkugbe (supra); Jolasun V. Bamgboye (supra).” Per OBANDE OGBUINYA, J.C.A. (P. 50-51, paras. F-C)

 

19. LAND LAW – TITLE TO LAND: Whether or not a certificate of Occupancy is conclusive evidence of any interest or valid title to land in favour of a grantee

“In the case of Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562 at 590, Onu, JSC stated: “A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void” Consequently, where it is proved as in this case, that another person other than the grantee of a Certificate of Occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be. See Dzungwe V. Gbishe & Anor. (1955) 2 NWLR (Pt.8) 528 at 540. 2. Ogunleye V. Oni (1990) 2 NWLR (Pt.135) 735. See, also, Agundo v. Gberbo (supra); Omiyale v. Macaulay (2009) 7 NWLR (Pt.1141) 597; Admin./Exec., Estate, Abacha v. Eke – Spiff (2009) 7 NWLR (Pt.1139) 97; Ihekwoaba v. ACB Ltd. (supra); Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53.” Per OBANDE OGBUINYA, J.C.A. (Pp. 44-45, paras. F-D)

 

20. LAND LAW – TITLE TO LAND: Whether a person who can prove his title is a person deemed to be in possession sufficiently to maintain an action of trespass

“In Ababio II vs Quartey & Anor Privy Council Judgments (1341-1973) by Otiza Chukura SAN page 115 their Lordships of the Privy Council held at page 116 as follows: “If a wrong-doer is in actual possession, the real form of action at common law should be one of ejectment, though the difference between such an action and one of trespass is now of no practical importance of the facts are properly alleged; if, however, no one is in actual possession, the person who can prove his title is deemed to be in possession sufficiently to maintain an action of trespass, while again, as against a person having no title, actual possession alone unsupported by evidence of title is sufficient.” The general rule is that no person is to be adversely affected by a judgment in an action he is not a party except he is a privy caught by the doctrine of res judicata or estoppel by conduct. See Ekpoke vs Usilo (1973) 6-7 SC 87 at 201.” Per TUR, J.C.A. (Pp. 67-68, paras. C-A)

 

MAIN JUDGMENT

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment):

This appeal is an offspring of a judgment of the High Court of Kaduna State, presided over by Hon. Justice James S. Abiriyi, in suit No. KDH/KAD/94/96, delivered on 02/08/2002. To tidy up the record, the original first respondent, the plaintiff in the lower court, died on 04/03/2006 and was substituted with the present first respondent by an order of this court made on 15/02/2007.

Flowing from the available processes filed, the facts of the case leading to this appeal are not complicated. The first respondent, on 21/02/1991 entered into an agreement with one Alhaji Yakubu Kubarachi for the purchase of the latter’s land situated at and known as plot No. AB 2 Constitution Road, Kaduna (now in dispute) at the price of N65, 000.00. The first respondent paid the sum of N5,000.00 to Alhaji Yakubu Kubarachi with an outstanding balance of N60,000.00 to be paid on 31/07/1991. In breach of that agreement, Ahaji Yakubu Kubarachi sold the same plot to the second respondent, Major Bala Lawal Gusau (Rtd.).

Sequel to the above situations, the first respondent sued them (Alhaji Yakubu Kubarachi and Major Bala Lawal Gusau (Rtd.) in the Upper Area Court, Daura Road, Kaduna. That suit was struck out on 29/04/1993 for want of jurisdiction of that court to adjudicate over it. As a result, the first respondent, in Suit No.KDH/KAD/192/93, sued both parties in the High Court of Kaduna State for specific performance of that agreement of 21/02/1991 and setting aside the sale, of the same plot,  to Major Bala Lawal Gusau (Rtd), the second respondent herein, by Alhaji Yakubu Kubarachi. That High Court, presided over by Hon. Justice K. B. Akaahs, now Justice Court Appeal, granted the first respondent’s prayers by making orders for specific performance of that contract and declaring that subsequent sale as null and void on 27/11/1995. That judgment was affirmed by this court in Appeal No. CA/K/85/98. The judgment of that High court was admitted as exhibit 1 in the lower court.

Meanwhile, on 01/05/1993, the second respondent herein, Major Bala Gusau (Rtd.), had transferred the disputed plot of land, No, AB 2 constitution Road, Kaduna, plus an adjoining plot known as LD1 Damaturu Road, Kaduna, to the appellant for the sum of N1M. The appellant obtained a single certificate of occupancy No. KD 149, dated 05/10/95, covering the two plots and the certificate was exhibit 12 in the lower court.

Following that purchase from the second respondent, the appellant mounted a notice-board stating his ownership of the disputed plot. It was that signboard, with the notice thereon, that attracted the attention of the second respondent who demanded, through his lawyer’s letter, that the appellant renounced same and removed the signboard. The appellant did not comply with that demand.
Consequent upon that refusal, the first respondent, on 12/02/1996, took out a writ of summons before the lower court, in Suit No. KDH/KAD/94.96 against the appellant and claimed as follows:

14. WHEREUPON the plaintiff’s claim against the Defendant is for the following reliefs:-
15. A DECLARATION that the plaintiff is the lawful and beneficial owner and has the title, ownership and interest, to the exclusion of the Defendant, to all that piece or parcel of land measuring about 140 X 180 situate, being and known as plot No. AB.2 Constitution Road, Kaduns and covered by Kaduna Local Government Certificate of Occupancy No. KDA/A/006631 which plot of land he purchased from one Alhaii Yakubu Kubarachi as confirmed by the High Court of Justice, Kaduna in its judgment in Suit No. KDH/KAD/192/93 delivered on the 27th of November, 1995.
16. A DECLARATION that the Defendant’s entry into the said plot of land some days after the aforementioned judgment of the High Court of Justice, Kaduna, is wrongful and amounts to trespass thereof and or interference with the plaintiff’s legal right to the ownership, user and peaceful possession and enjoyment of the said plot of land.
17. A PERPETUAL order of injunction restraining the Defendant by himself, his servants, privies, agents or assigns whomsoever and howsoever from trespassing or further trespassing or otherwise interfering with the plaintiff’s peaceful possession, enjoyment and use of the said plot of land.
18. General damages for trespass.”

On being served with the first respondent’s writ of summons and statement of claim, the appellant filed an amended statement of defence which, also, hosted his counter-claim against the first respondent and third party claim against the second respondent.

The matter went through the crucible of full-scale trial in the lower court. The first respondent, as the plaintiff, testified in person, as PW1, and fielded another witness, PW2. The appellant, as the first defendant, testified in person as DW1. The second respondent, the third party, did not give evidence. After the addresses of learned counsel for the parties, the lower court delivered its judgment on 02/08/2002. It granted the first respondent’s claims except the one for general damages. It dismissed the appellant’s counter-claim as unproved. It, however, granted the appellant’s claims for N 1M purchase price of the land and N150,000.00 legal fees against the second respondent, the third party, and dismissed the other reliefs in the third party claim.

Being aggrieved by the judgment of the lower court, the appellant on 2/10/2002, filed a notice of appeal hosting nine grounds wherein he prayed for: “An order allowing the appeal, setting aside the judgment and orders of the lower court made in favour of the Respondents and entering judgment in favour of the Defendant based on his counter-claim, alternatively, an order entering judgment in favour of the Defendant against the 3rd party for interest and other claims as per the 3rd party claim.” Briefs of argument were filed by and exchanged between the appellant and the first respondent.

On 14/04/2011, the appeal came up for hearing. On that day, learned counsel for the appellant, Mrs. J.K. Nuhu (holding brief for Prince Lanke Odogiyon) adopted the appellant’s brief of argument, filed on 31/03/2004, but deemed filed on 18/05/2005, as representing the submissions in support of the appeal. The court registrar informed the court that the first respondent’s counsel and the second respondent were served with notices of hearing for that day’s proceedings or hearing on 08/04/2011 and 06/04/2011 respectively. The first respondent’s brief of argument was filed on 30/08/2005. Although, the first respondent’s counsel was not present to adopt the brief, the court, taking refuge under the provision of order 18 rule 9(4) of the court of Appeal Rules, 2011, treated the appeal as been duly argued and reserved same for judgment.
In the appellant’s brief of argument, he crafted seven issues for determination of the appeal to wit:

“(i)     Whether the Appellant was bound by the judgment in Suit No. KDH/KAD/192/93 and his – interest thus determined by that judgment as the trial court held.

(ii)     Whether the 1st Respondent satisfied all legal requirements for the declaration of title to land in his favour when he failed to register the transfer to him officially, nor prove that he acquired title in accordance with any of the modes recognized by law and failed to prove the identity and boundaries of the land claimed by him.

(iii)    Whether fraud, which was not pleaded nor evidence given thereon and the legal principle of lis pendense, which was pleaded but no evidence given thereon, was rightly applied against the Appellant in favour of the 1st Respondent.

(iv)    Whether trespass was established by the 1st Respondent against the Appellant on the basis of which an order of perpetual injunction was consequently made against the Appellant.

(v)     Whether the Appellant did not prove his counter-claim against the 1st Respondent.

(vi)    Whether the Appellant’s claim for interest on the N1 Million purchase price and other expenses claimed against the 3rd party was rightly dismissed as not Proved.

(vi)    Whether the judgment of the trial court was not against the weight of evidence.”

On the contrary, in the first respondent’s brief of argument, he framed two issues for the determination of the appeal , viz:

“3.01           Whether, having regard to the authority and effects of -Exhibit 1, the 1st Respondent is entitled to the judgment made in his favour by the Honourable trial court.

3.02   Whether a passing remark by a trial Judge can become a basis for a valid ground of appeal”

I have situated the appellant’s distilled issues with those formulated by the first respondent. To my mind, the issues for determination identified by the appellant are more apposite for the determination of the appeal. Two reasons propel me into this preference. Firstly, the appellant’s issues are more all-encompassing given the facts and circumstances of the appeal. Secondly, the two issues couched by the first respondent can be aptly subsumed under those of the appellant’s. I will, therefore, tackle the appeal from the angle of the issues prepared by the appellant.

Before I take down the submissions of learned counsel on the issues, let me, first and foremost, bring out the first respondent’s objection to some grounds of the appellant’s appeal. Towards the tail end of the first respondent’s brief of argument, his learned counsel intimated the court that the appellant formulated and proposed seven issues, but made use of the first three issues which collectively argued grounds one to five of the appeal. Learned Counsel, then, submitted that that issues four to seven did not arise from any of the grounds of appeal and that issues that did encompass a ground of appeal was only fit to be struck out. Relying on the case of Ayalogu V. Agu (1998) 1 NWLR (Pt.532) 129 at 140, he urged the court to strike them out.

He further submitted that issue two in the appellant’s brief of argument argued ground two of the appeal which ground did not disclose any particulars of error and so incompetent. He took the view that where an issue for determination encompassed an incompetent or offensive ground of appeal, as in the appellant’s case, the argument on that issue was incompetent or improper and ought to be struck out. He relied on the cases of, Ayalogu v. Agu (supra); Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71 at 86 – 87. He added that where no issue was distilled and canvassed in support of a ground of appeal, such a ground would be deemed to have been abandoned and would be struck out. He cited the case of Saidu v. Mahmoud (1989) 2 NWLR (Pt.536) 130 at 139 in support of his submission. On the basis of those submissions, he urged the court to strike out the sixth, seventh, eight, and ninth grounds of appeal from the appeal.
Since the first respondent’s objection does not attack the competence of the entire appeal, I will, for purposes of orderliness, consider the objection after marshalling the submissions of parties on the issues for determination.
ISSUE ONE:

Learned counsel for the appellant drew the court’s attention to the finding of the lower court on page 210 of the record and submitted that the appellant was not bound by the judgment in Suit No. KDH/KAD/192/93, exhibit 1, delivered on 27/11/95, because it did not affect his interest and he was not a party to the said suit. He explained that the appellant purchased a parcel of land, comprising the land in dispute, on 01/05/1993, and was issued with a certificate of occupancy before the judgment in exhibit I which was delivered on 27/11/1995. He noted that the court never held, in exhibit 1, that the appellant was bound by it in the position of privy. He conceded to the view of the lower court that exhibit 1 was binding until it was set aside by a superior court. He, however, added that judgments on land were judgment inter-parties and not to the land or world at large. He insisted that exhibit 1 was not binding on the appellant since it was given long after his interest had been created and a certificate of occupancy had been issued to him. In support of his submissions, he cited the cases of, Abasi & Ors. V. Ekwealor & Anor. (1993) 7 SCNJ (Pt.1) 193 at 220; Green V. Green (2002) FWLR (Pt.76) 795.

Learned counsel further submitted that estoppel per rem iudicata was neither pleaded nor relied upon by first respondent and same was inapplicable to his case. He held the view that justice would not allow a man’s interest or matter to be decided against him or taken away from him in his absence and without his knowledge and without giving him the opportunity of being heard. He urged the court to decide that issue in favour of the appellant.

On behalf of the first respondent, his learned counsel submitted, per contra, that a judgment of competent court was binding on the parties and their privies and that privies included all those who were related to the parties in blood, interest and title to the subject-matter. He placed reliance on the cases of, Balogun v. Adeiobi (1995) SCNJ 242 at 264 – 265; Adone v. Ikebudu (2001) 7 SCNJ 513 at 534. He insisted that the relationship between the appellant and the second respondent was that of vendor and purchaser-privies in estate and that both of them were bound by the decision in exhibit 1.

He reproduced a part of the decision in exhibit 1 thus: “That the sale, transfer of possession by 1st Defendant to the 2nd Defendant of the right and title in respect of plot No. A. B2 constitution Road, Kaduna, is hereby revoked as same has been declared null and void since 1st Defendant has no right to pass to the 2nd Defendant”. He took the view that by the above decision, the High Court had extinguished and nullified the right or title of the second respondent to the plot of land; persisting that the order of nullity took effect from the date of the alleged sale and transfer of possession to the second respondent. He noted that it was a misconception for the appellant to argue that exhibit 12, certificate of occupancy No. KD 149, pre-dated exhibit 1 and rendered same (the latter) ineffective. He added that apart from the fact that the effective date of the judgment, exhibit 1, was the date of the transaction between the appellant and the second respondent, it had the capacity and authority to overrule exhibit 12 on its date of delivery; concluding that the operative date of exhibit 1 defeated exhibit 12. He maintained that exhibit 12 was without substratum as a result of the nullification of the title of the second respondent from whom the appellant derived his as something could not be built on nothing. He cited the cases of Macfoy v. UAC. LTD. (1962) AC 152; Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71 at 79.

Learned counsel posited that mere issuance of certificate of occupancy over a land was only a prima facie evidence of title and that the holder would not acquire right or title where none existed. He cited the case of Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71 at 97. He maintained that a certificate of occupancy would not operate to defeat a valid and existing right vested in another person and, therefore, not conclusive proof of ownership. He relied on the case of Ihekwoaba v ACB Ltd. (1998) 10 NWLR (Pt.571) 590 at 608 – 609. He added that a court had a duty to inquire into exhibit 12 using exhibit 1 as a reference point. He placed reliance on the case of Ogunleye v. Oni (1990) 2 NWLR (Pt.134) 745 at 774. He noted that the second respondent had no title, at the time exhibit 12 was issued, to pass to the appellant on the principle of nemo dat quod non habet. In support of that view, he cited the case of Dadi v. Garba (1995) 9 SCNJ 232 at 239. He referred to the case of Ihekwoaba V. ACB Ltd. (supra), at 609, on the legal status of exhibit 12 and emphasized that it would not defeat exhibit 1 nor create parallel or concurrent title in favour of the appellant.
ISSUE TWO:

Learned counsel for the appellant contended that the lower court should have dismissed the first respondent’s claim for declaration of title because he did not file a caveat or register the purchase transaction, between him and Alhaji Kubarachi, in the lands registry nor prove that he acquired title to the plot in dispute in accordance with any of the methods known to law, nor did he tender relevant documents and prove the identity and boundaries of the plot. Learned counsel criticized the finding of the lower court in favour of the first respondent on non-registration. He explained that exhibit 1 was delivered on 27/11/1995 while the appellant concluded the searches before 01/05/1993 when he bought the plots. He referred to sections 6, 7, 15, and 16 of the Land Registration Law, cap. 85, Laws of Kaduna State, 1991. He noted that equity did not aid the indolent.

It was his further contention that the first respondent did meet the legal requirements for a valid acquisition of land under common/statutory or customary law because he had no registered deed of assignment and he was not, in addition to payment of purchase price for the land, put into physical possession in the presence of at least two witnesses. He persisted that the finding of the lower court to the contrary was erroneous since the first respondent’s claim was one for a declaration of title. He referred to the cases of Ezegu v. Onwuchekwa (1997) 4 NWLR (Pt.502) 689; Akinterinwa v. Oladujoye (2000) FWLR (Pt. 10) 1690.

Learned counsel posited that the first respondent did not prove the identity and boundaries of the disputed land. He further criticized the finding of the lower court that the identity was not in doubt using exhibit and its reliance on the evidence of the appellant on the identity of the land. He explained that the appellant’s evidence in that regard was for the two plots and not on the disputed plot only. He restated the law that the onus was on the first respondent to describe the land with sufficient clarity and certainty. He cited the cases of Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 159; Iordye V. Ihyanbe (2001) FWLR (Pt.31) 2881 at 2887. He maintained that the lower court was wrong to have assumed the descriptions of the plot in the local government certificate of occupancy as the correct position on the ground. He urged the court to resolve the isse in favour of the appellant.

For the first respondent, on that issue, learned counsel conceded that the onus of proving identity of the land was on the first respondent, the plaintiff in the lower court, but added that the onus would not arise if the identity was not disputed and not joined as issued on the pleadings, that is, the defendant (the appellant herein) raised it in his statement of defence. In support thereof, he cited the cases of Agundo V. Gberbo (supra); Nor V.  Takkaa (1998) 4 NWLR (Pt.544) 130 at 140. He noted appellant never raised the question of identity of the land in his amended statement of defence so that that onus never arose. He persisted that exhibit 5, certificate of occupancy on the plot, sufficiently disclosed its identity and the lower court was right to have relied on it being evidence adduced by the appellant and not exploiting the weakness of the defence. He relied on the case of Eze Okafor V. Okeke (2002) 5 SCNJ 1 at 13. He posited that the first respondent stated where the plot was located in his evidence and that he was not expected to measurement of same.
Learned counsel drew the court’s attention to the order of the court in exhibit 1 which read: “That the 1st Defendant delivers possession, title, right and use of the plot No. AB 2 Constitution Road, Kaduna, to the plaintiff’s. He, then, contended that with that order, the need to deliver possession in the presence of two witnesses did not arise; noting that the transaction was not under customary law.

He further contended that the interest of the first respondent was sufficiently documented in exhibit 1. He added that deed of assignment was not an indispensable document in land transaction and that under section 68(1) of the Kaduna State Law of Property No. 29 of 1990 such a transaction was required to be in writing or memorandum. He took the view that that requirement of memorandum had been overtaken by exhibit 1 which remained the conclusive proof of the interest of the first respondent until it was set aside by an appellate court. He urged the court to resolve the issue in favour of the first respondent.

ISSUE THREE:

Learned counsel for the appellant argued that the lower court was wrong to make findings on fraud when it was not part of the first respondent’s case nor was it (fraud) pleaded as required by Order 24 rule 5(1) of the High Court (Civil Procedure) Rules, 1987 of Kaduna State. He further argued that the first respondent pleaded, in paragraphs 8 to 10 of his statement of claim, lis pendens but gave no evidence of it and same deemed abandoned. He persisted that the onus lay on the first respondent who pleaded lis pendens to give evidence on it. He added that it was wrong for the lower court to base its decision on those issues of fraud and lis pendens-

He narrated the evidence, before the lower court, to the effect that the appellant bought the property from the second respondent on 01/05/1993 and there was no action pending as at that time. He added that the case before the upper Area Court was struck out on 28/04/1993 and there was no evidence as to when suit No. KDH/KAD/192/93, exhibit 1, which the lower court relied on, was instituted. He maintained that the lower court was wrong to have placed the burden of proof of lis pendens on the appellant. He persisted that the date of filing suit No. KDH/KAD/192/93, exhibit 1, which the appellant was not a party’ was a fact within the first respondent’s knowledge. He relied on section 149(d) of the Evidence Act as being in favour of the appellant in that regard. He urged the court to make a finding as to the date of filing that suit No. KDH/KAD/192/93. Finally, he prayed the court to resolve the issue in favour of the appellant.
Contrariwise, learned counsel, in response to issue three, drew the difference between ratio decidendi and obiter dictum in a case using the case of Gomwalk v. Mil. Admin of Plateau state (1988) 6 NWLR (Pt.555) 653 at 663 – 664. He argued that a ground of appeal was to attack the decision of a court only on a ratio and that a passing remark or opinion of a Judge, which had no bearing on a decision, would not be a subject of an appeal. In support of his arguments, he cited the case of Eigbokan V. American Int. Ins. Co. Ltd. (1994) 6 SCNJ 168; Gomwalk V. Mil. Admin of Plateau State (supra); Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at 257. He, then, explained that the word, fraud, was used in its simple grammatical sense to describe the attitude of the second respondent and not to return a verdict of guilt of a criminal offence. He insisted that the appellant had no locus to challenge the use of the word, fraud, as it was directed against the second respondent who had the right to appeal against its use. According to learned counsel, the appellant was wrong to appeal against an opinion in his favour. He maintained that the second respondent sold the land when it was obvious that litigation was in contemplation; Finally, he prayed the court to resolve the issue in favour of the first respondent.

At this juncture, it is imperative to place on record that the appellant’s submissions on the issues came to an abrupt end with that issue three. In other words, no arguments or submissions were made to support issues four to seven identified, at the cradle of his brief of argument, among the issues for the determination of the appeal.

Having straightened up the record, I will now return to the resolution of the contested issues. In this wise, I will begin with the first respondent’s objections against grounds two, six, seven, eight and nine in the appellant’s notice of appeal. Again, I will, for neatness, deal with the protest against ground two of the appeal since the objection thereon is on a separate compartment.

The hub of the first respondent’s onslaught against the appellant’s ground two is that it has no particulars of error accompanying it and, therefore, incompetent. To do justice to this complaint, it is imperative to cull from the record, on page 217, the lampooned ground two thus:

“GROUND TWO”

The learned trial Judge completely misconstrued the facts and came to a wrong conclusion when he held that the plaintiff could not have registered his interest or title in the land in dispute “When the decision of this court in Suit No. KDH/KAD/192/93 had not been complied with.” And went further to state that “it was therefore not surprising that the Defendant did not find any encumbrances despite searches.” Whereas the judgment (Exhibit 1) was given years after the Defendant conducted his searches and then proceeded to purchase the property. The Defendant’s evidence on searches and the lack of encumbrance on the property relates to the time he purchased the property i.e. around 1/5/93, while the judgment in Suit No. KDH/KAD/192/93 was given on 27/11/95 and the plaintiff’s evidence was that he purchased on 21/2/91. The trial Judge thereby occasioned a miscarriage of justice’ ”

The provision of order 6 rule 2(2) of the court of Appeal Rules, 2011 is, also, of the note and it reads: “ORDER 6 NOTICE AND GROUNDS OF CIVIL APPEALS
(2)Where a ground of appeal alleges misdirection or errors in law, the particulars and the nature of the misdirection or errors shall be clearly stated.”

For a dispassionate consideration of this objection, it is germane to understand the function of particulars vis-a-vis a ground of appeal. In the case of Osasona v. Ajayi (2004) 14 NWLR (Pt.894) 527 at 545, Uwaifo, JSC, identified their functions as follows:

“Now, it should be realized that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make clear how complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the complaint in a ground of appeal but ancillary to it.”

In a nutshell, the purposes of particulars are to throw light on a complaint against the judgment being challenged on appeal, indicate areas of pitfalls, itemize and project the errors or mistakes in it (the judgment).

By law, a ground of appeal can only be rendered incompetent when it is totally void of any particulars either expressly or implicitly as ordained by order 6 rule 2(2) of the Rules. The requirement of this provision is amply satisfied if the particulars are outlined independently or made part and parcel of a ground of appeal. In the same case of Osasona v. Ajayi (supra), at page 546, Uwafor, JSC, stated:

“It is therefore settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated into the body of the ground of the appeal the ground of appeal will contravene the relevant rule, in the present case, is Order 3, rule 2(2) of the Court of Appeal Rules (now Order 6 rule 2(2) of the Rule). The ground will be incompetent and is liable to be struck out.

See also, Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285; UBA Ltd. v. Achora (1999) 6 NWLR (Pt.156) 254.

I have juxtaposed the appellant’s ground two, sought to be impugned, with the law as X-rayed above. Indisputably, there are no particulars set out separately from the said ground two. Nevertheless, I have given a minute examination to the entire contents of that ground. It seems clear to me that the particulars of that ground are encapsulated or embedded in it. I discovered, in my intimate perusal of it, that the appellant’s main complaint ended with the quoted portion of the judgment, precisely with the word “searches”. The other sentences that follow that word, searches, qualify as particulars as they tend to shed light on the principal complaint. I, therefore, hold that the particulars of that ground two are duly buried there, waiting to be discerned on a microscopic examination. In view of this finding, I will readily decline the invitation of the first respondent to declare that ground two incompetent and strike it out.

By the same token of this finding, his contention that issue two formulated from ground two was offensive, with due reverence, becomes spent and surplus to requirements. Simply put, the appellant’s ground two and issue two are competent. I will not tinker with them except the issue fails after considerations on its merits. The cases of Ayologu v. Agu (supra) and Agundo V. Gberbo (supra), on which the first respondent pegged his contention, would have availed him if I had reached a contrary finding, namely, that the ground and the issue are incompetent. In all, the first respondent’s objection against ground two and issue two thereon is devoid of any iota of merit. Accordingly, I overrule it.
I proceed to attend to the first respondent’s swipe against grounds six, seven, eight and nine of the notice of appeal. The focus of that vitriolic attack is that those grounds have no issues distilled from them and should be struck out for being abandoned. As noted earlier on, the appellant, intentionally or inadvertently, did not proffer any arguments to buttress issues four to seven. The appellant’s failure or neglect to make submissions on those issues is a costly one. An issue can be likened to a skeleton of an animal and to make it a living issue, it must be shored up by argument. The appellant’s issues four to seven, without submissions to adorn them, are inchoate and nebulous. Indeed, without supporting arguments, those issues cannot be properly taken to have germinated from any of grounds six to nine of the notice of the appeal. In the eyes of the law, those grounds (six to nine) have unwittingly acquired the unfortunate status of being abandoned. They are moribund and impotent, waiting to be weeded out from the appeal. On this, I drum up support from the case of Adelekan V. Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 49, in which Onnoghen, JSC, re-echoed this trite principle of law thus:

“In the instant case, the objection is to the effect that the issues formulated by learned counsel for the appellant do not arise from the grounds of appeal. It is settled law that where no issue is formulated from any ground of appeal, the said ground is deemed abandoned. The same principle of law applies to a situation where it is found that issues formulated by an appellant do not relate to the grounds of appeal – the said grounds must be deemed abandoned since no issue(s) has/have been distilled from them and are therefore liable to be struck out.”See, also, Saidu V. Mahmoud (supra).

For a good measure, the appellant in his infinite wisdom, failed to puncture the submissions of the first respondent that castigated grounds six to nine as abandoned. By law, that neglect, whether intentional or inadvertent, smacks of admission of the stance of the first respondent that those grounds are deemed abandoned. This is one instance when silence is deemed as an acceptance in law. In the case of Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518 at 556, the Supreme Court, per Onnoghen, JSC, held:

“It is clear from the issues formulated and argued by learned senior counsel for the 1st and 2nd respondents in their brief of argument do not include argument on appellants’ said issue No. 8.

It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent. I therefore, in the circumstance, hold that the 1st and 2nd respondents, by not reacting to the issue in question, have conceded the issue as formulated and argued by the learned counsel for the appellants.”
See, also, Adekeye v. Adesina (2010) 18 NWLR (Pt.1225) 449.

Altogether, the net effect of the foregoing is that the appellant’s grounds six to nine of the notice of appeal are spent force in the sense that they never gave birth to any issues in the appeal. The drastic penalty for abandoned grounds of appeal is that they should be expunged from any appeal proceedings. In due obeisance to this ageless rule of law, grounds six, seven, eight and nine of the appellant’s notice of appeal be and are hereby struck out on account of abandonment.

Having dispensed with the first respondent’s protestation against grounds six to nine of the notice of appeal, the coast is cleared for the consideration of the three issues formulated and argued by the appellant. I will deal with them seriatim, making issue one my first port of call. The kernel of issue one is whether the appellant was bound by the judgment in suit No. KDH/KAD/192/93: Alhaji Ibrahim Akpata V. Alhaji Yakubu Kubarachi and Major Bala Gusau (Rtd.). A certified true copy of that judgment was received in evidence, in the lower court, as exhibit 1. The parties herein are consensus ad idem on the cold fact that the appellant, from the above configuration of the parties’ was not a party named on the record of that High court. They are, also, at one on the point that the first defendant, in that exhibit 1, sold the plot of land in dispute to both the plaintiff and the second defendant therein and that the second defendant alienated same to the appellant. Hence, the appellant’s contention that he was not a party in exhibit 1 and not bound by the decision sprouting from it.
The appellant’s contention unwittingly rakes up a serious agitation as who is a party or privy to a proceeding in law. In the case of Coker V. Sanyaolu (1976) 10 NSCC 566 at 573, Idigbe, JSC classified privies in the manner following:
“Privies are of three classes and they are:
(1) Privies in blood (as ancestor and heirs);
(2) Privies in law (as testator and executor; intestate and administrator) and
(3) Privies in estate (which we think is germane to the case in hand) as vendor and purchaser, lessor and lessee”.
See, also Adone v. Ikebudu (supra); Balogun v. Adeiobi (supra); Abuhukar V. B.O. & A.P. Ltd. (2007) 18 NWLR (Pt.1066) 319.

It was the case of the appellant that he purchased the disputed plot from the second defendant in exhibit 1, that is, the second respondent herein. That is to say, the second respondent was the vendor whilst the appellant was the purchaser. It is, therefore, axiomatic that there was/is a privity of estate between the appellant and the second respondent in that they were privies in estate. By that relationship, the appellant fall within the category of the third specie of privies and ipso facto and de jure, party to the proceeding leading to exhibit 1. It is not the position of the law, as dissected above, that the appellant must be a party on record to qualify as a party to a proceeding.

Even by the appellant’s own showing, he admitted being a privy in estate with the second respondent. under the furnace of cross-examination, on page 172 of the printed record, the appellant, testifying as DW1, responded “I have seen Exhibit 1. Major Bala Gusau and Alhaji Kubarachi were the Defendants in that case. These are my predecessors in title as far as the land is concerned. The decision was that Kubarachi had no title to pass to Major Bala Gusau (Rtd.) because he had already sold the land to the plaintiff.” This piece of evidence, which is as potent as one procured under examination-in-chief, amply supports, confirms and beefs up the stand of the first respondent who obtained it. See Gaji v. Paye (2003) 8 NWLR (Pt.823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338.

It is needful to hammer home the point that exhibit 1 clearly put paid to the interest the appellant was trying to brandish over the disputed plot. At the tail end of exhibit 1, the learned trial Judge (now JCA) succinctly held: “That the sale, transfer of possession by 1st Defendant to the 2nd Defendant of the right and title in respect of plot No’ AB 2 constitution Road Kaduna is hereby revoked as same has been declared null and void since 1st Defendant had no right or interest to pass to the 2nd Defendant.” That order remains valid and binding on the parties, for all eternity, inclusive of the appellant, until it is set aside, see A.-G; Anambra state v. A.-G; Fed. (2005) NWLR (Pt.931) 572. According to the first respondent, that decision was affirmed by this court on 20/04/2000 in Appeal No. CA/K/85/98. He appended the drawn up dot. Order of this court regarding that appeal to his brief of aurgment. Curiously, the appellant offered no argument to deflate that contention. On the authority of Nwankwo v. Yar’Adua (supra) and Adekeye v. Adesina (supra), I hold that the appellant conceded to that point.

The appellant was not seriously canvassing the point that he was not bound by the judgment in exhibit 1. If it was not binding on him, why did he apply to be joined as a party to the appeal as shown in exhibits 3 and 20? It seems clear me that the appellant knew of the binding effect of exhibit 1 on him and that prompted him to take that joinder step.

It was part of the appellant’s contention, that exhibit 12, the certificate of occupancy No. KD149 over the plot, superseded exhibit 1 as the former was earlier in time. Exhibit 12 was granted on 05/10/95 whereas exhibit I was handed down on 27/11/1995. Indubitably, exhibit 12 predated exhibit 1. Hence, the appellant placed high premium on that exhibit 12 on this critical point. Be that as it may, the point must be rammed home that exhibit 12 is not a conclusive evidence of title to land over which it is granted. A Certificate of occupancy’ like exhibit 12, is a mere prima facie evidence of ownership of title over land and is susceptible or prone to invalidation when grant in questionable circumstances. By dint of the far-reaching orders in exhibit 1, which related back to the time of the contract between the first respondent and the original vendor, Alhaji Yakubu Kubarachi, exhibit 12 lost steam and could not have conferred any toga of title on the appellant over the disputed plot. In the case of Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562 at 590, Onu, JSC stated:

“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right’ interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void”

Consequently, where it is proved as in this case, that another person other than the grantee of a Certificate of Occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be. See Dzungwe V. Gbishe & Anor. (1955) 2 NWLR (Pt.8) 528 at 540. 2. Ogunleye V. Oni (1990) 2 NWLR (Pt.135) 735.
See. also, Agundo v. Gberbo (supra); Omiyale v. Macaulay (2009) 7 NWLR (Pt.1141) 597; Admin./Exec., Estate, Abacha v. Eke – Spiff (2009) 7 NWLR (Pt.1139) 97; Ihekwoaba v. ACB Ltd. (supra); Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53.

On the premise of the foregoing reasons, the contention of the appellant that exhibit 1 must play a second fiddle to exhibit 12 flies in the face of the law given the facts and circumstances of this appeal. In the aggregate, no matter the angle this crucial issue is looked from, the appellant’s stance meets a brick wall in that it does not possess the requisite backing of the law. Going by all these highlights, I resolve this issue (one) against the appellant.

Having done away with issue one, it is the turn of issue two. The key complaint in that issue consists of three segments, namely, that the first respondent did not register the transfer of the disputed plot, that he did not prove he acquired title through any of the methods of acquiring title over land and that he did not establish the identity of the land. I will take the segments in sequence as listed.
To this end, I start off with the consideration of the first segment. Here, the appellant’s main grouse is on non-registration of the first respondent’s title over the plot. It has to be recalled that the first respondent’s case was that their common vendor, Alhaji Yakubu Kubarachi, did not keep faith with their contract over the plot when he sold it to the second respondent after he had collected a deposit of N5,000.00 from him on 21/02/1991 and before he could pay him the balance of N60,000.00 on or before 31/07/1991. It was Alhaji Yakubu Kubarachi’s unexpected renege on their contract that impelled the first respondent to seek redress in the High court, the product of which action was exhibit 1. Exhibit 1 came to life on 27/11/1995 when the judgment in suit No. KDH/KAD/192/93 was delivered.

It stems from this synoptic analysis that the first document of a title acquired by the first respondent was exhibit 1 which took effect from 21/02/1991, the original date of purchase of the plot. For a better appreciation, the relevant last portion of exhibit 1, or page 10, reads:

“In conclusion I find and hold that the Plaintiff’s claim succeeds except for the trespass and damages. Consequently I grant the following declaratory reliefs namely:

(1)     I hereby make an order of specific performance of the contract between the Plaintiff and the 1st defendant for the sale by the 1st defendant of plot No. AB 2 Constitution Road Kaduna to the Plaintiff for the total sum of N65,000.00.

(2)     That the first defendant deliver possession, title, right and use of the Plot No. AB 2 Constitution Road Kaduna to the Plaintiff.

(3)     That the plaintiff should pay forthwith to the 1st defendant the balance of the N60, 000.00 of the purchase price.

(4)     That the sale, transfer of possession by 1st defendant to the 2nd Defendant of the right and title in respect of Plot No. AB 2 Constitution Road Kaduna is hereby revoked as same has been declared null and void since 1st defendant had no right or interest to pass to the 2nd defendant

SGD
HON. JUSTICE K. B. AKAAHS
JUDGE
27/11/95”

This puts it beyond any doubt that the first respondent’s ownership and possession of the plot were retrospectively restored on 27/11/1995. At once, it, also, put paid to the appellant’s purported source of purchase of the same plot. Exhibit 1 had divested Alhaji Yakubu Kubarachi’s right to transfer any right over the plot to the appellant’s transferor, the second respondent, on the firm footing of the ageless principle of nemo dat quod non habet, no one gives what he does not have, see Ashiru V. Olukoya (2006) 11 NWLR (Pt. 990) 1; Omiyale V. Macaulay (supra); Ilona V Idakwo (supra); Dadi V. Garba (supra), Nsiegbe V. Mgbemena (2007) 10 NWLR (Pt.1042) 364.

From the records, no sooner the first respondent armed with exhibit 1 than the appellant mounted his signboard on the plot thereby necessitating exhibit 13, dated 20/12/1995, which eventually snowballed into the action in the lower court. The point I have been struggling to establish is that the first respondent could not have registered any interest in the Lands Registry of Kaduna State before the inception of exhibit 1, an offshoot of suit No KDH/KAD/192/93, as required by section 6 of the Land Registration Law, Cap. 85, Laws of Kaduna State, 1991. In addition, exhibit 1 had taken the appellant’s purported purchase, made on 01/05/1993 vide exhibit 15, to the cleaners and, ipso facto, all the documentations he made over the plot came to nought. There, also, ceases to be in existence any issue of competing rights to the plot to be determined by priority of registration to make the provision of section 16 of the Land Registration Law applicable.

Besides, as already observed, registration does not create interest or right in land where there is none nor does it consolidate one that is improperly acquired. see Ashiru V. Olukoya (supra), Omiyale V. Macaulay (supra). In the case of Ayinla V. Sijuwola (1984) NSCC 301 at 311 or (1984) 1 SCNLR 410 at 422, the Supreme Court affirmed that:

“Clearly between these two registered conveyances that of the respondent was first in time and took priority although the act of registration does not confer a better title. In fact registration of instruments is not concerned with the validity or authenticity of such instruments. Once the deed is registrable it will be accepted for registration even if its terms ore inconsistent with a deed in relation to the same land registered earlier.”

The right of ownership and possession of the plot, donated by exhibit 1, to the first respondent, is, until it is set aside, unimpeachable, not even by the appellant’s registration which was devoid of any substratum. In the light of all these, I am of the respectful view that the finding of the lower court on registration, on page 211 of the record, which the appellant elaborately excoriated, is quite unassailable I will do not upset it. This segment is resolved against the appellant.

Now, I move to look at the second segment of this issue. In this segment, the appellant’s grievance is that the first respondent failed to prove his acquisition of title over the plot through any of modes of acquiring title over land. There are five recognized ways of establishing title to land in the Nigeria. These five methods trace their cradle to the case of Idundun V. Okumagba (1976) 9-10 SC 227 and they include proof:

(a)     by traditional evidence ;

(b)     by production of document of title;

(c)     by acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner;

(d)     by long possession; and

(e)     by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.

Needles to say that these five modes of proving title to land have been and recycled in a battery of decided cases, see Ashiru V. Olukoya (supra); Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Nwokidu V. Okanu (2010) 3 NWLR (Pt.1181) 362; Madu V. Madu (2008) 6 NWLR (Pt. 1033) 296; Oyeneyin V. Akinkugbe (2010) 14 NWLR (Pt.1184) 265; Salami V. Lawal (2008) 14 NWLR (Pt.1108) 546; Jolasun V. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Odunukwe V. Ofomata (2010) 18 NWLR (Pt.1225) 404.

I have married the pleadings and evidence of the first respondent, in the lower court, with these time-tested methods of acquiring title over land in Nigeria. It is my view that exhibit 1, tendered in evidence by the first respondent’s PW2, in the court below, without objection, on page 126 of the record, amply qualifies as his root of title over the plot. Being a document, exhibit 1 comes squarely within the realm of the second method, id est, document of title. It follows that the first respondent’s mode of proof of his title over the plot was by production of that exhibit 1.

By law, this mode of proving title to land, production of document or instrument of title, is not conclusive. It carries with it, the need for a court to inquire into the following:

(a)     whether the document is genuine and valid;

(b)     whether the document has been duly executed, stamped and registered;
(c)     whether the grantor had the authority and capacity to make the grant;

(d)     whether the grantor had in fact what he purported to grant; and

(e)     whether it had the effect claimed by the holder of the document
See, Romaine V. Romaine (1992) 4 NWLR (Pt.238) 650; Dabo V. Abdullahi (2005) 7 NWLR (Pt.923) 181; Oyeneyin V. Akinkugbe (supra); Jolasun V. Bamgboye (supra).

There are no evidence, from the appellant, to show that exhibit 1 is not genuine and valid or that it was not duly signed by the Judge (now JCA) who delivered it or that the grantor of the plot, Alhaji Yakubu Kubarachi, the first defendant therein, had no capacity to sell it or that it did not have the effect of conferring title over the plot on the first respondent. In the glaring absence of any of these vitiating elements, I hold the humble view that the appellant was unable to erect any evidence to puncture or undermine the authenticity of exhibit 1 using these outlined questions as indices. Going by the foregoing, it seems clear to me that the first respondent proved one of the accepted modes of establishing title to land in our land law system. This is more so when, it is trite that prove of one mode will suffice to vest title in him. In the end, this second segment is equally resolved against the appellant.

In the third segment, the appellant’s quarrel is that the first respondent did prove the identity of the disputed plot in the lower court. Indisputably, the law makes it incumbent on the first respondent, the plaintiff in the lower court, to establish the identity of the plot in disputed with precision such that a surveyor using his evidence can draw a plan of it, else his action will fail. see Udeze V. Chidebe (supra); Iordye V. Ihyanbe (supra), Odunze v. Nwosu (supra); Orunengimo V. Egebe (2007) 15 NWLR (Pt. 1053) 630; Aremu V. Adetoro (2007) 16 NWLR (Pt.1060) 244; Okonkwo V. Okonkwo (2010) 14 NWLR (Pt. 1213) 228.

However, for a plaintiff to be saddled with this herculean burden, parties must be at odds on the identity of the disputed land. In law, the only way parties join issues on the identity of the disputed land is by the defendant making it an issue in his statement of defence. Where otherwise, it will be presumed that parties are at one or ad idem on the identity of any disputed land. In the case of Otanma V. Youdubagha (2006) 2 NWLR (Pt.964) 337 at 354, Musdapher, JSC, stated:

“Although a plaintiff seeking a declaration to title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates, however, the burden will not arise where the identity of the land in dispute does not arise from the pleadings. That is to say, where the defendant by his pleadings admitted the description location features and dimension of the land. In such a circumstance, the identity of the disputed and is not o question in issues and does not require proof.”

Also, see Agundo V. Gberbo (supra),’ Nor V. Takkaa (supra), Ilona V. Idakwo (2003) 11 NWLR (Pt.830) 53; Ugoji V. Onukogu (2005) 16 NWLR (Pt.950) 97; Tanko V.  Echendu (2010) 18 NWLR (Pt.1224) 253;

In this case, I have given a microscopic examination to the appellant’s 20-paragraph amended statement of defence, counter-claim and third party claim, spanning from pages 91 – 94 of the printed record, and I find no place where he made identity of the disputed plot an issue. Short of doing that, the first respondent was/is not laden with that arduous task of proving the identity of the disputed plot with certainty for it would be assumed that its dimension or location was/is not at stake or in contention. It is too late in the day for the appellant to pick holes in the identity of the disputed plot.

Moreover, that is not all the hiccup in the appellant’s quarrel over the identity of the plot. The appellant, in paragraphs 11 – 15 of his pleading, on pages 92 and 93 of the record, counter-claimed against the first respondent over the said plot. In law, the appellant’s counter-claim wholly robs him of the requisite locus to launch any attack on the identity of the plot. This is because he cannot be making a counter-claim over a plot that he is does not know its identity. In the case of Ayanwu V. Uzowuaka (2009) 13 NWLR (Pt.1159) 445 at 476, Tabai, JSC, opined:

“Furthermore it is my firm view that defendants in a land matter, as in this case, who counterclaim and therein seek the reliefs of joint ownership of the self some land and an injunction restraining the plaintiffs from doing certain things thereon without their concurrence, cannot turn round to argue that the identity of the land was not established. In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know. The court below was clearly in error when it raised the issue of the identity of the land in dispute when such an issue was not raised in the pleadings. Parties as well as the courts are bound by the issues raised by the parties in the pleadings.”

See, also, Orunengimo V. Egebe (supra). It follows that the appellant’s counter-claim constitutes an albatross around his argument against the identity of the disputed plot.

At any rate, the identity of the disputed plot is not in doubt. Going by street numbering, it is located and known as No. AB 2 Constitution Road, Kaduna. Exhibit I emphatically showed that in the orders made therein. It is also properly and clearly described in exhibit 5, Certificate of occupancy No. KDA/A/006631. The schedule to that certificate, exhibit 5, reads:

“SCHIEDULE

All that piece of land consisting 140 X 180 in the area known as AB. 2 Constitution Road, Kaduna in Kaduna Local Government, verged red in sketch attached.

This certificate is registered as No. 6631 in page 217 in volume 111 in the office of the Sect. Kadana Local Government, Kaduna”

In the said sketch, a diagram, illustrating the size and location of the plot, is clearly drawn with a school adjacent to it.

Incidentally, the appellant heavily chastised the judgment of the lower court where it used exhibit 5 as the compass for the identity of the plot. The appellant’s chief reason for that castigation was that it was evidence adduced by him, not the first respondent. I have my doubts if the law backs by the appellant in this argument.

To begin with, the law gives the lower court the licence to pluck or extract the identity of the plot from a documentary evidence, exhibit 5, see Ogbu V. Wokoma (2005) 14 NWLR (Pt.944) 118 at 139. In the case in hand, it is of no moment that the lower court utilized exhibit 5 which was tendered by the appellant, a defendant before it. Granted that it is a basic rule of law, that where a party makes a claim for a declaration of title to land, as did the first respondent, the onus resides in him to satisfy the court that he is entitled to that declaration. In a common legal jargon, a plaintiff must succeed on the strength of his case and not on the weakness of the defence, see Tanko V. Echendu (supra) Nonetheless, this ancient principle of law is more appreciated in its exception rather than its rule. The rider to that rule is that where the evidence of a defendant buttresses the case of such a plaintiff, he is entitled to reap from that supportive evidence in establishing his case, see Eze Okafor V. Okeke (supra); Odunze V. Nwosu (supra); Aremu V. Adetoro (supra); Ashiru V. Olukoya (supra). In my opinion, since exhibit 5, tendered by the appellant, lent credence to the case of the first respondent, on the identity of the plot, the lower court was very much at home with the law to have used it.

From all that I have analysed, it is clear that the appellant’s seeming alluring arguments on this segment stand on a quicksand. They are not backed up by the law. I, therefore, resolve this third segment against the appellant. Put together, since the three segments of this issue are resolved against the appellant, the issue (two) itself is resolved against him (the appellant).
That takes me to the consideration of the tertiary issue. It is made up of two facets, viz. that fraud, which was not pleaded, and lis pendens, which was pleaded without evidence adduced on it, were wrongly applied in favour of the first respondent. I will, without much ado, kick off with the appellant’s grouse on the issue of fraud. Incontestably, where fraud is made an issue in any proceedings, it must be pleaded with relevant particulars and evidence led thereon beyond reasonable doubt, see Olalomi Ind. Ltd. V. N.I.D.B. Ltd. (2009) 16 NWLR (Pt.1167) 266. That is to the extent I fall in with the viewpoint of the learned counsel for the appellant.

Nevertheless, the case of the first respondent was not weaved or built around the issue of fraud at all. Fraud was never alluded to in his statement of claim. Nor did the appellant predicate his third party claim on fraud. I agree, without reservations, with the learned counsel for the first respondent that the lower court did not ground its decision on fraud. There is a yawning gap between a ratio decidendi and obiter dictum in a decision. The former is the reason or ground for the decision while the latter consists of passing remark by a judex in a decision. If anything, the lower court’s reference to fraud came within the four walls of obiter dictum which, even if resolved in favour of the appellant, is not inimical to its judgment sought to be decimated. In the case of Adelekan V. ECU-Line NV (2006) 12 NWLR (Pt. 993) 33 at 48 – 49, Onnoogben, JSC, lucidly stated:

“It is settled law that whereas grounds of appeal must relate to and challenge the validity of the decision appealed against, the issues for determination in the appeal must arise from the said grounds of appeal. For issues formulated to result in setting aside the judgment appealed against, they must be based on grounds of appeal that attack the ratio decidendi in the judgment on appeal. It follows therefore that where a ground of appeal from which an issue for determination is formulated is based on the obiter dicta of the Judge, a resolution of same in favour of the appellant will usually not be sufficient to set aside the judgment on appeal.

See, also, Odunukwe v. Ofomata (supra); Ogbe v. Asade (2009) 18 NWLR (Pt.1172) 106; Gomwalk V. Mil. Admin of Plateau State (supra) on the dichotomy between ratio decidendi and obiter dictum and their relationship with grounds of appeal.

I further share the view, expressed by the learned counsel for the first respondent, that the lower court employed the word fraudulent to depict the despicable and callous conduct of the second respondent who transferred the plot to the appellant during the course of proceedings in suit No.KDH/KAD/192/93- the mother of exhibit 1. There is no gain saying the fact that the conduct of the second respondent vis-a-vis the disposition of the plot pendente lite was, for want of a stronger term, fraudulent. The adjective, fraudulent, qualifying the infamous conduct of the second respondent, means “intended to cheat somebody, usually in order to make money illegally, see Oxford Advanced Learner’s Dictionary of Current English, Seventh edition, page 592. In the case of Ntuks V. NPA. (2007) 13 NWLR (Pt.1051) 392 at 427 – 428, Muhammad, JSC, succinctly explained fraud thus: “It is said that fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is a false representation of a matter of fact, whether by word or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Fraud is a cankerworm and indeed insidious disease. It is a strong vitiating factor.” I decided to go to town to ferret or fetch the connotations of fraud and fraudulent so as to reinforce or fortify the remark, made by the lower court, that the deceitful act of the second respondent came within the domain of fraud and fraudulent. Given these analyses, I will resolve this facet against the appellant.

The epicentre of the second facet of this issue (three) is that the doctrine of lis pendens was pleaded, but there was no evidence to warrant its invocation, by the lower court, in favour of the first respondent. Learned Counsel for the appellant made a meal of the point that there was no evidence of the date of filing of Suit No. KDH/KAD/192/93 from which exhibit I radiated. This submission, with due respect to learned counsel, does not cut ice with me in the sense that evidence are in heaps and bounds that the second respondent alienated the plot to the appellant during the life time of that suit No. KDH/KAD/192/93. I will extract those evidence from the documentary evidence before the lower court.

Exhibit 16, a letter, dated 10/01/1996, from Prince Lanke Odogiyon, the appellant’s counsel, to Emmanuel Toro, SAN, the first respondent’s counsel, regarding the plot is of note here. Paragraphs 2 and 3 of it read:

(2).    “Our client purchased the property from Major Bala Gusau (rtd) in 1992. He never had notice of your client’s claim nor surprisingly was he informed of the suit in the high court.
We have perused the copy of the Judgment which you kindly made available and also the court’s record on the suit

(3).    Our client as well as ourselves, are shocked that Major Bala Gusau (rtd) never informed the honourable high court of our client’s interest in the property.

 

You would agree with us that the court might not have ordered specific performance if it was aware of a third party’s interest. We aware taken Major Gusau (rtd) up on the matter.

We are of the appeal to the Court of Appeal in the matter and are therefore studying the situation.”

Again, exhibit 17, another letter, dated 23/01/1996, from Prince Lanke Odogiyon, the appellant’s counsel, to Alhaji Yahaya Mahmood, the second respondent’s counsel, regarding suit No. KDH/KAD/192/93 comes in handy too. The last paragraph of that correspondence state:

“We decided after consultation with our client, not to apply to be joined in the application for stay before the high court because of our disgust with your client’s behaviour in relation to this matter. He not only failed to inform the court of our client’s interest in the property, he also failed to inform our client of the suit for reason best known to him. The only explanation is arrogance and contempt for the court”

Undoubtedly, these pieces of evidence, excerpts of documentary evidence, unequivocally illustrate that Suit No. KDH/KAD/192/93 was pending in the High Court of Kaduna State when the second respondent transferred the disputed plot to the appellant. The mere fact that these evidence ooze out from documentary evidence speaks volume about their reliability in this circumstance. In law, documentary evidence, due to the bald fact that they are permanent and incorruptible, remain the best evidence, see Agbareh V. Mimra (2009) 2 NWLR (Pt.1071) 378. Since exhibits 16 and 17 were from the appellant, I will deploy the principle of law that where the evidence of a defendant supports the case of a plaintiff, the latter can take advantage of it in proving his case, see Ezeokafor V. Okeke (supra); Ashiru V. Olukoya (supra). Besides, these evidence, to all intents and purposes, constitute admission by the appellant. By law, what is admitted need no proof even as a court is at liberty to act on it, see Minister, P. M. D. V. E.L. (Nig) Ltd. (2010) 12 NWLR (Pt.1208) 267; Jolasin v. Bamgboye (supra). In the circumstance. I will not disturb the finding of the lower court when it invoked the principle of lis pendens against the appellant.

For the avoidance of doubt, the doctrine of lis pendens or pendent lite nihil innovetur, meaning, during a litigation nothing new should be introduced, is intended to prevent foisting fait accompli on a court with respect to a matter before it. On the premise of this hallowed and ageless principle, any act perpetrated or transaction, such as alienation of landed property, carried out during the pendency of any proceeding regarding the subject – matter or res in that matter will be visited with nullity or nullification by the courts. In the case of Akinkugbe V. E.H. (Nig) Ltd. (2008) 12 NWLR (Pt.1098) 375 at 397, Aderemi, JSC, confirmed that:

“Judicial authorities abound that it has always been o doctrine common to all courts and the doctrine rests upon the foundation that it would plainly be impossible that any action or suit or even motion or application could be brought to a successful end if alienation pendente lit were permitted to prevail. This, in a nutshell, is a practical explanation of the doctrine of ‘lis pendens’ – which doctrine prevents the effective transfer of rights in any property, as in the instant case, which is the subject – matter of an action pending in court during the pendency in court of the action or application.”

Also, see Obi V. INEC (2007) 11 NWLR (Pt.1046) 565; Amaechi V. INEC (2008) 5 NWLR (Pt.1080) 227.

Flowing from this immutable principle of law, the purported transfer or sale of the disputed plot to the appellant by the second respondent, during the life span of Suit No. KDH/KAD/192/93, in the High Court of Kaduna State, constituted an affront to the law. Indeed, it remains to visit nullification on that illicit transaction. In sum, this facet of issue three is resolved against the appellant. On the whole, issue three is resolved against the appellant.

Overall, since the three issues are resolved against the appellant, the fortune of this appeal ceases to be a moot question. It is ill-fated, stillborn and bereft of any tinge of merit. Accordingly, the appellant’s appeal, filed on 22/10/2002, be and is hereby dismissed for want of merit. I affirm the judgment of the lower court delivered on 02/08/2002. The parties shall bear their respective costs of prosecuting and defending the doomed appeal.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.:

I had the opportunity of reading before now the decision handed down by my learned brother, Obande F. Ogbuinya, J.C.A., in the leading judgment in this appeal. I have no reason to disagree with his resolution of the issues propounded by the parties particularly on the premise that a vendor without title cannot transfer to a purchaser for value what he does not possess. The principle is Nema dat qui non habet meaning; ‘he who hath not cannot give’. The original owner, one Alhaji Yakubu Kubarachi had entered into a contract of sale of land situated at No. AB. 2 Constitution Road, Kaduna with the 1st Appellant. The groundnorm of this aspect of sale of land was restated by the Supreme Court in Ohieri vs. Yusuf (2009) 6 NWLR Part 1137 page 207 at 224 that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representatives in favour of another person. In that regard, it must be re-echoed that he who comes to equity must come with clean hands, in that, before specific performance can be decreed in favour of a Plaintiff, he must show that he has performed all his own obligations under the contract, or has tendered performance, or is ready and willing to perform. The position of the law is that, if a purchaser fails to complete payment of the purchase price, the vendor can treat that as a repudiation and claim damages for breach of contract, or he may seek specific performance. It is trite that in the absence of a contrary intention, performance of the contract has to be carried out on the exact date specified in the contract, therefore, a party could treat the contract as repudiated if the other party’s performance was not completed on the fixed date, since time was “of the essence of the contract”. In the instant appeal, the original owner had been adjudged in the earlier suit of having defaulted in the agreement for sale of land to the 1st Respondent and an order for specific performance was decreed against him. It followed that as at the time the original owner contracted to re-sell the said land to the vendor of the Appellant, the said contract between him and the 1st Respondent still subsisted which then triggered the proceedings initiated in suit No. KDH/KAD/279/93 by the Appellant against the original owner as the vendor of the Appellant. After its evaluation and findings, the trial Court granted the 1st Respondent the order of specific performance and other reliefs sought for in the suit. By the said judgment, it means that as at that date the said original owner, who, had already parted with his interest in the land, no longer had any title to convey to the said Major Baba Gusua who later resold to the Appellant. Even if as at the time of the transaction between the 2nd Respondent and the original owner, the 1st Respondent had not registered any document of title relating to the said land in respect of the transaction between him and the original owner in the land Registry of Kaduna State Ministry of Lands nor filed a caveat threat, so long as he had partly paid the purchase price of the said land and possession of the same was immediately given to him by the said original vendor, which the trial Court in suit No. KDH/KAD/279/93 had founded upon, and then decreed an order of specific performance in his favour, the latter Certificate of Occupancy obtained by the 2nd Respondent was of no effect and immaterial because the equitable interest the 1st Respondent had acquired in the said property had ranked as high as a legal estate. See, also, Ayinla vs. Sijuwola (1984) NSCC 301 at 312 where Nnamani, J.S.C. opined thus:

” … if a party received title to land under native law and custom and entered into possession and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bona fide purchaser would not be upheld. See Amao vs. Adebona (1962) LLR 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T.A Oransanmii vs. M.O. Idowu (1959) 4 FSC 40. More close to the contention herein is the decision in Soremekun vs. Shodipo (1959) LLR 30 to the effect that if land is sold to a party without executing a formal deed of conveyance his interest was no more than equitable. Legal estate of the other party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decision of the Privy Council in Oshodi vs. Balogun & Ors 4 WACA 1 at page 6 and Suleiman & Ors vs. Johnson 13 WACA 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate… ”

Based on the foregoing, I find this appeal very obnoxious and as such it ought to be dismissed. I hereby dismiss the same and abide by the consequential appeal.

JOSEPH TINE TUR, J.C.A.:

I have had the opportunity to read in advance the judgment by my Lord Obande Ogbuinya, JCA, and I concur.
Suit No.KDH/KAD/192/93 was affirmed by the Court of Appeal in Appeal No. CA/K/85/98. Section 54 of the Evidence Act, 1990 read as follows:
“54. Every judgment is conclusive proof as against parties and privies, of fact directly in issue in the case actually decided by the Court and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

The appellant was bound by these two judgments.

In Ababio II vs Quartey & Anor Privy Council Judgments (1341-1973) by Otiza Chukura SAN page 115 their Lordships of the Privy Council held at page 116 as follows:

“If a wrong-doer is in actual possession, the real form of action at common law should be one of ejectment, though the difference between such an action and one of trespass is now of no practical importance of the facts are properly alleged; if, however, no one is in actual possession, the person who can prove his title is deemed to be in possession sufficiently to maintain an action of trespass, while again, as against a person having no title, actual possession alone unsupported by evidence of title is sufficient.”

The general rule is that no person is to be adversely affected by a judgment in an action he is not a party except he is a privy caught by the doctrine of res judicata or estoppel by conduct. See Ekpoke vs Usilo (1973) 6-7 SC 87 at 201. In this case the appellant testified in the lower Court as follows:
“I have seen exhibit “I” Major Bala Gusau and Alhaji Kubarachi were the Defendants in that case. These are my predecessors in title as far as the land is concerned. The decision was that Kubarachi had no title to pass to Major Bala Gusau (Rtd) because he had already sold the land to the plaintiff.”

 

No one sets out to prove what the opponent has admitted. See Section 75 of the Evidence Act, 1990; Olale vs Ekwelendu (1939) 7 SCNJ 181 and Awote vs Owodunmi (1987) 5 SCNJ 1. There is no substance in this appeal which I also dismiss.