UGOKWE v CHEMCUS INDUSTRIES & SERVICES LIMITED & ORS

UGOKWE v CHEMCUS INDUSTRIES & SERVICES LIMITED & ORS


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 25TH MAY, 2018


Appeal No: CA/L/788/2012
CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA
BIOBELE ABRAHAM GEORGEWILL, JCA
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA


BETWEEN

MR. ALFRED UGOKWE

(APPELLANT)

AND

CHEMCUS INDUSTRIES & SERVICES LTD
MR. CYRIACUS EZEKWEM
UKASONIC NIG. LTD
OJO LOCAL GOVERNMENT AREA

(RESPONDENTS)

PRONOUNCEMENTS

A. APPEAL
1. Interference with Evaluation of Evidence – Attitude of Appellate courts to interference with evaluation of evidence made by a trial court

Attitude of appellate courts as it relates to interference with evaluation of evidence made by a trial court

“I consider it expedient to emphasize that as a matter of law and practice, it is not the practice of this Court to interfere with evaluation of evidence and ascription of probative value to same by the Court below, unless the findings of the Court below are perverse, unreasonable and manifestly unsupportable thereby leading to wrong decision and injustice. It is the trial Judge who has the opportunity of seeing, hearing and watching the demeanor of the witnesses as they give evidence. See the decisions of the Supreme Court of Nigeria in CPC Vs. INEC & ORS (2011) LPELR-8257 (SC) Pg. 92-93, Paras. F – B; FRN vs. DAIRO & ORS (2015) LPELR-24303 (SC) Pg.48-49, Paras. D – C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR- 40297 (SC) Pg.55-56, Paras. E – D where my lord SANUSI JSC held as follows: “…It must be emphasized here and it is even settled law, that an appellate Court does not as a matter of practice or law interfere where trial Court unquestionably evaluates and justifiably upraises the facts. The reason for this practice is because it is the trial judge who takes down relevant evidence. Thereafter, when writing his ruling or judgment and the trial judge weighs the evidence in the surrounding circumstances of the case. That is called evaluation. When evaluation of evidence is properly done, the findings of that trial Court are difficult to be faulted by any appellate Court…”Per ABUBAKAR, J.C.A. read in context

2. Nature of Appeal – Position of the law on the purpose of an appeal

Purpose of an appeal

“The purpose of an appeal is not to re-litigate a matter or to consider issues that were not before the Court, rather, as observed by this Court in KINGSMAN MERCHANT CO. NIG. TD Vs. ECOBANK NIG. PLC (2017) LPELR-42924 (CA) Pg.9, Paras. B – D, “The position of the law is that the purpose of an appeal is to review the decision of the Court below by a higher Court. The Higher Court is to see if the Court below considered the facts properly and arrived at the correct decision…” See also OBASI & ANOR vs. ONWUKA & ORS [1987] NWLR (pt.61) 364; (1987) LPELR-2152 (SC) Pg.10-11, Paras. D – B and CONTRACT RESOURCE NIG. LTD. & ANOR vs. UNITED BANK FOR AFRICA PLC (2011) LPELR-8137 (SC) Pg. 13, paras. C – E.”Per ABUBAKAR, J.C.A. read in context

B. EQUITY AND TRUST
3. Bonafide Purchaser for Value Without Notice – Position of the law on protection of interest of a purchaser for value without notice

Position of the law as to the protection of interest of a purchaser for value without notice

“…From the foregoing therefore, it would be incorrect for the Appellant to contend that the Lower Court did not consider his plea of being a bonafide purchaser of an estate without notice in its judgment. The Lower Court considered the testimony of the Appellant and found that the Appellant stated that “he only looked around the shop but did not ask any question” and that contrary to his evidence-in-chief, he admitted that “he did not conduct any search.” The Appellant did not challenge these findings of the learned trial Judge. I think these findings are clear and cannot be impeached because the Appellant himself under cross-examination had stated that when he visited the shop, it was opened and someone was there; that he just looked at the shop and left without asking any question. The Supreme Court of Nigeria in BRAIMAH Vs. ABASI & ANOR (1998) 13 NWLR (Pt.581) 167; (1998) LPELR-801 (SC) Pg.28, Paras. D – F per WALI JSC considered the requirements to prove a ‘Bonafide purchaser for value’ to a property and the effect thereof and stated as follows: “I am in total agreement with the learned trial Judge that where a plea of bona fide purchaser for value is being made, there must be a valid transfer of the property to the man raising that plea. So where a deed of purchase or transaction upon which the plea is founded, transferred or conferred no estate or title to the purchaser for value, the plea is absolutely useless… ” See: also IGWEBE Vs. SAIDASHS INTL. LTD & ANOR (2016) LPELR-41188 (CA) Pg. 13-14, Paras. D – C. at Pg.15, Paras. A – C, this Court again held as follows; “Indeed the whole basis of the equitable principle of bona vide purchaser for value without is to protect a purchaser from fraud of his vendor… but the rule goes further, in the sense that, if a purchaser fails to investigate title properly, he is assumed to have constructive notice of everything that he would have discovered had he investigated the whole title diligently.” The Appellants plea of being a bonafide purchaser of an estate without notice in the circumstance is therefore spent in the face of the evidence that the Appellant failed to investigate the ownership of the shop and even when he visited the shop in question, he did not ask any question; and, in the absence of a valid transfer of the shop to the Appellant, the plea is unsustainable. The learned trial Judge who had the opportunity of seeing, hearing and observing the witnesses examined the testimony of the Appellant and his witness and at page 494 – 495 of the Records of Appeal and concluded as follows: “As it is clear from this judgment, the Court has considered the totality of the evidence proffered during trial and comes to the undeniable conclusion that the 2nd Defendant’s evidence has no weight at all to prove that the 1st Defendant has the capacity to sell the shop in dispute.” See: also the decisions of the Supreme Court of Nigeria in CPC Vs. INEC & ORS (Supra); FRN Vs. DAIRO & ORS (Supra) and FALEYE & ORS Vs. DADA & ORS (Supra).”Per ABUBAKAR, J.C.A. read in context

C. EVIDENCE
4. Statement Made By Interested Party –

Position of the law on the admissibility of documents or evidence by a person interested

“Section 83(3) of the Evidence Act, 2011 provides as follows: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” From the provisions of Section 83(3) of the Evidence Act, 2011, any statement involving a dispute as to any fact which the statement might tend to establish which is made by a person interested at the time when proceedings were pending or anticipated shall not be admissible as evidence. The two underlining conditions are when proceedings are pending; or when proceedings are anticipated. In the instant case, the records confirm that although the Suit was initiated by Writ of Summons dated that 21st of September, 2002, the 1st Respondent who is the maker of Exhibits K-K1, K2, K3 and K4 was yet to be served as at 4th November, 2002 and therefore cannot be said to have been in anticipation of the pendency of the Suit as at the 6th day of October 2012 when the said documents were made. See DISU OLOMO Vs. SUNDAY APE (2013) LPELR-22327 (CA) Pg. 21 – 22, Paras. F – B and ANYA Vs. ANYA (2014) LPELR-22479 (CA) Pg.26:28, Paras. C – A where this Court held as follows and I quote: “…As regards the application of Section 91(3) of the Evidence Act (now Section 83 (3) of the Evidence Act 2011, let me say straight off that the general rule and law is that documents made by an “interested” party during the pendency of a suit is inadmissible… This section was enacted to render inadmissible a document prepared by an interested person in order to defeat through its clear wordings, the course of justice. Such a document is rendered inadmissible when the maker knows about the pendency of the suit to which the documents is made and even where he does not know about the existence of the suit, he anticipated that a dispute might arise.” I agree entirely with the submissions of learned counsel for the Respondents that Exhibits K-K1, K2, K3 and K4 did not confer any advantage on the maker, and that these exhibits do not offend Section 83(3) of the Evidence Act, 2011 as contended by the Appellant. The 1st Defendant who is the maker of Exhibits K-K1, K2, K3 and K4 was not yet a party to this suit 6th of October 2012 when he wrote them and there is no evidence from which to infer that he made them in anticipation of this suit.”Per ABUBAKAR, J.C.A. read in context

D. PRACTICE AND PROCEDURE
5. Preliminary Objection – Appropriate time to hear a preliminary objection
Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal

“It is trite that where there is preliminary objection to the competence of an appeal, the preliminary objection must be heard and determined before the appeal is considered if so doing becomes necessary. I will therefore consider the preliminary objection first.”Per ABUBAKAR, J.C.A. read in context

6. Preliminary Objection – Obligation on the Court to not determine a substantive issue while determining a preliminary objection

Duty of Court not to determine a substantive issue while determining a preliminary objection

“Respondents preliminary objection in my humble view constitutes attack on some grounds of appeal, and the determination may not necessarily bring the appeal to the end. Again, learned Counsel for the Respondents in composing the preliminary objection strayed into the substantive appeal, in fact learned Counsel went as far as touching on the evidence generated at the trial before the Court below. This preliminary objection if determined as presently constituted will amount to tacit invitation to this Court to determine the substantive appeal at this stage which I am not permitted to do. Courts have been admonished to bear in mind that in determining preliminary objection, the Courts must be circumspect not to be invited into resolving substantive issues. See: AKAPO Vs. HAKEEM HABEEB (1992) 7 SCNJ 199, where KARIBI WHYTE (JSC) held as follows: “It is of paramount importance to bear in mind the fact that the application before the Court is for grant of interlocutory injunction pending the determination of the substantive claim brought by the plaintiff. The duty of the Judge in that situation is to ensure that he did not in the determination of the application determine the same issues that could arise for determination in the substantive action.” The preliminary objection by the 1st, 2nd and 3rd Respondents is misconceived, it is therefore discountenanced and dismissed.”Per ABUBAKAR, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABUBAKAR, J.C.A.


This appeal emanates from the Judgment of the High Court of Lagos State Badagry Judicial Division delivered on the 26th day of April 2012, by OSHODI J, in Suit No.LD/2024/2002.

At the Court below, the 1st to 3rd Respondents in this appeal as claimants, commenced action by writ of summons and statement of claim against the Appellant, the 4th and 5th Respondents. The Appellant filed defense and counter claim. The 1st-3rd Claimants did not file any defense to the counter claim. Trial commenced on the 12th day of April 2010. Judgment was delivered on the 26th day of April 2012 against the Appellant. Appellant became aggrieved by the decision and therefore filed Notice of appeal, the Notice of Appeal was eventually amended on the 30th day of May 2017, the Notice of Appeal contains five grounds of appeal.

The Appellant through learned counsel Sylvester Ijie filed amended Appellant’s brief and reply on the 30th day of May 2017. The 1st, 2nd and 3rd Respondents filed their brief of argument on the 13th day of February 2018 through learned Counsel Uche Ihediwa.

The Appellant through learned Counsel nominated the following four issues for determination, the issues are reproduced as follows:-

1. Whether the learned trial judge was right when he held that the 1st Respondent, registered as Chemcus Industries and services Nigeria Ltd is one and the same Chemcus Nigeria, Chemcus Ltd, and Chemcus Nigeria Ltd having agreed with the Appellant that Chemicus Ltd, Chemcus Nigeria and Chimcus Nigeria Limited are not registered company (Ground 1 of the Notice of Appeal).

2. Whether the admission and reliance of Exhibit K, K1, K2 &K3 by the learned trial Judge which are in admissible evidence has not occasioned miscarriage of justice against the Appellant (Ground 5 of the proposed Amended Notice of Appeal).

3. Whether the learned trial Judge having acknowledged that the Appellant’s tenants were harassed out of the property by the Respondent and his rent refunded can turn around to order for a refund of rent collected by the Appellant (Ground 5 of the proposed Amended Notice of Appeal.

4. Whether the non-consideration of the Appellant’s plea being a bonafide purchaser of an estate without notice in the Court’s judgment has not seriously affected Appellant’s case (Ground 4 of the proposed Amended Notice of appeal).

Learned Counsel for the 1st to 3rd Respondents on the other hand crafted two issues for determination, the issues are set out as follows:

1. Whether the learned trial Judge was right when he held that 1st to 3rd Respondents are entitled to a declaration of title and injunction over shop B306 Alaba International Market purchased in the name of Chemcus Nigeria Limited (Ground 1).

2. Whether the learned trial Judge was right in admitting and relying on exhibits K, K1, K2, K3, F, and G to find for the 1st – 3rd Respondents (Grounds 2, 3).

The 1st to 3rd Respondents filed Notice of preliminary objection through Counsel praying that the appeal be struck out for want of jurisdiction, and prayed for other orders the Court may find just and appropriate to make in the circumstance. The grounds upon which the reliefs are sought are as follows:

1. That the heading of the Notice of appeal is defective.

2. That grounds 1, 3, and 4 of the grounds of appeal as contained in the Notice of appeal are incompetent and liable to be struck out.

3. That despite the leave of this Court granted to the Appellant to amend file and serve the Amended Notice of appeal on the respondents, no Amended Notice of appeal has been served on the Respondents till date.

It is trite that where there is preliminary objection to the competence of an appeal, the preliminary objection must be heard and determined before the appeal is considered if so doing becomes necessary. I will therefore consider the preliminary objection first.

Learned counsel for the 1st to 3rd Respondents contended that the heading of the Notice of appeal is defective, and that grounds of appeal number 1, 3 and 4 are incompetent and therefore liable to be struck out. Counsel submitted issues for determination must flow from competent grounds of appeal; in support of this submissions learned Counsel for the 1st – 3rd Respondents relied on ANYAOHA vs. OBIOHA (2014) 6 NWLR (Pt.1404) 445; OBIALOR Vs. UCHENDU (2014) 11 NWLR (Pt.1419) 444; F.U.T. YOLA Vs. A.S.U.U. (2013) 1 NWLR (Pt.1335) 249, ABDULLAHI Vs. STATE (2013) 11 NWLR (Pt.1366) 435; MORTGAGES PHB LTD Vs. S.T.I. CO PLC (2016) 6 NWLR (Pt.1509) 465; ORGAN Vs. N.L.N.G LTD (2013) 16 NWLR (Pt.1381) 506 and AKEREDOLU Vs. MIMIKO (2014) 1 NWLR (Pt.1388) 402.

With regards to ground One, learned Counsel said the Lower Court never came to the conclusion that Chemcus Nigeria Ltd is not an entity known to law. Counsel said the conclusion reached was that 1st Respondent proved that it also carried out business in the same name Chemcus Nigeria Limited. Counsel also contended that the Lower Court did not find that Chemcus Nigeria Limited was a registered Company. Learned Counsel therefore urged this Court to discountenance the argument canvassed on Issue one, and strike out the ground of appeal.

Learned Counsel also questioned the admissibility of Exhibits F and G in ground 3. Learned Counsel said there is no argument on ground 3, that no issue was crafted from the said ground of appeal. Counsel also submitted that no issue for determination was crafted from ground 4, he therefore submitted that since no issues were formulated from the said grounds, the grounds must be deemed as having been abandoned by the Appellant and are therefore liable to be struck out. Learned Counsel urged this Court to strike out the said grounds relying on ABE Vs. UNILORIN (2013) (Pt.1303) 183, APAPA Vs. INEC (2012) 8 NWLR (Pt. 1303) 409, CPC Vs. LADO (2011) 14 NWLR (Pt.1266) 40, NBC Vs. UBANI (2014) 4 NWLR (Pt.1398) 421 and ADEJUMO Vs. OLAWAIYE (2014) NWLR (Pt.1421) 252.

Counsel also submitted that the names and addresses of parties in an appeal must be set out clearly in the Notice of appeal, the names must be properly spelt out, he relied on Order 6 Rule 2 of the Court of Appeal Rules 2011 and the decision in FRN Vs. MARTINS (2012) 14 NWLR

(Pt.1320) at 310. Counsel contended that Appellants Notice of appeal is defective because there is only one Appellant, but the Appellant listed the other two defendants as Appellants even though they have not filed any appeal, they are just listed as Appellants on the face of the Notice of appeal and no more. Counsel also submitted that failure to name the 4th Respondent as a part in the appeal rendered the appeal incompetent. Counsel referred to the decision in IHEDIOHA Vs. OKOROCHA (2016) 1 NWLR

(Pt.1492) 147 to submit that failure to endorse address for service, and serve the parties renders the notice of appeal incompetent and therefore liable to be dismissed. Counsel referred to page 521 of the records of appeal to submit that the names and addresses of the 4th and 5th Respondents are not listed on the notice of appeal, and their respective addresses for service have not been reflected. Counsel therefore urged this Court to dismiss the appeal. Counsel also referred to the decision in OBI Vs. ETIABA (2015) 6 NWLR (Pt.1455) 377 to submit that the notice of appeal cannot be cured by amendment because it is fundamentally defective.

Learned Counsel for the Appellant in his response contended that grounds of appeal emanate from the decision of the Lower Court, learned Counsel referred to pages 505 to 508 of the records of appeal and urged this Court to discountenance the submission of the Respondents. Counsel also contended that the submissions by learned Counsel for the Respondents that Appellants failed to proffer argument in support of the particulars of errors is misconceived because Order 6 (2) and (3) of the Court of Appeal Rules 2011 only talk about grounds of appeal not particulars of error.

With respect to issues 3 and 4, learned Counsel for the Appellant said the two issues were argued together in the Appellants brief of argument. Learned Counsel also submitted that the 4th and 5th Respondents were not affected by the decision of the Lower Court. Counsel also contended that there was no defect in the notice of appeal, and the Appellant obtained leave of Court to amend the notice of appeal and the application was not opposed by the Respondents, and that the amended notice of appeal was duly served on the Respondents along with the Appellant’s brief of argument. Learned Counsel for the Appellant urged this Court to discountenance the submissions and dismiss the Appellant’s preliminary objection.

RESOLUTION OF PRELIMINARY OBJECTION

Respondents preliminary objection in my humble view constitutes attack on some grounds of appeal, and the determination may not necessarily bring the appeal to the end. Again, learned Counsel for the Respondents in composing the preliminary objection strayed into the substantive appeal, in fact learned Counsel went as far as touching on the evidence generated at the trial before the Court below. This preliminary objection if determined as presently constituted will amount to tacit invitation to this Court to determine the substantive appeal at this stage which I am not permitted to do. Courts have been admonished to bear in mind that in determining preliminary objection, the Courts must be circumspect not to be invited into resolving substantive issues. See: AKAPO Vs. HAKEEM HABEEB (1992) 7 SCNJ 199, where KARIBI WHYTE (JSC) held as follows:

“It is of paramount importance to bear in mind the fact that the application before the Court is for grant of interlocutory injunction pending the determination of the substantive claim brought by the plaintiff. The duty of the Judge in that situation is to ensure that he did not in the determination of the application determine the same issues that could arise for determination in the substantive action.”

The preliminary objection by the 1st, 2nd and 3rd Respondents is misconceived, it is therefore discountenanced and dismissed.

I will now proceed to consider the substantive appeal. The Appellant submitted four issues for determination as reproduced earlier in this Judgment while the 1st, 2nd and 3rd Respondents nominated two issues. I will consider the submissions of Counsel on all the issues and resolve the issues in contention between the parties.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT

Submitting on Issue one, Counsel said a limited liability Company can only carry out business in its registered name and own properties also in its registered name; he referred this Court to OBIKE INTERNATIONAL LTD VS. AYI TELETRONICS SERVICES LTD (2005) All FWLR (Pt.256) 1369 page 1379, and Section 37 of the Companies and Allied Matters Act 1990. Counsel for the Appellant contended that during cross examination the 2nd Respondent admitted being aware that 1st Claimant is registered with the Corporate Affairs Commission, but that the other names, Chemcus Ltd, Chemcus Nigeria Ltd, and Chemcus Nigeria are not registered. Counsel said the learned trial Judge did not properly evaluate the evidence before the Court before reaching the conclusion that 1st Respondent is the lawful owner and in possession of shop B306 Alaba International Market.

Counsel also contended that the 1st Respondent is a limited liability Company and not a business name that may be regarded as one and the same with the names of its proprietors. Learned Counsel urged this Court to resolve this issue in favor of the Appellant.

Submitting on Appellant’s issue number two, learned Counsel said Section 83(3) of the Evidence Act 2011 expressly prohibits the admissibility of Exhibits K, K1, K2 & K3 which are email messages sent by the 4th Respondent to the 1st Respondent. Counsel said the learned trial Judge relied heavily on these Exhibits in arriving at a decision. Learned Counsel said the suit was instituted on the 24th day of September 2002, and the author of the said exhibits, the Appellant herein is the 4th Respondents, and the exhibits were shown to be made on the 6th day of October 2002, two weeks after the action had been filed. Counsel said the facts stated show clearly that the documents were made during the pendency of the action and were authored by a person interested. Learned Counsel said the documents were made when proceedings were pending and by the provisions of Section 83 (3) of the Evidence Act 2011 the pieces of evidence are not admissible in evidence.

Learned Counsel for the Appellant submitted that the exhibits relied upon by the Lower Court was inadmissible and must therefore be expunged from the records of the Court; reference was made to the decision in IBWA LTD Vs. IMANO (NIG) LTD (2001) 3 SC 182 at 191. Learned Counsel also submitted that it was wrong on the part of the Court to hold that the documents were admitted because there was no objection from the other side. Learned Counsel said the Lower Court could raise the issue of admissibility of the document on its own motion at any stage. Learned Counsel for the Appellant then urged this Court to expunge the exhibits from the records of the Court having been wrongly admitted in evidence and relied upon by the Lower Court in arriving at a decision, and resolve this issue in favor of the Appellant.

Addressing on issues number three and four, learned Counsel for the Appellant, Counsel issues submitted for determination must be considered by the Court before arriving at a decision, that when issues are joined by parties, the Court must consider them before coming to a decision. Learned Counsel referred to page 496 of the Records of Appeal to submit that the Lower Court referred to the argument of the Plaintiff but failed to consider the said argument in coming to a decision. The Lower Court according to learned Counsel failed to consider the cases cited and the argument canvassed at the hearing of the matter. Counsel said this failure on the part of the Court to consider the argument of the Plaintiff affected the case of the Appellant. Counsel also submitted that the Lower Court failed to properly analyze and evaluate the evidence generated at the trial. He urged this Court to resolve these issues in favour of the Appellant; allow the appeal; and set aside the decision of the Lower Court.

SUBMISSIONS OF COUNSEL FOR THE 1ST, 2ND AND 3RD RESPONDENTS

Learned Counsel for the Respondents said the contention of the Appellant is that since the 1st Respondent is not the same as Chemcus Nigeria td, the Court cannot rely on a document of title Exhibits F and G made in the name of Chemcus Nigeria td to make a declaration of title in its name. Relying on Section 37 of the Companies and Allied Matters Act Cap C22, Laws of the Federation 2004, learned Counsel said this contention is misconceived because the Lower Court did not find that Chemcus Nigeria Ltd is not a registered Company. Again, learned Counsel for the Respondents submitted that the juristic personality of Chemcus Nigeria Ltd was not an issue in the case. Counsel said the issue in contention is who has the right of use of the name Chemcus Nigeria Limited in Alaba International Market.

Counsel reproduced several paragraphs from the pleadings of the parties and the conclusion reached by the learned trial Judge, and said from the paragraphs, it is clear that the Appellant did not positively deny that the 1st Respondent is not known as Chemcus Nigeria Limited. Counsel further contended that there is no specific denial of the pleadings in paragraph 13 that the agreement with Ogbuefi Obi Nzeoniwu was entered into by the 1st Respondent in its short form name. Learned counsel submitted that that agreement was also tendered without any objection as Exhibit DWL. Counsel said where there is no specific denial of pleaded facts or evidence, it will be deemed as admitted; he relied on the decisions in EZENWA Vs. K.S.H.S.M.B (2011) 9 NWLR (Pt.1251) 89 and ACHILIHU Vs. ANYATONWU (2013) 12 NWLR (Pt.1368) 256.

Learned Counsel for the Respondents said it is not in doubt that the Appellant clearly admitted the fact that the 1st Respondent carries on business as Chemcus Nig, Ltd.

Learned Counsel therefore said there was no dispute as to who carries on business in that name. Counsel also said the law is fairly settled that where a person carries on business under an alias, action can be maintained in the person’s name wherein reference is made to his alias, he relied on the decision in IYKE MEDICAL MERCHANDISE Vs. PFIZER INC (2001) 10 NWLR (Pt.722) 540. The Respondents relying on the decisions in UTC Vs. PAMOTEI & ORS (1989) 2 NWLR (Pt.103) 244, AKPAN Vs. BOB (2010) 17 NWLR (Pt.1223) 421 at 479, OMOJU Vs. FRN (2008) 7 NWLR (Pt.1085) 38 at 57 submitted that Courts lean towards substantial matters bereft of crass technicality.

Learned Counsel for the Respondents submitted that there was consensus between the contending parties that the shop in controversy belonged to Chemcus Nig. Ltd; the Court therefore set out to determine where to associate the name and rightly found that in the 1st Respondent. Counsel therefore said the argument with respect to Section 37 of the Companies and Allied Matters Act is misconceived. Learned Counsel cited the decision in IYKE MERCHANDIZE Vs. PFIZER INC (2001) 10 NWLR (Pt.722) 540 to submit that going by the decision and following the doctrine of stare decisis and the provisions of Section 287 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) an action against Chemcus Nig. Ltd, could be maintained against Chemcus Industries and Services Ltd, and this also means the decision of the Lower Court is unassailable. Learned Counsel said the 1st Defendant Mr. Hyginus Ezekwem who allegedly sold the subject matter of litigation to the Appellant did not defend the action at the Court below; the Lower Court was therefore right in coming to the conclusion that he conceded the claims of the 1st Respondent.

Learned counsel relied on the decisions in ODUSOTE Vs. ODUSOTE (2012) 3 NW R (Pt.1288) 478, OLONADE Vs. SOWEMIMO (2014) 14 NWLR (Pt.1428) 475, and OKONKWO Vs. OKONKWO (2014) 17 NWLR (Pt.1435) 18 to further submit on behalf of the Respondents that findings made by the Lower Court cannot be set aside if it is shown that the findings are premised on the evidence generated at the trial. Counsel for the Respondents said the Appellant bought the shop occupied by the 3rd Respondent without conducting proper investigation of title to ascertain the proper identity of the owner of the shop. Counsel said the failure by the Appellant to conduct proper and diligent investigation of title was an act of carelessness on the part of the Appellant and that the decision of the trial Judge that the sale to the 2nd Appellant was null and void cannot be faulted.

Learned counsel contended that the doctrine of Bonafide purchaser for value without notice rests on good faith; purchase of legal estate; and absence of notice to the purchaser of any existing equity. Counsel referred to FOLASHADE Vs. DUROSHOLA (1961) 1 All NLR 87; PILCHER Vs. ROWLINS (1972) 7 Ch. App 25; BEST (NIG) LTD Vs. B.H. (NIG) LTD (2011) 5 NWLR (Pt.1239) 95; MOHAMMED Vs. MOHAMMED (2012) 11 NWLR (Pt. 1310) and submitted that the doctrine will not operate as a safe haven for the Appellant in the face of a doomed application for declaration of title and that there is no basis to invoke this equitable doctrine in the instant case. Learned counsel referred to the evidence of the Appellant at page 412 and the evidence of CW2 at page 426 of the Records of appeal to argue that the application of the doctrine of Bonafide purchaser for value without notice actually strengthens the 1st Respondent’s case.

Learned counsel submitted that prudence demands that the Appellant should have at least asked questions relating to ownership of shop 8306 from the occupant and therefore cannot invoke the doctrine of Bonafide purchaser for value without notice because he lacked bona fide and is deemed to have constructive notice of the title of the 1st Respondent. Counsel referred this Court to MOHAMMED Vs . MOHAMMED (Supra); OMOSANYA Vs . ANIFOWOSHE (1959) SC NLR 217; ODUNUKWE Vs. ADMIN GEN. E.S.C. (1978) 1 SC 5; ISHOLA Vs. U.B.N. (2005) 6 NWLR (Pt.922) 422 and NKUMA Vs. ODILI (2006) 6 NWLR (Pt. 977) 587 and urged this Court to resolve this issue in favor of the 1st, 2nd and 3rd Respondent.

On the second issue, learned counsel for the Respondents referred to OKONKWO Vs. OKONKWO (2014) 17 NWLR (Pt.1435) 18 to submit that where a document is admissible subject to a condition, its admission in evidence cannot be questioned on appeal if no objection was taken at the time it was tendered. Counsel relied on KUBOR Vs. DICKSON (2013) 4 NWLR (Pt.1345) 534 and N.B.A. Vs. KALEJAIYE (2016) 6 NWLR (Pt.1508) 393 to submit that a document signed after production does not qualify as computer generated evidence. Learned counsel referred to the findings of the Lower Court at page 402 of the Records of appeal to submit that Exhibits F, G, K-K1, K2, K3 and K4 were admitted without objection and therefore the Appellant cannot complain of their admission on appeal.

Learned counsel relied on TORTI Vs. UKPABI (2000) FWLR (Pt . 29) 2484 at 2510, Paras . B – D; OGHUOYONE Vs. OGHUOYONE (Pt.1182 ; FRN Vs. FANI-KAYODE (2010) 14 NWLR (Pt.1214) 481; and ANYAEBOSI Vs. R.T. BRISCOE (1987) 3 NWLR (Pt.59) 64 to submit that Exhibits F and G also tendered by the Appellant as Exhibits DWL and DWM were relevant in ascertaining the root of title and therefore the trial Court was right to admit and rely on them. Counsel argued that the Appellant’s contention that these documents were not admissible in evidence is misconceived and that the learned trial Judge did not rely exclusively on these documents but only as additional proof that the property belonged to the 1st Respondent. Learned counsel referred to page 515 of the Records of Appeal to submit that there were other pieces of evidence relied upon by the learned trial Judge. Counsel relied on ARCHIBONG Vs. THE STATE (2006) 14 NWLR (Pt.1000) 132; ADEYEMI Vs. STATE (2014) 1 NWLR (Pt.1423) 132 and UZOR D. F. LTD Vs. VOLKSWAGEN (NIG) (2010) 15 NWLR (Pt.1192) 97 to submit that even if these documents were excluded, the trial Court would have arrived at the same conclusion.

Learned counsel conceded that a document made by a person interested when proceedings are pending or anticipated is not admissible in evidence but argued that it is not sufficient to merely look at the date of the suit and the date of the document to conclude. Counsel argued that though the instant suit was commenced on the 21st of September, 2002, the 1st Respondent who is the maker of these exhibits was not served as at 4th November, 2002 and therefore was not aware that the suit had been filed as at 6th of October 2012 when the said documents were made. Learned counsel referred to KAMALU Vs. UMUNNA (1997) 5 NWLR (Pt.505) 321 and ONYENGE Vs. EBERE (2004) 13 NWLR (Pt.889) 20 to submit that the exhibits did not confer any advantage on the maker. Counsel submitted that these exhibits did not offend Section 91(3) of the Evidence Act, 2004 and therefore urged this Court to resolve this issue in favor of the Respondents. Counsel finally submitted that this appeal lacks merit and urged this Court to dismiss it with cost.

In reply to the submission of the Respondents, learned counsel for the Appellant referred to MUSA Vs. C.O.P (2004) 9 NWLR (Pt.879) 483; UAC NIG. LTD Vs. GLOBAL TRANSPORT S.A (1996) 5 NWLR (Pt. 448) 291 and OGUNDARE Vs. OGUNLOWO (1997) 6 NWLR (Pt.509) 360 to contend that the issues raised by the Respondents in their Brief differ from the issues raised by the Appellant and do not relate to the grounds of appeal and therefore the arguments canvassed in support should be struck out. Counsel relied on UMANAH Vs. ATTAH (2004) 7 NWLR (Pt.871) 89; STATE Vs. DUKE (2003) 5 NWLR (Pt.813) 394 at 419 and NIGERIAN AIRFORCE Vs. SHEKETE (2002) 18 NWLR (Pt.798) 147 to submit that the 1st, 2nd and 3rd Respondents have not filed any cross appeal and cannot raise issues for determination different from the issues relevant to the Appellants grounds of appeal. Learned counsel urged this Court to allow this appeal and set aside the Judgment of the Lower Court.

RESOLUTION

ISSUE ONE

The first issue for determination in this appeal is “Whether the learned trial judge was right when he held that the 1st Respondent, registered as Chemcus Industries and services Nigeria Ltd is one and the same Chemcus Nigeria, Chemcus Ltd, and Chemcus Nigeria Ltd having agreed with the Appellant that Chemcus Ltd, Chemcus Nigeria and Chemcus Nigeria Limited are not registered company (Ground 1 of the Notice of Appeal). The Appellants’ contention is that a limited liability Company can only own properties and carry out business in its registered name; t h a t t h e 2 n d R e s p o n d e n t a d m i t t e d t h a t 1 s t Claimant/Respondent is registered with the Corporate affairs Commission, but that the other names, “Chemcus Ltd”, “Chemcus Nigeria Ltd”, and “Chemcus Nigeria” are not registered; and that the 1st Respondent is a limited liability Company and not a business name that may be regarded as one and the same with the names of its proprietors.

The Respondents contended that the Lower Court did not find that Chemcus Nigeria Ltd is not a registered Company; that the juristic personality of Chemcus Nigeria Ltd was not an issue; but that the issue in contention is who has the right of use of the name Chemcus Nigeria Limited in Alaba International Market. The Respondents argued that the Appellant clearly admitted the fact that the 1st Respondent carries on business as Chemcus Nig. Ltd; that there was no dispute as to who carries on business in that name and that where a person carries on business under an alias, action can be maintained in the name of the person wherein reference is made to his alias; that there was consensus between the contending parties that the shop in controversy belonged to Chemcus Nig. Ltd and finally that the Court below set out to determine where to associate the name and rightly found that in the 1st Respondent.

I consider it expedient to emphasize that as a matter of law and practice, it is not the practice of this Court to interfere with evaluation of evidence and ascription of probative value to same by the Court below, unless the findings of the Court below are perverse, unreasonable and manifestly unsupportable thereby leading to wrong decision and injustice. It is the trial Judge who has the opportunity of seeing, hearing and watching the demeanor of the witnesses as they give evidence.

See the decisions of the Supreme Court of Nigeria in CPC Vs. INEC & ORS (2011) LPELR-8257 (SC) Pg. 92-93, Paras . F – B; FRN vs . DAIRO & ORS (2015) LPELR-24303 (SC) Pg.48-49, Paras. D – C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR- 40297 (SC) Pg.55-56, Paras. E – D where my lord SANUSI JSC held as follows:

“…It must be emphasized here and it is even settled law, that an appellate Court does not as a matter of practice or law interfere where trial Court unquestionably evaluates and justifiably upraises the facts. The reason for this practice is because it is the trial judge who takes down relevant evidence. Thereafter, when writing his ruling or judgment and the trial judge weighs the evidence in the surrounding circumstances of the case. That is called evaluation. When evaluation of evidence is properly done, the findings of that trial Court are difficult to be faulted by any appellate Court…”

In the instant case, the judgment of the learned trial Judge is contained at pages 484 – 497 of the Records of Appeal. At page 493, the trial Judge found as follows:

“Before the Court are the claim and counter-claim.

Both claim and counter-claim are founded on the ownership of a shop referred to as ‘shop B 306 Alaba International Market’ within the Ojo Local Government in Lagos State. Exhibits F & G tendered by the Claimants, which are copy of a letter tendered by the 2nd Defendant (being the same documents tendered by the Claimants) referred to this same shop. In this wise, there is dispute as to the identity of the shop in dispute. It should also be stated that these exhibits are sufficient documents in proving title to land.

From the evidence before the Court, there is no dispute that one Ogbuefi Obi Nzeoniwu was vested with the title of the shop in dispute, and that this Ogbuefi Obi Nzeoniwu transferred ownership of the shop to on entity referred to as ‘Chemcus Nigeria Limited’ on 6th May 1999. This is apparent from exhibits F & G tendered by the Claimants and DWL and DWM tendered by the 2nd Defendant.”

From this findings, it is not in doubt that the property subject matter of litigation is ‘Shop B 306 Alaba International Market’ which is situate at the Alaba International Market in Ojo Local Government in Lagos State and that the said property was owned by one Ogbuefi Obi Nzeoniwu who transferred his ownership of the said ‘Shop B 306’ to an entity referred to as ‘Chemcus Nigeria Limited’ on the 6th day of May 1999. The contention of the parties before the Lower Court was whether the 2nd Respondent who claimed to be the owner of ‘Chemcus Nigeria Limited’ is the owner of ‘Shop B 306’ or whether the 1st defendant at the Court below, Mr. Hyginus Ezekwem, whom the Appellant claimed to have purchased the ‘Shop B 306’ from is the true owner of ‘Chemcus Nigeria Limited’.

At page 495 of the Records of Appeal, the learned trial Judge again found as follows:

“From the evidence before this Court, the Claimants have shown that the 1st Claimant also carries on business under other names, Chemcus Nigeria Limited being one of the names. The Claimants have proved that the 1st Claimant did purchase the shop in dispute in the name of Chemcus Nigeria Limited. The Claimaints have proved that the 1st Defendant was the sales boy of the 1st Claimant and had no authority to dispose of the shop to anybody. This being the case, and applying the principle nemo dat quod habet, meaning that no one can give that which he does not have, the 1st Defendant having nothing can only give nothing. This being the case, the Claimants are entitled to claims 1 & 2 as appearing in the statement of claim.”

It is on record that the 1st Defendant, Mr. Hyginus Ezekwem who is supposedly the other person who owns ‘Chemcus Nigeria Limited’ in whom ownership of the subject matter of this suit, ‘Shop B 306’ is vested, failed, refused and neglected to defend this suit. Therefore, as between the Mr. Hyginus Ezekwem and Mr. Cyracuis Ezekwem the entity known as ‘Chemcus Nigeria Limited’ in whom the ownership of ‘Shop B 306’ is vested, the trial Court found that the latter, Mr. Cyracuis Ezekwem owns ‘Chemcus Nigeria Limited’ and ‘Chemcus Industries and Services Ltd’ (1st Respondent) which is owned by Mr. Cyracuis Ezekwem (2nd Respondent) also carries on business in other names including ‘Chemcus Nigeria Limited’. In my view, and taking into consideration the real issue in controversy between the parties before the Lower Court, as well as the evidence led by the parties and their various witnesses, the learned trial Judge came to the appropriate and correct conclusion, I do not therefore think it is proper to tamper with the decision of the Lower Court on this point.

The actual issue in contention was who had title to the subject matter of the suit, ‘Shop B 306’; the learned trial Judge from the evidence before the Court identified the owner of the land as ‘Chemcus Nigeria Limited’; the 2nd Respondent laid claim to ‘Chemcus Nigeria Limited’ as the alternative name used by his company “Chemcus Industries and Services Ltd”; while the Appellant contended that Mr. Hyginus Ezekwem, the 1st Defendant was the owner of the said ‘Chemcus Nigeria Limited’ in whose name ‘Shop B 306’ was bought. The said Mr. Hyginus Ezekwem who supposedly owned ‘Chemcus Nigeria Limited’ did not come forward to prove his ownership of ‘Chemcus Nigeria Limited’. The Lower Court therefore came to the conclusion
that “The Claimants have proved that the 1st Claimant did purchase the shop in dispute in the name of Chemcus Nigeria Limited.”

I do not think the Appellant in this appeal has put forward any concrete, cogent and sufficient reasons to justify any interference by this Court with the unimpeachable findings made by the learned trial Judge. The purpose of an appeal is not to re-litigate a matter or to consider issues that were not before the Court, rather, as observed by this Court in KINGSMAN MERCHANT CO. NIG. LTD Vs. ECOBANK NIG. PLC (2017) LPELR-42924 (CA) Pg.9, Paras. B – D, “The position of the law is that the purpose of an appeal is to review the decision of the Court below by a higher Court. The Higher Court is to see if the Court below considered the facts properly and arrived at the correct decision…” See also OBASI & ANOR vs. ONWUKA & ORS [1987] NWLR (pt.61) 364; (1987) LPELR-2152 (SC) Pg.10-11, Paras. D – B and CONTRACT RESOURCE NIG. LTD. & ANOR vs. UNITED BANK FOR AFRICA PLC (2011) LPELR-8137 (SC) Pg. 13, paras. C – E. I have considered the findings of the trial Court with respect to the real owner of the property ‘Shop B 306 Alaba International Market’ and I cannot but agree with and the decision reached by the learned trial Judge, whose findings on this issue remain unimpeachable. This issue is therefore resolved against the Appellant in favour of the Respondents.

ISSUE TWO

The second issue nominated for discourse by the Appellant is “whether the admission and reliance of Exhibit K, K1, K2 & K3 by the learned trial Judge which are inadmissible evidence has not occasioned miscarriage of justice against the Appellant (Ground 5 of the proposed Amended Notice of Appeal). The Appellant contended that Section 83(3) of the Evidence Act 2011 expressly prohibits the admissibility of Exhibits K, K1, K2 & K3 which the learned trial Judge relied on heavily in arriving at a decision; that the suit was instituted on the 24th day of September 2002, and the said Exhibits were shown to be made on the 6th day of October 2002, two weeks after the action had been filed which shows clearly that the documents were made during the pendency of the action. It was further argued that these exhibits relied upon by the Lower Court were inadmissible and must therefore be expunged from the records of the Court; that it was wrong on the part of the Court to hold that the documents were admitted because there was no objection from the other side; that the Lower Court could raise the issue of admissibility of the document on its own motion at any stage; this Court was urged upon to expunge the said Exhibits from the records of the Court having been wrongly admitted in evidence and relied on by the Lower Court in arriving at a decision.

The corresponding argument from the Respondents is that where a document is admissible subject to a condition, its admission in evidence cannot be questioned on appeal if no objection was taken at the time it was tendered; that a document signed after production does not qualify as computer generated evidence; that Exhibits F, G, K-K1, K2, K3 and K4 were admitted without objection and therefore the Appellant cannot complain of their admission on appeal; that the learned trial Judge did not rely exclusively on these documents but only as additional proof that the property belonged to the 1st Respondent; that there were other pieces of evidence relied upon by the learned trial Judge and that even if these documents were excluded the trial Court would have arrived at the same conclusion. The Respondents contended that Exhibits F and G also tendered by the Appellant as Exhibits DWL and DWM were relevant in ascertaining the root of title and therefore the trial Court was right to admit and rely on them; and that though a document made by a person interested when proceedings are pending or anticipated is not admissible in evidence, it is not sufficient to merely look at the date of the suit and the date of the document; that though the instant suit was commenced on the 21st of September, 2002, the 1st Respondent who is the maker of these Exhibits was not served as at 4th November, 2002 and therefore was not aware that the suit had been filed as at 6th of October 2012 when the said documents were made and therefore the Exhibits did not confer any undue advantage on the maker.

Let me quickly state that, as submitted by the Respondents, Exhibits F and G were also tendered by the Appellant as Exhibits DWL and DWM in ascertaining the root of title. Exhibit F is the copy of the letter dated 17th of May, 1999; while Exhibit G is the copy of the Change of Ownership dated 6th of May, 1999; both were admitted by the Lower Court in the course of the proceedings on 29th day of April, 2010. In the course of the proceedings on 2nd day of November, 2010, the trial Court admitted the copy of the letter dated 17th of May, 1999 as Exhibit DW1, while Exhibit DWM also admitted is a copy of the Change of Ownership dated 6th of May, 1999 (though recorded as 6th of May, 1995). See pages 403 and 411 of the Records of Appeal. These documents were the core considerations which influenced the conclusion of the trial Court in coming to decision on the ownership of ‘Shop B 306 Alaba International Market’ prior to 6th of May, 1999 and how ownership was transferred to “Chemcus Nigeria Limited”. At page 493, the learned trial Judge found as follows:

“…Exhibits F & G tendered by the Claimants, which are copy of a letter tendered by the 2nd Defendant (being the same documents tendered by the Claimants) referred to this same shop. In this wise, there is dispute as to the identity of the shop in dispute…

From the evidence before the Court, there is no dispute that one Ogbuefi Obi Nzeoniwu was vested with the title of the shop in dispute, and that this Ogbuefi Obi Nzeoniwu transferred ownership of the shop to an entity referred to as ‘Chemcus Nigeria Limited’ on 6th May 1999. This is apparent from exhibits F & G tendered by the Claimants and DWL and DWM tendered by the 2nd Defendant.”

The evidence relied on by the learned trial Judge in arriving at the decision disclose that “Chemcus Nigeria Limited” acquired ownership of ‘Shop B 306 Alaba International Market’ from one Ogbuefi Obi Nzeoniwu, the contention by the Appellant that Exhibits K-K1, K2, K3 and K4 were heavily relied on by the learned trial Judge in arriving at a decision is in my view baseless and untenable the contention has no bearing with the judgment of the Lower Court as contained in the Records of Appeal before this Court.

The said Exhibits K-K1, K2, K3 and K4 contained at pages 105 – 110 of the Records of Appeal are email correspondences supposedly from the 1st Defendant, Mr. Hyginus Ezekwem. The Appellant’s ground for challenging these Exhibits is that they offend Section 83(3) of the Evidence Act, 2011 because they were made on the 6th day of October 2002, two weeks after the action had been filed which shows clearly that the documents were made during the pendency of the suit which was instituted on the 24th day of September 2002. The Respondents agreed with the provisions of Section 83(3) of the Evidence Act, 2011 that although the instant suit was commenced on the 24th of September, 2002, the 1st Respondent who is the maker of these Exhibits was not served as at 4th November, 2002 and therefore was not aware that the suit had been filed as at 6th of October 2012 when the said documents were made and therefore the Exhibits did not confer any advantage on the maker.

The submissions of the Respondents are supported by the Records of appeal. At the proceedings of the Lower Court on 15th of October, 2002, the learned Counsel for the Respondents stated that only the 3rd Defendant had been served. Thereafter, an Ex-Parte Motion for substituted service of the Originating processes on the last known address of the 1st and 2nd Defendants was filed by the Respondents on the 10th day of October, 2002 which was granted on the 4th day of November, 2002. These facts are contained at pages 38 – 44 of the Records of appeal.

Section 83(3) of the Evidence Act, 2011 provides as follows:

“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

From the provisions of Section 83(3) of the Evidence Act, 2011, any statement involving a dispute as to any fact which the statement might tend to establish which is made by a person interested at the time when proceedings were pending or anticipated shall not be admissible as evidence. The two underlining conditions are when proceedings are pending; or when proceedings are anticipated. In the instant case, the records confirm that although the Suit was initiated by Writ of Summons dated that 21st of September, 2002, the 1st Respondent who is the maker of Exhibits K-K1, K2, K3 and K4 was yet to be served as at 4th November, 2002 and therefore cannot be said to have been in anticipation of the pendency of the Suit as at the 6th day of October 2012 when the said documents were made. See DISU OLOMO Vs. SUNDAY APE (2013) LPELR-22327 (CA) Pg. 21 – 22, Paras. F – B and ANYA Vs. ANYA (2014) LPELR-22479 (CA) Pg.26:28, Paras. C – A where this Court held as follows and I quote:

“…As regards the application of Section 91(3) of the Evidence Act (now Section 83 (3) of the Evidence Act 2011, let me say straight off that the general rule and law is that documents made by an “interested” party during the pendency of a suit is inadmissible…

This section was enacted to render inadmissible a document prepared by an interested person in order to defeat through its clear wordings, the course of justice. Such a document is rendered inadmissible when the maker knows about the pendency of the suit to which the documents is made and even where he does not know about the existence of the suit, he anticipated that a dispute might arise.”

I agree entirely with the submissions of learned counsel for the Respondents that Exhibits K-K1, K2, K3 and K4 did not confer any advantage on the maker, and that these exhibits do not offend Section 83(3) of the Evidence Act, 2011 as contended by the Appellant. The 1st Defendant who is the maker of Exhibits K-K1, K2, K3 and K4 was not yet a party to this suit 6th of October 2012 when he wrote them and there is no evidence from which to infer that he made them in anticipation of this suit. In the circumstance therefore, this issue must be and is hereby resolved against the Appellant in favour of the Respondents.

ISSUES THREE & FOUR

The Appellant addressed issues No. 3 & 4 together, the third issue for determination is “Whether the learned trial Judge having acknowledged that the Appellant’s tenants were harassed out of the property by the Respondent and his rent refunded can turn around to order for a refund of rent collected by the Appellant (Ground 5 of the proposed Amended Notice of Appeal.”; while the fourth issue is “whether the non-consideration of the Appellant’s plea being a bonafide purchaser of an estate without notice in the Court’s judgment has not seriously affected Appellant’s case (Ground 4 of the proposed Amended Notice of appeal)”. The Appellant submitted that issues for determination must be considered by the Court before arriving at a decision; that when issues are joined by parties, the Court must consider them before coming to a decision; that the Lower Court at page 496 of the Records o f A p p e a l r e f e r r e d t o t h e a r g u m e n t o f t h e Plaintiff/Appellant but failed to consider the said argument in coming to decision; and that the Lower Court failed to consider the cases cited and the argument canvassed at the hearing of the matter. Appellant argued that the Lower Court failed to properly analyze and evaluate the evidence generated at the trial and that this failure on the part of the Court to consider the argument of the Plaintiff affected the case of the Appellant.

In response, learned Counsel for the Respondents submitted that the Appellant bought the shop occupied by the 3rd Respondent without conducting proper investigation of title to ascertain the proper identity of the owner of the shop; that prudence demands that the Appellant should have at least asked questions relating to ownership of shop B306 from the occupant, Counsel for the Respondents said the Appellant cannot invoke the doctrine of Bonafide purchaser for value without notice because he lacked bona fide and is deemed to have had constructive notice of the title of the 1st Respondent; and that the decision of the trial Judge that the sale to the Appellant was null and void cannot be faulted. It was contended by the Respondents that the doctrine of Bonafide purchaser for value without notice is predicated on good faith; purchase of legal estate; and absence of notice to the purchase of any existing equity and that the doctrine will not operate as defense for the Appellant in the face of a ill-fated application for declaration of title; and that the application of the doctrine of Bonafide purchaser for value without notice actually strengthens the case of the 1st Respondent.

The learned trial Judge at page 494 of the Records of Appeal held as follows:

“It should also be stated that the evidence of the 2nd Defendant during trial should be handled with care. He stated that because the 1st Defendant was in possession of the title documents of the shop, the 1st Defendant is the owner of the shop. Then during cross-examination, he stated that he only looked around the shop but did not ask any question and despite being told that ‘Chemcus Nigeria Ltd’ is not a registered Company, but a trading name he neglected to conduct any prudent search or investigation to confirm the position of the 1st Dependant. He even, contrary to his evidence-in-chief, admitted that he did not conduct any search.”

The 2nd Defendant/Appellant under cross-examination contained at page 412 of the Records of appeal testified as follows:

“Yes I bought shop B306. Yes, I have visited the shop. I visited the shop last week. I can’t recall when I first visited the shop as at 2001.

Yes, I visited the shop as at the time I bought it. The shop was opened when I visited someone was there when I visited. Yes, I just looked at the shop and left I did not ask any question…”

From the foregoing therefore, it would be incorrect for the Appellant to contend that the Lower Court did not consider his plea of being a bonafide purchaser of an estate without notice in its judgment. The Lower Court considered the testimony of the Appellant and found that the Appellant stated that “he only looked around the shop but did not ask any question” and that contrary to his evidence-in-chief, he admitted that “he did not conduct any search.” The Appellant did not challenge these findings of the learned trial Judge. I think these findings are clear and cannot be impeached because the Appellant himself under cross-examination had stated that when he visited the shop, it was opened and someone was there; that he just looked at the shop and left without asking any question.

The Supreme Court of Nigeria in BRAIMAH Vs. ABASI & ANOR (1998) 13 NWLR (Pt.581) 167; (1998) LPELR-801 (SC) Pg.28, Paras. D – F per WALI JSC considered the requirements to prove a ‘Bonafide purchaser for value’ to a property and the effect thereof and stated as follows: “I am in total agreement with the learned trial Judge that where a plea of bona fide purchaser for value is being made, there must be a valid transfer of the property to the man raising that plea. So where a deed of purchase or transaction upon which the plea is founded, transferred or conferred no estate or title to the purchaser for value, the plea is absolutely useless… “

See: also IGWEBE Vs. SAIDASHS INTL. LTD & ANOR (2016) LPELR-41188 (CA) Pg. 13-14, Paras. D – C. at Pg.15, Paras. A – C, this Court again held as follows;

“Indeed the whole basis of the equitable principle of bona vide purchaser for value without is to protect a purchaser from fraud of his vendor… but the rule goes further, in the sense that, if a purchaser fails to investigate title properly, he is assumed to have constructive notice of everything that he would have discovered had he investigated the whole title diligently.”

The Appellants plea of being a bonafide purchaser of an estate without notice in the circumstance is therefore spent in the face of the evidence that the Appellant failed to investigate the ownership of the shop and even when he visited the shop in question, he did not ask any question; and, in the absence of a valid transfer of the shop to the Appellant, the plea is unsustainable. The learned trial Judge who had the opportunity of seeing, hearing and observing the witnesses examined the testimony of the Appellant and his witness and at page 494 – 495 of the Records of Appeal and concluded as follows:

“As it is clear from this judgment, the Court has considered the totality of the evidence proffered during trial and comes to the undeniable conclusion that the 2nd Defendant’s evidence has no weight at all to prove that the 1st Defendant has the capacity to sell the shop in dispute.”

See: also the decisions of the Supreme Court of Nigeria in CPC Vs. INEC & ORS (Supra); FRN Vs. DAIRO & ORS (Supra) and FALEYE & ORS Vs. DADA & ORS (Supra).

Issue No. 4 is hereby resolved against the Appellant in favour of the Respondents.

Finally, I will consider Appellant’s issue No. 3 with respect to the Order that he paid into the Court all the monies received as rent from the shop in dispute. The learned trial Judge at page 496 of the Records of Appeal found that

“Though there is no evidence as to show how mach the 2nd Defendant received as rent from the shop from the time of the purported sale of the shop to him by the 1st Defendant on the 10th October 2001, there is evidence that the 2nd Defendant was actively in the shop in dispute sometime in August 2002 and let it out to one Anayo E. Anibogu on 10th September 2002. The act of letting out the shop is enough proof that some rents were being derived till date.”

The Appellant admitted in his argument that the shop was indeed let out to one Anayo E. Anibogu but that the Lower Court failed to consider the evidence that the shop was shut down by the order of the Police. It must be observed that the learned trial Judge did not specify the amount to be paid by the Appellant but ordered that “all rents monies and sums he received as rents” from the said ‘Shop B 306’ be paid into the Court within 30 days. The Appellant has not disputed letting out the shop or not receiving rent from Anayo E. Anibogu to whom he let the shop out. His contention that the Shop was at some time closed up by the Order of the Commissioner of Police can only at best affect the amount which the Lower Court had left open to be determined by the Appellant. This issue is also resolved against the Appellant in favour of the Respondents.

On the whole therefore having resolved all issues in favour of the Respondents it follows therefore that Appellant’s appeal is devoid of merit and therefore deserves to be and is hereby dismissed. The Judgment of the Lower Court delivered by Oshodi J, on the 26th day of April 2012 in suit No.LD/2024/2002 is affirmed.

Cost of N200,000.00 is awarded to the Respondents against the Appellant.

GEORGEWILL, J.C.A.

I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR, J.C.A. delivered with which I agree and adopt as mine. I have nothing more to add.

OBASEKI-ADEJUMO, J.C.A.

I had the privilege of reading before now, the leading judgment of my learned brother, TIJJANI ABUBAKAR, JCA and I agree that the appeal lacks merit and ought to be and is hereby dismissed.

The judgment of the Lower Court delivered by OSHODI, J on the 26th of April, 2012 in suit No: LD/2024/2002 is hereby affirmed. I abide by the order as to costs in the leading judgment.

Appearances:

Sylvester D. Ijie with him, C. S. Igwe For Appellant(s)

H. S. K. Ejimofor, Esq.- for 1st-3rd Respondents

For Respondent(s)