➥ CASE SUMMARY OF:
Elizabeth Irabor Zaccala (suing by her lawful attorney, Mr. Christopher A. Irabor) V. Mr. Kingsley Edosa (suing by her lawful attorney, Mrs. Elizabeth Edosa), Mr. Emmanuelathekhame (SC.197/2005 · 12 May 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Sale of land to both different parties.
➥ CASE FACT/HISTORY
Appellant’s case is that the 1st respondent never made the balance of payment to the 2nd respondent within the agreed time. It follows, therefore, that the 2nd respondent duly exercised his option of sale, as his agreement with the 1st respondent had become inconclusive. Appellant’s agreement with the 2nd respondent is dated 13 November 1993, on which date she made the payment of the full purchase price of N800,000.00k (eight hundred thousand naira) to the 2nd respondent, the owner of the property. It is her further case that exhibit P was not in existence when she purchased the property in dispute from the 2nd A respondent. 1st respondent’s case, on the other hand, is that he entered an agreement with the owner of the property, 2nd respondent, on 10 August 1993 to purchase the property. By the agreement, the 1st respondent had paid a deposit of N400,000.00k (four hundred thousand naira) and the balance of N450,000.00k (four hundred and fifty thousand naira) was payable on or before the end of September 1993. Exhibit P indicates that the balance was paid on 23 August 1993, by the 1st respondent to the 2nd respondent.Given exhibit P, it is asserted, the sale agreement between the appellant and the 2nd respondent for the purchase of the property in dispute was subsequent to the sale between him and 2nd respondent.
At the conclusion of trial, the trial court granted appellant’s claim and dismissed 1st respondent’s counter-claim. Dissatisfied, the 1st respondent appealed to the lower court against the judgment by his notice filed on 22 May 2000. On 26 May 2006, the lower court, in allowing the appeal, set-aside the trial court’s judgment in favour of the appellant and granted the 1st respondent the relief urged in his counter-claim. It is against the lower court’s decision that the instant appeal has been filed.
➥ ISSUE(S)
I. Who, between the appellant and the 1st respondent, is the bonafide transferee of the title in the property situate at No.2B, Benoni Hospital Road G.R.A Benin City from the 2nd respondent the transferor?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[APPELLANT GOT NOTHING FROM THE SALE – 1ST RESPONDENT AND 2ND RESPONDENT ALREADY COMPLETED THE SALE
‘Appellant’s case is simply that the agreement, between the 1st and 2nd respondents in respect of the land in dispute, has ceased to be enforceable following 1st respondent’s failure to pay up the balance of the sale price within the stipulated time. The overriding question to answer is what evidence has the appellant led to prove his case? It is not in contention that the sale by the 2nd respondent to the appellant took place subsequent to the agreement between the 1st and 2nd respondents. The subsequent sale, appellant asserts, prevails following the transfer of title to him by the 2nd respondent who retains title on account of repudiating the earlier sale. On the other hand, 1st respondent’s case is that the agreement between him and the 2nd respondent persists as same, with the payment of the balance of the sale price within the stipulated time, evidenced by exhibit P, remains concluded. As at the time of the purported subsequent sale to the appellant, 1st respondent further avers, 2nd respondent lacked the title he purported to transfer to the appellants. The lower court, for all the reasons articulated in its judgment, cannot be faulted. The trial court is wrong to have found for the appellant who, beyond asserting his title in the land in dispute, led no evidence to prove his claim. The trial court’s findings on exhibits A and P tendered by the 1st respondent, as demonstrated in the judgment of the lower court, are manifestly perverse.’
‘With 1st respondent being the first to purchase the property now in dispute, the law is trite that equitable encumbrances rank as a rule according to their dates. Therefore, as between the two equities, in the instant case , the 1st respondent’s equitable interest is first in time. It ranks higher in law and will certainly prevail over the appellant’s subsequent title. It is also well settled as submitted rightly in my view, by the 1st respondent’s counsel, that, a purchaser of land who has paid and taken possession of the said land, by virtue of a registrable instrument, which has not been so registered has thereby acquired an equitable interest which is as good as a legal estate. See the case of Nsiegbe v. Mgbemena (2007) All FWLR (Pt. 372) 1769, (2007) 10 NWLR (Pt.1042) 364, (2007) 4 SCNJ 359, (2007 ) 152 LRCN 82 at page 86.’
WHERE EQUITIES ARE EQUAL, THE FIRST IN TIME PREVAILS
‘Both the appellant and 1st respondent claim title to the disputed land through the transactions each of them had with the 2nd respondent. In otherwords, they both claim that the 2nd respondent is their common grantor. The 2nd respondent was signatory to exhibits A and P. There was evidence of full payment of the agreed purchase price by the 1st respondent to the 2nd respondent before the transaction in exhibit A, between the appe lant and the 2nd respondent. At the time the 2nd respondent was purporting to have sold the same piece of land to the appe lant, vide exhibit A, he had no further title to pass to the appellant, having in exhibit P earlier passed his title and interest in the disputed land to the 1st respondent. Equity follows the law. Even if one should agree with the appellant’s slant towards solomonic justice by which both of herself and the 1st respondent would lose the disputed land on A one ground of non-compliance with section 26 of the Land Use Act, the fact remains that the 2nd respondent, from the transactions, had created equitable interest in the two buyers, namely the appe lant and the 1st appellant. Where equities are equal, the first in time prevails. On the basis of this equitable principle of priority the 1st respondent has a better title.’]
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✓ DECISION:
‘On the whole I find no merit in the appeal and same is hereby dismissed at a cost of N300,000.00 (three hundred thousand naira)in favour of the 1st respondent against the appellant.’
➥ FURTHER DICTA:
⦿ WHERE NO ISSUE SOUGHT TO HEAR FRESH ISSUE, NEW ISSUE WILL BE DISCOUNTENANCED
The resolution of appe lant’s 1st issue requires very snappy consideration of same. It is trite that an issue not raised at and determined by the two courts below and not being a jurisdictional issue must be a fresh issue in this court. It is only worthy of this court’s consideration after leave has been sought and obtained from the court. Where leave has not been so acquired, the court lacks the vires of considering and determining the fresh issue.Since appe lant’s 1st issue is such and no leave has been sought and obtained for the issue to be raised and argued in this appeal , the incompetent issue is accordingly discountenanced. See S.C.C (Nig) Ltd v. Our Line Ltd (2009) All FWLR (Pt. 498) 210, (2009) 17 NWLR (Pt. 1170) 382, (2009) 9 SCM 173, (2010) Vol 179 LRCN 154. — Muhammad JSC.
⦿ EVIDENCE AT VARIANCE WITH PLEADINGS GOES TO NO ISSUE
Firstly, learned counsel has undoubtedly ignored the principle on the relationship between pleadings and evidence. This court in an endless body of cases has held the most significant aspect of a claim to be pleadings and the evidence in their proof and that where evidence is not aligned with pleadings it serves no useful purpose to the claimant. Parties, the principle further enunciates, are bound by their pleadings and evidence at variance with the averment in the pleadings must be disregarded. Equallyall evidence received in respect of matter not properly pleaded amount to illegally admitted evidence and go to no issue. To succeed the claimant must therefore plead such facts and materials to sustain the claimant adduce evidence to prove same. See Alhaji Kabiru Abubakar and Anor. v. John Joseph and Anor. (2008) AllFWLR (Pt. 432) 1065, (2008) 13 NWLR (Pt. 1104) 307, (2008 ) 5 – 6 SC (Pt. II) 196 – 197, (2008) LPELR 48 (SC); Nwanji v. Coastal Services (Nig.) Ltd (2004) All FWLR (Pt. 219) 1150, (2004) 10 SCNJ 154, (2004) LPELR – 2106 (SC) and Ativie v. Kabelmetal (Nig.) Ltd (2008) A l FWLR (Pt. 430) 667, (2008 ) 10 NWLR (Pt. 1095) 399 , (2008) LPELR-591 (SC). — Muhammad JSC.
⦿ DECLARATORY RELIEFS ARE NOT GRANTED EVEN ON ADMISSION
Secondly, there is the well settled principle that requires the appellant to plead and prove his declaratory reliefs on the evidence he calls without relying on the evidence called by the defendant. In the instant case, where both parties seek declaration of entitlement to the certificate of occupancy in respect of the land in dispute, each must establish to the satisfaction of the court his entitlement as such reliefs are not granted even on the admission by the defendant. See Dumez (Nig.) Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at pages 373 – 374, (2008) 12 SC (Pt. 111) 142, (2009) All FWLR (Pt. 461) 842; Emenike v. Peoples’ Democratic Party (2012) All FWLR (Pt. 640) 1261 , (2012) 12 NWLR (Pt. 1315) 556, (2012) 5 S.C. (Pt. 1) 113 , (2012) LPELR – 7802 (SC) and Senator lyiola Omisore and Anor. v. Ogbeni Rauf Adesoji Aregbesola and Ors. (2015) LPELR- 24803 (SC) . — Muhammad JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad JSC JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
B.K. Abu.
⦿ FOR THE RESPONDENT(S)
P. I. Oiwoh.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
