Mr. Babatunde Harding & Anor V. The Administrator General and Public Trustee of Lagos State & Anor (2016)

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BIOBELE ABRAHAM GEORGEWILL, J.C.A.

This is an appeal against the judgment of the Lagos State High Court sitting in the Ikeja Judicial Division in suit No. ID/655m/2009: Mr. Babatunde Harding & Anor Vs. The Administrator General and Public Trustee of Lagos State & Anor delivered on 17/6/2011 by Y, A. Adesanya J. in which the reliefs sought by the Appellants as Claimants against the Respondents were refused and dismissed.

The Appellants who were thoroughly dissatisfied with the said judgment had promptly appealed against the said judgment vide a Notice of Appeal filed on 18/7/2011 on four Grounds of Appeal. The Record of Appeal was transmitted to this Court on 2/11/2011 but deemed duly transmitted on 5/2/2013. The Appellants’ brief was filed on 14/8/2013 but deemed duly filed on 23/2/2016. The 1st Respondent’s brief was filed on 13/9/2013 but deemed duly filed on 23/2/2016. The 2nd Respondent, though duly served with the processes in this appeal did not file any brief and the appeal proceeded to hearing on the briefs of the Appellants and the 1st Respondent only.

?At the hearing of the

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Appeal on 26/9/2016, only the Appellants were represented by counsel, while the Respondents, though duly served with hearing notice on 15/8/2016 did not appear to participate at the hearing of the appeal. Ejeta Otuoniyo Esq., for the Appellant, appearing with Judith Kuforigi (Mrs) and Miss Adesina Ekewele, adopted the Appellant’s brief as their arguments in this appeal and urge the Court to allow the appeal, set aside the judgment of the Court below and in its stead grant all the reliefs claimed by the Appellants as Claimants against the Respondent before the Court below.
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The Court upon being satisfied that the Respondents had been duly served with hearing notice and that the 1st Respondent had filed its brief proceeded to invoke the provisions of Order 18(9) (4) of the Court of Appeal Rules 2011 and deemed the 1st Respondent’s brief as having been adopted as the arguments of the 1st Respondent in this appeal.
By an originating summons filed on 4/8/2009, the Appellants raised a sole question for determination before the Court below, namely;
“Whether sequel to the judgment of the Hon Justice O. Gbaja-Biamila in Suit No.ID/800m/2001 and the

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discovery that the property lying and situate at 8 Alli street is vacant and unsold, the beneficiaries of the Estate of Williams Richmond Harding Descendants family are not entitled to the reversionary Estate in the said No, 8, Alli Street, Lagos.”
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If the answer to the above is in the affirmative, the Appellants sought the following reliefs:
1. The Claimants being lineal descendants, heirs and persons beneficially residual and reversionary estate of William Richmond Harding suit No:ID/800M/2001 are entitled to the residual and reversionary interest in the property known as 8, Alli Street, Lagos.
2. An order directing the Defendant to vest the property known as 8, Alli Street, Lagos on the Claimants by executing a vesting Deed in the Claimants’ favour.
3 An order directing the Registrar of titles to rectify the Register by deleting the entries any other beneficiary other than the late William Richmond Harding, (Page 1 & 2 of the Records).

The gist of the Appellants’ case can be seen in the depositions in their 17 paragraph affidavit and further and better affidavit in support of the Originating Summons, attached to which were

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several documents marked as Exhibits BH1 – BH4. The Appellants stated that by a Judgment delivered on 28/6/2002, which is Exhibit BH1, the Lower Court per Gbaja – Biamila J., declared them beneficially entitled to the residual estate of the late Williams Richmond Harding, whose ?will? dated 16/6/1921 and probated by the Supreme Court on the 10/5/1927 contained some devises including the one under dispute between the parties. It was also their case that by the said Judgment, the 1st Respondent was completely divested of the administration and trusteeship of all properties and incomes in the residual estate and vested same on the lineal descendants, who are the Appellants in Exhibit BH1 claimed the return of three of the properties, namely; 8, Tinubu Square, Lagos registered as No.27/291, Lagos; B, Alli Bamgbose Street, Lagos registered as No. 30/120/44 at Lagos, which is the property in dispute; and 116, Denton Street, Ebute-Metta registered as No.138/46/275 at Lagos. On the other hand, the case of the 1st Respondent as can be seen in its counter affidavit was rather very simple and it was that the only property in its custody relating to the Estate

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of W.R Harding was 116, Denton Street, Ebute-Metta, Lagos and was thus not in position to vest any title in the Appellants as sought in the Originating Summons. See Pages 3-15; 28-34; 40 – 47 of the Records.

In the Appellant’s brief, four issues were distilled as arising for determination on this appeal namely:
1. Whether the joinder or non joinder of a purported ‘interested party’ was capable of defeating the determination of the legal issues raised in the Originating Summons against the named Respondents? (Ground 1)
2. Whether there were any facts before the trial Judge to come to the ‘Over riding’ conclusion that Chief Kofo Abayomi was a necessary party to the action? (Ground 2)
3. Whether a trial Judge is entitled to defeat an action on a non canvassed issue, notice of which was never given? (Ground 3)
4. Whether the principle of law protecting equitable title to property vide physical possession as held by the learned trial Judge was applicable to this case?
(Ground 4)

In the 1st Respondent’s brief, two issues were distilled as arising for determination in this Appeal, namely:
1. Whether in the face of the findings

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and conclusions in the judgment of the Lower Court, any miscarriage of justice was occasioned as a result of any wrongful evaluation of facts presented to the Lower Court by the parties?
2. Whether the principle of law protecting equitable title to property in physical possession by the Lower Court was applicable to this case?
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I have given due considerations to the facts, circumstances and evidence of the Parties in the printed record. I have also taken time to review the submissions of Counsel in their respective briefs and it does appear to me that the issues arising for determination in this appeal can be situated within a narrow compass and can be adequately considered and disposed of on a due consideration of the first and fourth issues as distilled in the Appellants’ briefs. It is my considered view that a consideration of these two apt issues, of which the Appellants’ fourth issue is the same as the 1st Respondent’s second issue two, and thus would invariably involve a consideration of all the other issues as distilled in the respective briefs of the parties. I do hereby adopt and set down the following two issues as the apt issues for

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determination in this appeal, which I shall consider ad seriatim, namely;
1. Whether the joinder or non joinder of a purported ?interested party? was capable of defeating the determination of the legal issues raised in the Originating Summons against the named Respondents?
2. Whether the Principle of Law protecting equitable title to property in physical possession as held by the Lower Court was applicable to this case?
ISSUE NO. ONE
“Whether the joinder or non joinder of a purported ‘interested party’ was capable of defeating the determination of the legal issues raised in the Originating Summons against the named Respondents?”
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Appellants’ counsel had submitted that the property known as No.8, Alli Street Lagos, even though there was evidence that some persons sought to transfer to a third party , it failed and contended that the Respondents had no facts other than that a purported document signed by an unknown person purporting to be a Federal Administrator General transferring a trust property with no evidence of payment for the said transaction and the property was thus still in custody of the Respondents when this

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action was commenced, since in law facts deposed to in an affidavit if not controverted such facts must be taken as true. Counsel relied on Alagbe V. Abimbola (1978) 2, SC. 39; Egbuna V. Egbuna (1989) 2 NWLR (Pt.106) 773; Yahaya v. FRN (2007) 23 WRN 127.

Appellants’ counsel further submitted that the questions when does it become desirable for a third party to be joined in an action and at whose instance can such a party be joined were clearly answered by the provisions of Order 13, Rules 15 (3) of the High Court of Lagos State Civil Procedure Rules, 2004 to the effect that a judge may order that the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added. Counsel relied on Chief U. C. Obumseli & Anor V, Chief Uwakwe (2009) 28 W.R.N. 147 @ pp. 167 – 768; Mufutau Olayiwola & Ors. V. FRN (2006) 8 WR.N. 109 @ pp.148 -149.
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Appellant’ counsel also submitted that the foray into the issue of non joinder not raised by the parties occasioned a miscarriage of justice, in that all the other issues were

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resolved in favor of the Appellants and was thus raised, suo motu as a surprise by the Court below and resolving same without calling on the parties to address it on the issue and in favor of a party not before the Court. Counsel relied on Mufutau Olayiwola V. FRN (supra) @ pp.150 ? 151; Odua’a Investments Co. Ltd, V. Talabi (1991) 1 NWLR (Pt.170) 761.

Appellants’ counsel further submitted that the Court below having agreed that 1st Respondent inherited the liabilities and duties of the Federal Administrator General who purported to have executed the inchoate transfer document, Exhibit BH3 which purported to sell the subject matter to Sir Kofo Abayomi, it had necessarily established a privity of contract and estate between the 1st Respondent and the said Sir Kofo Abayomi and contended that in law it was sufficient for the Appellants to sue the Respondents alone who had the legal title still resting with them. Counsel relied on Makoshi Daniel V. Senator Alex Kadiri (2011) 14 WRN 160; Osunrinde V. Ajamogun (1992) 6 NWLR (Pt.246) 156 @ p.187.
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Appellants’ counsel further submitted that a look at the contents of Exhibit BH3, a partly executed

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document by the said Federal Administrator General purporting to sell a trust property to a tenant in the said property and Exhibit BH4, whatever the mode of entry of the said interest of Sir Kofo Abayomi into these subject matter, the 2nd Respondent properly raised the questions in Exhibit BH4, which the Court below glossed over by failing to evaluate them and contended that Exhibit BH4 effectively unplugged whatever ‘arranged’ proprietary interest that Sir Kofo Abayomi wanted to acquire in the subject matter, that would have been capable of legal protection. Counsel relied on Administrator General, Cross River State V. Chukwuogor (Nig.) Ltd. & Ors. (2007) 23 WRN 44 @ p.58; Bank of the North & Anor. V. Aliyu (1999) 7 NWLR (Pt.612) 622; Ekpenyong v. Nyong (2003) 51 WRN 44.

1st Respondent’s counsel submitted that the Court below did not just arrive at its conclusion not to make any order against a non-party but the finding was based on facts as established by the parties in evidence to the effect that the subject matter was no longer in possession of the 1st Respondent and contended that on the face of all these findings of facts and uncontroverted

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documentary exhibits the Court below was right in its findings and conclusions resulting in the refusal of the Appellants’ reliefs since a non party cannot be bound by a decision of Court, which ordinarily ought to affect him unless he is made a party. Counsel referred to Section 272 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and relied on Balogun & Ors. v. Alimi Agboola (1974) 1 All NLR (Pt.11) 66 @ p.73.

1st Respondent’s counsel further submitted that in law the Court below would not be acting judicially to suo-motu join the buyer of the subject matter under the guise of invoking the provisions of Order 13 Rule 16(3) of the High Court Civil Procedures of Lagos State 2004, having no such discretion to do so suo motu and contended that on the contrary the Court below acted judicially in its refusal to suo-motu join the buyer of the subject matter of the suit to refrain from dabbling into the case of the parties, even though it saw the need for the buyer to be joined as party. Counsel relied on Mufutau Olayiwola v. FRN (2006) 8 WRN 109 @ pp.151- 152.
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1st Respondent’s counsel also submitted that the

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Court below finding that the buyer was a necessary party who ought to be joined was arrived at on the basis of inference of law resulting from facts placed before it and therefore, does not amount to an issue raised suo motu and decided upon without hearing the parties as erroneously submitted by the Appellants and contended the Court below was entitled to evaluate the facts before it and indeed rightly came into the said conclusion. Counsel relied on Eyo V. Inyang (2001) 1 NWLR (Pt. 715) 1; Chief V. C. Obumseli & Anor. v. Uwakwe (2009) 29 WRN 147 @ pp. 167 – 168.

1st Respondent’s counsel further submitted that the yardstick for the Court below finding that the buyer of the property ought to have been joined was as a result of its finding as of fact that an equitable interest has been passed to the said buyer and that 1st Respondent could no longer be in position to confirm the veracity of the Appellants’ averments in paragraphs 12, 13 & 14 of the affidavit in support of the Originating Summons and contended that the conclusion of the Court below on the desirability of joinder of the buyer was rightly made based on the deductions from facts before

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it that even though the legal documentation for the sale was inchoate yet there was an element of equitable interest that had passed to the buyer of the property. Counsel relied on Eyo v. Inyang (supra).

1st Respondent’s counsel also submitted that while the decision in Osurinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 187 remains good law, it does not avail the Appellants as it is inapplicable because the Appellants’ depositions in their affidavit was not on whether the 1st Respondent lacks capacity to sell the property in question but rather whether the sale transaction over the property between the 1st Respondent and the buyer was a nullity as result inchoate legal documentation, which thus passed equitable interest to the buyer and in position to respond to the facts alleged by the Appellants.

My lords, it was on the strength of the diverse facts as deposed to by the parties in their respective affidavit, further affidavit and counter affidavit evidence that the Court below having appraised same in line with the applicable principle of law had held inter alia thus:
“There is no indication that the purported purchaser in exhibit BH3 complied with

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the observations and regularized his position for well over 45 years. Be that as it may, no order can or should be made in respect of this property against the interest of the purported buyer, sir Kofo Abayomi or his estate since he was not a party to the earlier proceeding nor the instance, He cannot therefore BE BOUND by the general findings of the Court on the parties in the WILL of late Harding, as far as No.9 (sic) Alli Street is concerned. This is because even where a Deed of conveyance is inchoate and was not registered, the law still protects the right of such a buyer who is in possession of the property? The Applicants in paragraphs 12, 13 and 14 of the affidavit in support deposed that the property was vacant dilapidated and had become a latrine, whereupon they took possession of same, these facts cannot be confirmed in the absence of the purported buyer in Exhibit BH3. He or his estate should have been joined in this action to ascertain the averments in paragraphs 12, 13 and 14? I must agree with the submission of the learned counsel for the Applicants that upon the creation of Lagos State, the Administration of Estates

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situated within the State previously administered and managed by the Federal Administrator General became automatically vested in the Administrator General of Lagos State.” See pages 101 -114 of the Record.

A proper consideration of the first issue for determination would in my view invariably involve a consideration of three salient questions, namely;
1. Was the non joinder of Sir Kofo Abayomi or his estate, as the case may be, fatal to the claims of the Appellants as in their Originating Summons against the Respondents?
2. Was the Court below right when it held that the non joinder of Sir Kofo Abayomi was fatal to the claims of the Appellants against the Respondents and consequently refusing and dismissing same?
3. Was Sir Kofo Abayomi a necessary party who ought to be joined to the suit of the Appellants against the Respondents?

Now, on when a party can be joined to an existing suit and the consequences of failure to do so, the law appears to have been well settled as are replete in several decisions of the apex Court and this Court. The law is that non joinder or even mis-joinder of parties, including even necessary

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parties to a Suit is now a mere irregularity which by itself is no longer capable in law to render an otherwise competent Suit incompetent. See Azuh V. UBN Plc (2014) LPELR 22913 (SC), where the Supreme Court per Kekere – Ekun JSC., had pronounced with finality thus:
“The position of the law is that non joinder of a necessary party in a Suit is an irregularity that does not affect the competence or jurisdiction of a Court to adjudicate on the matter before it”
See also Okoye v. Nigerian Construction & Furniture Co, Ltd. & Ors. (1991) 7 SC (Pt.111) (Reprint) 33 @ p, 56; Green v. Green (1987) 3 NWLR (Pt 60) 480, Chief Obumseli & Anor v. Chief Uwakwe (2009) 28 WRN 147 @ p.167; Administrator General, Cross River State V, Chukwuogor (Nig.) Ltd. & ORS.(2007) 23 WRN 44 @ p.58; Bank of the North & Anor. V. Aliyu (1999) 7 NWLR (Pt 612) 622. Ekpenyong v. Nyong (2003) 51 WRN 44?
The above position of the law has since been given statutory approval by the succinct provisions of Order 13 Rules 16 (3) of the High Court of Lagos State Civil Procedure Rules, 2012 which provides as follows:
16(3) ?A judge may order that the

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names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added.”
However, a caveat must be pointed out immediately that in law if a necessary party or any party for that matter is not joined to a Suit, any order made against a person who was not a party to the Suit before the Court, though not a nullity, is to no avail and thus not binding on such a non party to the action. See Uwazurike & Ors. v. AG. Federation (2013) 4 – 5 SC (Pt.1) 90 @ p.119, See also Uku v. Okumagba (1974) 7 All NLR (Pt.1) 475; Azuh v. UBN Plc (supra) @ pp. 37 – 38;
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In the light of the above trite position of the law both statutory and judicial, therefore, and coupled with the established fact on the evidence of the parties that the alleged buyer of the subject matter for whose absence the Court below declined to grant the claims of the Appellants against the Respondents was in law a privy to the Respondents, it is clear to me and I so hold that the non joinder of the alleged buyer to this Suit was in law a non starter and thus

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completely of no moment to the competence and or merit of the claims of the Appellants, since whatever judgment is obtained against the Respondents would clearly be binding on its privry, including the alleged buyer. See OSUNRINDE v. AJAMOGUN (1992) 6 NWLR (Pt.246) 156 at 187, where it was held inter alia thus:
“The general rule of law undoubtedly is that nobody is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him in his absence, But this general rule admits of two exceptions, one is that a person who is in privity with the parties, a ‘privy? as he is called is bound equally with the parties in which case he is estopped by res-judicata?..?
See also the succinct views of Bada JCA @ p. 169 – 171 inter alia to the effect that:
“It is the law that a privy is bound by a judgment against the interest of the person through whom he claims title if the subject matter is the same property or piece of land.”
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All these facts were not even in dispute as the Respondents did not controvert these depositions in the affidavit and further affidavit

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evidence of the Appellants and thus in law the Court below ought to have acted on them as they are good evidence on which the Court should act having not been controverted by the Respondents. This is so because in law facts deposed to in an affidavit which are not controverted must be taken as true and duly established except they are palpably false. See Alagbe v. Abimbola (1978) 2, SC 39. See also Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Yahaya v. FRN (2007) 29 WRN 127.

It is true that it is the duty of the Court below to evaluate these facts before it but it must in doing so not raise and resolve issues not raised by the parties without calling on them to address it upon such issues raised suo motu or take into consideration extraneous matters not borne out by the evidence placed before it by the parties. In law, therefore, the duty to assess the quality of evidence to accept or reject it belongs to the trial Court and thus where the issue involves only the credibility of evidence, the Appellate Court would not readily interfere, unless there are exceptionally strong reasons to so do. See Gundiri v. Nyako (2014) 2 NWLR (Pt.1391) 201; Saeed v. Yakowa

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(2013) 17 NWLR (Pt.1352) 124.

In Eyo V. Iynang (supra), this vital duty of trial Courts was so succinctly put thus;
“A trial Court is entitled to follow its own method of considering or weighing the totality of the evidence before it provided the final decision arrived at by whatever method conforms with principles laid down in the case and the justice of the case.”

My lords, it would appear, though curiously, that on almost all the issues of facts on which the parties joined issues on their affidavit and counter affidavit evidence, the Court below had found in favour of the Appellants and there are no grounds of appeal challenging those established facts in favour of the Appellants. In law therefore, there being no appeal against those findings I take them as duly established, conclusive and thus binding on all the parties. See Yesufu V. Kopper Intl. (1996) 5 NWLR (Pt.446) 17, See also Tsowa Nig. Ltd. v. UBN Ltd. (1996) 5 NWLR (Pt.471) 129; Nwabueze V. Okoye (2002) 10 WRN 123; Otuedon V. Olughor (1997) 9 NWLR (Pt 521) 355; Okotie – Eboh V. Manager (2005) All FWLR (Pt.241) 277.

Now, it is the Respondents who allegedly sold the property to the

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alleged buyer and had also alleged that the property in the subject matter no longer vest in them having allegedly divested themselves of same in favour of the alleged buyer, one Sir Kofo Abayomi and thus the burden of proving this assertion is on the Respondents and not the Appellants. The law is and has always been that it is he who alleges the affirmative that carries the burden of proving what he positively asserts and not for he who asserts the negative, which is incapable of proof. This has been the position of the law from antiquity and as abound in several jurisdictions. See Elemo v. Omolade & Ors. (1968) NMLR 359, See also Atane V. Amu (1974) 70 SC 237; Fashanu V, Adekoya (1974) 6 SC 83; Onyenge V. Ebere 18 NSCQR (Pt.11) 789; Vulan Gases Ltd, V .Gesellschaft Fur Ltd. (2001) 9 NWLR (Pt.719) 610.
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On the established facts, whose duty was it to join the alleged buyer as a party, assuming but not so deciding that he was a necessary party who ought to be joined and whose presence is essential for the effective and effectual determination of all the issues raised in the Originating Summons of the Appellants? In my view, that duty, if any and if at

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all, lies squarely on the Respondents and not on the Appellants, who having sued the Respondents to whom the alleged buyer is clearly a privy, need not join the privy to the suit, since in law a privy is bound by the judgment obtained against the party who had allegedly transferred title to property to him. To hold otherwise and to the contrary, as did the Court below, that it was the Appellants who ought to have joined the alleged buyer and privy to the Respondents was in my finding a clear misplacement and misapprehension of the burden of proof by the Court below. It is a grave error that has misled the Court below to arrive at its erroneous finding that the claims of the Appellants ought to be refused.
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However, if the Court below had despite this error arrived at a correct finding that the non the joinder of the alleged buyer was not fatal to the claims of the Appellants, then in law its judgment would still be allowed to stand, since an Appellate Court is not so much concerned with the correctness or wrongness of the reason proffered for the decision but rather concerned with the correctness or wrongness of the decision reached by the Lower Court. See

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Alhaji Ndayako & Ors. v. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt.889) 187 @ p.198.

Looking at the entirety of the facts put as forward by the Respondents in this case and in the earlier decided case before Gbaja-Biamila J., it appears certain to me that the Respondents, particularly the 1st Respondent, was very economical with the truth surrounding its dealings and relationship with the subject matter of the Appellants’ claims against it. In one breadth it denies having any further dealings with the subject matter, yet in another breadth it had allegedly transferred at least equitable interest in the property to the alleged buyer. The law is now well settled that notwithstanding the difficulty of discerning absolute truth by the mechanism of litigation and judicial discernment hinged upon evidence before the Court and irrespective of the imperfections of men, the litigation process is aimed at finding out the truth according to law and therefore, a party worthy of the favourable consideration of the Court must endeavour to be consistent in both the facts he pleads and the evidence he leads in proof of those facts. A party will not therefore, be

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allowed to present at the trial evidence which are inconsistent with the case he has pleaded. He should not be of such a slippery character in his evidence if he is to be believed and credited with any veracity. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248; Ezembe v. Ibeneme (2009) 14 NWLR (Pt.789) 623.

In my view therefore, the decision of the Court below to dismiss the claims of the Appellants merely on the ground of non joinder of the alleged buyer, a person who in my finding is not a necessary party to the suit of the Appellants, when on the established facts the Appellants had clearly made out their case was in grave error and utterly perverse and cannot be allowed to stand. It is unjust and unfair and is liable to be set aside so that justice would prevail. See Obajimi v. Adeobi (2008) 3 NWLR (Pt.1075) 1. See also Owhor v. Christopher (2010) All FWLR (Pt.511) 962; Sogbamu V. Odunaiya (2013) All FWLR (pt.700) 1247 @ p.1307.
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Where, a Court comes to a finding on the established facts before it that a necessary party had not been joined, it ought to invoke the relevant rules of Court to either suo moto add such a necessary party to the suit, a

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lesser evil” even if it be subsequently accused of having done so suo motu but which power is in reality conferred on the Court below by virtue of Order 13 of the High Court Rules of Lagos State 2012, or to simply strike out the suit to enable the Claimant seek to relist the suit and join the necessary party. In all these options, a dismissal of the claims of the Claimant, such as the Appellants, for non joinder of a necessary party is never an option. Yet, that the erroneous pathway toed by the Court below when it without any modicum of right enabling it in that behalf dismissed the claims of the Appellant for non joinder of Sir Kofo Abayomi or his Estate, who on the established facts it erroneously held to be a necessary party when he is not even a necessary party to the suit of the Appellants.

In law, therefore, an Appellate Court will readily intervene to re-evaluate the evidence on the printed record, as I have done in this judgment, if it is shown, as it has been shown by the Appellants in the instant appeal, that the conclusions drawn by the Court below on the proved evidence before it do not flow from such proved and established facts or that

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they run contrary to such proved facts and are thus perverse.
In Sogbamu v. Odunaiya (2013) All FWLR (Pt.700) 1247 @ p.1307, the Court pronounced emphatically thus:
?A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law, and an Appellate Court can interfere with a decision of the trial Court that is perverse.?

?I therefore, answer the three salient questions in the first issue for determination as follows: The non joinder of Sir Kofo Abayomi or his Estate to the suit by the Appellants was not fatal either to the competence or merit of the claims of the Appellants against the Respondents on record; the Court below was gravely in error when it held that the non joinder of Sir Kofo Abayomi was fatal to the claims of the Appellants against the Respondents and persisting in that error proceeded to refuse and dismissed the Appellants’ claim; the alleged buyer of the property the subject matter of this suit, being a privy to the Respondents on record, was not a necessary

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party and need not be joined and thus his non joinder was of no moment as he is bound by whatever judgment is given against the Respondents.

In the light of the above findings, I hereby resolve the first issue for determination in the negative in favor of the Appellants against the Respondents and hold firmly that the non joinder of Sir Kofo Abayomi, the alleged buyer of the subject matter of the Appellants’ claim or his Estate was in law incapable of and did not defeat all or any of the legal issues raised in the Originating Summons of the Appellants against the Respondents, which claims having been sufficiently made out ought to have been granted and not dismissed as erroneously done by the Court below.

ISSUE NO. TWO
“Whether the Principle of Law protecting equitable title to property in physical possession as held by the Lower Court was applicable to this case?”
Appellants’ counsel had submitted that the Court below fell into grave error when it applied the succinct principle protecting equitable title to property in physical possession to the fact of this case and in that error proceeded to hold that the alleged buyer of the property

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had acquired an equitable interest over the property which ought to be protected and contended that on the unchallenged affidavit evidence of the Appellants that the property was vacant but had been cleaned up by them and their tenants put into possession, the said principle was clearly unavailable to the alleged buyer who is not in possession and thus inapplicable to this case and was wrongly applied by the Court below. Counsel relied on Alhaji Mustapha Kachalla v. Alhaji Tijanni Banki & Ors (2006) 27 WRN I @pp. 26 – 27; Okoye v. Dumez Nig Ltd & Anor (1985) 7 NWLR (Pt.4) 785; U.B.A. Plc & Ors v. Ayinke, (2000) 7 NWLR (Pt.663) 83.

1st Respondent’s counsel had submitted that the Court below properly appraised the evidence before it and properly applied the principle of law protecting equitable interest in physical possession of property,that there was evidence from the Appellants that a third party had obtained at least an equitable interest in the property and contended that Court below was right to have applied that principle of law having found as fact that there was a sale which its documentation was only partially executed by the parties

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thereto and that the fact that the property was vacant, dilapidated and has become a latrine whereupon they took possession of same, these facts cannot be confirmed in the absence of the purported buyer in Exh. BH3 and such findings ought not to be disturbed by this Court. Counsel relied on Chukwu v. Amadi (supra)

My lords, a determination of the second issue for determination would turn invariably on the facts as placed before the Court below and whether such facts brings this case within the ambit or purview of the principle of law protecting equitable interest in land in physical possession of the holder of the equitable interest.

In Alhaji Mustapha Kachalla v. Alhaji Tijanni Banki & Ors (2006) 27 WRN 1 @ pp. 26 -27, the Supreme Court reiterated this finer principle of the law on equitable proprietary interest in land thus:
“The law has been well and long settled that where a person pays for a land and obtains receipt for the payment followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal purchaser with knowledge of the

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equitable estate in the land
Now, going by the succinct statement of the law in the above case, it is clear to me that there are conditions precedent or essential requirements upon which this principle of law can be validly invoked. The essential requirements for the applicability of this principle of law are that the person, whose equitable interest is to be protected must have paid for a land and obtained receipt evidencing such payment followed by physical possession of the land and remaining in such possession creates in his favor an equitable interest in the land protected by law. See also Okoye v. Dumez Nig Ltd & Anor. (1985) 1 NWLR (Pt.4) 785 and U.B.A. Plc & Ors v. Ayinke (2000) 7 NWLR (Pt 663) 83.

I should also perhaps reiterate, just by way of emphasis, the trite position of the law that where facts deposed to in an affidavit have not been controverted by the adverse party in a counter affidavit, such facts must be taken as true and established and is good evidence to be acted upon by the Court except where such facts are palpably false. In law, except such unchallenged facts are unreasonable or frivolous, the

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Court below was legally bound to accept it as true. See Adeleke v. Iyanda (2001) 28 WRN 1 @ pp. 17 – 18. See also Arma Ya’u Abdullahi & Sons Ltd. v. FHA Homes Limited (2007) 18 WRN 189 @ p. 196; Alagbe v. Abimbola (1978) 2 SC 39; Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Yahaya v. FRN (2007) 23 WRN 127.

There were copious unchallenged affidavit evidence of the Appellants that they had since taken over possession of the property and put their tenants therein. There was no iota of denial with contrary facts by the Respondents of these depositions of facts by the Appellants. There was also not a single deposition of facts by the Respondents that the alleged buyer, Sir Kofo Abayomi or his personal representatives were in possession of the property at the time of commencement of this suit.

On the face of the above established facts, not in any way disputed between the parties, the Court below held inter alia as follows:
”…..He cannot therefore be bound by the general findings of the Court on the properties comprised in the WILL of late Harding, as far as No 9(sic) Alli Street is concerned. This is because even where a Deed of conveyance is

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inchoate and was not registered, the law still protects the right of such a buyer who is in possession of the property. …The applicants in Paragraphs 12, 13, and 14 of the affidavit in support deposed that the property was vacant, dilapidated and had become a latrine, whereupon they took possession of same, these facts cannot be confirmed in the absence of the purported buyer in Exhibit BH3. He or his estate should have been joined in this action to ascertain the averments in Paragraphs 12, 13, and 14″
See page 111 of the Record.

My lords, I find this finding of the Court below very strange and this is so because before a Court finds that a principle of law is applicable, it ought first to consider the facts established before it on which to hinge the statement of the law. The application of a principle of law is not done in vacuo but must be done in relation to established facts before the Court. There was not a single evidence of physical possession of the property by Sir Kofo Abayomi, at the time of commencement of this case yet the Court below went on a voyage of its own to disbelieve or ignore the unchallenged affidavit evidence of the

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Appellants that they are in physical possession of the property through their tenants on the flimsy but highly untenable ground that it is only the alleged buyer, a non necessary party to the suit, who could join issue with the Appellants on the facts of who is in possession of the property and not the Respondents. What a travesty of justice! I shall say no more on this strange way of reaching decision by the Court below in this case than to hold firmly that this finding is grossly perverse and cannot be allowed to stand but must be set aside in the interest of justice.

The above finding of the Court below was wrong as not flowing from the evidence led before it and in law the circumstances and situations in which an Appellate Court can intervene to interfere with and disturb the findings of a Lower Court varies from case to case and thus would ultimately depend on the peculiar facts of each case. It follows therefore, that such circumstances and situations cannot be laid down with any tinge of exhaustive finality by the Courts as the categories are never closed, though some useful guides have been proffered over the years by the Courts. An appellate

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Court will readily intervene to re – evaluate the evidence on the printed record, if it is shown, that the conclusions drawn by the Court below on the proved evidence before it do not flow from such proved and established facts or that they run contrary to such proved facts and are thus perverse. See Sogbamu v. Odunaiya (2013) All FWLR (Pt.700) 1247 @ p.1307,

I have no difficulty, therefore, in the light of my findings above, resolving the second issue for determination in the negative in favour of the Appellants against the Respondents and hold firmly that the principle of law protecting equitable interest coupled with physical possession was inapplicable in the circumstances and established facts of this case and was thus wrongly applied by the Court below.

Having therefore, resolved the two issues in favour of the Appellants as against the Respondents, I hold that this appeal is meritorious and perforce ought to succeed and consequently, this appeal is hereby allowed.

In the result, the judgment of the Lagos State High Court in Suit No:ID/655M/2009: Mr Babatunde Harding & Anor. v. The Administrator General and Public Trustee of Lagos

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State & Anor delivered on 17/6/2011 by Y. A, Adesanya, J is hereby set aside.

In its stead, the sole question for determination in the Originating summons of the Appellants as claimant in suit No: ID/655M/2011: Mr. Babatunde Harding & Anor v. The Administrator General and Public Trustee of Lagos State & Anor. is hereby answered in the affirmative and consequently, their reliefs as endorsed on their Originating Summons, having been made out sufficiently and thus meritorious, are hereby granted in its entirety against the Respondents.
I make no order as to cost.

Other Citations: (2016)LCN/8970(CA)