ALIYU v. OKOYE & ORS

CITATION: (2018) LPELR-45429(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON MONDAY, 28TH MAY, 2018Suit No: CA/J/270/2010

Before Their Lordships:

UCHECHUKWU ONYEMENAM Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal

BetweenALHAJI NA'IM ALIYU(substituted for Alhaji Mubashiru Aliyu on 16thFebruary, 2017)

- Appellant(s)

And1. FIDELIS OKOYE2. ATTORNEY GENERAL PLATEAU STATE3. MINISTRY OF LANDS, SURVEY AND TOWNPLANNING

- Respondent(s)

RATIO DECIDENDI

(201

8) LP

ELR-45

429(

CA)

1. ACTION - PLEADINGS: Whether an allegation of fraud must be pleaded and proved"This issue is formulated from grounds 1 and 4 of the notice and grounds of appeal which grounds challenge the findings of the learned trial Chief Judgewherein he found that the 1st respondent pleaded fraud or forgery and gave particulars of the same. Let me start by stating that it is a well settledprinciple of law that parties to litigation are bound by their pleadings. Pleadings are very important in the litigation process as they set the limit andextent of the parties' respective cases. AGBOOLA V. U.B.A. PLC (2011) 11 NWLR (PT. 1258) 375 S. C. AT P. 398Anything outside the pleadings that is sought to form part of the trial must be ignored as it goes to no issue. ODUMOSU V. A.C.B. LTD. (1976) 11 S C.PAGE 261; SKYE BANK PLC. V. AKINPELU (2010) 9 NWLR (PT. 1198) 179 at 194. It is because pleadings are binding on the parties that it is said thatpleadings are the foundation upon which a party's case is built. Thus, where the pleadings of a party as settled cannot sustain the reliefs sought, thecase must be dismissed. GEORGE V. DOMINION FLOUR MILLS NIGERIA LIMITED (1963) NSCC 64; (1963) ALL N.L.R. 70.In the instant appeal, the conclusion of the trial Court was that the property in issue was fraudulently alienated to the Appellant. The Appellant's attackon the decision is that the 1st Respondent did not plead fraud nor its particulars let alone prove the allegations of fraud. I believe it will be necessary toreproduce the holding of the learned trial Chief Judge at pages 220 - 221 of the record, wherein he stated:"In the instant case, the plaintiff in paragraphs 4, 9, 10, 13, 15, 16, 17, 22 and 23 of the statement of claim and 2 (a), (b) and (c) of plaintiff's reply to the2 and 3rd defendants statement of defence. By the peculiar nature of (sic-this) case, has duly pleaded the issue of fraud and given particulars to groundthe plea. It therefore becomes pertinent for the plaintiff to establish the plea, which is the crux of the 1st main issue formulated for the Court todetermine." Fraud is something dishonestly and morally wrong. It is defined as an intentional perversion of truth for the purpose of inducing another inreliance upon it to part with some valuable thing belonging to him or to surrender a legal right. To be able to rely or found an action on fraud, the partyhasto plead fraud with particularity and establish the same in evidence. A person alleging fraud is not only required to make the allegation in his pleadingsbut must set out particulars of facts establishing the alleged fraud, so that the Defendant goes into Court prepared to meet them. OTUKPO V. JOHN &ANOR (2012) LPELR - 25053 (SC); OLUFUNMISE V. FALANA (1990) 3 NWLR (Pt. 136), PG 1; UAC V. TAYLOR (1936) 2 WACA PG. 170; USENFOWOKAN V.IDOWU (1969) NMLR PG. 77; NTUKS V. N.P.A (2007) 13 NWLR (PT. 105) PG. 332It is settled in our legal jurisprudence that where a person alleging fraud does not specifically plead it, a Court cannot of its volition raise it, as a Court isbound to consider only issues on the pleading before it. OBIJURU V. OZIMS (1985) 2 NWLR PT. 6 PG. 187; NWADIKE V. IBEKWE (1987) 4 NWLR (PT. 67)PG. 718; ABACHA V. FAWEHINMI (2000) 6 NWLR (PT. 660), 228.It is important to note that fraud is a criminal allegation, so the standard of proof is beyond reasonable doubt. This connotes that the particulars of fraudmust be proved strictly. Section 138 of the Evidence Act which is Section 135 of the Evidence Act, 2011 (as amended) stipulates as follows:138 (1)"1. If the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyondreasonable doubt.2. The burden of proving that any person had been guilty of a crime or wrongful act is subject to the provision of Section 141 of this Act, on the personwho assert it whether the commission of such act is or is not directly in issue in the action.3. If the prosecution proves the commission of a crime beyond reasonable doubt the burden of proving reasonable doubt shift onto the accused."Thus, it is clear from the foregoing provisions of the Evidence Act that fraud which is criminal in nature must be proved beyond reasonable doubt by theperson who asserts that another is guilty of the crime. This is strengthened by the fact that parties are bound by their pleadings and as such evidence offacts not pleaded should not be admitted. Also based on this premise, the Court is not permitted to formulate issues not raised in the pleadings. OTUKPOV. JOHN & ANOR (2012) LPELR - 25053 (SC); A.B LTD. V. SAVANNAH VENTURES LTD. (2002) 10 NWLR, PT. 775, PG. 401; N.I.P.C. LTD. V. THOMPSONORGANIZATION LTD. 1969 NSCC, PG. 161; ALUNLOYE VS. EYIYERA (1967) NSCC PG.16 OKEBOLA V. MOSAKE (1975) 9 NSCC 464.On this background, I have carefully examined paragraphs 4, 9, 10, 13, 15, 16, 17, 22, and 23 of the statement of claim and 2 (a), (b) and (c) ofplaintiff's reply to the 2nd and 3rd defendants' statement of defence, I do not see any semblance of pleading of fraud or forgery in the paragraphs listedabove. It is apparent even as the learned trial Chief Judge stated at pages 220 to 221 of the record as reproduced above, that he merely inferred fraudfrom the referred above paragraphs. To that extent the learned trial Chief Judge was right as the stench of fraud is predominantly present in the referredparagraphs but as right as that may be that does not represent the law. The settled position of the law is that when fraud is alleged in a suit, the samemust be pleaded, particulars given and established in evidence by proof beyond reasonable doubt. SECTION 138 (1) OF THE EVIDENCE ACT; UKEJE &ANOR. V. UKEJE (2014) LPELR - 22724 (SC); IGBINOSA V. AIYOBAGBIEGBE (1969) 1ANLR P. 99; FAMUROTI V. AGBEKE (1991) 5 NWLR PT. 189, P1. So before a party can legally rely on fraud or forgery, the fact must not only be pleadedbut particulars thereof must be provided in the pleadings. The position of the law is firmed that where the commission of a crime is directly in issue inany proceeding whether civil or criminal, in this case, fraud and forgery, the alleged crime must be proved beyond reasonable doubt and it is the 1stRespondent in this case who asserts the commission of fraud who have the burden of prove by adducing sufficient evidence to establish same whichherein he has failed to do. EYA & ORS V. OLOPADE & ANOR (2011) LPELR - 1184 (SC).Let me strongly state that the learned trial Chief Judge, had no legal standing to find as he held at pages 220 to 221 that fraud and forgery could beinferred from paragraphs of pleadings when the alleged crime had not as required by law been specifically pleaded. In EYA & ORS V. OLOPADE & ANOR(2011) LPELR - 1184 (SC); OTUKPO V. JOHN & ANOR (2012) LPELR - 25053 (SC); the apex Court held that even when in a party's pleadings he haspleaded fraud or forgery but fails to set out the particulars of the fraud or forgery in his pleadings, the Court cannot infer such particulars from theparagraphs of the pleadings; how much more when the crime has not been specifically pleaded for the Court to infer both the pleading of fraud andforgery; and the particulars of the same. That is a grave error in law. Accordingly, I hold that the learned trial Chief Judge erred in law when he held thatby the peculiar nature of this case, the 1st Respondent had pleaded the issue of fraud and given particulars to ground the plea."Per ONYEMENAM, J.C.A.(Pp. 19-25, Paras. A-C) - read in context

2. COURT - DUTY OF COURT: Duty of the appellate court where the trial court fails to make findings of a fact on crucial issues raised in the pleadings"The proper steps for an appellate Court to take where the lower Court has failed to resolve an issue raised before it which is vital to the resolution ofthe dispute between the parties include: to either order a retrial or resolve the issue upon the evidence available if the question of credibility ofwitnesses would not arise. OVUNWO & ANOR. V. WOKO & ORS. (2011) LPELR - 2841 (SC); ORIANWO V. OKENE (2002) 14 NWLR (PT.786) 156 AT 182 -183."Per ONYEMENAM, J.C.A. (Pp. 40-41, Paras. F-B) - read in context

(201

8) LP

ELR-45

429(

CA)

3. EVIDENCE - HANDWRITING EVIDENCE: When is the trial court permitted to compare writings and or signatures"The issue herein is stemmed on the application of Section 108 (1) of the Evidence Act CAP 112 LFN 1990, nowSection 101 (1) of the Evidence Act 2011; whereby the learned trial Chief Judge compared the signatures under contention with the ones admitted bythe 1st Respondent.Section 108 (1) provides:"In order to ascertain whether a signature, writing, seal or finger impressions is that of the person by whom it purports to have been written or made,any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may becompared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any otherpurpose."The referred section of the Evidence Act, has been given judicial interpretation by the apex Court in many cases. A Court of law faced with disputedsignature has the discretion to compare the disputed signature with any signature agreed to be an undisputed or genuine signature. In such acircumstance, the apex Court held that the owner of the disputed signature need not swear to any affidavit or testify to deny the purported signatureparticularly where there existbefore the Court, his genuine signatures to be compared with the disputed signature. TOMTEC NIGERIA LTD V. FHA (2009) LPELR -3256 (SC); ADENLE V.OLUDE (2002) 9 - 10 S.C. 124; (2002) LPELR - 129 (SC); YONGO & ANOR. V. C. O. P. (1992) LPELR - 352 (SC); TEICH V. NORTHERN INTERNATIONALMARKET CO. LTD. (1987) 4 NWLR (PT. 65) 441; JULES V. AJANI (1980) 12 NSCC 222; LAWAL V COMMISSIONER OF POLICE 1960 WRNLR 75; BOYEINDUSTRIES LTD & ANOR V. SOWEMIMO (2009) LPELR - 8858 (CA). The law permits the Courts to compare writings and or signatures in order to discovertheir authors only in cases where the writings and or signatures are in dispute and therefore in issue. Also in such cases, proven or acknowledgedwritings or signatures of the disputants must be before the Court. YONGO & ANOR. V. C. O. P. (1992) LPELR - 352 (SC); ZAKIAH V. BOARD OF CUSTOMS& EXCISE (1966) N.M.L.R. 293; R. V. WILCOX (1961) 2 S.C.N.L.R. 296; (1961) 1 ALL N.L.R. 631. Where however, an expert evidence is adduced, the Courtcannot ignore such evidence and resolve the issue himself by making comparison under Section 108 (1) of the Evidence Act CAP 112 LFN 1990, nowSection 101 (1) of the Evidence Act 2011; or under any other provision. BOYE INDUSTRIES LTD. & ANOR V. SOWEMIMO (SUPRA); R V M.A. OMISADE &ORS 1964 NMLR 67.At page 223 of the record, the learned trial Chief Judge stated: "In the instant case, this Court would adopt the option of comparing the signatureadmitted by the alleged signatory (plaintiff) to be his own with the one under contention in line with the provision of Section 108 (1) of the Evidence Act.This is so, considering the fact that adopting other options mentioned above at this stage of the proceedings would seem unfeasible.From the content of Exhibit 1 the signatures alleged to be that of the plaintiff on pages 56, 58 and 71 are the signatures under contention while thesignatures at pages 80 and 84 are those admitted by the alleged signatory i.e. the plaintiff, to be his. While the signatures on pages 80 and 84 of Exhibit1 are similar, the same cannot be said of signatures on pages 56, 58 and 71 when, compared to any of the signatures of the plaintiff on page 80 as thecomplainant and page 84 as the assignee.?It is not usual for the Courts in a clear case, to form their own opinions as to handwriting by comparing a genuine specimen with a disputed, one. Seethe case of ADANLE VS. OLUDE (supra) particularly p. 342 at paragraphs D - E.The above statement of the trial Court is the bone of contention in this issue. Exhibit 1 is File No. 14723, Plateau State of Nigeria, Ministry of Lands,Survey And Town Planning, Jos titled Assigned to Mrs. Lucy Okoye. The file was tendered and admitted in evidence at the trial Court and as such thedocuments containing the signatures both admitted and in contention are before the trial Court. The file contains several documents. Under examinationin chief and cross examination at pages 131 and 132; and 135 and 136 of the record respectively, the 1st Respondent denied the signatures ondocuments at pages 50, 56, 58, 71 but admitted the signatures at pages 80 and 84. The learned trial Chief Judge in his judgment undertook to comparethe signatures admitted by the 1st Respondent at pages 80 and 84 on one hand; with the signatures under contention at pages 56, 58 and 71 on theother hand; which all form part of documents in Exhibit 1 placed before the trial Court; to ascertain whether the 1st Respondent was the person whoalso signed the documents under contention to enable him arrive at a just decision. The learned trial Chief Judge relied mainly on the provisions ofSection 108 (1) of the Evidence Act CAP 112 LFN 1990 and the case of ADENLE V. OLUDE (supra).Having earlier in resolving this issue unequivocally stated the purport of Section 108 (1) of the Evidence Act (supra) vis a vis comparison of disputed andadmitted signatures, I will now consider the case of ADENLE V. OLUDE (supra). This case is on all fours with the case at hand. In the said case a witnessadmitted the signature on one deed of conveyance as his and denied the signature on a sister deed of conveyance as not his. The learned trial Judgetherein, refused to compare the signatures on the two documents before it to determine the credibility of the witness who denied his signature on thesecond deed of conveyance. The Supreme Court held that the trial Court was in error when it failed to compare the signature which was proved oradmitted by the witness to be his with the signature disputed to reach a correct and just decision as Courts are empowered to so do under Section 108(1) of the Evidence Act CAP 112 LFN 1990. The apex Court in ADENLE V. OLUDE (supra); also stated the four options open to a Court of law faced with asituation where a party admits a signature in an exhibit as his but turns round to dispute a signature on another exhibit alleged to be his as not his. Oneof the options open to the Courts is the one the learned trial Chief Judge adopted which is the comparison of the admitted signatures by the 1stRespondent with the disputed signatures alleged to be his. InADENLE V. OLUDE (supra); the apex Court did not stop at stating that by Section 108 (1) ofthe Evidence Act CAP 112 LFN 1990; now Section 101 (1) of the Evidence Act 2011; a Judge can compare the disputed writing or signature with anaccepted writing or signature of the purported maker of the disputed document but went ahead to compare the accepted and disputed signatures thatwere before the Court.With all due respect to the learned counsel for the Appellant, the issues in the authorities he cited reside in the domain of the issue of dumpingdocuments on the Court and were not decided under Section 108 (1) of the Evidence Act CAP 112 LFN 1990. Let me make particular reference to thecase of DURIMINIYA V. COP (1961) NNLR 70; which is the case cited by the Appellant's counsel that relates to comparison of signatures. The case ofDURIMINIYA V. COP (supra); though relates to comparison of an accused person's signatures in his statement and pledge document both of which wereexhibits before the Court. The facts are different from the present case. The difference in signatures was not raised in the open Court to give theAppellants therein, and the prosecution the opportunity to cross examine on it, rather the same was discovered by the learned senior Magistrate suomotu without the opportunity of challenge or input by the Appellants. The facts and circumstances of the case of DURIMINIYA V. COP (supra); are notcovered by Section 108 of the Evidence Act (supra) as in the instant case. Also in the case at hand, the discovery of the difference in signatures was inthe open Court. The 1st Respondent was examined in chief on the signatures, he was also cross examined on the signatures. Even DW1 the legalpractitioner that conducted the quick search on Exhibit 1 at the registry was cross examined on the signatures. So the Appellant herein had theopportunity of challenging the 1st Respondent on the signatures he disputed. The learned trial Chief Judge did not discover the differences in signatureat the recess of his chambers and went ahead to make comparison like in DURIMINIYA V. COP (supra). I accordingly hold that the discussed case ofDURIMINIYA V. COP (supra); is different from the instant case. I therefore find it and the other cases relied on by the Appellant's counsel on this issue forall I have said above, inapposite in this appeal. It remains for me to adopt the step that was taken by the apex Court in ADENLE V. OLUDE (supra); whichis to compare the signatures admitted by the 1st Respondent with those he denied all in Exhibit 1. In so doing, I agree with the learned trial Chief Judgethat the signatures denied by the 1st Respondent at pages 56, 58 and 71 when compared with the signatures at pages 80 and 84; all in Exhibit 1portray the obvious which is that, the denied signatures are transparently different from the admitted signatures. For ease of understanding and betterappreciation of the facts of this case, I shall state the documents relating the denied signatures and those of admitted signatures from Exhibit 1hereunder.1. Document at page 56 - Request for Certified True Copy ofCertificate of Occupancy2. Document at page 58 - Affidavit as to loss of documents which includes the Certificate of Occupancy.3. Document at page 71 - Application for consent to assign Certificate of Occupancy No. PL 147234. Document at page 80 - Letter of complaint with regards todocument at page 715. Document at page 84 - Deed of Assignment Between Humphery Okoli Ezeofor And Fidelis Anayo Okoye?From the above I agree with the learned trial Chief Judge that the 1st Respondent is right in denying the signatures at pages 56, 58 and 71.Consequently, I hold that the learned trial Chief Judge was right when he relied on Section 108 (1) of the Evidence Act CAP 112 LFN 1990; to comparethe signatures admitted by the 1st Respondent with the signatures he disputed. I further hold that the outcome of his comparison was right which is tosay that the disputed signatures are not 1st Respondent's signatures"Per ONYEMENAM, J.C.A. (Pp. 28-37, Paras. F-F) - read in context

(201

8) LP

ELR-45

429(

CA)

4. LAND LAW - BONA FIDE PURCHASER FOR VALUE: Who is a bona fide purchaser for value"A bona fide purchaser for value without notice is one who purchased property for valuable consideration without notice of any prior right or title which ifupheld will derogate from the title which he has purported to acquire. BEST (NIG.) LTD. V. BLACKWOOD HODGE NIG. LTD. & ANOR. (2011) LPELR- 776 (SC); (2011) 5 NWLR (PT.1239) 95. It is a settled principle of law that only a bona fide purchaser of a legal estate for value without notice of defectin title that can take priority over someone who had acquired a prior equitable interest over the same property. ANIMASHAUN V. OLOJO (1990) 6N.W.L.R. (Part 154) 111 at 121; OHIAERI V. YUSSUF & ORS (2009) LPELR - 2361 (SC). Purchase Without Notice exists if the purchaser had no notice ofthe existence of the equitable interest, he must have neither actual, constructive nor imputed notice. It has also been held that if the purchaser employsan agent such as a solicitor, any actual or constructive notice which the agent receives is imputed to the purchaser.ANIMASHAUN V. OLOJO (supra).Following the fundamental principle in all land transactions captured in the latin maxim "caveat emptor" which means let the buyer beware. A purchaseris required in law to first of all conduct search in the relevant registries before committing his money into any property transaction. Once a purchaserundertakes and carries out all the necessary searches required of him and there is nothing adverse discovered having exercised all due care anddiligence, interest in the property will pass even if, as in the instant case, it was subsequently claimed that there was defect in title and irregularities noton the part of the purchaser. AGEH V. TORTYA (2003) 6 NWLR (PT. 816) 385 AT 396; OWO V. KASUMU (1932) 11 NLR 116. There is no gainsaying in theinstant appeal that the Appellant bought the property for value. The evidence is that he paid N3,500,000.00 to one Mrs. Lucy Okoye who put herself outas the 1st Respondent's wife. The question is, with the facts and circumstances of the case at hand, can the Appellant be said to have bought theproperty bona fide and without notice? I have considered the submissions of both counsel on this issue, I appreciate the industry of both learned counselparticularly that of the Appellant's counsel who has fought the case as a lion. The law requires a party who seeks to rely on purchase for value withoutnotice to establish that he exercised due care and was diligent in his search 'Bona-fide' is defined as "in good faith, honestly, without fraud, collusion, orparticipating in wrong doing."'Purchaser' in its technical sense does not necessarily imply purchaser for value. 'For value' is therefore included to show that value must be given toearn the immunity from equitable claimants. Value means any consideration in money, money's worth (e.g. other lands, stocks and shares or services ormarriage)ANIMASHAUN V. OLOJO (1990) LPELR - 2361 (SC); LE NEVE V. LE NEVE (1747) 1 VES SEN 64: WH & T. II 157 WILLOUGHBY V. WILLOUGHBY 1TR. 763. 'Without Notice', means he must have no notice of the existence of equitable interest. He must have neither actual, constructive nor imputednotice. A person has actual notice of all facts of which he has (or has had) actual knowledge however that knowledge was acquired. For ConstructiveNotice, the Court of Chancery insisted that a purchaser should inquire about equitable interests with no less diligence than about legal interest whichthey could ignore only at their own peril. The motto of English conveyance is caveat emptor; the risk of incumbrances is on the purchaser who mustsatisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had madeall usual and proper inquiries, and had still found nothing to indicate the equitable interest."Per ONYEMENAM, J.C.A. (Pp. 41-45, Paras. E-A) - read incontext

5. LAND LAW - REGISTERED LAND: Procedure for conducting a search into a property at the land registry"Now the procedure for conducting a search into a property at the Lands Registry is set and certain and it is fact of common knowledge that this Court isempowered to take judicial notice of under the provisions of Section 124 of the Evidence Act. The procedure is that the person desiring of conducting asearch will write an application to the Registrar of Titles or other like officer to conduct a search, specifying the property and the particulars of theproperty file and his connection and reason for the intended search. Where he application is approved by the Registrar of Title or the like officer, he willpay a requisite fee for the search and which payment is noted on the face of the application. The application is flied in the property file and the applicantis granted access to the property, usually in a room or place reserved for that purpose in the Lands Registry and, more often than not, in the presence ofthe Lands Registry to deter tampering with the property file. The application in the property file is usually the acceptable evidence that a party indeedconducted a search of the property file. The Appellant presented no such application in the instant case."Per ABIRU, J.C.A. (Pp. 55-56, Paras. D-C) - readin context

6. LAND LAW - BONA FIDE PURCHASER FOR VALUE: Who is a bona fide purchaser for value"A bona fide purchaser for value without notice is a person who purchased property for valuable consideration without notice of any prior right or titlewhich if upheld will derogate from the title which he has purported to acquire - Best (Nig) Limited Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt1239) 95. It is important to note that when a person is said to be a bona fide purchaser for value without notice, such notice may be actual orconstructive and clearly it refers to notice of matters which might affect the efficacy of the title of the vendor - Jaffar Vs Ladipo (1969) 1 All NLR 165,Bank of the North Ltd Vs Bello (2000) 7 NWLR (Pt 664) 244, Ageh Vs Tortya (2003) 6 NWLR (Pt 816) 385 and Jiwul Vs Dimlong (2003) 9 NWLR (pt 824)154, Ohiaeri Vs Yussuf (2009) 6 N\'V'LR (Pt 1137) 207.In Animashaun Vs Olojo (1990) 6 NWLR (Pt 154) 111, the Supreme Court on pages 122-123, per Obaseki, JSC, gave a break down the definition the term'bona fide purchaser of legal estate for value without notice' thus:"What is the meaning of a 'bona fide purchaser of the legal estate for value without notice'? Bona fide is defined as 'in good faith, honesty, withoutfraud, collusion or participation in wrong doing' .Purchasing for value - 'Purchaser' in its technical sense does not necessarily imply purchaser for value. 'For value' are included to show that value mustbe given to earn the immunity from equitable claims. Value means any consideration in money, money's worth (e.g. other lands, stocks and shares andshares or services or marriage ....)Of a legal estate - As Courts of equity break in upon the common law, when necessity and conscience require it, still they allow superior force andstrength to a legal title to estate....Without Notice - He must have no notice of the existence of equitable interest. He must have neither actual notice nor constructive notice or imputednotice. A person has actual notice of all facts of which he had actual knowledge however that knowledge was acquired.....Constructive Notice - The Court of Chancery insisted that purchaser should inquire about equitable interest with no less diligence about legal which theycould ignore only at their own peril. The motto of English conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfyhimself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usualand proper inquiries and had still failed to detect the equitable interest .Imputed Notice - There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual orconstructive notice ... which the agent receives is imputed to the purchaser. ... "The key element in a plea of bona fide purchaser for value without notice is the concept of caveat emptor which postulates that a purchaser shouldbeware and ought not to be ignorant that he is purchasing the rights of another. It is the primary responsibility of a purchaser of land to mount vigoroussearch in order to satisfy himself that the land is free from any encumbrance and to ensure that the rights he is purchasing belong to the vendor. It is fora party to a contract to take all necessary precautions to avoid entering into a bad bargain. The principle is as old as the law itself -Owo Vs Kasumu(1932) 11 NLR 116, Odusoga Vs Ricketts (1997) 7 NWLR (Pt 511) 1, Ageh Vs Tortya (2003) 6 NWLR (pt 816) 385, Ejigini Vs Ezenwa (2003) 16 NWLR (Pt846) 420. Uwaifo, JCA (as he then was) explained the principle in Onyido Vs Ajemba (1991) 14 N\'(1LR (Pt 184) 203 at page 228 D-H thus:"It follows, in my view, that a purchaser must be careful to know the full details about the land he is buying so as to acquire a good title by ensuring thatthe vendor has the necessary title to what he offers to sell. The rule is caveat emptor - let the buyer beware. It is a very old and useful rule. To quoteRichards C.B in Purvis Vs Royer (1821) 9 Price 488 at 518:'It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person, generally speaking, offers anything forsale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualifications, and in the way in which he, thevendee, understood that he bought it; that is, so as to afford him an assurance of having bought what he wanted, and meant to buy, or, at least, whatwas offered or professed to be sold, or he may reject the contract."In Eholor Vs Osayande (1992) 6 NWLR (Pt 249) 524, the Supreme Court stated that a grantee of land which gets affected by town planning regulationsmust take his land as he finds it and cannot turn to the grantor or the holder of an adjoining land for compensation for his loss thereby, as town planningregulations were part of what the grantee should have investigated in the process of his investigation of the title."Per ABIRU, J.C.A. (Pp. 50-54, Paras. A-B) - read in context

(201

8) LP

ELR-45

429(

CA)

7. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Position of the law with regard to the signing of legal processes by a legalpractitioner"Any process filed in Court that is not signed by a legal practitioner known to law is fatally and irredeemably defective and robs the Court of thejurisdiction to entertain the same. Consequently, proceedings predicated on such null process including any decision reached therein are also null andvoid. MIN., W. & T., ADAMAWA STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) 481 AT 496 - 497; S.L.B CONSORTIUM V. N.N.P.C. (2011) 9 NWLR (PT. 1252)317 AT 337-338; NIGERIAN ARMY V. SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 485; OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1195) 63; F.B.N. V.MAIWADA (2013) 5 NWLR (PT. 1348) 444; OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352) 19 AT 37; ALAWIYE V. OGUSANYA (2012) 12 SC (PT. ILL) 1 AT40.The seeming issue here is the position of the law that every Originating Process and indeed every process to be filed in the Court by a counsel mustbear the signature of a legal practitioner. This is also the provisions of Order 5 Rule 12 (1) of the Plateau State High Court (Civil Procedure) Rules. BySections 2 and 24 of the Legal Practitioners Act Cap. 111 LFN 2004; every document or process emanating from a legal practitioner must be signed byhim. The writ of Summons in issue reads thus:"This writ was issued by me: OBI AJAEGBU ESQ OF NO. 7A Tafawa Balewa Street, Jos legal practioner for the plaintiff."There is no contention that the Respondent's counsel only wrote his full name as on the roll at the Supreme Court as stated on the process and hisaddress without making any other mark. The question is does the writing of the name of the Respondent's counsel without more, satisfy the provision ofOrder 5 Rules 1 and 12 (1) of the High Court of Plateau State (supra) and the law generally. The learned counsel for the Appellant is right in hissubmission that all processes filed in Court must be signed. SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) 317; (2011) LPELR - 3074 (SC). Inthe referred case which was relied on by the Appellant's counsel, the apex Court was considering Order 26 Rule 4(3) of the Federal High Court (CivilProcedure) Rules, 2000, which provided that: "pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person."Onnoghen, JSC (now CJN) at pages 15 to 17, paras. D - A; and while referring to earlier Supreme Court decisions in COLE V. MATTINS (1968) ALL NLR161; REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA V. RAHMAN AKINDE (1967) NMLR 263; pronounced thus: "A process prepared andfiled in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simplywrites his name over and above the name of his/or firm in which he carries out his practice."The requirement of the law that the signature of a legal practitioner who files a process in the Court must be on the process so filed is purposed toensure a person whose name is not on the roll in the Register at the Supreme Court is not allowed or permitted to issue Court processes as a legalpractitioner. For this, to ascertain whether a process has been duly signed by a counsel in a case, the acid test is; can the process be rightly traced toany legal practitioner whose name is on the roll of the Register of the Supreme Court? Once the answer is yes, then the process shall be taken as dulysigned. Anything outside that will be relying on undue technicality to defeat the aim of justice.In OLU ODE OKPE V. FAN MILK PLC & ANOR. (2016) LPELR - 42562 (SC); his lordship Mohammad, JSC; took out time to x-ray the position of the law asregards the proper and acceptable manner for a legal practitioner to sign a Court process. I will refer to the most salient ones. In Registered Trustees ofApostolic Church Lagos Area V. Rahman Akindele (1967) NMLR 263; the Supreme Court accepted as proper signing where a legal practitioner wrote hisname and his business address. The apex Court held inter alia:"Mr. Cole used his own name, that is to say, the name in which he registered as a legal practitioner. We hold that on any interpretation of the rules thatwas a sufficient compliance with them and we do not accept the submission that the addition of the words for A.J. Cole & Co. would invalidate thesignature if a signature in a business name was not permitted." Again is the holding of the Supreme Court in the case of: SLB CONSORTIUM V. NNPC(supra); to the effect that 'A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it issufficient signature if the legal practitioner simply writes his own name over and above the name of his firm in which he carries out his practice."In the recent apex Court decision in WILLIAMS & ANOR. V. ADOLD/ STAMM INT'L (NIG) LTD. & ANOR. (2017) LPELR - 41559 (SC); the Court held PerKEKERE - EKUN, J.S.C.; that:"There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by alegal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for inSections 2 and 24 (2) (1) of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. OKETADE V. ADEWUNMI (SUPRA); OKAFOR V. NWEKE(SUPRA); F.B.N. PLC. V. MAIWADA (2013) 5 NWLR (PT. 1348) 1433. LN S.L.B. CONSORTIUM LTD. V. N.N.P.C. (2011) 9 NWLR (PT. 1252) 317 @ 331B-332A. This Court affirmed its earlier decision in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA V. RAHMAN AKINDELE (1967) NMLR 263;and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if thelegal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice".In the light of the above decisions of the apex Court, I do agree with the learned counsel for the 1st Respondent that the facts and circumstances of theinstant case is not same with the authorities relied upon by the Appellant and as such the principle applied in those authorities cannot apply in theinstant case. To bring home this point let me quickly and briefly state with regards to the cases relied upon by the Appellant that:- In S.L.B CONSORTIUM V. N.N.P.C (2011) 9 NWLR (PT. 1252) 317 AT 337-338; the originating process was signed in the name of the Law Firm as"Adewole Adesokan & Co."- The caseFBN V. MAIWADA (2013) 5 NWLR (PT. 1348) PAGE 444; presents a situation where the notice of appeal was signed in the name of the LawFirm as "O.E. Abang & Co. and "David M. Mando & Co."- In the case of OKARIKA V. SAMUEL (2013) 7 NWLR (PT 1352) 19 AT 37; the notice of appeal was signed in the name of the Law Firm as "H. E. Wabara &Co."See also: ALAWIYE V. OGUNSANYA (2012) 12 SC (PT. ILL) PG 1; ARMY V. SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 485; MIN. W & T, ADAMAWA STATEV. YAKUBU (2013) 6 NWLR (PT 1351) 481 AT 496 - 497.As I reproduced above, in the instant case, the writ at pages 1 and 2 of the record which was issued by Obi Ajaegbu Esq had the counsel's name andaddress as Obi Ajaegbu Esq of No. 7A Tafawa Balewa Street, Jos, legal practitioner for the Plaintiff; written without more. This I hold is a sufficientcompliance with the High Court of Plateau State (Civil Procedure) Rules and the Law generally. COLE V. MATTINS (1968) ALL NLR, 16; REGISTEREDTRUSTEE OF APOSTOLIC CHURCH V. IKINDELE (1967) 15 N SCC 117;R (1957) 1 ALL NLR.From the foregoing, I hold that the writ of summons issued in the name of Obi Ajaegbu Esq is competent.Issue 1 is resolved in favour of the 1st Respondent."Per ONYEMENAM, J.C.A. (Pp. 9-15, Paras. B-F) - read in context

(201

8) LP

ELR-45

429(

CA)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the decision

of the Plateau State High Court in Suit No. PLD/J432/2004

delivered by Lazarus C. Dakyen, Acting Chief Judge (as he

then was).

The 1st Respondent herein (as the Plaintiff at the trial

Court) sued the Appellant herein (as the 1st Defendant at

the trial Court) and the 2nd and 3rd Respondents herein

(as the 2nd and 3rd Defendants at the trial Court) claiming

for the reliefs set out at pages 2-7 of record.

In its judgment, the trial Court granted only reliefs A and B

sought by the 1st Respondent. The judgment is at pages

195 to 226 of the record. Dissatisfied, the Appellant filed

his Notice and Grounds of appeal challenging the said

decision. The Notice and Grounds of appeal are at pages

227 to 235 of the record. The initial Appellant subsequently

died and was substituted with the leave of Court granted on

16th February, 2017. An amended notice of appeal was

consequentially filed with leave of Court sought and

obtained. The amended notice of appeal now forms the

fulcrum of this appeal.

1

(201

8) LP

ELR-45

429(

CA)

Briefly, the facts of this case are that, the 1st Respondent

became the owner of the property known as No. 62B Haliru

Street, Jos covered by Certificate of Occupancy No. PL.

14723 following the purchase of the same from one

Humphrey Okoli Ezeafor. The said property was allegedly

assigned to the Appellant by one Mrs. Lucy Okoye who the

Appellant claims to be the 1st Respondent’s wife, for the

sum of N3, 500,000. The 1st Respondent’s case is that he

does not know any Mrs. Lucy Okoye and had never

assigned his property at No. 62B Haliru Street to any Lucy

Okoye or anyone for that matter. He therefore brought the

action subject of this appeal.

At the trial Court, the 1st Respondent claimed as follows:

a. “An order of the Court against the 2nd and 3rd

defendants to set aside the erroneous assignment of

his property to one Lucy Okoye.

b. A declaration that the purported sale of his house

by one Lucy Okoye though not registered is null and

void and of no effect.

c. And order of Court ordering the 1st defendant to

restore the vandalized flat down stairs and the pulled

down fence adjourning the plaintiff’s property to the

2

(201

8) LP

ELR-45

429(

CA)

one in front to the same condition as that in which it

were before the vandalization.

d. An order against the 1st defendant to pay N2,

000,000.00 (Two Million Naira only) being general,

special, exemplary and punitive damages.”

Judgement was entered in favour of the 1st Respondent,

dissatisfied with the judgement, the Appellant has appealed

to this Court. The appeal was heard on 28th February,

2018 after counsel on both sides had filed and exchanged

relevant processes that made the appeal ripe for hearing.

N. T. Komak Esq. appearing with M.Y. Dunung for the

Appellant referred to and adopted; the Appellant’s brief

deemed properly filed and served on 15th March, 2017;

and reply to 1st Respondent’s brief filed on 2nd May, 2017

in urging the Court to allow the appeal. On the part of the

1st Respondent, Mr. Obi Ajaegbu with C. J. Nnaji Esq. who

appeared for him, adopted and relied on the 1st

Respondent’s brief filed on 2nd March, 2017, in urging the

Court to dismiss the appeal. Mr. P. N. Dashak Senior State

Counsel Ministry of Justice Plateau State for 2nd and 3rd

Respondents, said they filed no brief.

Mr. Komak from the Amended Notice and Grounds of

Appeal

3

(201

8) LP

ELR-45

429(

CA)

filed in this appeal distilled the following 5 issues for

determination:

1. “Having regard to the fact that the originating

process commencing this action was not signed by the

1st respondent or his counsel who took out the same,

whether every other proceeding including the

judgment of the lower Court predicated thereupon is

not a nullity.

2. Whether the learned trial Chief Judge was right in

holding that the 1st respondent, as plaintiff, had,

sufficiently pleaded with particulars and proved

beyond reasonable doubt, the criminal allegations of

fraud or forgery so as to void the conveyance of the

property to the appellant.

3. Was the learned trial Judge right to have based his

decision on a comparison of signatures which he

alone undertook in the course of writing his judgment

and not during trial in open Court?

4. Was the learned trial Chief Judge not in error when

he failed to consider and uphold the appellant’s

defence of bona fide purchaser for value without

notice?

5. Whether the lower Court had properly and

correctly evaluated the totality of the evidence before

it.”

4

(201

8) LP

ELR-45

429(

CA)

Mr. Ajaegbu learned counsel for the 1st Respondent from

the amended notice and grounds of appeal filed in this

appeal, formulated the following 4 issues for determination:

1. “Whether the originating process filed in this

matter at the Lower Court having the name of the

counsel who took out same is capable of vesting the

trial Court with jurisdiction and its judgement valid.

2. Whether the use of the words fraud and forgery by

the trial Court in formulating its issues for

determination amount to making a different case for

the 1st respondents (plaintiff).

3. Whether the trial Court can where given option or

discretion by Law exercise same either way judicially

and judiciously.

4. Whether the trial Court was right after due

evaluation of the evidence before it, considered the

defence of bona-fide purchaser for value without

notice failed and entered judgment in favour of the

1st respondent.”

The 5 issues raised by the Appellant’s counsel are the same

as the 4 issues distilled by the 1st Respondent’s counsel

only that that 1st Respondent’s counsel combined the

Appellant’s issues 4 and 5 as his issue 4.

5

(201

8) LP

ELR-45

429(

CA)

I shall adopt the Appellant’s issues as formulated and

resolve them accordingly.

SUBMISSIONS ON ISSUE 1

“Having regard to the fact that the originating

process commencing this action was not signed by the

1st respondent or his counsel who took out the same,

whether every other proceeding including the

judgment of the lower Court predicated thereupon is

not a nullity.”

The learned counsel for the Appellant noted that issue 1

was formulated from ground 9 of the amended notice of

appeal which ground challenges the competency of the

originating process by which the suit was commenced, and

by extension, the validity of the judgment of the trial Court.

He contended that the competence of an originating

process is one of the determinants of a Court’s jurisdiction

to entertain a matter brought before it. He relied on:

OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352) 19

AT 37; MADUKOLU V. NKEMDILIM (1962) ALL NLR

(PT. 2) 581; ALAWIYE V. OGUNSANYA (2012) 12 SC

(PT. ILL) 1 AT 40.

The learned counsel for the Appellant referred to the writ

of summons filed on 28th October, 2004 found at pages 1

and 2 of the record.

6

(201

8) LP

ELR-45

429(

CA)

He invited the Court to note that the writ was taken out by

Obi Ajaegbu, Esq. of No. 7 A Tafawa Balewa Street, Jos,

and the same was not signed by the said counsel who took

out the writ neither was it signed by the 1st Respondent

himself who was the plaintiff. He submitted that the

originating process, having not been signed, rendered the

action incompetent, as the same was not commenced by

due process of law. The lower Court was, therefore, robbed

of the requisite jurisdiction to entertain the matter. He

cited: S.L.B CONSORTIUM V. N.N.P.C. (2011) 9 NWLR

(PT. 1252) 317 AT 337-338; NIGERIAN ARMY V.

SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 485;

OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1195)

63; F.B.N. V. MAIWADA (2013) 5 NWLR (PT. 1348)

444; OKARIKA V. SAMUEL (SUPRA); ALAWIYE V.

OGUNSANYA (SUPRA); MIN., W. & T., ADAMAWA

STATE V. YAKUBU (2013) 6 NWLR (PT. 1351) 481 AT

496 - 497.

On the strength of all the authorities referred to above, Mr.

Komak submitted that the entire proceedings before the

trial Court, including the judgment delivered by it, are null

and void. He therefore urged the Court to resolve issue 1 in

favour of the Appellant and against the Respondents.

7

(201

8) LP

ELR-45

429(

CA)

In response, Mr. Ajaegbu learned counsel for the 1st

Respondent agreed with the learned counsel for the

Appellant on the trite principle of law that, the competence

of an originating process is one of the determinants of a

Court's jurisdiction to entertain matters brought before it.

He also relied on: MADUKOLU V. NKEMDILIM (1962)

ALL NLR (PT. 2) 581. He added that it is also trite that

each case must be decided on its special facts and

circumstances. He submitted that the facts and the

circumstances of the cases and authorities relied upon by

the Appellant in his brief are distinguishable with the

instant case. He went ahead and distinguished them.

Mr. Ajaegbu contended that, in the instant case, the writ

filed on 28th October 2004, as seen at pages 1 and 2 of the

record of appeal, issued by Obi Ajaegbu Esq and signed in

the counsel's name and address as "Obi Ajaegbu Esq of No.

7A Tafawa Balewa Street, Jos," is a sufficient compliance

with the rules of the Court of Plateau State and the Law.

He referred to:COLE V. MATTINS (1968) ALL NLR, 16;

REGISTERED TRUSTEE OF APOSTOLIC CHURCH V.

AKINDELE (1967) 15 N SCC 117 OR (1957) 1 ALL

NLR;

8

(201

8) LP

ELR-45

429(

CA)

where the Supreme Court held that signing of notice of

appeal by a counsel using his name "J.A. Cole for J.A. Cole

& Co." was sufficient compliance with the Law.

He thereafter urged the Court to resolve issue 1 in favour

of the 1st Respondent.

RESOLUTION OF ISSUE 1

Any process filed in Court that is not signed by a legal

practitioner known to law is fatally and irredeemably

defective and robs the Court of the jurisdiction to entertain

the same. Consequently, proceedings predicated on such

null process including any decision reached therein are also

null and void. MIN., W. & T., ADAMAWA STATE V.

YAKUBU (2013) 6 NWLR (PT. 1351) 481 AT 496 –

497; S.L.B CONSORTIUM V. N.N.P.C. (2011) 9 NWLR

(PT. 1252) 317 AT 337-338; NIGERIAN ARMY V.

SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 485;

OKETADE V. ADEWUNMI (2010) 8 NWLR (PT. 1195)

63; F.B.N. V. MAIWADA (2013) 5 NWLR (PT. 1348)

444; OKARIKA V. SAMUEL (2013) 7 NWLR (PT. 1352)

19 AT 37; ALAWIYE V. OGUSANYA (2012) 12 SC (PT.

ILL) 1 AT 40.

The seeming issue here is the position of the law that every

Originating Process and indeed every process to be filed in

the Court by a counsel must bear the signature of a legal

9

(201

8) LP

ELR-45

429(

CA)

practitioner. This is also the provisions of Order 5 Rule 12

(1) of the Plateau State High Court (Civil Procedure) Rules.

By Sections 2 and 24 of the Legal Practitioners Act Cap.

111 LFN 2004; every document or process emanating from

a legal practitioner must be signed by him. The writ of

Summons in issue reads thus:

“This writ was issued by me: OBI AJAEGBU ESQ OF

NO. 7A Tafawa Balewa Street, Jos legal practioner for

the plaintiff.”

There is no contention that the Respondent’s counsel only

wrote his full name as on the roll at the Supreme Court as

stated on the process and his address without making any

other mark. The question is does the writing of the name of

the Respondent’s counsel without more, satisfy the

provision of Order 5 Rules 1 and 12 (1) of the High Court of

Plateau State (supra) and the law generally. The learned

counsel for the Appellant is right in his submission that all

processes f i led in Court must be s igned. SLB

CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT.

1252) 317; (2011) LPELR – 3074 (SC). In the referred

case which was relied on by the Appellant’s counsel, the

apex Court was considering Order

10

(201

8) LP

ELR-45

429(

CA)

26 Rule 4(3) of the Federal High Court (Civil Procedure)

Rules, 2000, which provided that: “pleadings shall be

signed by a legal practitioner or by the party if he sues or

defends in person.” Onnoghen, JSC (now CJN) at pages 15

to 17, paras. D – A; and while referring to earlier Supreme

Court decisions in COLE V. MATTINS (1968) ALL NLR

161; REGISTERED TRUSTEES OF APOSTOLIC

CHURCH LAGOS AREA V. RAHMAN AKINDELE

(1967) NMLR 263; pronounced thus: “A process prepared

and filed in a Court of law by a legal practitioner must be

signed by the legal practitioner and that it is sufficient

signature if the legal practitioner simply writes his name

over and above the name of his/or firm in which he carries

out his practice.”

The requirement of the law that the signature of a legal

practitioner who files a process in the Court must be on the

process so filed is purposed to ensure a person whose name

is not on the roll in the Register at the Supreme Court is

not allowed or permitted to issue Court processes as a legal

practitioner. For this, to ascertain whether a process has

been duly signed by a counsel in a case, the acid test is;

11

(201

8) LP

ELR-45

429(

CA)

can the process be rightly traced to any legal practitioner

whose name is on the roll of the Register of the Supreme

Court? Once the answer is yes, then the process shall be

taken as duly signed. Anything outside that will be relying

on undue technicality to defeat the aim of justice.

In OLU ODE OKPE V. FAN MILK PLC & ANOR. (2016)

LPELR – 42562 (SC); his lordship Mohammad, JSC; took

out time to x-ray the position of the law as regards the

proper and acceptable manner for a legal practitioner to

sign a Court process. I will refer to the most salient ones. In

Registered Trustees of Apostolic Church Lagos Area

V. Rahman Akindele (1967) NMLR 263; the Supreme

Court accepted as proper signing where a legal practitioner

wrote his name and his business address. The apex Court

held inter alia:

“Mr. Cole used his own name, that is to say, the name

in which he registered as a legal practitioner. We hold

that on any interpretation of the rules that was a

sufficient compliance with them and we do not accept

the submission that the addition of the words for A.J.

Cole & Co. would invalidate the signature if a

signature

12

(201

8) LP

ELR-45

429(

CA)

in a business name was not permitted.” Again is the

holding of the Supreme Court in the case of: SLB

CONSORTIUM V. NNPC (supra); to the effect that 'A

process prepared and filed in a Court of law by a legal

practitioner must be signed by the legal practitioner

and it is sufficient signature if the legal practitioner

simply writes his own name over and above the name

of his firm in which he carries out his practice."

In the recent apex Court decision in WILLIAMS & ANOR.

V. ADOLD/ STAMM INT’L (NIG) LTD. & ANOR. (2017)

LPELR – 41559 (SC); the Court held Per KEKERE –

EKUN, J.S.C.; that:

“There is no doubt that it has been held in a plethora

of decisions of this Court and it is now firmly settled

that a Court process that is not signed by a legal

practitioner whose name appears on the roll of legal

practitioners and who is entitled to practice as a

barrister and Solicitor as provided for in Sections 2

and 24 (2) (1) of the LPA Cap. 111 LFN 2004 is

incompetent and liable to be struck out. OKETADE V.

ADEWUNMI (SUPRA); OKAFOR V. NWEKE (SUPRA);

F.B.N. PLC. V. MAIWADA (2013) 5 NWLR (PT. 1348)

1433. LN S.L.B.

13

(201

8) LP

ELR-45

429(

CA)

CONSORTIUM LTD. V. N.N.P.C. (2011) 9 NWLR (PT.

1252) 317 @ 331 B-332A. This Court affirmed its

earlier decision in REGISTERED TRUSTEES OF

APOSTOLIC CHURCH LAGOS AREA V. RAHMAN

AKINDELE (1967) NMLR 263; and held that a process

prepared and filed in Court by a legal practitioner

must be signed by the legal practitioner, and it is

sufficient signature if the legal practitioner simply

writes his own name over and above the name of

his/or firm in which he carries out his practice”.

In the light of the above decisions of the apex Court, I do

agree with the learned counsel for the 1st Respondent that

the facts and circumstances of the instant case is not same

with the authorities relied upon by the Appellant and as

such the principle applied in those authorities cannot apply

in the instant case. To bring home this point let me quickly

and briefly state with regards to the cases relied upon by

the Appellant that:

- In S.L.B CONSORTIUM V. N.N.P.C (2011) 9 NWLR

(PT. 1252) 317 AT 337-338; the originating process was

signed in the name of the Law Firm as "Adewole Adesokan

& Co."

- The case FBN V. MAIWADA (2013) 5 NWLR (PT.

1348) PAGE 444; presents a situation where the notice of

14

(201

8) LP

ELR-45

429(

CA)

appeal was signed in the name of the Law Firm as "O.E.

Abang & Co. and "David M. Mando & Co."

- In the case of OKARIKA V. SAMUEL (2013) 7 NWLR

(PT 1352) 19 AT 37; the notice of appeal was signed in

the name of the Law Firm as "H. E. Wabara & Co."

See also: ALAWIYE V. OGUNSANYA (2012) 12 SC (PT.

ILL) PG 1; ARMY V. SAMUEL (2013) 14 NWLR (PT.

1375) 466 AT 485; MIN. W & T, ADAMAWA STATE V.

YAKUBU (2013) 6 NWLR (PT 1351) 481 AT 496 - 497.

As I reproduced above, in the instant case, the writ at

pages 1 and 2 of the record which was issued by Obi

Ajaegbu Esq had the counsel's name and address as Obi

Ajaegbu Esq of No. 7A Tafawa Balewa Street, Jos, legal

practitioner for the Plaintiff; written without more. This I

hold is a sufficient compliance with the High Court of

Plateau State (Civil Procedure) Rules and the Law

generally. COLE V. MATTINS (1968) ALL NLR, 16;

REGISTERED TRUSTEE OF APOSTOLIC CHURCH V.

AKINDELE (1967) 15 N SCC 117;R (1957) 1 ALL NLR.

From the foregoing, I hold that the writ of summons issued

in the name of Obi Ajaegbu Esq is competent.

Issue 1 is resolved in favour of the 1st Respondent.

15

(201

8) LP

ELR-45

429(

CA)

SUBMISSIONS ON ISSUE 2

“Whether the learned trial Chief Judge was right in

holding that the 1st respondent, as plaintiff, had,

sufficiently pleaded with particulars and proved

beyond reasonable doubt, the criminal allegations of

fraud or forgery so as to void the conveyance of the

property to the appellant.”

Mr. Komak the learned counsel for the Appellant, referred

to the holding of the learned trial Judge at pages 220 to 221

of the record and argued that; the trial Court did not state

where the allegation of fraud was pleaded in the 1st

Respondent’s claim. He contended that nothing was said

about the listed paragraphs, as the learned trial Judge just

went ahead to state that, by the peculiar nature of the case,

the 1st Respondent had pleaded the issue of fraud and

given particulars to ground the plea. The learned counsel

argued that, even when it is accepted that the trial Court

placed reliance on the listed paragraphs, he submitted that

individually or collectively, the listed paragraphs cannot

amount to pleading fraud and the particulars thereof.

He urged the Court to take a critical look at the stated

16

(201

8) LP

ELR-45

429(

CA)

paragraphs and the entire claim of the 1st Respondent, and

find that fraud was not pleaded nor the particulars given at

all.

The learned counsel added that fraud is a criminal

allegation, the standard of proof of which is beyond

reasonable doubt. He submitted that any criminal

allegation, even in a civil action, requires proof beyond

reasonable doubt. This means that the particulars must be

proved strictly. He cited: DAVID FABUNMI V. ABIGAIL

A. AGBE (1985) 3 S.C. 19; UDOGWU V. OKI (1990) 5

NWLR (PT. 153) 721 AT 741 - 742 ; USEN V. B.W.A.

LTD. (1965) 1 ALL NLR 244 AT 247 . Mr. Komak

contended that what the learned trial Judge did was to go

on a voyage of his own to make a case for the 1st

Respondent, when fraud was not pleaded neither was the

Court invited to make such finding in the pleadings.

In reaction, Mr. Ajaegbu the learned counsel for the 1st

Respondent at paragraphs 5.0, 5.01, 5.02, 5.03, 5.04, 5.05,

5.06, 5.07, 5.08 and 5.09 of the 1st Respondent’s brief

argued that the trial Court was right in its finding when it

held that paragraphs 4, 9, 10, 13, 15, 17, 22 and 23 and

paragraphs 2 (a) (b) and (c) of the 1st Respondent’s reply

to

17

(201

8) LP

ELR-45

429(

CA)

the 2nd and 3rd Respondents’ statement of defence had

duly pleaded the issue of fraud. The 1st Respondent further

argued that the holding of the trial Court amounted to

evaluation of evidence which is the exclusive preserve of

the trial Court.

In paragraph 5.03, the 1st Respondent submitted that the

non-usage of the words “fraud” or “forgery” in his

pleadings had not taken the Appellant by surprise.

Furthermore, the 1st Respondent argued that the trial

Court simply evaluated and drew conclusion from the

pleadings averred by him in paragraphs 4, 9, 10, 13, 15, 17,

22 and 23 of the statement of claim; and paragraphs 2 (a)

(b) (c) of the reply to the 2nd and 3rd Respondents’

statement of defence; thereby, dispensing with the need to

specifically plead and particularize the allegation of fraud.

The learned counsel relied on:KOLOWALE V. FOLASHO

(2009) 8 NWLR (PT 1143) 437 CA; UDENGWU V.

UZUEGBU (2003) 13 NWLR (PT 836) 136; VIRGIN

TECH. LTD. V. MOHAMMED (2009) 11 NWLR (PT

115) 136 CA.

He urged the Court to resolve issue 2 in favour of the 1st

Respondent.

18

(201

8) LP

ELR-45

429(

CA)

RESOLUTION OF ISSUE 2

This issue is formulated from grounds 1 and 4 of the notice

and grounds of appeal which grounds challenge the

findings of the learned trial Chief Judge wherein he found

that the 1st respondent pleaded fraud or forgery and gave

particulars of the same. Let me start by stating that it is a

well settled principle of law that parties to litigation are

bound by their pleadings. Pleadings are very important in

the litigation process as they set the limit and extent of the

parties’ respective cases. AGBOOLA V. U.B.A. PLC

(2011) 11 NWLR (PT. 1258) 375 S. C. AT P. 398

Anything outside the pleadings that is sought to form part

of the trial must be ignored as it goes to no issue.

ODUMOSU V. A.C.B. LTD. (1976) 11 S C. PAGE 261;

SKYE BANK PLC. V. AKINPELU (2010) 9 NWLR (PT.

1198) 179 at 194. It is because pleadings are binding on

the parties that it is said that pleadings are the foundation

upon which a party’s case is built. Thus, where the

pleadings of a party as settled cannot sustain the reliefs

sought, the case must be dismissed. GEORGE V.

DOMINION FLOUR MILLS NIGERIA LIMITED (1963)

NSCC 64; (1963) ALL N.L.R. 70.

In the instant appeal, the conclusion of the trial Court was

19

(201

8) LP

ELR-45

429(

CA)

that the property in issue was fraudulently alienated to the

Appellant. The Appellant’s attack on the decision is that the

1st Respondent did not plead fraud nor its particulars let

alone prove the allegations of fraud. I believe it will be

necessary to reproduce the holding of the learned trial

Chief Judge at pages 220 - 221 of the record, wherein he

stated:

“In the instant case, the plaintiff in paragraphs 4, 9,

10, 13, 15, 16, 17, 22 and 23 of the statement of claim

and 2 (a), (b) and (c) of plaintiff’s reply to the 2 and

3rd defendants statement of defence. By the peculiar

nature of (sic-this) case, has duly pleaded the issue of

fraud and given particulars to ground the plea. It

therefore becomes pertinent for the plaintiff to

establish the plea, which is the crux of the 1st main

issue formulated for the Court to determine.”

Fraud is something dishonestly and morally wrong. It is

defined as an intentional perversion of truth for the

purpose of inducing another in reliance upon it to part with

some valuable thing belonging to him or to surrender a

legal right. To be able to rely or found an action on fraud,

the party has

20

(201

8) LP

ELR-45

429(

CA)

to plead fraud with particularity and establish the same in

evidence. A person alleging fraud is not only required to

make the allegation in his pleadings but must set out

particulars of facts establishing the alleged fraud, so that

the Defendant goes into Court prepared to meet them.

OTUKPO V. JOHN & ANOR (2012) LPELR – 25053

(SC); OLUFUNMISE V. FALANA (1990) 3 NWLR (Pt.

136), PG 1; UAC V. TAYLOR (1936) 2 WACA PG. 170;

USENFOWOKAN V. IDOWU (1969) NMLR PG. 77;

NTUKS V. N.P.A (2007) 13 NWLR (PT. 105) PG. 332

It is settled in our legal jurisprudence that where a person

alleging fraud does not specifically plead it, a Court cannot

of its volition raise it, as a Court is bound to consider only

issues on the pleading before it. OBIJURU V. OZIMS

(1985) 2 NWLR PT. 6 PG. 187; NWADIKE V. IBEKWE

(1987) 4 NWLR (PT. 67) PG. 718; ABACHA V.

FAWEHINMI (2000) 6 NWLR (PT. 660), 228.

It is important to note that fraud is a criminal allegation, so

the standard of proof is beyond reasonable doubt. This

connotes that the particulars of fraud must be proved

strictly. Section 138 of the Evidence Act which is Section

135 of the Evidence Act, 2011 (as amended) stipulates

as follows:

21

(201

8) LP

ELR-45

429(

CA)

138 (1)

“1. If the commission of a crime by a party to any

proceedings is directly in issue in any proceedings,

civil or criminal, it must be proved beyond reasonable

doubt.

2. The burden of proving that any person had been

guilty of a crime or wrongful act is subject to the

provision of Section 141 of this Act, on the person

who assert it whether the commission of such act is

or is not directly in issue in the action.

3. If the prosecution proves the commission of a

crime beyond reasonable doubt the burden of proving

reasonable doubt shift onto the accused."

Thus, it is clear from the foregoing provisions of the

Evidence Act that fraud which is criminal in nature must be

proved beyond reasonable doubt by the person who asserts

that another is guilty of the crime. This is strengthened by

the fact that parties are bound by their pleadings and as

such evidence of facts not pleaded should not be admitted.

Also based on this premise, the Court is not permitted to

formulate issues not raised in the pleadings. OTUKPO V.

JOHN & ANOR (2012) LPELR – 25053 (SC); A.B LTD.

V. SAVANNAH VENTURES LTD. (2002) 10 NWLR, PT.

22

(201

8) LP

ELR-45

429(

CA)

775, PG. 401; N.I.P.C. LTD. V. THOMPSON

ORGANIZATION LTD. 1969 NSCC, PG. 161;

ALUNLOYE VS. EYIYERA (1967) NSCC PG.16

OKEBOLA V. MOSAKE (1975) 9 NSCC 464.

On this background, I have carefully examined paragraphs

4, 9, 10, 13, 15, 16, 17, 22, and 23 of the statement of claim

and 2 (a), (b) and (c) of plaintiff’s reply to the 2nd and 3rd

defendants’ statement of defence, I do not see any

semblance of pleading of fraud or forgery in the paragraphs

listed above. It is apparent even as the learned trial Chief

Judge stated at pages 220 to 221 of the record as

reproduced above, that he merely inferred fraud from the

referred above paragraphs. To that extent the learned trial

Chief Judge was right as the stench of fraud is

predominantly present in the referred paragraphs but as

right as that may be that does not represent the law. The

settled position of the law is that when fraud is alleged in a

suit, the same must be pleaded, particulars given and

established in evidence by proof beyond reasonable doubt.

SECTION 138 (1) OF THE EVIDENCE ACT; UKEJE &

ANOR. V. UKEJE (2014) LPELR – 22724 (SC);

IGBINOSA V. AIYOBAGBIEGBE (1969) 1

23

(201

8) LP

ELR-45

429(

CA)

ANLR P. 99; FAMUROTI V. AGBEKE (1991) 5 NWLR

PT. 189, P1. So before a party can legally rely on fraud or

forgery, the fact must not only be pleaded but particulars

thereof must be provided in the pleadings. The position of

the law is firmed that where the commission of a crime is

directly in issue in any proceeding whether civil or

criminal, in this case, fraud and forgery, the alleged crime

must be proved beyond reasonable doubt and it is the 1st

Respondent in this case who asserts the commission of

fraud who have the burden of prove by adducing sufficient

evidence to establish same which herein he has failed to do.

EYA & ORS V. OLOPADE & ANOR (2011) LPELR –

1184 (SC).

Let me strongly state that the learned trial Chief Judge, had

no legal standing to find as he held at pages 220 to 221

that fraud and forgery could be inferred from paragraphs of

pleadings when the alleged crime had not as required by

law been specifically pleaded. In EYA & ORS V. OLOPADE

& ANOR (2011) LPELR – 1184 (SC); OTUKPO V. JOHN

& ANOR (2012) LPELR – 25053 (SC); the apex Court

held that even when in a party’s pleadings he has pleaded

fraud or

24

(201

8) LP

ELR-45

429(

CA)

forgery but fails to set out the particulars of the fraud or

forgery in his pleadings, the Court cannot infer such

particulars from the paragraphs of the pleadings; how

much more when the crime has not been specifically

pleaded for the Court to infer both the pleading of fraud

and forgery; and the particulars of the same. That is a

grave error in law. Accordingly, I hold that the learned trial

Chief Judge erred in law when he held that by the peculiar

nature of this case, the 1st Respondent had pleaded the

issue of fraud and given particulars to ground the plea.

Issue 2 is therefore resolved in favour of the Appellant.

SUBMISIONS ON ISSUE 3

“Whether the learned trial Judge was right to have

based his decision on a comparison of signatures

which he alone undertook in the course of writing his

judgment and not during trial in open Court.”

The Appellant distilled this issue from a combination of

grounds 2 and 3 which is an attack on the decision of the

learned trial Chief Judge following the comparison of

signatures which he undertook in the course of writing his

judgment as borne out of the record at page 223.

25

(201

8) LP

ELR-45

429(

CA)

The Appellant contended that the procedure adopted by the

trial Court amounted to it formulating and making up a

case for the 1st Respondent contrary to the well-

established principle that parties are to conduct their cases

and the Court decide based on the matters presented to it.

The learned counsel noted the fact that there was no

signature which was admitted in Court by all parties to be

that of the 1st Respondent. He argued that the 1st

Respondent who was challenging the authenticity of his

signature ought to have produced and tendered his genuine

signature in open Court so as to afford, other parties the

opportunity of cross-examining him on the disputed

signatures. Mr. Komak further observed that the decision

to compare signatures was done in the comfort and

exclusive zone of the chambers of the trial Court and not in

open Court. This he submitted is a violation of the

Appellant’s right to fair hearing. He cited: OJENGBEDE V.

ESAN (2001) 18 NWLR (PT. 746) 771 at 783; OTAPO

V. SUNMONU (1987)2 NWLR (Pt. 58) 587; WILSON V.

ATTORNEY - GENERAL OF BENDEL STATE (1985) 1

NWLR (Pt.4). 574; BAMGBOYE V. UNVERSITY OF

ILORIN (1999) 10 NWLR (PT. 622) 290 at 333.

26

(201

8) LP

ELR-45

429(

CA)

The learned counsel for the Appellant submitted that

Section 108 (1) of the Evidence Act CAP. 112 LFN 1990,

now Section 101 (1) of the Evidence Act, 2011 was violated

by the procedure adopted by the trial Court. On the

position of the law on the procedure adopted by the learned

Chief Judge when he compared the 1st Respondent’s

signature at the comfort of his chambers, he relied on:

DURIMINIYA V. COP (1961) NNLR 70 AT 73 – 74;

ONIBUDO V. AKIBU (1982) 7 S.C. 60 AT 62;

IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (PT. 620)

552 AT 561; LEADERS & CO. LTD. V. BAMAIYI (2010)

18 NWLR (PT. 1225) 329 AT 340.

He urged the Court to resolve the issue in favour of the

Appellant.

Mr. Ajaegbu the learned counsel for the 1st Respondent on

this issue argued that where the law gives a discretion or

option to the Court, the Court must exercise same either

way judicially and judiciously. He cited: LATISCO PET

(NIG.) LTD. V. U.B.N PLC (2009) 2 NWLR (PT 1127)

22 CA. Referring to the provisions of Section 108 (1) of

Evidence Act CAP 112 LFN 1990, now Section 101 (1) of

Evidence Act 2011; he submitted that the Courts have the

discretion to

27

(201

8) LP

ELR-45

429(

CA)

compare signatures properly admitted before it in view of

reaching a correct decision.

The learned counsel referred to page 135 of the record to

elucidate the signatures under contention and the ones

admitted by the 1st Respondent to submit that the learned

trial Chief Judge correctly followed the law in exercise of

his discretion. He argued that the contention of the

Appellant that the trial Court formulated and made up a

case for the 1st Respondents holds no water relying on:

ONWUJUBA V. OBIENU (1991) 3 NRCN SC 816 AT

824; ADENLE V. OLUDE (2002) 102 LRCN SC 1988 AT

1995. He further submitted that the trial Court cannot be

said to have done cloistered justice since the signatures

under contention were admitted under Exhibit 1 and the

trial Court has the discretion by Section 108 (1) of the

Evidence Act CAP 112 LFN 1990, now Section 101 (1) of

the Evidence Act 2011; to compare the signatures under

contention with the ones admitted by the 1st Respondent to

be his.

He urged the Court to resolve the issue in favour of the 1st

Respondent.

RESOLUTION OF ISSUE 3

The issue herein is stemmed on the application of Section

108 (1) of the Evidence Act CAP 112 LFN 1990, now

28

(201

8) LP

ELR-45

429(

CA)

Section 101 (1) of the Evidence Act 2011; whereby the

learned trial Chief Judge compared the signatures under

contention with the ones admitted by the 1st Respondent.

Section 108 (1) provides:

“In order to ascertain whether a signature, writing,

seal or finger impressions is that of the person by

whom it purports to have been written or made, any

signature, writing, seal or finger impression admitted

or proved to the satisfaction of the Court to have been

written or made by that person may be compared with

the one which is to be proved although that signature,

writing, seal or finger impression has not been

produced or proved for any other purpose.”

The referred section of the Evidence Act, has been given

judicial interpretation by the apex Court in many cases. A

Court of law faced with disputed signature has the

discretion to compare the disputed signature with any

signature agreed to be an undisputed or genuine signature.

In such a circumstance, the apex Court held that the owner

of the disputed signature need not swear to any affidavit or

testify to deny the purported signature particularly where

there exist

29

(201

8) LP

ELR-45

429(

CA)

before the Court, his genuine signatures to be compared

with the disputed signature. TOMTEC NIGERIA LTD V.

FHA (2009) LPELR –3256 (SC); ADENLE V. OLUDE

(2002) 9 – 10 S.C. 124; (2002) LPELR – 129 (SC);

YONGO & ANOR. V. C. O. P. (1992) LPELR – 352 (SC);

TEICH V. NORTHERN INTERNATIONAL MARKET CO.

LTD. (1987) 4 NWLR (PT. 65) 441; JULES V. AJANI

(1980) 12 NSCC 222; LAWAL V COMMISSIONER OF

POLICE 1960 WRNLR 75; BOYE INDUSTRIES LTD &

ANOR V. SOWEMIMO (2009) LPELR – 8858 (CA). The

law permits the Courts to compare writings and or

signatures in order to discover their authors only in cases

where the writings and or signatures are in dispute and

therefore in issue. Also in such cases, proven or

acknowledged writings or signatures of the disputants must

be before the Court. YONGO & ANOR. V. C. O. P. (1992)

LPELR – 3528 (SC); ZAKIAH V. BOARD OF CUSTOMS

& EXCISE (1966) N.M.L.R. 293; R. V. WILCOX (1961)

2 S.C.N.L.R. 296; (1961) 1 ALL N.L.R. 631. Where

however, an expert evidence is adduced, the Court cannot

ignore such evidence and resolve the issue himself by

making comparison under Section 108 (1) of the Evidence

Act CAP

30

(201

8) LP

ELR-45

429(

CA)

112 LFN 1990, now Section 101 (1) of the Evidence Act

2011; or under any other provision. BOYE INDUSTRIES

LTD. & ANOR V. SOWEMIMO (SUPRA); R V M.A.

OMISADE & ORS 1964 NMLR 67.

At page 223 of the record, the learned trial Chief Judge

stated: “In the instant case, this Court would adopt the

option of comparing the signature admitted by the alleged

signatory (plaintiff) to be his own with the one under

contention in line with the provision of Section 108 (1) of

the Evidence Act. This is so, considering the fact that

adopting other options mentioned above at this stage of the

proceedings would seem unfeasible.

From the content of Exhibit 1 the signatures alleged to be

that of the plaintiff on pages 56, 58 and 71 are the

signatures under contention while the signatures at pages

80 and 84 are those admitted by the alleged signatory i.e.

the plaintiff, to be his. While the signatures on pages 80

and 84 of Exhibit 1 are similar, the same cannot be said of

signatures on pages 56, 58 and 71 when, compared to any

of the signatures of the plaintiff on page 80 as the

complainant and page 84 as the assignee.

31

(201

8) LP

ELR-45

429(

CA)

It is not usual for the Courts in a clear case, to form their

own opinions as to handwriting by comparing a genuine

specimen with a disputed, one. See the case of ADANLE

VS. OLUDE (supra) particularly p. 342 at paragraphs

D - E.

The above statement of the trial Court is the bone of

contention in this issue. Exhibit 1 is File No. 14723, Plateau

State of Nigeria, Ministry of Lands, Survey And Town

Planning, Jos titled Assigned to Mrs. Lucy Okoye. The file

was tendered and admitted in evidence at the trial Court

and as such the documents containing the signatures both

admitted and in contention are before the trial Court. The

file contains several documents. Under examination in chief

and cross examination at pages 131 and 132; and 135 and

136 of the record respectively, the 1st Respondent denied

the signatures on documents at pages 50, 56, 58, 71 but

admitted the signatures at pages 80 and 84. The learned

trial Chief Judge in his judgment undertook to compare the

signatures admitted by the 1st Respondent at pages 80 and

84 on one hand; with the signatures under contention at

pages 56, 58 and 71 on the other hand; which all form part

of documents in Exhibit 1 placed before the trial Court;

32

(201

8) LP

ELR-45

429(

CA)

to ascertain whether the 1st Respondent was the person

who also signed the documents under contention to enable

him arrive at a just decision. The learned trial Chief Judge

relied mainly on the provisions of Section 108 (1) of the

Evidence Act CAP 112 LFN 1990 and the case of ADENLE

V. OLUDE (supra).

Having earlier in resolving this issue unequivocally stated

the purport of Section 108 (1) of the Evidence Act (supra)

vis a vis comparison of disputed and admitted signatures, I

will now consider the case of ADENLE V. OLUDE (supra).

This case is on all fours with the case at hand. In the said

case a witness admitted the signature on one deed of

conveyance as his and denied the signature on a sister deed

of conveyance as not his. The learned trial Judge therein,

refused to compare the signatures on the two documents

before it to determine the credibility of the witness who

denied his signature on the second deed of conveyance.

The Supreme Court held that the trial Court was in error

when it failed to compare the signature which was proved

or admitted by the witness to be his with the signature

disputed to reach a correct and just decision as Courts are

33

(201

8) LP

ELR-45

429(

CA)

empowered to so do under Section 108 (1) of the Evidence

Act CAP 112 LFN 1990. The apex Court in ADENLE V.

OLUDE (supra); also stated the four options open to a

Court of law faced with a situation where a party admits a

signature in an exhibit as his but turns round to dispute a

signature on another exhibit alleged to be his as not his.

One of the options open to the Courts is the one the learned

trial Chief Judge adopted which is the comparison of the

admitted signatures by the 1st Respondent with the

disputed signatures alleged to be his. InADENLE V.

OLUDE (supra); the apex Court did not stop at stating

that by Section 108 (1) of the Evidence Act CAP 112 LFN

1990; now Section 101 (1) of the Evidence Act 2011; a

Judge can compare the disputed writing or signature with

an accepted writing or signature of the purported maker of

the disputed document but went ahead to compare the

accepted and disputed signatures that were before the

Court.

With all due respect to the learned counsel for the

Appellant, the issues in the authorities he cited reside in

the domain of the issue of dumping documents on the Court

and were not

34

(201

8) LP

ELR-45

429(

CA)

decided under Section 108 (1) of the Evidence Act CAP 112

LFN 1990. Let me make particular reference to the case of

DURIMINIYA V. COP (1961) NNLR 70; which is the

case cited by the Appellant’s counsel that relates to

comparison of signatures. The case of DURIMINIYA V.

COP (supra); though relates to comparison of an accused

person’s signatures in his statement and pledge document

both of which were exhibits before the Court. The facts are

different from the present case. The difference in

signatures was not raised in the open Court to give the

Appellants therein, and the prosecution the opportunity to

cross examine on it, rather the same was discovered by the

learned senior Magistrate suo motu without the

opportunity of challenge or input by the Appellants. The

facts and circumstances of the case of DURIMINIYA V.

COP (supra); are not covered by Section 108 of the

Evidence Act (supra) as in the instant case. Also in the case

at hand, the discovery of the difference in signatures was in

the open Court. The 1st Respondent was examined in chief

on the signatures, he was also cross examined on the

signatures. Even DW1 the legal practitioner that conducted

the quick search on Exhibit

35

(201

8) LP

ELR-45

429(

CA)

1 at the registry was cross examined on the signatures. So

the Appellant herein had the opportunity of challenging the

1st Respondent on the signatures he disputed. The learned

trial Chief Judge did not discover the differences in

signature at the recess of his chambers and went ahead to

make comparison like in DURIMINIYA V. COP (supra). I

accordingly hold that the discussed case of DURIMINIYA

V. COP (supra); is different from the instant case. I

therefore find it and the other cases relied on by the

Appellant’s counsel on this issue for all I have said above,

inapposite in this appeal. It remains for me to adopt the

step that was taken by the apex Court in ADENLE V.

OLUDE (supra); which is to compare the signatures

admitted by the 1st Respondent with those he denied all in

Exhibit 1. In so doing, I agree with the learned trial Chief

Judge that the signatures denied by the 1st Respondent at

pages 56, 58 and 71 when compared with the signatures at

pages 80 and 84; all in Exhibit 1 portray the obvious which

is that, the denied signatures are transparently different

from the admitted signatures. For ease of understanding

and better

36

(201

8) LP

ELR-45

429(

CA)

appreciation of the facts of this case, I shall state the

documents relating the denied signatures and those of

admitted signatures from Exhibit 1 hereunder.

1. Document at page 56 - Request for Certified True Copy

of

Certificate of Occupancy

2. Document at page 58 - Affidavit as to loss of documents

which includes the Certificate of Occupancy.

3. Document at page 71 - Application for consent to assign

Certificate of Occupancy No. PL 14723

4. Document at page 80 - Letter of complaint with regards

to

document at page 71

5. Document at page 84 - Deed of Assignment Between

Humphery Okoli Ezeofor And Fidelis Anayo Okoye

From the above I agree with the learned trial Chief Judge

that the 1st Respondent is right in denying the signatures

at pages 56, 58 and 71. Consequently, I hold that the

learned trial Chief Judge was right when he relied on

Section 108 (1) of the Evidence Act CAP 112 LFN 1990; to

compare the signatures admitted by the 1st Respondent

with the signatures he disputed. I further hold that the

outcome of his comparison was right which is to say that

t h e d i s p u t e d s i g n a t u r e s a r e n o t 1 s t

Respondent’s signatures.

37

(201

8) LP

ELR-45

429(

CA)

Issue 3 is therefore resolved in favour of the 1st

Respondent

SUBMISSIONS ON ISSUE 4

“Was the learned trial Chief Judge not in error when

he failed to consider and uphold the appellant’s

defence of bona fide purchaser for value without

notice.”

This issue which is predicated on ground 5 of the notice

and grounds of appeal which is an attack on the part of the

decision of the trial Court refusing to evaluate and uphold

the Appellant’s defence of bona fide purchaser for value

without notice. The Appellant contended that from the

record his defence of bona fide purchaser for value without

notice was well made out and established and the same

ought to have been upheld. On the purport of the defence

of bona fide purchaser for value without notice, Mr. Komak

relied on: BEST (NIG.) LTD. V. B.H. (NIG.) LTD. (2011)

5 NWLR (PT. 1239) 95 AT 120; JAFFAR V. LADIPO

(1969) 1 ALL NLR 165; JOHN OSAGIE V. ALHAJI S. O.

OYEYINKA (1987) 3 NWLR (PT.59) 144; OGUNDIANI

V. ARABA (1978) 6-7 SC 55; OWO V. KASUMU (1932)

11 NLR 116.

The Appellant referred to the workings of the latin maxim

38

(201

8) LP

ELR-45

429(

CA)

caveat emptor in all land transactions and the nature of

search imposed on a purchaser to entitle him to rely on the

defence of bona fide purchaser for value without notice. He

cited: AGEH V. TORTYA (2003) 6 NWLR (PT. 816) 385

AT 396. To show that the Appellant established the

defence under consideration, he referred to the DW1’s

evidence in chief at pages 150 – 152; and his evidence

under cross examination at pages 162 – 164 of the record.

The learned counsel referred to the judgment of the trial

Court to contend that despite the importance of the issue of

bona fide purchaser for value without notice, the same was

not considered or evaluated at all. He submitted that this

Court was on the same footing to do the evaluation and

urged the Court to so do and to hold that the Appellant was

a purchaser for value without notice.

He urged the Court to resolve the issue in favour of the

Appellant.

On this issue, Mr. Ajaegbu the learned counsel for the 1st

Respondent agreed with the Appellant’s counsel that the

defence of bona fide purchaser for value without notice is

one which the law allows the purchaser of a property to

rely on,

39

(201

8) LP

ELR-45

429(

CA)

but he argued that a party relying on the said defence must

show that diligent search was conducted to find out any

defect in title. Thus failure to do so, the defence of bona

fide purchaser will not avail such a purchaser as the

defence cannot stand where the transaction is shown to the

Court to be shrouded in deceit and fraud.

The learned counsel further argued that in the instant case

where the trial Court has been satisfied that the

transaction was erroneous and clothed with fraud he

needed not go further to evaluate the defence of bona fide

purchaser for value without notice advanced by the

Appellant in this case. He referred to pages 217 and 219 of

record. He however went further at paragraphs 7.02 to

7.03 that spans pages 12 to 14 of the 1st Respondent’s

brief to contend that the Appellant did not establish the

defence.

He urged the Court to resolve the issue in favour of the 1st

Respondent and to dismiss the appeal.

RESOLUTION OF ISSUE 4

The proper steps for an appellate Court to take where the

lower Court has failed to resolve an issue raised before it

which is vital to the resolution of the dispute between the

40

(201

8) LP

ELR-45

429(

CA)

parties include: to either order a retrial or resolve the issue

upon the evidence available if the question of credibility of

witnesses would not arise. OVUNWO & ANOR. V. WOKO

& ORS. (2011) LPELR – 2841 (SC); ORIANWO V.

OKENE (2002) 14 NWLR (PT.786) 156 AT 182 – 183.

From the record, the learned trial Chief Judge failed to

evaluate the evidence and decide the issue of the defence

of bona fide purchaser for value without notice placed

before him. Having considered and found that the

resolution of the said issue of defence of purchaser for

value without notice can be attained based on documentary

evidence - Exhibit 1, and the evidence of DW1 whose

credibility was not in question, I shall go ahead to resolve

the issue which the trial Court failed to resolve as I have

been called upon by the Appellant’s counsel and as I am

required of by the law.

A bona fide purchaser for value without notice is one who

purchased property for valuable consideration without

notice of any prior right or title which if upheld will

derogate from the title which he has purported to acquire.

BEST (NIG.) LTD. V. BLACKWOOD HODGE NIG. LTD.

& ANOR. (2011) LPELR

41

(201

8) LP

ELR-45

429(

CA)

- 776 (SC); (2011) 5 NWLR (PT.1239) 95. It is a settled

principle of law that only a bona fide purchaser of a legal

estate for value without notice of defect in title that can

take priority over someone who had acquired a prior

equitable interest over the same property. ANIMASHAUN

V. OLOJO (1990) 6 N.W.L.R. (Part 154) 111 at 121;

OHIAERI V. YUSSUF & ORS (2009) LPELR – 2361

(SC). Purchase Without Notice exists if the purchaser had

no notice of the existence of the equitable interest, he must

have neither actual, constructive nor imputed notice. It has

also been held that if the purchaser employs an agent such

as a solicitor, any actual or constructive notice which the

agent receives is imputed to the purchaser.ANIMASHAUN

V. OLOJO (supra).

Following the fundamental principle in all land transactions

captured in the latin maxim “caveat emptor” which means

let the buyer beware. A purchaser is required in law to first

of all conduct search in the relevant registries before

committing his money into any property transaction. Once

a purchaser undertakes and carries out all the necessary

searches required of him and there is nothing adverse

discovered

42

(201

8) LP

ELR-45

429(

CA)

having exercised all due care and diligence, interest in the

property will pass even if, as in the instant case, it was

subsequently claimed that there was defect in title and

irregularities not on the part of the purchaser. AGEH V.

TORTYA (2003) 6 NWLR (PT. 816) 385 AT 396; OWO

V. KASUMU (1932) 11 NLR 116. There is no gainsaying

in the instant appeal that the Appellant bought the property

for value. The evidence is that he paid N3,500,000.00 to

one Mrs. Lucy Okoye who put herself out as the 1st

Respondent’s wife. The question is, with the facts and

circumstances of the case at hand, can the Appellant be

said to have bought the property bona fide and without

notice? I have considered the submissions of both counsel

on this issue, I appreciate the industry of both learned

counsel particularly that of the Appellant’s counsel who has

fought the case as a lion. The law requires a party who

seeks to rely on purchase for value without notice to

establish that he exercised due care and was diligent in his

search ‘Bona-fide’ is defined as “in good faith, honestly,

without fraud, collusion, or participating in wrong doing.”

43

(201

8) LP

ELR-45

429(

CA)

'Purchaser' in its technical sense does not necessarily imply

purchaser for value. ‘For value’ is therefore included to

show that value must be given to earn the immunity from

equitable claimants. Value means any consideration in

money, money’s worth (e.g. other lands, stocks and shares

or services or marriage)ANIMASHAUN V. OLOJO (1990)

LPELR – 491 (SC); LE NEVE V. LE NEVE (1747) 1 VES

SEN 64 : WH & T . I I 157 WILLOUGHBY V .

WILLOUGHBY 1 TR. 763. ‘Without Notice’, means he

must have no notice of the existence of equitable interest.

He must have neither actual, constructive nor imputed

notice. A person has actual notice of all facts of which he

has (or has had) actual knowledge however that knowledge

was acquired. For Constructive Notice, the Court of

Chancery insisted that a purchaser should inquire about

equitable interests with no less diligence than about legal

interest which they could ignore only at their own peril.

The motto of English conveyance is caveat emptor; the risk

of incumbrances is on the purchaser who must satisfy

himself by a full investigation of title before completing his

purchase. A purchaser would

44

(201

8) LP

ELR-45

429(

CA)

be able to plead absence of notice only if he had made all

usual and proper inquiries, and had still found nothing to

indicate the equitable interest.

In the instant appeal, the DW1 is the solicitor who drafted

the agreement for the purchase of the land in dispute by

the Appellant from one Mrs. Lucy. In his evidence in chief

and under cross examination, he stated how he conducted

the search that led to the purchase of the disputed property

for which the Appellant seeks to rely on in his defence of

purchase for value without notice. At the last paragraph of

page 150 of the record, DW1 stated:

“Sometimes in the year 2004, the 1st defendant

contracted me that I should draft an agreement for

the purchase of No. 62B Haliru street Jos. The 1st

defendant and Lucy Okoye wife to the plaintiff were

already at the Lion Bank, near Plateau Club Jos, I

asked them not to pay the money then, that I would

rash (sic rush) to Lands and Survey for a quick

search...” (underlining mine for emphasis).

At page 151, the DW1 identified Exhibit 1 as the file he

conducted the search and he was cross examined on

Exhibit 1. Under cross examination at page 151, the DW1

45

(201

8) LP

ELR-45

429(

CA)

said he found no encumbrance in Exhibit 1 but that when

he returned from his quick search to join Lucy Okoye and

the Appellant, the said Lucy and an unnamed bank official

informed them that there was equitable mortgage by way

of over draft and so that Lion Bank was in possession of the

CTC of the C of O which was later handed over to them. At

page 161 of the record, DW1 was recalled for cross

examination. At page 162 under cross examination he

stated:

“I did conduct search before payment was made, I did

not apply to conduct search I did not pay the fee for

the conduct of search….There was an equitable

mortgage that was not registered and was not

reflected in the file” (underlining mine for emphasis).

At pages 162 to 164, the DW1 was shown pages 56, 58, 71,

79 - 80, and 82 of Exhibit 1 where he noted amongst other

things that the signature of the 1st Respondent on the Deed

of Conveyance to him and the letter of complaint he wrote

to the 3rd Respondent about the wrongful assignment of

his property to one Lucy Okoye are the same but different

from his alleged signatures on the letter assigning the

disputed

46

(201

8) LP

ELR-45

429(

CA)

land to Lucy Okoye and application for CTC of C of O.

From the undisputed fact that the DW1 neither applied for

search nor paid search fees, I hold that no search was

indeed conducted by him. Assuming I am wrong in this

conclusion, the circumstances of the search reveals nothing

but the fact that there was no diligent search as required

by the law. The evidence on record shows that:

a) The DW1 conducted his search hurriedly and so

could not see the obvious pointers in Exhibit 1 that

could have put him on notice of the interest of the 1st

Respondent. As the DW1 was on a quick search, he

could not see the irregularities in the signatures of

the 1st Respondent on vital documents relating to the

two assignments found in Exhibit 1 which

irregularities he acknowledged when pointed out to

him under cross examination in Court. The obvious

irregularities to which DW1’s eyes were opened to in

Court are such that would have put him on actual

notice of the defect in title of Mrs. Lucy Okoye and

consequently put the Appellant on constructively

notice.

b) The fact that there was unregistered equitable

mortgage of the disputed property not reflected in

47

(201

8) LP

ELR-45

429(

CA)

Exhibit 1 more especially when the mortgage was

between Lucy Okoye and a bank should have put the

Dw1 and constructively the Appellant on notice.

c) The sense of urgency attached to the transaction

which did not involve a perishable item should have

put the purchaser on notice”.

What I have been laboring to arrive at, is that the Appellant

did not conduct search before paying one Lucy Okoye for

the disputed property allegedly belonging to the 1st

Respondent; and if he claims to have conducted a search,

he was not diligent neither did he exercise due care in the

conduct of the search resulting to improper search that did

not reveal obvious facts and issues that would have put him

on notice of an existing interest. In the circumstances

therefore, the Appellant cannot take advantage of the

defence of bona fide purchaser of value without notice as

he failed to establish the said defence.

I resolve issue 4 in favour of the 1st Respondent.

Having found that the Appellant was not a bona fide

purchaser of value without notice, it follows that the

assignment to him by one Mrs. Lucy Okoye of property No.

48

(201

8) LP

ELR-45

429(

CA)

62B Haliru Street, Jos for which he ought to have been put

on notice of the interest of the 1st Respondent is null and

void and of no effect. The same is hereby set aside.

The evaluation I have done while resolving this issue

answers issue 5.

Consequently, I hold that the appeal though strongly fought

fails and the same is dismissed. For what I said above,

particularly my resolution of issue 4, I affirm the decision of

the High Court of Plateau State delivered by L. C. DAKYEN,

CJ in Suit No: PLD/J432/2004.

I make no order as to cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I

have had the privilege of reading the lead judgment

delivered by my learned brother, Uchechukwu

Onyemenam, JCA. His Lordship has considered and

resolved the issues in contention in this appeal. I agree

with the reasoning and the conclusion reached therein. I

only wish to comment on an aspect of the case: the issue of

bonafide purchaser for value without notice raised by the

Appellant.

Counsel to the Appellant contended that the Appellant was

a bona fide purchaser of the property in issue for value

without notice and was thus entitled to the protection

49

(201

8) LP

ELR-45

429(

CA)

afforded by the doctrine in the circumstances of this case.

A bona fide purchaser for value without notice is a person

who purchased property for valuable consideration without

notice of any prior right or title which if upheld will

derogate from the title which he has purported to acquire -

Best (Nig) Limited Vs Blackwood Hodge (Nig) Ltd

(2011) 5 NWLR (Pt 1239) 95. It is important to note that

when a person is said to be a bona fide purchaser for value

without notice, such notice may be actual or constructive

and clearly it refers to notice of matters which might affect

the efficacy of the title of the vendor - Jaffar Vs Ladipo

(1969) 1 All NLR 165, Bank of the North Ltd Vs Bello

(2000) 7 NWLR (Pt 664) 244, Ageh Vs Tortya (2003) 6

NWLR (Pt 816) 385 and Jiwul Vs Dimlong (2003) 9

NWLR (pt 824) 154, Ohiaeri Vs Yussuf (2009) 6

N\'V'LR (Pt 1137) 207.

In Animashaun Vs Olojo (1990) 6 NWLR (Pt 154) 111,

the Supreme Court on pages 122-123, per Obaseki, JSC,

gave a break down the definition the term 'bona fide

purchaser of legal estate for value without notice' thus:

"What is the meaning of a 'bona fide purchaser of the

50

(201

8) LP

ELR-45

429(

CA)

legal estate for value without notice'? Bona fide is

defined as 'in good faith, honesty, without fraud,

collusion or participation in wrong doing' .

Purchasing for value - 'Purchaser' in its technical

sense does not necessarily imply purchaser for value.

'For value' are included to show that value must be

given to earn the immunity from equitable claims.

Value means any consideration in money, money's

worth (e.g. other lands, stocks and shares and shares

or services or marriage ....)

Of a legal estate - As Courts of equity break in upon

the common law, when necessity and conscience

require it, still they allow superior force and strength

to a legal title to estate....

Without Notice - He must have no notice of the

existence of equitable interest. He must have neither

actual notice nor constructive notice or imputed

notice. A person has actual notice of all facts of which

he had actual knowledge however that knowledge was

acquired.....

Constructive Notice - The Court of Chancery insisted

that purchaser should inquire about equitable

interest with no less diligence about legal which they

could ignore only at their own peril. The motto of

English

51

(201

8) LP

ELR-45

429(

CA)

conveyance is caveat emptor ; the r isk of

encumbrances is on the purchaser who must satisfy

himself by a full investigation of title before

completing his purchase. A purchaser would be able

to plead absence of notice only if he had made all

usual and proper inquiries and had still failed to

detect the equitable interest .

Imputed Notice - There is a third category of notice

known as imputed notice. If a purchaser employs an

agent, such as a solicitor, any actual or constructive

notice ... which the agent receives is imputed to the

purchaser. ... "

The key element in a plea of bona fide purchaser for value

without notice is the concept of caveat emptor which

postulates that a purchaser should beware and ought not to

be ignorant that he is purchasing the rights of another. It is

the primary responsibility of a purchaser of land to mount

vigorous search in order to satisfy himself that the land is

free from any encumbrance and to ensure that the rights he

is purchasing belong to the vendor. It is for a party to a

contract to take all necessary precautions to avoid entering

into a bad bargain. The principle is as old as the law itself -

52

(201

8) LP

ELR-45

429(

CA)

Owo Vs Kasumu (1932) 11 NLR 116, Odusoga Vs

Ricketts (1997) 7 NWLR (Pt 511) 1, Ageh Vs Tortya

(2003) 6 NWLR (pt 816) 385, Ejigini Vs Ezenwa

(2003) 16 NWLR (Pt 846) 420. Uwaifo, JCA (as he then

was) explained the principle in Onyido Vs Ajemba (1991)

14 N\'(1LR (Pt 184) 203 at page 228 D-H thus:

"It follows, in my view, that a purchaser must be

careful to know the full details about the land he is

buying so as to acquire a good title by ensuring that

the vendor has the necessary title to what he offers to

sell. The rule is caveat emptor - let the buyer beware.

It is a very old and useful rule. To quote Richards C.B

in Purvis Vs Royer (1821) 9 Price 488 at 518:

'It is a general rule in equity founded on principles of

honesty and the dictates of good sense, that if a

person, generally speaking, offers anything for sale,

the vendee, or he who becomes the purchaser, is

entitled to see that the vendor has it with the

qualifications, and in the way in which he, the vendee,

understood that he bought it; that is, so as to afford

him an assurance of having bought what he wanted,

and meant to buy, or, at least, what was offered or

professed to be sold, or he may reject the contract."

53

(201

8) LP

ELR-45

429(

CA)

In Eholor Vs Osayande (1992) 6 NWLR (Pt 249) 524,

the Supreme Court stated that a grantee of land which gets

affected by town planning regulations must take his land as

he finds it and cannot turn to the grantor or the holder of

an adjoining land for compensation for his loss thereby, as

town planning regulations were part of what the grantee

should have investigated in the process of his investigation

of the title.

The question that arises in this appeal is whether the

Appellant led credible evidence to show that he indeed

carried out a vigorous search in order to satisfy himself

that the rights he was purchasing actually belonged to the

vendor. The only witness of the Appellant who gave

evidence on any such search was the first defence witness.

He testified in examination in chief that when the Appellant

informed him of his desire to purchase the property from

Lucy Okoye, he rushed to Ministry of Land and Survey to

conduct a quick search. Under cross-examination, he

identified the file of the property at the Land Registry,

which had been tendered as Exhibit 1, as the file into which

he conducted the quick search, but he admitted that he did

54

(201

8) LP

ELR-45

429(

CA)

not apply to conduct a search and did not pay a fee for the

conduct of the search; there was no such application for

search in the file. He further admitted under cross

examination that the signatures of the first Respondent on

the Deed of Conveyance in the file and on the letter of

complaint that the first Respondent wrote to the third

Respondent to complaint of wrongful assignment of his

property to Lucy Okoye were the same and that they were

different from his alleged signatures on the letter

purporting to assign the property to Lucy Okoye and on the

application for a certified true copy of the certificate of

occupancy.

Now the procedure for conducting a search into a property

at the Lands Registry is set and certain and it is fact of

common knowledge that this Court is empowered to take

judicial notice of under the provisions of Section 124 of the

Evidence Act. The procedure is that the person desiring of

conducting a search will write an application to the

Registrar of Titles or other like officer to conduct a search,

specifying the property and the particulars of the property

file and his connection and reason for the intended search.

Where

55

(201

8) LP

ELR-45

429(

CA)

the application is approved by the Registrar of Title or the

like officer, he will pay a requisite fee for the search and

which payment is noted on the face of the application. The

application is flied in the property file and the applicant is

granted access to the property, usually in a room or place

reserved for that purpose in the Lands Registry and, more

often than not, in the presence of the Lands Registry to

deter tampering with the property file. The application in

the property file is usually the acceptable evidence that a

party indeed conducted a search of the property file. The

Appellant presented no such application in the instant case.

Going further and relying on the ipse dixit of the first

defence witness that he conducted a search, he admitted

that what he did was rushed and it was a quick search. This

cannot by any stretch of imagination be the same thing as

the vigorous search the law demands a purchaser of

property to carry out in order to ensure that the rights he is

purchasing belong to the vendor. This fact was confirmed

by the witness himself when on a more composed search in

the open Court he

56

(201

8) LP

ELR-45

429(

CA)

admitted that there were anomalies in the signatures of the

first Respondent on the alleged title of his vendor. The

Appellant did not lead credible evidence to sustain the plea

of a bonafide purchaser for value without notice and he is

not entitled to the protection offered by the plea. The

purchase of the property by the Appellant was caught by

the defect in the title of his vendor which was established

by the first Respondent.

I agree that the appeal lacks merit and I too hereby dismiss

same. I affirm the judgment of the High Court of Plateau

State in Suit No PLD /J432/2004 delivered by Honorable

Justice Lazarus C. Dakyen on the 17th of May, 2010. I abide

the order on costs in the lead judgment.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,

J.C.A.: I had the privilege and opportunity to preview the

draft Judgment delivered by my learned brother,

UCHECHUKWU ONYEMENAM, JCA.

I agree with the reasoning and conclusion reached therein

and hereby also dismiss the appeal. The decision of the

High Court of Plateau State delivered by Dakyen, C. J. in

Suit No: PLD/J 432 is therefore affirmed.

I make no order as to costs.

57

(201

8) LP

ELR-45

429(

CA)

Appearances:

N. T. Komak, Esq. with him, M.Y. Dunung, Esq.For Appellant(s)

Obi Ajaegbu, Esq. with him, C. J. Nnaji, Esq. - for1st RespondentP. N. Dashak, Esq. SSC MOJ Plateau State - for2nd and 3rd Respondents. For Respondent(s)

(201

8) LP

ELR-45

429(

CA)