HARDING & ANOR v. AG & PT LAGOS STATE &ANOR

CITATION: (2016) LPELR-40990(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 30TH SEPTEMBER, 2016Suit No: CA/L/1204/2011

Before Their Lordships:

UZO I. NDUKWE-ANYANWU Justice, Court of AppealYARGATA BYENCHIT NIMPAR Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal

Between1. MR. BABATUNDE HARDING2. MR. OLUFEMI SOKENU - Appellant(s)

And1. THE ADMINISTRATOR GENERAL AND PUBLIC TRUSTEEOF LAGOS STATE2. THE REGISTRAR OF TITLE LAGOS STATE

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - MISJOINDER/NON-JOINDER OF PARTY(IES): Effect ofnon-joinder or misjoinder of a party"Now, on when a party can be joined to an existing suit and theconsequences of failure to do so, the law appears to have been wellsettled as are replete in several decisions of the apex Court and thisCourt. The law is that non joinder or even mis-joinder of parties,including even necessary parties to a Suit is now a mere irregularitywhich by itself is no longer capable in law to render an otherwisecompetent Suit incompetent. See Azuh V. UBN Plc (2014) LPELR22913 (SC), where the Supreme Court per Kekere - Ekun JSC., hadpronounced with finality thus:"The position of the law is that non joinder of a necessary party in aSuit is an irregularity that does not affect the competence orjurisdiction of a Court to adjudicate on the matter before it"See also Okoye v. Nigerian Construction & Furniture Co, Ltd. & Ors.(1991) 7 SC (Pt.111) (Reprint) 33 @ p, 56; Green v. Green (1987) 3NWLR (Pt 60) 480, Chief Obumseli & Anor v. Chief Uwakwe (2009)28 WRN 147 @ p.167;??Administrator General, Cross River State V,Chukwuogor (Nig.) Ltd. & ORS.(2007) 23 WRN 44 @ p.58; Bank ofthe North & Anor. V. Aliyu (1999) 7 NWLR (Pt 612) 622. Ekpenyongv. Nyong (2003) 51 WRN 44???The above position of the law has since been given statutoryapproval by the succinct provisions of Order 13 Rules 16 (3) of theHigh Court of Lagos State Civil Procedure Rules, 2012 whichprovides as follows:16(3) ???A judge may order that the names of any party who oughtto have been joined or whose presence before the Court isnecessary to effectually and completely adjudicate upon and settlethe questions involved in the proceedings be added."However, a caveat must be pointed out immediately that in law if anecessary party or any party for that matter is not joined to a Suit,any order made against a person who was not a party to the Suitbefore the Court, though not a nullity, is to no avail and thus notbinding on such a non party to the action. See Uwazurike & Ors. v.AG. Federation (2013) 4 - 5 SC (Pt.1) 90 @ p.119, See also Uku v.Okumagba (1974) 7 All NLR (Pt.1) 475; Azuh v. UBN Plc (supra) @pp. 37 - 38."Per GEORGEWILL, J.C.A. (Pp. 15-17, Paras. E-D) - read incontext

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2. ACTION - PLEADINGS: Whether a party can make a case contraryto his pleadings"The law is now well settled that notwithstanding the difficulty ofdiscerning absolute truth by the mechanism of litigation and judicialdiscernment hinged upon evidence before the Court andirrespective of the imperfections of men, the litigation process isaimed at finding out the truth according to law and therefore, aparty worthy of the favourable consideration of the Court mustendeavour to be consistent in both the facts he pleads and theevidence he leads in proof of those facts. A party will not therefore,be allowed to present at the trial evidence which are inconsistentwith the case he has pleaded. He should not be of such a slipperycharacter in his evidence if he is to be believed and credited withany veracity. See Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248;Ezembe v. Ibeneme (2009) 14 NWLR (Pt.789) 623."PerGEORGEWILL, J.C.A. (Pp. 23-24, Paras. D-B) - read in context

3. ACTION - NON-JOINDER OF PARTY(IES): Options open to theCourt where an action is improperly constituted as a result of non-joinder of parties"Where, a Court comes to a finding on the established facts before itthat a necessary party had not been joined, it ought to invoke therelevant rules of Court to either suo moto add such a necessaryparty to the suit, a lesser evil" even if it be subsequently accused ofhaving done so suo motu but which power is in reality conferred onthe Court below by virtue of Order 13 of the High Court Rules ofLagos State 2012, or to simply strike out the suit to enable theClaimant seek to relist the suit and join the necessary party. In allthese options, a dismissal of the claims of the Claimant, such as theAppellants, for non joinder of a necessary party is never anoption."Per GEORGEWILL, J.C.A. (Pp. 24-25, Paras. E-B) - read incontext

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4. ACTION - MISJOINDER/NON-JOINDER OF PARTY(IES): Questionsthat court should ask in determining the effect of non-joinder ormisjoinder of a party"The position of the law as to non-joinder of parties has been firmlysettled. The Supreme Court per OPUTA, JSC in the case of GREEN v.GREEN (1987) 3 NWLR (Pt.60) 480 laid it down that in order todecide the effect of non-joinder or mis-joinder of a party, the Courtshould ask itself the following questions:"(a) Is the cause or matter liable to be defeated by non-joinder?(b) Is it possible to adjudicate on the cause or matter unless the 3rdparty is added as a defendant?(c) Is the 3rd party a person who should have been joined in the firstinstance?(d) Is the 3rd party a person whose presence before the Court as adefendant will be necessary in order to enable the Court toeffectually and completely adjudicate or settle all the questionsinvolved in the cause or matter?"Per NIMPAR, J.C.A. (Pp. 35-36,Paras. F-D) - read in context

5. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE:Instance(s) when an Appellate Court will interfere with theevaluation of evidence of a Lower Court"In law, therefore, an Appellate Court will readily intervene to re-evaluate the evidence on the printed record, as I have done in thisjudgment, if it is shown, as it has been shown by the Appellants inthe instant appeal, that the conclusions drawn by the Court belowon the proved evidence before it do not flow from such proved andestablished facts or that they run contrary to such proved facts andare thus perverse.In Sogbamu v. Odunaiya (2013) All FWLR (Pt.700) 1247 @ p.1307,the Court pronounced emphatically thus:???A decision is said to be perverse when it is speculative, not beingsupported by evidence or reached as a result of either wrongconsideration of evidence or wrong application of a principle ofsubstantive law or procedural law, and an Appellate Court caninterfere with a decision of the trial Court that is perverse."PerGEORGEWILL, J.C.A. (Pp. 25-26, Paras. E-C) - read in context

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6. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE:Attitude of Appellate Courts towards interfering with evaluation ofevidence of a trial Court"It is true that it is the duty of the Court below to evaluate thesefacts before it but it must in doing so not raise and resolve issuesnot raised by the parties without calling on them to address it uponsuch issues raised suo motu or take into consideration extraneousmatters not borne out by the evidence placed before it by theparties. In law, therefore, the duty to assess the quality of evidenceto accept or reject it belongs to the trial Court and thus where theissue involves only the credibility of evidence, the Appellate Courtwould not readily interfere, unless there are exceptionally strongreasons to so do. See Gundiri v. Nyako (2014) 2 NWLR (Pt.1391)201; Saeed v. Yakowa (2013) 17 NWLR (Pt.1352) 124."PerGEORGEWILL, J.C.A. (Pp. 19-20, Paras. C-A) - read in context

7. APPEAL - UNAPPEALED FINDING(S)/ DECISION(S): Effect ofunappealed finding(s)/decision(s)"In law therefore, there being no appeal against those findings Itake them as duly established, conclusive and thus binding on allthe parties. See Yesufu V. Kopper Intl. (1996) 5 NWLR (Pt.446) 17,See also Tsowa Nig. Ltd. v. UBN Ltd. (1996) 5 NWLR (Pt.471) 129;Nwabueze V. Okoye (2002) 10 WRN 123; Otuedon V. Olughor (1997)9 NWLR (Pt 521) 355; Okotie - Eboh V. Manager (2005) All FWLR(Pt.241) 277."Per GEORGEWILL, J.C.A. (P. 20, Paras. D-F) - read incontext

8. COURT - DUTY OF COURT: Duty of a trial court in evaluation ofevidence and assessment of credibility of a witness"In Eyo V. Iynang (supra), this vital duty of trial Courts was sosuccinctly put thus;"A trial Court is entitled to follow its own method of considering orweighing the totality of the evidence before it provided the finaldecision arrived at by whatever method conforms with principleslaid down in the case and the justice of the case."Per GEORGEWILL,J.C.A. (P. 20, Paras. A-B) - read in context

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9. EVIDENCE - AFFIDAVIT EVIDENCE: Consequence ofuncontroverted affidavit evidence"All these facts were not even in dispute as the Respondents did notcontrovert these depositions in the affidavit and further affidavitevidence of the Appellants and thus in law the Court below ought tohave acted on them as they are good evidence on which the Courtshould act having not been controverted by the Respondents. Thisis so because in law facts deposed to in an affidavit which are notcontroverted must be taken as true and duly established exceptthey are palpably false. See Alagbe v. Abimbola (1978) 2, SC 39.See also Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Yahaya v.FRN (2007) 29 WRN 127."Per GEORGEWILL, J.C.A. (Pp. 18-19, Paras.F-C) - read in context

10. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whomlies the burden of proof in a claim"The law is and has always been that it is he who alleges theaffirmative that carries the burden of proving what he positivelyasserts and not for he who asserts the negative, which is incapableof proof. This has been the position of the law from antiquity and asabound in several jurisdictions. See Elemo v. Omolade & Ors. (1968)NMLR 359, See also Atane V. Amu (1974) 70 SC 237; Fashanu V,Adekoya (1974) 6 SC 83; Onyenge V. Ebere 18 NSCQR (Pt.11) 789;Vulan Gases Ltd, V. Gesellschaft Fur Ltd. (2001) 9 NWLR (Pt.719)610."Per GEORGEWILL, J.C.A. (P. 21, Paras. B-D) - read in context

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11. EVIDENCE - AFFIDAVIT EVIDENCE: Consequence ofuncontroverted affidavit evidence"I should also perhaps reiterate, just by way of emphasis, the triteposition of the law that where facts deposed to in an affidavit havenot been controverted by the adverse party in a counter affidavit,such facts must be taken as true and established and is goodevidence to be acted upon by the Court except where such facts arepalpably false. In law, except such unchallenged facts areunreasonable or frivolous, the Court below was legally bound toaccept it as true. See Adeleke v. Iyanda (2001) 28 WRN 1 @ pp. 17 -18. See also Arma Ya'u Abdullahi & Sons Ltd. v. FHA Homes Limited(2007) 18 WRN 189 @ p. 196; Alagbe v. Abimbola (1978) 2 SC 39;Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773; Yahaya v. FRN(2007) 23 WRN 127."Per GEORGEWILL, J.C.A. (Pp. 30-31, Paras. D-B)- read in context

12. JUDGMENT AND ORDER - JUDGMENT OF COURT: Whether acourt can give judgment against a person who is not a party to asuit"See OSUNRINDE v. AJAMOGUN (1992) 6 NWLR (Pt.246) 156 at 187,where it was held inter alia thus:"The general rule of law undoubtedly is that nobody is to beadversely affected by a judgment in an action to which he was not aparty, because of the injustice in deciding an issue against him inhis absence, But this general rule admits of two exceptions, one isthat a person who is in privity with the parties, a 'privy??? as he iscalled is bound equally with the parties in which case he is estoppedby res-judicata???..???See also the succinct views of Bada JCA @ p. 169 - 171 inter alia tothe effect that:"It is the law that a privy is bound by a judgment against theinterest of the person through whom he claims title if the subjectmatter is the same property or piece of land."Per GEORGEWILL,J.C.A. (P. 18, Paras. A-F) - read in context

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13. LAND LAW - EQUITABLE INTEREST IN LAND: What a partyclaiming equitable interest in land must show"In Alhaji Mustapha Kachalla v. Alhaji Tijanni Banki & Ors (2006) 27WRN 1 @ pp. 26 -27, the Supreme Court reiterated this finerprinciple of the law on equitable proprietary interest in land thus:"The law has been well and long settled that where a person paysfor a land and obtains receipt for the payment followed by his goinginto possession and remaining in possession, equitable interest iscreated for him in the land such as would defeat the title of asubsequent legal purchaser with knowledge of the equitable estatein the land??????Now, going by the succinct statement of the law in the above case,it is clear to me that there are conditions precedent or essentialrequirements upon which this principle of law can be validlyinvoked. The essential requirements for the applicability of thisprinciple of law are that the person, whose equitable interest is tobe protected must have paid for a land and obtained receiptevidencing such payment followed by physical possession of theland and remaining in such possession creates in his favor anequitable interest in the land protected by law. See also Okoye v.Dumez Nig Ltd & Anor. (1985) 1 NWLR (Pt.4) 785 and U.B.A. Plc &Ors v. Ayinke (2000) 7 NWLR (Pt 663) 83."Per GEORGEWILL, J.C.A.(Pp. 29-30, Paras. D-D) - read in context

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BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering

the Leading Judgment): This is an appeal against the

judgment of the Lagos State High Court sitting in the Ikeja

Judicial Division in suit No. ID/655m/2009: Mr. Babatunde

Harding & Anor Vs. The Administrator General and Public

Trustee of Lagos State & Anor delivered on 17/6/2011 by Y,

A. Adesanya J. in which the reliefs sought by the Appellants

as Claimants against the Respondents were refused and

dismissed.

The Appellants who were thoroughly dissatisfied with the

said judgment had promptly appealed against the said

judgment vide a Notice of Appeal filed on 18/7/2011 on four

Grounds of Appeal. The Record of Appeal was transmitted

to this Court on 2/11/2011 but deemed duly transmitted on

5/2/2013. The Appellants' brief was filed on 14/8/2013 but

deemed duly filed on 23/2/2016. The 1st Respondent's brief

was filed on 13/9/2013 but deemed duly filed on 23/2/2016.

The 2nd Respondent, though duly served with the

processes in this appeal did not file any brief and the

appeal proceeded to hearing on the briefs of the Appellants

and the 1st Respondent only.

At the hearing of the

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Appeal on 26/9/2016, only the Appellants were represented

by counsel, while the Respondents, though duly served with

hearing notice on 15/8/2016 did not appear to participate

at the hearing of the appeal. Ejeta Otuoniyo Esq., for the

Appellant, appearing with Judith Kuforigi (Mrs) and Miss

Adesina Ekewele, adopted the Appellant's brief as their

arguments in this appeal and urge the Court to allow the

appeal, set aside the judgment of the Court below and in its

stead grant all the reliefs claimed by the Appellants as

Claimants against the Respondent before the Court below.

The Court upon being satisfied that the Respondents had

been duly served with hearing notice and that the 1st

Respondent had filed its brief proceeded to invoke the

provisions of Order 18(9) (4) of the Court of Appeal Rules

2011 and deemed the 1st Respondent's brief as having

been adopted as the arguments of the 1st Respondent in

this appeal.

By an originating summons filed on 4/8/2009, the

Appellants raised a sole question for determination before

the Court below, namely;

"Whether sequel to the judgment of the Hon Justice

O. Gbaja-Biamila in Suit No.ID/800m/2001 and the

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discovery that the property lying and situate at 8 Alli

street is vacant and unsold, the beneficiaries of the

Estate of Williams Richmond Harding Descendants

family are not entitled to the reversionary Estate in

the said No, 8, Alli Street, Lagos."

If the answer to the above is in the affirmative, the

Appellants sought the following reliefs:

1. The Claimants being lineal descendants, heirs and

persons beneficially residual and reversionary estate

of William Richmond Harding suit No:ID/800M/2001

are entitled to the residual and reversionary interest

in the property known as 8, Alli Street, Lagos.

2. An order directing the Defendant to vest the

property known as 8, Alli Street, Lagos on the

Claimants by executing a vesting Deed in the

Claimants' favour.

3 An order directing the Registrar of titles to rectify

the Register by deleting the entries any other

beneficiary other than the late William Richmond

Harding, (Page 1 & 2 of the Records).

The gist of the Appellants' case can be seen in the

depositions in their 17 paragraph affidavit and further and

better affidavit in support of the Originating Summons,

attached to which were

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several documents marked as Exhibits BH1 - BH4. The

Appellants stated that by a Judgment delivered on

28/6/2002, which is Exhibit BH1, the Lower Court per

Gbaja - Biamila J., declared them beneficially entitled to the

residual estate of the late Williams Richmond Harding,

whose “will” dated 16/6/1921 and probated by the Supreme

Court on the 10/5/1927 contained some devises including

the one under dispute between the parties. It was also their

case that by the said Judgment, the 1st Respondent was

completely divested of the administration and trusteeship

of all properties and incomes in the residual estate and

vested same on the lineal descendants, who are the

Appellants in Exhibit BH1 claimed the return of three of the

properties, namely; 8, Tinubu Square, Lagos registered as

No.27/291, Lagos; B, Alli Bamgbose Street, Lagos

registered as No. 30/120/44 at Lagos, which is the property

in dispute; and 116, Denton Street, Ebute-Metta registered

as No.138/46/275 at Lagos. On the other hand, the case of

the 1st Respondent as can be seen in its counter affidavit

was rather very simple and it was that the only property in

its custody relating to the Estate

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of W.R Harding was 116, Denton Street, Ebute-Metta,

Lagos and was thus not in position to vest any title in the

Appellants as sought in the Originating Summons. See

Pages 3-15; 28-34; 40 - 47 of the Records.

In the Appellant's brief, four issues were distilled as arising

for determination on this appeal namely:

1. Whether the joinder or non joinder of a purported

'interested party' was capable of defeating the

determination of the legal issues raised in the

Originat ing Summons against the named

Respondents? (Ground 1)

2. Whether there were any facts before the trial Judge

to come to the 'Over riding' conclusion that Chief

Kofo Abayomi was a necessary party to the action?

(Ground 2)

3. Whether a trial Judge is entitled to defeat an action

on a non canvassed issue, notice of which was never

given? (Ground 3)

4. Whether the principle of law protecting equitable

title to property vide physical possession as held by

the learned trial Judge was applicable to this case?

(Ground 4)

In the 1st Respondent's brief, two issues were distilled as

arising for determination in this Appeal, namely:

1. Whether in the face of the findings

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and conclusions in the judgment of the Lower Court,

any miscarriage of justice was occasioned as a result

of any wrongful evaluation of facts presented to the

Lower Court by the parties?

2. Whether the principle of law protecting equitable

title to property in physical possession by the Lower

Court was applicable to this case?

I have given due considerations to the facts, circumstances

and evidence of the Parties in the printed record. I have

also taken time to review the submissions of Counsel in

their respective briefs and it does appear to me that the

issues arising for determination in this appeal can be

situated within a narrow compass and can be adequately

considered and disposed of on a due consideration of the

first and fourth issues as distilled in the Appellants' briefs.

It is my considered view that a consideration of these two

apt issues, of which the Appellants' fourth issue is the same

as the 1st Respondent's second issue two, and thus would

invariably involve a consideration of all the other issues as

distilled in the respective briefs of the parties. I do hereby

adopt and set down the following two issues as the apt

issues for

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determination in this appeal, which I shall consider ad

seriatim, namely;

1. Whether the joinder or non joinder of a purported

‘interested party’ was capable of defeating the

determination of the legal issues raised in the

Originat ing Summons against the named

Respondents?

2. Whether the Principle of Law protecting equitable

title to property in physical possession as held by the

Lower Court was applicable to this case?

ISSUE NO. ONE

"Whether the joinder or non joinder of a purported

'interested party' was capable of defeating the

determination of the legal issues raised in the

Originat ing Summons against the named

Respondents?"

Appellants' counsel had submitted that the property known

as No.8, Alli Street Lagos, even though there was evidence

that some persons sought to transfer to a third party , it

failed and contended that the Respondents had no facts

other than that a purported document signed by an

unknown person purporting to be a Federal Administrator

General transferring a trust property with no evidence of

payment for the said transaction and the property was thus

still in custody of the Respondents when this

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action was commenced, since in law facts deposed to in an

affidavit if not controverted such facts must be taken as

true. Counsel relied on Alagbe V. Abimbola (1978) 2,

SC. 39; Egbuna V. Egbuna (1989) 2 NWLR (Pt.106)

773; Yahaya v. FRN (2007) 23 WRN 127.

Appellants' counsel further submitted that the questions

when does it become desirable for a third party to be joined

in an action and at whose instance can such a party be

joined were clearly answered by the provisions of Order 13,

Rules 15 (3) of the High Court of Lagos State Civil

Procedure Rules, 2004 to the effect that a judge may order

that the names of any party who ought to have been joined

or whose presence before the Court is necessary to

effectually and completely adjudicate upon and settle the

questions involved in the proceedings be added. Counsel

relied on Chief U. C. Obumseli & Anor V, Chief Uwakwe

(2009) 28 W.R.N. 147 @ pp. 167 - 768; Mufutau

Olayiwola & Ors. V. FRN (2006) 8 WR.N. 109 @

pp.148 -149.

Appellant' counsel also submitted that the foray into the

issue of non joinder not raised by the parties occasioned a

miscarriage of justice, in that all the other issues were

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resolved in favor of the Appellants and was thus raised, suo

motu as a surprise by the Court below and resolving same

without calling on the parties to address it on the issue and

in favor of a party not before the Court. Counsel relied on

Mufutau Olayiwola V. FRN (supra) @ pp.150 – 151;

Odua'a Investments Co. Ltd, V. Talabi (1991) 1 NWLR

(Pt.170) 761.

Appellants' counsel further submitted that the Court below

having agreed that 1st Respondent inherited the liabilities

and duties of the Federal Administrator General who

purported to have executed the inchoate transfer

document, Exhibit BH3 which purported to sell the subject

matter to Sir Kofo Abayomi, it had necessarily established a

privity of contract and estate between the 1st Respondent

and the said Sir Kofo Abayomi and contended that in law it

was sufficient for the Appellants to sue the Respondents

alone who had the legal title still resting with them.

Counsel relied on Makoshi Daniel V. Senator Alex

Kadiri (2011) 14 WRN 160; Osunrinde V. Ajamogun

(1992) 6 NWLR (Pt.246) 156 @ p.187.

Appellants' counsel further submitted that a look at the

contents of Exhibit BH3, a partly executed

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document by the said Federal Administrator General

purporting to sell a trust property to a tenant in the said

property and Exhibit BH4, whatever the mode of entry of

the said interest of Sir Kofo Abayomi into these subject

matter, the 2nd Respondent properly raised the questions

in Exhibit BH4, which the Court below glossed over by

failing to evaluate them and contended that Exhibit BH4

effectively unplugged whatever 'arranged' proprietary

interest that Sir Kofo Abayomi wanted to acquire in the

subject matter, that would have been capable of legal

protection. Counsel relied on Administrator General,

Cross River State V. Chukwuogor (Nig.) Ltd. & Ors.

(2007) 23 WRN 44 @ p.58; Bank of the North & Anor.

V. Aliyu (1999) 7 NWLR (Pt.612) 622; Ekpenyong v.

Nyong (2003) 51 WRN 44.

1st Respondent's counsel submitted that the Court below

did not just arrive at its conclusion not to make any order

against a non-party but the finding was based on facts as

established by the parties in evidence to the effect that the

subject matter was no longer in possession of the 1st

Respondent and contended that on the face of all these

findings of facts and uncontroverted

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documentary exhibits the Court below was right in its

findings and conclusions resulting in the refusal of the

Appellants' reliefs since a non party cannot be bound by a

decision of Court, which ordinarily ought to affect him

unless he is made a party. Counsel referred to Section 272

(1) & (2) of the 1999 Constitution of the Federal Republic

of Nigeria (as amended) and relied on Balogun & Ors. v.

Alimi Agboola (1974) 1 All NLR (Pt.11) 66 @ p.73.

1st Respondent's counsel further submitted that in law the

Court below would not be acting judicially to suo-motu join

the buyer of the subject matter under the guise of invoking

the provisions of Order 13 Rule 16(3) of the High Court

Civil Procedures of Lagos State 2004, having no such

discretion to do so suo motu and contended that on the

contrary the Court below acted judicially in its refusal to

suo-motu join the buyer of the subject matter of the suit to

refrain from dabbling into the case of the parties, even

though it saw the need for the buyer to be joined as party.

Counsel relied on Mufutau Olayiwola v. FRN (2006) 8

WRN 109 @ pp.151- 152.

1st Respondent's counsel also submitted that the

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Court below finding that the buyer was a necessary party

who ought to be joined was arrived at on the basis of

inference of law resulting from facts placed before it and

therefore, does not amount to an issue raised suo motu and

decided upon without hearing the parties as erroneously

submitted by the Appellants and contended the Court

below was entitled to evaluate the facts before it and

indeed rightly came into the said conclusion. Counsel relied

on Eyo V. Inyang (2001) 1 NWLR (Pt. 715) 1; Chief V.

C. Obumseli & Anor. v. Uwakwe (2009) 29 WRN 147 @

pp. 167 - 168.

1st Respondent's counsel further submitted that the

yardstick for the Court below finding that the buyer of the

property ought to have been joined was as a result of its

finding as of fact that an equitable interest has been passed

to the said buyer and that 1st Respondent could no longer

be in position to confirm the veracity of the Appellants'

averments in paragraphs 12, 13 & 14 of the affidavit in

support of the Originating Summons and contended that

the conclusion of the Court below on the desirability of

joinder of the buyer was rightly made based on the

deductions from facts before

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it that even though the legal documentation for the sale

was inchoate yet there was an element of equitable interest

that had passed to the buyer of the property. Counsel relied

on Eyo v. Inyang (supra).

1st Respondent's counsel also submitted that while the

decision in Osurinde v. Ajamogun (1992) 6 NWLR (Pt.

246) 187 remains good law, it does not avail the

Appellants as it is inapplicable because the Appellants'

depositions in their affidavit was not on whether the 1st

Respondent lacks capacity to sell the property in question

but rather whether the sale transaction over the property

between the 1st Respondent and the buyer was a nullity as

result inchoate legal documentation, which thus passed

equitable interest to the buyer and in position to respond to

the facts alleged by the Appellants.

My lords, it was on the strength of the diverse facts as

deposed to by the parties in their respective affidavit,

further affidavit and counter affidavit evidence that the

Court below having appraised same in line with the

applicable principle of law had held inter alia thus:

"There is no indication that the purported purchaser

in exhibit BH3 complied with

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the observations and regularized his position for well

over 45 years. Be that as it may, no order can or

should be made in respect of this property against the

interest of the purported buyer, sir Kofo Abayomi or

his estate since he was not a party to the earlier

proceeding nor the instance, He cannot therefore BE

BOUND by the general findings of the Court on the

parties in the WILL of late Harding, as far as No.9

(sic) Alli Street is concerned. This is because even

where a Deed of conveyance is inchoate and was not

registered, the law still protects the right of such a

buyer who is in possession of the property… The

Applicants in paragraphs 12, 13 and 14 of the

affidavit in support deposed that the property was

vacant dilapidated and had become a latrine,

whereupon they took possession of same, these facts

cannot be confirmed in the absence of the purported

buyer in Exhibit BH3. He or his estate should have

been joined in this action to ascertain the averments

in paragraphs 12, 13 and 14… I must agree with the

submission of the learned counsel for the Applicants

that upon the creation of Lagos State, the

Administration of Estates

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situated within the State previously administered and

managed by the Federal Administrator General

became automatically vested in the Administrator

General of Lagos State." See pages 101 -114 of the

Record.

A proper consideration of the first issue for determination

would in my view invariably involve a consideration of three

salient questions, namely;

1. Was the non joinder of Sir Kofo Abayomi or his estate, as

the case may be, fatal to the claims of the Appellants as in

their Originating Summons against the Respondents?

2. Was the Court below right when it held that the non

joinder of Sir Kofo Abayomi was fatal to the claims of the

Appellants against the Respondents and consequently

refusing and dismissing same?

3. Was Sir Kofo Abayomi a necessary party who ought to be

joined to the suit of the Appellants against the

Respondents?

Now, on when a party can be joined to an existing suit and

the consequences of failure to do so, the law appears to

have been well settled as are replete in several decisions of

the apex Court and this Court. The law is that non joinder

or even mis-joinder of parties, including even necessary

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parties to a Suit is now a mere irregularity which by itself is

no longer capable in law to render an otherwise competent

Suit incompetent. See Azuh V. UBN Plc (2014) LPELR

22913 (SC), where the Supreme Court per Kekere - Ekun

JSC., had pronounced with finality thus:

"The position of the law is that non joinder of a

necessary party in a Suit is an irregularity that does

not affect the competence or jurisdiction of a Court to

adjudicate on the matter before it"

See also Okoye v. Nigerian Construction & Furniture

Co, Ltd. & Ors. (1991) 7 SC (Pt.111) (Reprint) 33 @ p,

56; Green v. Green (1987) 3 NWLR (Pt 60) 480, Chief

Obumseli & Anor v. Chief Uwakwe (2009) 28 WRN

147 @ p.167; Administrator General, Cross River

State V, Chukwuogor (Nig.) Ltd. & ORS.(2007) 23

WRN 44 @ p.58; Bank of the North & Anor. V. Aliyu

(1999) 7 NWLR (Pt 612) 622. Ekpenyong v. Nyong

(2003) 51 WRN 44…

The above position of the law has since been given

statutory approval by the succinct provisions of Order 13

Rules 16 (3) of the High Court of Lagos State Civil

Procedure Rules, 2012 which provides as follows:

16(3) “A judge may order that the

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names of any party who ought to have been joined or

whose presence before the Court is necessary to

effectually and completely adjudicate upon and settle

the questions involved in the proceedings be added."

However, a caveat must be pointed out immediately that in

law if a necessary party or any party for that matter is not

joined to a Suit, any order made against a person who was

not a party to the Suit before the Court, though not a

nullity, is to no avail and thus not binding on such a non

party to the action. See Uwazurike & Ors. v. AG.

Federation (2013) 4 - 5 SC (Pt.1) 90 @ p.119, See also

Uku v. Okumagba (1974) 7 All NLR (Pt.1) 475; Azuh v.

UBN Plc (supra) @ pp. 37 - 38;

In the light of the above trite position of the law both

statutory and judicial, therefore, and coupled with the

established fact on the evidence of the parties that the

alleged buyer of the subject matter for whose absence the

Court below declined to grant the claims of the Appellants

against the Respondents was in law a privy to the

Respondents, it is clear to me and I so hold that the non

joinder of the alleged buyer to this Suit was in law a non

starter and thus

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completely of no moment to the competence and or merit of

the claims of the Appellants, since whatever judgment is

obtained against the Respondents would clearly be binding

on its privry, including the al leged buyer. See

OSUNRINDE v. AJAMOGUN (1992) 6 NWLR (Pt.246)

156 at 187, where it was held inter alia thus:

"The general rule of law undoubtedly is that nobody is

to be adversely affected by a judgment in an action to

which he was not a party, because of the injustice in

deciding an issue against him in his absence, But this

general rule admits of two exceptions, one is that a

person who is in privity with the parties, a 'privy’ as

he is called is bound equally with the parties in which

case he is estopped by res-judicata…..”

See also the succinct views of Bada JCA @ p. 169 - 171

inter alia to the effect that:

"It is the law that a privy is bound by a judgment

against the interest of the person through whom he

claims title if the subject matter is the same property

or piece of land."

All these facts were not even in dispute as the Respondents

did not controvert these depositions in the affidavit and

further affidavit

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evidence of the Appellants and thus in law the Court below

ought to have acted on them as they are good evidence on

which the Court should act having not been controverted

by the Respondents. This is so because in law facts deposed

to in an affidavit which are not controverted must be taken

as true and duly established except they are palpably false.

See Alagbe v. Abimbola (1978) 2, SC 39. See also

Egbuna v. Egbuna (1989) 2 NWLR (Pt.106) 773;

Yahaya v. FRN (2007) 29 WRN 127.

It is true that it is the duty of the Court below to evaluate

these facts before it but it must in doing so not raise and

resolve issues not raised by the parties without calling on

them to address it upon such issues raised suo motu or take

into consideration extraneous matters not borne out by the

evidence placed before it by the parties. In law, therefore,

the duty to assess the quality of evidence to accept or

reject it belongs to the trial Court and thus where the issue

involves only the credibility of evidence, the Appellate

Court would not readily interfere, unless there are

exceptionally strong reasons to so do. See Gundiri v.

Nyako (2014) 2 NWLR (Pt.1391) 201; Saeed v. Yakowa

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

In Eyo V. Iynang (supra), this vital duty of trial Courts

was so succinctly put thus;

"A trial Court is entitled to follow its own method of

considering or weighing the totality of the evidence

before it provided the final decision arrived at by

whatever method conforms with principles laid down

in the case and the justice of the case."

My lords, it would appear, though curiously, that on almost

all the issues of facts on which the parties joined issues on

their affidavit and counter affidavit evidence, the Court

below had found in favour of the Appellants and there are

no grounds of appeal challenging those established facts in

favour of the Appellants. In law therefore, there being no

appeal against those findings I take them as duly

established, conclusive and thus binding on all the parties.

See Yesufu V. Kopper Intl. (1996) 5 NWLR (Pt.446)

17, See also Tsowa Nig. Ltd. v. UBN Ltd. (1996) 5

NWLR (Pt.471) 129; Nwabueze V. Okoye (2002) 10

WRN 123; Otuedon V. Olughor (1997) 9 NWLR (Pt

521) 355; Okotie - Eboh V. Manager (2005) All FWLR

(Pt.241) 277.

Now, it is the Respondents who allegedly sold the property

to the

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alleged buyer and had also alleged that the property in the

subject matter no longer vest in them having allegedly

divested themselves of same in favour of the alleged buyer,

one Sir Kofo Abayomi and thus the burden of proving this

assertion is on the Respondents and not the Appellants. The

law is and has always been that it is he who alleges the

affirmative that carries the burden of proving what he

positively asserts and not for he who asserts the negative,

which is incapable of proof. This has been the position of

the law from antiquity and as abound in several

jurisdictions. See Elemo v. Omolade & Ors. (1968)

NMLR 359, See also Atane V. Amu (1974) 70 SC 237;

Fashanu V, Adekoya (1974) 6 SC 83; Onyenge V.

Ebere 18 NSCQR (Pt.11) 789; Vulan Gases Ltd, V

.Gesellschaft Fur Ltd. (2001) 9 NWLR (Pt.719) 610.

On the established facts, whose duty was it to join the

alleged buyer as a party, assuming but not so deciding that

he was a necessary party who ought to be joined and whose

presence is essential for the effective and effectual

determination of all the issues raised in the Originating

Summons of the Appellants? In my view, that duty, if any

and if at

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all, lies squarely on the Respondents and not on the

Appellants, who having sued the Respondents to whom the

alleged buyer is clearly a privy, need not join the privy to

the suit, since in law a privy is bound by the judgment

obtained against the party who had allegedly transferred

title to property to him. To hold otherwise and to the

contrary, as did the Court below, that it was the Appellants

who ought to have joined the alleged buyer and privy to the

Respondents was in my finding a clear misplacement and

misapprehension of the burden of proof by the Court below.

It is a grave error that has misled the Court below to arrive

at its erroneous finding that the claims of the Appellants

ought to be refused.

However, if the Court below had despite this error arrived

at a correct finding that the non the joinder of the alleged

buyer was not fatal to the claims of the Appellants, then in

law its judgment would still be allowed to stand, since an

Appellate Court is not so much concerned with the

correctness or wrongness of the reason proffered for the

decision but rather concerned with the correctness or

wrongness of the decision reached by the Lower Court. See

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Alhaji Ndayako & Ors. v. Alhaji Dantoro & Ors. (2004)

13 NWLR (Pt.889) 187 @ p.198.

Looking at the entirety of the facts put as forward by the

Respondents in this case and in the earlier decided case

before Gbaja-Biamila J., it appears certain to me that the

Respondents, particularly the 1st Respondent, was very

economical with the truth surrounding its dealings and

relationship with the subject matter of the Appellants'

claims against it. In one breadth it denies having any

further dealings with the subject matter, yet in another

breadth it had allegedly transferred at least equitable

interest in the property to the alleged buyer. The law is

now well settled that notwithstanding the difficulty of

discerning absolute truth by the mechanism of litigation

and judicial discernment hinged upon evidence before the

Court and irrespective of the imperfections of men, the

litigation process is aimed at finding out the truth

according to law and therefore, a party worthy of the

favourable consideration of the Court must endeavour to be

consistent in both the facts he pleads and the evidence he

leads in proof of those facts. A party will not therefore, be

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allowed to present at the trial evidence which are

inconsistent with the case he has pleaded. He should not be

of such a slippery character in his evidence if he is to be

believed and credited with any veracity. See Ajide v.

Kelani (1985) 3 NWLR (Pt.12) 248; Ezembe v.

Ibeneme (2009) 14 NWLR (Pt.789) 623.

In my view therefore, the decision of the Court below to

dismiss the claims of the Appellants merely on the ground

of non joinder of the alleged buyer, a person who in my

finding is not a necessary party to the suit of the

Appellants, when on the established facts the Appellants

had clearly made out their case was in grave error and

utterly perverse and cannot be allowed to stand. It is unjust

and unfair and is liable to be set aside so that justice would

prevail. See Obajimi v. Adeobi (2008) 3 NWLR

(Pt.1075) 1. See also Owhor v. Christopher (2010) All

FWLR (Pt.511) 962; Sogbamu V. Odunaiya (2013) All

FWLR (pt.700) 1247 @ p.1307.

Where, a Court comes to a finding on the established facts

before it that a necessary party had not been joined, it

ought to invoke the relevant rules of Court to either suo

moto add such a necessary party to the suit, a

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lesser evil" even if it be subsequently accused of having

done so suo motu but which power is in reality conferred

on the Court below by virtue of Order 13 of the High Court

Rules of Lagos State 2012, or to simply strike out the suit

to enable the Claimant seek to relist the suit and join the

necessary party. In all these options, a dismissal of the

claims of the Claimant, such as the Appellants, for non

joinder of a necessary party is never an option. Yet, that the

erroneous pathway toed by the Court below when it

without any modicum of right enabling it in that behalf

dismissed the claims of the Appellant for non joinder of Sir

Kofo Abayomi or his Estate, who on the established facts it

erroneously held to be a necessary party when he is not

even a necessary party to the suit of the Appellants.

In law, therefore, an Appellate Court will readily intervene

to re-evaluate the evidence on the printed record, as I have

done in this judgment, if it is shown, as it has been shown

by the Appellants in the instant appeal, that the conclusions

drawn by the Court below on the proved evidence before it

do not flow from such proved and established facts or that

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they run contrary to such proved facts and are thus

perverse.

In Sogbamu v. Odunaiya (2013) All FWLR (Pt.700) 1247 @

p.1307, the Court pronounced emphatically thus:

“A decision is said to be perverse when it is

speculative, not being supported by evidence or

reached as a result of either wrong consideration of

evidence or wrong application of a principle of

substantive law or procedural law, and an Appellate

Court can interfere with a decision of the trial Court

that is perverse.”

I therefore, answer the three salient questions in the first

issue for determination as follows: The non joinder of Sir

Kofo Abayomi or his Estate to the suit by the Appellants

was not fatal either to the competence or merit of the

claims of the Appellants against the Respondents on

record; the Court below was gravely in error when it held

that the non joinder of Sir Kofo Abayomi was fatal to the

claims of the Appellants against the Respondents and

persisting in that error proceeded to refuse and dismissed

the Appellants' claim; the alleged buyer of the property the

subject matter of this suit, being a privy to the Respondents

on record, was not a necessary

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party and need not be joined and thus his non joinder was

of no moment as he is bound by whatever judgment is given

against the Respondents.

In the light of the above findings, I hereby resolve the first

issue for determination in the negative in favor of the

Appellants against the Respondents and hold firmly that

the non joinder of Sir Kofo Abayomi, the alleged buyer of

the subject matter of the Appellants' claim or his Estate

was in law incapable of and did not defeat all or any of the

legal issues raised in the Originating Summons of the

Appellants against the Respondents, which claims having

been sufficiently made out ought to have been granted and

not dismissed as erroneously done by the Court below.

ISSUE NO. TWO

"Whether the Principle of Law protecting equitable

title to property in physical possession as held by the

Lower Court was applicable to this case?''

Appellants' counsel had submitted that the Court below fell

into grave error when it applied the succinct principle

protecting equitable title to property in physical possession

to the fact of this case and in that error proceeded to hold

that the alleged buyer of the property

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had acquired an equitable interest over the property which

ought to be protected and contended that on the

unchallenged affidavit evidence of the Appellants that the

property was vacant but had been cleaned up by them and

their tenants put into possession, the said principle was

clearly unavailable to the alleged buyer who is not in

possession and thus inapplicable to this case and was

wrongly applied by the Court below. Counsel relied on

Alhaji Mustapha Kachalla v. Alhaji Tijanni Banki &

Ors (2006) 27 WRN I @pp. 26 - 27; Okoye v. Dumez

Nig Ltd & Anor (1985) 7 NWLR (Pt.4) 785; U.B.A. Plc

& Ors v. Ayinke, (2000) 7 NWLR (Pt.663) 83.

1st Respondent's counsel had submitted that the Court

below properly appraised the evidence before it and

properly applied the principle of law protecting equitable

interest in physical possession of property,that there was

evidence from the Appellants that a third party had

obtained at least an equitable interest in the property and

contended that Court below was right to have applied that

principle of law having found as fact that there was a sale

which its documentation was only partially executed by the

parties

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thereto and that the fact that the property was vacant,

dilapidated and has become a latrine whereupon they took

possession of same, these facts cannot be confirmed in the

absence of the purported buyer in Exh. BH3 and such

findings ought not to be disturbed by this Court. Counsel

relied on Chukwu v. Amadi (supra)

My lords, a determination of the second issue for

determination would turn invariably on the facts as placed

before the Court below and whether such facts brings this

case within the ambit or purview of the principle of law

protecting equitable interest in land in physical possession

of the holder of the equitable interest.

In Alhaji Mustapha Kachalla v. Alhaji Tijanni Banki &

Ors (2006) 27 WRN 1 @ pp. 26 -27, the Supreme Court

reiterated this finer principle of the law on equitable

proprietary interest in land thus:

"The law has been well and long settled that where a

person pays for a land and obtains receipt for the

payment followed by his going into possession and

remaining in possession, equitable interest is created

for him in the land such as would defeat the title of a

subsequent legal purchaser with knowledge of the

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equitable estate in the land…”

Now, going by the succinct statement of the law in the

above case, it is clear to me that there are conditions

precedent or essential requirements upon which this

principle of law can be validly invoked. The essential

requirements for the applicability of this principle of law

are that the person, whose equitable interest is to be

protected must have paid for a land and obtained receipt

evidencing such payment followed by physical possession of

the land and remaining in such possession creates in his

favor an equitable interest in the land protected by law.

See also Okoye v. Dumez Nig Ltd & Anor. (1985) 1

NWLR (Pt.4) 785 and U.B.A. Plc & Ors v. Ayinke

(2000) 7 NWLR (Pt 663) 83.

I should also perhaps reiterate, just by way of emphasis,

the trite position of the law that where facts deposed to in

an affidavit have not been controverted by the adverse

party in a counter affidavit, such facts must be taken as

true and established and is good evidence to be acted upon

by the Court except where such facts are palpably false. In

law, except such unchallenged facts are unreasonable or

frivolous, the

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Court below was legally bound to accept it as true. See

Adeleke v. Iyanda (2001) 28 WRN 1 @ pp. 17 - 18. See

also Arma Ya'u Abdullahi & Sons Ltd. v. FHA Homes

Limited (2007) 18 WRN 189 @ p. 196; Alagbe v.

Abimbola (1978) 2 SC 39; Egbuna v. Egbuna (1989) 2

NWLR (Pt.106) 773; Yahaya v. FRN (2007) 23 WRN

127.

There were copious unchallenged affidavit evidence of the

Appellants that they had since taken over possession of the

property and put their tenants therein. There was no iota of

denial with contrary facts by the Respondents of these

depositions of facts by the Appellants. There was also not a

single deposition of facts by the Respondents that the

alleged buyer, Sir Kofo Abayomi or his personal

representatives were in possession of the property at the

time of commencement of this suit.

On the face of the above established facts, not in any way

disputed between the parties, the Court below held inter

alia as follows:

''.....He cannot therefore be bound by the general

findings of the Court on the properties comprised in

the WILL of late Harding, as far as No 9(sic) Alli

Street is concerned. This is because even where a

Deed of conveyance is

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inchoate and was not registered, the law still protects

the right of such a buyer who is in possession of the

property. ...The applicants in Paragraphs 12, 13, and

14 of the affidavit in support deposed that the

property was vacant, dilapidated and had become a

latrine, whereupon they took possession of same,

these facts cannot be confirmed in the absence of the

purported buyer in Exhibit BH3. He or his estate

should have been joined in this action to ascertain the

averments in Paragraphs 12, 13, and 14"

See page 111 of the Record.

My lords, I find this finding of the Court below very strange

and this is so because before a Court finds that a principle

of law is applicable, it ought first to consider the facts

established before it on which to hinge the statement of the

law. The application of a principle of law is not done in

vacuo but must be done in relation to established facts

before the Court. There was not a single evidence of

physical possession of the property by Sir Kofo Abayomi, at

the time of commencement of this case yet the Court below

went on a voyage of its own to disbelieve or ignore the

unchallenged affidavit evidence of the

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Appellants that they are in physical possession of the

property through their tenants on the flimsy but highly

untenable ground that it is only the alleged buyer, a non

necessary party to the suit, who could join issue with the

Appellants on the facts of who is in possession of the

property and not the Respondents. What a travesty of

justice! I shall say no more on this strange way of reaching

decision by the Court below in this case than to hold firmly

that this finding is grossly perverse and cannot be allowed

to stand but must be set aside in the interest of justice.

The above finding of the Court below was wrong as not

flowing from the evidence led before it and in law the

circumstances and situations in which an Appellate Court

can intervene to interfere with and disturb the findings of a

Lower Court varies from case to case and thus would

ultimately depend on the peculiar facts of each case. It

follows therefore, that such circumstances and situations

cannot be laid down with any tinge of exhaustive finality by

the Courts as the categories are never closed, though some

useful guides have been proffered over the years by the

Courts. An appellate

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Court will readily intervene to re - evaluate the evidence on

the printed record, if it is shown, that the conclusions

drawn by the Court below on the proved evidence before it

do not flow from such proved and established facts or that

they run contrary to such proved facts and are thus

perverse. See Sogbamu v. Odunaiya (2013) All FWLR

(Pt.700) 1247 @ p.1307,

I have no difficulty, therefore, in the light of my findings

above, resolving the second issue for determination in the

negative in favour of the Appellants against the

Respondents and hold firmly that the principle of law

protecting equitable interest coupled with physical

possession was inapplicable in the circumstances and

established facts of this case and was thus wrongly applied

by the Court below.

Having therefore, resolved the two issues in favour of the

Appellants as against the Respondents, I hold that this

appeal is meritorious and perforce ought to succeed and

consequently, this appeal is hereby allowed.

In the result, the judgment of the Lagos State High Court in

Suit No:ID/655M/2009: Mr Babatunde Harding &

Anor. v. The Administrator General and Public

Trustee of Lagos

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

In its stead, the sole question for determination in theOriginating summons of the Appellants as claimant in suitNo: ID/655M/2011: Mr. Babatunde Harding & Anor v.The Administrator General and Public Trustee ofLagos State & Anor. is hereby answered in the affirmativeand consequently, their reliefs as endorsed on theirOriginating Summons, having been made out sufficientlyand thus meritorious, are hereby granted in its entiretyagainst the Respondents.I make no order as to cost.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.:I had theprivilege of reading in draft form, the judgment justdelivered by my learned brother, Biobele AbrahamGeorgewill JCA.He has painstakingly dealt with all the issues articulated byparties.

I have nothing more to add.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was giventhe opportunity of reading in draft the judgment justdelivered by my learned brother, BIOBELE ABRAHAMGEORGEWILL, JCA and I agree with the reasoning andconclusion arrived at in the lead judgment. The

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position of the law as to non-joinder of parties has been

firmly settled. The Supreme Court per OPUTA, JSC in the

case of GREEN v. GREEN (1987) 3 NWLR (Pt.60) 480

laid it down that in order to decide the effect of non-joinder

or mis-joinder of a party, the Court should ask itself the

following questions:

"(a) Is the cause or matter liable to be defeated by non-

joinder?

(b) Is it possible to adjudicate on the cause or matter unless

the 3rd party is added as a defendant?

(c) Is the 3rd party a person who should have been joined

in the first instance?

(d) Is the 3rd party a person whose presence before the

Court as a defendant will be necessary in order to enable

the Court to effectually and completely adjudicate or settle

all the questions involved in the cause or matter?"

Having gone through the records and the processes before

this Court, I am also of the opinion that the non-joinder of

Sir Kofo Abayomi, the purported buyer of the property in

dispute is not sufficient to warrant a dismissal of the claims

of the Appellant at the Lower Court as the Lower Court

despite the non-joinder could have still effectively and

completely settled all

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the questions involved in the cause or matter.

It is for this and other reasons succinctly spelt out by my

learned brother in the lead judgment that I also allow the

appeal. I abide by all the consequential orders made in the

lead judgment.

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Appearances:

Ejeta Otuoniyo, Esq. with Judith Kuforiji andAdesua Erewele For Appellant(s)

B. Odutemowo, Esq.

No representation for the 2nd Respondents ForRespondent(s)

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