AGBONENI v. ALAKIU

The Appellant who was the Claimant at the Lower Court claimed the following reliefs against the Respondent:
(a). An Order directing the Defendant to refund to the Claimant the sum of N7,000,000.00 (Seven Million Naira) being the purchase price paid in respect of the 2 plots of land lying, situate and being at Mobolaji Ajibola Street, Thomas Estate, Ajah, in Eti-Osa Local Government Area of Lagos State for total failure of consideration in that the Defendant has failed to give effects title or confer any interest on the Claimant.
b). Interests on the N7,000,000.00 (Seven Million Naira) at rates or at 10% per annum from November, 2004 until judgment is delivered and thereafter at the rate of 10% until the final liquidation of the debt.
Pleadings were filed and exchanged and the case was subjected to a full dressed plenary trial at which testimonial and documentary evidence was adduced. At the end of the inter parties hearing, the Lower Court dismissed the Appellants action. The Appellant being dissatisfied appealed against the said judgment. The judgment of the Lower Court is at pages 159-161 of the Records, while the Notice of Appeal is at pages 163-166 of the Records.
Upon the Records of Appeal being compiled and transmitted the parties filed and exchanged briefs of argument. The Appellants Brief was filed on 27th June 2016, while the Respondents Brief was filed on 11th October 2016. The Appellant filed his Reply Brief on 29th June 2017. The Respondents Brief and the Appellants Reply Brief were deemed as properly filed on 3rd July 2017. At the hearing of the appeal, Mrs. A. S. Odukomaiya-Iyamu (with T. Ologunorisa, Esq.), learned counsel for the Appellant and Waheed Kasali, Esq. (with S.A. Kanabe, Esq.) of counsel for the Respondent urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant framed six issues for determination, as follows:
(a) Whether or not it is right for the trial Judge to raise the issue of non-joinder of a necessary party suo motu and basing his judgment on it without inviting the parties to address the Court on it. (Ground 1)
(b) Whether the refusal of the trial judge to invite parties or their counsel to address it on the issue raised suo motu amounts to denying the Appellant his right to fair hearing. (Ground 2)
(c) Whether or not Mobolaji Ajibola was a necessary party to the suit and his non-joinder will amount to dismissal of the suit. (Ground 3)
(d) Whether or not the action of the Appellant for money had and received has anything to do with ownership of land. (Ground 4)
(e) Whether or not the Court ought to grant the cost of N50,000 against the Appellant when the Court did not invite Appellants counsel to address it on the issue of non-joinder upon which the judgment was based. (Ground 5)
(f) Whether or not in view of the facts of this case and evidence, the Appellant is entitled to the refund of the purchase price in the sum of N7million with interest for total failure of consideration.(Ground 6).
The Respondent on his part nominated five issues for determination, namely:
1. Whether the learned trial judge at any time raised issue of non-joinder of an adverse

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Claimant suo-motu in his judgment? (Ground 1)
2. Whether the learned trial judge denied the Appellant his Right to fair hearing at the trial Court to justify the complaint and/or allegation of issue of non-joinder raised suo-motu? (Ground 2)
3. Whether from the evidence adduced at the trial Court, the Respondent has proved his case that entitled him judgment being appealed against by the Appellant (Grounds 4 &6)
4. Whether or not the Respondent is entitled to cost of N50,000.00 awarded against the Appellant in this Appeal? (Ground 5)
5. Whether the finding of the Court at the conclusion of the case that Mobolaji Ajibola was a necessary party to the suit and subsequent dismissal of the suit is proper in law? (Ground 3)
Even though the parties have couched the issues they distilled in a manner that gives them a slant favourable to their case, the said issues are the same two and tuppence and the submissions on the issues nicely dovetail into each other, such that it is convenient for the issues to be considered together and resolved seamlessly. Accordingly, I will review the submissions of learned counsel and resolve the appeal en bloc.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellant submits that a Court can raise an issue suo motu but must invite parties to address it on the issue. It was posited that the issue of non-joinder of the rival Claimant was never raised by any parties and that both the parties and the Court are bound by the pleadings and that it was wrong for Lower Court to have dismissed the action on the basis of non-joinder which it raised suo motu without giving the parties a hearing on the issue. The cases of SHASI vs. SMITH (2009) 18 NWLR (PT 1173) 330 at 346 and DALEK (NIG) LTD vs. OMPADEC (2007) 7 NWLR (PT 1033) 402 at 431 and 439 were referred to.
It was contended that the Lower Court misconceived the facts of the Appellants case as it relates to whether the Appellant was put into possession of the land and whether the Police advised the Appellant and the rival Claimant to go to the family which has radical title to the land to resolve the dispute. It was opined that this misconception of the facts led the Lower Court to hold that it must first determine who, as between the Appellant and the rival Claimant, had a better title to the disputed land.
The Appellant maintained that the failure of the Lower Court to hear him on the issue it raised suo motu was a denial of fair hearing which rendered the decision reached null and void for having occasioned a miscarriage of justice. The cases of SHASI vs. SMITH (supra) at 346, DALEK (NIG) LTD vs. OMPADEC(supra) at 439, NSIEGBE vs. MGBEMENA (2007) 10 NWLR(PT 1042) 364 at 377, AGBAEZE vs. CUSTOMARY COURT OF ITEM DISTRICT (2007) 7 NWLR (PT 1032) 196 at 208 and NWANA vs. FCDA (2007) 11 NWLR (PT 1044) 59 at 82 were relied upon.
The Appellant submitted that his case is for refund of money he paid for purchase of land for failure of consideration and that based on the pleadings and evidence, the rival claimant is not a necessary party to the Suit and his non-joinder should not result in a dismissal of the action. It was asserted that the Respondent did not prove that he had a valid title to transfer to the Appellant and that based on the Latin maxim, nemo dat quod non habet, the Respondent could not give what he does not have. The cases of ABBA vs. SHELL PETROLEUM DEVT. CO OF NIG LTD (2013) 11 NWLR (PT 1364) 86 at 112 and ORONTI vs. ONIGBANJO (2012) 12 NWLR (PT 1313)23 at 42 were cited in support.
It is the further submission of the Appellant that even if the rival claimant is a necessary party, his non-joinder should not result in a dismissal of the action but only a striking out. Order 13 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and the cases of DAPIALONG vs.

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LALONG (2007) 5 NWLR (PT 1026) 199 at 212,BELLO vs. INEC (2010) 8 NWLR (PT 1196) 342 at 418 and ANYANWOKO vs. OKOYE (2010) 5 NWLR (PT 1188) 515-516 were called in aid.
The Appellant maintains that his action was for money had and received and had nothing to do with ownership of land. He stated that the Respondent being unable to prove his ownership of the land, he cannot validly challenge the rival claimant and so there was a failure of consideration since the Respondent in fact sold nothing to him. The Lower Court, it was posited, was in error when it held that it must first determine between the Appellant and the rival claimant who has a better claim of title to the disputed land. It was submitted that where money has been paid over under an ineffective contract, the party who paid the money is entitled to a refund for money had and received for failure of consideration. The cases of FBN PLC vs. OZOKWERE (2006) 4 NWLR (PT 970) 422 at 433 and OYEBANJI vs. FOWOWE (2008) ALL FWLR (410) 786 at 796-797 were referred to. Referring to the ingredients for a valid sale of land under customary law, the Appellant submitted that the Respondent admitted that he received the purchase price, but did not prove that he let the Appellant into possession in the presence of witness, more so as the Respondent does not have any document to prove his title to the land and so there was a failure of consideration in the contract. The case of OGUNDALU vs. MACJOB (2006) 7 NWLR (PT 978) 148 was relied upon.
The Appellant further contended that the Lower Court ought not to have awarded costs against him having based its decision on an issue raised suo motu and on which it did not hear the Appellant. It was stated that costs are awarded at the discretion of the Court, which discretion is exercised judicially and judiciously and that the costs awarded was an injudicious exercise of discretion and an appellate Court would in the circumstances interfere with the award. The case of JAIYEOLA vs. ABIOYE (2003) 4 NWLR (PT 810) 397 at 421, MBANUGO vs. NZEFILI (1998) 2 NWLR (PT 537) 343 at 352, OLOKUNLADE vs. SAMUEL (2011) 17 NWLR (PT 1276) 290 at 323 and COOMASSIE vs. TELL COMM. LTD (2003) 1 NWLR (PT 802) 551 at 569 were cited in support.
It was conclusively submitted that the Appellant is entitled to the refund of the money he paid for failure of consideration as the Respondent did not have title to the Land and did not validly pass any interest to the Appellant. The cases of DANTATA vs. MOHAMMED (2013) ALL FWLR (PT 675) 279 at 312, S.F. & P. LTD vs. NDIC (2012) 10 NWLR (PT 1309) 522 at 549 and NWAOLISAH vs. NWABUFOH (2011) 14 NWLR (PT 1268) 600 at 633 and 640 were called in aid.
It was further contended that being a commercial transaction, the Appellant was entitled to pre-judgment and post-judgment interest, having been put out of the funds since 2004, in order to restore him to his original pre-contract position. The cases of A.I. B. LTD vs. I.D.S. LTD (2012) 17 NWLR (PT 1328) 1 at 50, NIGERIAN GENERAL SUPERINTENDENCE CO. LTD vs. N. P.A. (1990) 1 NWLR (PT 129) 741 at 748, CROWN FLOUR MILLS vs. OLOKUN (2007) ALL FWLR (PT 393) 24 at 56-57 and 53-54, B.E.G.H. LTD vs. U.H.S. & L. LTD (2011) 7 NWLR (PT 1246) 246 at 290-291 and CBN vs. BECKITI CONST. LTD (2011) 5 NWLR (PT 1240) 203 at 240 were relied upon.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondent submits that the Lower Court did not raise the issue of non-joinder of the adverse Claimant suo motu. It was stated that facts in respect of the adverse claimant were pleaded by the Appellant, the Appellants sole witness was cross examined on the necessity to have joined the adverse claimant as a party to the action and the Appellant canvassed argument on the adverse claimant in his final written address. The Respondent posited that he equally argued the issue of non-joinder in his final written address.

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It was opined that as borne out by the Records, which are binding, the parties advanced arguments on the issue of an adverse claimant and therefore the complaint that the issue was raised suo motu by the Lower Court is unfounded.
The cases of ODUNEYE vs. FRN (2014) 13 NWLR (PT 1425) 545 at 558 (Holding 25) and OFFOR vs. THE STATE(2012) 18 NWLR (PT 1333) 421 at 428 (Holding 9) were relied upon. The Lower Court it was asserted rightly held that the presence of the adverse claimant, as a necessary party, is indispensable to the validity and effectual determination of the action.
The Respondent maintained that the Appellant was given ample opportunity to present his case and that there was no deprivation of his right to fair hearing since the Appellant fully argued his case at the Lower Court. The cases ofMALGIT vs. DACHEN (1998) 5 NWLR (PT 550) 384 at 393-394, J.S.C. CROSS RIVER STATE vs. YOUNG (2013) 11 NWLR (PT 1364) 1 (Holding 5) and ITSUELI vs. S.E.C. (2012) 2 NWLR (PT 1284) 329 (Holding 5) were cited in support.
The Respondent opined that the Lower Court discharged its duty by properly evaluating the evidence and that an appellate Court will not interfere with the findings of fact made. The cases ofEGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47)[no page stated] and EHIMUA vs. NATIONAL OIL & CHEMICAL MARKETING COMP. LTD (1995) 5 NWLR (PT 398) 642 were called in aid.
It is the contention of the Respondent that based on the evidence, he was entitled to judgment since he discharged his obligation as the vendor when he put the Appellant into possession of the land. The cases of GRIFFIN vs. TALABI (1948) 12 WACA 371, COLE vs. FOLAMI (1956) SCNLR 180 and OGUNDALU vs. MACJOB(supra) were referred to. It was asserted that the Respondent adduced unchallenged evidence that the Appellant was in possession of the land for over four years and erected a fence on the land, thus exercising acts of ownership, which evidence the Lower Court was entitled to act upon. The cases of ALATISHE vs. SANYAOLU(1964) 1 ALL NLR (PT 1) 398, CAPPA AND DALBERTO LTD vs. AKINTILO (2003) 9 NWLR (PT 824) 49, UNION BANK vs. OGBOH (1995) 2 NWLR (PT 380) 647, MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 388 and OGUNYADE vs. OSHUNKEYE (2007) ALL FWLR (389) 1175 at 1192 -1193 were relied upon.
The Respondent maintains that the Appellant sought to resile from the contract because the adverse party entered upon the land; but it had to be determined who owns the land before it can be said that there is a failure of consideration since title had been validly passed to the Appellant. It was stated that the adverse party may not be the rightful owner and not having been joined as a party, the Lower Court arrived at the correct decision since persons who may be affected by litigation ought to be made parties. The cases of ONABANJO vs. EWETUGA (1993) 4 NWLR (PT 288) 445, OKWARA vs. OKWARA (1997) 11 NWLR (PT 527) 160 and A-G OYO STATE vs. FAIRLAKES HOTELS LTD (1989) 5 NWLR (PT 121) 255 were cited in support.
The Respondent submitted that costs follow event and that a successful party is entitled to award of costs to indemnify him for his expenses and to compensate him for his time and effort in coming to Court. It was asserted that the Lower Court exercised its discretion judicially and judiciously in awarding costs. Order 49 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules and the cases of ADELAKUN vs. ORUKU (2006) 11 NWLR (PT 992) 625 (ratio 3), ACB vs. AJUGWO (2012) 6 NWLR (PT 2012) [sic] 97 at 107, OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 at 67-68, NICON INS CORP vs. OLOWOFOYEKU (2006) 5 NWLR (PT 973) 244 at 249 and WAZIRI vs. GUMEL (2012) 9 NWLR (PT 1304) 185 at 190(ratio 5) were called in aid.

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It was conclusively submitted that the Lower Court was right in its finding that the adverse claimant was a necessary party and the consequent dismissal of the Appellants case, the Lower Court having found after a hearing on the merits that the Appellant did not prove the alleged wrong against the Respondent. The cases of ZENITH BANK PLC vs. EKEREUWEM (2012) 4 NWLR (PT 1290) 207 (ratio 20) and OGAR vs. JAMES (2001) 10 NWLR (PT 722) 621 (ratios 5 and 6)were referred to.
APPELLANTS REPLY ON LAW
The Appellants Reply Brief is largely repetitive of the submissions in the Appellants Brief. It merely re-emphasised and reargued the points already taken in the Appellants brief. This is not the essence, purpose or function of a Reply Brief. The Reply Brief is to refute the arguments in the respondents brief which were not taken in the appellants brief. Since the Appellants Reply Brief is essentially repetitive of the argument in the Appellants brief, it will be needless to go into it as it is not a proper reply brief. I consequently discountenance the said Reply Brief and it would play no part in the resolution of this matter. See ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13, OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 17, ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 42, EROMOSELE vs. FRN (2018) LPELR (43851) 1 at 11 and AKAYEPE vs. AKAYEPE (2009) LPELR (326) 1 at 18-19.
RESOLUTION
The facts of this matter are not convoluted. The Respondent sold two plots of land situate at Mobolaji Ajibola Street, Thomas Estate, Ajah, Lagos to the Appellant. The Appellant paid the purchase price in instalments and it was agreed that when the last instalment was paid, the title documents would be handed over to the Appellant. The Appellant completed the payment of the purchase price but the Respondent was not forthcoming with the title documents. Later the Appellant went to the land and met people working on the land. He lodged a report with the Police and it was decided that the Respondent and the person building on the land should go to the family that they bought the land from to resolve the dispute. The Respondent did no such thing, neither did he make his title documents available to the Appellant. It was premised on these facts that the Appellant filed the action at the Lower Court claiming for a refund of the purchase price he paid for failure of consideration.
The above facts are not contested. The only area of confutation is the disparate contention of the parties as to whether the Appellant was given possession of the land or not. While the Appellant maintains that he was not given possession of the land after he had paid the purchase price as he still awaited the title documents, the Respondent asserts that the Appellant went into possession, fenced the land and remained in possession for about four years before the rival or adverse claimant started developing the land. It seems to me that based on the pleadings, especially as it relates to whether the Appellant took possession of the land, there was an inexorable need for this issue to be resolved in order to determine if the sale to the Appellant was concluded or if it was inchoate. See GRIFFIN vs. TALABI (supra), COLE vs. FOLAMI (supra) and OGUNDALU vs. MACJOB (supra). From the reliefs claimed by the Appellant it was ineluctable for the Lower Court to make a finding on whether title had in fact passed to the Appellant or if there had been a failure of consideration. It is only where title had passed that it would have become necessary to determine who had a better title as between the Appellant and the adverse or rival claimant. To hold as the Lower Court did that the rival or adverse claimant should have been joined to the action is putting the cart before the horse. The Appellants case was that the Respondent had no title to pass to him, in consequence of which he wanted a refund of the money he paid. To require the Appellant to pitch his interest against that of the rival or adverse claimant without first determining if the Appellant had any interest transmitted to him by the Respondent is shooting the breeze. This is particularly so because the Appellant must prove the title of the

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Respondent as his predecessor in title. See EYO vs. ONUOHA (2011) 195 LRCN 38 at 83 or (2011) LPELR (1873) 1 at 58 and OTANMA vs. YOUDUBAGHA (2006) 2 FWLR (PT 308) 1995 at 2016 or (2006) LPELR (2821) 1 at 23. It is not confuted that the Respondent did not give any title documents to the Appellant. The Respondent did not present any title documents to the Police when the Appellant reported on the presence of the rival or adverse claimant on the land. Furthermore, the Respondent did not go, as advised by the Police, to the family that has the radical title for the dispute to be resolved as to who between the Respondent and the adverse or rival claimant that they sold the land to.
In its judgment at page 161 of the Records the Lower Court stated:
Defendant contends that, at the minimum, as vendor he has discharged his obligation under a Contract for Sale of Land by putting the Claimant in possession in consideration of the 7 Million Naira purchase price, but that it is the Claimant who now seeks to resile from the Contract because an adverse Party entered or encroached the land. As I understand the thrust of the Defence, before this Court can determine whether there is a failure of consideration under the Contract of Sale the Court cannot but first determine the merits of the competing claims (if any) that Claimant asserts that Mobolaji Ajibola has advanced. In effect, that the Court must first determine as between the Claimant and Mobolaji Ajibola who as between the Parties has a better Claim of title to the now disputed land.
Inter-alia at Clause 4.30 of Defendants Final Address it states:-
And until a competent authority determines the rights and interests of Claimants as well as the adverse Party on the land, then the sale between the Parties herein is still subsisting.
It is my considered view,that this legal perspective advanced by the Defence is pivotal and I hold that the presence of Mobolaji Ajibola as a necessary Party is absolutely indispensable to the validity and effectual determination of this present Suit. The case of ONABANJO v. EWETUGA (1993) 4 NWLR (Pt.288) 455 cited by the Defence is very apt to the effect that it is a fundamental principle of law that all Parties who will be affected one way of [sic] the other in a litigation be made Parties.
It is effulgent that the ratio decidendi of the Lower Court is premised on its view that the adverse or rival claimant was a necessary party whose presence was indispensable to the effectual determination of the suit. The Appellant contends that the non-joinder of the adverse or rival claimant was raised suo motu by the Lower Court and the action decided on the said issue raised suo motu without affording him a hearing on it.
It is rudimentary law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing the parties, particularly the party that may be adversely affected by the issue raised. See OSHODI vs. EYIFUNMI(2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12. Let me hasten to add that the need to hear parties on an issue raised suo motu by the Court is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. See OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332, ALIMS LTD VS. UBA (2013) 1 MJSC (PT 1) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245) 1154.The Appellants complaint is not in respect of an issue of jurisdiction, so, if indeed, the Lower Court raised the issue suo motu, it was enjoined by law to give the parties a hearing on the said issue raised suo motu. But did the Lower Court raise any issue suo motu? We turn to the Records.
In paragraphs 10, 14 and 16 of the Statement of

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Claim the Appellant averred as follows:
10. Shortly after the completion of the payments, the Claimant went to the land and to his surprise he met some people constructing buildings on it. When the Claimant challenged them they claimed that one Mobolaji Ajibola is the owner of the land.
14. The buildings on the 2 plots have reached roofing level and the Defendant is aware of the fact but he has refused to do anything to ensure that the Claimant secure possession or title documents of the land.
16. In response to the Claimants counsels letter, the Defendant, through his counsel, admitted that the purported sale took place but strangely insisted that it was the duty of the Claimant to wade off adverse Claimants from the land.
(See pages 5 and 6 of the Records)
The Respondent on his part averred as follows in paragraphs 11 and 13 of the Amended Statement of Defence:
11. The Defendant states that he has transferred his interest in the said land that the Claimant can only institute an action against the adverse party and the Defendant is ready to testify in favour of the Claimant.
13. The Defendant states that the Claimant ought to have pressed his case against the adverse party and not the Defendant.
(See page 90 of the Records)
In testimony under cross examination the Appellant testified as follows at page 150 of the Records:
Q When you were instituting this action, you did not consider it necessary to bring in the advert [sic] party whether his claim was genuine or not?
A How would I bring a genuine owner to a confrontation
In his final written address the Respondent submitted as follows in paragraphs 4.34, 4.35 and 4.36 at page 118 of the Records:
4.34. The C.W1 further testified in paragraph 10, that he discovered one Mobolaji Ajibola trespassed on the property.
4.35. At no time did the Claimant join Mobolaji Ajibola as a party in this suit.
4.36. In Onabanjo v. Ewetuga (1993)4 NWLR (PT 288) 445 the Court held that
it is a fundamental principle of law that all parties who will be affected one way or the other be in a litigation be made parties.
By all odds, it is limpid that the adverse or rival claimant was on the front burner at the trial with the attendant disceptation as to whether the Appellant should have sued him. Being a question in dispute between the parties, it was an issue necessary for determination by the Court. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103 and AKINTOLA vs. SOLANO (1986) LPELR (360) 1 (SC). Being in issue between the parties, the Lower Court was duty bound to pronounce on the issue: MARINE MANAGEMENT ASSOCIATES INC. vs. NMA(2012) LPELR (20618) 1 at 27 (SC), ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 14 (SC) and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17 (SC).
Accordingly, in holding that the adverse or rival claimant should have been joined to the action, the Lower Court did not raise the issue suo motu; it merely resolved a question on which the parties were at issue. Concomitantly, there was no denial of the Appellants right to fair hearing as the Appellant had the opportunity to address the issue. Also see generally CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24.
Howbeit, the paramount question is whether the Lower Court was correct in its decision to dismiss the action on the ground

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that the adverse or rival claimant being a necessary party was not joined as a party in the action.
The Lower Court referred to the Respondents contention that he put the Appellant into possession of the land and that consequently it had to be first determined who between the Appellant and the adverse or rival claimant had a better title and that the adverse or rival claimant being a necessary party who was not joined, the action must fail. It consequently dismissed the action.
The Lower Court did not evaluate the evidence adduced neither did it make any finding on the vexed issue of whether the Appellant was put into possession. I iterate that it is only where it is found that title passed to the Appellant that the question of better title between Appellant and the rival or adverse claimant would arise. In any event, the Appellants cause of action was not for declaration of title to land. It was for money had and received for a consideration that had failed. The cause of action was strictly between the Appellant and the Respondent. It did not involve the adverse or rival claimant. It was a cause of action which would effectually be determined by a finding that the Respondent passed title to the Appellant in which case the consideration did not fail, or that he did not have title to pass to the Appellant in which case the consideration failed and the Appellant would be entitled to a refund of the money he paid.
Now, Order 13 Rule 16 (1)and (3) of the High Court of Lagos State (Civil Procedure) Rules, 2012provide thus:
(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the party actually before him.
(3) 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.
It is hornbook law that the non-joinder of a person who would have been made a party would not defeat the cause of action. See CROSS RIVER STATE NEWSPAPER CORPORATION vs. ONI (1995) LPELR (898) 1 at 31 and IFEANYI CHUKWU (OSONDU) LTD vs. SOLEH BONEH LTD (2000) LPELR 1 at 64.
In NWANNA vs. A G FEDERATION (2010) LPELR (9047) 1 at 13 14, this Court per Hussein Mukhtar, JCA stated:
However, the non-joinder of a necessary party will not ground a dismissal of the action as the Lower Court did in this case nor does it derobe the Court of jurisdiction to hear the case as held by the learned trial Judge … In this case, however, the mere failure to join the Inspector General of Police does not render the action incompetent as erroneously held by the Court below. This position of the law is aptly provided under Order 12 Rule 5 of the Federal High Court (Civil Procedure) Rules 2000 (supra). In the case of DAPIALONG vs. LALONG (2007) 5 NWLR (PT. 1026) 199 at 212 E-F this Court per Akaahs, JCA held thus:
An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the Court are competent parties and the cause of action, if substantiated by the plaintiff entitles him to a remedy against the defendant. In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties. In the circumstance, the trial Court was right when it held that the parties to the suit were the necessary parties, and assumed jurisdiction to determine the suit.
The Supreme Court had similarly held in the case of BABAYEJU vs. ASHAMU (1998) 9 NWLR (PT 567) 546 at 557E-F per Ogundare, JSC (of blessed memory) as follows:
By virtue of Order 3 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules

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1973 (applicable to this case) non-joinder of necessary parties would not defeat an action, otherwise properly constituted.
See also OFOBRUKU vs. DEMOCRATIC PEOPLES PARTY (2015) LPELR (24899) 1 at 20-21 and FHA vs. OLAYEMI(2017) LPELR (43376) 1 at 43-46. Doubtless, the reliefs sought by the Appellant at the Lower Court could be determined to finality between the parties on record without the joinder of the adverse or rival claimant. Therefore the Lower Court got it wrong when it dismissed the action on the ground that a necessary party was not joined.
Having held that the decision of the Lower Court dismissing the Appellants action on grounds of non- joinder of the adverse or rival claimant is the wrong decision, it remains to consider if based on the evidence adduced the Appellant was entitled to judgment. The Respondent maintains that he was entitled to judgment as he had put the Appellant into possession of the land. Let me restate that the Lower Court did not evaluate the evidence so as to see if the Respondents contention that he put the Appellant into possession was established by the evidence. The Lower Court having failed to evaluate the evidence did not make any findings of facts.
It is rudimentary law that the evaluation of evidence and the ascription of probative value thereto is the primary duty of the trial Court. Evaluation of evidence takes two forms, videlicet, findings of facts based on the credibility of witnesses and findings based on evaluation of evidence. In findings of facts based on credibility of witness, an appellate Court is slow to differ from the trial judge. This is so because it is the trial Court that saw and heard the witnesses, watched their demeanour and so its conclusions must command respect. But in respect of findings based on evaluation of evidence, an appellate Court is in as good a position as the trial Court to evaluate the evidence. See AYORINDE vs. SOGUNRO (2012) LPELR (7808) 1 at 22-23 (SC). It is trite law that where a trial Court fails in its duty to evaluate evidence as in this case, or to properly evaluate the evidence adduced by the parties; and the credibility of witnesses is not in point, an appellate Court can evaluate the evidence: EBBA vs. OGODO (1984) 1 SCNLR 372, OGUNDEPO vs. OLUMESAN (2011) 18 NWLR (PT 1278) 54, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 294, HMS LTD vs. FIRST BANK(1991) 1 NWLR (PT 167) 290 at 313 and GUINNESS vs. UDEANI (2000) 14 NWLR (PT 687) 367 at 390.
The learned counsel for both sides referred to the incidents of a valid sale of land under customary law, id est, payment of purchase price and putting the purchaser into possession in the presence of witnesses: OGUNDALU vs. MACJOB (supra). There is no dispute on the payment of the purchase price. The only disagreement is on whether the Respondent put the Appellant into possession of the land in the presence of witnesses. The Appellant denies that he was put into possession while the Respondent asserts that the Appellant took possession and fenced the land. Indeed the Appellant further upped the ante by contending that the Respondent had no title to the land he sold to him, having failed to hand over any title documents to the land as agreed.
The Respondent argues that his evidence that the Appellant was put into possession and erected a fence on the land is unchallenged and uncontroverted and not being incredible ought to be accepted by the Court. The concept of unchallenged and uncontroverted evidence was explained by the Supreme Court per Ayoola, JSC in OFORLETE vs. THE STATE(2000) LPELR 1 at 34 as follows:
“In a strict sense unchallenged and uncontroverted may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black’s Law Dictionary 6th Edition). Challenging witness is more appropriate in cross-examination while controverting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction, in most cases the consequence would be the same whether evidence is unchallenged or

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whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that that evidence is not true.”
Against the background of the foregoing, it is settled law that the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof: AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 andIDEH vs. EJOVWO (2014) LPELR (23321) 1 at 44 -46. The Respondent therefore had the evidential burden of proving his assertion that the Appellant was put into possession.
In paragraph 10 of the Appellants witness statement on oath which he adopted as his evidence, it is deposed that shortly after completing payment for the land he went to the land and met some people constructing buildings on the land. Under cross examination at page 145 of the Records the Appellant testified as follows:
Q. During those periods when you were paying the money instalmentally, did anybody come to challenge you or is there any form of adversity on the land
A. I did not enter the land for any reason during the time of payment because I have no documents to enter the land. I was waiting for him to give me the documents. So I did not enter the land because there was no need for me to enter the land. So there is no question of anybody challenging me because I did not enter the land.
So the Appellant adduced evidence denying taking possession of the land.
The Respondent adopted his statement on oath deposed to on 11th January 2011 as his testimony. In paragraph 7 thereof it is deposed thus:
7. That in response to paragraph 15,16, 17 and 18 states that the Claimant have taken possession of the said land for several years and the Claimant and also errected [sic] fence round the said land and cannot come back to say that I did not transfer a valid title to him.
(See page 93 of the Records)
That is the Respondents evidence on the Appellant being put into possession of the land.
Now it is limpid, contrary to the Respondents contention, that the evidence that the Appellant was put into possession was controverted: OFORLETE vs. THE STATE (supra). The Appellant adduced contrary evidence that he was never put into possession as he noticed building construction work on the land soon after he completed payment. Be that as it may, the law remains that evidence even if unchallenged and uncontroverted still has to be evaluated to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 558, NEKA B.B.B. MANUFACTURING CO.LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and HARUNA vs. SALAU(1998) 7 NWLR (PT 559) 653 at 659.
The pertinent question is whether the evidence adduced by the Respondent is of such a quality that preponderates in favour of his assertion that the Appellant was put into possession of the land so as to conduce to proof. See OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD(2005) 4 MJSC 1 at 26. It has to be remembered that the incident is putting into possession in the presence of the witnesses. The testimony of the Respondent which I have reproduced does not rise to the level of establishing this incident. The evidence lacks in specifics of when he put the Appellant into possession and the witnesses who were present.
Furthermore, the Respondent did not hand over any title documents to the Appellant as agreed, neither did he frontload any documents in respect of the land in his pleadings. The coup de grace was dealt to

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the title claimed by the Respondent over the land by the following testimony which was extracted from the Appellant under cross-examination:
Q And he was able to convince you with documents that he is the real owner of the land
A. He did not convince me because at that point that was when where my doubt became high too. At that point, the owner of the land showed documents that he is the owner of the land even the street is named after him. And the DPO in Ajah Police Station then called Alakiu, where is your documents? He said he had documents but it is not here with him. Then the Police now asked him that they are just intervening to avoid criminalities because if we are put on the site and maybe somebody is injured, then they can be dead.
So therefore, all of us, myself, the owner of the land should go back to the Oloko-Obas family that we bought the land from and Alakiu refused to go to see Oloko-Obas family. It was then I personally went to Oloko-Obas family and they said they never sold land to him. And that he never owns land there. When I now confronted Alakiu with that, he said they used that land to compensate me for the other land they took from him which is not the agreement. I did not buy the other land I bought the one by my hotel.
(See page 149 of the Records)
In arriving at how the evidence placed before a Court preponderates, the Court does not search for mathematical exactitude. Undoubtedly, if the Lower Court had evaluated the evidence it would have been apparent that the Respondent did not pass any title in the land to the Appellant. Indeed, the evidence is consistent with the fact that the Respondent has no title to the land and that having been paid the purchase price, he never put the Appellant into possession in the presence of witnesses and that the land was in actual possession and occupation of someone else.
It is trite law that a party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back: NWAOLISAH vs. NWABUFOH (2011) LPELR (2115) 1 at 49, UKUTA vs. ALLIANCE INTERNATIONAL (NIG) LTD (1992) 8 NWLR (PT 259) 374, FIRST BANK vs. AFRICAN PETROLEUM (1996) 4 NWLR (PT 443) 438 and FIRST BANK vs. OZOKWERE(2006) 4 NWLR (PT 970) 422. Accordingly, the evidence establishes the Appellants entitlement to a refund of the sum of N7,000.000.00 which he paid as purchase price for the two plots of land, the consideration for which the payment was made to the Respondent having totally failed. The Lower Court was consequently wrong when it failed to enter judgment for the Appellant.
The Appellant complains about the costs awarded against him. Brevi manu, costs follow event and a successful party is entitled to costs. Having held in the course of this judgment that the Lower Court was wrong in its decision to dismiss the Appellants case, it necessarily follows that the Respondent who was awarded costs of the action at the Lower Court is no longer the successful party, concomitantly the costs awarded in his favour must be set aside.
The Appellant hankers after the award of the pre-judgment and post-judgment interest he claimed. There are two types of interest usually awarded by a Court namely: pre-judgment interest otherwise known as interest as of right and post-judgment interest otherwise known as discretionary interest, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which it will not be awarded by a Court. The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124B-D and 124H-125A, SANI ABACHA FOUNDATION vs. UBA PLC (2010)1NACLR 264 at 272, BERENDE vs. USMAN(2005) 14 NWLR (PT 944) 1 and

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BERLIET NIGERIA LTD vs. KACHALLA (1995) 9 NWLR (PT 420) 478.
The Appellant claimed interest on the sum of N7, 000, 000.00 at 10% per annum from November 2004 until judgment is delivered. The law remains firmly established that a claimant who claims interest must not only claim it on the writ of summons and statement of claim, but must also plead the facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128. The entitlement to interest must also be established by credible evidence: REO ENTERPRISES vs. NWOSU (2002) 11 WRN 16 at 33 and R.C.C. (NIG) LTD vs. R.P.C. LTD (2005) 10 NWLR (PT 934) 615 at 640-641. Not only did the Appellant not plead the facts and grounds upon which the claim for pre-judgment interest at the rate claimed is predicated, there is also no iota, whit or scintilla of evidence in proof of pre-judgment interest at the rate claimed. As a consequence, the Appellant is not entitled to the award of pre-judgment interest.
The Appellant further claimed post-judgment interest at the rate of 10% until final liquidation of the debt. I have already stated that post-judgment interest or discretionary interest is that interest which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial at a rate fixed by the Rules. In the course of this judgment I have found that the Appellant is entitled to the sum of N7,000,000.00 which he paid to the Respondent for a consideration that totally failed. The power of a Court to award post-judgment interest is usually exercised when the Court has pronounced its judgment in any claim. See EBERE vs. ABIOYE(2005) 41 WRN 1 at 45. In exercise of discretion pursuant toOrder 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012, the Appellant is entitled to interest on the judgment sum at the rate of 10% per annum until final liquidation of the judgment sum. The post-judgment interest is to run from 3rd March 2016, the date of the judgment of the Lower Court, since the Appellant was entitled to judgment being entered in his favour as at that date.
The conflating of the foregoing is that there is merit in this appeal. It therefore succeeds and I allow the appeal. The judgment of the Lower Court is hereby set aside and in its stead judgment is entered in favour of the Appellant in the following terms:
1. The Respondent is to refund to the Appellant the sum of N7,000,000.00 (Seven Million Naira) being the purchase price paid in respect of the 2 plots of land lying, situate and being at Mobolaji Ajibola Street, Thomas Estate, Ajah, in Eti-Osa Local Government Area of Lagos State for total failure of consideration in that the Respondent failed to give effective title or confer any interest on the Appellant.
2. There shall be 10% interest per annum on the judgment sum from the 3rd day of March, 2016, being the date of the judgment of the Lower Court, until the final liquidation of the judgment sum.
3. The sum of N200,000.00 is awarded in favour of the Appellant as costs of this appeal.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft, the lead judgment prepared and rendered in this appeal by my learned brother Ugochukwu Anthony Ogakwu JCA. I am in complete agreement, I have nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA has given a careful consideration to all the points that arose for scrutiny in this appeal and I share his reasoning and conclusion that this appeal has merit.

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I further align my views with that of my learned brother that the burden of proof lies on the Respondent to prove his assertion that the Appellant was indeed put into possession of land which the Appellant furnished full consideration for.
Consequently, the Respondent having failed to lead quality evidence as to establish the fact that the Appellant was put into possession and that he indeed have any title to pass to the Appellant, I have no hesitation to hold that the decision of the Lower Court is perverse and same is liable to be set aside.
The evidence of the Respondent from the record lacks specifics as to when he put the Appellant into possession and the witnesses who were present.
Furthermore, the Respondent also failed to hand over any title document to the Appellant upon the completion of payment for the land as earlier agreed and he also did not plead any title document to the land in dispute. One then wonders upon what evidence the Lower Court entered judgment in favour of the Respondent. The Respondent did not prove his case on the preponderance of evidence from the record to warrant judgment in his favour.
See the cases of OKORIE V. UNAKALAMBA & ANOR (2013) LPELR 22508 (CA); NSIRIM V. ONUMA CONSTRUCTION CO. NIG LTD (1994) 1 NWLR (PT.318) where this Court held that preponderance of evidence has to do with the evidence that has the most convincing force and it is sufficient to incline a fair and impartial mind to one side of the issue rather than the other. This cannot be the state of the evidence adduced by the Respondent and he is therefore not entitled to judgment against the Appellant.
On the whole this appeal succeeds and same is hereby allowed. The judgment of the Lower Court coram CANDIDE-JOHNSON, J., in suit No:LD/410/2008 is hereby set aside and in its stead, judgment is entered in favour of the Appellant for the refund of the consideration furnished for the land in dispute.