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Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
Between
OLU ODE OKPE –Appellant
AND
1. FAN MILK PLC
2. UNION BANK OF NIGERIA, PLC- Respondents
…………………….A…………………….
IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant herein, as plaintiff at the Plateau State High Court of Justice, holden at Jos, (Trial Court) instituted an action by a writ of summons and Statement of Claim against the respondents herein, who were the 1st and 2nd defendants at the said trial Court Paragraph 29 of the appellant’s Amended Statement of Claim reads as follows:
“WHEREOF the plaintiff’s claim against the defendants jointly and severally in this suit (is) as follows:
1 . A declaration that the sale of the property situate at No.86 Yakubu Gowon Way, Jos covered by Certificate of Occupancy No. BP 1373 is null and void and without any legal effect as the purported sale was done without obtaining the prior consent of the Governor of Plateau State and consent of the Commissioner of Lands pursuant to the mandatory provision of the Land Use Act 1978 and terms of the Certificate of Occupancy and the sales by Auction Law.
2. No (sic: An) order setting aside the purported sales and purchase of No. 86 Yakubu Gowon Way, Jos as it is tainted with secrecy and bad faith and therefore unlawful, unenforceable and of no legal effect.
3. An Order that the plaintiff is still at liberty to redeem the property comprised in the legal mortgage dated the 8th day of September, 1979 between the plaintiff and first defendant.
4. An injunction restraining the defendants jointly and severally by themselves, their servants, functionaries, agents privies and other persons whosoever or whatsoever from selling, alienating or otherwise interfering with plaintiff’s legal right over No. 86 Yakubu Gowon Way, Jos or doing any further act inconsistent with the right and interest of the plaintiff at law or in equity over the aforesaid property.”
The 1st and 2nd respondents, each filed its Statement of Defence. The 2nd defendant set-up in its Statement of Defence a counter-claim against the plaintiff.
The matter proceeded to full trial at the end of which the learned trial judge delivered his judgment in favour of the plaintiff and against the defendants. The 2nd defendants counter claim was dismissed.
Dissatisfied with the decision of the trial Court, the defendants filed their Notices of Appeal to the Jos Division of the Court of Appeal (Court below) the Court below on the 4th May, 2006 allowed the appeal, set aside the judgment of the trial Court. It also held that the 1st defendants counter claim particularly the declaration sought in paragraph 12 thereof, except 12(c) succeeded and were granted.
Dissatisfied with the decision of the Court below, the appellants appealed to this Court. They filed an Amended Notice of Appeal on 11/07/2014.
In this Court, briefs were filed and exchanged. On the hearing date, 4/10/16: learned counsel for the appellant Mr. Ogunwumiju adopted appellants amended brief, urged the Court to allow the appeal and restore the Judgment of the trial Court. Learned counsel for the 1st respondent Mr Onietan, adopted his amended brief and urged the Court to dismiss the appeal. Learned counsel for the 2nd respondent Mr. Ajose-Adeogun, adopted his brief and urged the Court to dismiss the appeal. Issues set out for the determination of the appeal by learned counsel for the respective parties are as follows:-
Appellants’ Issues
i. Whether or not the judgment of the lower Court allowing the respondents’ appeals is a nullity and should be set aside having regard to the fact that the Notices of Appeal which initiated the proceedings of the lower Court were not filed/signed by legal practitioners known to law (Ground 5).
ii. Whether the Court below was not in error, when it held that the doctrine of estoppel per rem judicatam could avail the 1st and 2nd respondents (Ground 2)
iii. Whether having regard to the entire pleadings and evidence adduced, the Court of Appeal was not in error when it held that the evidence before the learned trial judge was at variance with the pleadings on the issue of fraud thereby disentitling it to give judgment in favour of the appellant (Grounds 1&2).
iv. Whether the Court of Appeal was not in error when it set aside the order of the trial Court that the 1st respondent shall pay rent into an interest yielding account pending the final outcome of the appeal(s). (Ground 4).
1st Respondent’s issues:
i. Whether the Court below wrongly assumed jurisdiction on the appeal that gave rise to this appeal having regard to the manner in which the Notice of Appeal filed by the 1st respondent before it was signed (Ground 5)
ii. Whether the learned justices of the Court below (the
1 . A declaration that the sale of the property situate at No.86 Yakubu Gowon Way, Jos covered by Certificate of Occupancy No. BP 1373 is null and void and without any legal effect as the purported sale was done without obtaining the prior consent of the Governor of Plateau State and consent of the Commissioner of Lands pursuant to the mandatory provision of the Land Use Act 1978 and terms of the Certificate of Occupancy and the sales by Auction Law.
2. No (sic: An) order setting aside the purported sales and purchase of No. 86 Yakubu Gowon Way, Jos as it is tainted with secrecy and bad faith and therefore unlawful, unenforceable and of no legal effect.
3. An Order that the plaintiff is still at liberty to redeem the property comprised in the legal mortgage dated the 8th day of September, 1979 between the plaintiff and first defendant.
4. An injunction restraining the defendants jointly and severally by themselves, their servants, functionaries, agents privies and other persons whosoever or whatsoever from selling, alienating or otherwise interfering with plaintiff’s legal right over No. 86 Yakubu Gowon Way, Jos or doing any further act inconsistent with the right and interest of the plaintiff at law or in equity over the aforesaid property.”
The 1st and 2nd respondents, each filed its Statement of Defence. The 2nd defendant set-up in its Statement of Defence a counter-claim against the plaintiff.
The matter proceeded to full trial at the end of which the learned trial judge delivered his judgment in favour of the plaintiff and against the defendants. The 2nd defendants counter claim was dismissed.
Dissatisfied with the decision of the trial Court, the defendants filed their Notices of Appeal to the Jos Division of the Court of Appeal (Court below) the Court below on the 4th May, 2006 allowed the appeal, set aside the judgment of the trial Court. It also held that the 1st defendants counter claim particularly the declaration sought in paragraph 12 thereof, except 12(c) succeeded and were granted.
Dissatisfied with the decision of the Court below, the appellants appealed to this Court. They filed an Amended Notice of Appeal on 11/07/2014.
In this Court, briefs were filed and exchanged. On the hearing date, 4/10/16: learned counsel for the appellant Mr. Ogunwumiju adopted appellants amended brief, urged the Court to allow the appeal and restore the Judgment of the trial Court. Learned counsel for the 1st respondent Mr Onietan, adopted his amended brief and urged the Court to dismiss the appeal. Learned counsel for the 2nd respondent Mr. Ajose-Adeogun, adopted his brief and urged the Court to dismiss the appeal. Issues set out for the determination of the appeal by learned counsel for the respective parties are as follows:-
Appellants’ Issues
i. Whether or not the judgment of the lower Court allowing the respondents’ appeals is a nullity and should be set aside having regard to the fact that the Notices of Appeal which initiated the proceedings of the lower Court were not filed/signed by legal practitioners known to law (Ground 5).
ii. Whether the Court below was not in error, when it held that the doctrine of estoppel per rem judicatam could avail the 1st and 2nd respondents (Ground 2)
iii. Whether having regard to the entire pleadings and evidence adduced, the Court of Appeal was not in error when it held that the evidence before the learned trial judge was at variance with the pleadings on the issue of fraud thereby disentitling it to give judgment in favour of the appellant (Grounds 1&2).
iv. Whether the Court of Appeal was not in error when it set aside the order of the trial Court that the 1st respondent shall pay rent into an interest yielding account pending the final outcome of the appeal(s). (Ground 4).
1st Respondent’s issues:
i. Whether the Court below wrongly assumed jurisdiction on the appeal that gave rise to this appeal having regard to the manner in which the Notice of Appeal filed by the 1st respondent before it was signed (Ground 5)
ii. Whether the learned justices of the Court below (the
…………………….B…………………….
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