Nwachukwu v Federal Caital Development Authority (CA/A/303/2013)[2016] NGCA 55 (19 April 2016) (CA/A/303/2013) [2016] NGCA 55 (18 April 2016);

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  • Nwachukwu v Federal Caital Development Authority (CA/A/303/2013)[2016] NGCA 55 (19 April 2016) (CA/A/303/2013) [2016] NGCA 55 (18 April 2016);
Headnote and Holding:

The court considered whether the court below was correct in finding that the re-allocation of land was valid in law. Furthermore, it considered whether the below court was correct in finding that ownership could not be established, irrespective of a subsisting agreement and whether the court was correct in admitting inadmissible evidence. 

The appellants alleged that they were staff of Nigerian Telecommunications Limited (‘NITEL’) purchased flats from NITEL and occupied them with supporting letters to confirm their purchase. They subsequently discovered that a portion of their land had been re-allocated and used as a car park without their consent. 

The court found that a party for a declaration of title of land must show the court clearly the area of land to which the claim relates. The court found that the appellants did not prove their title by failing to prove acts of ownership or long possession. 

On the issue of ownership, the court considered the five requirements for a contract to be valid, namely, 1) offer, 2) acceptance, 3) consideration, 4) intention to create a legal relationship and 5) capacity to contract. These must co-exist for a contract to be formed in law. It was found that a valid sale agreement had been established, therefore denoting ownership. 

The court found that the admission of evidence which was made during the pendency of the suit was inadmissible and should not have been relied upon by the court below. 

Appeal upheld. 
 

 
 
In the Court of Appeal
Holden at Abuja

 

Between

Appellant

1. P. N. NWACHUKWU

2. A. A. HASSAN
3. M. T, ISA
4. F. N. OLATUNJI
5. S. I. IDASEFIEMA
6. A. U. UNDE
7. U. M. HASSAN
8. A. S. AIYEDUN
9. K. A. TIJJANI
10. Q. I. AUDU
11. A. O. OGBOLE
12. A. O. AMADI-EMINA
13. A. O. AKINTUNDE
14. M. B. AUTA
15. M. B. ALIYU
16. O. C. OKORUWE
17. S. N. OBIJURU
18. J. O. ONI
19. A. K. TANICO
20. R. B. MUSA
21. F. A. OSAYI
22. F. U. UKPEHA
23. B. N. SULEIMAN
24. I. A. ZAKARI
25. O. P. AKPOBASA
26. R.S.MOHAMMED
27. E. S. DAUBRY
28. C.O CHIM
29. C.O EGWEKWE
30. U. I. ZUBAIRU
31. I. AMINU
32. G. A. JUBRIN
33. M.S.AHMED
34. R. F. ABDULLAHI
35. S. B. USMAN
36. A. MUSA ONILENLA
37. F. A. LIMAN (MRS)
38. I. A. OGBONNA
39. A. E. AKPAN
40. J. O. OLALEYE
41. G. E. IGBOKWE
42. H. G. WAWU
43. P. A. BOLODEOKU
44. S. B. IMANYI
45. I. AZOK
46. ALI BABA MAIKAMI
47. E. O. AGIDA
48. G. M. DAHUWU

and

Respondent

1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. HON. MINISTER OF FEDERAL CAPITAL TERRITORY
3. SAMIBANKOLE ORUNGBE :
4. TYS LIMITED

 

Judgement

HON. JUSTICE TANI YUSUF HASSAN, JCA: The appeal is against the judgment of the High Court of Federal Capital Territory, Abuja delivered on the 14th day of February, 2013 in Suit No. FCT/HC/CV/215/07.

The appellants as plaintiffs at the lower court filed a further amended statement of claim on 09/02/2012. Their case is that they were staff of the Nigerian Telecommunications Limited {NITEL) who occupied various flats in the estate, formally known as NITEL Quarters situated at plot 570 (No. 3) Durban Street, Wuse II, Abuja as their official residence. They purchased the respective flats occupied by them under the Monetization Policy of the Federal Government, and they were issued offer letters to that effect.

On the 17/07/2007 they discovered that the 2nd respondent had re-allocated a portion of the plot which serves as their car-park and recreational area to some people including the 3rd and 4m respondents.

The case went to trial and at the end of the day the appellants' case was dismissed. The judgment gave rise to this appeal.

The Notice of Appeal dated 16/04/2013 filed on 18/4/2013 has eight grounds of appeal with their particulars and reliefs sought.

The appellants' brief filed on 14/11/2013 and deemed properly filed on 16/02/2015, settled by their Counsel Rotimi Ojo has five issues distilled for determination as follows:

1. "Whether given the circumstance of this case, the learned trial judge was right in holding that the re-allocation of a portion of the plot S70 (No. 3) Durban Street, Wuse II, Abuja by the 1st and 2nd Defendants to the 3rd and 4th defendants was valid in law" (Ground 1)-
2. "Whether the trial court was right to hold that the issue of revocation of title to plot 570 raised and addressed by counsel in their respective addresses was attoise and hence immaterial even on the face of a joinder issue on that score" (Grounds 2 and 7).
3. "Whether the trial court rightly held that the vacant portion of plot 507 (No. 3) which from inception has been serving as the parking slots and as a recreation facility of the Durban Estate was not part of the appurtenances and privileges to be continuously enjoyed by the appellant" (Ground 3).
4- "Whether the trial court was right when it held that ownership of plot 570 (No. 3) on which plaintiffs flat were built was not established in favour of the plaintiffs not withstanding a subsisting valid assignment of same" (Ground 4 and 6).
5.    "Whether the trial court was right in admitting in evidence an inadmissible document Exhibit nA6"even alter holding that same was made during the pendency of the suit" (Ground 5),

The 1st and 2nd respondents' brief was filed on 19/03/2015, Their counsel Miss Betty A. Umegbulem adopted the five (5) issues identified by the appellants for determination of this
appeal.

The 3rd respondent's brief was dated 18/02/2015 and filed on 20/02/2015. The counsel A. U Mustapha Esq also adopted the five (5) issues identified by the appellants. The 4th respondent's brief dated and filed on 05/12/2013 was deemed properly filed by his counsel Kehinde Daramola on the 16th of February, 2015,
In it five issues were formulated as follows:

PAGE| 4

1. "Whether the learned trial court was right in dismissing the claim of the appellants bearing in mind the nature of Exhibit A1 being a letter offer for the purchase of Block C, Flat 8 and not a document of title over plot 570, Durban Street, Abuja "
2. "Whether in the circumstances of this case, the learned trial court ought to have relied on proof of long possession and enjoyment of land in granting the appellants' declaration of title over plot 570, Durban Street/ Abuja"
3. "Whether the learned trial court was right in holding that in the absence of any instrument of title over plot 570 granted to the appellants either collectively or individually, the issue of revocation in the context of this case becomes attoise"
4. "Whether in the circumstance of this case, the learned trial court was right in admitting in evidence Exhibit nA6".
5. "Whether the learned trial court was right in holding that plots 1786 and 1784 were not appurtenances to the respective flats purchased by the appellants individually".

I have carefully considered the issues formulated by appellants and 4th respondent. Taking into consideration the grounds of appeal filed, the issues formulated by the appellants are more apt to the determination of this appeal.

I shall be guided by the appellants' issues in resolving this appeal.

ISSUE ONE

"Whether given the circumstances of the case, the learned trial Judge was right in holding that the re-allocation of a portion of the plot 570 (No. 3) Durban Street, Wuse 11 Abuja by the 1st and 2nd Defendants to the 3rd and 4th Defendants was valid in law".

The argument of the appellants' counsel is that exhibit "A3" the Certificate of Occupancy was issued to Nitel Plc in respect of Plot 570 Durban Street, Wuse II, Abuja which is a single plot as shown in exhibit "A5" the main Abuja Master Plan relating to the single plot in

PAGE| 5

controversy. That the said plot was transferred to the appellants via Exhibit “A4" the memorandum on monetization policy dated 13/01/2004 issued by the Federal Government of Nigeria.  Appellants' counsel referred to the evidence of the 1st and 2nd respondents witness at page 418 of the record which is an admission on the part of the 1st and 2nd respondents that the said plot was allocated to NITEL who in turn sold to the appellants. It is submitted that the appellants having established ownership of plot 570 (No. 3) Durban street, Wuse II, Abuja, they have the right to exercise act of ownership. That the 1st and 2nd respondents having allocated the plot 570 (No. 3) to NITEL cannot validly in law re-allocate the same land to a 3rd party without due process of law. That the re-allocation of the plot to the 3rd and 4th respondents is invalid.

The court was urged to resolve the issue in favour of the appellants.

Responding, counsel to the 1st and 2nd respondents argued issues 1 and 4 together.

It is submitted on these issues that appellants claim relates to the allegation that the plot 570 was allocated them but they could not establish the allegation and same was not borne out of any documentary evidence before the trial court. Counsel relied on the case of Atanda Vs Ajani (1989) 3 NWLR (part 111) 511 on this submission.

It is further submitted that a party for a declaration of title to land must show the court clearly the area of land to which his claim relates.

Relying on the case of Audu Otukpo Vs Apa Johnson (2012) 7 NWLR (part 1299) 357 at 376 and Ressel L. Dakolo Vs Kakolo and others (2011) NSCQR Vol. 46 part 11 page 669 at 691. It is submitted that the appellants did not prove their title by either of the five ways stated in the above cases/ That from both documentary and oral evidence, the appellants have failed to prove acts of ownership or long possession of plot N6. 570 (No. 3) Durban street Wuse Il/Abuja.

It is also contended that since revocation was not an issue as it was not pleaded even though parties addressed the court on it the issue will have no bearing in this appeal. The court was referred to Balogun Vs Adejobi (1995) 2 NWLR (part 376) 131 at 158.

PAGE| 6

It is finally submitted that the non service of revocation or validity of the revocation was never pleaded by the appellants and therefore the evidence goes to no issue. Ogu Vs Manid (2011) 8 NWLR (part 1249) 345 at 375-376 was referred to.

Counsel to the 3rd respondent in response submitted that the appellants pursued no cause of action against the 3rd respondent at the trial court. That the trial court in its judgment subsequently struck out the appellant's case against the 3rd respondent.

In his further submission on issues that were joined with the appellants in case, this court found the above submission unmeritorious. It is submitted for the 3rd respondent that the appellants did not purchase plot 570 (No. 3) Durban Street Wuse II, Abuja but purchased block of a flats occupied by individuals. That there is no proof that the offer was accepted and there is no proof of their claim to ownership of plot 570 (No. 3} Durban Street, Wuse II, Abuja. Counsel referred to section 135 of the Evidence Act and the case of F.A.T.B Ltd Vs Partnership Inv Co. Ltd (2003) 18 NWLR (part 851) 35 SC 67 at 73-74 and Idundun Vs Okumagba (1976) 9-10 SC 227.

It is contended that there is no evidence of the sale of the entire estate to the appellants. That it is not in dispute that the plot in dispute initially belonged to Nitel. But the issue of Nitel rightly or wrongly assigning same to the appellants does not arise because there was no proof to that effect. Counsel urged the court to resolve the issue in favour of the 3rd respondent.

The 4th respondent's counsel in response submitted that it is true that the appellants first came into occupation of their respective flats-on plot 570, Durban Street, Abuja after the entire plot was allocated to Nitel Plc as staff quarters vide Exhibit A3. That the 3rd and 4th respondents got their allocation as members of the public.

It is the contention of the 4th respondent that the appellants did not show how they derived their title from Nitel because there was no deed of assignment, or power of Attorney or any document executed between the appellants and Nitel transferring title over plot 570. That the appellants having failed to establish their title over the plot in dispute, the court was urged to resolve the issue in favour of the 4th respondent.

That the appellants legal rights are only limited to their respective Block of flats which they occupy. The court was referred to fagge Vs Adakawa (2006) All FWLR (part 331) 1387 at 1393.

I shall also consider issues 1 and 4 together as argued by counsel to the 1st and 2nd respondents.

I shall start with issue 4.

ISSUE FOUR

"Whether the trial court was right when it held that the ownership of plot 570 (No. 3) on which the plaintiffs flat were built was not established in favour of the plaintiffs"

The appellants contended that the land in dispute plot 570 (No. 3) Durban Street, Wuse II, Abuja was allocated to Nigerian Telecommunication Limited (Nitel) on which, block of flats were built and occupied by the staff of Nitel. As a result of Monetization Policy of the Federal Government, the Federal Government approved and mandated the Federal Capital Development Authority for sale of non-essential Federal Government Houses in the Territory, 48 flats within the Estate at plot 570 (No. 3) Durban street Wuse II, Abuja to the present occupants of the property.
That the appellants block of flats constitute the Estate on plot 570 (No. 3), which offer of purchase they accepted and made payment thereof.
The argument of counsel to the 1st and 2nd respondents is that the letter offer issued to the appellants is the prima facie evidence of ownership of the block of flats but the appellants did not adduce evidence to act of ownership or long possession of the plot 570 (No. 3) Durban Street, Wuse II, Abuja. That the appellants' allegation that plot 570 was allocated to them was not established and same was not borne out of any documentary evidence before the trial court.

The 3rd respondent on his part contended that the appellants argument that they have been on the plot for nearly two decades lacks basis as it does not confer a valid assignment of exhibit "A3" (the Certificate of Occupancy) on them.

The 4th respondent argued that the appellants have failed woefully to prove their title to plot 570 as there is no instrument of assignment established. That the appellants' reliance on exhibit "Al" (the letter offer) that plot 570 was offered for sale is a misrepresentative of facts.

The question- is what is the case of the parties as regards the issue of the land in controversy?

The land, plot No 570 (No. 3) Durban Street, Wuse II Abuja was originally allocated to Nitel and official quarters was built for staff of Nitel on the said plot 570 (No, 3). The appellants were allocated the official quarters by Nitel Management. The Monetization Policy of the Federal Government allowed the appellants to purchase their respective block of flats. These facts are not in dispute.

What is in contention as argued by all the respondents is that the appellants title to the land is only in respect of the block of flats they purchased to the exclusion of plot 570 (3) Durban Street, Wuse Abuja.

There is no sense in the argument of the respondents at all. This is because the block of flats could not have been built in the air but on a land and in this case plot 570 (No. 3).

The letter of offer, exhibit "A1" reflected at page 16 and 247 of vol. 1 of the record belongs to the 1st appellant. It reads:

"We refer to your Expression of interest to purchase the property owned by the Federal Government of Nigeria situate at Block C Flat 8 Durban Street Nitel Quarters Wuse 2, Abuja FCT and more particularly described in "schedule A" hereto, together with all appurtenances, rights of way, easements reversion-nary rights and privileges related

thereto (the property) and are pleased to offer the property to you for sale as herein indicated. This letter shall constitute the Terms of offer from the Federal Capital Development Authority (FCDA) on behalf of the Federal Government of Nigeria ("the Lessor") and upon execution the acceptance by you ("the lessee") to purchase the property from the lessor on such terms and condition as are more particularly set forth below".

The Certificate of Occupancy exhibit "A3" at page 420-425 has shown plot 570 to have been allocated to Nigerian Tele-communication Ltd (Nitel) situate within the Federal Capital City and consist of adjourn plot 569 and 571 located within A8 Wuse II District, Abuja, Durban street.

By the exhibits "A1 and A3 it is clear from the description therein that the block of flats sold to the appellants were built on the plot No. 570.

It does not therefore arise for any of the parties to contend assignment of the plot.

Both exhibits "Al and A3" emanate from the 1st and 2nd respondents. Contrary to the submission of counsel to the 1st and 2nd respondents on plots 1786 and 1784 allocated to the 3rd and 4th respondents, there is nothing from the evidence on record to show how the plots were carved out from plot 570. DW3 is a witness of the 1st and 2nd respondents. He is a civil servant with Federal Capital Territory Administration (FCTA) and on second-ment to the Ad-hoc committee on sale of Federal Government Houses. Under cross-examination he stated thus:

"I don't know whether plot 570, Durban Street, Abuja was originally allocated to Nitel. I know the land in dispute. This land in dispute has no plot number.

It has no description. The flats were located at old No. 3 Durban Street Wuse II, Abuja. I am not aware that it was originally allocated to Nitel. I am not aware that Nitel were the original occupant of the old No, 3 Durban Street Wuse II, Abuja. The plaintiffs expressed interest because they are tenants of Nitel. I don't know where plot 1784 is".

His evidence is not helpful to the 1st and 2nd respondents as he was unable to link plot 1784 with plot 570, even though he is a member of the Ad-Hoc Committee on sale of Federal Government Houses,

His evidence impliedly is that he is not aware of the allocation to the 3rd respondent.

DW4 a land officer in the land Department of 1st and 2nd respondents in an effort to defend the allocation made by the 1st and 2nd respondents to the 3rd and 4th respondents, in her statement on oath at pages 418-419 particularly paragraph 8 stated thus:

"That in view of paragraph the president's approval, the undeveloped part of plot 570 (No, 3) Durban Street allocated to Nigerian Telecommunication Limited (NITEL) was sub-divided and allocated to various Nigerian including the 3rd and respondents".

Under cross examination as reflected at page 553 of the record, DW 4 said:

"The Policy on Monetization was complied with in allocating for the 3rd and^h defendants. There was revocation initially and then re-allocation. The Minister that is, the 2nd defendant did the revocation, I don't have the evidence of the revocation here. I saw the revocation letter in the system. There was full compliance with the revocation process".

The question here is not only as to revocation and re-allocation, but how is it possible to subdivide plot 570 which was allocated to Nitel purposely for building staff quarters and which block of flats are already in place, moreso when there is also one Certificate of Occupancy to plot 570. Even if it is true there was revocation that revocation letter is not anywhere found in the record.

The 1st and 2nd respondents are caught by the provision of section 167(d) of the Evidence Act which provides:

"Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it".

The statutory Right of Occupancy issued to the 3rd respondent on plot 1786 Cadastral Zone A08 Wuse II District and the one issued to the 4th respondent No. 1784 Cadastral Zone AOS Wuse II District have not been shown to have any relationship with plot 570 (No, 3) Durban Street, Wuse II District, Abuja,

Also the quit notice issued to the occupants of plot 570 (No, 3) Durban Street Wuse 2, Abuja is not connected with the allocation to the 3rd and 4th respondents.

The site plan attached to the Certificate of Occupancy at page 425 of Volume II of the record showing plot No. A08/570 dwelling plot No. 1898/03 Durban Street has no plots Nos. 1786 and 1784 reflected therein in all the figures indicated in the site plan. There is no explanation as to how plots 1786 and 1784 come about from plot 570. There is no nexus shown between plots 1784 and plot 570, apart from the assertion that it was an undeveloped land from plot 570,

It is pertinent to point out that schedule "A" of the offer letter exhibit "Al" stated thus:

"All that property known as a flat situated at Block C Flat 8 Durban Street Nitel Quarters, Wuse 2 Abuja FCT, including and not limited to the party wails roofs plumbing and electrical sewage and other systems, together with all appurtenances rights, rights of way, easements, reversionary rights and privileges related thereto"

Appurtenances is defined by Black's Laws Dictionary Eight Edition as "something that belongs or is attached to something". One may ask here, whether the parking slots are attached to the Block of Flats sold to the appellants. The answer is in the affirmative. This is because it is a notorious fact, where there are Block Flats there is a parking space for the occupants of the flats and which is sometimes used as a recreation facility.

The lessor having not excluded the parking space in the sale agreement, the appellants are entitled to believe that the Block of flats sold to them include the parking space for the use of their vehicles and recreation facility.

It is the duty of the court to interprete contract entered into between parties in the light of their clear intentions or conveyed by the agreement. A party cannot resile from a contract or agreement just because he later found as in the instant case that the conditions are not favourable to him. See Attorney General of Rivers State Vs Attorney General of Akwa Ibom (2011) 3 SCNJ 1, Arjay Ltd Vs Airline Management Support Ltd (2003) FWLR (part 156) 493 at 990 and Faloughi Vs First Impression Clearness Ltd (2014) 7 NWLR (part 1406) 335 at 343.

In the instant case the appellants and l51 and 2nd respondents have agreed as to the sale and purchase of the properties. The trial court who heard and saw the witnesses on its part believed the case of the respondents and dismissed the appellants claim. I think with due respect, the trial court has completely misconceived the nature of the issues upon which this
case has been fought and dwelled into a grave error. The dispute between the parties is as to the allocation of parking lots to the 3rd and 4th respondents by the 1st and 2nd respondents on plot 570 where the Block of Flats of the appellants were built.

As the appellants in this case established their occupation of the property by virtue of purchase, it is implied that they posses ownership of the land. See Idundun Vs Okumagba (1976) 10 SC 227, Elias Vs Omobare (1982) 5 SC 25 and Awere Vs Lasoju (1975) NMLR 100.\

It is my view that the argument of the counsel to the 1st and 2nd respondents on the identity of the land is of no moment because the parties are ad idem on the same area of land that is being given different numbers for various reason.
A legally enforceable agreement, which a contract is, has the following necessary ingredients to wit:
(a) Offer
(b) Acceptance

(c) Consideration
(d) Intention to create legal relationship
(e) Capacity to contract

These five necessary requirements must co-exist as a contract cannot in law be formed in the absence of any of these ingredients - Azubuike Vs Governor of Enugu State (2014) 5 NWLR (part 1400) 364 at 370, Shell Petroleum Development Company Ltd Vs Fronthine Television Ltd (2011) LPELR 4955 and Obaike Vs B.C.C Plc (1997) 10 NWLR (part 525) 435.

The appellants in the instant case were given a first right of refusal in expression of interest to purchase the Block of Flats they occupied as staff of Nitel which they accepted and paid and were issued with offer letters to that effect.

It is trite that where parties enter into a contract, they are bound by the terms thereof and the court will not read into a contract terms on which there is no agreement. My view therefore is that these ingredients have been established in the sale agreement between the appellants and the 1st and 2nd respondents.

Contrary to the submissions of all the respondents that the parking slots have been revoked for non development and same re-allocated to 3rd and 4th respondents, the purported re-allocation is invalid because as at the time of re-allocation to 3rd and 4th respondent, the property was in possession of Nitel which was eventually sold to its staff who were in occupation of the same property. Also as there is no evidence of revocation there can be no re-allocation.

It is trite law that no one can validly give what he does not have. This is expressed in the latin maxim of nemo dat quod non habet. The maxim is most applicable where a party who does not have something, purports to sell it. See Egbuta Vs Onuna (2007) 10 NWLR (part 1042) 298 and Olagunju Vs Yahoha (2004) 11 NWLR (part 883) 24.

The letter offer with particular reference to "schedule A" is clear and unambiguous and must therefore be given its grammatical meaning. See Onyedebulu Vs Mwaneri (2009) All FWLR (part 453) 270.

The respondents only made a general denial in their statements of defence without facts to support their claim that the parking space described as plots 1786 and 1784 have nexus with plot 570 allocated to NITEL. This is because there are no figures 1786 and 1784 in the site plan attached to the Certificate of Occupancy reflected at page 425 of volume II of the record. Issues 1 and 4 are therefore resolved in favour of the appellants against the respondents.

Issue 2 becomes academic as it does not arise from the pleadings of parties but from the address of counsel. A counsel must base his address on pleaded facts since litigation is made up of a combination of facts and the law. See C.C.B. Vs Onyekwelu (1999) 10 NWLR (part 542) 483.
Addresses of counsel are to assist the court and it is not binding on the court, as cases are decided on credible evidence and not on addresses of counsel, no matter how brilliantly conducted. See Ogunyombo Vs Oakoya (2002) 16 NWLR (part 793) 224, Istibla Vs Ajiboye (1998) 1 NWLR (part 532) 71 and Atanze Vs Attah (1999) 3 NWLR (part 596) 647.

For what it is worth, the argument of the counsel to the Is1 and 2nd Respondents that the Minister of Federal Capital Territory has the power to allocate and revoke land, is the correct position of the law. However there are procedures for both the allocation and revocation. By the provision of section 28(6) of the Land Use Act 1978 the Minister of Federal Capital Territory has the power to revoke a Certificate of Occupancy for a breach of the terms which is deemed to be contained in the Certificate of Occupancy.

But that the holder shall be put on notice. See N.E.W. Ltd Vs Denap Ltd (1997) 10 NWLR (part 525) 481 at 487 -488.

In the instant case there is no evidence of revocation established from the record. It is the law, that any re-allocation without notice to the holder of the Certificate of Occupancy is invalid.
Issue 2 is resolved in favour of the appellants against the respondents

Issue 3 has been answered in issues 1 and 4. It is resolved in favour of the appellants against the respondents.

ISSUE FIVE

"Whether the trial court was right in admitting in evidence an inadmissible document Exhibit "A6" even after holding that same was made during the pendency of the suit".

The submission of the appellants' counsel on this issue is that exhibit "A6" a site plan showing plot A08/570 tendered by the 3rd respondent was made during the pendency of the suit, precisely in March, 2012 contrary to section 83(3) of the Evidence Act, 2011. The court was referred to Nwaogu Vs Atuma (2013) 11 NWLR (part 1364) 117 at 136-137 per Fabiyi JSC, Buhari Vs Obasanjo (2005) 13 NWLR (part 941) and Ararume Vs INEC (2007) 9 NWLR

Counsel urged the court to resolve the issue in favour of the appellants.

Counsel to the 1st and 2nd respondents, responded that exhibit A6 does not fall under the category of documents made in anticipation of a suit. That exhibit A6 has been in the system and was only printed in 2012. Counsel referred to section 84(1) and (2) of the Evidence Act, 2011 and the FRN Vs Femi Fani- Kayode (2010) 14 NWLR (part 1214) 481 at 506. The court was urged to resolve the issue in favour of the 1st and 2 respondents.

The 3rd respondent's counsel submitted in response that while exhibit A6 was made during the pendency of the suit but the appellants have not shown that it was made by a person interested. The case of Nitel Vs Ogunbiyi (1992) 7 NWLR (part 255) 543 at 563 was referred to. Counsel urged the court to resolve the issue in favour of the 3rd respondent.

The 4th respondent in response submitted that the trial court was right in admitting exhibit A6 in evidence because even without it, the court could not have arrived at a different decision.

The doctrine of lispendens is of common (aw origin. It derives from the latin maxim "pendente lite nihil innovetur" which means that nothing should change during the pendency of an action.

The Supreme Court in the case of Ogundiani Vs Arabi and others (1978) 6-7 /sc 55 per Idabe JSC clearly and concisely stated the aim and scope of doctrine of iispendens. There he said that the doctrine of lis pendens prevents the effective transfer of right in any property which is the subject matter of an action pending in court during the pendency in court of the action.

It is important to note that the respondents have a misconception of the doctrine when they contented that the document was tendered through a staff of AGIS who is not an interested party in the case.

That is not the issue. What is in issue is that exhibit A6 was made during the pendency of the suit to serve the interest of the 3rd respondent on whose behalf the document was tendered.

"Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish".

From the above provision of the law, it goes to show that exhibit "A6" having been made in March, 2012 when the proceedings in the case was still pending, contravenes the above
provision and therefore inadmissible.

It is therefore a total misconception of the application of the doctrine by the trial Judge when he held at pages 574-575 of volume 2 of the record in his judgment thus:

"To my mind and from the date on the document (A6) it was produced during the pendency of this suit. The document was produced in March, 2012. But is the maker of the document AGIS a person interested in this suit? I answer in the negative and therefore align myself with the submission of counsel to the 3rd defendant".

The trial court having confirmed that the document exhibit A6 was made during the pendency of the suit contrary to section 83(3) of the Evidence Act, ought to have expunged it in its judgment. Moreso when the evidence on record has shown that there was an objection to its admissibility when it was sought to be tendered.

The law is that, a case is determined on legally admissible evidence and not on evidence that is inadmissible by the provision of the Evidence Act. See I.B.W.A Vs IMANO Ltd (2001) 3 SCNJ 160 at 177
Issue 5 is also resolved in favour of the appellants against the respondents

The appeal succeeds and it is allowed.

The judgment of the trial court delivered on the 14th day of February, 2013 in suit No. FCT/HC/CV/215/07 is hereby set aside.

The 3rd and 4th respondents shall pay a cost of N50,000.00k each to the appellants

MOORE A. A. ADUMEIN. JCA: I read in advance the judgment of my learned brother, Tani Yusuf Hassan, JCA.

My learned brother has elaborately considered and dealt with the issues in this appeal, I  agree with the reasoning and conclusions of my learned brother.

Since the germane and threshold issues have been resolved in favour of the appellants, for the comprehensive reasons given by my learned brother, I also allow this appeal. I abide by all the orders made in the leading judgment, including the order as to costs.

MOHAMMED MUSTAPHA. JCA: I read before now in draft form the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA.

My learned brother considered very carefully all the issues canvassed in this appeal, and for the detailed reasons set out in the judgment which I adopt. I too allow the appeal and set aside the judgment of the trial court delivered on the 14th day of February, 2013 in Suit No: FCT/HC/CV/215/07.

I abide by the order as to costs in favor of the appellant, against the 3rd and 4th respondents.

Counsel

1. Rotimi Ojo
2. Mrs, D. M. Ogolime                    for Appellants
3. Miss Betty A. Umegbu
4. E. O. Ijuma
5. Miss M. U. Oche                        for 1st and 2nd Respondent
6. A. U. Mustapha
7. Miss Y. A Amin
8. Miss Cynthia Igbokwe                    for 3rd Respondent
9. Kehinde Daramola                        for 4th Respondent