ALH. ISA UMARU KUMO V. ALH. MAHMOOD BAPPARI & 2 ORS

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

IBRAHIM SHATA BDLIYA JUSTICE, COURT OF APPEAL

EBIOWEI TOBI JUSTICE, COURT OF APPEAL

PARTIES

ALH. ISA UMARU KUMO

APPELLANTS

1. ALH. MAHMOOD BAPPARI

2. GOMBE STATE URBAN PLANNING & DEVELOPMENT BOARD

3. MINISTRY OF LANDS & SURVEY GOMBE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, COURT, JUDGMENT AND ORDER, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

SUMMARY OF FACTS

The Appellant filed a suit before the High Court of Gombe State, against the Respondents vide a Writ of Summons and Statement of Claim. Therein, he claimed declaratory reliefs over a plot of land, to wit: Plot No. C168 in GDP/16 covered by an approval for a grant of a Right of Occupancy No. GM/14437. He claimed to have bought the property from the original allottee, Maigari Usman, whom he claimed was allocated the land by the 3rd Respondent (Ministry of Lands & Survey Gombe State) in 2007. The 1st Respondent also laid claim to ownership of the land which he also claimed was allocated to him by the same 3rd Respondent in 2004. Thereafter, the documents of title were processed and a Certificate of Occupancy was issued to him.

Parties duly exchanged pleadings and issues were joined. To prove his claim, the Appellant adduced evidence through three witnesses and six exhibits. The 1st Respondent, in his defence, also adduced evidence through one witness and four exhibits; while the 2nd and 3rd Respondents adduced evidence through one witness each and one exhibit.

At the close of trial, the lower Court visited the locus in quo. Thereafter, Counsel delivered their closing arguments and the trial Court delivered its Judgment dismissing the claim of the Appellant. Aggrieved by this decision, the Appellant appealed to this Court vide his Notice and Grounds of Appeal, wherein he prayed the Court to allow the Appeal and set aside the judgment of the trial Court.

HELD

Appeal Dismissed

ISSUES

Whether from the facts and circumstances of this case, the Appellant proved his case based on the preponderance of evidence?

RATIONES DECIDENDI

BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE – WHO IS A BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE?

“A bona fide purchaser for value without notice is a person who purchased property for valuable consideration without notice of any prior right or title which, if upheld, will derogate from the title which he has purported to acquire – Best (Nig.) Ltd V Blackwood Hodge (Nig.) Ltd (2011) 5 NWLR (Pt. 1239) 95.The law is that only a bona fide purchaser of a legal estate for value without notice of any defect in title can take priority over someone who had acquired a prior equitable interest or title over the property – Ohiaeri V Yussuf (2009) LPELR-2361(SC). A purchase without notice exists only if the purchaser had no notice of the existence of the equitable interest. When a person is said to be a bona fide purchaser for value without notice, such notice may be actual, constructive or imputed, and it refers to notice of matters which might affect the efficacy of the title of the vendor. PER J.H.SANKEY,J.C.A

BONA FIDE OWNER/PURCHASER FOR VALUE WITHOUT NOTICE – CONCEPT OF A BONA FIDE OWNER/PURCHASER FOR VALUE WITHOUT NOTICE – MEANING OF “CAVEAT EMPTOR”

“The fundamental principle in all land transactions is captured in the Latin maxim, “caveat emptor”, which means, let the buyer beware. A purchaser is required in law to first of all conduct a search in the relevant registries before committing his money in any property transaction. Once a purchaser carries out all the necessary searches required of him and there is nothing adverse discovered, having exercised all due care and diligence, interest in the property will pass even if it is subsequently claimed that there was a defect in title and irregularities not on the part of the purchaser – Ageh V Tortya (2003) 6 NWLR (Pt. 816) 385, 396; Owo V Kasumu (1932) 11 NLR 116.

In the case of Animashaun V Olojo (1990) 6 NWLR (Pt. 154) 111, 122-123, Obaseki, JSC expounded the law as follows:

“What is the meaning of ‘bona fide purchaser of the legal estate for value without notice’?

Bona fide is defined as ‘in good faith, honesty, without fraud, collusion or participation in wrong doing’. Purchasing for value – ‘Purchaser’ in its technical sense does not necessarily imply purchaser for value. ‘For value’ are included to show that value must be given to earn the immunity. ‘Value’ means any consideration in money, money’s worth (e.g. other lands, stocks and shares or services or marriage…). ‘Of a legal estate’ – As Courts of equity break in upon the Common Law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate… ‘Without notice’ He must have neither actual notice nor constructive notice nor imputed notice.

A person has Actual Notice of all facts of which he had actual knowledge however that knowledge was acquired…

Constructive Notice – The Court of Chancery insisted that the purchaser should inquire about equitable interest with no less diligence about legal which they could ignore only at their own peril. The motto of English Conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase.A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries and had still failed to detect the equitable interest.

Imputed Notice –There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual or constructive notice… which the agent receives is imputed to the purchaser…” (Emphasis supplied)

His lordship explained further as follows:

“The key element in a plea of bona fide purchaser for value without notice is the concept of caveat emptor which postulates that a purchaser should beware and ought not to be ignorant that he is purchasing the rights of another. It is the primary responsibility of a purchaser of land to mount vigorous search in order to satisfy himself that the land is free from encumbrances and to ensure that the rights he is purchasing belong to the vendor. It is for a party to a contract to take all necessary precautions to avoid entering into a bad bargain. The principle is as old as the law itself…” (Emphasis supplied)

Again, in Onyido V Ajemba (1991) 14 NWLR (Pt. 184) 203, 228, D-H, Uwaifo, JCA (as he then was), explained the principle further thus:

“It follows, in my view, that a purchaser must be careful to know the full details about the land he is buying so as to acquire a good title by ensuring that the vendor has the necessary title to what he offers to sell. The rule is caveat emptor – let the buyer beware. It is a very old and useful rule. To quote Richards C.B. in Purvis V Royer (1821) 9 Price 488 at 518:

“It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person, generally speaking, offers anything for sale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualifications, and in the way in which he, the vendee, understood that he bought it; that is, so as to afford him an assurance of having bought what he wanted, and meant to buy, or, at least, he may reject the contract.” (Emphasis supplied)

An example of how far the principle of caveat emptor can be extended was demonstrated in the case of Eholor V Osayande (1992) 6 NWLR (Pt. 249) 524, where the Supreme Court held that a grantee of land which gets affected by town planning regulations must take his land as he finds it and cannot turn to the grantor or the holder of an adjoining land for compensation for his loss thereby, as town planning regulations were part of what the grantee should have investigated in the process of his investigation of the title. PER J.H.SANKEY,J.C.A