Oladejo Adewuyi Ajuwon v. Fadele Akanni & Ors

By a writ of summons filed on the 19th August, 1977 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiffs, who are now respondents, for themselves and on behalf of the Ibala Arikoto Family, sued the first defendant now appellant, claiming as follows:-
(1) Declaration of title in accordance with native law and custom to all that piece or parcel of land situate at Aponrin in Ibadan – Ajia Road, Ibadan, in Oyo State of Nigeria.
(2) Five thousand Naira being special and general damages for trespass committed by the first defendant, his servants or/and agents on the said land in 1976.
(3) Injunction to restrain the defendant. his servant, privies or land agents from entering or committing further trespass on the said land.”
There was a fourth claim by the said plaintiffs against the 1st, 2nd, 3rd, 4th and 5th defendants as follows:-

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“(4) In the alternative to claim (1) above. The plaintiffs’ claim against the defendants is for setting aside of the deed of conveyance made between the first defendant on the one hand and the 2nd, 3rd, 4th and 5th defendants on the 20th September, 1974 without the authority, consent, knowledge or accreditation of the plaintiffs of Ibala Arikoto family.”
Pleading were ordered in the suit and were duly filed and exchanged.
At the trial, evidence was led in support of the plaintiffs’ case and that of the first defendant. The 2nd – 5th defendants were absent throughout the hearing although they were duly represented by counsel who, on their behalf, cross-examined all the witnesses who testified before the court.
The case for the plaintiffs who prosecuted the action for themselves and on behalf of members of the Ibala Arikoto family was that they were the owners in possession of the land in dispute. The said land was situate at Ogbere, Aponrin on the Ibadan-Ajia Road, Ibadan. In suit No. CV/80/72 at the Grade “A” Customary Court Mapa, Ibadan, the Ibala Arikoto family members who were represented in that action by the 2nd – 5th defendants as plaintiffs claimed against one Lasupo Anisere a declaration of title to a customary right of occupancy to the piece or parcel of land described and more particularly delineated on Survey Plan No. AD/97/73, damages for trespass and injunction and obtained judgment. The said Survey Plan No. AD/97/73 covered and included the land allegedly trespassed upon by the defendants in the

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present action. The plaintiffs’ case was that the 2nd – 5th defendants without the knowledge, consent, anthorisation and/or approval of the Ibala Arikoto family unlawfully sold a piece or portion of their said land to the 1st defendant. Following the purported sale, the 1st defendant went into this land. It was as a result of this entry that the plaintiffs, for themselves and on behalf of members of the Ibala Ankoto family, instituted this action against the defendants.
The 1st defendant, for his own part, claimed that he bought the land in dispute shown in his plan No. EBS 973 from the 2nd – 5th defendants in June, 1972. The four defendants sold the land to him for N2,200.00. When he asked for a conveyance in respect of the land, the 2nd -5th defendants informed him that the land was then the subject matter of litigation at the Grade “A” Customary Court, Ibadan. They advised him to wait until the determination of that action. The Arikoto family eventually obtained judgment against the said Lasupo Anisere, the defendant in the Customary Court suit, for title to the land in accordance with customary law on the 28th June, 1974. He stressed that the 2nd – 5th defendants represented the Ibala Arikoto family in that case. It was after the determination of suit No. CV/80/72 that the 2nd – 5th defendants executed a deed of conveyance in respect of the land in his favour. This was on the 20th September, 1974. The 2nd – 5th defendants conveyed the land to him as the accredited representatives of Arikotokowosi family. He paid no further consideration for this conveyance apart from the N2,200.00 he paid to the vendors when he first bought the land in 1972. He was told by his vendors that

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Arikoto was an abbreviation of Arikotokowosi and he believed them.
The 2nd – 5th defendants in their Statement of Defence admitted that members of the Ibala Arikoto family are the owners in possession of the land in dispute. They also admitted that they did not obtain the consent, authorisation or approval of the Ibala Arikoto family to sell their land to the 1st defendant. They admitted that the plaintiffs’ family was known as and called Ibala Arikoto and not Arikotowosi family.
At the conclusion of hearing, the learned trial Judge in a reserved Judgment, found for the 1st defendant and dismissed the plaintiffs claims. Being dissatisfied with this judgment, the plaintiffs lodged an appeal to the Court of Appeal which in a unanimous decision allowed the same and set aside the judgment and orders of the Ibadan High Court delivered on the 17th January, 1980 in the suit. In line with the provisions of the Land Use Act, 1978, the Court of Appeal, Ibadan Division, granted to the plaintiffs a declaration that they were entitled to a customary right of occupancy in respect of the land described and more particularly delineated in Plan No. AD/97/73 which included the land covered by the conveyance.
Exhibit 3. On the claim for damages for trespass, the Court of Appeal was of the opinion that the purported sale was void and consequently awarded N500.00 general damages to the plaintiffs against the 1st defendant. An injunction was also granted restraining the 1st defendant, his servants, agents and privies from entering or committing any further acts of trespass on the land in dispute. This appeal is against the said judgment of the

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Court of Appeal.
Altogether seven grounds of appeal were filed by the 1st defendant who hereinafter will be referred to as the appellant. These grounds of appeal, without their particulars, are as follows-
1. The learned Justices of Appeal misdirected themselves in law and on facts when they held that in so far as the 1972 transaction is void, then the conveyance, Exhibit 3, made in furtherance thereof is void also and did not operate to transfer any title to the appellant.
2. The learned Justices misdirected themselves in law and on facts when they held; as they did, that Arikotowosi is not the same as Ibala Arikoto.
3. The learned Justices erred on facts and in law when they held that the sale by the 2nd – 5th defendants to the appellant could not be regarded as sale by the accredited representatives of Ibala Arikoto family.
4. The learned Justices of the Court of Appeal erred in law when they held in their judgment at page I49 lines 32 to 36 and page 150 lines 1 & 2 as follows:-
“Applying the doctrine of lis pendens to the facts of the case on hand, it is my view and I so hold that the present case falls within the doctrine and in the circumstances, the 1972 transaction is void and as the conveyance, Exhibit 3, was made in furtherance of the void transaction, it, too, is void and did not operate to transfer any title to the respondents” in that the said doctrine was raised suo motu by the Court of Appeal without giving the parties an opportunity to be heard particularly as the issue was neither raised by the pleadings of the parties not at the trial.

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2. The learned Justices of the Court of Appeal erred in law by holding in their judgment at page 151 line 36 and page 152 lines 1 – 5 that it may be true that the Arikoto family held out the 2nd – 5th defendants as their accredited representatives as regards representing the family in the Customary Court action but not as regards the sale of the family land
   6. The learned Justices of the Court of Appeal misdirected themselves in law when they held in their judgment at page 150 lines 31 – 35 that in the absence of any finding that Ibala Arikoto and Arikotowosi are one and the same, it cannot be concluded that Exhibit 3 conveyed to the appellant title the land of Ibala Arikoto family.
   7. The Court of Appeal erred in law by relying on the admission of paragraph 20 of the Statement of Claim by the 2nd – 5th defendants to the effect that the family of the plaintiff was known, called and styled as lbala Arikoto family and not Arikotokowosi family, as admission against appellant who did not adopt the said averment in his own Statement of Defence.
   Learned counsel for the parties filed and exchanged their respective written briefs of argument. Both Mr. E.O. Lahide for the appellant and Chief O.A. Ogundeji for the respondents, appeared to be in agreement on the issues for determination in this appeal. Each formulated four questions as calling for determination. I have carefully examined these questions set out by learned counsel in their briefs of argument. I am satisfied that the questions raised in the brief of argument of learned counsel for the appellant are more consistent with the issues raised in the grounds of appeal. I will therefore adopt the four issues as
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formulated in the appellant’s brief. These are as follows –
“1. Whether the Court of Appeal could in law raise suo motu the doctrine of lis pendens on which no issue was joined by the parties either by their pleadings or evidence at the trial without calling on the parties to address on the issue.
2. Whether the learned Justices of the Court of Appeal could disturb the findings of fact made by the learned trial Judge that the 2nd to 5th defendants were the accredited representatives of Ibala Arikoto family when they executed the conveyance, Exhibit 3, when the conclusion of the trial court was supported by undisputed evidence.
3. Whether the Court of Appeal was right in holding that a specific finding of fact by the trial court on the issue of whether Arikoto and Arikotokowosi refer to one and the same family was necessary in deciding whether or not Exhibit 3, the conveyance, conveyed Arikoto family land in view of overwhelming evidence in support of the conclusion of the trial court.
4. Whether the Court of Appeal could in law use the admissions in the Statement of Defence of the 2nd to 5th defendants who filed a separate defence from that of the 1st defendant against the said 1st defendant when he did not adopt the admissions so used against him.”
The first issue relates to grounds 1 and 4 of the appellants’ grounds of appeal. The main argument of learned counsel for the appellant on this issue is that the doctrine of lis pendens upon which the court below declared the 1972 sale and the conveyance, Exhibit 3. as null and void was raised suo motu by that court and that no opportunity was given to the appellant or the

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respondents to address the court on he issue. He argued that the said doctrine was neither raised by the parties in their pleadings nor was it mentioned in their briefs of argument. Learned counsel also stressed that the parties were not invited to address the Court of Appeal on the issue and that, under these circumstances, it was unfair on the appellant for the court to have based its decision on the issue.
In the alternative, learned counsel pointed out that the conveyance, Exhibit 3, was executed on the 20th September, 1974. This was after the determination of the Customary Court suit on the 28th June, 1974. He submitted that if the parties were given the opportunity to address the court below on the issue of lis pendens. the appellant would have established that the transfer of title of the land by the 2nd – 5th defendants to the appellant per the conveyance, Exhibit 3, did not take place pendente lite but after the litigation had been concluded. Learned counsel, therefore, contended that the conveyance, Exhibit 3, was not caught by the doctrine of lis pendens.
It is indisputable that the doctrine of lis pendens affects a purchaser who buys property, the subject matter of litigation, during the pendency of such litigation, not because the purported purchaser is caught by the equitable doctrine of notice, but because the law does not allow to parties to a suit, and give to them, pending the litigation, rights in the property in dispute, so as to prejudice the opposite party. But the doctrine of lis pendens only applies to a suit in which the object is to recover or assert title to a specific property which,

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however, must be real property as the doctrine has no application to personal property. Accordingly, where there is a sale of, or, conveyance in respect of a land in dispute by either side to a litigation, even thought the alienation be for ever so good a consideration, yet if it was made pendente lite, the purported purchase would be ineffective and must be set aside as void. See Barclays Bank of Nigeria Ltd. v. Alhaji Adam Ashiru and others (1978) 6 and 7 S.C.99 at 123 – 125 and 128 – 129 per Idigbe, J.S.C. See too Bellamy v. Sabine (1857) 26 LJ. (N.S.) Equity Reports 797 at 803 and Wigram v. Buckley (1894) 3 Ch.483 at 486, 492 – 493.
    In the case under consideration, it is patently clear that the land in dispute was purportedly sold to the appellant by the 2nd – 5th defendants, as plaintiffs, in the Ibadan Customary Court Suit No. CV/80/72. This sale was made pendente lite in 1972 and this fact was accepted by the appellant in his evidence before the trial court when he testified as follows:-
“The, four defendants sold the land to me for N2,200.00 ………………………………. I bought the land in 1972 They told me a case was going on the land I asked for a conveyance but I was told to wait till the case was completed …. In 1974, I was told that they had won the case. On 20th September, 1974, they followed me to the court to execute a deed of conveyance in respect of the land. This is the deed of conveyances – Exhibit 3”
It is therefore clear that the said 1972 sale of the land in dispute pendente lite to the appellant by the 2nd – 5th defendants could be questioned as to whether or not it was caught by the doctrine of lis pendens. And as the

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conveyance, Exhibit 3, was made pursuant to and in furtherance of the 1972 sale, it, too could be void and might not operate to transfer any title to the appellant depending on whether or not the original 1972 transaction was caught by the doctrine of lis pendens and therefore void.
Learned counsel for the appellant has however argued that the doctrine was neither raised by the parties in their pleadings nor was it made an issue in their written briefs of argument or in their oral submissions before the Court of Appeal. He submitted that it was wrong in law for the Court of Appeal to have raised suo motu the doctrine of lis pendens without calling on the parties to address it on the issue.
It seems to me that there is definite substance in this submission of Mr. Lalude. It is crystal clear from the record of appeal that the said doctrine of lis pendens was neither raised by the parties in their pleadings nor was it made an issue in their written briefs or argument or even in their oral submissions before the Court of Appeal. It emerged for the first time in the reserved judgment of the Court of Appeal and was therein raised suo motu without an opportunity having been given to learned counsel to address the court on the issue. I must, with great respect, observe that this is an area the Court of Appeal would appear to have slipped in its otherwise well considered judgment.
In the first place, it cannot be over-emphasized, and this court has repeatedly laid it down, that when a court raises a point suo motu, as the court below did in the instant case, the parties must be given an opportunity to be

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heard on such a point particularly the party that may suffer some disadvantage or disability as a result of such a point raised suo motu. See Ajao v. Ashiru (1973) 11 S.C.23 at 39 – 40; Atanda v. Lakanmi (1974) 3 S.C.109; Kuti v. Balogun (1978) 1 S.C.53; Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420; Ejowhomu v. Edok-Eter MandilasLtd. (1986) 5 NWLR (Pt.39) 1 and Kuti v. Jibowu (1972) 1 All NLR (Pt. 11) 180 at 192. This approach will ensure not only that the parties are given a fair hearing but that justice is seen to have been done in accordance with the principle of the audi alteram partem rule.
In the second place, the law is well settled that decisions of courts must only be founded on grounds raised by or for the parties or either of them and in respect of which it has received arguments from or on behalf of the litigants before them. In Shitta Bey v. Federal Public Service Commission (1981) 1 S.C.40, Idigbe, J.S.C, succinctly put this proposition as follows –
“This court has on a number of occasions warned against decisions of court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before them, nor even raised by or for the parties or neither of them.”
See too Saude v. Abdullahi (1989) 7 S.C.N.J. 216 at 229 (1989) 4 NWLR (Pt. 86) 58. Similarly, in Chief Ebba v. Chief Ogodo and Another (1984) 4 S.C.84 at 112, (1984) 1 SCNLR 372, Eso, J.S.C. dealing with the same principle of law put the mailer as follows –
“With utmost respect, it should be plain to the Court of Appeal that when an issue is not placed before it, it has

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no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”
See also Florence Olusanya v. Olufemi Olusanya (1983) 1 SCNLR 134 (1983) S.C.41 at 56 – 57 and Kuti v. Jibowu (1972) 1 All NLR (Pt. 11) 180 at 190.
In the light of the above, I am satisfied that the Court of Appeal could not in law raise suo motu the doctrine of lis pendens on which no issue was joined by the parties either in their pleadings nor was it made an issue in their briefs of argument or in their oral submissions before the court below. J must therefore resolve the first issue in favour of the appellant.
The matter does not however end there as there is the more important question of whether, or not, a miscarriage of justice was occasioned in this appeal as a result of this erroneous application of the law by the Court of Appeal. I will return to this question later on in this judgment.
The second issue relates to ground three and five of the ground of appeal. It calls for a determination of whether the Court of Appeal was right in setting aside the finding of the learned trial Judge to the effect that the appellant, at the time he bought the land in dispute dealt with the 2nd – 5th defendants as the accredited representatives of the Ibala Arikoto family.
In this regard, it must be pointed out that both the respondents and the appellant joined issue in their pleadings on whether or not the 2nd – 5th defendants sold the land in issue with the knowledge, consent and/or approval of the Ibala Arikoto family. The respondents averred in paragraphs 16, 19 & 20 of their Statement of

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Claim as follows:-
“16. The second, third, fourth and fifth defendants without the knowledge, consent, authority or approval of the plaintiffs and lbala Arikoto family purported to convey to the first defendant on 20/9/74 7,160 acres of land demarcated by pillars or beacon numbers AC372, AC373, AC374, AC375, AC392, AD393, AC 394. AC 395, AC 396, AC 397, AC398, AC 399, AC400 and AC401 and thereon edged red in plan No. EBS 973 drawn by Licensed Surveyor Mr. SA Agboola.
19. The said second, third, fourth and fifth defendants have not at any time been accredited or authorised by the said family to sell, mortgage or lease their said land or any aforesaid portion of same to the 1st defendant or any other person or persons.
20. The plaintiffs’ family is known, called and styled as lbala Arikoto family and not Arikotokowosi’s family.”
The appellant in paragraphs 12 & 19 of his Statement of Defence replied to the above averments as follows, namely:-
“12. With regard to paragraphs 16, 17, 18 and 19 of the Statement of Claim, the 1st defendant avers that he bought the 7.160 acre land referred to from the 2nd, 3rd, 4th and 5th defendants, who professed to him that they had legal right to sell as accredited representatives of Arikotokowosi family of Adeyelu compound, Ojaigbo lbadan, who actually sold and conveyed to him in that capacity.
19. As regards paragraph 20 of the Statement of Claim, the 1st defendant avers that the 2nd, 3rd, 4th and 5th defendants, the Signatories to the Sale Agreement and

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Deed of Conveyance referred to in paragraphs 8 and 11 above respectively told him that the word “Arikoto” is just an abbreviation of the word” Arikotokowosi”, and he readily believed them.”
A close study of the entire evidence before the trial court discloses that the respondents testified in very clear terms that their Ibala Arikoto family at no time authorised the 2nd – 5th defendants to sell or dispose of their land in issue. But there was a total lack of evidence from the appellant to the effect that the 2nd – 5th defendants sold the land to him with the knowledge, consent and approval of the Ibala Arikoto family who were the undisputed owners thereof. It is one thing to aver a material fact in issue in one’s pleadings and quite a different thing to establish such a fact by evidence. Where a material fact is pleaded and is either denied or disputed by the other side, the onus of proof clearly rests on he who asserts such a fact to establish the same by evidence. An averment in pleadings is not and does not tantamount to evidence and must therefore be established by satisfactory evidence unless the same is expressly admitted. See Akinfosile v. Ijose (1960) S.C.N.L.R. 447; Muraina Akanmu v. Adigun (1993) 7 NWLR (Pt.304) 218 at 231; Obmiami Brick and Stone Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt.229) 260 at 293 and Anyah v. ANN Ltd. (1992) 6 NWLR (Pt.247) 319 at 331. 
    In the instant case, the appellant inspite of his assertion that he purchased the land from the 2nd – 5th defendants as the accredited representation of the owners adduced no evidence whatever in support of this vital issue. There was therefore no evidence upon which the trial court

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could find that the appellant, at the time he bought the land dealt with the 2nd – 5th defendants as the accredited representatives of the Ibala Arikoto family.
It is true that an appellate court will not, as a general rule, interfere with the findings of fact of a trial court but this rule is subject inter alia to the availability of acceptable evidence before such trial court in support of such findings. See Balogun v. Agboola (1974) 10 S.C.111 and lke v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 555. The appellate court will also not hesitate to interfere with the findings of fact of a trial court where the same is established to be substantially erroneous on the face of the record of proceedings or where such a finding is shown to be perverse. See Kwansa Efi v. Enyinful 14 WACA 424; Enang v. Adu (1981) 11 – 12 S.C. 25; Ibodo v. Enarofia (1980) 5 -7 S.C. 42; Chinwendu v. Mbamali (1980) 3 – 4 S.C.31; Njoku v. Eme (1973) 5 S.C.293; Ige v. Olunloyo(1984) 1 S.C.N.L.R. 158 and Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 569. 
    In considering the second issue, Ogundare, J.C.A, as he then was, who delivered the lead judgment in the appeal and concurred in by Uche Omo, J.C.A.,as he then was, and Sulu-Gambari, J.C.A., dealt with the matter as follows:”
With respect, however, I do not share the trial Judge’s view that the family had held out 2nd – 5th defendants as their accredited representatives. This finding may be true as regards representing the family in the action in the Customary Court but not “as regards sale of family land…………
The learned Justice Ogundare, J.C.A. as he then was, a

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little later in his judgment continued:-
“In my view trial Judge is clearly in error to apply the doctrine of holding out so as to deprive the other principal members of the family of their right in respect of the family property. To hold as the trial Judge did would mean that where a member of a family represents his family in a court action, how-be-it with the knowledge and consent of the family, this without more clothes such member with authority to alienate family property without reference to the family. I can find no authority to support such a contention. The maxim is: Caveat Emptor. It is for the respondent to have made enquiries as to who the members of the Ibala Arikoto family are before dealing with the 2nd – 5th defendants alone especially as he knew that the land he sought to buy was family land of Ibala Arikoto family.”
I have given the above views of the learned Justice Ogundare, J.C.A, as he then was, a most careful consideration and 1 am, with respect, in complete agreement with him.
Learned counsel for the appellant in his brief referred to the decision in Secretary, Lagos Town Council v. Badaru Soule & Another (1939) 15 NLR. 72. He urged the court to hold on that authority that in as much as the 2nd – 5th defendants represented the family in their land case, they were held out as having authority to deal with their family land.
It has to be observed that the facts of the Lagos Town Council case are easily distinguishable from the facts of the .instant case. In the former case, it was established that one Yesufu Aromire with the knowledge and consent

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of his family prosecuted and defended court actions and made sales of family land so on, all on behalf of his family. There is no such evidence in the present case to the effect that the 2nd – 5th defendants with the knowledge and consent of their family ever made sales of any family land on behalf of the family.
On the whole, I am satisfied that the learned trial Judge was in error when he held that the 2nd – 5th defendants were the accredited representatives of the Ibala Arikoto family when they sold their family land to the appellant. This finding is not supported by any evidence before the trial court. I find myself in total agreement with the observation of the Court of Appeal to the effect that it was not established that the 2nd – 5th defendants had any mandate from their family to sell their Ibala Arikoto family land. Under such circumstance, the Court of Appeal was duty bound to reserve the said finding. Accordingly, I must answer the second question in the affirmative.
The principle of law that arises from the third issue is basic but fundamental. This is expressed in the latin maxim, nemodat quod non habet which literally means that no one can give what he does not own. See Akerele v. Atunrase (1969) 1 All NLR 201 at 208 ... The question for determination here is whether Arikoto and Arikotokowosi referred to one and the same family and whether a finding on the issue was necessary in deciding whether or not Exhibit 3, the conveyance, successfully conveyed the land in dispute to the appellant.
There is no dispute that the land in dispute is owned by the Ibala Arikoto family. The pleadings and evidence of the parties before the trial court together with the

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Customary Court judgment in Suit No. CV/80/72 bear this out. By Exhibit 3, however, the vendors of the said land are described as representatives of the Arikotowosi family as against the lbala Arikoto family who are the established true owners of the land. Unless, therefore, Ibala Arikoto and Arikotokowosi are one and same family, Exhibit 3 may not be worth the paper on which the alleged conveyance.
On this issue, the respondents averred in their statement of claim that Ibala Arikoto, their family, and the Arikotokowosi did not refer to one and the same family. The 2nd – 5th defendants, in their Statement of Defence, admitted the respondents’ averment in this regard, but the appellant in his own statement of Defence, pleaded that the land was sold to him by the 2nd – 5th defendants who told him –
“that the word ‘Arikoto’ is just an abbreviation of the word Arikotokowosi and he readily believed them.”
It seems to me strange that the appellant “readily believed” the above representation of the 2nd – 5th defendants without any investigations to establish its credibility and in utter disregard of the maxim, caveat emptor. It is even more strange that the learned trial Judge made no finding on this very material issue as the validity and effectiveness of Exhibit 3 depended on whether the vendors therein, that is to say, the Arikotokowosi family were one and the same family as the Ibala Arikoto family who are the undisputed owners of the land. If they were not, then the Arikotokowosi family would be unable to dispose of what did not belong to them. If, however, both referred to the same family, then various

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other issues surrounding Exhibit 3 would necessarily arise. These included whether or not the alleged sale was with the consent and approval of the family. Again, whether or not the sale was void or voidable might also arise as the head of a family must join in a conveyance of family land and the principal members must concur therein otherwise it would be void ab initio. See Agbloe v. Sappor 12 WACA 187. But where the head of a family sold family land without the consent of the principal members, such a sale would not be void but voidable at the instance of those members who did not consent thereto although in appropriate cases laches and estoppel could come into play. See Manko v. Bonso 3 WACA 62 and Ekpendu v. Erika (1959) SCNLR 186; (1959) 4 F.S.C. 79 at 81. However the latter category of sale can only be valid where the head of the family executed such a conveyance for and on behalf of the rightful family which owned the land and not if he purported to sell the property as the beneficial owner thereof or as representing some other vendors or family who had no title to such land. In that case, the principle, nemo dot quod non habet will apply to invalidate such a spurious sale. See Akerele v. Atunrase (supra) at page 208. But as I have observed earlier on, the learned trial Judge was in error when he held that the 2nd – 5th defendants sold the land to the appellant as the accredited representatives of the Ibala Arikoto family. The court below was therefore right to reverse this finding.
It seems to me that from whatever angle one examines the validity or otherwise of the sale in issue, a finding on whether Arikoto and Arikotokowosi referred to one and

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the same family must be regarded as imperative. Regrettably, the learned trial Judge made no finding on the point. The Court of Appeal, in dealing with this material omission on the part of the judgment of the learned trial Judge stated as follows:-
“One other aspect of the submissions made in this appeal relating to the conveyance (Exhibit 3) concerns effectiveness in that the vendors therein acted as accredited representatives of Arikotokowosi family….. ………………………………… Appellants contend that they are Ibala Arikoto
family. Unless Arikotokowosi and Ibala Arikoto areone and the same family. Exhibit 3 would be ineffective to pass Ibala Arikoto’s title in the land in dispute to the respondent……………………..
Significantly, the learned trial Judge made no finding on this rather important issue. Exhibit 2, the judgment in CV/80/72 referred to the family as Ibala Arikoto. Even Exhibit 3, the conveyance, does not speak of Ibala Arikotokowosi but of Arikotokowosi simpliciter. In the absence of any finding that Ibala Arikoto and Arikotokosi are one and the same, I cannot conclude that Exhibit 3 conveyed to the respondent (now appellant) title in the land of Ibala Arikoto family………………..” (Words in brackets supplied)
I agree with the above observations of the Court of Appeal which, in my view, are totally justified having regard to the issues and the evidence before the trial court.
It must however be observed, contrary to the contention of learned counsel for the appellant, that there is, with

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respect, hardly any evidence before the trial court in support of its conclusion on the validity of Exhibit 3. The Court of Appeal was fully justified to reverse the finding of the learned trial Judge to the effect that the land in issue was validly sold to the appellant by the 2nd – 5th defendants. I must, for all the reasons that I have given above, hold that the third question for determination must be answered in the affirmative.
Issue number four for decision arises from ground 7 of the grounds of appeal. This is whether the Court of Appeal could in law use the admission in the Statement of Defence of the 2nd – 5th defendants against the 1st defendant when the said 1st .defendant did not adopt the sold admission.
The first point that must be made is that parties are bound by their pleadings. See National Investment and Properties Co. Ltd v. Thompson Organisation Ltd. (1969) 1 All NLR 138 at 142 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172. Secondly, a fact which is admitted by the defendant in his pleadings need not be proved by the plaintiff, but should be regarded as established at the trial. See Chief Okparaeke v. Obidike Egbuonu (1941) 7 WACA 53 at 55.
The 2nd – 5th defendants by paragraph 1 of their Statement of Defence admitted the respondents’ averment in paragraph 20 of their Statement of Claim to the effect that the said respondents’ family was known as and called Ibala Arikoto family and not Arikotokowosi family. The appellant referred to that portion of the judgment of the Court of Appeal at page 153 lines 5 to 11 of the record of proceedings which states as follows:-

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“In their Statement of Defence, the 2nd to 5th defendants admitted paragraph 20 of the statement of Claim wherein the appellants averred that their family is known as Ibala Arikoto and not Arikotokowosi. Not having sold as accredited representatives of the Ibala Arikoto family, the 1972 transaction cannot validly pass title in Ibala Arikoto family land to the respondent.”
The appellant’s main complaint with regard to the fourth issue is that the Court of Appeal, from the above passage of its judgment, erred in law by using the said admission of the 2nd – 5th defendants against the appellant who did not adopt the same.
It cannot be correct from a close study of the above passage that the admission of the 2nd – 5th defendants in their Statement of Defence was used against the appellant by the Court of Appeal. It has already been stated that an ayerment in the pleadings is not and does not tantamount to evidence and must therefore be proved. See Akinfosile v. Ijose and Muraina Akanmu v. Adigun & Anor. (supra). But where in a civil case, some facts are pleaded by the plaintiff and admitted by a defendant, such admitted facts would require no further proof on the part of the plaintiff in so far as his claims against the defendant who made the admission are concerned. The court, in such a situation, is entitled as a matter of law to accept such facts as established by the plaintiff against the admitting defendant.
In the present case, the 2nd – 5th defendants in their Statement of Defence admitted the respondents, averment in their Statement of Claim that their family is

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the Ibala Ari-Olo and not the Arikotokowosi family. From the state of the pleadings of the respondents, and the 2nd – 5th defendants, it, cannot be disputed that the Court of Appeal was perfectly entitled as a matter of law to accept the admission in issue as fully established by the respondents against the 2nd – 5th defendants. The court below was also entitled to use this admission against the 2nd – 5th defendants. This seems to me to be all that the Court of Appeal did in the above passage of its judgment. That court went further to add and quite rightly in my view, that the said 2nd – 5th defendants not having sold the land as the representatives of the rightful owners, to wit, the Ibala Arikoto family, could not validly pass title in the land to the appellant. I am satisfied that these observations of the Court of Appeal are all issues of law and that that court was fully justified to  make them having.regard to the state of the pleadings before the court. I must accordingly resolve the fourth issue against the appellant.
It is now necessary to return to the first issue and to determine whether the erroneous application of the doctrine of lis pendens suo motu by the Court of Appeal under circumstances I have mentioned occasioned any miscarriage of justice in the appeal. In this regard, it must be emphasized that it is not every error of law that is committed by a trial or appellate court that justifies the reversal of a judgment. An appellant to secure the reversal of a judgment, must further establish that the error of law complained of did in fact occasioned a miscarriage of justice and/or substantially affected the result of the decision. See Olubode v. Salami (1985) 2 NWLR (Pt.7) 282. An error in law which has occasioned

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no miscarriage of justice is immaterial and may not affect the final decision of a court. This is because what an Appeal Court has to decide is whether the decision of the trial Judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial. See Ukejianya v. Uchendu 13 WACA 45 at 46; Chief Oje and others v. Chief Babalola and Others(1991) 4 NWLR (Pt.185) 267 and Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539 at 556. See too Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156 at 163 and Gwanto v. State (1983) 1 SCNLR 142 at 152.
I have given this matter a most careful consideration and have come to the conclusion that the said error in law complained of did not occasion any miscarriage of justice. In the first place, the 2nd – 5th defendants who purportedly sold the land in issue to the appellant had no right whatsoever and were not entitled or authorised to dispose of their family land. In the second place, the said 2nd – 5th defendants purported to sell the property to the appellant not as the accredited representatives of the true owners, the Ibala Arikoto family, but as representing the Arikotokowosi family which had no interest whatever over the land in issue. In these circumstances, it seems to me clear that the erroneous application of the doctrine of lis pendens notwithstanding, there was no other course that was open to the court below in the appeal than to invalidate the sale in issue and to dismiss  the appeal before it.
In the final result, I find no substance in any of the points urged on behalf of the appellant in this court to justify a reversal of the decision of the court below.

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Consequently, this appeal fails and it is accordingly dismissed with N1,000.00 costs against the appellant in favour of the respondents.