Perfection has never defined courts of law. But because our courts are designed to be courts of justice, every court is expected to demonstrate a genuine sense of justice. To do this, a court of law must show critical thinking in its dissection of complex legal issues, properly evaluate evidence, command logical precision, and hand down decisions that are rational, justifiable, and consistent. With the greatest respect, a recent judgment of the Court of Appeal, Lagos Division, in a property law case, in my opinion, could have benefitted greatly from these virtues. This was in the case of Starcomms Plc v. Unity Bank Plc (CA/L/CV/1429/2019) decided on 23 March 2026. Hon. Justice Onwosi, JCA read the Leading Judgment, and Hon. Justice Awotoye, JCA concurred without having anything to add. The majority on the bench in this case seems to have, in effect, rewarded dishonesty, deceit and fraudulent action. True to his conscience, and commendably so, Hon. Justice Abang declined to be part of it. I proceed below to demonstrate why this anomalous decision by the majority is too much to ignore.
Facts
A former military officer, Lt. General Salihu Ibrahim (now deceased), owned a property located at Plot 1261D Bishop Kale Close, off Saka Tinubu Street, Victoria Island, Lagos State (“the Property”). In 1999, he sold the property to Starcomms Plc for N20 million via a Deed of Assignment duly registered at the Federal Lands Registry. This was following Lt. Gen. Ibrahim’s representation to Starcomms that the Property was covered by a Deed of Lease dated 26 July 1993 issued to him by the Federal Government of Nigeria. After the sale, Starcomms was let into possession. The company redeveloped the Property for its business purposes and has been in actual and exclusive possession of the Property since 1999.
In 2003, four years after selling the Property to Starcomms, Lt. Gen. Ibrahim used the same Property to secure a loan advanced by Unity Bank Plc to his company, Building Development and Construction Ltd. A Tripartite Deed of Legal Mortgage was executed in favour of Unity Bank by Lt. Gen. Ibrahim and his company, and registered at the Lagos State Lands Registry. For this transaction, Lt. Gen. Ibrahim represented to the Bank that the Property was covered by a Certificate of Occupancy issued to him by the Lagos State Government in 1991. It was this second sale that dug the foundation for the trouble that subsequently ensued.
It happened that sometime in 2009, Unity Bank sent notices to Starcomms to vacate the Property. Starcomms took no chances, as it commenced an action against Unity Bank (as 1st Defendant), Lt. Gen. Ibrahim (as 2nd Defendant) and Building Development and Construction Ltd. (as 3rd Defendant) at the High Court of Lagos State. Starcomms sought declaration of its rights to the Property, injunctive reliefs, and damages against the Defendants. Unity Bank filed its defence and also a counterclaim against Starcomms, Lt. Gen. Ibrahim and his company. The Bank sought declaration upholding its alleged right to the Property based on the Tripartite Legal Mortgage, declaration invalidating Starcomms’s title documents with respect to the Property, and an order compelling Lt. Gen. Ibrahim and his company to repay the Bank the sum of over N1.2 billion.
As if acknowledging the huge crisis they had orchestrated, Lt. Gen. Ibrahim and his company did not file any defence.
In an astonishing Judgment, the trial Court held that the interest conveyed by the grantor, Lt. Gen. Ibrahim, to the Bank overrides the interest conveyed by the same grantor to Starcomms.
Aggrieved with the decision, Starcomms (now under receiveship) appealed to the Court of Appeal, Lagos Division.
Court of Appeal’s Decision
The Court of Appeal dismissed the appeal on a majority of 2 to 1. This was on the basis that Starcomms purchased the Property based on an invalid root of title. In the Leading Judgment, Onwosi, JCA explained:
So, at the time the Vendor [Lt. Gen. Ibrahim] and the Appellant [Starcomms] made the agreement [Deed of Assignment] with which the property was conveyed to the Appellant, it was on the premise that the root of title of the Vendor is from the Federal Government [as per the Deed of Lease of 1993]; notwithstanding that the main and correct root of title of the Vendor is from the Lagos State Government [the Certificate of Occupancy of 1991]. The Vendor was very much aware of this fact, but he however concealed it from the Appellant; and that may be why in his later mortgage with the Respondent [Unity Bank] in respect of the said land, he presented his correct root of title as from Lagos State Government, and therein presented the Certificate of Occupancy issued to him by the Lagos State Government in 1991. (At p. 24)
Other reasons furnished for dismissing the appeal was that Starcomms failed to conduct due diligence over the Property, and that the principle of priority of interest does not apply in favour of Starcomms.
A Critique of the Court of Appeal’s Decision
Lt. Gen. Ibrahim’s Ownership of the Property was never in issue
With due respect, the Court of Appeal plunged itself into error when it diverted its focus to Lt. Gen. Ibrahim’s root of title even when his ownership of the Property was not in issue. Since both parties acknowledged that Lt. Gen. Ibrahim was the owner of the Property in dispute, the focus of the Court of Appeal ought to have been to determine who between Starcomms and Unity Bank had a better title.
In his dissenting opinion, Abang, JCA lucidly explained the trial Court’s error which infected the the majority Judgment:
The Grantor’s ownership of the property was not in issue before the trial court. However, the real issue or question that will serve the justice of this case eternally was in my view, who as between the Appellant [Starcomms] and the Respondent [Unity Bank] had better title to the Property both having derived their title from the same Grantor regardless of the title document or the source of the title document upon which the Grantor had transferred or purported to have transferred his title in the Property. (At p. 6-7)
The situation would have been different if it had been two entirely separate persons who dealt with Starcomms and Unity Bank respectively over the same property. In that case, the Court would have proceeded on a mission to determine the true root of title so as to know the real owner.
Also, as rightly pointed out by Abang, JCA, neither the Federal Government nor the Lagos State Government was a party in the suit. The trial Court lacked the competence to make findings affecting the interest of the Federal Government when it was not made a party in the suit and had no opportunity to be heard.
Unity Bank failed to conduct Due Diligence
The Court of Appeal chastised Starcomms for not conducting proper due diligence. This criticism is particularly interesting when one considers the uncontroverted fact that following the sale of the Property to Starcomms, the company took possession and redeveloped the Property for its use, and has been in full possession since 1999.
From the evidence, Unity Bank failed to conduct physical due diligence to verify the identity of the person in possession of the Property at the time Lt. Gen. Ibrahim offered it to the Bank as security for the mortgage. Apparently, the Bank must have been satisfied with the title documents presented by Lt. Gen. Ibrahim in his capacity as a high-ranking military officer. A physical inspection of the Property and proper inquiries would have revealed to the Bank that it was Starcomms that was in possession and crucially the company’s legal basis for being there. But as Abang, JCA observed in his dissenting opinion, the Bank was clearly careless, negligent, and nonchalant. All it seemed to have cared about was the registration of the mortgage deed at the Lagos Lands Registry while neglecting the principle that registration does not cure the disease of title defect.
Misapplication of the Principle of Priority of Interest
The principle of priority of interest holds that where there are competing rights over a property purchased from a common vendor, the first in time prevails. See Adetoun Alawiye v. Minister, FCT. [2026] 3 NWLR (Pt. 2030) 71 Starcomms relied on this principle in its arguments in Court.
The Court of Appeal however disagreed. The Court held that the principle of priority of interest does not apply because the property conveyed by Lt. Gen. Ibrahim to Starcomms is different from the one he conveyed to Unity Bank. Onwosi, JCA’s reason for this unsupportable conclusion was that in the transaction with Starcomms, Lt. Gen. Ibrahim claimed that his root of title over the Property was the Deed of Lease with the Federal Government. On the other hand, regarding the transaction with Unity Bank, Lt. Gen. Ibrahim represented that his root of title was a Certificate of Occupancy issued by the Lagos State Government. Therefore, notwithstanding that the factual and physical existence of the Property points to the exact same location, Onwosi, JCA said the property was different. Hear him:
Therefore, from which angle one sees it, and no matter how similar or closely related they are; the property the Vendor [Lt. Gen. Ibrahim] conveyed to the Respondent [Unity Bank] is never one and the same, with the one he also allegedly conveyed to the Appellant [Starcomms]. (At p. 27)
The second reason the Court of Appeal refused to apply the principle of priority of interest was due to a discrepancy in the property measurements as contained in the respective title documents presented by Starcomms and Unity Bank. In Starcomm’s Deed of Assignment, the Property was described as measuring 1237.42 sqm; whereas in Unity Bank’s Tripartite Legal Mortgage, the measurement was stated as 1135.72 sqm. Heavily relying on the case of Istifanus v. Ismailu (2019) LPELR-47043(CA), Onwosi, JCA said:
The measurement of the land claimed by the parties are different. Thus, the doctrine of priority of interest will also not apply where the title documents have different measurements regardless of the fact that the original owner of the land is the same person in both transactions as equities in this case will not be equal. (At p. 27)
Interestingly, the facts of Istifanus v. Ismailu and the instant case are not at all the same. In Istifanus v. Ismailu, the Appellant (Istifanus) claimed to have bought a disputed property measuring 50 by 100 ft from one Ayuba Vande Jonathan (who bought from Thomas Gbampo). The Respondent (Ismailu), on the other hand, claimed to have bought the property measuring 100 by 50 ft from one Eunice D. Ambikpu (who had bought from one Mohammed Efon). Mohammed Efon claimed to have bought the property in two ways: 1) he claimed to have bought 100 by 12 ft from one Matthew Thomas (the son of Thomas Gbampo) in 2012, and that he had earlier bought 100 by 38 ft from Thomas Gbampo in 2009. Mohammed Efon claimed to have merged the two to make a total of 100 by 50 ft before selling to Eunice D. Ambikpu. The Respondent (Ismailu) argued that the 100 by 38 ft earlier purchased in 2009 by her predecessor-in-title, Mohammed Efon, was first in time based on priority of interest, notwithstanding that it was allegedly subsequently merged with the 100 by 12 ft purportedly purchased in 2012. The Court of Appeal in that case disagreed with the Respondent and refused to apply this principle of priority of interest. The Court believed the case of the Appellant in holding that the equities were not equal. The Court also expressly took note of the different vendors from whom the Respondent’s predecessor-in-title, Mohammed Efon, claimed to have purchased the disputed property.
Clearly, the complicated facts of the case of Istifanus v. Ismailu has no relationship with the straightforward facts of the instant case of Starcomms v. Unity Bank where both parties directly dealt on the same property at the different intervals with the same seller—Lt. Gen. Ibrahim. Istifanus v. Ismailu was never decided based on any discrepancy in property measurement as Onwosi, JCA tried to make us believe. Therefore, a wholesome reliance by the majority of the Court of Appeal on the case of Istifanus v. Ismailu in addressing the issue of priority of interest in the instant case was unforgivably faulty.
Notwithstanding the discrepancy in the measurement as described in the two separate title documents, the identity of the Property was never in dispute. Both parties acknowledged that the disputed Property is one and the same and that it belonged to the same person.
The reality of property surveying is that two different surveys of the same piece of land are capable of producing slightly different results in measurements. Therefore, the Court of Appeal erred in making too much out of the apparent discrepancies in the measurements. The Court neglected the fact that the identity of the Property had already been established by the Court and that the owner was also confirmed to be Lt. Gen. Ibrahim. Also, the Court ignored the compelling fact that Starcomms was the first to purchase the Property. There was nothing preventing the Court from applying the principle of priority of interest in favour of Starcomms.
Rewarding Dishonesty, Deceit, and Fraud
In the Leading Judgment, Onwosi, JCA remarked:
Where a contract or agreement is rooted in deceit, misrepresentation or illegality, it must not be pleaded, and where pleaded it will not be enforced by court of law. (At p. 26)
In the contemplation of his Lordship, it was Starcomms who was the victim of deceit, misrepresentation or illegality and as such, Starcomms has no right to be enforced against Unity Bank. With due respect, his Lordship misapplied the above correct principle of law. The actual deceit, misrepresentation or illegality was, in my view, the one performed on Unity Bank by Lt. Gen. Ibrahim and not the other way round. Apparently, Lt. Gen. Ibrahim knowingly sold his property to Starcomms in 1999 only to turn around in 2003 to execute a mortgage in favour of Unity Bank.
Curiously, Onwosi, JCA made the right pronouncement earlier in the Judgment only to go off track subsequently by tying himself to the needless root-of-title conversation. At page 22 of the Judgment, Onwosi, JCA stated:
The issue that will quickly come to mind is, can the Vendor, Lt. General Salihu Ibrahim, who has sold the above property to the Appellant via Exhibit B3 in 1999 and divested himself of the title in the said property, subsequently create a tripartite legal mortgage in respect of the said property for the Respondent via Exhibit D1 as a collateral for the loan advanced by the Respondent to Building Development and Construction Company Ltd (the 3rd Defendant at the Trial Court). The answer is in the negative. The principle is anchored in the long-aged Latin maxim “nemo dat quod non habet.”
In his dissenting Judgment, Abang, JCA was of the opinion—and rightly so—that Starcomms’ appeal ought to be allowed. Anything other than that tantamount to rewarding “dishonesty, deceit and the fraudulent action” of Lt. Gen. Ibrahim. Hear his Lordship:
With all due respect to my Learned brother who considered this leading Judgment in this matter in dismissing the appeal only rewarded the fraudulent conduct of the grantor, a retired military officer in conveying the disputed property to the Appellant in 1999 and later in 4 years time pledged the same property to the Respondent to obtain a loan. (At pp. 1, 27)
The Implication of Unity Bank’s Counterclaim against Lt. Gen. Ibrahim and his Company
It is also important to note that in its counterclaim at the trial Court, Unity Bank had also claimed over N1.2 billion plus interest against Lt. Gen. Ibrahim and his company, Building Development and Construction Ltd, being the alleged outstanding debt at the time, based on the Tripartite Deed of Legal Mortgage. This claim was sufficient for the trial Court and the Court of Appeal to see where Unity Bank’s remedy truly lies. The Bank’s remedy does not lie in the Property earlier sold to Starcomms. Rather, it lies in the recovery of the unpaid loan which should never involve an attempt to enforce the mortgage to realise the purported security.
Conclusion
This case is another example of a case where the court correctly states all applicable principles but proceeds on a voyage of misapplication of these principles to arrive at a wrong destination. Secondly, the case illustrates an instance where a court neglects the real issue before it and ventures into the resolution of a strange issue which has no bearing on the case before it.
It is my respectful view that the Leading Judgment in this case will go down on the wrong side of history of real property law. On no account should the court appear to be used as an instrument to authenticate fraudulent dealings. By upholding the claims of Unity Bank in this case, the Court of Appeal did not only appear to place such a seal of authentication, it also moved to reward careless, negligent, and nonchalant conduct in real property transactions.
