M. A. JOLUGBO & ANOR v. MRS O. A. AINA & ANOR
(2016)LCN/8449(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2016
CA/L/362/14
RATIO
WORDS AND PHRASES: MEANING OF TRUST
In its legal sense, a trust, has been defined as an equitable obligation, binding a person (a trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries or cestuis que trust), of whom he may himself be one, and any one of whom may enforce same – see Underhill’s Law of Trusts and Trustees 13th Ed. Other legal writers have defined it as a certain kind of right that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has in the trust property, thus looking at it from the point of view of the beneficiary. However, the most satisfactory definition is that of Professor Keeton in Law of Trust 9th Ed. Thus –
“A trust – – is the relationship which arises wherever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee but, to the beneficiaries or other object of the trust.”
In other words, the trustees are the legal owners of the trust property but they are obliged to hold the property for the benefit of one or more individuals or organizations, usually specified by the settlor. The trustees, therefore, owe a fiduciary duty to the beneficiaries, who are the “beneficial” owners of the trust property. The significant feature of the trust is its separation of the legal ownership of the trust property from its equitable or beneficial ownership. PER AMINA ADAMU AUGIE, J.C.A.
TRUST: CLASSIFICATIONS OF TRUST
There are different classifications of trusts-Express Trusts, Implied or Resulting Trusts, and Constructive Trusts. Express Trusts arise when the owner declares himself a trustee of the property for the benefit of another person or vests property in another person as trustee for the benefit of another person. Implied or Resulting Trusts arise from the presumed intention of the owner; the presumed intention arises by operation of law not by agreement of parties. Constructive Trusts are trusts imposed by equity regardless of the intention of the owner of the property, where it will be unconscionable for the “apparent beneficial owner” or trustee to hold the property for his own benefit. see Equity and Trust in Nigeria. 2nd Ed., by J. O. Fabunmi. PER AMINA ADAMU AUGIE, J.C.A.
TRUST: CIRCUMSTANCES IMPLIED OR RESULTING TRUST MAY ARISE
We are concerned with implied or resulting trusts, which may arise in the following circumstances –
(i) Where an express trusts fails.
(ii) Where the beneficial interest under on express trust is not fully disposed of or exhausted.
(iii) Where there is a purchase in the name of another or where a person makes a voluntary conveyance of his property to another. PER AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; WHAT CONSTITUTES EVALUATION OF EVIDENCE
It is settled that the evaluation of evidence by a Court, involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must something on record to show why the Court preferred one piece of evidence to the other – see Oyekola V. Ajibade (2004) 17 NWLR (Pt.902) 356. PER AMINA ADAMU AUGIE, J.C.A.
EVIDENCE: BURDEN OF PROOF; STANDARD OF PROOF IN CIVIL MATTERS
Civil matters are decided on the balance of probabilities; it is not enough for the Party, who has to establish a particular fact, to say that his evidence is just as good as that of his opponent, he must provide the Court with evidence, which convinces the Court, of the probability of his case rather than that of his opponent on the point in issue. PER AMINA ADAMU AUGIE, J.C.A.
TRUST: NATURE OF CONSTRUCTIVE TRUST
The two main categories of informal trusts are ‘resulting trusts’ and ‘constructive trusts’. Constructive trusts are imposed by the Court as a consequence of the conduct of the party who becomes a trustee while resulting trusts are not imposed as a response to the conduct of the trustee, but to give effect to the implied intentions of the owner. See WESTDEUTSCHE LANDESBANK GIROZEN – TRALE V, ISLINGTON LONDON BOROUGH COUNCIL (1996) AC 669: UDENSI V. MOGBO (1976) 7 SC 1: IBEKWE V NWOSU (2011) 9 NWLR (PT.1251) 1. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. M. A. JOLUGBO
2. OLAYINKA AINA Appellant(s)
AND
1. MRS O. A. AINA
2. LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION [L.S.D.P.C.] Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The consolidated action that culminated in this Appeal started as a simple case of recovery of possession, and snowballed into a tug of war between a married but estranged couple as to who owned the property – a three bedroom flat at Flat 5, Block A78, Phase 4, LSDPC Low Cost Housing Estate, Anikantamo, Lagos. The husband, the 2nd Appellant, moved out of the matrimonial home in 1990, and sold the property to the 1st Appellant in 1991. The 1st Appellant perfected his title and was recognized by the 2nd Respondent [LSDPC] as the new owner.
The wife, who is the 1st Respondent, let the property to one Mr. Ferreira, and collected 4 years rent from him after she moved out of the house in 1990. He was in possession when the sale between the two Appellants was effected. It was an attempt to gain vacant possession from the said Mr. Ferreira that led to Suit NO.LD/3275/94 filed by the 1st Appellant at the Lagos State High Court wherein he claimed to be owner of the property through the purchase from the 2nd Appellant and backed by title documents issued by the 2nd Respondent.
The 1st Respondent applied to be made a party in Suit NO.LD/3275/94, and she was joined as 2nd Defendant on 2/6/1995. She later applied to have the 2nd Appellant, who sold the flat to the Claimant, joined as the 2nd Claimant. Mr. Ferreira as 1st Defendant was struck out as a Party on 18/9/2001 because he was no more relevant as his lease expired and he had vacated the property. Processes were amended and further amended in said Suit NO.LD/3276/94. While this was on, the wife [1st Respondent] filed Suit NO.LD/769/97 – that was pending before another Judge against her husband [2nd Appellant], Mr. Jolugbo [1st Appellant] and LSDPC [2nd Respondent] wherein she claimed as follows –
1) A Declaration that the circumstances of the purchase of Flat 5 Block A 78 Dolphin Anikantamo Low Cost Housing Scheme the subject matter of this Suit gives rise to the relationship of trustee and beneficiary with the attendant duties and obligations between the 1st Defendant and the 1st Plaintiff respectively.
2) A Declaration that the purported sale of the premises, the subject Matter of this Suit by the 1st Defendant to the 2nd Defendant is a Breach of the trust and the
judiciary duty owed to the Plaintiff by the 1st Defendant for which the Plaintiff is entitled to the remedy of restitution,
3) A Declaration that the title of the 1st Defendant, if any at all, is defective and therefore the Defendant cannot obtain a better title from the 1st Defendant.
4) An Order of this Honourable Court setting aside the purported sale of the property by the 1st Defendant to the 2nd Defendant.
5) An Order of this Honouroble Court nullifying the purported consent given by the 3rd Defendant LSDPC to the voidable sale of the said property by the 1st Defendant to the 2nd Defendant.
6) An Order of this Honourable Court directing the 3rd Defendant to expunge from its record the purported sale of the said property.
7) An Order of this Honourable Court in exercise of its inherent and equitable jurisdiction compelling the 1st Defendant to execute the documents of transfer of title of the property from the 1st Defendant to the Plaintiff which documents are now prepared by the Plaintiff’s Solicitors and are ready for execution.
8) An order of perpetual injunction restraining the 1st and 2nd Defendants, their Servants,
Agents and Privies from trespassing or in any other way interfering with the Plaintiff’s peaceful possession and occupation of the said property.
9) General Damages in the sum of N 250,000 against the 1st Defendant for breach of trust.
10) Damages in the sum of N250,000 against the Defendants jointly and severally for the agony, trauma and embarrassment suffered by the Plaintiff as a result of the unlawful and unauthorized sale of the Plaintiffs property.
11) Special damages in the sum of N100,000 against the 1st and 2nd Defendants jointly and severally being the cost of this action.
The Appellants filed a joint Statement of Defence of 1st and 2nd Defendants and Counter-Claim in the second Suit, wherein they counter-claimed as follows –
1. The 1st and 2nd Defendants affirm the Governments contained in paragraphs 1-31 of the Statement of Defence,
2. A Mandatory Injunction compelling the Plaintiff to release all documents and keys in connection with the property known as Flat 5, Block A78, LSDPC Housing Estate, Phase 4, Anikantamo, Dolphin, Lagos, to the 2nd Defendant forthwith, being the new owner in respect thereof.
3. An
Order for Account of the rents collected so far by the plaintiff in respect of the property in dispute from April 1990 to date and the payment of such money to the 2nd Defendant.
4. Damages in the sum of N200,000.00 against the Plaintiff in favour of the 1st and 2nd Defendants for the agony, trauma and the embarrassment suffered by them as a result of the Plaintiff’s claim.
5. Special Damages in the sum of N50,000.00 against the Plaintiff being the cost of this action,
6. An Order of Perpetual injunction restraining the Plaintiff, her agents, privies or nominees from further act of trespass in respect of the property situate in and known as Flat 5, Block A78, LSDPC L/C Housing.
?
Suit No. LD/3276 and Suit No.LD/769/97 were subsequently consolidated, and the trial commenced before Hon. Justice D. F. Akinsanya, J., on 4/11/1999.
The 1st Appellant testified as PW1, and he tendered the following Exhibits –
1. Exhibit A – Letter of allocation of flat in Dolphin Scheme to the 2nd Appellant
2. Exhibit B – Deed of Assignment from 2nd Appellant to 1st Appellant
3. Exhibit C – Power of Attorney
4. Exhibit D – Letter dated
25/3/92 from LSDPC to the 1st Appellant – on change of ownership of Flat 5, Block A78, Anikantomo
5. Exhibit E – Letter of Instruction dated 19/4/94 from the 1st Appellant to his lawyer
6. Exhibit F – Quit Notice doted 22/4/94
The 1st Appellant called the 2nd Appellant, who testified as PW2, and tendered –
1. Exhibit G – Copy of the 2nd Appellant’s employer’s letter
2. Exhibit H – Response of Lagos Building Investment Corporation [LBIC] to Exhibit G
3. Exhibit J – LBIC offer of advance to 2nd Appellant [PW2]
4. Exhibit K – Acceptance of the advance by 1st appellant [PW2]
5. Exhibit L – Letter of repayment
6 Exhibit M – Mortgage passbook
7. Exhibit N – Savings Account No.12991
8. Exhibit O – LBIC response to 2nd Appellant [PW2]’s request for title documents
9. Exhibit P ? 2nd Appellant [PW2]’s letter to his Estate Agent, Jide Taiwo Estate Agents
10. Exhibit Q ? 2nd Appellant [PW2]’s letter dated 19/12/91 notifying LSDPC of the change of ownership of the property
11. Exhibit R – LSDPCS Response to Exhibit Q
12. Exhibits S & S1 – Documents evidencing payments made by 2nd
Appellant to LSDPC
On her part, the 1st Respondent testified as DW1; she tendered the following –
1. Exhibits T & T1- LBIC Saving Account and LBIC Mortgage Passbook respectively
2. Exhibit Y -Yellow Guarantee Form
3. Exhibit V – LSDPC original receipt for deposit for N1,000.00
4. Exhibit W – Allocation letter by LSDPC
5. Exhibit X – Insurance Cover on the flat
6. Exhibits Y to Y7 – Receipts issued in the name of the 1st Respondent [DW1]
7. Exhibits Z & Z1 – Memos dated 10/10/89 and 12/4/90 from Mortgage Accounts Dept. of LBIC respectively
8. Exhibits AA to AA15 – Receipts for expenses on renovation and household articles
9. Exhibit BB – Letter from 1st Respondent [DW1]’s Solicitor to Appellant’s counsel
10. Exhibit CC – letter from 1st Respondent [DW1]’s solicitor to LBIC
11. Exhibit DD – “Letter to Mr. Ojogbede 10/8/92 – Mr. E. O. Ferreira”
12. Exhibit EE – Quit Notice issued by Ugochukwu Ukwondu to Mr. Ferreira
13. Exhibit FF – Letter from Mr. Ferreira to the 1st Respondent [DW1]
14. Exhibit GG – Quit Notice from Appellants’ counsel to Mr. Ferreira dated 2/5/94.
The 1st
Respondent called their daughter, Ms. Oyindamola Aina, as her DW2.
The 2nd Respondent, who was the 3rd Defendant, opted not to call Witnesses.
At the close of trial, counsel submitted and adopted their Written Addresses, and in his Judgment delivered on 19/11/2004. Akinsanya, J. held as follows –
?Having considered the evidence of the 1st Defence Witness and 2nd Defence Witness, and perceived the conduct of the 2nd Claimant in attempting to sell the flat above the head of his entire family is to say the least on unconscionable Act. The 2nd Defendant has had to carry the responsibility of a single parent even though the 2nd Plaintiffs Witness is alive. Viewed against this back ground and the documents tendered coupled with the submission of the Counsel, I am inclined by the weight of evidence proffered by the 2nd Defendant to accept her evidence as credible, I do, therefore, hold that a trust ensues for the benefit of the 1st Defendant, who from all the circumstances of the matter is the beneficiary of that trust and consequently the owner of the flat even though the documents are in the name of the 2nd Claimant, Mr. Olayinka Aina.
Consequent to this finding, the 2nd Claimant is not competent to pass title to the 1st Claimant while that trust existed. I therefore grant to the 2nd Defendant (Mrs. Aina) those declaratory reliefs endorsed in paragraph 23 of her statement of Claim in Suit No. LD/769/97 item Nos. 1, 2, 3, 4, 5, 6, 7 and 8 thereof, Claims 9, 10 and 11 are refused. The Claims of the Claimants in Suit NO. LD/3276/94 are refused and therefore dismissed, Cost to the Plaintiff in LD/769/97 in the Consolidated Suits is N20,000 against the 2nd Claimant”.
The Appellants’ original appeal to this Court was struck out on 17/6/2010 for failure to obtain teave, however, by an Order of this Court dated 8/11/2013, they were granted an extension of time to file a Notice and Grounds of Appeal, and the Notice of Appeal so filed contains 4 Grounds of Appeal. They distilled 3 issues for Determination in their Brief settled by Oladele Ojogbede, Esq. i.e. –
1. Whether from the evidence before the learned trial judge, a Resultant or Implied Trust can be implied to exist in favour of the 1st Respondent, who produced no evidence of title against a preponderance of evidence in favour of the 2nd
Appellant, produced before the trial Court.
2. Whether the 2nd Appellant had authority/power to pass title to the 1st Appellant.
3. Whether the trial judge properly discharged his duty to evaluate evidence in the case before arriving at the conclusion that he is inclined by the weight of evidence proffered by the 1st Respondent to accept her evidence as credible.
The 1st Respondent submitted in his Brief settled by Chief A. A. Aribisala (SAN) and Sunday Adara, Esq., that the 3 Issues for Determination are as follows –
(1) Whether in the circumstances of this case, and from the evidence before the trial Court, the learned trial judge was right to conclude that a Resultant or Implied Trust exists in favour of the 1st Respondent.
(2) Whether in the circumstances of this case title over the subject matter of this Appeal was duly passed from the 2nd?Appellant to the 1st Appellant.
(3) Whether from the totality of evidence adduced by the Parties to the Suit, the learned trial Judge was right to be inclined by the weight of evidence proffered by the 1st Respondent to accept her evidence as credible.
?The 2nd Respondent is represented
by counsel; but filed no brief of argument.
In my view, the issues formulated by the Appellants and 1st Respondent, may be couched slightly differently, but they target the same complaints raised by the Appellants in their Grounds of Appeal, and raise the same questions – whether the Lower Court was right to hold that a trust ensues for the benefit of the 1st Respondent; whether it was right to conclude that 2nd Appellant is not competent to pass title to 1st Appellant while that trust existed; and whether it was right to be inclined by the weight of evidence proffered by 1st Respondent.
The Appellants’ stand on Issue 1 is that a defence of resultant trust for which 1st Respondent has not adduced any credible evidence cannot avail her in the face of a preponderance of evidence of title, which they have adduced.
They submitted that though a Court may infer a resultant or implied trust from presumed but unexpressed intention of Parties, there must be some circumstances from which it can infer an intention to transfer title, citing Ezennah v. Atta (2004) 17 WRN 7 SC,; that there are no circumstances demonstrating an unexpressed but presumed
intention on 2nd Appellant’s part to transfer the property to 1st Respondent on trust; that she only relied on oral evidence against a preponderance of documentary evidence of title produced by 2nd Appellant, citing Madu v. Madu (2008) 2-3 SC (Pt.11) 109; and that –
“All documents of title such as Exhibits ‘A’ and ‘W’ are in the name of the 2nd Appellant – – Exhibits ‘V’ and ‘X’ are in the name of the 2nd Appellant – – Other documents evidencing a relationship with the issuing authority and LBIC are in the name of the 2nd Appellant, and they include Exhibits ‘G’, ‘H’, ‘Q’, ‘R’, ‘O’, ‘S’?and ‘S1’. Even the keys to the property – – were collected by 2nd Appellant, the proof of that fact was evidenced by Exhibit ‘L’, which is in his name and duly signed by him”.
They added, citing Fagbenro V. Arobadi (2006) 19 WRN 1 SC, Agbareh V. Mimra (2008) 1 SC (Pt.III) 88 and Madu V. Madu (supra) that no oral evidence is admissible to add to or subtract from or vary contents of a document.
They also cited Ojoh V. Kamalu (2006) 6 WRN 110 SC, on the five ways to prove ownership of land, and submitted that the 2nd Appellant adduced documents of title, but there
is not a single document of title in her name, that if there is unexpressed but assumed intention to create a resultant or implied trust, there should be some circumstances that would raise such inference in no uncertain terms, further citing Madu V. Madu (supra).
They further submitted as follows at page 9-10 of their Brief of Argument-
“The Defence of Resultant or Implied Trust can only avail a party who raises it, where there is no evidence to rebut it – Ughutevbe v. Shonowo (2004) 32 WRN 27 SC — The 1st Respondent, who claimed that [it] operated in her favour, did not produce evidence that could raise inference of the existence of such a trust – Ogboru V. S.P.D.C. (2005) 26 WRN 128 CA – – For [her] to successfully rely on [it] she would have had to adduce credible evidence – which she failed to do, relying only on bare oral assertions – – Conversely, the 2nd Appellant adduced a preponderance of evidence of title and other documentary evidence in proof of his claim – Agbareh V. Mimra (supra). We urge the Court to hold in favour of 2nd Appellant, who produced a preponderance of documentary evidence – – “.
?The 1st Respondent also referred to
Ezennah v. Atta cited as (2004) 7 NWLR (Pt.873) 468, on the definition of a resultant trust. She submitted that she established the circumstances that gave rise to the presumption in her favour. She conceded the property was purchased in 2nd Appellant’s name as shown by Exhibits ‘W’ and ‘V’, but insists that she paid the deposit sum of N1,200.00.
She referred to her testimony at page 117-118 of the Record, and argued that-
“The outstanding balance on the mortgage was paid by her [and] Exhibits “Y” & “Y7” duly attest to this fact – – The mortgage facility granted by LBIC was guaranteed by [her] father – even though 2nd Appellant’s father was alive and well at the time – – [admitted by 2nd Appellant under cross examination]. Apart from the payment of the initial deposit sum of N1,000.00, which she gave him, 2nd Appellant did not play any further role in acquisition, renovation, management or repayment of the mortgage loan on the property except the sum of N1,000.00, which he surreptitiously paid into the account in 1990 to pave way for his fraudulent sale of the house in 1991 – –
[She was the one], who bore all
responsibility towards the property including –
i. Advancing the initial deposit sum;
ii. Opening the mortgage account (Exhibit T);
iii. Opening the mortgage savings account (Exhibit T1)
iv. Servicing/payment of the mortgage loan;
v. Pursuing o reconciliation of the mortgage account; she wrote to LBIC for reconciliation of the account to which LBIC responded with Reconciliation of accounts [memos admitted as Exhibits ‘Z’ and ‘Z1]
vi. After the collection of the key to the property, [she] single-handedly renovated the that before [they] moved into some, by providing the money for purchase of the materials as evidenced by Exhibits “AA” –
“AA15″ that were duly issued in her name”.
?She further argued that the relationship between them is one of trusteeship; that the circumstances of the purchase constituted the 2nd Appellant, a trustee of the property on her behalf; that a resulting trust arises whenever the law deems it fit to infer a trust from the circumstances; and that there is usually no expressed intention but the law ascribes a legal intention to make a presumed owner hold the property on trust, which can arise where
two or more persons supply the purchase price, and the document relating to the sale is taken out in the name of one or more, the holder(s) is presumed to hold the property on trust for himself and the other persons, who supplied the purchase money, and referred us to the 1788 case of Dyer vs. Dyer 30 E.R. 42 or (1788) 2 Cox 92.
She further submitted that where the legal title to property is in one person and the equitable right to the self-same property is in another person, a Court of equity will infer an implied trust from unexpressed but presumed intention of the settler; that the legal title of the flat, though resided in the 2nd Appellant by reason of allocation documents issued in his name, the equitable interest vests on her, who provided the purchase and other collateral money thereby constituting him, an implied ( constructive) trustee holding the legal estate of the flat in her favour, citing Anyaegbunam V. Osaka (1993) 5 NWLR (Pt.294) 449, where this Court relied on the English case of Hussey vs. Palmer (1972) 3 All ER 744 at 747 where Lord Denning M.R held thus:
“Although the Plaintiff alleged that there was a resulting trust, I
should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust; but this is more a matter of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the Defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or shore in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require”. Kotoye V. Saraki (1994) 7 NWLR (Pt.357) 474 and Ezeanah v. Attah (supra), also cited]
?She further argued that the 2nd Appellant admitted that he never financed the repayment of the mortgage facility; that when his evidence is placed side by side with her evidence, the reasonable conclusion would be that although the Allocation document reflects that the 2nd Appellant was the allottee of the flat, there was a silent and unexpressed intention to the effect that she, who gave out the money paid and discharged the
mortgage, was beneficiary of the trust and that contrary to the Appellants’ contention, the pieces of evidence that she proffered under cross-examination, reinforced her evidence in chief of the resulting trust created by her advancement of the purchase money for the flats and that the Lower Court was, therefore, right to conclude that she had, indeed, established the existence of an implied or resultant trust in her favour.
The Appellants filed a Reply Brief in which they offered, more or less, the same arguments as in their brief, which is not the function of a reply brief – see Longe v. F.B.N. Plc. (2010) 6 NWLR (Pt.1189) 1, where Adekeye, JSC, said –
?- – A reply brief – – should be limited to answering new points arising from the Respondent?s brief. Although an Appellant’s Reply Brief is not mandatory, where a Respondent’s brief raises issues or points of law not covered in the Appellant’s brief, an Appellant ought to file a reply brief. It is not proper to use a rent brief to extend the scope of the Appellants brief or raise new issues not dealt with in the Respondent’s brief. It is not to afford an Appellant another bite at the
cherry”.
Be that as it may, I will refer to arguments in the Reply Brief, where necessary.
In its legal sense, ?a trust?, has been defined as an equitable obligation, binding a person (a trustee) to deal with property over which he has control (trust property) for the benefit of persons (beneficiaries or cestuis que trust), of whom he may himself be one, and any one of whom may enforce same – see Underhill’s Law of Trusts and Trustees 13th Ed. Other legal writers have defined it as a certain kind of right that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has against the trustee, or a certain kind of interest that the beneficiary has in the trust property, thus looking at it from the point of view of the beneficiary. However, the most satisfactory definition is that of Professor Keeton in Law of Trust 9th Ed. Thus ?
“A trust – – is the relationship which arises wherever a person called the trustee is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed cestuis que trust) or for some
object permitted by law, in such a way that the real benefit of the property accrues, not to the trustee but, to the beneficiaries or other object of the trust.”
In other words, the trustees are the legal owners of the trust property but they are obliged to hold the property for the benefit of one or more individuals or organizations, usually specified by the settlor. The trustees, therefore, owe a fiduciary duty to the beneficiaries, who are the “beneficial” owners of the trust property. The significant feature of the trust is its separation of the legal ownership of the trust property from its equitable or beneficial ownership.
There are different classifications of trusts-Express Trusts, Implied or Resulting Trusts, and Constructive Trusts. Express Trusts arise when the owner declares himself a trustee of the property for the benefit of another person or vests property in another person as trustee for the benefit of another person. Implied or Resulting Trusts arise from the presumed intention of the owner; the presumed intention arises by operation of law not by agreement of parties. Constructive Trusts are trusts imposed by equity regardless of the
intention of the owner of the property, where it will be unconscionable for the “apparent beneficial owner” or trustee to hold the property for his own benefit.? see Equity and Trust in Nigeria. 2nd Ed., by J. O. Fabunmi.
?We are concerned with implied or resulting trusts, which may arise in the following circumstances –
(i) Where an express trusts fails.
(ii) Where the beneficial interest under on express trust is not fully disposed of or exhausted.
(iii) Where there is a purchase in the name of another or where a person makes a voluntary conveyance of his property to another.
In Ezeanah V. Atta (supra), cited by the Parties, the Appellant and Respondent had a boyfriend and girlfriend relationship. The Appellant claimed she applied for land allocation in her name, but it was signed on her behalf by Respondent. The Certificate of Occupancy (C of O) was issued and given to the Respondent, who sent her a copy, and refused to give her the original. She later discovered that he was trying to alter the name in the C of O, and instituted an action at the High Court of the Federal Capital Territory, wherein she claimed inter alia a
declaration that she is the bona fide owner of the said land. The Respondent counter-claimed against her for declaration of ownership of the said property. The Respondent called three witnesses to testify, but he did not testify himself. The High Court gave Judgment in her favour, and dismissed his counter-claim. He appealed to this Court, and the Appellant also cross-appealed. This Court allowed his Appeal, granted his counter-claim, and dismissed her Cross-Appeal.
She appealed to the Supreme Court. In unanimously allowing her appeal, Supreme Court held that he did not adduce evidence to establish that there was a marriage commitment duly agreed on; and that the procurement of the land was in respect of their commitment to get married. Furthermore, that the evidence of his witnesses, are no more than hearsay, and he should have gone to Court to challenge her evidence. Pats-Acholonu, JSC, further observed –
Did the Respondent make on issue of a resulting trust a cornerstone of his case? Resulting trust is a trust that can be readily deduced as being implicit in the conduct of parties but without express intent – – – The submission of
Respondent was that the episode of what happened can only be said to have set in existence a resulting trust in favour of the Respondent – – – I find no words or conduct on the part of the respondent from which I?could possibly discover or discern the existence of a resulting trust, There is no proof of marriage commitment supposedly made by the Appellant because there is simply no such agreement to marry. For a resulting trust to be implied or inferred there must be in existence sufficient facts to show the circumstances that would give rise to this equitable principle, which must demonstrate in no uncertain terms the condition that would ground its presumption i.e. the failure of the condition of which one could infer o resulting trust. – –
All the indices in this case point to one direction –
1. Application for the land was mode in the Appellants name.
2. The land was allocated to the Appellant.
3. There is no evidence that both parties agreed to marry.
4. There is no evidence that the expenditure lavished by Respondent to continue to retain the affection of the Appellant was in furtherance of marriage that was contemplated and
planned or known and believed or agreed by both parties,
5. There are not in existence any facts to establish or show that there is now a resulting trust in consequence of the failure or arising out of the breach of promise to marry by the Appellant.
In fact, this is a case that the Respondent should have spared himself the agony of going through the Court processes. For him, when the going was good, he lavished love (I imagine it was reciprocated), money and eventually landed property on the Appellant. When the tide turned, he left back on non-existent agreement to marry and urged the Court to go the extra mile of pronouncing the existence of a resulting trust, I refuse to lend hand to assuage the feelings of a lover whose romance went awry, The love that once bound these two people and now got frosted can be likened to verse xxxv of Shakespeare’s “Sonnets”, a sort of lamentation, And also verse 1 of passionate Pilgrim”. Thus, we have in this case, so much love and then so much pain. It is the way of the world”.
We also have Madu V. Madu (supra), cited by both Parties, but the Appellants carped in their Reply Brief that the
Respondent relied on this Court’s decision, which has been overturned by the Supreme Court, and urged us to distinguish our decision in Madu V. Madu (2002) 13 NWLR (Pt.784) 231, from the decision of the Apex Court in Madu V. Madu (supra), (2008) 6 NWLR (Pt.1083) 296 SC.
In Madu’s Case, the wife [i.e. Appellant] sued the husband [Respondent] claiming a declaration that she is the owner/allottee of the land in question. All the documents were in her name, and the plot of land was allocated to her.
According to the Appellant, she entrusted her husband, the Respondent, who was a staff of the FCDA, with processing of the Application and follow up towards obtaining the C of O; she made all the money needed available to him; but without her knowledge, consent or authority, he collected the C of O, and when she demanded for the release of the C of O, he refused to give it to her.
?The Respondent averred that the plot was to be allocated in his name, but he later filed the application in his wife’s name, and paid all the expenses. He pleaded that she was holding in trust for him, and that he holds the interest therein on resulting trust. She got Judgment at
the trial Court but his appeal to this Court was allowed. The Appellant then appealed to the Supreme Court, and in unanimously allowing her appeal, the Supreme Court held as follows:
“Although the Respondent – – said he paid all the money required fur the land; but – all the receipts are in the name of the Appellant. Again, he said he collected the C of O – – not on [her] behalf but as the owner. While agreeing that the C of O was in [her] name, he was emphatic that the said document was in his possession. He again said that he informed FCDA that the land he applied for was for him but that he made it in [her] name. He agreed that he did not forward written information to FCDA. The evaluation of these pieces of evidence by the trial judge that they do not create resulting trust cannot be faulted. It is well grounded. There is no presumption – – based on the evidence – – that could have created a resulting trust. The evidence – – has not indicated an intention that a resulting trust should be created between the parties. If anything at all, [his] bare assertion that a resulting trust was intended by both of them to be created, has been rebutted by
the clear and uncontradicted evidence of the Appellant – – The Lower Court was – in a serious error when it found that the defence of resulting trust as raised – has been proved”.
In his contribution to the Judgment, I. T. Muhammad, JSC, aptly observed –
“On the issue of Resulting Trust” – – I think I should define the term first. It is a trust imposed by law when someone transfers property under circumstances suggesting that he or she did not intend the transferee to have beneficial interest in the property. A resulting trust thus arises because of the transferor’s intention. The resulting trustee in a fiduciary relation to beneficiary, where it at all exists, is a genuine trustee. Was there any such trust in this case between the husband (Respondent) and his wife (Appellant)? My answer is emphatic no. It is unfortunate that the Respondent cannot hide under the cover of a resulting trust to deprive the Appellant of both the legal and beneficial interest, which go along with the title i.e. C of O, in question. There was no foundation laid at all by the Respondent to justify that — Before I drop my pen, I think I should observe that this case, as I
see it, should be on eye-opener to many people. Although, it is not illegal or prohibited to make use of another person’s name in transactions that are solely meant to be in favour of a particular individual, I think it carries a lot of risks where there is a failure in achieving goals for which the transaction is meant. I fail to appreciate the wisdom behind the concealment of name or identity of a person, who in actual sense, is the owner of a thing but would prefer to use the name of another person. The presumption is always that it a document, for instance, bears the name of Mr. “X” it in law, belongs to Mr. “X” except where same is accompanied by conditions and exceptions; A good example is where a university certificate or a West African School Certificate (WASC) is issued in the name of ‘X”. The presumption is that it is “X” that is the rightful owner of that certificate. So it is a dangerous practice where people prefer to hide their identities and resort to using the identities of others in transactions, which are from the bottom of their minds. If such transactions ore meant to be held in such resulting trust, I think they should be qualified by
explanations, exceptions or conditions attached—“.
It is also settled that a presumption of a resulting trust may be defeated by the presumption of advancement, which is a presumption in trust, contract and family law, which suggests that property from a parent to a child, or spouse to spouse, is a gift and would defeat any presumption of a resulting trust see duhaime-org. See also Ugbutevbe V. Shonowo (2004) 16 NWLR (Pt.899) 300. However, the law also makes a distinction between the husband and the wife – when a wife buys a property, and conveys it in the name of her husband, there is no presumption of advancement infavour of her husband; he holds in trust for his wife. However, if the husband purchases a property in his wife’s name, this is prima facie a gift to her – see Silver v. Silver (1958) 1 All E. R.523.
In this case, the wife, [1st Respondent] is not disputing the fact that legal title resides in her husband [2nd Appellant] but she contends that the equitable interest vests in her since she provided purchase and other collateral money, therefore, he is holding the property in trust for her, as the beneficiary thereof. What are
the facts of this case, and why did the Lower Court find in her favour?
In his testimony as PW2, her husband, the 2nd Appellant, recounted how he got the form and paid a deposit of N1,200 on 27/2/1980. He got married to 1st Respondent in January 1981. He got a letter from LSDPC to liaise with LBIC for a mortgage loan. LBIC asked for a letter from his employer. Satisfied that he was employed, LBIC granted a mortgage loan in Exhibit J to him, and his wife’s father signed as his guarantor. He opened a Mortgage Passbook with LBIC- [Exhibit M] and a Savings Account [Exhibit N]. His wife paid in money he gave her into the mortgage account as he left for work early and came home late. His family moved into the house in 1985, but he had to leave in 1990 to live in his parents’ house because he was sick and his wife was not caring for him.
He got to know from the neighbors that 1st Respondent had vacated the flat because the mortgage loan had not been paid for some time and she was advised to let the flat rather than to sell it. He said he went to LBIC to inquire about the outstanding dues and the record showed that his wife had paid into the Mortgage
Account N10,000.00. He then went to bring N1,000 to liquidate the remaining sum so as to facilitate the release of the property documents. He said his wife did not care for him anymore and he too was fed up with her. He decided to sell the house because he had a financial problem with his bank. He sold the flat to the 1st Appellant for N150,000 and executed a Power of Attorney and deed of assignment to him [Exhibits B and C]. He did not agree that the sale should be set aside. He insists that he is not a trustee to his wife; he did not owe her damages, and she is not entitled to any money against him.
As DW2, the 1st Respondent said that she gave the 2nd Appellant N1,200 to deposit with LSDPC for purchase of the flat for the benefit of her children. She gave him the money on trust because as at that time, he had lost his job. The money was paid to LSDPC but the receipt was in his name. She said she was not worried since as she put it – “we were processing our marriage then. The only safe guard was to ensure I kept the original receipt?. She said when they settled into the flat in February 1985, she opened a Savings Account and was paying the
mortgage loan by installments; that she arranged the mortgage loan; and that her father guaranteed the loan because the flat belonged to her.
She tendered the LBIC Savings Account [Exhibit T], Mortgage Pass Book [Exhibit TI], guarantee form [Exhibit U], LSDPC receipt for deposit of N1,200 [Exhibit V], Allocation Letter of LSDPC [Exhibit W], Mandatory Insurance Policy [Exhibit X], receipts issued in her name [Exhibits Y-Y7], two memos from LBIC on her requests for reconciliation of Accounts [Exhibits Z and ZI]. She also said-
“The 2nd Plaintiff, my husband did not make any contribution to pay the loan. Since he lost his job – he has not been able to make any contributions as he has not gotten a job. – – I took steps to renovate the house and installed some household articles. There was no contribution from the 2nd Plaintiff – because he has no job then. [Receipts admitted as Exhibits AA-AA15]. In April, 1990, my estranged husband deserted me and my children. I have singlehandedly been supporting myself and the children – food & clothing, education and medical. When the pressure was too much, I vacated the flat and let it out and it is from the
rent that I was able to meet up with some of my overhead expenses”.
Under cross-examination by Appellants’ counsel, she admitted that she had no direct relationship with LSDPC and LBIC but she made arrangement with LBIC for loan and it was granted to her. She said her husband went to LBIC with her father as she was “heavy with pregnancy; her husband gave her a feedback that the loan will be granted to him provided he brought a guarantor; that it was her husband who arranged the loan; that she did not tell LSDPC and LBIC that he was acting for her; and that the savings account and mortgage account are in the 2nd Appellant’s name because he was the one, who bought the form.
DW2, their daughter, said that sometime in 1989, while she was young, her father suddenly disappeared without notice to anyone. She confirmed her mother’s evidence about letting out the property so as to care for her children. She gave details of her motherly care in terms of food, education and meeting their basic requirements while 2nd Appellant abandoned her and her siblings, and how they made efforts to seek their father at their grand parents’ home. Though welcomed, they did
not see him, and they gave up after sometime. She said she is aware that their father, 2nd Appellant wanted to sell their house but he did not tell anyone nor did he send any part of the proceeds to them. She prayed the Lower Court to grant the claims of her mother, 1st Respondent, while her father’s claim as 2nd Appellant and Co-Appellant should be dismissed.
The Lower Court accepted the evidence of the 1st Respondent and DW2, their daughter, as against evidence of 2nd Appellant. It reasoned as follows –
“Can it be said that there is no merit in the facts pleaded and evidence led by the 1st Defence Witness – Mrs. Aina? She stated that she was she was very much in love with the 2nd Claimant in 1980 and in expectation of marriage, she gave the deposit of N1,200 to the 2nd Claimant and she did not see anything wrong when she became aware that the 2nd Claimant has obtained a receipt in his name, after all he was to be her husband and she was all trusting then. In the lead Judgment of Niki Tobi JSC in EZEANAH V. ATTA – – the Learned Justice explained what constitutes a resulting trust – – – Both Counsel referred to ATTA VS. EZEANAH (2000) 11 NWLR
(Pt.678) 363 which circumstance was almost similar to the facts of this case but the woman reneged on the promise to marry the man who was said to have built a house for her in Abuja while the going was good. The man did not testify personally and that led to the setting aside of the Court of Appeal Judgment – – Having studied carefully these decisions of Court of Appeal and Supreme Court, I feel strengthened by the meaning and the ingredients of resulting trust. I have also considered the burden of proof – – and the Claimants in LD/3276/94 have greater responsibility to establish that the 2nd Claimant was in regular employment having regard to his wife’s claim that he had lost his job and had not been able to secure a regular employment. A proof of how he got the funds to pay for the financial commitment of the mortgage would have been of great help. He had problem with his Bank – no Bank statement was tendered. Having regard to the serious default in paying the installments as and when due, the action of the 2nd Defendant in paying to ensure they did not lose the flat by default?and the many documents exhibited showed that though the documents reflect
that the 2nd Claimant was the allotee, there was a silent intention unexpressed to the effect that the wife was the one paying and was the beneficiary of the trust”.
The Lower Court, which is the trial Court, did not just believe the 2nd Appellant, and from my appellate perch, I can see why the trial Court did not believe him – the scenario he painted does not augur well for him when viewed against the circumstances of this case laid out by the 1st Respondent. Before I go into that, I must add that on the face of it, the Appellants are right that oral evidence is not admissible to add to or subtract from or vary contents of a document, and the Parties have tendered quite a number of documents. But we are dealing with equitable principles touching on resulting or implied trusts, which arise from the implied or presumed intention of a donor not from his express words, and the creation of such trusts do not depend upon formalities such as writing.
“Parol evidence rule” is a substantive common law rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to
the written terms of the contract that appears to be whole – see Wikipedia. But in cases of this nature, parol evidence is admissible to prove who actually made the purchase, where the real purchaser does not appear on the face of the deed – see Ugbutevbe v. Shonowo (supra), cited by 1st Respondent wherein the Supreme Court held –
“The general proposition is that where on a purchase, property is conveyed in the name of someone other than the purchaser, the presumption is that the trust of the legal estate results to the man who advanced the purchase money, If the advance of the purchase money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made”. [Per Edozie, JSC]
So, there was nothing wrong with the Lower Court sifting through the evidence before it (oral and documentary), in arriving at its decision to believe one and disbelieve the others. It is settled that the evaluation of evidence by a Court, involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a
reasoned preference of one version to the other. There must something on record to show why the Court preferred one piece of evidence to the other – see Oyekola V. Ajibade (2004) 17 NWLR (Pt.902) 356.
Undoubtedly, the 2nd Appellant is faced with an uphill task in this appeal because evaluation and ascription of probative value to oral evidence is the exclusive preserve of the trial Court, and the law says that we cannot interfere when findings of facts are supported by evidence on record – see Roda V. FRN (2015) 10 NWLR (Pt.1468) 427 SC, wherein the Supreme Court held as follows-
“- – The trial Court accepted the evidence as true. This makes it difficult to accept on what foundation the Court below set out on its review as doing so could be entering into an arena within the exclusive domain of the trial Court especially since the appellate Court has no opportunity of hearing and watching the demeanor of the witnesses – – – For a fact, the re-evaluation of the oral evidence by the Court below was improper and the issue is resolved in favour of Appellant”,
In this case, I have no qualms in agreeing with the Lower Court that what the 2nd Appellant
did to his family is “unconscionable”, which brings to mind what Lord Denning said in Hussey vs. Palmer (supra), cited by the 1st Respondent-
“Although the Plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, it there was one, was more in the nature of a constructive trust; but this is more a matter of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the Defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or share in it, The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require”.
In this case, the evidence indicates that the 2nd Appellant was actually content, as the 1st Respondent said, with staying at his parents’ house at Bariga, Lagos – he lived there before he married; he lived there with his wife after marriage; and he returned to his parents’ house after he deserted his wife
and children.
Civil matters are decided on the balance of probabilities; it is not enough for the Party, who has to establish a particular fact, to say that his evidence is just as good as that of his opponent, he must provide the Court with evidence, which convinces the Court, of the probability of his case rather than that of his opponent on the point in issue. In this case, 1st Respondent’s testimony that his parents’ house was not convenient for her, which is why she persuaded him to purchase the flat, is more likely to be true than his evidence to the contrary.
The 2nd Appellant also said that he moved to his parents’ house because -‘[he] was very sick and was not getting the proper attention from [his] wife”. He explained that he could only tender copies of his Exhibits because she had “carted away at [his] valuable documents”, including the letter of allocation. The 1st Respondent as DW1, however, stated as follows in evidence in chief –
“[He] left home because he owed many people and they come home to harass us so because of the molestation of these creditors – [he] ran away from the house to his parents’ home. I took [his] clothes and
personal properties to him – (his clothes)?.
Under cross-examination by 2nd Appellant’s counsel, she testified as follows –
“[He] left the home but he did not state he won’t come back – he left in 1989. Later when I wanted to let the house – I packed [his] properties to his parents’ house. I pack out everything. I took his properties to him before I moved out. I met [him] in his parents’ house and told him what I wanted to do. The property documents have always been with me at all times. All expenses made on the property were so spent on the belief the property is mine. I did not require his consent to do renovation”.
No attempt whatsoever was made to challenge the evidence of 1st Respondent that he left their matrimonial home because of the molestation by creditors, and not because she did not take care of him when he was sick, as he alleged.
The 2nd Appellant also claimed that he paid mortgage for the property, but he said that after 2nd Respondent “brought his load and left it at the door?, he told his father, and they both went to the flat and found it empty; and that-
“We saw one of our neighbours – one Alhaji, who
told me everything about what my wife was doing – the story she told me then was that because we owe LBIC and it was this Alhaji, who asked my wife not to sell the house for only N10,000 but can let it to Ferreira, who will pay her N10,000 to offset LBIC outstanding. We went to LBIC and found that truly N10,000 was paid. In fact, we were owing more thon N10,000 – so I went home and sourced N1,000+ to settle our outstanding”.
In her evidence in chief, the 2nd Respondent testified as follows on this issue –
“It is true that I wanted to sell the property outright but I was advised by Alhaji Olorunfemi not to sell as he would get me a tenant, who would pay rent with which I can pay my mortgage debt. It is not correct as alleged by 2nd Plaintiff because he has never gave me (sic) money to pay the mortgage, he is a gambler and he has lost his job – so he could not get any money to give me”.
On the issue of the children he left behind, the 2nd Appellant stated as follows-
“When I decided to sell the house – I did not inform my wife – – We have 3 children. They are in my wife’s custody. They are ages 21, 19 & 17 years old now. [We] have been
living apart since 1990. The children were aged 9, 7 & 5. We have both been together carrying on responsibility of schooling, clothing and feeding the children”.
On this issue, his wife (1st Respondent) and his daughter (DW2) say otherwise. I reproduced what his wife said earlier, but his daughter, DW2 had this to say-
“As I was growing up, the reality dawned on me that for economic reason – we moved to Ketu, into a small room and parlour. It was our Mum, who was looking after us – feeding us, clothing us, funding our education and the payment of rent for our new place. It was the rent she collected from the property that she used to look after us. Our father had abandoned us and Mum did not receive any help from anybody”.
These are some of the evidence adduced by the 1st Respondent that made the Lower Court decide that his conduct “in attempting to sell the flat above the head of his entire family is to say the least on unconscionable act”, and made it “inclined by the weight of evidence proffered by [her] to accept her evidence”. Its decision cannot be faulted; it is sound in law, and also very well-grounded.
The Lower Court
considered this case vis-a-vis resulting or implied trust; but in my estimation, this trust is more of constructive trust than anything else. As Cardozo, J., said in Beatty v. Guffenhein Exploration Co. 225 N.Y. 380 (1919), “a constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him to a trustee – see Anyaegbunam V. Osoka (supra).
However, Lord Denning, M. R. made it clear in Hussey v. Palmer (supra) that they both run together; a resulting or implied trust and constructive trust are trusts imposed by law whenever justice and good conscience require it, and they are applied in the cases where the Defendant cannot conscientiously keep the property for himself alone – see also Anyaegbunam V. Osoka (supra). In this case, whether it is a resulting or implied trust, as the Lower Court held, or constructive trust, as I see it in this appeal, the outcome remains the same.
?In the circumstances of this case, the Lower Court was right to conclude that a trust ensues
for the 1st Respondent, who is a beneficiary, and owner of the flat.
The Lower Court further held that the 2nd Appellant “is not, competent to pass title to the [1st Appellant] white that trust existed”, and Issue 2 questions whether it was right to so hold. Stripped of all the arguments canvassed in the their brief of argument that relate to Issue 1, the Appellants’ contention is that since the legal title of the property is vested in the 2nd Appellant, it logically follows that he is legally competent to transfer it to a third party, and he is equally entitled to execute the Deed of Assignment and Power of Attorney in favour of the 1st Appellant, citing Aigbobahi V. Aifuwa (2006) 2 SC (Pt.1) 87, Okelola V. Adeleke (2014) 4 WRN 1?SC. They further argued that 2nd Appellant notified and obtained consent of LSDPC [2nd Respondent] for the transaction; that 2nd Appellant having established his authority to transfer the property, the onus shifted to the 1st Respondent to adduce evidence in proof of her alleged competing interest in the property, which she failed to do, citing Okereke V. Nwankwo (2003) 4 SC (Pt.1) 16 at 25; that even if there was a trust in her
favor, the 1st Respondent failed to notify LSDPC or LBIC of the existence of such trust, which meant a subsequent purchaser for value would have no notice, whether constructive or imputed, of the trust, citing Ohiaeri V. Yusuf & 5 Ors RS (2009) 2-3 SC (Pt.II) 160; that even if the defence of resultant trust availed the 1st Respondent, the 1st Appellant would still be a bona fide purchaser for value, as he took diligent steps to conduct a search at LSDPC [2nd Respondent]’s office where the allocation to 2nd Appellant was confirmed and there was no notice of any such trust in its records, which would have constituted notice to the 1st Appellant; that the letter purportedly written by 1st Respondent’s Solicitors to LBIC was written when consent had already been given – medicine after death; and that such letter cannot constitute the kind of notice envisaged by law in the circumstance of this case. We were urged to so hold in their favour.
?The 1st Respondent countered that their arguments under this issue will only be applicable where a resulting or implied trust was not established; that by establishing the existence of the trust, she automatically
impeached the genuineness of the title claimed by 2nd Appellant that onus shifted to him to establish title, and in doing so, he must go beyond reliance on the fact that his name is on the title documents as this case is predicated on resulting trust, where the mere fact that his name is on the title documents cannot avail him; and he needed to substantiate such documentary evidence in order to succeed in his claim of absolute ownership of the property, which he has failed to do.
She submitted that although the grant of a C of O raises a presumption that the person whose name appears on it is the owner of the land it covers, the presumption is rebuttable by other forms of evidence, and a Court is duty bound to examine the evidence adduced and surrounding circumstances of the case in reaching its decision as to the true owner, citing Balogun V. Labiran (1988) 3 NWLR (Pt.80) 66, Ayorinde V. Kuforiji (2007) 4 NWLR (Pt.1024) 341, and Ugbutevbe V. Shonowo (supra). On the question of notice, she submitted that the Appellants’ contention is misconceived and irrelevant as 1st Appellant did not exercise due diligence expected of a prudent and diligent buyer; that
if he acted with circumspection, he would have discovered that 2nd Appellant was not the true and beneficial owner of the property because the original copy of Exhibit V. was in her custody and possession, and the 2nd Appellant only showed him the photocopy (Exhibit A); that he ought to have enquired about the existence and whereabouts of the original in line with the principle – caveat emptor, but despite not seeing the original, he parted with his money, and more curious still, is his admission while testifying as PW1 that he did not visit or inspect the flat before the purchase; and that if he had done so, he would have found out from her tenant there that the house belongs to her.
She also argued that this shows he is not a bona fide purchaser for value without notice of her interest in the property, citing Clay Ind. Nig. Ltd. V. Aina (1997) 1 NWLR (Pt.516) 208; that his conduct shows that he acted in utter bad faith and in collusion with 2nd Appellant to rob her of her proprietary interest in the property, and for colluding with 2nd Appellant and/or sleeping on his responsibility of due diligence, he is not deserving of any indulgence from this
Court, citing Fasesin v. Oyerinde (1997) 11 NWLR (Pt.530) 552; that if he had been vigilant and acted honestly and in good faith, the non-production of an original, and the fact that 2nd Appellant was not in possession (actual or constructive) of the disputed property would have sign-posted or warned him that the property is not free from a third party adverse claimant; that the case of Ohiaeri V. Yusuf & Ors (supra), is distinguishable from the circumstances of this case as the said principle will only apply where the buyer did not have notice of or could not reasonably have had notice of her equitable interest in the Property; that his submission that his purported search at 2nd Respondent’s office did not reveal the existence of any trust in respect of the property would also not avail them of their non-diligence in the transaction, since it is trite that acquisition of title ( or act of deducing title) is not limited to conduct of search alone; that a prospective and diligent buyer is duty bound to visit the property and inquire about the true owner or history of the property before buying same; that having established that she is the beneficial owner
of the said property, it follows that she is the only one that can validly transfer the property to a third party; and that the purported sale to the 1st Appellant is unlawful, null and void and of no effect as “he who does not have cannot give”- “Nemo dat quod non habet”, citing Adeagbo V. Williams (1998) 2 NWLR (Pt.536) 720 and Yusuf v. Matthew (1999) 13 NWLR (Pt.633) 30. We were urged to resolve this issue in her favour, and affirm the Lower Court’s decision.
Evidently, the various arguments canvassed by Parties on this Issue 2, were hinged on the premise that Issue 1, may or may not be in their favour. Now that the said Issue 1 has been resolved in favour of the 1st Respondent, my take on this issue is simple; this Court cannot give with one hand and take away with the other. 2nd Appellant did not have what he purported to grant. The law recognizes that there are circumstances in which a seller may purport to sell goods or property, which he does not have any right to sell, and the law has to decide which of two innocent parties to favour: buyer or original owner, which is when the nemo dat quod non habet rule comes into play. This rule is that a
transferor of goods cannot pass a better title than he himself possesses.
It has been derided as an unfair rule since it is an innocent party buyer that will suffer and also because it is not necessarily in keeping with the needs of modern commerce and trade; but the law is what it is, and we must apply it. The Appellants based their claims on title documents in 2nd Appellant’s name but 2nd Appellant did not have it to give, and had no right to sell the property. He is nothing but a trustee, and the 1st Respondent is a beneficiary of the trust. We cannot somersault and give over the reins of the property to 2nd Appellant.
The end result of the foregoing is that this Appeal lack merit it fails and is dismissed.
The decision of the Lower Court in its Judgment of 19/11/2004 is hereby affirmed and the 1st Respondent is awarded costs of N100,000.00.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. A. AUGIE JCA. His lordship has as usual dealt exhaustively and most eloquently with all the issues raised in the appeal. I agree with his Lordship’s reasoning and
conclusions.
The two main categories of informal trusts are ‘resulting trusts’ and ‘constructive trusts’. Constructive trusts are imposed by the Court as a consequence of the conduct of the party who becomes a trustee while resulting trusts are not imposed as a response to the conduct of the trustee, but to give effect to the implied intentions of the owner. See WESTDEUTSCHE LANDESBANK GIROZEN – TRALE V, ISLINGTON LONDON BOROUGH COUNCIL (1996) AC 669: UDENSI V. MOGBO (1976) 7 SC 1: IBEKWE V NWOSU (2011) 9 NWLR (PT.1251) 1.
I agree with my learned brother that in the circumstances of the present appeal, constructive trust is more applicable. The conduct of the 2nd appellant (husband) was obviously unconscionable. He abandoned his wife and children when the children were quite young. The 1st respondent (the wife) continued to live with the children in the ‘matrimonial home’ paying the mortgage and other outgoings. There is no doubt that any purported sale of the house by the 2nd appellant while the 1st respondent and her children were still living in the house would have been struck down by any Court. The 1st respondent and her children were forced
out of the house because she could no longer afford to pay the mortgage. She rented it out in order to use the rent money to pay the mortgage, the rent in the small room and parlour they moved into in Ketu, school fees and maintenance of her three children. The 2nd appellant in his evidence testified that he went to LBIC found that the wife had indeed paid N10,000.00 leaving a balance of N1,000.00. He immediately went off to ‘source’ the N1,000.00, paid it and proceeded to sell off the house to the 1st appellant without a word to his wife. The trouble he took to ‘source’ for the one thousand naira balance is evidence that he could not have been paying the mortgage at any point in time. No Court of law will support this brazen and unconscionable act of the 2nd appellant. Even though the title document is in his name, he cannot in good conscience retain the beneficial interest in the property. It is right in the circumstances to deem him a constructive trustee of his wife. After all, constructive trust is the formula through which the conscience of equity finds expression. It is also a discretionary remedy. The Lower Court in the instant case exercised the
discretion judicially, judiciously and very soundly. There is no reason whatsoever to interfere with the exercise of the discretion. EFETIROROJE V. OKPALEFE II (1991) 5 NWLR (PT.193) 517. I also find no merit in this appeal. I dismiss it and affirm the judgment of the Lower Court. I abide by the order of my learned brother on costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the benefit of reading in draft the leading judgment of my learned brother, AUGIE, JCA. He has treated in detail the issues raised in this appeal. I only which to comment on the issue of resulting trust as discussed in this appeal.
My lords, a resulting trust arises in situations where, by the quasi-operation of law, a trust is implied from the conduct of parties or all the circumstances of the case. Resulting trusts, as with constructive trusts, arises by operation of law and without the concerted actions of a grantor to constitute an express trust. It does not come to being by design, but arises only where equity stipulates that a trust should be imposed on account of the particular circumstances.
?Consequently, there are no
formal requirements for its creation. As M. HALEY & L. MCMURTRY, in EQUITY AND TRUSTS, 2nd Edition, London: sweet & Maxwell, 2009, 257 puts it, “the essential characteristic of the resulting trust is that the settler is also the beneficiary (and) its fundamental function is to ‘re-direct’ the beneficial ownership of trust property back to the former title owner.”
No doubt, resulting trusts operates in two main con; firstly, in case of failed trusts and secondly, the voluntary transfer or the purchase in the name of another. We are here now concerned with the latter category, as per the circumstances of the dispute leading to the instant appeal.
In the second category, where a person purchases a property in the name of another, equity adopts a realistic interpretation of the parties’ motivation. The imposition of the resulting trust is based on the unrebutted presumption that the person who paid the purchase price, did not intend to benefit the person in whose name the property was bought. Equity presumes, in the absence of any explanation to the contrary, that the intention of the grantor or purchaser was to retain the beneficial
interest in himself and a resulting trust is declared in his favour. See DYER v DYER (1788) 2 COX 92; 30 ER 42; COKER v. COKER (1964) LLR 188.
The principle as stated only raises a presumption of resulting trust, is rebuttable and occasionally displaced by evidence of intention to benefit the grantee or a counter-presumption of equity and also where its applicability would be contrary to public policy, oral or documentary evidence may be admitted to show the nature of the transaction. Therefore, the fundamental function of the Court is to discover the true intention of the person who purchased the property in the name or whether the person in whose name the property was bought, is indeed the beneficial owner. According to M.I. JEGEDE, LAW OF TRUSTS’ BANKRUPTCY AND ADMINISTRATION OF ESTATE, Lagos: MIJ PUBLISHERS LIMITED, 1999, 107,
“The important function of the Court is the discovery of the true intention of the donor and this may be gathered from the instrument relating to the transaction which gives rise to the presumption of the resulting trust. In essence, once the factual situation raises a presumption of a resulting trust, the beneficial
interest in the property rests with the person in whose favour the resulting trust is presumed…”
Meanwhile, he who assert must prove. See Section 131 of Evidence Act, 2011. Where a person claims to have a resulting trust in his favour by having paid the purchase price, the burden of establishing that fact is on him. In the instant case, the learned trial judge found, that the 1st Respondent was able to establish the fact that she advanced the money for the purchase of the property, subject matter of the dispute. The trial Court noted that “?there was a silent intention unexpressed to the effect that the wife was the one paying and was the beneficiary of the trust. The findings of the trial Court have not been shown to be perverse so as to warrant interference by this Court.
In conclusion, therefore, for the reasons given above and the fuller reasons in the leading judgment, I hold that there is totally no merit in the appeal and I accordingly dismiss it. I abide by the consequential orders made in the leading judgment also.
Appearances
Ikhalea Augustine, Esq.For Appellant
AND
Sunday Adara, Esq. with him, Victor I. Mgboji, Esq. for 1st Respondent
Stanley Agumaeme, Esq. for 2nd RespondentFor Respondent
