CHIEF NOFIU SURAKATU v. DR. NOAH OWODUNNI ADEKUNLE
(2019)LCN/12558(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/IB/21/2014
RATIO
LAND LAW: WAYS TO PROVING TITLE TO LAND
“The law is settled that one of the ways of proving title to land is by production of title documents. SeeIDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 246 and NWOKOROBIA VS. NWOGU (2009) 10 NWLR (PT. 1150) PG. 553. Mere production of title document is however not conclusive proof of title to land. A Court must examine the document produced and ascertain its validity. See ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238) PG. 650 and AKINDURO VS. ALAYA (2007) 15 NWLR (PT. 1057) PG. 312. In ROMAINE VS. ROMAINE (SUPRA) Nnaemeka Agu JSC at pg. 662 paragraphs E – G held as follows:
‘I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant… There are five recognized ways of proving title to land. One of which is by production of a valid instrument of grant. This is the method chosen by the Appellant. The law is settled that a party who seeks a declaratory relief must establish same by cogent and credible evidence. The onus is on him to prove his case. He cannot rely on the weakness of the case of the Defendant. See NWAOGU VS. ATUMA (2013) 11 NWLR PT. 1364 PG. 117 AT 141 ? 142 PARAS H – C; NWOKIDU VS. OKANU (2010) 3 NWLR (PT. 1181) 362 AND DUMEZ (NIG.) LTD. VS. NWAKHOBA (2008) 18 NWLR (PT. 1119) 369 AT 373 – 374′” PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
CHIEF NOFIU SURAKATU Appellant(s)
AND
DR. NOAH OWODUNNI ADEKUNLE Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the Ogun State High Court, Abeokuta Judicial Division delivered by A. A. Akinyemi, J. on the 4th of June 2013 in Suit No: AB/165/2009 between ALHAJI NOFIU SURAKATU, the Appellant as Claimant and 1) ALHAJI RAMONI ADEKUNLE and 2) DR. NOAH OWODUNNI ADEKUNLE as the 1st and 2nd Defendants respectively. The 2nd Defendant is the Respondent in this appeal.
The claim of the Appellant as contained in the Amended Statement of Claim filed at the lower Court is as follows:
i. A declaration that under and by virtue of the Sale Agreement dated 25th day of May, 2001 prepared by A.O. Rahman & Co. (Legal Practitioners) the entire proprietary interest in the landed property comprised of a Block of Four Flats now known as No. 15, Sabo Road, Abeokuta, and more particularly delineated in Survey Plan No. MAG86/77 dated 9th November, 1997, was transferred to the Claimant at a monetary consideration of N2,800,000.00 (Two Million Eight Hundred Thousand Naira).
ii. A declaration that with effect from 25th May 2001, the Claimant is entitled to the physical possession and uninhibited enjoyment of the property known as No. 15, Sabo Road, Lafenwa, Abeokuta.
iii. A declaration that after 25th May, 2001, the continued occupation by the 2nd Defendant of the property known as No. 15, Sabo Road, Lafenwa, Abeokuta is unlawful.
iv. An order of mandatory injunction enjoining the 2nd Defendant to vacate the property known as No. 15, Sabo Road, Lafenwa, Abeokuta within 14 days of the said order.
v. An order mandating the 2nd Defendant to pay over to the Claimant, all rents due on the property at No. 15, Sabo Road, Lafenwa, Abeokuta with effect from 1st July, 2001 at the various rates pleaded by the Claimant, until the 2nd Defendant relinquishes possession of the said property.
The Respondents responded to the claimant’s claim by filing a Statement of Defence which include a Counterclaim. By the Counterclaim the Respondents claim as follows:
(1) A declaration that the Memo between ALHAJI RAMONI ADEKUNLE and CHIEF NOFIU SURAKATU dated 25th day of May 2001 did not and cannot transfer the landed property comprised of a Block of four flats situate lying and being at No. 15, Sabo Road, Lafenwa, Abeokuta to the Claimant.
(2) An order nullifying the Memo between ALHAJI RAMONI ADEKUNLE and CHIEF NOFIU SURAKATU dated 25th day of May 2001 for being null and void.
(3) An order on the claimant to return to the 2nd defendant all the title documents relating to the landed property comprised of a Block of four flats situate lying and being at No. 15, Sabo Road, Lafenwa, Abeokuta including (a) Survey Plan No. MAG/86/77 and dated 9th November 1997 (b) Approved Building Plan with respect to the said property.
The Appellant filed a reply to the statement of defence. The case went on to trial. Upon conclusion of evidence of both parties, counsel filed and adopted their final Written Addresses. Judgment was delivered on the 4th of June 2013. In the judgment which is at pages 254 – 266 of the record the Court dismissed the claimant’s case and granted the reliefs sought in the counter claim. The trial judge at pages 265-266 held as follows:
‘Either way therefore, Exhibit C gives no joy to the claimant. Consequently I find and hold that the claimant has no basis to continue to hold on to the title documents he collected from the 2nd defendant, or to demand for possession of the house at stake in this case. I find no merit at all in the case of the claimant, and the same is hereby dismissed in its entirety.
On the counter claim upon the evidence before this Court, which I have reviewed and evaluated, which review and evaluation I hereby adopt in treating the counter claim, I find and hold that the counter claimant has succeeded in proving same. He has shown that there was no sale of the subject property to the claimant, but that it was merely used as collateral for a 3rd party loan which has been fully repaid. He is therefore fully discharged and entitled to a return of his title documents. I therefore find merit in the counter claim and it succeeds.
In conclusion therefore, I make the following final orders:
1) The case of the claimant is dismissed in its entirety for lack of merit.
2) The claimant/defendant to counter claim, is ordered to immediately return to the 2nd defendant/counter claimant, all the original title documents relating to the landed property comprised of a block of four flats situate, lying and being at No.15, Sabo Road, Lafenwa, Abeokuta including (a) Survey Plan No.AG/86/77 dated 9th November 1997 and (b) Approved Building Plan of the said property.
Dissatisfied with the whole decision of the lower Court, the Appellant filed a Notice of Appeal on the 21st of August 2003. See pages 261 ? 271 of the record. The original notice of appeal was subsequently amended. The amended notice of appeal was filed on the 11th of May 2016.
The case of the Appellant before the lower Court is that by virtue of a Sale Agreement dated 25th May 2001 the Respondent transferred his entire proprietary interest in the property described as a block of four flats situate at No.15 Sabo Road, Lafenwa, Ogun State to him for a consideration of N2,800,000.00k. He said he paid fully the agreed amount consequent upon which the Respondent executed a Sales Agreement in his favour. The Sales Agreement dated 25th of May 2001 was tendered and admitted in evidence. It is further the Appellant’s case that the respondent handed over to him the original title documents of the property to wit: (1) Survey Plan dated 9/11/1977, (2) Agreement for sale of Land dated 12/5/1977 and (3) Approved Building Plan. The documents were tendered and admitted in evidence. That the Respondent however refused to relinquish physical possession of the property to him and thus deprived him of his right to collect rents on the property from the time he bought it to date.
The respondent denied the Appellant’s case. His case is that the disputed property was used to guarantee a loan advanced by the Appellant to one Mr. Anthony Elis Aigbogun which loan has been fully repaid. He said the Appellant who is a money lender granted Mr. Anthony Elis Aigbogun a loan of Two Million Naira. He denied selling the property to the Appellant.
Learned Counsel to the Appellant formulated four issues for determination in the Appellant’s Brief of Argument filed on the 31st of October 2016 and deemed properly filed and served on the 22nd of March 2018. The issues are:
i. Whether the trial Court was right to expunge Exhibit C at the judgment stage after it had been admitted at the interlocutory stage when the Appellant cannot repair his case without giving Counsel the opportunity to address thereon.
ii. Whether Exhibits D and E together with the ipsit dixit of the Appellant are not sufficient to support the transaction evidencing the sale of the property to the Appellant by the Respondent.
iii. Whether the trial Court was right to hold that the loan of N2 Million advanced by the Appellant to Mr. Anthony Elis Aigbogun has been fully repaid when that was not the case before the Court.
iv. Whether if Exhibit C and not Exhibit E was expunged in the judgment the Appellant is not entitled to Judgment according to his claims.
Learned Counsel to the Respondent for his part formulated three issues for determination in the Respondents Brief of Argument filed on the 4th of April 2018 to wit:
1. Whether the error committed by the learned trial Judge in referring to Exhibit E in his judgment as Exhibit C occasioned any grave miscarriage of justice to the Claimant.
2. Whether in the circumstances of this matter the lower Court was right to hold that the loan of N2 Million advanced by the Claimant to Mr. Anthony Elis Aigbogun has been fully repaid.
3. Whether given the state of pleading and evidence before the lower Court, the Claimant established the alleged sale agreement between him and the Defendant.
Appellant’s Counsel after arguing the issues identified by him in the Appellant?s Brief concluded in paragraph 5 as follows:
5. Conclusion
5.01 In conclusion, your lordships are respectfully urged to resolve all issues distilled in favour of the Appellant for the reasons adumbrated:
i) The learned trial judge was wrong to expunge an Exhibit at the judgment stage after first admitting it at the interlocutory stage and noting that it was not registered.
ii) Exhibits D and E together with the ipsit dixit of the Appellant were sufficient to support the transaction of the sale by the Respondent.
iii) The loan of money to Mr. Anthony Elis Aigbogun by the Appellant is a completely different transaction from the one before the Court and the trial judge was wrong to hold that the receipt of vehicles by the Appellant has discharged the transaction between the Appellant and the Respondent; and
iv) Exhibit C and not E, witnessing the transaction for the sale of property was expunged. This being the case, there is no basis for his Lordship to hold that there is no piece of evidence on record to sustain the transaction between the Appellant and the Respondent.
5.02 In parenthesis, it is respectfully submitted that the confusion over which exhibit witnessed the transaction between the Appellant and the Respondent has occasioned injustice. It is equally wrong for the trial judge to expunge an exhibit he had earlier admitted for the same reason argued before him at the judgment stage.
Learned Counsel to the Respondent urged us to dismiss the appeal. After arguing all the issues identified by him he concluded at pages 14 – 15 of the Respondent’s Brief as follows:
9.0 SUMMARY
9.01 In summary the respondent argue that:
1) The error committed by the learned trial judge in referring to Exhibit E in his judgment as Exhibit C did not occasion any grave miscarriage of justice to the Claimant.
2) In the circumstances of this matter the lower Court was right to hold that the loan of N2 Million advanced by the Appellant to Mr. Anthony Elis Aigbogun has been fully repaid.
3) Given the state of pleading and evidence before the lower Court, the claimant did not establish the alleged sale agreement between him and the Defendant.
Appellant’s Counsel filed an Appellant’s Reply Brief on the 13th of September 2018. In the said reply brief, learned counsel submitted that the Appellant’s complaint is not about a typographical error made by the learned trial judge but about his finding that apart from Exhibit C which he expunged, there is nothing on record to support the Appellant’s contention of a sale. He submitted that the release of all title documents of the property by the Respondent to the Appellant indicate an outright sale of the property. He conceded that Exhibit E is a registrable land instrument which was not registered but contended that what the trial judge expunged from the record is Exhibit C which was registered. This according to him occasioned a miscarriage of justice and urged us to so hold.
Upon a careful perusal of the grounds of appeal, issues formulated by parties and the arguments canvassed by counsel in support of their respective issues, I am of the view that the following issues would suffice in the determination of this appeal.
1) Whether grounds 4 and 6 of the Amended Notice of Appeal are incompetent and liable to be struck out.
2) Whether the lower Court was right to expunge the agreement dated 25th day of May 2001 (Exhibit E) in its judgment after admitting same in evidence during its interlocutory proceedings.
3) Whether from the state of pleadings, oral and documentary evidence and the applicable principles of law, the learned trial judge was right in dismissing the claim of the Appellant and granting the Respondents counter claim.
ISSUE NO.1
Whether Grounds 4 and 6 of the Amended Notice of Appeal are incompetent and liable to be struck out.
The Respondent’s Counsel argued at paragraph 5.11 – 5.17 of the Respondents Brief that grounds 4 and 6 are incompetent as they were used as platform to supply evidence not adduced at the lower Court. He argued further at paragraph 5.16 that it is not permissible to rely on evidence or facts not placed before the trial Court. The Appellant at paragraph 1.04 of his brief submitted that even if grounds 4 and 6 of the Amended Notice of Appeal are expunged it would not affect the Appellant’s Issue No.3 canvassed by him.
Grounds 4 and 6 of the Amended Notice of Appeal read thus:
Ground 4
The learned trial judge erred in law when he invoked the provision of Section 167(d) of the Evidence Act, 2011 against the Appellant to hold that the loan given by the Appellant to Anthony Elis Aigbogun had been fully repaid and thereby arrived at a wrong conclusion which occasioned injustice.
Particulars of Error
1. The Appellant’s transaction with Anthony Elis Aigbogun is different from the transaction with the 2nd Defendant.
2. The transaction between the Appellant and Anthony Elis Aigbogun was the subject of litigation in Suit No. AB/105/2006 Alhaji N. Surakatu v Mr. E.A. Aigbogun in which the Appellant obtained judgment on 12th December, 2011.
3. The subject matter of the dispute before the Court concern the sale of property by the 2nd Respondent to the Appellant.
4. Section 167(d) of the Evidence Act, 2011 does not permit the Court to speculate on grounds not properly raised before the Court.
Ground 6
The learned trial judge erred in law when he assumed and held that the loan of N2 Million advanced by the Appellant to one Mr. Anthony Elis Aigbogun has been fully repaid with interest of N1.2 Million when the Appellant testified that the transaction was different from the subject matter of the case before the Court.
Particulars of Error
1. The case and evidence before the Court relates to sale of the subject house.
2. Mr. Anthony Elis Aigbogun was not a party to the proceedings.
3. The Appellant testified that his transaction with Mr. Anthony Elis Aigbogun was different from the sale of the subject property.
4. The learned trial judge, in effect determined a case different from that before the Court.
5. The transaction between the Appellant and Anthony Elis Aigbogun was the subject of litigation in Suit No. AB/105/2006 Alhaji Surakatu vs. Mr. E. A. Aigbogun in which the Appellant obtained judgment on 12th December 2011.
I have gone through the record and I find particular(2) of Ground 4 alien to the Appellant’s case in the Court below. The law is that an appellant who wishes to raise a fresh issue or point on appeal must seek leave of Court to so do. See STATOIL (NIG.) LTD. VS. INDUCON (NIG.) LTD. (2018) LPELR 44387 @ 13 Paras A – C; OLAGUNJU VS. PHCN PLC. (2011) LPELR 2556 @ 10 Paras D – F; A.G. OYO STATE & ANOR. VS. FAIRLAKES HOTEL LTD. (1988) LPELR 24926 @ 25 – 27 Paras E – C and ATOYEBI & ANOR. VS. GOV. OF OYO STATE & ORS. (1994) LPELR 595 @ 23 – 24 Paras B – D.
The Appellant did not seek leave of this Court or the Court below to raise the fresh point canvassed in particular 2 of ground 4 of the Notice of Appeal. The said particular is therefore incompetent. There are however other particulars in support of the said ground 4.
In the case of OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482) PG. 205 AT 257 Paras E ? G, the Supreme Court held thus:
‘Even then, the Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice ‘.
Hence bad or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent, Put differently, since the essence of particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they flow.
I wish to observe that throughout the gamut of the Appellant’s Brief no argument was canvassed in support of the issue contained in particular 2 of ground 4 of the Notice of Appeal. The issue is therefore deemed abandoned. Whichever way one looks at it, particular 2 of ground 4 is incompetent and it is accordingly struck out. Ground 4 however has other competent particulars to support it. I therefore find the said ground competent.
Particular 5 of ground 6 complained about by the respondent does not raise a fresh issue and I so hold.
Issue No.1 is resolved partly in favour of the Appellant.
ISSUE NO.2
Whether the lower Court was right to expunge the agreement dated 25th day of May 2001 (Exhibit E) in its judgment after admitting same in evidence during its interlocutory proceeding.
Appellant’s Counsel at paragraphs 4.03, 4.04 and 4.05 argued that the document expunged by the trial judge in his judgment is Exhibit C and not the agreement dated 25th day of May 2001 which is Exhibit E. His position is that the lower Court was wrong to hold as it did at page 260 of the record that there was nothing to sustain the Appellant’s claim.
Learned Counsel to the Respondent for his part submitted that the learned trial judge did not leave anyone in doubt as to what Exhibit he intended to expunge. He referred to page 257 of the record where the lower Court in its judgment said:
Exhibit C – An agreement dated 25th May 2001 and signed by the claimant and the 2nd Defendant (and 1st Defendant) was admitted during trial, because it is relevant and pleaded, thus satisfying the two major conditions for admissibility but having being admitted, what probative value does it have in this case
In the course of the proceedings at the lower Court, the claimant’s counsel on the 6th of July 2012 applied to tender an agreement dated 25th May 2001 in evidence. Counsel to the respondent opposed on the ground that it was a registrable instrument which was not registered and therefore inadmissible. The Court overruled the objection and admitted the agreement in evidence as Exhibit E. See pages 213 – 214 of the record. The Court held at page 214 as follows:
‘Accordingly, the objection is overruled, and the copy of the Agreement dated 25th May 2001 is admitted as Exhibit E’.
The lower Court however in its judgment contained at page 254 – 266 of the record referred to the Agreement dated 25th May 2001 as Exhibit C. At page 257 the lower Court held:
‘Exhibit C – An agreement dated 25th May 2001 and signed by the claimant and the 2nd defendant (1st defendant)’
The lower Court further held with respect to the claimants claim at page 259 as follows:
‘…Exhibit C which falls within the first category, that is evidence illegally admissible per se, ought not to have been admitted by this Court in the first instance. However having admitted it, I hold that it has absolutely no useful purpose or probative value. I am aware that the law permits such an unregistered land document to be admitted as a receipt of acknowledgement of payment of money. However, Exhibit C from the pleading and evidence of the Claimant, was not tendered or relied upon by the Claimant as a receipt for or acknowledgement of payment but clearly as an instrument transferring title or interest in land. Otherwise it might have held some value, in that regard for the Claimant. That being so and as it is not the duty of the Court to make a case for parties, which they have not made by themselves, or to help them look for avenues to salvage their cases, I am unable on my own, the case not having been made by the Claimant, to hold or treat Exhibit C as a receipt or acknowledgement of payment. Either way therefore, it cannot avail the Claimant. Having found and held that it has absolutely no useful value in this case either as a Land Instrument or a receipt, and that admitting it was not just wrongful but a legal nullity, I hereby expunge Exhibit C from the Record.’
Furthermore, with respect to Exhibit C. the lower court held at page 264 of the Record thus:
‘Before concluding on the Claimant’s case, I wish to quickly return to Exhibit C. It is possible that I am wrong in expunging it and in not treating it as a receipt or an acknowledgment of payment of money by the Claimant to the 2nd Defendant, at the very least. In that event and as an alternative to my earlier stance, I wish to say that even if Exhibit C is treated as an agreement to sell or a receipt or acknowledgment, considered along with the entire body of evidence, it still will not in my humble view, avail the Claimant because upon the preponderance of evidence, including Exhibit C, it is clear that there was no real contract of sale of property to the Claimant. That was not the primary intention of the parties. Exhibit C was at best a sham or dummy sale or contract of sale meant as a fallback position for the Claimant in event of default by Anthony Aigbogun. Since there was no default by Anthony Aigbogun, there is no basis for recourse to the dummy sale or fallback position represented by Exhibit C. To hold otherwise would, in my humble view, amount to double compensation for the Claimant, which the law forbids. Therefore, even if Exhibit C has any probative positive or legal effect, the fact that Aigbogun has repaid his loan to the Claimant renders Exhibit C no longer operative, effectual or binding on the 2nd Defendant. Either way therefore, Exhibit C gives no joy to the Claimant. Consequently, I find and hold that the Claimant has no basis to continue to hold on to the title documents he collected from the 2nd Defendant or to demand for possession of the house at stake in this case. I find no merit at all in the case of the claimant and the same is hereby dismissed in its entirety.’
The agreement dated 25th of May 2001 was admitted in evidence as Exhibit E by the lower Court after it overruled the objection raised to its admissibility by counsel to the Respondent. The Court however went on in its judgment to identify the expunged document as Exhibit C. From the excerpts of the judgment of the Court quoted above, it is clear that the document intended to be expunged by the lower court is Exhibit E, the agreement dated 25th May 2001 and I so hold. Reference to the document as Exhibit C in the judgment is at best an accidental slip or error which has not occasioned any miscarriage of justice to parties in this case. It is clear beyond any peradventure that the document the lower Court intended and did expunge from the record is the agreement of 25th May 2001.
The law is settled that it is not every error, mistake or slip in a judgment that would result in the success of an appeal. It is only when such error has occasioned a miscarriage of justice that an appellate Court is bound to interfere.
In the case of LEVENTIS (NIG.) PLC V. AKPU (2007) 17 NWLR (PT. 1063) Pg. 416 @ 441-442, PARAS. H-C, the Supreme Court held, per Ogbuagu, JSC thus:
‘It is now firmly established that it is not every mistake or error in a Judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. It is only when the error is so substantial, that it has occasioned a miscarriage of justice, that the appellate Court is bound to interfere. There are too many decided authorities in this regard. See ONAJOBI V. OLANIPEKUN (1985) 4 S.C. (PT. 2) 156 AT 168; (1985) 4 NWLR (PT. 2) 156; OSAFILE & ANOR. V. ODI & ANOR. (NO. 1) (1990) 3 NWLR (PT. 137) 130; NWLR (PT.242) 386 AT 400; ODUKWE V. MRS. ETHEL N. OGUNBIYI (1998) 8 NWLR (PT. 561) 339 AT 351; (1998) 6 SCNJ 102 AT 113 AND INTERNATIONAL BANK FOR WEST AFRICA LTD. V. PAVEX INTERNATIONAL CO. (NIG.) LTD (2000) 7 NWLR (PT. 663) 105; (2000) 4 SCNJ just to mention but a few.’
In the case of HENRY ATUCHUKWU VS. GLORIA ADINDU (2011) LPELR ? 3821 (CA) Ogunwumiju JCA held thus: I would also utilize the powers of this Court under Order 18 Rule 11 to correct the slip in the judgment.
It provides as follows:
Order 18 Rule 11(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
Any slip in the judgment can be rectified as long as it does not occasion miscarriage of justice.
See ALH. ISIYAKU ENTERPRISES V. MR. S. B. OMOLABOJE & OR. (2006) 1 SCNJ 86.
Indeed this Court as an appellate Court has inherent powers to make any order that the trial Court ought to have made. Since the trial Court can correct a slip in its judgment, the appellate Court also can do so. See JOHN EZE V. MATTHAIS OBIEFUNA (1995) 7 SCNJ 75.
In that case the Supreme Court held that it was a mere slip to assign an incorrect nomenclature in place of a relief claimed. Iguh JSC said it was a mere clerical mistake or misdescription of the rights in issue by the Court which would not deceive any party to the proceedings. Indeed the Supreme Court per Ogundare JSC in CHIEF WALTER AKPAN V. CHIEF EDO EKONG UMOH (1999) 7 SCNJ 154 suo motu corrected an error in the judgment of the trial Court which mistakenly referred to a wrong survey plan to which the declaration was tied.
In CHIEF ADEBISI ADEGBUYI VS. ALL PROGRESSIVE CONGRESS (APC) & ORS (2014) LPELR 24214 (SC), the Supreme Court per Fabiyi JSC held as follows:
‘The Court below found that the trial judge could not have intended to use the word ‘dismissed’ after stating clearly that the issues are triable and evidence would have been taken. It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against.
The case of ONAJOBI V. OLANIPEKUN (1985) 11 SC (Pt. 2) 156 is on point.
This Court said it clearly in ADEBAYO V. ATTORNEY GENERAL, OGUN STATE (2008) 2 SCNJ 352 AT 366 ? 367 per Niki Tobi JSC that:
‘In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An Appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the judgment.’
This Court has the powers to correct the slip in the Judgment of the lower Court in the instant appeal and I so do. Anywhere in the Judgment of the lower Court where the agreement dated 25th May, 2001 is referred to as Exhibit C shall read Exhibit E. What the trial judge expunged from the record in his judgment is the agreement dated 25th May, 2001 which was admitted in evidence as Exhibit E and not the agreement dated 12th May, 1977.
The Appellant’s Counsel in the Appellant’s Brief of Argument argued that the lower Court was in error when it expunged the agreement dated 25th of May, 2001 from the record suo motu without calling on him to address it or to repair his case.
The lower Court had earlier in the course of the proceedings admitted the said agreement in evidence as Exhibit E but in the course of judgment expunged same from the record. The Supreme Court in the case of B. MANFG (NIG) LTD VS. M. S.O.I. LTD. (2007) 14 NWLR (PT. 1053) at 139 Paragraph H held as follows:-
“The law is elementary that a trial judge has the right to expunge from record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address.”
Contrary to the submission of learned Appellant’s Counsel, the lower Court reserved the right in law without the prompting of any of the parties to expunge a document earlier admitted in the proceedings from the record as it did in respect of Exhibit E. However, such document must have been wrongly or wrongfully admitted. This is underscored by the position of the law that legally inadmissible evidence which is wrongly admitted by the trial Court cannot be the basis of a just judgment. A party must succeed on legally admissible evidence and not otherwise. The Supreme Court per Ogunbiyi JSC in the case of GODWIN C. ONOVO & ORS. VS. FERDINAND MBA & ORS. (2014) LPELR 23035 (SC) held as follows:
“The principle of law is entrenched in our judicial system that he who asserts must prove and whoever desires to have judgment in his favour must establish his case on a preponderance of evidence. Such a party therefore must lead credible and legally admissible evidence in order to succeed. See Sections 131 – 133 of the Evidence Act.”
In the instant case the issue of the admissibility of the agreement dated 25th May, 2001 came up during the trial. The Court found it admissible and admitted it in evidence. It was in the course of writing the judgment and when considering the weight to be attached to the agreement that it found it to be inadmissible and expunged same. It is trite that admissibility of evidence and evaluation of same are different compartments in a judicial proceeding. See DALEK (NIG.) LTD. VS. OMPADEC (2007) 7 NWLR (PT. 1033) Page 402 at 441 Paragraphs D – H; AND ABUBAKAR VS. CHUKS (2007) 18 NWLR (PT. 1066) 386 at 403 – 404 Paragraph D – A where the Supreme Court per Tobi JSC (of blessed memory) held thus:
‘The fact that a document has been admitted with or without objection does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in evidence.
Reliance and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy which propels admissibility is invoked by the trial judge immediately the document is tendered. At that stage, the judge applies Sections 6, 7, 8 other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the judge admits, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado.
Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage, the judge is involved in the evaluation of the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.”
The reason why the lower Court expunged the Agreement is at page 259 of the Record which I have reproduced earlier. It is that it is a registrable instrument which was not registered. The Court held the Appellant relied on the agreement as an instrument transferring title or interest in the land. It is not in dispute amongst parties that the sale agreement dated 25th May, 2001, Exhibit E is an instrument affecting interest/title in land which requires registration. It is also not in dispute that it was not registered in accordance with the law. From the totality of the evidence adduced by the Appellant before the lower Court and his claim it is not in doubt that he relied on Exhibit E as a document transferring title of the disputed property to him. Relief No. 1 in the Amended Statement of Claim is as follows:
1. A declaration that under and by virtue of the Sale Agreement dated 25th day of May, 2001 prepared by A. O. Rahman & Co. (legal practitioners) the entire proprietary interest in the landed property comprised of a block of flats now known as No. 15, Sabo Road, Abeokuta and more particularly delineated in Survey Plan No: MAG 86/77 dated 9th November 1997 was transferred to the claimant at a monetary consideration of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira).
The above relief is very specific in nature. It is that the Appellant acquired interest in the property vide an agreement dated 25th of May, 2001. That is the case put forward by the Appellant before the lower Court. That is the evidence of the Appellant in support of his case. In ISHOLA VS. UNION BANK (NIG.) LTD. (2005) 6 NWLR (PT. 922) 422 at 439 Paragraphs D ? E, Kalgo JSC held:
‘The Court can only use a document properly admitted for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose not intended by parties before it to do so. And even in that case the Court must invite all the parties before it to address it on the point before making a decision on it. This in my view is the only legitimate use of document admitted in evidence in open Court.’
The Appellant intended that the agreement dated 25th of May, 2001 be used as evidence of transfer of title of the disputed property to him and no other use. The agreement is not registered.
The Supreme Court in the case of OGBIMI VS. NIGER CONSTRUCTION LTD. (2006) 9 NWLR (PT. 986) 474 at 493 – 494 Paragraphs G – A held as follows:
‘By virtue of Section 16 of the Land Instruments Law of Bendel State, no instrument shall be pleaded or given in evidence in any Court as affecting any land unless same shall have been registered in the proper office as specified in Section 3 of the law.
In the instant case, Exhibit ‘B’ which was not registered in accordance with the law was thereby rendered inadmissible and its admission by the trial Court was erroneous and subject to be set aside.?
This Court in the case of ODUBOTE VS. OKAFOR (2012) 11 NWLR (PT. 1312) 419 at 493 Paragraphs H ? B held thus:
“It is evident that Exhibits D3 and D4 are unregistered land instruments and are therefore inadmissible in evidence.Section 16 of the Land Instruments Registration Law Cap 53, Laws of Ogun State, 1978 states that:
?No instrument shall be pleaded or given in evidence in any Court affecting any land unless same shall have been registered in the proper office as provided in Section 3.”
See also LAWSON VS. AFANI CONTINENTAL CO. LTD. (2002) (PT. 752) Pg. 585 where this Court held as follows:
‘Exhibit 1 purports to transfer interest in land. It is for that reason, a registrable instrument by virtue of Section 3(2) of the Land Registration Law, Cap 85 of the Laws of Kaduna State of Nigeria, 1991, ‘which requires all instruments including powers of attorney affecting land’ to be registered. It provides that all document transferring or affecting interest in land is registrable and should registered. A registrable instrument which is not registered cannot be pleaded and if pleaded, it is not receivable in evidence, but where through inadvertence it is admitted it should be expunged. This proposition of law is encouraged by Section 15 of the Land Registration Law Cap 85. It enacts as follows:
15. No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.
It is more than trite that if such documents were received in evidence the same should be expunged. See the case of Registered Trustee of MMHC v. Adeagbo (1992) 2 NWLR (PT. 226) 690 and Owoeye Eso & others v. George Okere Adeyemi & another (1994) 4 NWLR (PT. 340) 588 wherein Section 16 of the erstwhile Western Region Land Registration Law Cap 56 of the Laws of Western Region of Nigeria, 1959, was considered. Section 15 of the Land Registration Law Cap 85 as well as Section 16 of the Land Registration Law Cap 56 are impari material.
The Appellant tendered the Sale Agreement of 25th May, 2001, Exhibit E as evidence of transfer of title. The said Agreement was not registered. The lower Court was therefore right to expunge it from the record.
Issue No. 2 is resolved in favour of the Respondent.
ISSUE NO. 3
Whether from the state of pleadings, oral and documentary evidence and the applicable principles of law, the learned trial judge was right in dismissing the claim of the Appellant and granting the Respondent’s counterclaim.
The law is settled that an Appellate Court should be slow to disturb a finding of fact made by a trial judge which is supported by evidence unless such finding is perverse. See AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) PG. 287.
The claim of the Appellant before the lower Court has been reproduced in the earlier part of this judgment. For ease of reference, I shall do so again. It is as follows:
i. A declaration that under and by virtue of the Sale Agreement dated 25th day of May, 2001 prepared by A.O. Rahman & Co. (Legal Practitioners) the entire proprietary interest in the landed property comprised of a Block of Four Flats now known as No. 15, Sabo Road, Abeokuta, and more particularly delineated in Survey Plan No. MAG86/77 dated 9th November, 1997, was transferred to the Claimant at a monetary consideration of N2,800,000.00 (Two Million Eight Hundred Thousand Naira).
ii. A declaration that with effect from 25th May 2001, the Claimant is entitled to the physical possession and uninhibited enjoyment of the property known as No. 15, Sabo Road, Lafenwa, Abeokuta.
iii. A declaration that after 25th May, 2001, the continued occupation by the 2nd Defendant of the property known as No. 15, Sabo Road, Lafenwa, Abeokuta is unlawful.
iv. An order of mandatory injunction enjoining the 2nd Defendant to vacate the property known as No. 15, Sabo Road, Lafenwa, Abeokuta within 14 days of the said order.
v. An order mandating the 2nd Defendant to pay over to the Claimant, all rents due on the property at No. 15, Sabo Road, Lafenwa, Abeokuta with effect from 1st July, 2001 at the various rates pleaded by the Claimant, until the 2nd Defendant relinquishes possession of the said property.
It is clear beyond any iota of doubt that the Appellant’s claim is one for declaration of title to the disputed property. He seeks for a declaration that he is the owner of the block of four flats situate at No. 15, Sabo Road, Lafenwa Abeokuta by virtue of a Sale Agreement executed between him and the Respondent and therefore entitled to physical possession. The law is settled that one of the ways of proving title to land is by production of title documents. SeeIDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 246 and NWOKOROBIA VS. NWOGU (2009) 10 NWLR (PT. 1150) PG. 553.
Mere production of title document is however not conclusive proof of title to land. A Court must examine the document produced and ascertain its validity. See ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238) PG. 650 and AKINDURO VS. ALAYA (2007) 15 NWLR (PT. 1057) PG. 312.
In ROMAINE VS. ROMAINE (SUPRA) Nnaemeka Agu JSC at pg. 662 paragraphs E – G held as follows:
‘I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant…’
But it does not mean that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including
i) Whether the document is genuine and valid.
ii) Whether it has been duly executed, stamped and registered.
iii) Whether the grantor had the authority and capacity to make the grant.
iv) Whether the grantor had in fact what he purported to grant; and
v) Whether it has the effect claimed by the holder of the instrument.
In the instant case the Appellant relied on the method of production of title documents to establish his claim for declaration of title. He therefore has a duty to produce legally admissible document to establish same. The document relied upon by the Appellant as transferring title to him is the Agreement dated 25th May, 2001 which was validly expunged from the record. The lower Court found no other legally admissible evidence to support the Appellant?s case and went on to dismiss it. The Court at Pages 260 ? 261 of the record held thus:
‘Outside Exhibit C, what further evidence is there to sustain the claims of the Claimant’. Only his ipsit dixit. No other documentary evidence under English law, sale of land cannot be done orally but in writing. Apart from Exhibit C, which has been expunged, the Claimant has no other documentary proof of the purported sale transaction…….. clearly therefore, the Claimant, on whom lies the onus to prove his case, has not proffered any evidence outside the expunged Exhibit C, to discharge that onus.
I have gone through the evidence of the Appellant at the lower Court, the documents tendered and indeed the entire record of proceedings and cannot find any other document transferring title of the disputed property to him. The Appellant failed to produce any legally admissible document to establish his title to the property. The Survey Plan and approved building plan tendered by the Appellant are not documents of transfer of title and cannot be held to be.
There are five recognized ways of proving title to land. One of which is by production of a valid instrument of grant. This is the method chosen by the Appellant. The law is settled that a party who seeks a declaratory relief must establish same by cogent and credible evidence. The onus is on him to prove his case. He cannot rely on the weakness of the case of the Defendant. See NWAOGU VS. ATUMA (2013) 11 NWLR PT. 1364 PG. 117 AT 141 ? 142 PARAS H – C; NWOKIDU VS. OKANU (2010) 3 NWLR (PT. 1181) 362 AND DUMEZ (NIG.) LTD. VS. NWAKHOBA (2008) 18 NWLR (PT. 1119) 369 AT 373 – 374.
The instant Appellant failed to present before the lower Court evidence to support his claim of title to the disputed property. He has thus failed to prove his case and therefore not entitled to the reliefs claimed. The lower Court was right when it held that the Appellant did not prove his case and went on to dismiss same.
The Respondent filed a counterclaim and claimed as follows:
1) A Declaration that the memo between ALHAJI RAMONI ADEKUNLE AND CHIEF NOFIU SURAKATU dated 25th day of May, 2001 did not and cannot transfer the landed property comprised of a Block of four flats situate, lying and being at No. 15, Sabo Road, Lafenwa, Abeokuta to the Claimant.
2) An Order nullifying the memo between ALHAJI RAMONI ADEKUNLE AND CHIEF NOFIU SURAKATU dated 25th day of May, 2001 for being null and void.
3) An Order on the Claimant to return to the 2nd Defendant all title documents relating to the landed property comprised of a block of four flats situate, lying and being at No. 15 Sabo Road, Lafenwa Abeokuta including (a) Survey Plan No: MAG/86/77 and dated 9th November 1977 (b) Approved building plan with respect to the said property.
The lower Court held on the counterclaim at page 265 of the record as follows:
‘On the Counterclaim, upon the evidence before this Court, which I have reviewed and evaluated, which review and evaluation I hereby adopt in treating the counter claim, I find and hold that the Counterclaimant has succeeded in proving same. He has shown that there was no sale of the subject property to the Claimant, but that it was merely used as a collateral for a 3rd party loan which has been fully repaid. He is therefore fully discharged and entitled to a return of his title documents. I therefore find merit in the counterclaim and it succeeds.’
The question now is whether the facts before the lower Court and the law support the findings and conclusion of the lower Court on the Respondent?s counterclaim.
The Respondent in his Statement of Defence at the lower Court which is contained at pages 114 – 117 of the record averred thus:
6. The 2nd Defendant states that sometime in or about the 15th day of May, 2001, his bosom friend, Chief Fae Ehimen, came to his house in company of Messrs Lekan Sonde and Anthony Elis Aigbogun.
7. Chief Fae Ehimen introduced Mr. Lekan Sonde as his business partner and Mr. Anthony Elis Aigbogun as his younger brother based in Germany.
8. After the brief introduction Chief Fae Ehimen told the 2nd Defendant that his brother was desirous of going back to Germany, his base but has not got the money to finance his trip and that they were from a certain money lender who turned out to be the Claimant herein, who has agreed to give them a loan but requires a substantial property as collateral for the loan.
9. Chief Fae Ehimen further told the 2nd Defendant that the Claimant had agreed to loan them the sum of N2, 000,000.00 for two months with an interest at the rate of 20% per month which interest alone amounted to N800,000 and thus both the principal sum and interest thereon amounted to the sum of N2,800,000.00 and the Claimant would not accept the title documents of Mr. Anthony Elis Aigbogun property as he claimed it was not substantial enough to cover the loan and interest thereon.
10. After assuring the 2nd defendant that the money will be paid within the agreed period Chief Fae Ehimen asked if the 2nd defendant would assist them by presenting the title document of the property in dispute as collateral for the loan.
11. The 2nd defendant assured Chief Fae Ehimen that he would be most willing to help out provided the claimant will accept from him title document that is not in his name and which does not belong to him only as he has several siblings with whom he jointly inherited the property in dispute from his late father.
12. Thereafter, the 2nd defendant with Chief Fae Ehimen, Mr, Anthony Elis Aigbogun and Mr. Lekan Sonde all left for the claimant’s house where the 2nd defendant presented all the title documents of the property in dispute to the claimant with explanations that it was an inherited property belonging to him and his other siblings.
13. The claimant accepted the title documents to the property in dispute with all the explanations of the 2nd defendant but to the surprise of all the claimant eventually came up with a Memo dated 25th May 2001 that purportedly sold the property in dispute to the claimant by the 1st defendant herein, the deceased father of the 2nd defendant for N2, 800,000.00.
14. Initially, the 2nd Defendant declined to sign the said Memo pointing out to the claimant that it was his late father’s name on the said Memo and not his and furthermore that he was only using the property as a collateral for the re-payment of the loan he was advancing to Mr. Anthony Elis Aigbogun and not selling same to him.
15. The claimant explained that preparing the document in such manner was the only way he could protect his money and that the 2nd defendant had nothing to fear as all the documents of title will be returned to him as soon as the loan and interest thereon was repaid; and based on the assurances of the claimant the 2nd defendant signed the said Memo.
16. After the signing the said Memo the claimant took the 2nd defendant, Chief Fae Ehimen, Mr. Lekan Sonde and Mr. Anthony Elis Aigbogun to the Afribank, Oke-llewo Branch, Abeokuta where the claimant released the sum of N2, 000,000.00 to Mr. Anthony Elis Aigbogun and the claimant requested the 2nd defendant to obtain a written Memo from Mr. Anthony Elis Aigbogun which was done. The 2nd defendant will found on the said Memo dated 15/5/2001 at the hearing of this matter.
17. The loan with the interest was not repaid within the agreed two months period as Mr. Anthony Elis Aigbogun only showed up on the third month which made the claimant to re-calculate the interest at the rate of 20% for three months which amounted to the sum of N1,200,000.00 and the said Mr. Anthony Elis Aigbogun paid same by giving to the claimant three nos. cars as follows (1) one Peugeot 605 (2) one Golf and (3) one Scorpio all of which the claimant accepted in lieu of payment of the sum of – N1,200,000,00 interest on the loan of N2,000.000.00 for three months.
18. That left the principal sum of N2, 000,000.00 which was finally liquidated based on similar arrangement when Mr. Anthony Elis Aigbogun’s sent to the claimant another set of five (5 nos) vehicles viz; (1) a Daf Truck (2) Iveco Truck (3) Maxima Car (4) Omega car and (5) Isuzu Jeep in lieu of cash which the claimant sold as follows:
a) The Daf Truck and and Iveco Truck to Millennium Investments Limited at the sum of N2, 200,000.00.
b) The Maxima car was sold to Mr. Bola Bello for the sum of N260,000.00.
c) The Opel car was sold to the defendant for the sum of N80,000.00 and
d) The Isuzu was not sold by the claimant but kept for himself.
19. The 2nd defendant avers that the claimant called on him to witness the sale of the said Iveco and Daf trucks to Millennium Investments Limited. The 2nd defendant pleads and will found on the receipt with which the claimant sold same and which he signed as a witness for the claimant.
20. The 2nd defendant further avers that the total sum realized by the claimant after selling the additional vehicles mentioned in paragraphs 18 above was N2,200.000.00 which was far and above the outstanding principal sum of N2,000,000.00 Mr. Anthony Elis Aigbogun owed the claimant.
21. After the payment of the principal and interest on the loan Mr. Anthony Elis Aigbogun took from the Claimant he declined to release all the title documents of the property in dispute which he collected from the 2nd Defendant as security for the loan but instead institute this action.
The Respondent testified on his own behalf and called Chief FAE Ehimen as a witness. The testimony of the Respondent and his witness was in line with the averments in the Statement of Defence which in summary is that the disputed property was used as security for a loan granted Mr. Anthony Elis Aigbogun by the Claimant which loan has been repaid. The two witnesses were cross examined by the Appellant?s Counsel. Their evidence was not discredited under cross examination.
The trial judge evaluated the evidence of DW1 and DW2 and came to the conclusion that what transpired between the parties was not a sale of the disputed property but that the property was used to guarantee a loan granted to Elis Aigbogun by the Appellant. The Appellant has not shown any valid reason why I should disturb these findings of the lower Court and the conclusion reached and I do not see any reason why I should.
The Appellant’s Counsel submitted that the lower Court decided a case different from that placed before it and upon which issues were joined by deciding that the transaction between the Appellant and the Respondent was a loan Agreement and not a sale. The case of the Appellant is that the transaction between him and the Respondent is a sale while that of the Respondent is that the transaction was a security for a loan which had been repaid. The Respondent counterclaimed for the return of his title documents. The issue before the lower Court was clearly for a determination whether the transaction between the parties over the disputed property was an outright sale or whether the property was used as a security for a loan. Parties adequately joined issues on the purpose for which the title documents exchanged hands and the lower Court decided that issue.
The lower Court properly evaluated the evidence before it and preferred the case of the Respondent. The Appellant alleged that the transaction on which the Respondent relied for his case was different from the case before the Court. The onus was on him to prove that the transaction relied upon by the Respondent was different, distinct and unrelated to the case at hand. He failed to do this. I am of the view that the lower Court understood the case before it and was right when it found in favour of the Respondent. Since the Appellant has failed to establish ownership of the disputed property and it is not in contention that he was given the original title documents by the Respondent, the lower Court was right to make the Order that the Appellant return the title documents to the Respondent.
Issue No 3 is resolved in favour of the Respondent.
In conclusion, having resolved all issues in favour of the Respondent, I find this appeal devoid of merit and it is accordingly dismissed. The lower Court properly evaluated the evidence before it, applied the correct legal principles and came to an unassailable conclusion.
The judgment of the lower Court in Suit No: AB/65/2009 delivered on the 4th of June, 2013 is hereby affirmed. The Appellant shall pay to the Respondent N100, 000.00 costs.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment of my learned brother Folasade Ayodeji Ojo JCA which I entirely agree with and subscribe to in the reasoning and conclusion. I wish in addition to refer with due respect to an excerpt in the Judgment of the trial Court wherein the judge observed thus:-
“Before concluding on the Claimant’s case, I wish to quickly return to Exhibit ‘E’. It is possible that I am wrong in expunging it and in not treating it as a receipt or an acknowledgment of payment of money by the Claimant to the 2nd Defendant at the very least. In that event and as an alternative to my earlier stance, I wish to say that even if Exhibit ‘E’ is treated as an agreement to sell or a receipt or acknowledgment, considered along with the entire body of evidence, it still will not in my humble view, avail the Claimant because upon the preponderance of evidence, including Exhibit E’, it is clear that there was not rea/ contract of sale of property to the Claimant. That was not the primary intention of the parties. Exhibit ‘E’ was at best a sham or dummy sale or contract of sale meant as a fallback position for the Claimant in event of default by Anthony Aigbogun. Since there was no default by Anthony Aigbogun there is no basis for recourse to the dummy sale or fall back position represented by Exhibit ‘E’. To hold otherwise would/ in my humble view, amount to double compensation for the Claimant/ which the law forbids.
Therefore, even if Exhibit ‘E’ has any probative positive or legal effect/ the fact that Aigbogun has repaid his loan to the Claimant renders Exhibit E no longer operative, effectual or binding on the 2nd Defendant. Either way therefore, Exhibit ‘E’ gives no joy to the Claimant. Consequently. I find and hold that the Claimant has no basis to continue to hold on to the title documents he collected from the 2nd Defendant or to demand for possession of the house at stake in this case. I find no merit at all in the case of the claimant and the same is hereby dismissed in its entirety.”
Exhibit ‘E’ is truly a sham. It is the habit of many money lenders to prepare a “Sham or dummy” sale of property used as security for the loan they give and pray that the lender should default so that they could fall back on the sham or dummy contract to claim the house they did not build.
The Law, particularly legislation follows the practice of people regulated in a particular field. This practice of claiming the property of hapless borrowers should be checked by legislation in this case the Money Lenders Law which should be amended by criminalizing such conduct that many money lenders indulge in. This case should serve as an impetus to effect such change in the Law.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege before today of reaching the Judgment of my learned brother FOLASADE AYODEJI OJO, JCA which he has just delivered. I agree with him that this appeal is devoid of merit and it is accordingly dismissed.
The appeal is against the Judgment of Ogun State High Court, Abeokuta Judicial Division delivered on the 4th of June, 2013. The lower Court dismissed the Claimant’s case and granted the reliefs sought in the counter claims. These claims in the main are for declaratory reliefs and injunction. The onus to call credible evidence and establish the claims lay squarely on the Appellant as the Claimant in the case. The case of the Appellant is that the transaction between him and the Respondent is a sale while that of the Respondent is that the transaction was a security for a loan which had been repaid. The Respondent counter claimed for the return of his title documents. The issue before the lower Court was clearly for a determination of whether the transaction between the parties over the disputed property was an outright sale or whether the property was used as a security for a loan. After hearing evidence and the address of learned counsel on the two side, the learned trial Judge entered Judgment for the Respondent. The Appellant has not shown any good reason why we should upturn the decision of the lower Court.
Accordingly I also find no merit in this appeal which I hereby dismiss with N100,000.00 cost to the Respondent.
Appearances:
Oluseye Chukurah, Esq.For Appellant(s)
Respondent Counsel absentFor Respondent(s)
