MASCOT O. OKORONKWO v. CHIMA ORJI
(2019)LCN/12533(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/OW/43/2016
RATIO
CIVIL: WHETHER A CRIMINAL WRONG DOING CAN BE ALLEGED IN A CIVIL PROCEEDING
“By law, where criminal wrong doing is alleged in a civil proceeding, the person raising same has the duty to prove the allegation on the same standard of proof meant for criminal offence, beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Raymond Dongtoe Vs Civil Service Community Plateau State & Ors (2001) LPELR 959 SC; Daudu Vs FRN (2018) LPELR 43637 SC; Mohammed Vs Wammako & Ors (2017) LPELR 42667 SC, where it was observed: What is even worse in the instant case is the fact that the Plaintiff made a host of criminal allegations against the 1st Respondent. He, thus, had a duty to prove these allegation beyond reasonable doubt, Ndoma-Egba Vs ACB Plc (2005) 7 SC (Pt.111) 27; APC Vs PDP (2015) 15 NWLR (Pt.1481) 1, 66 – 67. It is also interesting to note that Appellant did not appeal against those findings and holding of the trial Court, that Appellant did not discharge the burden of proof of the alleged criminal imputations, that the Exhibit H was forged or that his signature on it was fraudulently inscribed! The law is trite, that a finding of Court which is not appealed against remains valid, binding and conclusive. See Ebenighe Vs Achi (2011) 2 NWLR (Pt.1230) 65; Anioslina Vs State (2011) 14 NWLR (Pt.1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Ogwudire Vs Obigwe & Anor (2014) LPELR 23635 (CA).” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
MASCOT O. OKORONKWO Appellant(s)
AND
CHIMA ORJI Respondent(s)
ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment):
This appeal originated from the judgment of Abia State High Court in Suit No. A/139/2009, delivered on 22/3/2013 by Hon. Justice L. Abai, wherein the learned trial Judge granted the reliefs sought by the Plaintiff (now Respondent), namely: title to land and statutory right of occupancy over the piece or parcel of land known as and called AZULO IKONNE, situate at Umuola, Aba and registered as No. 48 at page 48 in Volume 909 of the Lands Registry, Umuahia.
At the Lower Court, the Plaintiff had sought the following reliefs:
(1) a declaration that the Plaintiff is the person entitle (sic) the grants of statutory right of occupancy over the piece/parcel of land known as and called Azulo Ikonne situate at Umuola, Aba and Registered as No. 48 at page 48 in Volume 909 of the Land Registry, Umuahia.
(2) The sum of N10,000,000 (Ten Million Naira) being damages.
(3) Injunction restraining the Defendant from trespassing unto the said AZULO IKONNE.
The Defendant (now Appellant) filed a Counter-claim praying for:
“(1) A declaration that by virtue of the Power of Attorney donated to the Defendant/Counter claimant by Elder Solomon O. Ikonne, dated 18th December 2007, and registered at the Lands Registry, Umuahia as No. 100 at page 100 in Volume 899, that the Defendant/Counter-claimant is the Beneficial Owner in possession and person entitled to the grant of a statutory right of occupancy over the piece or parcel of land traditionally known as and called AZULOR IKONNE situate and lying at Umuola, Ogbor Hill, Aba and described in the Survey Plan No. VEN/AS940/2003 or TNK/AB/365/2003.
(2) A declaration that the entry and trespass of the Plaintiff/Respondent into the said AZULOR IKONNE Land situate and lying at Umuola, Ogbor Hill, Aba and described in the Survey Plan No. VEN/AS940/2003 or TNK/AB365/2003, at all material times as herein before stated, is unlawful and illegal.
(3) A declaration that the power of Attorney dated 20th February, 2008 and purportedly donated by the Defendant/Counter-claimant to the Plaintiff/Respondent and over the aforesaid AZLOR IKONNE Land and Registered at Land Registry, Umuahia, as No. 48, at page 48 in Volume 909 is void, illegal and of no effect and warranting no title to the Plaintiff/Respondent over the land in dispute.
(4) An Order of Court revoking and cancelling the purported land document registration registered as No. 48 at page in Volume 909 at the Lands Registry, Umuahia.
(5) Perpetual Injunction restraining the Plaintiff/Respondent by himself of (sic) through his agents, servants and/or privies from further entering into the aforesaid AZULOR IKONNE Land.
(6)Ten Million Naira (N10,000,000.00) as damages for the trespass committed and being committed by the Plaintiff on the land.
After hearing the case and considering the addresses of Counsel, the trial Court held for the Plaintiff as follows:
There is no doubt that once a person enters into loan agreement, signs the agreement and receives the amount of the loan, he is bound by the terms of that agreement which he freely entered into.
In other words where a party of full age and capacity enters into an agreement he is bound by its terms and cannot resile from the same after benefiting, merely because he has realized that some of the terms are no longer favourable to him. There is no doubt in my mind that it is the position of the law that where title deeds are given as security for a loan and the loan repaid, the borrower is entitled to the return of his title Deeds. That however is not applicable in the instant case, as the defendant has failed or neglected to repay the loan since it became due in June, 2007. He also went further to grant a Power of Attorney to the Claimant transferring his property. There is no evidence that he has made any attempt to repay the loan almost four years after. The defendant having obtained some benefit and having signed, he cannot be allowed to resile from it on the ground that it is unenforceable. He cannot have his cake and eat it (sic)? After a consideration of the evidence before the Court, I am satisfied that the Claimant has proved his case on the balance of probabilities. Judgment is entered for the Claimant as follows:
(1) A declaration that the Claimant is the person entitled to grant of Statutory right of occupancy over the piece/parcel of land known as and called AZULO IKONNE situate at Umuola, Aba and Registered as No. 48 at page 48 in Volume 909 of the Lands Registry Umuahia.
(2) Injunction restraining the defendant from trespassing into the said Azulo Ikonne.
(3) On the Counter-claim, the reliefs sought are explicitly tied to the Claims by the Claimant. The Counter-claimant seeks a declaration that title to the property in dispute still resides in him. For reasons set out earlier in this judgment, it is my view that the Counter claim lacks merit. It is dismissed. See pages 359 – 360 of the Records of Appeal.
Dissatisfied with the above, Appellant filed this Appeal, as per Notice of Appeal filed on 30/4/13, later amended by the Amended Notice of Appeal, filed on 26/1/2018 with the leave of this Court obtained on 23/01/18. He had formulated two (2) Issues for the determination of the Appeal, as follows:
“(a) Whether, having regards to the pleadings and evidence of the parties, together with all the materials placed before it, the High Court was justified in arriving at the conclusion that the Respondent is entitled to the statutory right of occupancy of the piece of land called Azulo Ikonne in Aba, registered as No. 48 at page 48 in Volume 909 of the Lands Registry, Umuahia.
(b) Whether the trial Court was right in holding that the dispute (sic) property was validly transferred unto the Respondent, pursuant (sic) both the loan agreement and a subsequent sale amid the discrepancies in the document and when the instrument of transfer did not disclose any nexus with the loan.
The Respondent filed a brief on 19/5/2017 which was deemed duly filed on 23/1/18. The Respondent adopted the two Issues by the Appellant for the determination of the Appeal. When the Appeal was heard on 26/11/18, Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.
It can be observed that Appellant’s Counsel did not formally relate any of the two Issues for the determination of the Appeal to any of the four grounds of the Appeal. Technically, that should mark the end of the road for this Appeal, but the interest of doing substantial justice compelled me to read over the 4 grounds of the Appeal, vis a vis, the 2 Issues and the reading revealed that the Issues appeared to derive from grounds 1 and 3, which, (excluding their particulars) are:
(1) The Learned Justice of the High Court of Abia State sitting in Aba erred in law when he erroneously misinterpreted the law and reached a conclusion that the Claimant/Respondent is entitled to the dispute property irrespective of the fact that the title deed was not executed by the Defendant/Appellant, a conclusion which cannot reasonably be drawn from the facts as founded in this case.
(3) The judgment is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence of the witnesses in this case.
I have already reproduced the two Issues for the determination of the Appeal, and I think the Issue one conveniently flows from the ground 3 of the Appeal, while the ground one of the Appeal donates the Issue 2.
It is, always, the duty of the Appellant to relate the issues for determination of the appeal, formally, to the grounds of the Appeal, to spare the Appellate Court the troubles this Court has just undertaken. See the case of Ukwuoma Vs Okafor (2016) LPELR 41505 CA, where it was held:
where Appellants Counsel fails to relate the issue(s) for the determination of the Appeal to the ground(s) of Appeal, he simply places more burden on the appellate Court, to read through the whole gamut of his Notice of Appeal, the grounds of Appeal and the brief of arguments, particularly the issues distilled, to see which issue derives from which ground of appeal, thus doing the work of marrying the issue(s) to the ground(s) for the Appellant?s Counsel. It would take a lot of patience and sacrifice to do that, and, that is, where the interest of justice so demands, to avoid visiting the misfeasance of Counsel on his client. In the case of Agodi Vs Anyanwu (supra), this Court opted to look at the grounds of Appeal, identify which one gave birth to or properly related to the issue which the Appellant had donated for the determination of the appeal, in the interest of justice. See also the case of Ejiogu Vs Nwauzoagba & Ors (2018) LPELR 44577 CA, where this Court relied on the Supreme Court decision in Diamond Bank Plc Vs HRH Eze (Dr.) Peter Opara & Ors (2018) LPELR 43907 SC say that:
‘While it is true that the rules as regards filing of brief of argument do not specifically state that Counsel must indicate in his brief which of the ground or grounds of appeal are covered by an Issue, it is highly desirable that that should be done. This will assist the Court, tremendously, in relating arguments on the issues to the grounds of appeal they are related? Therefore, failure to do that is a mere inelegance, which cannot render the issue or issues void.’ NPA Vs BP PTE Ltd (2012) 8 NWLR (Pt.454) 480.
In that case of Diamond Bank Plc Vs Opara (supra), the Supreme Court held:
‘It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced Abe Vs University of Ilorin (2013) 6 NWLR (Pt.1319) page 183 at 205.’
However, not tying the issues to the grounds is a mere inelegance, which cannot render the issue to be incompetent and struck out
I shall therefore consider the appeal on the said two Issues as related by this Court to the said two grounds of Appeal, in the interest of justice, and I shall consider the two Issues, together. The implication of this is that the grounds 2 and 4 of the appeal are hereby struck out as they generated no issue for determination. The State Vs Omoyele (2016) LPELR 40842 SC.
Appellant’s Counsel, Emeka Nnaji Esq, who settled the brief, had argued that in an action of title to land, where parties agree that title was previously vested in one of them, the burden is on the other party to prove that the party, in whom that title had vested, had been divested of it, and how it was accomplished. Thus, where the root of title is admitted, the onus to prove a change in the ownership shifts to the party who asserts the change. He relies on Ufomba Vs Ahuchaogu (2003) 8 NWLR (Pt.821) 130 at 149. Counsel said that since the Respondent had admitted that the property originally belonged to the Appellant, the Respondent had the duty to establish that the ownership changed; that Appellant was divested of the ownership by virtue of the loan and subsequent sale of the property to him. Appellant?s Counsel submitted that this has not been done by the Respondent. He, however, acknowledged Exhibit J as the document prepared and signed during the sale of the land, as a set off for the loan. Counsel said the Respondent did not present Exhibit J as Power of Attorney, therefore, it was absurd for the trial Court to set out issues for determination, outside the claim of Respondent and grant same; he said that the Respondent cannot be entitled to the property, both from the default in the repayment of the loan and as a sale of the same. He argued that the claim of the Respondent had no nexus with the loan transaction to warrant the trial Court to consider the title of the Respondent from a subsequent sale as a set off.
Counsel argued that if the parties had agreed that the sell will be a set off for the loan, why then should the consideration be N420,000.00 in the Respondent’s document of title, instead of the N960,000.00, being the amount purportedly agreed to be set off; whether it would not amount to a fraudulent act for the Respondent to reduce the amount when his claim was that he agreed for a set off of the loan with the Appellant. Counsel said the trial Court failed to appreciate this, but rather made a case for the Respondent. He said that for a set off to be valid, it must set off the entire sum agreed and not part of the sum. He argued that the agreement to sell a land is a contract and therefore must comply with the parameters for voluntary entry into the scheme as well as offer, acceptance and consideration, operating within a consensus ad idem. He relied on SGNB LTD VS SAFA STEEL MANUFACTURING LTD (1990) 5 NWLR (Pt.548) 168.
Counsel queried whether there was agreement between the parties to sell the property to the Respondent as a set off for the land, and answered in the negative. He said that Appellant had joined issues with the Respondent on the authenticity of his signature, or that the signature was not that of the Appellant, but the trial Court neglected to consider the provisions of Section 101(1) of the Evidence Act, in reaching its conclusion that the signature in the said document was that of Appellant. Counsel however said Appellant admitted the signature in Exhibit J and in Exhibit G (loan agreement)! See page 14 of the Brief (paragraph 2.15). But he denied signing Exhibit H – the Power of Attorney. Counsel said that the failure of the trial Court to compare the signatures and evaluate the evidence on the issue, amounted to total asphyxiation of justice of this case. Counsel said that the Respondent did not traverse the denial by the Appellant, that he did not sign the Exhibit H – Power of Attorney. He relied on the case of Atanda Vs Iliasu (2013) 6 NWLR (Pt.1351) 566 on when a material fact pleaded and adopted in evidence and is not traversed.
On Issue 2, whether the Court was right to hold that the property was validly transferred to Respondent, pursuant to the agreement and a subsequent sale, amid discrepancies in the document, when the instrument of transfer did not disclose any nexus with the loan, Counsel answered in the negative, and said it was absurd and incomprensible for the property of the Appellant to pass onto the Respondent through the default in the repayment of the loan and also through a sale; he said that the transfer could only be done by means of the loan agreement or by sale.
Counsel submitted that a document of title does not automatically grant ownership to a party brandishing it; that the party must prove that the document is valid, genuine and duly executed. He relied on Songo Vs Akure (2015) 1 NWLR (Pt.1441) 536 at 564. He argued that the document of title of the Respondent was not granted pursuant to the loan, as erroneously believed by the trial Court, but by subsequent sale; that the Respondent also failed to show that the document was executed by the Appellant; he said that the trial Court shut its eyes to discrepancies in the said document. He said that it was incomprensible to appreciate how the Respondent picked up an equitable interest in the disputed property in 2003, took possession on 18/6/2007, by virtue of default in payment of the loan and finally granted a transfer by sale of the same property on 20/2/2008 ? barely one month after the Appellant registered his interest in the property!
Counsel relied on the case of Nkwo Vs Iboe (1998) 7 NWLR (Pt.558) 31 at 34 on how title to land is proved. He argued that when a party relies on document as source of title to land, that document must co-relate with the land and show that the agreed terms were stated therein. Counsel submitted that by the loan agreement, Appellant had a right of redemption, pursuant to which he issued a post-dated cheque to the Respondent; but unfortunately, the Respondent did not present the cheque, claiming that he knew that there was no money in the account. He argued that a cheque is a legal tender, that it was negligence on the part of the Respondent not to present the cheque. Counsel said that the holding of the trial Court that Appellant could not pay back the loan, because he stopped the cheque was misconceived. He urged us to interfere in this case and reverse the decision of the trial Court, and allow the Appeal.
Responding, Counsel for the Respondent, Chief Emeka Okeke (who settled the brief) said the issue had to do with the interpretation of Exhibit G (loan agreement); he said that while the Respondent contented, at the Lower Court, that Exhibit G was legal and conferred the title in Exhibit J (sale agreement) on him (Respondent), Appellant contended that Exhibit G was illegal, that he signed same under duress, and that Exhibit H (Power of Attorney) was forged. Counsel said that in arriving at the conclusion that Exhibit G was legal, the Lower Court took into consideration the fact that Appellant signed it without compulsion, with the wife as witness. He relied on the Supreme Court case of Arjay Vs Airline Management Support Ltd (2003) FWLR (Pt.156) 943 to say that
‘It is elementary law that where parties have entered into an agreement or contract, they are secured by the provisions of the contract or agreement. This is the essence of the doctrine of sanctity of contract. That it does not matter that the defendant later realized that the terms of the agreement he entered into with Plaintiff were unfavourable to him.’
He also relied on Chridom Nig. Ltd Vs A.I.R. (2002) FWLR (Pt.128) 1355; Yadis Vs Great Nig. Insurance (2007) 5 SCNJ 86 at 92; A.G. Rivers State Vs A.G. Akwa Ibom State (2011) 3 SCNJ 6.
Counsel submitted that the undue influence alleged by the Appellant was rejected by the Lower Court, when Appellant sought to amend his pleadings to include same. He observed that CW2, who prepared the Exhibit G, was legal practitioner and that Appellant signed the document, which authorized the registration of the Exhibit J by the legal practitioner. Thus, there was no room to allege undue influence!
Counsel said the Lower Court was also right to resolve that Appellant signed Exhibit H (Power of Attorney). Counsel said that apart from the fact that the trial Court compared the signatures of Appellant in Exhibits G & J (which he admitted signing) with that in Exhibit H, and ascertained to be the same, that Appellant did not prove forgery as provided by Section 135(1) of the Evidence Act, 2011; he said that the onus to prove forgery in a civil matter never shifts. He relied on Famuroti Vs Agbeke (1991) 5 NWLR (Pt.189); SPDC (Nig.) Ltd Vs Olarewaju (2003) FWLR (Pt.140) 1640 at 1644.
Counsel noted that Appellant execution of Exhibit H was in fulfillment of the terms of Exhibit G – paragraph 6 thereof. He relied on the case of Jiwul Vs Danlong (2002) FWLR (Pt.114) 481 to say that the trial Court was satisfied that Exhibit H met the requirement of law as instrument of grant as root of title, which are:
(a) Whether the document is genuine.
(b) Whether the Grantor had the capacity and authority to make the grant.
(c) Whether the Grantor had in fact what he purports to grant.
(d) Whether it has been executed.
(e) Whether it had the effect claimed by the holder.
Counsel further argued that Appellant?s allegation that his signature in Exhibit H was forged was contradictory to his allegation that he signed it under duress, meaning that the allegation of forgery is replaced with that of undue influence! He argued that it cannot be both at the same time.
He relied on Okafor Vs Okafor (2015) 4 NWLR (Pt.1449) 335 at 362. He urged us to resolve the Issues against Appellant and to dismiss the Appeal, and placed reliance on the recent decision of this Court in CA/OW/232/2011: Prof. Henry Eke Vs HRH Eze J.K. Abba, delivered on 4/2/15.
In his reply brief, Appellant said the matter at the Court below was not about interpretation of the Exhibit G, but about declaration of title to land. He also said that a contract should be construed, strictly, in the light of the essential and material terms agreed by the parties and the Court should not allow a party to dribble the other party. He relied on Best Nigeria Ltd Vs Blackwood Hodge Nigeria Ltd & Ors (2011) 1 – 2 SC (Pt.1) 55.
RESOLUTION OF THE ISSUES
I have already opted to consider the appeal on the two Issues raised by the Appellant and to take the two Issues, together.
A brief facts of this case at the Lower Court, shows that the parties entered into a loan agreement, whereof Appellant collected a friendly loan of N960,000.00 from the Respondent, as per the Exhibit G. Appellant had issued a post dated cheque (Exhibit A) in anticipation of the date the loan would be due for refunds, but he later cancelled the cheque, as Respondent was not satisfied with it . The Respondent, in addition to Exhibit A (post dated cheque) had demanded for the title documents, which Appellant produced, as in Exhibit J, which the parties agreed should be registered, and it was registered by CW2, Solicitor engaged by them.
In the Exhibit G (loan agreement), clause 6 thereof, the parties had agreed, as follows:
“In the event that the BORROWER fails, refuses or neglects to repay said sum herein advanced to the LENDER within the period stipulated in 3 above, the property SHALL IMMEDIATELY THEREAFTER VESTS in the LENDER, as if the same has been purchased by him for the value of the sum herein advanced to the BORROWER, and the Lender (sic) shall execute a Power of Attorney in favour of the LENDER, who shall take steps to perfect his ownership of the said security by virtue of these present.” (See page 104 of the Records of Appeal).
Upon failure to repay the loan, as agreed, the parties executed a Power of Attorney (Exhibit H) in favour of the Respondent on 20/02/2008 and the same was registered and the Respondent went into possession of the property in 2008, built a bungalow on the land and put tenants there before the Suit commenced in 2009.
Appellant denied making the Exhibit H, voluntarily, or at all, saying the document was forged. He, however, admitted signing Exhibits G and J. He also admitted that CW2 (the Solicitor who prepared Exhibit H) after registering Exhibit J, at his instruction, handed it over to the Respondent. He (Appellant) also said the loan was not interest-free, and added that he was the one who stopped Exhibit A (post-dated cheque) from being cashed by the Respondent (which conflicted with the argument in his brief (paragraph 3.7) that Respondent did not present the cheque, claiming that Appellant had no money in the account!)
I think the parties are ad idem, with respect to the basic facts namely, that they had a friendly loan agreement (Exhibit G) and pursuant to the Exhibit G, made Exhibit J (sale agreement as power of attorney); upon Appellant failing to settle the loan and the Exhibit A (post-dated cheque) being stopped or not yielding returns, the Respondent took over possession and ownership of the property, subject matter of land instrument No. 48 at page 48 in Volume 909, Lands Registry, Umuahia, and pursuant to a Power of Attorney (Exhibit H), donated by the Appellant.
The only point of disagreement between the parties appears to be on Exhibit H, whether the Appellant, in fact, made it, or did so, voluntarily! Of course, Appellant was, in my opinion, not consistent, with regards to his objection to or contention about the Exhibit H. In one breath he alleged that the document was forged and in another breath, he said he did not consciously sign the document; that his signature was scanned on it, or done by electronic graft! In paragraphs 28 and 29 of his Statement on oath (page 247 of the Records) he said:
(28) That I did not at any time donate a Power of Attorney to Mr. Chima Orji or any other person in respect of my aforesaid land and that I did not execute any document transferring my title in the said land to Mr. Chima Orji or any other person. All that transpired between Mr. Chima Orji and myself was a loan transaction in which I deposited my title deeds to the said property as collateral security.
(29) That the Power of Attorney which Mr. Chima Orji purports to have been donated to him by me was fraudulently obtained and was in actual fact a forged document.
But in the same affidavit evidence, paragraphs 31 & 32, thereof, while trying to state the particulars of fraud, Appellant deposed:
(31) That the title document Registered at the Lands Registry, Umuahia, as No. 48 at page 48 in Volume 909 is forged or fraudulently obtained by Mr. Chima Orji and ought not to have been registered for the following reasons:
(a)The said document was not signed by the solicitor who prepared it.
(b) The date of execution of the said Deed of Power of Attorney is posterior to and at variance with the date on the Survey Plan attached thereof.
(c)The consideration sum of N420,000.00 thereon is far less than the value the money at stake and being owed Mr. Chima Orji by me.
(d) The consideration sum of N420,000 which Mr. Chima Orji purports to have bought the land from me is a far cry from the actual value of land within the time frame when the land was allegedly sold to Mr. Chima Orji?
(e) I did not consciously or conscientiously sign the said document.
The signatures thereon purported to be mine and of my witnesses were obtained for the benefit of Mr. Chima Orji by use of the electronic graft or scanning or some other similar method.
(f) I did not donate the said Power of Attorney to Mr. Chima Orji.
(32) That Eze (Barr.) Uche O. Ekekwa who prepared the said Power of Attorney was at all material times Mr. Chima Orji’s Solicitor and also his brother of the same mother and father, who connived with the Claimant to take my said property from me, because they are of the same blood. See pages 247 and 248 of the Records.
Of course, the above was a very strong allegation, bordering on crime, especially as it touched the professional conduct of a legal practitioner, retained by the parties to act for them. Appellant therefore had the burden of establishing the criminal imputation/allegation, beyond reasonable doubt. In paragraph 22 of his statement on oath, Appellant had stated:
‘That when I became unable to pay back the loan as agreed, that I approached land agents, particularly one Elder F.C. Ukomadu, who brought prospect buyers for my aforesaid land but that Mr. Chima Orji, who was holding the title documents thereto in lieu of the debt I owed him, refused to release the land documents thereto which were in his possession and that his refusal frustrated the attempted sale, from which I hoped to realize sufficient money to pay back the loan and keep the remainder for my personal use.’ Page 246 of the Records of Appeal.
The above appears to capture the real feud of Appellant in this case and the true motive behind all the attempt to criminalize or malign the Exhibit H and the Respondent, as well as the Counsel who prepared it! Appellant, who was unable to settle his debt, wanted to recover the title documents, to enable him sell the land for a higher/better price, which would enable him to settle the outstanding loan and use the extra money for his other needs! Apparently, he appeared to have forgotten the clause 6 in Exhibit G, which he did not dispute, wherein he had agreed that:
‘In the event that the borrower fails, refuses or neglects to repay the said sum herein advanced to the Lender within the period stipulated in 3 above, the property shall immediately thereafter vest in the Lender, as if the same has been purchased by him for the value of the sum herein advanced to the borrower, and the Lender (sic) shall execute a Power of Attorney in favour of the Lender, who shall take steps to perfect his ownership of the said security by virtue of these present.’ (Page 104 of the Records)
It can be seen that Appellant had already accepted the above clause, to donate the said Power of Attorney, in principle, to the Respondent, as per the Exhibit G, and so all his effort to deny the Exhibit H, or vilify the Respondent, and the lawyer who prepared the document, was an afterthought, and rooted in mischief! He could not therefore substantiate those wild and self-seeking allegations. The trial Court observed that much, when it held:
‘The onus is on the defendant to prove the document was forged or fraudulent, particularly as he has a counter-claim, wherein he seeks a declaration that the Power of Attorney registered as 48/48/909 is null and void. It is trite that a Counter-claim is to all intents and purposes a separate claim, that must also be proved by credible evidence. The defendant has not discharge the onus on him.
There is no evidence to prove that the signatures on the document were placed there by scanning or electronic graft. It is also noted that the defendant, at no stage during his evidence, stated that he did not read the Power of Attorney or that it was not given to him to read, or that he was under any compulsion to sign it, nor is it his case that he was tortured or cajoled to sign Exhibit H, the Power of Attorney at the same time he signed the loan agreement, Exhibit G. The fact that the Power of Attorney contained a lower consideration than the loan agreement granted, though condemnable, does not in my view render it void, but may affect the stamp duty to be paid. In considering the validity of Exhibit H, I have considered the fact that it is the evidence of the Claimant that he took possession of the premises in dispute to the knowledge of the defendant, a fact admitted by the defendant. I have also considered the fact that the document is dated 20th February, 2008, almost eight months after the defendant was supposed to have repaid the loan and the fact that the it wasn’t until 21st April, 2009 (see Exhibit M ? the letter written on his behalf) over one year after Exhibit H was made and almost two years after the loan became due, that the defendant suddenly realized he had not transferred his property and had not been issued a receipt for the sum of N200,000.00 supposedly paid by him in June 2007 See pages 357 and 358 of the Records of Appeal.
By law, where criminal wrong doing is alleged in a civil proceeding, the person raising same has the duty to prove the allegation on the same standard of proof meant for criminal offence, beyond reasonable doubt. See Section 135 of the Evidence Act, 2011. Raymond Dongtoe Vs Civil Service Community Plateau State & Ors (2001) LPELR 959 SC; Daudu Vs FRN (2018) LPELR 43637 SC; Mohammed Vs Wammako & Ors (2017) LPELR 42667 SC, where it was observed: What is even worse in the instant case is the fact that the Plaintiff made a host of criminal allegations against the 1st Respondent. He, thus, had a duty to prove these allegation beyond reasonable doubt, Ndoma-Egba Vs ACB Plc (2005) 7 SC (Pt.111) 27; APC Vs PDP (2015) 15 NWLR (Pt.1481) 1, 66 – 67.
It is also interesting to note that Appellant did not appeal against those findings and holding of the trial Court, that Appellant did not discharge the burden of proof of the alleged criminal imputations, that the Exhibit H was forged or that his signature on it was fraudulently inscribed! The law is trite, that a finding of Court which is not appealed against remains valid, binding and conclusive. See Ebenighe Vs Achi (2011) 2 NWLR (Pt.1230) 65; Anioslina Vs State (2011) 14 NWLR (Pt.1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Ogwudire Vs Obigwe & Anor (2014) LPELR 23635 (CA).
Exhibit G, the loan agreement, which Appellant admitted had set out what they (parties in this case) set out to achieve in the document, namely to secure a friendly loan by Respondent to the Appellant, with a promise to repay on a given time (on or before 18/6/2007); that in the event of failure or negligence or refusal to repay as stipulated ‘the property in the said landed property shall immediately thereafter vest in the lender as if the same has been purchased by him for the value of the sum herein advanced to the Borrower, and the Lender (sic) shall execute a power of attorney in favour of the Lender, who shall take steps to perfect his ownership of the said security by virtue of this present.’ (See page 104 of the Records of Appeal).
In my view, the understanding in the above, is very clear and simple to the effect that, the moment Appellant failed, refused or neglected to repay the loan, on or before the said 18/6/2007, the ownership of the property (the subject matter or security of the loan transaction) automatically transferred to the Respondent, by operation of law (contract signed by them), as per the clause 6 of the Exhibit G. The formality of the Borrower (Appellant) executing a Power of Attorney (as in Exhibit H), was even superfluous, in my view, as Appellant had even admitted handing over his title deeds to the property (as per Exhibit J) to the Respondent, at the signing of the Exhibit G! That established Appellant decision to part with the property upon failure to repay the loan, as agreed.
I think Appellant can only have a valid contention if he pleaded and proved that he was ready and willing to repay the loan, within the stipulated time, but got frustrated by the Respondent, who had a ploy to take the land, fraudulently.
Appellant had admitted failure to repay the loan and was not even contesting the sale of the land! And in this case, he did not fight the Respondent because he had the loan money to refund, or to regain ownership of the property. Rather, as per paragraph 22 of his statement on oath, he wanted to sell the land to some other person to raise higher/better price and use part to settle his debt to the Respondent, and keep the balance for his use! Appellant appears to have forgotten the effect of the contract agreement (Exhibit G) he voluntarily entered into, and was bound by it, no matter how unfavourable it may have turned out to be, as long as he entered into the agreement fully conscious of what he was doing, and had willingly signed same, and collected the consideration, which he enjoyed and the subject matter of the agreement was lawful!
The doctrine of sanctity of contract makes Exhibit G (and Exhibit H which came out of Exhibit G) binding on the Appellant and enforceable. In the case of Arjay Ltd Vs AMS Ltd (2003) LPELR 55 SC, the apex Court said:
‘It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provisions of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. The Court is bound to construe the terms only in the event of an action arising thereform. Oduye vs Nigeria Airways Ltd (1987) 2 NWLR (Pt.55) 126.
See also Nwaribe Vs Owerri Municipal Council & Ors (2015) LPELR 24433 CA, where Agube JCA said:
‘I think our convenient point of departure shall be to restate the position of the law of contract, that parties of full age, who have voluntarily entered into an agreement particularly as in the instant case? they are bound by the terms of that contract and neither of the parties can alter the terms, unilaterally, nor can the Court add, alter or subtract or read into the contract, terms which the parties did not agree upon. This doctrine of the law of contract is what has been referred to as the sanctity of contract, usually expressed in the Latin maxim ‘pacta sunt servanda’ which means ?agreement must be kept? see Uwah Vs Akpabio (2014) 7 NWLR (Pt.1407) 472 at 489; Best (Nig.) Ltd Vs B-H (Nig.) Ltd (2011) 5 NWLR (Pt.1239) 95; A.G Rivers State Vs A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31; JFS INV. LTD Vs Brawal Line Ltd (2010) 19 NWLR (Pt.1225) 495; Alade Vs Alic Nig. Ltd (2010) 18 NWLR (Pt.1226) 111; P.M. Ltd Vs The M.V. Dancing Sister (2012) 4 NWLR (Pt.1289) 169 and Ihunwo Vs Ihunwo (2013) 8 NWLR (Pt.1357).’
I do not therefore find any reason to fault the decision of the trial Court in this case, that public policy supports the fact that parties should be made to honour their obligations and agreements, entered into, voluntarily (page 358 of the Records). I resolve the Issues against the Appellant and dismiss the Appeal for lacking in merit.
Appellant shall pay the cost of this Appeal assessed at Fifty Thousand Naira (N50,000.00) only, to the Respondent.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my Brother lTA G. MBABA J.C.A. I agree with his reasoning and conclusion. I also dismiss the appeal. I abide by the consequential order made as to costs.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, J.C.A., I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt his orders as mine.
Appearances:
Emeka Nnaji, Esq., with him, J.P. Nwahgwu Esq.For Appellant(s)
Chief Emeka Okeke Esq., with him, C.F. Nwaozuzu Esq.For Respondent(s)
