UZOHUE & ORS v. IHIASOTA & ANOR (2020)

UZOHUE & ORS v. IHIASOTA & ANOR

(2020)LCN/15779(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/E/491/2017

Before Our Lordships:

MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

MR. MURPHY IFEANYICHUKWU UZOHUE 2. MRS. DORATHY IHIASOTA 3. DORASIL NIGERIA LIMITED APPELANT(S)

And

1. LADY NGOZI IHIASOTA 2. MR. WALTER CHIBUEZE IHIASOTA (Sued As For Themselves And As Administration Of The Estate Of Late Sir Walter Nwabueze Ihiasota) RESPONDENT(S)

RATIO:

AN IMPLIED TRUST AND PRESUMED INTENTION

“An implied trust is one founded upon the unexpressed but presumed intention of the settlor. Such trusts are also referred to as “resulting” because the beneficial interest in the property comes back or results to the person who provided the property or to his estate. Professor G.W. Keeton, in his book titled, The Law of Trusts, 8th Ed. (1963) gave the following example of implied and resulting trust at page 143: “The best example of a trust implied by law is where property is purchased by A in the name of B that is to say, a supplies the purchase money, and B takes the conveyance. Here, in the absence of any explanation, facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.” See also Rochefoucauld v. Boustead (1897) 1 Ch. 196: Dyer v. Dyer (1788) 2 COX. 92.”Per TOBI, J.S.C (Pp. 32-33, paras. B-A) MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE PRESUMPTION OF THE TRUST OF A LEGAL ESTATE

See UGHUTEVBE V. SHONOWO & ANOR. (2004) LPELR-3317 (SC) AT 41-42 (A-A) where the Supreme Court Per EDOZIE ,J.S.C.At 41-42, ( A-A ) held as follows:
“The general proposition is that where on a purchase, property is conveyed in the name of someone other than the purchaser, the presumption is that the trust of the legal estate results to the man who advances the purchase money. If the advance of the purchase money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made. But as this doctrine of resulting trusts is based upon the unexpressed but presumed intention of the true purchaser, it will not arise where the relation existing between the true and the nominal purchaser is such as to raise a presumption that a gift was intended. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY DUTY OF THE TRIAL COURT

The law is settled that evaluation and ascription of probative value to the evidence led at the trial Court is the primary duty of the trial Court. The appellate Court can only interfere with the decision or finding of the trial Court if it is shown that the decision is perverse. A decision or finding of a Court is perverse when it ignores the facts or evidence before it which when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and set it aside. See UBN PLC V. CHIMAEZE (2014) LPELR-22699 (SC) AT 25-26 (D-B), ODOM & ORS. V. PDP & ORS (2015) LPELR-24351 (SC) AT 39 (A-D). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE NATURE OF EVIDENCE REQUIRED TO REBUT THE PRESUMPTION OF A RESULTING TRUST
See MADU V. MADU (SUPRA) AT 26 (A-D), EZEANAH V. ATTA (2004) LPELR-1198 (SC) AT 71 (A-C), ANUMEGE V. ANUMEGE (2014) LPELR-23996 (CA) AT 36-37 (D-B). In UGHUTEVBE V. SHONOWO & ANOR (SUPRA) at pages 44-45 (C-A), the Supreme Court stated the nature of the evidence required to rebut the presumption or defeat the inference of a resulting trust as follows:
As to the nature of the evidence necessary to rebut such a presumption, Viscount Simonds in the Shepherd’s case (supra) at p.970, continued, thus: “It must then be asked by what evidence can the presumption be rebutted …It is, I think, correctly stated in substantially the same terms in every textbook that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell’s Equity 24 at p. 153 which is as follows:-
“The acts and declarations of the parties before or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration … But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgement of the High Court of Enugu State delivered in suit no. E/350/2009 on 13/2/2017. The respondents instituted the suit wherein they sought for the following reliefs:
a. “Declaration that the acquisition with the funds of the 3rd defendant company of the real property known and situate at plots 102 and 103 New Era Layout, Enugu (otherwise known as No. 26, Abalukwu street, Achara Layout, Enugu), though in the name of 1st defendant creates a resulting trust in favour of the 3rd defendant.
b. Declaration that the two powers of attorney dated 6th June, 2000 and registered as No. 5 at page 5 in Volume 1466 and as No 6 at page 6 in Volume 1466 of the Lands Registry, Enugu neither confers title n or interest on the 1st defendant.
c. Declaration that the 1st and 2nd plaintiffs as Administrators/Personal Representatives of deceased shareholder of 3rd defendant is entitled to assume the stead and place of the deceased in the 3rd defendant’s Company.
d. Declaration that the plaintiffs as share-holders in 3rd defendant company co-own with the 1st defendant plots 102 and 103 New Era Layout, Enugu (otherwise known as No. 26 Abalukwu Street, Achara Layout, Enugu).
e. Perpetual injunction restraining the 1st defendant his servants, workmen, agents or privies from however parading or holding out himself as the owner and/or landlord of the premises situate and known as plots 102 and 103 New Era Layout (otherwise known as No. 26, Abalukwu Street, Achara Layout, Enugu).
f. Perpetual injunction restraining the 1st defendant from however demanding or causing to be demanded or receiving or causing to be received rent or mense profits from any of the tenant(s) or occupier(s) in the premises known as and situate at plots 102 and 103 New Era Layout, Enugu (otherwise known as No. 26, Abalukwu street, Achara Layout, Enugu).”

The 1st appellant in the amended statement of defence of the 1st and 2nd defendants counter claimed as follows:
a. “A declaration that he is the beneficial owner of plots 102 and 103 new era layout Enugu (otherwise known as No. 26 Abalukwu street Achara layout Enugu).
b. Possession of the 3 bed-room flat the 1st defendant occupies at No. 26Abalukwu Street Achara layout Enugu.
c. Ten Thousand Naira per month for use and occupation of the 3 bed-room flat at 26 Abalukwu street Achara layout Enugu from 1st July, 2007 until possession is delivered.”

The suit was commenced against the 3 appellants herein, 3 other persons and Zenith Bank Plc. Only the 1st and 2nd appellants’ amended statement of defence containing the 1st appellant’s counter claim is in the record of appeal. The respondents’ case is that Late Sir Walter Chibueze Ihiasota was the 1st appellant’s brother. The two brothers along with their mother incorporated the 3rd defendant company. In the course of the operation of the 3rd appellant, two buildings of 16 Flats situate at plots 102 & 103 New Era layout Enugu (otherwise called No. 26 Abalukwu street Achara layout Enugu were acquired at a total cost of N16,000,000 (Sixteen Million Naira) vide bank drafts drawn from 3rd defendants account. The deceased had agreed with the 1st appellant that notionally the name of the 1st defendant will appear as “owner” on the temporary instrument of Power of Attorney for ease of the 1st defendant using same to access bank loans both in Nigeria and in Japan while the deceased will act as the “Landlord” for the purpose of rent collection. Soon after the death of his brother, the 1st appellant began to assert that he has exclusive ownership of the property and inter alia giving eviction notices to the 1st respondent, his brother’s wife, demanding rents from the tenants of the premises and instituting eviction proceedings against the plaintiff in the Chief Magistrate Court Enugu.

The case of the appellant’s is that his Late brother on his, that is on the 1st appellant’s instruction registered two companies in Nigeria similar to the ones the appellant had in Japan namely Dorasil Nigeria Ltd and Laser Graphic Nigeria Ltd. Because three directors were needed to form the companies, his late brother’s name and the name of their mother – 2nd defendant who is an illiterate were used. His brother was not a member of the company and never provided a kobo for the company. The two companies were opened in the year 2000. In June, 2000, the 1st appellant sent money to his late brother to purchase the property in dispute for him in his personal (1st appellant’s) name and for his personal benefit and his late brother complied with that instruction. His brother collected rents in respect of the property and paid same into his (1st appellant’s) personal account and acted for him as the Landlord of the property keeping accounts of the monies he collected. His brother never contended ownership of the said property and it was after his death that the 1st respondent activated by agreed started laying claims to the property.

After the exchange of pleadings, the case proceeded to trial. The 1st respondent testified as PW1 in support of the respondents’ claim. The 1st appellant testified as DW1. Written addresses were filed and exchanged. The Court below in its considered judgement delivered by N.P. Emehelu, J. found that a case of resulting trust was made out in favour of the 3rd appellant who provided the funds for the purchase of the property in dispute. Judgment was entered in favour of the respondents in terms of the reliefs sought. The 1st appellant’s counter claim was dismissed.

Being dissatisfied with the judgment, the appellants filed a notice of appeal on 7/3/2017. An amended notice of appeal was filed on 20/11/2017. It was filed deemed as properly filed and served on 14/3/2018. The six (6) grounds of appeal in the amended notice of appeal without their particulars are as follows:
GROUND 1
“The learned trial Chief Judge erred in law when he held that the acquisition of the property the subject matter in disputation with the fund from 3rd Appellant created a resulting trust in its favour and upon which basis the respondents, the beneficiaries of its erstwhile Director, Walter ChibuezeUzohue, became co-owners of the said property and which holding occasioned a miscarriage of justice when regard is had to the evidence placed before the Court which suggested otherwise.
GROUND 2
A plaintiff in a case will succeed on the strength of his own case and not on the weakness of the defence case. The learned trial Chief Judge was therefore in error to hold that the contradictions in the evidence of DW1 (1st appellant) rendered the respondents evidence more credible and acceptable and they were thereby entitled to judgment.
GROUND 3
The learned trial Chief Judge misdirected himself when he held that:
(1) “The question is can these acts of the deceased Walter Ihiasota be attributed to the 3rd defendant to warrant an inference that the 3rd defendant intended that the 1st defendant should own the property exclusively. I think not. I say so because the 3rd defendant a limited liability company is a different entity from the deceased Walter Ihiasota.”
GROUND 4
The learned trial Chief Judge erred in law when he held that the evidence of the respondents when placed on the two sides of the proverbial imaginary scale weight more than that of the 1st to 3rd appellants and are therefore entitled to judgment which finding occasioned a miscarriage of justice.
GROUND 5
The learned trial Chief Judge erred in law when he dismissed the counter claim of the 1st appellant on the ground that “he did not prove his case on preponderance of evidence.
GROUND 6
The learned trial Chief Judge erred in law when he held that “the fact that the Late Walter Ihiasota (ChibuezeUzohue) resigned as a Director will not deprive him of interest in the company by virtue of the shares he owned in the company.

See Osisanya V. Afribank (Supra) cited by the plaintiff’s learned counsel. He will still be entitled as co-owner of the property acquired by the 3rd defendant i.e No. 26 Abalukwu Street, Achara Layout, enugu” which holding occasioned a miscarriage of justice by depriving his sole (sic)right over the property in disputation.”

The appellants’ brief of argument was filed on 20/11/2017. It was deemed as properly filed and served on 14/3/2018. The respondent’s brief of argument was filed on 7/8/2018. Counsel on both sides adopted their respective briefs on 2/6/20. The appellant formulated the following issues for determination:
a. “Whether the learned trial judge was right to have held that resulting Trust inured in favour of the 3rd appellant upon which basis the beneficiaries of its erstwhile director, the respondents became co-owners of the property in dispute with the 1st appellant- Grounds (1), (2) and (6).
b. Whether the learned trial chief judge was right to hold that on balance of probability the evidence of the respondents was more credible than that of the 1st appellant for them to be entitled to the claim as co-owners of the property in disputation with him (1st appellant) Grounds (2) and (4).
c. Whether the learned trial chief judge was right to dismiss the counter claim of the 1st appellant when there is overwhelming evidence before the Court that he is the owner of the property in disputation and that resulting trust did not inure in the favour of the 3rd appellant for the respondents as beneficiaries of its erstwhile director to be co-owners with him. Ground Five (5).
d. Whether the learned trial judge was right to hold that the resignation of late Walter Ihiasota (ChibuezeUzohue) the erstwhile Director of the 3rd Appellant from it, a private limited company did not deprive him of his shares having been taken over by Uju, another Director, appointed to replace him. Ground (6).”

The respondent adopted all the four issues formulated by the appellant. I have carefully considered the judgment of the Court below, the grounds of appeal and the issues formulated for determination by counsel. My firm view is that the sole issue thrown up for determination in this appeal is whether on the entire evidence led by both parties, the Court below was right to hold that a case of resulting trust was made out in favour of the 3rd appellant.

The learned counsel for the appellants submitted that the facts and circumstances disclosed in this case show that there is no inference or conclusion that because the fund with which the property in dispute was purchased was from the account of the 3rd appellant, the 1st appellant is holding the property in trust for the 3rd appellant. He enumerated the facts and circumstances which show an inference or conclusion against a resulting trust in favour of the 3rd appellant particularly the fact that the 1st appellant said he was in far away Japan when the property for him by his Late brother Walter Iheasato (Chibueze Uzohue) who acted as secretary in 3rd appellant. In cross-examination PW1 which is the 1st respondent agreed that he was in far away Japan when the property was bought in his name, 1st appellant said he provided the fund which was lodged in the 3rd defendant’s account and used to purchase the property in his name. Counsel further submitted that from the conduct of the appellant’s brother in the entire transaction of the purchase of the property and the inference there from, the right conclusion to be reached is that the 1st appellant is the sole owner of the property without holding it in trust for anybody or company. For the meaning of a resulting trust and how it comes about, counsel referred to EZEANAH V. ATTAH (2004) VOL. 17 WRN AT 31 (20-40). MOHAMMED IDRIS V. OBAFEMI & ANOR. (2003) VOL. 7 WRN 36.

In response, the learned counsel for the respondents submitted that it is trite law that where a person buys a property and has it conveyed or registered in the name of another, it is presumed that the other holds the property in trust for him. He referred to DYER V. DYER (1788) 2 COX EG, CASE 92. EZEANAH V. ATTA (SUPRA), (2002) 2 SCNJ 200. He further submitted that the acquisition of the property in dispute with the fund of the 3rd appellant in the name of the 1st appellant created a resulting trust in favour of the 3rd appellant, the Court below was therefore right to hold that resulting trust inured in favour of the 3rd appellant on which basis the beneficiaries of late Chibuzo Uzohue (Walter Ihiasota), the 1st appellant’s brother became co-owners of the property with the1st appellant. Counsel argued that the contention of the 1st appellant that he sent the money used to purchase the property was not borne out either by his pleading or evidence in Court as the 3rd appellant’s statement of account, Exhibit 12 did not show any deposit of $220,000:00 (Two Hundred and Twenty Thousand dollars) or its equivalent. He argued further that the acts of payment of the rents collected from the property into the 1st appellant’s account by his brother cannot be attributed to 3rd appellant to warrant an inference that the 3rd defendant intend the 1st appellant to own the property exclusively. He urged the Court to dismiss the appeal.

RESOLUTION:
Section 85 of the Trust and Equity Law of Enugu State Cap 153, Revised Laws of Enugu State, 2004 defines resulting trust as follows:
“Resulting Trust” means any trust which arise when any person transfers any property to, or buys any property in the name of another person without declaring any trust, or declaring trusts which do not exhaust the beneficial interest in the property and without expressing any intention that such other person shall be beneficially entitled to such property.”
Section 99(1) of the Law provides that:
“Where any person purchase or takes conveyance of any property in the name of any other person, such property shall be held on trust by the person in whose name such purchase or conveyance is made or taken for the person who made the purchase or took the conveyance, and in such case it shall be immaterial whether such purpose or conveyance was made or take in names which includes that of the person who made the purchase:
Provided that where the person who pays the purchase money is the husband or parent of, or stands in loco parents to person in whose name the purchase or conveyance is made. It shall be presumed that the person in whose name the purchase or conveyance is made is intended to take the property beneficially, unless a contrary intention be proved.”
Apart from the provisions of the Trust and Equity Law of Enugu State, the Courts have in a plethora of cases stated the meaning of a resulting trust and how it arises. See ADEKEYE & ORS V. AKIN-OLUGBADE (1987) 3 NWLR (PT. 60) 214, 1987 LPELR-104 (SC) AT 23 (A-F) where the Supreme Court per OPUTA, JSC held as follows:
“A trust can be expressed or implied. When a trust is created intentionally by the act of the Settlor it is called an express trust. But where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the same property is in, another, a Court of equity will from those circumstances infer an implied trust. Also a person incapable of being an express trustee may well be a trustee of an implied, resulting on constructive trust: Re Vinogradoff (1935) W.N. 68 refers. An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settlor. One common example of implied trust is where on a purchase, property is conveyed into the name of someone other than the purchaser. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers and others jointly or in the names of others without that of the purchaser, whether in one name or several, whether jointly or successive, results to the man who advances the purchase money: See Re Scottish Equitable Life Assurance Society (1992) 1 Ch. 282: The Venture (1908) P.218.”EZEANAH V. ATTA (SUPRA) (2004) LPELR-1198 (SC) AT 32 – 33 (B-A), MADU V. MADU (2008) LPELR-1806 (SC) AT 42 (B-D), JOLUGBO & ANOR. V. AINA & ANOR (2016) LPELR-40352 (CA) AT 27-29 (A-D), HUEBNER V. AERONAUTICAL INDUSTRIAL ENG. & PROJECT MANAGEMENT CO. (2017) LPELR-42078 (SC) AT 54-57 (E-D).
“An implied trust is one founded upon the unexpressed but presumed intention of the settlor. Such trusts are also referred to as “resulting” because the beneficial interest in the property comes back or results to the person who provided the property or to his estate. Professor G.W. Keeton, in his book titled, The Law of Trusts, 8th Ed. (1963) gave the following example of implied and resulting trust at page 143: “The best example of a trust implied by law is where property is purchased by A in the name of B that is to say, a supplies the purchase money, and B takes the conveyance. Here, in the absence of any explanation, facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.” See also Rochefoucauld v. Boustead (1897) 1 Ch. 196: Dyer v. Dyer (1788) 2 COX. 92.”Per TOBI, J.S.C (Pp. 32-33, paras. B-A)

I have carefully read the above cases and some others on the principles guiding the Court in the determination of whether or not a resulting trust was created in a particular case. The consensus of the judicial opinion is that where a person provides the money for the purchase of a property but the title documents is made in the name of another person, there is a presumption by law that the person in whose name the title document of the property is made holds it in trust for the person who provided the purchase money, the beneficial interest in such property remains in the person who provided. The presumption of a resulting trust is a rebuttable presumption. Resulting trust prevails only in the absence of an explanation or cogent and evidence that contradicts the presumption. Where there is cogent and credible evidence that the one that provided the purchase money had no intention that the property be held in trust for him or that the beneficial interest reverses back to him or has expressly or by necessary implication abandoned beneficial interest in the property, there is no resulting interest. See UGHUTEVBE V. SHONOWO & ANOR. (2004) LPELR-3317 (SC) AT 41-42 (A-A) where the Supreme Court Per EDOZIE ,J.S.C. At 41-42, ( A-A ) held as follows:
“The general proposition is that where on a purchase, property is conveyed in the name of someone other than the purchaser, the presumption is that the trust of the legal estate results to the man who advances the purchase money. If the advance of the purchase money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made. But as this doctrine of resulting trusts is based upon the unexpressed but presumed intention of the true purchaser, it will not arise where the relation existing between the true and the nominal purchaser is such as to raise a presumption that a gift was intended. This presumption of advancement, as it is called, applies to all cases in which the person providing the purchase money is under an equitable obligation to support, or make provision for, the person to whom the property is conveyed, that is where the former is the husband or father of, or stands in loco parentis to the latter. Both the presumption of a resulting trust and the presumption of advancement can be rebutted by evidence of the actual intention of the purchaser. In these cases, the Court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention; it is only where there is no evidence to contradict it that the presumption of a resulting trust or of advancement, as the case may be, will prevail: Fowkes v. Pascoe (1875) 10 Ch. App. 343.”
See MADU V. MADU (SUPRA) AT 26 (A-D), EZEANAH V. ATTA (2004) LPELR-1198 (SC) AT 71 (A-C), ANUMEGE V. ANUMEGE (2014) LPELR-23996 (CA) AT 36-37 (D-B). In UGHUTEVBE V. SHONOWO & ANOR (SUPRA) at pages 44-45 (C-A), the Supreme Court stated the nature of the evidence required to rebut the presumption or defeat the inference of a resulting trust as follows:
As to the nature of the evidence necessary to rebut such a presumption, Viscount Simonds in the Shepherd’s case (supra) at p.970, continued, thus: “It must then be asked by what evidence can the presumption be rebutted …It is, I think, correctly stated in substantially the same terms in every textbook that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell’s Equity 24 at p. 153 which is as follows:-
“The acts and declarations of the parties before or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration … But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.”

Applying the above principles to the facts of this case, Exhibit 12 is the statement of the 3rd appellant’s account with Zenith Bank. It shows that the purchase money was taken from that account. The receipts issued by the agents through who the property was purchased and those issued by the vendors of the property were issued in the name of the 1st appellant. In the absence of an explanation, there is a presumption of resulting trust in favour of the 3rd appellant. However, the 1st appellant alleged the contrary. The onus was on him to lead cogent and credible evidence to rebut the presumption. The appellant stated inhis statement on oath that he sent money to his brother to buy the property for him and it was his brother that negotiated for the sale of the property on his behalf. Under cross-examination, he said he sent $220,000:00 to his brother which was changed and lodged into the 3rd appellant’s account. It was the money that was used to purchase the property for him by his late brother. His brother supervised the execution of the documents of title to the property and ensured that they were issued in his personal name according to the instruction that he gave his brother.

The Court below evaluated the evidence of the 1st appellant on who actually provide the purchase money and held as follows at pages 147-148 of the record:
“Even if one overlooks the contradiction on the date the DW1 said the property was purchased since he said it was his late brother Walter that negotiated and received the draft for payment, what about the date he said he sent money to his said late brother. Definitely money sent in late May 2000 or June 2000 cannot be used on 10th April and 10th of May, 2000 to purchase the said property.
I have gone through Exhibit 12the Statement of Account of Dorasil Nigeria Ltd and i have not seen anywhere the account was credited with either Sixteen Million or Nineteen Million Naira. Furthermore the dates that could be termed as late May are entries of 24/05/2000 (which came after 10/5/2000) when the account was debited with N15Million (Fifteen Million Naira) 26/5/2000 and 31/5/2000.There is nothing shown in Exhibit 12 for those dates that any money was paid in or credited into that account. The next credit or payment into the account was on 15/6/2000 when it shown that cash of N100,000.00 was deposited into account by Chibueze. In any case, i had made the point that monies or money paid into the account in late May and/or in June 2000 cannot be used for the purchase of the property on 10th April, 2000 and 10th May, 2000.
The 1st – 3rd defendants did not tender any other Statement of Account of the 3rd defendant showing the money which the DW1 said he sent went to his late brother Walter. I have put the evidence of the plaintiffs and those of the 1st – 3rd defendants on this issue regarding the money used to purchase the property on an imaginary scale and I find the evidence of plaintiffs more credible and supported by Exhibit 12 that it was the funds of the 3rd defendant that was used for the purchase of the property in issue.”

The Court below had a duty to consider the entire evidence by both sides including the evidence of the conduct and actions of the 1st appellant’s (DW1’s) brother immediately after the payment of the purchase money in April and May, 2000 until his demise in 2006. It is common ground between both sides thatDW1, (1st appellant) was in Japan when the property was purchased. His late brother was the one in Nigeria and he was the one that organised and supervised the transaction. The evidence of the 1st appellant that he sent the purchase money is confirmed by his brother’s action and instruction that the documents should be executed in the 1st appellant’s name. Above all, there is abundant cogent and unchallenged documentary evidence that the 1st appellant’s late brotherly diligently collected rents on behalf of the 1st appellant and paid same into the private account of the 1st appellant. This is confirmed by Exhibits 20A-20Y. The 1st appellant’s late brother not only collected rents from the property and paid same into the appellant’s private account, he meticulous gave an account of how much he collected and on what date and the teller numbers with which he paid the money into the private account of the 1st defendant-by Exhibits 19A-19D. Exhibits 21 and 22 written and signed by the 1st appellant’s late brother stated clearly and categorically that the 1st appellant is the landlord of the property in dispute. PW1 (1st respondent) confirmed under cross-examination that when the appellant went back to Japan, her husband late brother continued to manage the property and paying the rent into the 1st appellant’s private account. She also confirmed that there was no problem about the property when her late husband was alive. She later said payments were made into the company’s account, her late husband’s account and her own account and there was no specific place where the money is paid. However, the overwhelming evidence before the Court confirmed by documents is that rents of the property were collected and paid into the first appellant’s account. By his actions and conduct, 1st appellant’s late brother confirmed the 1st appellant’s ownership of the property. The 1st appellant described his late brother as a trust worthy brother, that they had a good rapport and that he entrusted the fund for the purchase of the property to his late brother. The overwhelming documentary evidence tendered by both parties adequately attest to the honesty and trustworthiness of the 1st appellant’s late brother. There is no scintilla of evidence to showthat he or the 3rd appellant at any time laid claim to any part of the property from 2000 when it was purchased until 2006 when he died.

The Court below evaluated the entire evidence on payment of rents into the 1st appellant’s personal account and held at pages 151-152 of the record as follows:
“In the instant case, it was the 3rd defendant a limited liability Company whose funds were used in the purchase of the property as evidence shown. It is not the 1st defendant as a person nor the deceased late brother of the 1st defendant as a person who operated as ChibuezeUzohue in the 3rd defendant Company that provided the money. Personally I am not obvious of Exhibits 20A – 20Y the tellers which showed that 23 out of 25 of them were moneys paid into the personal account of the 1st defendant. The other two tellers were paid into the Account of Laser Graphic Investment Nig. Ltd. These were tendered by the defence as moneys collected by the deceased Walter Ihiasota from tenants of the property as rent and paid into the personal Account of the 1st defendant. I take particular note of the fact that the plaintiffs did not deny that rentscollected were paid into personal account of the 1st defendant rather it was averred inter alia by way of reply that the rents collected were paid into 1st defendant’s account as well as deceased Walter Ihiasota’s account. (See paragraph 17 of the amended statement of defence of the 1st – 3rd defendants and paragraph 12 of the reply of the plaintiffs).
Of note is the fact that no tellers were tendered by the plaintiffs or by the 1st to 3rd defendants showing payment of rent into Late Walter Ihiasota’s personal account.
I am equally not oblivious of the fact that Exhibits 21 – 22 were signed by Ihiasota Walter “for Landlord”. These are two letters respectively dated 12/10/2001 and 20/10/2001 addressed respectively to Mr. E. N. Dimoji of 26 Abalukwu street Achara Layout Enugu and to all Tenants of 26 Abalukwu Street Achara Layout Enugu. He Late Walter Ihiasota did not sign those documents as the Landlord.
The question is can these acts of the deceased Walter Ihiasota be attributed to the 3rd defendant to warrant an inference that the 3rd defendant intended that the 1st defendant should own the propertyexclusively? I think not. I say so because the 3rd defendant as a Limited Liability Company is a different entity from the deceased Walter Ihiasota.”

The finding of the Court below that 1st appellant’s brother is different and that his acts cannot be attributed to the 3rd appellant in the face of the entire facts and circumstances disclosed by the evidence before the Court is perverse. If the 3rd appellant truly advanced the purchase money and did not intend the appellant to own the property exclusively, the rents collected by the 1st appellant’s brother who was the one in Nigeria and managing the property would have been paid into 3rd defendant’s account. There is no evidence whatsoever to show that either the 3rd appellant or 1st appellant’s brother ever asked for or took a share of the rents. It is incredible and no Court ought to believe the proposition or assertion that a man who has a share in the beneficial interest in a property would continuously and diligently collect rents of the same property for several years and pay same into the private account of another without asking for or taking any part of it.

The acts and conducts of the 1st appellant’s brother confirmed the 1st appellant’s exclusive ownership of the property. Those actions and conducts are very inconsistent with and totally negates an intention to create a resulting trust. The only inference which the Court below ought to have drawn from the acts and conducts of the 1st appellant’s brother is that the 1st appellant advanced the purchase money hence, all the receipts for the payment of the money were issued in his name only. The presumption of a resulting trustee raised by the fact that the purchase money came out of the 3rd defendant’s account was totally rebutted and defeated by the acts and conducts of the 1st appellant’s brother and 3rd appellant. It is correct that the 3rd defendant is a separate and distinct entity from the appellant’s late brother. However, he as a director and share holder of the company would not stand by and watched the 1st appellant appropriating the company’s money or property to himself if indeed the purchase money was the company’s money. If the Court below had taken into consideration the entire evidence led, the facts andcircumstances disclosed, the Court would have discovered that the true fact of this case is that the purchase money was not the 3rd appellant’s money, that the property was not purchased for the 3rd appellant and it was never intended that the beneficial interest in the property would reverse to the 3rd appellant. From the entire evidence before the Court, the true fact is and still is that the 1st appellant in whose name the property was purchased is in fact the beneficial owner of the property. The purchase money was merely passed through the 3rd appellant’s account and the appellant’s late brother being a trust worthy person diligent and with all sense of honesty carried out the 1st appellant’s instruction. The conduct of the 1st appellant’s brother amount to an admission against it. He had no interest in grabbing what did not belong to him. The finding of the Court below that the property is co-owned by the respondents and the 1st appellant is perverse and cannot be allowed to stand.

The 1st appellant adduced cogent, credible and compelling evidence to rebut the presumption that the 3rd appellant’s money was used topurchase the property in dispute and the presumption of resulting trust was clearly rebutted. The sole issue identified for determination is hereby resolved in favoured of appellants and against the respondents.

In conclusion, this appeal is allowed. The judgment of the Court below delivered in suit no. E/350/2009 on 13//2/2017 is hereby set aside. Judgment is hereby entered as follows:
1. The plaintiffs’ claim is dismissed in its entirely.
2. The 1st defendant’s counter claim succeeds.
3. It is hereby declared that the 1st defendant is the beneficial owner of the property at plots 102 and 103 New Era Layout, Enugu otherwise known as No. 26 Abalukwu Street Achara Layout, Enugu.
4. Possession of the 3 bedroom flat occupied by the 1st respondent in the above property.
Parties shall bear their respective costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment Just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, Ialso find merit in this appeal and I hereby allow it.
I equally adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I have read before now, the judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA just delivered and respectfully agree with the reasoning and the conclusion arrived at.

For the same reason, which I adopt as mine, I too allowed the appeal with all the consequential orders made in the lead judgment.

Appearances:

B. C. Nwobodo For Appellant(s)

Richard Mba For Respondent(s)