VINCENT ORJIAKOR & ANOR v. MRS. COMFORT MBACHU & ANOR (2019)

VINCENT ORJIAKOR & ANOR v. MRS. COMFORT MBACHU & ANOR

(2019)LCN/13483(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/E/486/2014

RATIO

WHEN AN APPELLANT IS PLAYING A GAME OF CHANCE AND LUCK
Having painstakingly considered the case of the Appellants before the lower Court and his case before this Court, it is apparent that the Appellants are merely playing a game of chance or luck such that if one of their arguments or claims fails at the lower Court, he can rely on another argument on appeal. This is a wrong approach to the conduct of this case and the dictum of Rhodes Vivour JSC in NYAKO V ADAMAWA STATE HOUSE OF ASSEMBLY [2016] LPELR-41822 [SC], comes to mind on the Appellants conducts.PER ABUBAKAR SADIQ UMAR, J.C.A.

THE 5 METHODS BY WHICH TITLE OR OWNERSHIP TO LAND CAN BE ESTABLISHED

The law is well settled on the methods of establishing title to or ownership of land by a claimant. Title to land can be proved by one of the five ways as stipulated by the Supreme Court in IDUNDUN VS. OKUMAGBA (1979) 9 – 10 SC 227, namely:
1. “Through traditional evidence.
2. By production of documents of title.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the person(s) exercising such acts of possession are the true owners of the Land.
4. By acts of long possession, and
5. Proof of possession of connected or adjacent land.”PER ABUBAKAR SADIQ UMAR, J.C.A.

LAND LAW: WHAT SHOULD BE DONE WHEN THERE ARE CONFLICTING CLAIMS TO TITLE OR OWNERSHIP
There are scores of judicial authorities in support of this age long principle of proof of title to or ownership of land. See the case of MOGAJI VS. CADBURY NIG LTD (1985) 2 NWLR (Pt.7) 393; ALLI VS. ALESINLOYE (2000) 6 NWLR (Pt.600) 177. The law is that in the event of conflicting claims to title or ownership to a piece of land and where each of the opposing parties is able to establish proof of ownership by any of the acceptable methods of proof of title to or ownership of the said piece of land, then the party that establishes better title will be entitled to the judgment of the Court. See the case of OGAH & ANOR V GIDADO & ORS (2013) LPELR -20298 (CA) where this Court held that:
The law is equally well settled that, in a situation of conflicting claims, where each of the opposing parties can establish proof of ownership by any of the acceptable methods of proof of title to or ownership of the same piece or parcel of land, then the party that establishes better title will be entitled to the judgment of the Court.
SEE ALSO FASORO V BEYIOKU (1988) 2 NWLR (PT.76) 263; OYENEYIN VS.AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265; AROMIRE V5.AWOYEMI (1972) 7 ALL NLR at 10.PER ABUBAKAR SADIQ UMAR, J.C.A.

THE POSITION OF A TENANT WHO CHALLENGES THE TITLE OF LAND OF HIS LANDLORD

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. VINCENT ORJIAKOR
2. PATRICK ORJIAKOR Appellant(s)

AND

1. MRS. COMFORT MBACHU
2. OGBONNAYA C. MBACHU
(Administrators of the Estate of Late Agabus Chimezie Mbachu) Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Anambra State sitting in Otuocha (?the lower Court? or ?the trial Court?) delivered on 12 December 2013 (?the Judgment?) in two consolidated suits to wit Suit No: O/641/2003 and Suit No: O/133/2004. The lower Court in its Judgment dismissed the Appellant?s claim in Suit No: O/641/2003 as well as the counterclaim of the Appellants in Suit No: O/133/2004.

The Appellants as Plaintiffs in Suit No: O/641/2003 commenced the action by an Ordinary Writ of Summons against the 1st Respondent (?the first suit?). The second Plaintiff at the time the action was instituted was one Francisca Orjiakor who died on 25 August, 2008 and was subsequently substituted with Patrick Orjiakor pursuant to the order of the lower Court. The Appellants, in their Statement of Claim sought for the following reliefs from the lower court:
1. ?An order of the Honourable Court declaring that the Plaintiffs are subject to Land Use Act, 1978 entitled to the statutory right of occupancy in

respect of No. 10 Ifejika Street, Onitsha.
2. N5, 000,000.00 damages
3. Injunction restraining the Defendant, her servants, agents and/or privies from in any manner howsoever interfering with the Plaintiffs rights to possess, hold and enjoy the said property known as and called No. 10 Ifejika Street, Onitsha.?

The 1st Respondent as the sole Defendant in the first suit filed her Statement of Defence on 01 June 2006. Prior to the commencement of trial in the first suit, the 1st and 2nd Respondents commenced another action as administrators of the Estate of Late Agbus Chimezie Mbachu in suit No O/133/2004 (?the second suit?) against a sole defendant- Gabriel Orjiakor.

The Respondents? summon in the second suit is for the recovery of possession of premises in the said property- No. 10 Ifejika Street, Onitsha- which the Plaintiffs in the first suit sought for a declaration of title. The Respondents? reliefs as contained in the statement of claim in the second suit are reproduced below:
1. ?Possession of the said three (3) bedrooms residential/commercial flat and premises together with the appurtenances

thereto situate at No. 10 Ifejika street, Onitsha
2. (a) The sum of Five Thousand, Two Hundred Naira (N5, 200) being arrears of rent from January 1999 to January 2001 (26 months) at the rate of Two Hundred Naira (N200) per month.
b) The sum of Two Hundred and Sixteen Thousand Naira (N216, 000) being arrears of rent for February 2001 to January 2003 (48 months) at the rate of Four Thousand, Five Hundred Naira (N4, 500) per month.
The grand total of the arrears of rent is the sum of Two Hundred and Twenty One Thousand, Two Hundred Naira (N221, 200)
3. Mesne profit at the rate of Seven Thousand Naira (N7, 000) per month from February 2004 until possession is delivered to the Plaintiffs?

Vincent Orjiakor and Francisca Orjiakor sought and obtained the leave of the lower Court to be joined as 2nd and 3rd Defendants respectively in the second suit. A Joint Statement of Defence and Counterclaim dated 01 November 2006 was subsequently filed on behalf of all the Defendants. The Appellants? reliefs in their counterclaim are reproduced below:
1. ?An order of the Honourable Court declaring that the Defendants are subject to

the Land Use Act 1978 entitled to the statutory certificate of occupancy in respect of No. 10 Ifejika Street, Onitsha
2. N5, 000, 000 damages
3. Injunction restraining the Plaintiffs, their servants, agents and/or privies from in any manner howsoever interfering with the Defendant?s rights to possess, hold and enjoy the said property known as and called No. 10 Ifejika Street, Onitsha.?

It must be observed that the Defendants? reliefs in the counterclaim in the second suit are reproduction of the reliefs in the first suit and in similar manner Francisca Orjiakor was substituted with Patrick Orjiakor in the second suit. Both suits, further to the agreement of all the parties, were consolidated by the trial Court on 08 November 2006 in the following terms:
The parties are the same, the issues are same, so consolidation is the proper thing to do. I hereby consolidate the two suits to wit: 0/133/2000 (sic) and O/641/2003 to be decided in this Court?

BRIEF FACTS OF THE CASE
THE FIRST SUIT
?The Appellants as Plaintiffs in the first suit alleged that the property situate at 10, Ifejika Street,

Onitsha (?the property?) was built for the use and enjoyment of members of the Orjiakor family. The Appellants contend that the late husband of the 1st Respondent- Mr. Agabus Mbachu- was an apprentice of their late father- Chief Gabriel Orjiakor. The Appellants claimed that the said Mr. Agabus Mbachu took over management of Chief Gabriel Orjiakor?s businesses subsequent to the death of the latter. The Appellants further contended that the proceeds from the aforesaid businesses was used by Mr. Agabus Mbachu to construct the property in dispute for the use of the Orjiakor family.

The 1st Respondent, in response to the above claim, maintained in her statement of defence that Mr. Agabus Mbachu?s apprenticeship with Chief Gabriel Orjiakor terminated with the death of the latter at the end of the Nigerian Civil War in 1970, at which time the former became an independent trader. The 1st Respondent further contended that the Late Agabus Mbachu acquired the land in dispute on 28 September 1979 from the proceeds of his private business and developed the property on the land with the building loan he obtained from First Bank of Nigeria Ltd.

The 1st Respondent alleged that upon the completion of the property, Mr. Agabus Mbachu allowed the Appellants and their mother to occupy one flat of the seven flats in the building and the remaining six flats were leased out to other tenants. The 1st Respondent reiterated that the ownership of the property resided in Mr. Agabus Mbachu by virtue of the Certificate of Occupancy he obtained from Onitsha Local Government upon the completion of the property and the title in the property divested his successors in title upon his demise.

THE SECOND SUIT
The Respondents as Plaintiffs in the second suit alleged that the Appellants are paying tenants of Late Mr. Agabus Mbachu at the property. The Respondents further alleged that the rent for the tenancy of the Appellants was reviewed to Four Thousand, Five Hundred Naira (N4, 500.00) per month from February 2001 and the Appellants failed to make payment of the rent reserved for the possession and use of the property. The Respondents stated that consequent upon failure of the Appellants to make payment of the rent reserved, the necessary statutory notices for recovery of premises were issued and served on the

Appellants to deliver the possession of property but the Appellants failed to yield up the possession of the premises. The Respondents claimed that they are entitled to possession of the premises, arrears of rent as well as mesne profit from the Appellants.

The Appellants? defence in the second suit is similar to the claim in the first suit to the effect that the Late Mr. Agabus Mbachu returned to Onitsha after the civil war with the goods and wares which were originally the properties of Chief Gabriel Orjiakor. The Appellants claimed that the late Mr. Agabus Mbachu retained the management of the said goods for the benefit of the Appellants? family. The Appellants further alleged that it was the understanding between their late mother and the late Agabus Mbachu that the proceeds of the business of Chief Gabriel Orjiakor retained by him (the late Agabus Mbachu) would be used to acquire and develop property for the Orjiakor Family. The Appellants maintained that the property was acquired in furtherance of the aforesaid agreement. The Appellants therefore claimed exclusive possession of the property in dispute and alleged that they had never

paid any rent to the Respondents at any point in time. The Appellants predicated their counterclaim against the Respondents in the second suit on the foregoing facts.

In the course of trial in the suits, the 1st Appellant and two (2) other persons testified on behalf of the Appellants, while both Respondents testified in persons and called two additional witnesses. The Trial Court admitted several documents in evidence in the course of the trial from both parties. At the conclusion of trial, final addresses were exchanged and adopted by the counsel to both parties. The lower Court delivered Judgment on the consolidated suits on 12 December 2013 (?the Judgment?).

THE JUDGEMENT
The lower Court held in its Judgment that the Appellants failed to prove their case and subsequently dismissed their action as well as the counterclaim filed in the second suit. The trial Court, however, held that the Respondents? action in the second suit succeeded in part. The Appellants therefore filed the present appeal against the said judgment by a Notice of Appeal dated 16 December, 2013 which was subsequently amended by the Amended Notice of Appeal

filed on 13 March, 2019 (?the Amended Notice of Appeal?). Briefs were exchanged by the Parties on the grounds of appeal as contained in the Amended Notice of Appeal.

The Appellants, in their brief of argument dated 04 December 2018 and settled by Uche Nwoye Esq. distilled three (3) issues for the determination of this appeal:
1. ?Whether it was right for the learned trial Court to grant the Respondent?s claim for possession of the 3 bedroom apartment occupied by the Appellants where there is nothing before the Court to show that the Appellants are tenants to the Respondents.
2. Whether a situation of implied or resulting trust arose in the business relationship between the Appellants and the 1st Respondent?s husband.
3. Whether the learned trial Judge was right to have based his Judgment on the evidence of D.W. 1, D.W. 2 and D. W. 3 which are all hearsay evidence.?
The Respondents, in turn filed their Respondents Brief of Argument dated 14 December 2018. The Respondents? Brief of Argument was settled by C.O Orakwue Esq. and the following issues were raised therein:
1. ?Whether in the

general circumstances of this case as was before the lower Court, the Appellants proved their title to the land in dispute
2. Whether the learned trial Judge was right (in consideration of the general evidence adduced by the Respondents vide all the documents tendered at the trial to have adjudged that the Respondents (then Plaintiffs in Suit No: O/133/2004) are entitled to possession of the said three (3) bedrooms residential commercial flat and premises together with appurtenances situate at No. 10 Ifejika Street, Odoakpu, Onitsha.?

I find the issues raised in the Appellants? Brief of Argument apt and encompassing for the determination of this appeal. I accordingly adopt the issues for the purpose of this judgment.
ISSUE ONE
?Whether it was right for the learned trial Court to grant the Respondents? claim for possession of the 3 bedroom apartment occupied by the Appellants where there is nothing before the Court to show that the Appellants are tenants to the Respondents.?

APPELLANTS? ARGUMENT
The learned Counsel to the Appellants submitted that the lower Court erred when it granted possession

of the three (3) bedroom apartment to the Respondents as there was no proof before the Court that the Appellants were tenants to the Respondents more so, when the trial Court had also held in its Judgment in the second suit that the Respondents did not prove that the Appellants pay rent for the possession of the property at any time.

The Appellants? counsel submitted that actions for recovery of premises are sui generis. He argued that the service of valid notices to quit is a condition precedent to the institution of an action for recovery of premises, and the absence of such notices affects the jurisdiction of the Court. The cases of SPLINTERS NIGERIA LIMITED V OASIS FINANCE LTD (2013) 18 NWLR (PT. 1385) P. 188 AT P. 220-221, IHENACHO V UZOCHUKWU (1997) 2 NWLR (PT. 487) AT P. 257, AYINKE STORES LTD V ADEBOGUN (2008) 10 NWLR (PT. 1096) P. 612 were cited and relied upon by the Counsel to the Appellants. The learned Counsel contended that there was no proof before the Court that the Appellants were served with any notice as required by law.
?
The learned Counsel to the Appellants consequently submitted that the action of the Respondents was not

initiated in accordance with the law, hence the lower Court lacked the jurisdiction to adjudicate on the second suit.

RESPONDENTS? ARGUMENT
The Respondents? arguments on this issue are contained under Issue 2 in the Respondents? Brief of Argument. The learned Counsel to the Respondents submitted that the Respondents as Plaintiffs in the second suit pleaded and adduced sufficient evidence to establish that the Respondents are entitled to recover possession of the three (3) bedrooms residential/commercial flat held over by the Appellants. He argued that there are five methods of proving ownership of title and a Claimant is entitled to plead and rely on any or more of them to succeed, the cases of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227, ARE V IPAYE (1990) 2 NWLR (PT. 132) 298, ABEL NKADO & 2ORS V OZULUIKE OBIANO & ANOR (1997) 5 SCNJ 33 AT 66 were cited and relied upon by the Respondents? Counsel.

Counsel to the Respondents submitted that the Respondents predicated their claim for possession on documentary evidence and tendered cogent documents such as a Deed of Conveyance (Exhibit A1), Letters of Administration

granted to the Respondents (Exhibit A), Certificate of occupancy in the name of Agabus Mbachu which was admitted in evidence and marked Exhibit A2. He submitted further that the evidence adduced by the Respondents were not controverted or challenged during cross examination.

The learned Counsel contended on the authority of POTTER DABUP V HARUNA BAKO KOLO (1993) 12 SCNJ that a person issued with a Certificate of Occupancy over a parcel of land, has the exclusive right to hold same until the certificate of occupancy is set aside. He submitted that there has been no challenge to the validity of certificate of occupancy issued to Agabus Mbachu. He submitted that there is a presumption that Agbaus Mbachu is the owner in exclusive possession of the land in dispute.
?
The Respondents? counsel argued that the non-issuance of statutory notices is of no moment as same is incapable of strengthening or supporting the case of the Appellants who have the onus of relying on the strength of their case and not the weakness of the Respondents? case. Counsel argued further that the Appellants were challenging the rights of the Respondents over the property

in dispute; and are therefore not entitled to be served with any notice.

The learned Counsel to the Respondents submitted that having challenged in clear terms the title of the Respondents as owners of the property in dispute, the Appellants cannot be considered as tenants. He submitted further that the definition of a tenant does not include a person occupying a premises under a bona fide claim that he is the owner.

Counsel to the Respondents contended that the Appellants have alleged ownership of the proprietary interests in the property and as such they are not entitled to any statutory protection as they cannot be considered or contemplated as tenants for the purpose of recovery of premises. The cases of ABEKE V ODUNSI (2013) 5 SCNJ P. 718, ROBERTS V SAMUEL (1950) 13 WACA 56, ODUTOLA V SAMUEL (1956) 1 FSC 76, DAWODU V IJALE (1946) 12 WACA 12 at 13 were cited to buttress the submission of the Respondents? counsel.

RESOLUTION OF ISSUE ONE
This issue challenges the decision of the lower Court to grant the principal relief sought by the Respondents as Plaintiffs in the second suit. The Respondents had sought for recovery of

possession of the disputed property as well as payment of rent and mesne profit. The Appellants? grouse with the decision of the lower Court is that the action which is for recovery of premises was commenced without service of relevant statutory notices. The Appellants further argued that the Respondents are not entitled to the recovery of possession granted by the trial Court as there was no evidence that the Appellants were at any time, tenants of the Respondents.

The Appellants, given the above arguments, are clearly canvassing two (2) mutually exclusive arguments in this appeal. The first argument in this regard is that the Respondents were not entitled to possession of the property since there is no evidence that the Appellants were at any time the Respondents? tenants. The second argument is premised on the fact that the Appellants, as tenants in the disputed property, are entitled to the statutory notices- as conditions precedent- before the commencement of the second suit.
?
As a preliminary observation, I must state that the second part of the Appellants? argument alleging non-service of statutory notices is inconsistent

and contradicts the case put forward by the Appellants at the trial Court. The law is settled that parties have to be consistent in the case presented before the Court. The case of a party at the appellate Court must conform and flow naturally from the case he presented at the lower Court. To this end, a party must not approbate and reprobate on the nature of his grievance before the Courts in a single suit. A law suit is a single action at every stage of the Court proceedings, that is, from the lowest Court to the highest Court in the land.
Having painstakingly considered the case of the Appellants before the lower Court and his case before this Court, it is apparent that the Appellants are merely playing a game of chance or luck such that if one of their arguments or claims fails at the lower Court, he can rely on another argument on appeal. This is a wrong approach to the conduct of this case and the dictum of Rhodes Vivour JSC in NYAKO V ADAMAWA STATE HOUSE OF ASSEMBLY [2016] LPELR-41822 [SC], comes to mind on the Appellants? conducts. The Law Lord noted that:
?An appeal is not for retrying the action, rather it is rehearing on the

Record of Appeal. The Appeal Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding, to discover the truth. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) P.251 A party is to be consistent with the case he sets up and not shift ground in another Court as it suits his fancy..”

I have carefully examined the Appellants? claims at the lower Court particularly the Statement of Defence and Counter-claim in the second suit and there is no single averment in the Appellants? pleadings where the Appellants concede that they were tenants in the property in dispute. The Appellants? claims for title in the disputed property are clear. The Appellants having maintained unequivocally in their pleadings and evidence that they are not tenants to the Respondents, can the Appellants at this stage of the proceedings turn

around to claim that statutory notices are condition precedent for the determination of the claim before the lower Court? I do not think so. I am not oblivious of the facts that the Respondents were the Plaintiffs in the second suit on whom there was a primary obligation to adduce sufficient evidence to prove their case, the claims for title by the Appellants had however altered the nature the suit before the Court below. The Implication of the Appellants? defence was that the Respondents must proof title as a preliminary issue in the suit. I shall return to this principle anon with judicial authorities.

I am of the view that the issue of the non-service of statutory notices to quit viz a viz the competency of the Respondents? claim in the second suit is an afterthought to swing the pendulum of justice in favour of the Appellants by any means. I would nonetheless consider all issues raised by the parties in this appeal.

The Appellants? main contention, which in my view flows from their case before the lower Court and the Judgment, is whether the lower Court rightly granted possession of the disputed property to the Respondents when

there is no evidence that the Appellants were tenants to the Respondents. In the resolution of this issue, I have considered the case of the respective parties particularly the evidence before the lower Court on records as well as the arguments canvassed in the respective briefs before this Honourable Courts. The Respondents sought for possession amongst other reliefs from the lower Court; the Appellants however contended that they were in fact the rightful owners of the property notwithstanding the certificate of occupancy issued in the name of the Respondents? predecessor in title. The Appellants accordingly counterclaimed and sought for a declaration that the Respondents are not entitled to the Certificate of Occupancy issued in respect of the property described as 10, Ifejika Street, Onitsha. The Appellants? Defence and counterclaim in law challenge the Respondents? title to the property and has automatically put the title to the property in issue. The issue before the lower Court, notwithstanding the foundation of the case at the inception, was primarily a resolution of the competing claims of the party to title. The issue of title must

first be determined by the Court. This issue of law was settled by the Apex Court in the case of ERHUNMWUNSE V EHANIRE (2003) LPELR-1158 (SC), (2003) 13 NWLR (Pt. 837) 353. The Claimant in the said case sought for possession and payment of mesne profit against the Defendant. The Defendant on the other hand challenged the title of the Claimant to the property, the Supreme Court held, for the purpose of determining the subject matter before the Court and issue of jurisdiction, held that the action before the Court had, from the moment the Defendant contested the Claimant?s title, became action for determination of title to the property. The Supreme Court per Iguh JSC held as follows:
?The plaintiff’s claims against the defendant before the trial Oredo Area Customary Court in the now defunct Bendel State of Nigeria, holden at Benin City are as follows:-
“(a) Possession of the storey building known and situate at No.3, Osagie Street, Benin City.
(b) An order that the defendant do quit the storey building and premises known as and situate at No.3, Osagie Street, Benin City forthwith.
(c) An order that the defendant pays up

outstanding Electricity Bills and Water Rates in respect of the said premises.
(d) Mesne profits at the rate of N400.00 per month from 1st March, 1986 till possession is given up.”
… It suffices to state that although the plaintiff’s claims against the defendant are for possession of the residential landed property situate at No.3, Osagie Street, Benin City, payment of outstanding electricity bills and water rates in respect of the premises and mesne profits at the rate of N400.00 per month, the defendant’s case is a total denial of the plaintiff’s assertion of title to the property in issue…The length and breath of his defence is that the building which is the subject-matter of this action is his bona fide property and that he never at any time transferred his title thereto to the plaintiff or to any other person else…It is plain to me that the issue of ownership and/or title to the building, the subject matter of the suit, was copiously raised in the proceedings that it was incumbent on the trial Court to determine that issue before it could properly deal with the plaintiff’s

claims against the defendant. This is because, unless the trial Court satisfies itself that the plaintiff had established his title to the premises in dispute, it would almost certainly find itself unable to grant the reliefs claimed against the defendant…?
I do not have any difficulty, on the strength of the above authority, to conclude that the issue before the lower Court was a question of the ownership of the property in dispute. The party that should be entitled to the judgment of the Court, in the circumstance, is the party that was able to prove better title to the property in accordance with the means and standard of proof stipulated by the law.
The Supreme Court per Mohammed JSC, as he then was, in ERHUNMWUNSE V EHANIRE (Supra) in determining the proper issue before the Court held that
?It is crystal clear from the foregoing that the appellant had put the title of his house as an issue in the dispute between him and the respondent. The appellant has not attorned (sic) tenancy to the respondent in respect of the property in dispute and had not paid rents to him or to anyone for his occupation of the premises. I find it

difficult to comprehend the conclusion of the Court of Appeal that by signing Exhibit ?B? (the Deed of Transfer to the respondent) the appellant had divested himself of the property and as such the question of ownership of the did not arise.?
This Honourable Court is bound by the decision of the Supreme Court reproduced above. The issue before the Court below from the pleadings, evidence and judgment of the trial Court was issue of title/ownership to the land in dispute from the moment the Appellants did not concede tenancy to the Respondent. The law is equally settled that what the Court regards as an issue in dispute before it is an assertion of rights or claims by one party which is met by a contrary claim by the other party. This is the position of law as upheld by the Supreme Court in ERHUNMWUNSE V EHANIRE (Supra) and this Honourable Court in OBU V EKANEM & ORS (2010) LPELR-8623 (CA).
The issue decided by the lower Court, and rightly so, was the question of title or ownership of the land in dispute but not tenancy of the Appellants. The Appellants cannot at this stage of the proceedings argue the issue of tenancy or

primacy of statutory notices. This would amount to setting up another issue on appeal which is different from the issue argued and determined by the lower Court. I can now determine whether the lower Court was right to grant possession of the disputed property to the Respondent.

This is simply a call for the examination of the merit of the decision of the lower Court on the question of title/ownership of the land- the primary issue before the Court; it is the party who succeed in proving title/ownership of the disputed property that is invariably entitled to the possession in the property.

possession, and
5. Proof of possession of connected or adjacent land.”

The learned trial Judge rightly observed that the Respondents in the second suit predicated their title to the property on documentary evidence- a Deed of Conveyance dated 28/7/79 between one Edward Nwafor Okoli and Agabus Chimezie Mbachu (Exhibit A1), Certificate of Occupancy issued to Mr. Agabus Mbachu dated 17 July 1981 (Exhibit A2) as well as a Letter of Administration issued to the 1st and 2nd Respondent with respect to the properties of Agabus Chimezie Mbachu (Exhibit A).
?
The Appellants did not challenge the documents by any other document or set to documents but sought to establish their title to the disputed property by oral evidence which is simply that the land and the property was acquired with the proceeds from their late father?s business. Exhibits A1 and A2 clearly fall within the second category of means of proving ownership. The account of the Appellants could not in my opinion be fitted in any of the five (5) means of proving ownership of title to land. One would expect that the Appellants who put ownership in issue in this suit would provide a

document or show better title by establishing possession or control of other part of the property. This is not the case in this suit. The Appellants are in possession of only one of the seven (7) apartments that constitute the property known as 10, Ifejika Street, Onitsha. They have failed to produce any title document. It is equally not the Appellants? case that the land in dispute was originally vested in their predecessor in title or their family from the time in memorial or they control the land adjacent to the property in such a manner that the Court ought to conclude that the Appellants can only be the owner of the title in the disputed property.

The Appellants? narrations cannot supersede the documentary evidence in the establishment of title to the disputed property. The position of the law is that the most reliable evidence is documentary evidence. Documentary evidence being permanent in form is more reliable than oral evidence, and is often used as a hanger to test the credibility of oral evidence. In the case of AIKI V IDOWU (2006) 9 NWLR (PT. 984) P.50, the Court of Appeal pronounced held that:
?Documents when tendered

and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man as they are neither transient nor subject to distortion and misinterpretation but remain indelible through the ages

I am more incline to hold that the documentary evidence before the Court established the title of Agabus Chimezie Mbachu (the predecessor in title of the Respondents). The Appellant failed to show any better title to the property. The law is also settled, that in the absence of a better adverse title to a property, the Certificate of Occupancy issued in respect of the property is prima facie proof of the title to the Property. See the case of LATEJU VS. FABAYO (2012) 1 NWLR (Pt.1304) 159 at 179; KAIGAMA VS.NAMNAI (1997) 3 NWLR (Pt.495) 549.

The lower Court was right to decline the Appellants? plea that Exhibit A2 (the Certificate of Occupancy be set aside). There is clearly no cogent evidence before the Court to sustain that plea. The finding and conclusion of the Court below that the Respondents established title/ownership in the disputed property has merit and I find

no reason to disturb either the finding or the conclusion.
There are scores of judicial authorities in support of this age long principle of proof of title to or ownership of land. See the case of MOGAJI VS. CADBURY NIG LTD (1985) 2 NWLR (Pt.7) 393; ALLI VS. ALESINLOYE (2000) 6 NWLR (Pt.600) 177. The law is that in the event of conflicting claims to title or ownership to a piece of land and where each of the opposing parties is able to establish proof of ownership by any of the acceptable methods of proof of title to or ownership of the said piece of land, then the party that establishes better title will be entitled to the judgment of the Court. See the case of OGAH & ANOR V GIDADO & ORS (2013) LPELR -20298 (CA) where this Court held that:
?The law is equally well settled that, in a situation of conflicting claims, where each of the opposing parties can establish proof of ownership by any of the acceptable methods of proof of title to or ownership of the same piece or parcel of land, then the party that establishes better title will be entitled to the judgment of the Court.?
SEE ALSO FASORO V BEYIOKU (1988) 2 NWLR (PT.76) 263;

OYENEYIN VS.AKINKUGBE (2010) 4 NWLR (Pt. 1184) 265; AROMIRE V5.AWOYEMI (1972) 7 ALL NLR at 10.

The Appellants did not at any rate succeed in establishing the title they alleged. The lower Court was right not to be moved or persuaded to set aside the only available title documents before the Court. The conclusive evidence before the Court is that the Respondents were able to prove their title to the disputed property by production of title documents to the property.

The remaining extant question under this issue, given the above determination, is whether the lower Court rightly granted possession of the property to the Respondents in the absence of statutory notices?

I must pause to observe at this juncture that the contention of the Appellants that there was no evidence of statutory notice before the Court below was wrong. It is correct that the Respondents failed to tender any of the statutory notices at the trial of the suit. The Appellants, in any event, admitted receipt of notice to quit in Statement of Defence and Counter-claim in the second suit. The admission was put in evidence in paragraph 35 of the witness statement on oath of 1st

Appellant at page 97 of the Records of Appeal. The position of the law is that facts admitted need no further proof. See the Supreme Court decisions in DANIEL V IROERI (1985) 1 NWLR (PT 3) 541 AND UBA PLC V JARGABA (2007) 11 NWLR (PT 1045) 247. It is condemnable that a party who admitted receipt of a notice would turn around on appeal to claim that there was no evidence of the notice before the Court.

The above observation aside, the Appellants were not considered as tenants in the determination of the dispute at the lower court but adverse claimant to title to the disputed property. The Respondents had established title to the property in dispute; the Appellants failed in all attempt to establish any title to the disputed property or the only apartment they occupied in the property. I agree with the submission of the Respondents? counsel at page 17 of the Respondents? Brief of Argument that:
“The definition of a tenant does not include a person occupying premises under a bonafide claim that he is the owner. He is not entitled to all the protections afforded by the statues (sic)?In the instant case, the Appellants claimed as

owners and accordingly they did not come within the definition of tenants in the recovery of premises

I will reiterate that any tenant who challenges the title of his landlord or makes adverse claim to the property he holds over as a tenant is no longer a tenant under the provisions of the law and has consequently lost the right to be issued the requisite statutory notices. This position had been affirmed by the Supreme Court in ODUTOLA V SAMUEL (1956) SCNLR p. 214 and this Honourable Court in the case of ELAKHAME V OSEMOBOR (1991) 6 NWLR (Pt. 196) p. 172). This Honourable Court has settled the issue of whether a tenant who dispute title of his landlords is entitled to statutory notices in the case of UDUSEGBE V TUGBA (2010) LPELR- 8634 (CA). The Court answered the question in the negative in consonance with chain of authorities. I am compelled to reproduce the decisions in this judgment in order to put this issue at rest. This Court per Shoremi JCA at pp 17 -18 Para A ? A as held as follows:
?It was in MAKINDE V MAKINDE (2000) 1 SCNJ 101 at 111 that the Supreme Court stated the law thus: – ?In land case where the

tenant turn round not only to dispute the ownership of the title holder but went out of their way to claim title they forfeit right as tenant and their possession of the land?. Also in ELAKHAME V OSEMOBOR (Supra) it was held that ?A tenant who does not acknowledge the title of his landlord is not entitled to quit notice from the said landlord? See also ODUTOLA V SAMUEL & ORS (1956) 1 FSC 76 AT 77 the Court has this to say- ?Furthermore, the first two respondents who claimed to be on the premises as joint owner and mother of the 2nd respondent do not come with the definition of ?tenant? in the recovery of Premises Ordnance and they clearly are not entitled to any notice to quit under the Ordnance. With regard to the 3rd to 7th respondents, they denied ownership of the appellant and claimed to be tenants not of the appellant but of the 2nd respondent and her brother. They did not recognize the appellant as their landlord and the appellant did not regard them as his tenants. In the circumstance, it was impossible for the appellant to have given them the statutory notice which would describe him as the landlord of the

respondents, a relationship which was not recognized or acknowledged on both sides.”
I abide by the aforementioned decisions and hold that the Appellants were not entitled to statutory notices in the circumstance of this suit.

Can the lower court be wrong to have granted possession to the Respondents in the circumstance of this case?

The Appellants contended that the learned trial judge erred in granting possession to the Respondents without proof of issuance and service of statutory notices. The contention is erroneous for the reason already canvassed in this judgment. The lower Court is right to hold that possession is incidental to ownership. The Respondents? claim for possession to the disputed property must succeed when the Court has found that the Respondents had established title to the property. It is settled law that the Courts will ascribe such possession and/or occupation to the person who proves a better title. This Honourable Court in the case of IDOWU & ORS V THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA (2012) LPELR 7863 (CA), held that:

“When the issue as to which of two claimants has better right to a piece of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title.”

The law has not changed and it remains that where a person is granted a certificate of occupancy over a land, the person is entitled to the exclusive possession of the land as against any other person unless and until the certificate of occupancy is set aside. See the decisions of the Supreme Court in Gankon v Ugochukwu Chem. Ind. Ltd(1993) 6 NWLR (Pt. 297) 55 and Madu v Madu (2008) 6 NWLR (Pt. 1083) 296.

The Supreme Court expressly stated the position of the law in MAKINDE V MAKINDE (2000) 1 SCNJ 101 at 111 that ?In land case where the tenant turn round not only to dispute the ownership of the title holder but went out of their way to claim title they forfeit right as tenant and their possession of the land? (emphasis mine). The Appellants are bound to forfeit possession of the disputed property having failed to established better title to the property.
?
I have resolved all the questions that arise from issue one formulated by the Appellants for the determination of this appeal. The

answers to the questions are unfavourable to the Appellants. In light of the foregoing, I resolve this issue against the Appellants and consequently hold that the lower Court rightly grant possession to the Respondents in the circumstance of this case.

ISSUE TWO
?Whether a situation of implied or resulting trust arose in the business relationship between the Appellant and the 1st Respondent?s husband.”

APPELLANTS? ARGUMENT
The Counsel to the Appellants referred the Court to the definition of Trust as contained in ?Underhills Law of Equity and Trust? at page 3 of the book as follows:
?A trust is a relationship which arises where a person called the trustee is compelled in equity to hold property whether real or personal and whether by legal or equitable title for the benefit of some persons (of whom he may be one and who are termed cestuique trust) or for some object permitted by law in such a way that the real benefit of the property occurs not to the trustee but to the beneficiaries or other object of the trust.”

The Appellants? counsel also referred the Court to the

definition of Trust in the book titled ?Equity and Trusts in Nigeria? by J.O Fabunmi (2nd edition) and the definition of Trust in the 4th edition of the Black Law Dictionary. He submitted that an implied trust was created in the understanding reached between the family of the Appellants and Agabus Mbachu. Counsel to the Appellants relied on the definition of implied trust in Section 85 of Trust and Equity Law Cap 144 Revised Laws of Anambra State as follows:
.. including any trust deemed by the law to arise from the presumed intention of the settler.”

Counsel argued that the Appellants? witnesses adduced evidence and established before the lower Court the understanding between the Chief Gabriel Orjiakor and the late Mr. Agabus Mbachu. He contended that implied trust may be inferred from the relationship between the said Chief Gabriel Orjiakor and the late Mr. Agabus Mbachu. The learned Counsel to the Appellant relied on the case of AKWEI V AKWEI (1943) 9 WACA P.111 AND ALSO MARIE AYOUB & ORS V STANDARD BANK OF SOUTH AFRICA LTD & ORS where according to the Appellant?s Counsel, the judicial committee

of the Privy Council emphasized that the Court will not construe a trust as implied except in a case of necessity in order to give effect to the intention of the parties. Counsel submitted that implied trusts are exempted from the requirements for the creation of express trust.

In aid of his argument, the learned Counsel to the Appellants cited the provisions of Sections 8 of the Statute of Fraud 1677 and Section 78(2) Property and Conveyancing Law of Anambra State as follows:
Section 8 Statute of Fraud: ?Where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication of construction of law, or be transferred or extinguished by an act of operation of law, then and in every such care, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made anything herein before contained to the contrary notwithstanding.”
Section 78(2): ?Property and Conveyancing Law of Anambra State: ?This section (viz Section 78) does not affect creation or operation of resulting, implied or constructive trusts.

The Counsel to the Appellant submitted that the combined provisions of Section 8 of the Statute of Fraud and Section 78(2) of the Property and Conveyancing Law, excludes implied or constructive trusts from being formalized in writing on the ground that such requirement will defeat the purpose of such trusts. Counsel further submitted that it is not the intention of the parties in such circumstances to declare a trust, but a trust is implied as a result of the conduct of the parties.

The Appellants? counsel submitted, on a final note, that an implied trust was created in this case as the late Mr. Agabus Mbachu retained and managed the businesses of Chief Gabriel Orjiakor for the benefit of Appellants? family.

RESPONDENTS? ARGUMENT
The Counsel to the Respondents submitted that the issue of implied trust canvassed by the Appellants is misplaced and misconceived as the verbal agreement which forms the basis of the Appellants? claim at the lower Court was discountenance by the lower Court. There is therefore, in the submission of the Respondent, no ground upon which ownership of the property can be attributed to

the Appellants on resulting or implied trust.

Counsel submitted that the issue of implied trust would arise where there is no satisfactory proof of ownership in law. The Respondents? counsel argued that the alleged understanding or agreement with respect to the property in dispute as alleged by the Appellants ought to be firmly established by clear and satisfactory evidence on the balance of probability. He submitted that the presumption of trust put forward by the Appellants was displaced by the evidence of PW2 and PW3 during cross examination at the trial. Counsel contended on the authority of BERTUM MADU V GRACE MADU (2002) 13 NWLR (PT. 784) P. 231 AT P. 235, 247-248 which was relied upon by the trial Court that the defence of resulting trust cannot exist in a vaccum, and must be based on a clear, expressed and presumed intention of the rightful owner of the property.

The learned Counsel to the Respondents submitted that the Appellants failed to establish better title to the disputed property, therefore the Appellants? claim of implied trust must fail. The case of AGU V NNADI (2002) SCNJ P. 238 was commended to this Honourable Court.

Counsel argued that the burden of proof imposed on the Appellants cannot be circumvented under the principle of implied trust. The Respondents? concluded that the lower Court was right in refusing to consider the Appellants? case for implied trust. The cases of TEWOGBADE V AKANDE (1968) NNLR 404, ARE V ADISA (1967) NMLR 304, OKPALA V IBEME (1989) NWLR (PT. 102) P. 208, ATUANYA V ONYEJEKWE (1975) 3SC P. 115 were cited in support of this submission.

RESOLUTION OF ISSUE TWO
This issue revolves around the understanding between Late Agabus Mbachu and Late Gabriel Orjiakor in the course of the business relationship between the duos. The parties are in agreement that the former was an apprentice of the latter. The controversy between the parties was whether as at the time the apprenticeship ceased there was any understanding between the parties on the management and control of the proceeds of the business of Gabriel Orjiakor. The Appellants contended that the late Agabus Mbachu took over the business of Gabriel Orjiakor in trust for the latter’s beneficiaries. The Respondents denied such relationship. The Appellants, by the general

requirement of proof under Sections 131, 132 and 133 of the Evidence Act, 2011 had obligations to prove two facts to establish that the property was acquired or held in trust by the late Agabus Mbachu in the circumstance of this suit.
First, it must be proved that the Late Agabus Mbachu took over the management of the late Gabriel Orjiakor’s business or some of the business undertakings. The second facts that must be proved is that it was the proceeds from the business or such undertakings that was used to acquire and or develop the disputed property. These are the two relevant facts in the circumstance of the specie of trust canvassed by the Appellants in this case. It is instructive in the light of the arguments before this Court to clarify from the outset that a party who urges the Court to reach a conclusion that there was a constructive or implied trust is not required in law to prove any special relationship between the settlor and trustee. Constructive or implied trust is such that the Court would infer from the unexpressed intention of the parties or input by the operation of law based on the facts in issue. This is the distinguishing factor

between these species (constructive or implied trust) and express trust. See the case of WESTDEUTSCHE LANDESBANK GIRONZENTRALE V ISLINGTON LONDON BOROUGH COUNCIL (1996) 2 AER 961 which was followed by the Supreme Court in MADU V MADU (SUPRA).
It is apposite therefore for me to espouse on the concept of Trust before resolving the arguments of the parties on the existence of the two relevant facts identified above. Trust simpliciter, is the right enforceable solely in equity to the beneficial enjoyment of property to which another person holds the legal title. It is a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property. Certainty of subject matter is an important element in trust. It should reflect the settlor’s intent and be created for a lawful purpose. See the case of IBEKWE V NWOSU (2011) LPELR -1391 SC.
There are several types of trust which include Express Trust and Implied Trust. While Express Trusts refers to Trusts when the owner formally declares himself a trustee of the property for the

benefit of another person or vests property in another person as trustee for the benefit of another person. Conversely, Implied Trusts are informal and are not required to be in writing or contain the signature of the settlor. In the case of Ezeanah v. Atta (2004) 7 NWLR (Pt. 873)468, the Supreme Court held on the concept of implied trust as follows:
“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.”
The corner stone of the Appellants’ claim

is founded on implied or resulting trust as exemplified in the above authority. The Appellants here admitted that the documents of the disputed properties are in the name of the Late Agabus Mbachu. The Appellants however contended that the title in the property ought to result back to the late Gabriel Orjiakor whose proceeds were used by Agabus Mbachu to acquire and developed the property. The Appellants rightly situate their claim in resulting trust but what is left to be decided is whether there are establish facts in support of the Appellants’ claim.
Resulting trust is a trust that can be readily deduced as being implicit in the conduct of parties but without express intention. Resulting trust is based on the unexpressed but presumed intention of the owner to create a trust. For a resulting trust to be implied or inferred, there must be in existence sufficient facts to show the circumstances that would give rise to this equitable principle which must demonstrate in no uncertain terms the condition that would ground its presumption. See the case of EZEANAH V. ATTA (2004) 4 MJSC 1. In implied trust, the Court enforces the intention of the parties to

create a trust. This intention is deductible from the facts and circumstances of each case.
Resulting trust would be imposed by law in a situation where a transferer/settler transfers a property to a transferee under the circumstances suggesting that the beneficial interest in the property does not inure in the transferee. A resulting trust thus arises because of the transferor’s intention. The pertinent question is whether evidence was sufficiently adduced before the lower Court to support the Appellants’ claim. What then is the evidence and findings before this Honourable Court?

The 1st Appellant- PW1, recounted how sequel to the death of his father – Gabriel Orjiakor, there was an understanding and arrangement between Agabus Mbachu and the Appellants’ mother that Agabus Mbachu will manage the business of Gabriel Orjiakor on behalf of the children of Gabriel Orjiakor including the Appellants. PW1 alleged that it was further agreed that the proceeds of the business of Gabriel Orjiakor would be used for the upkeep and maintenance of the wife and children of Gabriel Orjiakor.
?
During cross examination, PW 1 stated that his father was a wealthy

man who had several apprentices including Agabus Mbachu and one Cornelius Ezekwere. He averred that after the end of the civil war, Agabus Mbachu took over and traded with his father’s goods. PW1 alleged that he was present when his father’s goods were handed over to Agabus Mbachu to manage and same was done in trust. PW1 mentioned several other persons present when his father’s goods were handed over to Late Agabus Mbachu. According to PW1, some of the persons at the handover included his grandfather late Israel Orjiakor, Late Chief W.I Orjiakor and Chief John Oragwa.

The findings of the Court below that all the witnesses in the alleged handing over of Gabriel Orjiakor’s business to Agabus Mbachu were family members or persons related to the Appellants. These findings were borne out of answers to cross examination questions by PW1 at page 289 of the records:
”Israel Oljiakor is my grandfather. W.I Oljiakor is my grandfather’s bother (sic) and John Oragwa’s mum and my mum are sisters and she stayed in our house during the war. I insist the people I mentioned above were there.”

The lower Court consequent made the following findings:
“…. I accept the submissions of the learned Counsel for the Defendant that an agreement of this nature and magnitude if it actually took place, could not have been in isolation or exclusion of witnesses on both sides. It is imperative that the family of Mbachu should have been invited … ” (page 264 of the records)

The findings are relevant to the proof of one of the germane facts in issue particularly in view of the vehement denial of the alleged transactions by the Respondents. The evidence in proof of these material facts, in order to tills the weight of evidence or balance of probability in favour of the Appellants, ought to be believable. There ought to be at least evidence from one independent person who witnessed the transfer of the businesses or the decision that Agabus Mbachu should take over the management of business of Gabriel Orjiakor and whom is not an interested party or bound bya degree of consanguinity that would make a reasonable man to disbelieve the veracity of his (the witness) narration. Given that the said late Gabriel Orjiakor had other apprentices aside the late Agabus Mbachu as admitted by PW1 under cross examination, one

would expect that at least one of the apprentices would witness the transfer of the business of his late master to a fellow apprentice.

Rather, it was the Respondents who called, one Cornelius Ezekwere (the PW4) who was one Gabriel Orjiakor’s apprentices at the material time of his death. PW4 testified for the Respondent as follows:
“6. As pointed out in the introductory paragraph, Late Agabus Mbachu and I amongst others were apprentice to Late Chief Gabriel Orjiakor until the start of the Nigerian civil war. We were based at Onitsha
14. I am also aware that after the war, Agabus Mbachu returned to Onitsha and began to trade on his own. He was on his own trading for himself and not for anyone
15. It is not correct as was alleged that Agabus Mbachu returned to Onitsha with any goods or wares of Late Gabriel Orjiakor. Agabus Mbachu did not return to Onitsha with any goods or wares of Late Gabriel Orjiakor and did not continue with his business. I had earlier stated that due to the prevailing harsh economic conditions that had existed during the Nigerian civil war, hostilities or crises, all the goods and wares with which Late Gabriel

Orjiakor led with from Onitsha were completely disposed of or sold at Nkwo market Umuchu personally by Late Gabriel Orjiakor to enable him carter (sic) for and maintain his family during the civil disturbances
17. In fact,the man Agabus Mbachu returned to Onitsha and started his own business, buying and selling foot wear, which was the line of business we had learnt from Late Gabriel Orjiakor

The aforementioned evidence of DW4 was not challenged by the Appellants and I am inclined to believe the version of events narrated by DW4 who was a neutral party in the dispute before the Court below. The Appellants neither challenged the testimony of DW4 nor call a witness in the same category to prove or controvert the above facts which are damaging to the most important facts of their claim to title by resulting trust.

There is nothing, in my opinion, which weakened the Appellants’ evidence with respect to the facts under consideration than the 1st Appellants’ admission that late Agabus Mbachu disputed the Appellants’ claim prior to his death. The PW1 states in paragraph 26 and 27 of his witness statement on oath at page 96 of the

Record as follows:
?…. 26. That after the death of my mother, we the Plaintiffs who were adults approached the 1st Defendants deceased husband who was alive at the material time for own share of assets acquired with the proceeds from our late father?s business but we were rebuffed by the 1st Defendants husband. ..
27. That the 1st Defendants said husband at that point started claiming exclusive interest over the said business and properties including the said No. 10 Ifejika Street, Odoakpu Onitsha. All attempts we the Plaintiffs made to have peaceful resolution of the matter were rebuffed … ”

The implication of foregoing admissions, on the balance of probability, is that the only persons that believe in the Appellants’ claims are the Appellants and their relative. This inexorably reduces the probative value of the evidence as demonstrated by the learned trial judge. The Learned trial judge in view of the loophole in the Appellants’ evidence did not have any difficulty in disbelieving the alleged transfer of the business of Gabriel Orjiakor to Agabus Mbachu. The Learned Trial Judge consequently discountenanced the main facts

upon which the Appellants predicate their claims to the title of disputed property.

I find no reason to disturb the findings of the lower Court above as well as the conclusion of the trial judge that the probative values of the evidence of PW 2 and PW 3 are minima, the witnesses being relatives of the Appellants and within the range of interested parties in the circumstance of this suit, the Court must be circumspect in the evaluation of their testimony. The Appellants have not shown that the findings of the lower Court are perverse, based on improper evaluation of evidence or it is apparent that the trial Court has not taken proper advantage of its seeing and hearing the witnesses or, otherwise, there is an apparent error on the record or generally there are some miscarriage of justice. The law is settled that an appellate Court would not disturb the finding of a trial Court unless any of the foregoing grounds has been shown by the Appellant. See the decision of the Supreme Court in the case of DANBABA V STATE (2018) 11 NWLR (PT. 1631) 426 AT 452.

The Appellants did not succeed in establishing that the business of Gabriel Orjiakor was taken over

or transferred to Agabus Mbachu on the balance of probability. This dispenses with the second facts identified above which is whether there is any established fact that the disputed property was acquired or developed with the proceeds of the business of the Gabriel Orjiako by Agabus Mbachu. In any event, the Appellants were unable to proof these facts when their assertions are juxtaposed with the evidence offered by the Respondents that the property was developed with the proceeds of the development loan obtained by Agabus Mbachu from First Bank Limited. The result is that there is no fact to predicate the presumption of resulting trust urged upon this Honourable Court by the Appellants.

The lower Court which had the opportunity to observe the demeanour of the witnesses and ascribe probative value to same did not believe the testimony of the Appellants’ witnesses. The lower Court observed at page 263 of the records as follows:
“The PW2 and PW3 who claimed to have witnessed the handing over of the goods to Late Agabus are natives of Uga and blood relations of the Plaintiffs’ late mother Mrs. Virginia Otjiakor. PW3 in his evidence under cross

examination that there was no inventory of the goods handed over to the late Agabus Mbachu on trust after the war. The PW3 could not state the value of the goods … It is pertinent to observe the names averred by PW3 as eyewitnesses of the said parol (sic) argument (sic) did not include PW2 Sunday Ume yet stated in his evidence under cross examination (sic) he witnessed the handover (sic) the goods, but surprisingly somersaulted when he testified to the effect that all that I have told the Court were told to me by late Virginia Orjiakor and ended by stating all he knew was that Late Agabus was late Gabriel Orjiakor’s apprentice. It is my finding that the PW2 and PW3, the alleged eye witnesses are viewed as interested parties by reason of their blood relationship with the late Plaintiffs’ mother. I feel this is the reason why the PW3 could not give inventory of the goods or at least guess the value of the goods. Again, PW2 who nursed one ambition of supporting the case of the Plaintiffs with his inconsistent evidence could not help matters…. ”

The Court would only imply or presume resulting trust based on facts but not in vacuous or speculation. The

presumption, where there appears to be some facts, is rebuttable by evidence of the proof of actual intention of the purchaser or the consistency of documents before the Court as demonstrated by the Supreme Court in MADU V MADU (Supra). It is only where there is no evidence that contradicts such presumption, that the presumption of resulting trust will prevail. See the case of UGHUTEVBE V SHONOWO (2004) 6-7SC P. 1.

The actual purchaser from the findings of the lower Court as well as the Certificate of Occupancy is Agabus Mbachu, this said purchaser from the testimony of the Appellants, themselves, denied any understanding between himself and Gabriel Orjiakor with respect to the acquisition of the property in dispute. The Appellants’ mere claim of the existence of an implied trust or resulting trust between Gabriel Orjiakor and Agabus Mbachu without more does not suffice in the circumstance of this case.
?
It is a well settled principle of law that in all civil cases, the person who asserts must prove. Hence, the burden of proof in civil matters is generally on the plaintiff/claimant. The Claimant or Plaintiff is therefore duty bound to prove all

facts pleaded in his pleadings to the satisfaction of the Court on balance of probability. It is indubitable, from the foregoing analysis, that the burden of proving the transfer of the business of Gabriel Orjiakor to Agabus Mbachu is on the Appellants. The burden of proving that there was any intention by Gabriel Orjiakor or anyone acting for him to create a resulting trust in favour of the Appellants lies on the Appellants pursuant to the provisions of Section 133(1) of the Evidence Act. The Appellants had the onus of presenting concrete, cogent and credible evidence in proof of their claims. The Appellants did not discharge this burden.

It is correct, as submitted by the Appellants’ counsel, that Implied Trusts are exempted from the formalities required for the creation and disposition of an express trust. This is simply due to the fact that such trusts are implied from the conduct of the parties without the concerted actions of the settlor to constitute an express trust. Consequently, there are no formal requirements for its creation. See the case of JOLUGBO & ANOR V AINA (2016) LPELR- 40352 (CA). This does not however dispense with the burden on

the Appellants to prove the material facts upon which the Court would presume the existence of trust in the circumstance of this case.

The findings of the lower Court are borne out of the evidence on record. The evaluation and value adduced to the evidence by the lower Court are equally borne out of the observation of the witnesses before him. I have no reason to disturb the findings of the lower Court and I will not interfere with same. I hold that the Appellants had failed to prove the facts that would lead this Honourable Court to hold that there is a presumption of an implied or resulting trust between Gabriel Orjiakor and Agabus Mbachu with respect to the disputed property. I consequently resolve this issue against the Appellants.

ISSUE THREE
“Whether the learned trial Judge was right to have based his Judgment on the evidence of DW1, DW2 and DW3 which are all hearsay evidence.”

APPELLANTS’ ARGUMENT
The learned Counsel to the Appellants submitted that the Judgment of the lower Court was predicated solely on the hearsay evidence of DW1, DW2 and DW3. He contended that DW1 (“the younger brother of Agabus Mbachu”) admitted under

cross examination that he witnessed some events which he testified about and he was informed by his late brother – Agabus Mbachu of the other incidents he testified to. Counsel contended further that DW 2 (the 1st Respondent) testified that she was not married to the Late Agabus Mbachu at the time Chief Gabriel Orjiakor’s business was placed in care of Agabus Mbachu.

The Appellants’ counsel submitted that DW2 testified during cross examination that her husband Agabus Mbachu informed her of the relationship he had with the Orjiakor family during their Courtship. Counsel also referred the court to the testimony of DW 3 (The son of the 1st Respondent) who admitted that he was born in 1979 and there is no way he would have known of any agreement between his father and Chief Gabriel Orjiakor.

The Counsel to the Appellant submitted that the evidence of DW 1, DW2 and DW3 is hearsay evidence and same is inadmissible in law. He buttressed his submission with the Supreme Court decision in NJOKU V STATE (2013) 2NWLR (PT. 1339) P. 548 AT P. 568. Counsel subsequently urged the Court to set aside the Judgment of the lower Court and order a fresh trial.<br< p=””

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RESPONDENTS’ARGUMENT
The learned Counsel to the Respondent submitted that the totality of the Appellants’ counsel arguments on hearsay evidence is mischievous and baseless. He contended that the DW2- the widow of Agabus Mbachu tendered vital documents during the trial including – Letter of Administration, Deed of Conveyance, Certificate of Occupancy, Deed of Legal Mortgage, Deed of Release as well as Verdict of Arbitration and the documents were identified by DW3.

Counsel submitted that the documents tendered by DW2 and identified by DW3 lend credence to the Respondents’ case and corroborates the testimony of the Respondents’ witnesses. He submitted further that where documentary evidence supports oral testimony, the oral testimony becomes more credible, this submission was buttressed by the decision of the Supreme Court in the case of ODUTOLA V MABOGUNJE (2013) 53 NSQR P. 57 per Rhodes Vivour JSC. Counsel submitted that the submission of the Appellants’ counsel on hearsay is misplaced and totally misconceived.

RESOLUTION OF ISSUE THREE
The Appellants’ contend that the evidence of DW1, DW2 and DW3 relied on by the lower Court are not

admissible in law on the ground that the evidence are hearsay evidence which is inadmissible by law. What then is hearsay evidence? The Supreme Court in the case of AROGUNDADE V. THE STATE (2009) 6 NWLR (PT.1136) PAGE 165 AT 181-182 (G-B) clarifies what amounts to hearsay evidence as follows:
“In the case of SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 WLR 965 AT 969, hearsay evidence was described in the following terms:- “Evidence of a statement made to a witness called as a witness mayor may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement, it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”
In very simple terms, hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is a testimony or document that quotes other person(s) who are not present in Court which then in turn makes it difficult to establish its credibility or to test it by cross examination. It is hearsay if the evidence seeks to

establish the truth of a statement and not merely the fact that it was made. See the case of BRILA ENERGY LTD V FRN (2018) LPELR- 43926 (CA). The definition of hearsay is also encapsulated in Section 37 of the Evidence Act 2011 which provides as follows:
“Hearsay means a statement
a. Oral or written made otherwise than by a witness in a proceeding; or
b. Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act; which is tendered in evidence for the purpose of proving the truth of the matter stated in it …. ”
At its core, the rule against using hearsay evidence is to prevent second hand statements from being used as evidence at trial given their potential unreliability. As a general rule, hearsay evidence is inadmissible in law, paradoxically the hearsay rule is better known for its numerous exceptions than the rule itself. I have methodically considered the testimony of DW1, DW2 and DW3 at the lower Court to ascertain whether the testimonies were in fact hearsay evidence.

During the trial at the lower Court, DW1, particularly during cross examination

stated facts within his personal knowledge. DW1 stated that he had a close relationship with the Late Agabus Mbachu and if there was any trust relationship or any of such arrangement between Gabriel Orjiakor and Agabus Mbachu, he would have been informed. The testimony of DW 1 is at page 302 to page 311 of the record. I am of the firm view that the facts testified to by DW1 do not constitute hearsay evidence to render them inadmissible. DW 1 simply stated that he was not aware of any trust arrangement between Gabriel Orjiakor and Agabus Mbachu. The material evidence of DW1 was basically statement on what he was not aware- this in my opinion is direct evidence.

DW2 during cross examination testified that during her courtship with the Late Agabus Mbachu which culminated to marriage, the late Mbachu informed her of all his dealings and transactions with Gabriel Orjiakor. DW2 testified as follows at page 314 of the records:
?My husband and I wedded in 1976. My husband told me all the transaction relationship between himself and Orjiakor when we were courting …?
?
The testimony of DW2 relating to what she was informed by the late

Agabus Mbachu constitutes hearsay evidence as DW2 repeated to the Court the information she allegedly received from Agabus Mbachu. The poser remains as to whether DW2’s evidence comes within the exceptions to the hearsay rule as recognized by the Evidence Act.

Section 39 of the Evidence Act 2011 stipulates the exceptions to the hearsay rule as follows:
“Statement, whether written or oral or facts in issue or relevant facts made by a person-
a. Who is dead
b. Who cannot be found
c. Who has become incapable of giving evidence; or
d. Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under sections 40 to 50.”
By the aforementioned provision of the Evidence Act, statements made by any of the categories of persons mentioned may be admitted in evidence where the maker of the statement is not called as a witness by reason of death or incapability stated in the provisions. One fact that is not in dispute is that Agabus Mbachu is dead and it was practically impossible for him to be called as a witness. The evidence of

what he said is permissible under Section 39(a) of the Evidence Act 2011. What is the evidence of DW3?
DW3 testified at page 323 of the records as follows:
” … since I was born in 1970, there is no way I would have known if there was agreement either oral in writing (sic) if there was any agreement between my late father and the Plaintiffs’ fathers family, but it could have been in the verdict to us (sic) by Orjiakor’s family.”

DW3, glaringly, did not have first-hand or direct information of the existence or otherwise of any arrangement between Gabriel Orjiakor and Agabus Mbachu could only have been supplied by another person. It is therefore hearsay and inadmissible in evidence.

The question that must be answered in view of the Appellants’ contention is whether the trial Court would have reached a different conclusion if the evidence of DW 3 had been expunged from the judgment of the lower Court. I do not think the absence of the evidence of DW 1, DW 2 and DW 3 would have assisted the Appellants in establishing that Agabus Mbachu took over the management of the business of Gabriel Orjiakor and that it was the proceeds of business that

was used to acquire the disputed property. The reason is simply that the facts in issue were alleged and must be proved by the Appellants. It was the Appellants that would fail if the facts were not proved as envisaged in Section 131 and 132 of the Evidence Act. The Appellants having failed to prove these facts had relieved the Respondents of burden to disprove the facts by superior evidence on the balance of probability.
As stated earlier in this Judgment, the Appellants have the onus of adducing credible evidence in support of their case, and their claim succeeds on the strength of the evidence proffered regardless of the weakness of the defence put forward by the Defendant. Simply put, the weakness of the Respondents’ defence with regard to the alleged business and acquisition of the property does not exonerate the Appellants from their primary duty of proving their case with cogent and credible evidence. See the case of UMEOJIAKO V. EZENAMUO (1990) 1 NWLR (PT. 126) 253. The Respondent as Claimant had proved their claim to title to the disputed land by documentary evidence. Appellants who set up an averse claim and counterclaim against the Respondent

has duties to discharge the burden of prove that arose from their allegations. The Appellants’ claims could not be based on the Respondents’ defence denial of the claims.

This issue succeeds in part and the testimony of DW3 as it relates to the existence of business arrangement between Gabriel Orjiakor and Agabus Mbachu. The testimonies of DW1 and DW2 on the same issue are not hearsay evidence for the reasons canvassed above. I hold that the testimonies are admissible and properly admitted by the lower court.
On the whole, I hold that this appeal fails and is hereby dismissed.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the Lead Judgment of my Learned Brother, A. S. UMAR, JCA and am in total agreement with his reasoning and conclusion that this Appeal is unmeritorious and should be dismissed.

?My Noble Lord has done justice to all the issues raised and I must confess that his Judgment is unassailable. I agree completely with him that from the totality of the evidence adduced by the parties, the Respondents as claimants in the Lower Court discharged the burden placed on them under Sections 131,132, 133 and indeed 134 of the Evidence Act, 2011 as well as on the decided authorities as cited by my Lord, thus warranting the Court to decree title to the land in dispute in their favour.

I adopt the entire Judgment of my Learned Brother as mine and I shall also dismiss the Appellants’ Appeal and abide by the Order as to 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 ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment of my learned brother, I equally find the appeal totally devoid of merit and I dismiss it.

Appearances:

C.O Ezeani, Esq.For Appellant(s)

C.O Orakwe, Esq.For Respondent(s)

Appearances

C.O Ezeani, Esq.For Appellant

AND

C.O Orakwe, Esq.For Respondent

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