NICHOLAS OKERE v. THERESA AKALUKA
(2014)LCN/7534(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/PH/114/2006
RATIO
EVIDENCE: BURDEN AND STANDARD OF PROOF; BURDEN AND STANDARD OF PROOF IN CIVIL CASES
This principle of Law is dearly encapsulated in Sections of the Old Evidence Act, CAP. 112, Laws of the Federation of Nigeria, 1990 which provided that whoever desires a Court to give Judgment as to his/her legal right or liability dependent on the existence of facts which he/she asserts must prove that those facts exist.
Furthermore, when a person is bound to prove the existence of any facts, the burden of proof is said to lie on such a person. See section 135(1) and (2). Again, the burden of proof in a suit as in our instant case is said to be on the party who would fail if no evidence at all is given on either side (Section 136). To buttress the submission of the learned Counsel for the Appellant which was conceded by the learned counsel for the Respondent, Section 137(1) and (2) of the Evidence Act provide thus:
“1. 137(1) in civil cases the burden of first proving the existence or non-existence of a fact is on the party against whom the Judgment of the Court would be given if no evidence were to be produced on either side, regard being had to any presumption that may arise from the pleadings.
2. If such party adduces evidence which ought reasonably to satisfy a jury, that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the Issues in the pleadings have been dealt with.”
Although there is no specific provision in the repealed Evidence Act on the standard of proof in civil matters, the general principle of the Law of Evidence had been that the standard of proof in matters of this nature is on the balance of probabilities or preponderance of evidence. See Section 134, of the current Evidence Act, 2011. Thus, the Supreme Court had on the State of the provisions of the Law as above stated held in Asu v. Nnaji (2003) FWLR (Pt. 139) 1537 at 1554-1555, that in Law it is incumbent on the plaintiff to show by proof a prima facie case before the Defendant can be called upon to adduce evidence for the burden is on the plaintiff to prove his case and when the Defendant is called upon to adduce evidence, thereafter, the case would be decided on the balance of probabilities. See further Lamie v. D.P.M. & Services (2006) ALL FWLR (Pt. 296) 775 (S.C.); Onwuama v. Ezeokoli (2002) 5 NWLR (Pt. 760) 353; Aromire v. Awoyemi (1974) 2. SC 1 at 10-11, Kaiyajola v. Egunla (1974) 12 S.C. 55.
How then does the Court decide that a party has proved his/her case on the balance of probabilities or that his/her evidence preponderates that of the other party? The Supreme Court had in the land mark case of Mogaji v. Odofin (1979) 4 SC 91 at 95 per Fatai-Williams, J.S.C. (as he then was); which has been followed in a plethora of cases laid it down that the totality of the evidence should be considered in order to determine which one has weight or has no weight and that in deciding this question the trial Judge after a summary of the facts as adduced by the parties must put them on an imaginary scale weigh one against the other and then decide upon the preponderance of credible evidence which of them weighs more and then accept same in preference to the other. Thereafter the Judge will then apply the Law to it if that Law supports it, bearing in mind the cause of action. See further, Osuji v. Ekeocha (2009) ALL FWLR (Pt. 490) 614 S.C.; Akpan v. Isa (2011) ALL FWLR (Pt. 579) 1201; Agboola v. UBA (2011) ALL FWLR (Pt. 574) 74 SC; Eya v. Olapede (2011) ALL FWLR (Pt. 584) 28 S.C,; Yakubu v. Jauroyel (2005) ALL FWLR (Pt. 283) 184 C.A. and Alao v. Akano (2005) ALL FWLR (Pt. 264) 199 per, Ejiwunmi, J.S.C. (of blessed memory). per. IGNATIUS IGWE AGUBE, J.C.A.
COURT: DUTY OF COURTS; THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE ON EVIDENCE AND THE PRINCIPLES WHICH SHOULD GUILD THE EVALUATION OF EVIDENCE BY TRIAL COURT
The Law is trite that the evaluation of evidence and ascription of probative value to such evidence as led by the parties is the primary function of the trial Court/Judge who had the singular opportunity of hearing and watching the witnesses testify and an Appellate Court which is seized only of the bare records should not as a matter of cause interfere with the findings of fact based on such evidence particularly on the credibility of witness, unless of course, such findings are perverse or not borne out of the evidence on record or that the trial Court did not make use of his visionary and auditory faculties in the evaluation and appraisal process. See Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) 363 at 387 paras B-D, Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 567. Paras. E-G; per Tobi JSC; Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 409-412 paras. G-B; where the self same Tobi, JSC, Laid the nine principles which should guide the evaluation of evidence by trial and Appellate Courts like ours. For the avoidance of doubt I shall summarize those principles as regards trial Courts as follow:-
1. The learned trial Judge should only be concerned with issues joined by the parties and in other words take into consideration winning and losing evidence which could determine the case one way or the other.
2. The trial Judge can commence the evaluation of the evidence from any of the parties he deems fit but usually that of the plaintiff provided equal and compassionate consideration was given to the evidence of the respective parties.
3. The result of the evaluation should not leave an Appellate Court in doubt that the trial Judge heard the evidence before him to the last sentence and word.
4. Strength should also be given to the case of the respective parties so that at the end of the exercise the Judge is not charged with likelihood of bias depending upon the impact or depth of the evaluation as it affected the party on the disadvantage of being discriminated against.
5. The trial Judge must take into consideration in the evaluation process evidence that violated the Evidence Act and reject or expunge same.
6. The trial Judge should also take into consideration the demeanour of witnesses which include the mannerisms of the witnesses or their overt and outward behavior.
7. In ascribing probative value or belief or disbelief of the evidence of the parties, such belief or disbelief must be borne out of the Record such that on appeal, the Appellate court may not hold such findings as perverse.
8. The trial Judge should take into consideration the totality of the evidence (both exculpatory and exculpatory) and not pick and choose the evidence of some and ignore others; and
9. After the evaluation of evidence, the trial Judge shall place the totality of the evidence on the imaginary scale of justice to see where and to what side the pendulum tilts in favour and where the pendulum tilts in favour of the plaintiff, Judgment is entered in his favour but when the pendulum tilts to the Defendant, the plaintiffs case is dismissed. per. IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: JOINT OWNERSHIP; JOINT OWNERSHIP OF MATRIMONIAL PROPERTY
Now upon a careful consideration of the submissions of the learned Counsel for the respective parties and as I had earlier on observed on the concepts of constructive trust and tenancy by the entirety, I reiterate that just like the concept of co-ownership or joint ownership, the husband and wife concurrently own matrimonial property in the sense that their rights or estate in the property are un-severable without the consent of the other.
Again, as rightly submitted by the learned Counsel for the Appellant the joint nature of the title manifests itself in two basic elements which are the four unities and the right of survivorship otherwise known as “jus accrescendi” in legal parlance. Thus, the learned Counsel for the Appellant was on very firm ground when he cited and retried on the case of Iyaye v. Aribisala (1930) 10 NLR 10, which was decided on the basis that a joint tenant may by severance alienate his interest inter vivos as he is entitled so to do.
See Rihawl v. Aromashodun (1952) 14 WACA 204 and Dabiri v. Gbajuimo (1961) 1 ALL NLR 225. By such alienation, as was done by 1st Defendant to the Appellant, the Appellant is said to have acquired a separate right of ownership to an aliquot undivided share of the property. In this wise and as explained by the learned Counsel to the Appellant, the four unities of time, title, interest and possession, means that no one of the Respondent and 1st Defendant could point to any part of the property as his or hers. Each of them no doubt had the same identical interest in any part of the property and derived their title from one source and owned the house from the same point of time.
The above scenario is what a joint ownership in the ordinary parlance between children of the same parents or members of the same family entails. However, as far as joint ownership of matrimonial property is concerned, there is a fifth unity which does not share the same characteristics with the other four unities. This is the “unity of Marriage” which perceives of the indestructibility or non-severability of the rights of survivorship. As said earlier, the unity of marriage particularly in the case at hand where the parties were legally and sacramentally married embodies the legal fiction that husband and wife are one and therefore neither the husband nor wife can by his or her sole act defeat the survivorship interest of the other spouse. See the American cases of Jones v. Conwell (1984), Sitomery v. Orlan (1993) earlier cited and the English cases of Robert v. Wilson (1962) L.L.R. 3; Petit v. Petit (1970) A.C. 777, Gissing v. Gissing (1971) A.C. 886, Mansah v. Barkoe (supra) from Ghana and the Nigerian case of Amadi v. Nwosu (supra). per. IGNATIUS IGWE AGUBE, J.C.A.
MEANING OF TERMS: POWER OF ATTORNEY;THE DEFINITION OF POWER OF ATTORNEY AND THE CATEGORIES OF POWER OF ATTORNEY
Now, Black’s Law Dictionary 7th Edition by Bryan A. Garner defines “Power of Attorney” at page 1191 thereof as: “An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor – Also termed letter of attorney. 2. The authority so granted.” The Learned Author went on to define the various categories of Power of Attorney to include for the sake of this Appeal, the following:
(a) General Power of Attorney which is a Power of Attorney that authorizes an agent to transact business for the principal.
(b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and this is also termed “Power of Attorney coupled with interest.”
(c) Special Power of Attorney which is such power of Attorney that limits the agent’s authority to specific matter(s). per. IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
NICHOLAS OKERE Appellant(s)
AND
THERESA AKALUKA Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of His Lordship, Honourable Justice U. D. Ogwurike of the High Court of Justice Imo state of Nigeria Holden at Owerri Judicial Division which Judgment was delivered on Tuesday the 1st day of February, 2005 granting the plaintiff (now Respondent’s) Reliefs (a), (b) and (c) of the particulars of Claim.
It would be recalled that the Respondent as plaintiff in the Lower court by her Further Amended statement of claim contained in pages 139 to 144 of the Record of Appeal dated 25th day of June, 2003, claimed then from the Defendants jointly and severally in paragraph 10 thereof as follows:
“(a) Declaration that the Plaintiff and the 1st Defendant on record are joint owners of the property Plot WB85A Road 8, Federal Housing Estate, Trans-Egbu Road, Owerri.
“(b) Order of the Honourable Court to the effect that the purported sale of the aforementioned property by the 1st Defendant on record to the 2nd Defendant without the consent of the plaintiff is null and void and to no effect.
“(c) Perpetual injunction Restraining the Defendants their servants, agents, privies, successors-in-title in whatever name from ejecting the Plaintiff and her children from the aforementioned property.
“(d) In the alternative to the above, the Plaintiff Claims that she is in equity entitled to at least 50% of the appropriate market value of the property at the time of sale with 21% monthly interest with effect from commencement of this action, the Plaintiff and her children are entitled to remain in the property in dispute until the said 50% of the value of the property is paid to her by the 1st (Plaintiff ?) (Read 1st Defendant)”.
Issues were joined by the parties with the 2nd Defendant (now sole Appellant following the demise of the 1st Defendant and striking out of his name), filing a Further Amended Statement of Defence and contending in paragraph 11 thereof inter alia:
“11. The Defendant Mr. Nicholas Okere does not admit that the Plaintiff is entitled to any of the Reliefs claimed by her in paragraph 10(a), (b), (c) and (d) of the Further Amended Statement of Claim and shall at the trial urge the Honourable Court to view and dismiss the Plaintiff’s action as a GOLD DIGGING EXERCISE and as being frivolous, vexatious, mischievous, and without merits but just calculated to delay the Defendant Mr. Nicholas Okere from the reaping the fruits of his sweat and hard earned money.”
At the hearing of the case, the plaintiff (now Respondent) testified as PW1 and called two other witnesses (PW2 and pw3) Iheanyi Michael Akaluka (the son of the Respondent and her deceased husband/1st Defendant) and Mathias Okoronnaya Nnaji an Estate Value and Surveyor.
The Brief facts of the case as can be gleaned from the pleadings of the parties are that Paul Akaluka the 1st Defendant then, was the husband of the Respondent until his demise. The bone of contention in the Suit now on Appeal is the house/property known and situate at plot WB85A, Road 8 Federal Housing Estate, Trans-Egbu Road, Owerri which property was allocated to Late Mr. Paul Akaluka the said husband of the Respondent by the Federal Ministry of Housing and Environment in 1982 (precisely on 1/12/82). At the time of allotment, the property was a one bed room apartment. It was the Plaintiff/Respondent’s case that she contributed financially towards the payment of the purchase price for the property and reconstruction and improvements to the said property. There was no dispute by the parties that as at when the property was allocated to the deceased they lived together with their family of seven children at No. 12 Erekwemwa Street, Owerri and that it was after the reconstruction and expansion of the property in dispute to a three bedroom apartment that the Respondent, her late husband and seven children moved there in.
It was the further case of the Respondent that they lived together in the disputed property until 1986 when the Late Paul Akaluka packed out of the building abandoning his wife and seven children in the house whereof the latter continued to live till the suit was instituted. Unfortunately, while his wife and children were still resident in the property, the deceased husband of the Respondent sold the house to the Appellant (Nicholas Okere) without the knowledge of his wife and children. The Respondent claimed that being a joint owner of the property Mr. Paul Akaluka (deceased) could not have disposed of the property without her (Respondent’s) consent and that having so sold the property, the sale was null and void and of no effect whatsoever.
On the other hand, the Appellant disputed the Respondent’s claim of joint ownership of the disputed property and contended that he was a bona fide purchaser for value without notice of the joint ownership of the property. He further claimed on the contrary that the sale of the property to him by late Paul Akaluka (the deceased husband of the Respondent was valid).
After listening to the totality of the evidence adduced by the parties including the documentary Exhibits tendered in support of their respective positions together with Addresses of their respective learned Counsel, the learned trial Judge carried out a brilliant, lucid and copious evaluation/appraisal of the evidence thereof and rightly in any view identified four Issues for determination at Page 218 line 14-23 of the Record of Appeal as follows:-
“(1). Whether the Plaintiff proved that she is a joint owner of the property in dispute?
“(2). If the answer to (1) above is in the affirmative whether the consent of the Plaintiff was required before the sale of the property?
“(3). Whether the sale of the property to the Defendant by the Plaintiff’s husband Paul Akaluka without the consent of the Plaintiff is null and void?
“(4). Whether the Plaintiff is entitled to her alternative Claim (d) reproduced above at the commencement of this Judgment?”
On the first Issue, the learned trial Judge held at page 223 lines 10-23 thus:
“1. I find the evidence of the Plaintiff and PW2 in that regard credible and I believe them. I accept their evidence and therefore find that the Plaintiff substantially contributed towards the purchase of the property and also contributed towards its reconstruction, expansion and improvement. The property ought therefore to be regarded as the product of the joint efforts of the Plaintiff and her husband Paul Akaluka. In the circumstance, I am satisfied that the Plaintiff has proved that she made contributions towards the acquisition, reconstruction, expansion and improvement of the property subject of this suit.”
On the second issue as to whether these contributions made the Respondent a joint owner of the disputed property, bearing in mind that the property was purchased in the name of the Plaintiff’s husband Paul Akaluka, the learned Trial Judge also held at Page 224 lines 15-25 thus:
“I hold that in view of the Plaintiff’s said contributions the Plaintiff is a joint owner of the property subject of this suit and has an equitable interest in the property notwithstanding the fact that the property is in the name of the husband Paul Akaluka. This being the case Paul Akaluka cannot alienate or dispose of the property without the Plaintiff’s consent. Paul Akaluka having sold the property as that belonging to him alone and without the consent of the Plaintiff, a joint owner, the sale of the property to the defendant is void and of no effect and I so hold.”
In respect of the third issue after a brilliant analysis of the facts of the case and the applicable judicial authorities on whether the Appellant was a bona fide purchaser for value without due notice that the property was encumbered, the learned Trial Judge again posited thus at page 225 lines 4-12 of the Records:
“It is not possible for me to believe that the Defendant bought the property without notice of the plaintiff’s prior equitable interest in the property. The Defendant is either not telling the truth or he deliberately shut his eyes to the existing facts or he was deliberately very careless or reckless or negligent about finding out the facts or truth about the nature or position of property before purchasing it.”
He then rounded up on this Issue in lines 28-32 of the same page of the Records that:
“I am satisfied that the Defendant’s conduct is enough to fix him with notice of the Plaintiff’s prior equity or interest. I find and hold therefore that the Defendant had notice of the Plaintiff’s prior interest in the property as a joint owner.”
Finally, in the light of the above findings of the learned trial Judge, he held that the Plaintiff/Respondent proved her case in respect of Relieves (a), (b) and (c) and it was therefore not necessary to consider her alternative Claim in Relief (d) Accordingly Judgment was entered in her favour and the necessary orders made at pages 226-227 of the Record of Appeal.
The Defendant (now Appellant) was not satisfied with the Judgment of the learned trial Judge and gave Notice of Appeal with original two Grounds dated 11th day of March, 2005 but filed on the 14th day of March, 2005. By a Motion on Notice dated 14th December, 2006 and filed on the 15th of December, 2006 and a further Affidavit in support dated and filed on the 24th day of May, 2007, the two original Grounds were amended to include a third Ground which are hereunder reproduced for the avoidance of doubt inter alia:-
AMENDED NOTICE AND GROUNDS OF APPEAL
“1. ERROR IN LAW:
The learned trial Judge erred in law when he held that the Plaintiff/Respondent was a joint owner of the property in question i.e. PLOT WB85A, Road 8, Federal Housing Estate Trans-Egbu Road, Owerri with the deceased Paul Akaluka notwithstanding the fact that all the title documents of the property were in the name of the deceased alone to the knowledge of the Plaintiff/Respondent.
PARTICULARS:
(a). All the title documents of the property in question i.e. plot WB7SA, Road 8, Federal Housing Estate, Trans-Egbu Road Owerri; were in the name of the deceased Paul Akaluka.
(b). The Plaintiff/Respondent did not in any way controvert the fact that the title documents of the property and even the receipts of payment were all in the name of the deceased Paul Akaluka. Indeed the Plaintiff/Respondent admitted that.
(c). The Plaintiff/Respondent a nurse, knew that at the time the property in question i.e. PLOT WB85A, Road 8, Federal Housing Estate, Trans-Egbu Road Owerri, was acquired that the title documents were all in the name of the deceased and she did not object to that.
“2. ERROR IN LAW:
The learned trial Judge erred in Law: when he held that the deceased Paul Akaluka should have obtained the consent of the Plaintiff/Respondent before selling the property in question i.e. PLOT WB85A, Road 8, Federal Housing Estate, Trans-Egbu Road, Owerri.
PARTICULARS:
(i) It was not disputed that the deceased Paul Akaluka acquired the property and all the title documents of the property in question reflected that.
(ii) At the time of sale of the property in question to the Defendant/Appellant, there was no clog or charge on the property as revealed by searches conducted by the Defendant/Appellant before purchasing the property from the deceased (Paul Akaluka).
“3. JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE”.
Upon the Record of appeal being transmitted to this Honurable Court, Briefs of Argument were exchanged by the respective learned counsel on behalf of the parties. It is pertinent also to note that after the Appeal had been entered herein, the Respondent filed a Motion on the 24th of October, 2008 with which he sought the leave of Court to:
“Raise a fresh issue which was not raised at the Court of first instance to wit; Whether the sale of the property in question PLOT WB85A Road 8 Federal Housing Estate, Trans-Egbu Road in Owerri Imo State by the deceased Paul Akaluka (1st Defendant on record) to the Appellant is void for failure to obtain the prior consent of the Governor before the Sale?”
Based on above, the Respondent by a Motion on Notice dated 15th of March, 2011 and filed on 17/3/2011 sought the leave and extension of time of this Honourable Court to Cross-Appeal which Application was granted on the 17th of December, 2011. Consequently a Sole Ground of Cross-Appeal here under reproduced was filed by the Respondent/Cross-Appellant thus:
“GROUND ONE:
The learned trial Judge erred in Law by not pointing out the invalidity of the purported sale and not calling on Counsel to address it on that question.
PARTICULARS OF ERROR IN LAW:
(a). By Section 22 of the Land Use Act, consent of the Governor is a necessary prerequisite before alienation of land in an urban area.
(b). By Exhibit “P” in the proceeding there was no provision for Governor’s consent and no Governors consent was inserted on the document (Power of Attorney).
(c). This is an issue of Law very crucial to avoid giving validity to an illegality.
“4. RELIEF: TO VOID THE PURPORTED SALE”
It also pertinent to note that arising from the three Grounds of Appeal lodged by the Appellant Two (2) Issues were distilled for determination couched as follows:
“ISSUES FOR DETERMINATION IN THIS APPEAL
i) Whether the learned trial Judge was right in holding that the plaintiff proved joint ownership of the property?
ii) Whether the learned trial Judge was right in holding that Mr. Akaluka (deceased) ought to have obtained the consent of the Plaintiff before selling the property to the Defendant?”
On the part of the Respondent, learned Counsel adopted the above Issues as formulated by the learned counsel for the Appellant and for the Cross-Appeal formulated a single Issue which is:
“Whether the sale of the property in question,Plot WB85A Road 8, Federal Housing Estate, Trans-Egbu in Owerri Imo State by the deceased Paul Akaluka (1st Defendant on Record) to the Appellant is void for failure to obtain the prior consent of the Governor before the sale?
ARGUMENTS OF LEARNED COUNSEL ON THE MAIN APPEAL
ISSUE NUMBER/GROUND 1
Arguing this first Issue, the learned Counsel for the Appellant referred as to the contentions of the parties at the lower Court which on the part of the Respondent (then Plaintiff) was that the property in dispute was jointly owned by her Late husband Paul Akaluka and self and that the sale of the said property to the Appellant without her (Respondent’s) consent was null and void while the Appellant insisted that in the purchase of the disputed property he was guided by the result of his searches that all relevant documents relating to the property, support the 1st Defendant Paul Akaluka’s claim that he is the owner of the property. Upon the foregoing background, the learned counsel submitted that on the authority of Trade Bank Plc v. Chami (2004) ALL FWLR (Pt. 235) 118 at 152-15; the burden was on the Respondent to prove by preponderance of evidence that the property was indeed a joint property.
The learned counsel for the Appellant alluded to the Statement of Claim and oral evidence of the Respondent where she admitted that the property was allocated to the Mr. Paul Akaluka personally but she added that she contributed N1,500.00 (One Thousand, Five Hundred Naira) as part of the initial deposit required for the property and her subsequent contribution of N500.00 (Five Hundred Naira) for eight months. He further pointed to the answer to Cross-Examination by the Respondent when confronted that the initial deposit was N300.00 as against N1,500.00 she claimed to have contributed; the installments of N43.00k (Forty Three Naira) monthly as against the N500 she claimed to have contributed monthly and she admitted not knowing the required amount but insisted that she gave the said amount claimed to have been contributed to her husband.
Against the foregoing, the learned Counsel submitted further that a proper evaluation of the Respondent’s pieces of evidence and those of the Defendants and in particular the documents on the issue would reveal that in the natural order of things, her evidence was very passionate about every detail of the property and having had dealings with the Manager of the Federal Mortgage Bank over the property she would not know the initial deposit and the monthly instalments payable on the property. Osazuwa v. Isibor (2004) FWLR (Pt. 194) 387 at 406-408 paras. E-A and Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543 were cited to exclaim that the money the Respondent claimed to have contributed initially for eight months subsequently, was enough to secure the property.
On the further Claim by the Respondent that she made payments to the Federal Mortgage Bank to prevent it from disposing the property by auction and the tendering of Receipts to that effect marked Exhibits B, B1 and B2; the learned Counsel again argued that those receipts were issued in the name of Paul Akaluka and that there was no other independent witness/evidence at feast from the bank to confirm her story as normal banking practice. Citing and placing reliance of Section 132 of the Evidence Act, the cases of Odaejide v. Registered Trustees, Gospel Light Ministry (2005) ALL FWLR (Pt. 264) 962; per Onnoghen, J.C.A. (as he then was) and Ezemba v. Ibeneme (2004) ALL FWLR (Pt. 223) 1786 at 1838-1840; he was of the view that the Respondent’s evidence clearly contradicted the contents of the receipts, which form part of the contractual transactions relating to the properly. Furthermore, on the basis of the learned Counsel that Exhibits B, B1 and B2, speak for themselves that Paul Akaluka made those payments to the F.M.B. in respect of the property in question he argued that no oral evidence can be admitted to contradict the contents of the said Exhibits.
Accordingly, he posited once more on the authority of Izemba v. Ibeneme (supra) Per Niki Tobi, JSC; that the learned trial Judge had no basis for believing the Respondent’s oral evidence as against the receipts tendered as Exhibits B-B2 and that the probative value ascribed by the learned trial Judge to the oral evidence against the documentary evidence had occasioned a miscarriage of justice against the Appellant. He further emphasized still on the dictum of Tobi, JSC on the duty of Court to evaluate the evidence of parties before coming to conclusion one way or the other as it is grave injustice to accept the evidence of a plaintiff which contradicts documentary evidence and also when the evidence of witness contradict themselves.
The learned counsel also referred us to Section 149 of the Evidence Act on the presumption of facts and relating same to the evidence of the Respondent in respect of payments made in 1991 to the Federal Mortgage Bank spread over seven months, he submitted that assuming (without conceding) that the Respondent earned so much to be able to make the initial deposit and subsequent monthly instalments of N500 for eight months, she would have been able to liquidate the mortgage debt yet as at 11/3/93, there was still an outstanding unpaid sum of N7,556.75 as per Exhibit N tendered by the Appellant which sum would have fully and finally liquidated Late Paul Akaluka’s obligation under the Mortgage transaction. These facts according to learned counsel, the Respondent did not dispute and that the only presumption is that the three Receipts (Exhibits) were pilfered by the Respondent and her children without the knowledge of Paul Akaluka.
On the claimed improvements on the property as made by the Respondent, it was again the submission of the learned Counsel for the Appellant that they were made before the family packed into the property and that of all the numerous improvements Respondent claimed to have made, she only tendered two Exhibits in support of the assertion. However, according to the learned Counsel, under Cross-examination it was revealed that Exhibits C and C1 were made on 1/5/93 and 15/5/93 respectively immediately after the receipt of Mr. Paul Akaluka’s letter (Exhibit D) written on 3/5/93 in anticipation of litigation by an interested party contrary to Section 91 (3) of the Evidence Act, 1990. He observed that objection was taken on the above ground by Defence counsel but the court below over ruled the objection.
It was contended finally on this Issue that assuming that the court below was right in over-ruling the objection, the court was in grave error to have ascribed probative value to Exhibits C and C1 because the Respondent had earlier claimed that the improvements were made before the family moved into the property and the evidence shows that as at the time the improvements were made, the family had lived on the property for at least nine (9) years.
ARGUMENT OF LEARNED COUNSEL FOR RESPONDENT ON ISSUE NUMBER ONE (1) OF THE MAIN APPEAL
Reacting to the above submissions of the learned counsel for the Appellant E. C. Mere, Esq. for the Respondent answered the question posed by the first issue in the affirmative and pointing to the contention of the Respondent that following her contributions to the acquisition and improvements on the property, she is a joint owner with her late husband who ought not to have parted with the property without her consent; he asserted that in proof of joint ownership the Respondent pleaded and proved that her husband demanded for N1,500 from her for the initial deposit and subsequently she was giving her said husband N500 monthly for eight months for the expansion of the property. He maintained that as an obedient wife, these were the demands of the husband and she willingly gave him various sums for that purpose and these pieces of evidence from the Respondent remained unchallenged by 1st Defendant (Paul Akaluka) who unfortunate did not give evidence before his demise.
Placing reliance on Bua v. Dauda (2003) LRCN Vol. 113, page 2579 at 25891?, on the position of the Law that unchallenged evidence amounts to admission, he asserted that apart from the evidence of the PW1, the PW2 (the Respondent’s first son and the late 1st Defendant on record), confirmed the assertions of the Respondent apart from the evidence that when the property was being acquired, the late 1st Defendant was jobless while the Respondent was gainfully employed. Upon the foregoing premises we were then urged to hold that the property was jointly owned in view of the contributions of the Respondent as proof in this instance is on the preponderance of evidence and not beyond the shadow of doubt (Section 137 of the Evidence Act, CAP. 112 LFN, 1990 referred).
On the contention of the learned Counsel that because the property was acquired in the name of the Respondent’s deceased husband and that the receipts bore his name therefore the property was not jointly owned, the learned Counsel for the Respondent explained that in a husband and wife relationship there is nothing abnormal in acquiring property in the husband’s name and that the fact that the Late 1st Defendant collected more money than was necessary for the transaction does not create any doubt as to such collection and the transaction. He asserted that there is no evidence debunking the claim of the Respondent in the absence of the late 1st Defendant who knew that the sale of the disputed property would create problems hence the deposition of Exhibit “O” the Affidavit of intention to sell which surrounding circumstances should arouse suspicion and curiosity as well as amounting to constructive notice on the part of the Appellant that there was something wrong with the sale.
Still on the Affidavit, the learned Counsel for the Respondent submitted that it lacks probative value as it was not tested in Court as the mere swearing of same is an indication that the Respondent is right to have said that she made contributions towards the acquisition of the property which contribution the Affidavit was meant to cover up.
On the submission by the learned Counsel for the Appellant that the monthly contributions of the Respondent for eight months was about the value of the property, the learned Counsel for the Respondent countered that this does not vitiate her assertion but also means that the 1st Defendant defrauded the Respondent and such criminal act cannot be a ground for denying the Respondent of her investment. As for the dust being raised by the Appellant on Exhibits B, B1 and B2 being in the names of the 1st Defendant, the learned Counsel for the Respondent maintained that Appellants should not be taken seriously as they (the Respondents) agreed that the allocation and mortgage transactions were in the name of the 1st Defendant and all payments and Account Number were in his name.
As regards the submission of the learned counsel for the Appellant of the lack of knowledge of the exact amount deposited or the cost of the house and the insinuation that the Respondent stole the Receipts tendered or that her evidence was self contradictory and the reliance placed on Section 132 of the Evidence Act, 1990; the learned Counsel for Respondent again countered that those Exhibits were between the 1st Defendant and Federal Ministry of Housing and Environment and that if the transactions between the Respondent and 1st Defendant were reduced into writing, that Section of the Evidence Act would have applied. This case according to the learned Counsel for the Appellant borders on bedroom and family agreement and discussion between husband and wife and would not make sense that such discussions should be reduced into writing as in many instances a man can acquire joint assets in his name atone. He noted that in such circumstances, where there are marital problems culminating in the wife being thrown away from the family or matrimonial home as in Karfi v. Karfi (1986) 3 NWLR (Pt. 27) 175 at 184 paras. E-H, the woman in matrimonial or civil causes has always succeeded in stopping the mess provided she is able to prove her input into the house in dispute as in the instant case where the woman/Respondent was awarded the house because she succeeded in proving her case.
Still on this point, he referred us to the case of Amadi v. Nwosu (1992) 2 NWLR (Pt. 241) 273, where the woman lost because even though she established her input on the construction of the house in evidence, the facts were not pleaded. In respect of Exhibits B, B1 and B2 which the Respondent tendered as Receipts given to her by the Federal Mortgage Bank, he submitted that the learned trial Judge was right to have accepted them and believing the Respondent as far as the Respondent had made these payments several years in 1991-93 after Paul Akaluka her husband had packed out of their matrimonial home and abandoned the Respondent and their seven children, and accordingly she could not have pilfered them from the 1st Defendant. More so, the evidence as to the circumstances under which the Respondent made those payments was never challenged and as such the probative value attached to the evidence of PW1 on these receipts was in order and did not lead to miscarriage of justice, the learned Counsel to the Respondent added.
On the further contention by the learned Counsel for the Appellant that there is the presumption that the Respondent secured Exhibits B-B2 without the knowledge of 1st Defendant on record, he maintained that the position of the Appellants is untenable and illogical as the Respondent and 1st Defendant had parted ways for years and the payments were made in 1991 and 1993 and the 1st Defendant did not lodge any complaint of missing Receipts and as such should not be heard to complain about those Receipts herein.
Turning to the question of improvements and the submissions of the learned Counsel for the Appellant in that respect, the learned Counsel for Respondent argued that although the 1st Defendant pleaded and claimed that he made the improvements before they packed into the house, no evidence was given on how the improvements were made and the evidence of the Respondent on the other hand was never controverted. Citing and relying on Eze v. The State (1985) 3 NWLR (Pt. 13) 429 and Kuti v. Alashe (2005) ALL FWLR (Pt. 284) 372 at 309 paras. B-C, on the effect of uncontroverted evidence, he submitted that the feeble attempt by the Appellant at controverting that evidence should not be taken seriously as his answers to cross-examination in this respect were contradictory and should be resolved in favour of the Respondent. For these submissions he placed reliance on the cases of Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393 and Onubogu v. The State (1974) 4 ECSLR 403.
On the attempt by the Appellant to challenge and discredit Exhibits C and C1, the learned Counsel for the Respondent referred us to page 140 lines 17-33 and page 70 lines 1-5 of the Record of Appeal in submitting that improvements were made twice hence the Receipts were for the second improvement. As for the Appellant’s contention that the Exhibits were made after the receipt of Paul Akaluka’s letter and in anticipation of proceeding/Litigation, he submitted that the Appellant never proved that the Respondent received the letter before the purchases leading to the Receipts more so when she was not the maker of those Exhibits so as to be caught by Section 91 (3) of the Evidence Act, 1990.
Finally on this point the learned Counsel for the Appellant noted that Exhibit C was made on 1/5/93 while the letter is dated 3/5/93 and accordingly it is wrong for the Appellants to contend that the Receipts were subsequent to the receipt of the 1st Defendant’s letter to the Respondent. He therefore insisted that in so far as the date of the delivery of the letter was not proved, the Exhibits were not made in contemplation of litigation as the Respondent never claimed that the improvements were made before the family moved there to but that it was after the conversion into 3 bedrooms that the parties moved in. We were finally on this first Issue urged to resolve same in favour of the Respondent because even if the said Exhibits C and C1 were made in anticipation of the litigation (which Respondents did not concede); the oral evidence of the Respondent was not challenged.
RESOLUTION OF ISSUE NUMBER ONE (1)
In the resolution of this Issue, I must agree first of all as submitted by the learned Counsel for the Appellant that since the Respondent claimed in the lower Court that she and her deceased husband Paul Akaluka were joint owners of the property known and situate at plot WB85A, Road 8 Federal Housing Estate, Trans-Egbu Road, Owerri, Imo State of Nigeria, the burden was on her to prove on the preponderance of evidence that the property was indeed jointly owned. The case of Trade Bank Plc v. Chiami (2004) ALL FWLR (Pt. 235) 118 at 152-153 ably cited by the learned Counsel is very instructive and illuminating of the position of our Evidence Law. This principle of Law is dearly encapsulated in Sections of the Old Evidence Act, CAP. 112, Laws of the Federation of Nigeria, 1990 which provided that whoever desires a Court to give Judgment as to his/her legal right or liability dependent on the existence of facts which he/she asserts must prove that those facts exist.
Furthermore, when a person is bound to prove the existence of any facts, the burden of proof is said to lie on such a person. See section 135(1) and (2). Again, the burden of proof in a suit as in our instant case is said to be on the party who would fail if no evidence at all is given on either side (Section 136). To buttress the submission of the learned Counsel for the Appellant which was conceded by the learned counsel for the Respondent, Section 137(1) and (2) of the Evidence Act provide thus:
“1. 137(1) in civil cases the burden of first proving the existence or non-existence of a fact is on the party against whom the Judgment of the Court would be given if no evidence were to be produced on either side, regard being had to any presumption that may arise from the pleadings.
2. If such party adduces evidence which ought reasonably to satisfy a jury, that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the Issues in the pleadings have been dealt with.”
Although there is no specific provision in the repealed Evidence Act on the standard of proof in civil matters, the general principle of the Law of Evidence had been that the standard of proof in matters of this nature is on the balance of probabilities or preponderance of evidence. See Section 134, of the current Evidence Act, 2011. Thus, the Supreme Court had on the State of the provisions of the Law as above stated held in Asu v. Nnaji (2003) FWLR (Pt. 139) 1537 at 1554-1555, that in Law it is incumbent on the plaintiff to show by proof a prima facie case before the Defendant can be called upon to adduce evidence for the burden is on the plaintiff to prove his case and when the Defendant is called upon to adduce evidence, thereafter, the case would be decided on the balance of probabilities. See further Lamie v. D.P.M. & Services (2006) ALL FWLR (Pt. 296) 775 (S.C.); Onwuama v. Ezeokoli (2002) 5 NWLR (Pt. 760) 353; Aromire v. Awoyemi (1974) 2. SC 1 at 10-11, Kaiyajola v. Egunla (1974) 12 S.C. 55.
How then does the Court decide that a party has proved his/her case on the balance of probabilities or that his/her evidence preponderates that of the other party? The Supreme Court had in the land mark case of Mogaji v. Odofin (1979) 4 SC 91 at 95 per Fatai-Williams, J.S.C. (as he then was); which has been followed in a plethora of cases laid it down that the totality of the evidence should be considered in order to determine which one has weight or has no weight and that in deciding this question the trial Judge after a summary of the facts as adduced by the parties must put them on an imaginary scale weigh one against the other and then decide upon the preponderance of credible evidence which of them weighs more and then accept same in preference to the other. Thereafter the Judge will then apply the Law to it if that Law supports it, bearing in mind the cause of action. See further, Osuji v. Ekeocha (2009) ALL FWLR (Pt. 490) 614 S.C.; Akpan v. Isa (2011) ALL FWLR (Pt. 579) 1201; Agboola v. UBA (2011) ALL FWLR (Pt. 574) 74 SC; Eya v. Olapede (2011) ALL FWLR (Pt. 584) 28 S.C,; Yakubu v. Jauroyel (2005) ALL FWLR (Pt. 283) 184 C.A. and Alao v. Akano (2005) ALL FWLR (Pt. 264) 199 per, Ejiwunmi, J.S.C. (of blessed memory).
Going by the above authorities, the question is whether the evidence of the Respondent and her witnesses preponderated those of the Appellant having been subjected to the test laid down in the Mogaji v. Odofin case (supra) so as to warrant Judgment being given in her favour. Now, it would be recalled that the Respondent as PW1 testified that she is a nurse by profession who was married to the 1st Defendant both, statutorily and sacramentally in accordance with and by virtue of Exhibit A the Certificate of Marriage between them issued pursuant to Section 24 of the Marriage Ordinance. She related how she contributed substantially towards the acquisition of the property at No. 85A, Road 8 Federal Housing Estate, Egbu Road Owerri by giving her husband the deceased 1st Defendant the Sum of N1,500.00 when the initial payment was made for the property and subsequently N500 monthly for eight months. According to her:
“In 1991 when the Federal Mortgage Bank announced the selling of the house of Defaulters, I went to meet the Mortgage Bank Manager and explained to him my plight and my problem. He said I should come to pay as much as I can afford which I did for 3 consecutive times and receipts were issued to me.”
She identified the Receipts which she admitted were made in her husband’s name and the said Receipts were tendered admitted and marked Exhibits B, B1 and B2. Exhibit B dated 9-1-91 was for the Sum of N100, Exhibit B1 dated 5-9-91 for another Sum of N100 and Exhibit B2 dated 8-1-93 was for the Sum of N150.00 respectively. On or about 1986, the PW1 further Stated, the 1st Defendant abandoned her with their seven children in the property in dispute and went to live with a concubine at No. 160 Lobo Street, Owerri and subsequently sold the property without her consent nor was she informed of the sale.
She further testified that she made some amendments to the house such as building a store at the Cost of N20,000.00, building a Kitchens at N5,000.00; changing the doors, broken louvres and mosquito nettings at the cost of N4,000.00; repaired the damaged suck-away pit at N3,250.00; rebuilding of the fallen wall fence at the cost of N2,000.00, tiling of the dining room at the cost of N1,500.00; rebuilding the damaged gate at N450.00; repainting the house at the cost of N2,000.00; renovated the toilet and bathroom at the cost of M,000.00. She also bought some materials for these renovations such as cement, rods, planks, mosquito nets, zinc and nails and was issued receipts for these purchases. When the Receipts were sought to be tendered the learned Counsel for the Appellant objected to their admissibility as according to him these were all Receipts made in 1993 in anticipation of litigation contrary to Section 91(3) of the Evidence Act, 1990. Two of the Receipts were nevertheless admitted and marked Exhibits C and C1 while Receipt No. 077 was rejected as same was not pleaded.
It was the further evidence of the Respondent/PW1 that her husband/1st Defendant convinced her that the property was jointly owned by both of them which fact was known to their elderly children. According to her:
“This fact made me to trust in him and intensified my interest in the property and made or caused me to make the contributions and the improvements I made to the property”.
As rightly submitted by the learned Counsel for the Appellant, when confronted under cross-examination on what was the total price of the house in dispute at the time of allocation she replied: “I cannot tell”.
Asked again what was the initial Government required deposit for the house she also replied: “I don’t know but I know my husband collected N1,500 from me as initial deposit for the house”. When the learned Counsel put it to her that the initial deposit required for the allocation was just N300; she again reiterated with all amount of vehemence thus: “I don’t know above that. All I know is that my husband collected N1,500.00 from me as initial deposit for the house and that was what he told me was the initial deposit”.
It would be recalled that the Respondent stated on further cross-examination about the year the N1,500.00 was given her husband, the required Government monthly installments for the allocation, the year she allegedly gave her said husband the N500.00 for eight (8) months, her occupation, salary, and station in a manner insinuating that she could not have made the initial deposit of N1,500.00 and N500.00 per month at that time (1982 to be specific) thus:
“I cannot remember the year but I know it was the time the house was allocated to us. I do not know but I know I was giving N500 monthly to my husband for 8 months for the house:” but added that she was giving her said husband the sum of N500.00″
The same year the house was allocated to us. It was during the time Shehu Shagari was President of Nigeria. I cannot remember the year. But it was the same year the house was allocated to us that I was giving my husband N500 monthly for the house”.
Upon being reminded that the house was allocated around 1982, she again insisted that:
“I was a nurse by then and I am still a nurse. I was working at Ohaji Egbema Local Government where I was transferred to from Ikeduru Local Government. I was a Nursing Sister and I was earning more than N6,000 (Six thousand naira) a month plus allowances.
On the nature of salary scale that she felt into in the civil service the witness explained that it was the nursing scale they had then including allowances because she was transferred from the Federal Ministry of Health Lagos to the then Eastern Nigeria Ministry of Health Enugu in 1967. When asked again that the required monthly installment for the allocation was just N43.07k for the house she replied again:
“I do not know about that but I know I was giving my husband the sum of N500 monthly for 8 months. I trusted him as my husband and so whatever he told me that time I believed. I do not know whether the payment for the allocation for the house was N43.07k or not”.
On the whole, it would appear that the learned Counsel for the Appellant tried all he could to discredit the Respondent on the issue of the N6000 monthly salary as at 1982 which was about the salary of a Permanent Secretary/top most civil servants and accordingly she could not have afforded N1,500.00 out of her salary in 1982 which she claimed to have given to her husband but the Respondent stood her ground and explained away the circumstances leading to that salary scale and was again vehement that she would not have given her husband the sum of N1,500.00 if she had not been receiving more than that sum monthly because she was as well looking after the children while the deceased 1st Defendant was only a Constable and she was doing everything for the family alone even though a Constable could release N3.00k.
The PW2 Iheanyi, Michael Akaluka a University graduate and eldest son of the late 1st Defendant and Respondent, testified as the PW2 and tended to buttress the case of the Respondent on the joint ownership of the disputed property.
In his evidence in-chief he confirmed that when he was small he was with his parents as they were discussing the disputed property in dispute. That was sometime in the early 1980’s during president Shagari’s regime. According to him, then his father was not working and pleaded with his mother to bring money for the purchase of the house and his mother obliged and gave his father some money for the purchase of the house the subject matter of the suit. As at the time of the purchase, the property was a one bedroom apartment which his parents decided to expand after the purchase so as to accommodate all the members of the family.
His father then asked his mother to get more money as he was not working then and that the expansion would include an additional one room for the boys and another for the girls. The house was not fenced and there was no store then in the apartment. The expansion turned the house into a three bedroom apartment fenced with store and gate and other amendments which included tiling and repair of the suck-away pit, the toilet and Kitchen which were rearranged and re-planned to accommodate the additional two rooms. For all the additional arrangements the witness added, it was his mother who supplied the money as his father was not working then. All these improvements were done with the knowledge of his father. He stated further in-chief that he had heard of the Federal Mortgage Bank and that there was a time payment was made in respect of the property now in dispute at the Federal Mortgage Bank Owerri Branch.
The payment was said to have been made because the Bank threatened to sell the house the subject matter of the suit. His mother then supplied the money for the payment of the debt to the Bank. Under cross-examination that he came to court to tell lies against his father because he was living with his mother who took care of him, the witness replied in the negative because he still loved his father and prayed for him. He gave his birth day as 17th June, 1971 adding upon further cross-examination that the property was bought in the early eighties during the Shagari regime.
He disclosed upon being further questioned that in 1983 he was with his parents as a student of Government College, Owerri. He stated further that he was a boarder between 1982 and 85 while in Junior Secondary except for two terms when he was a day student but throughout his senior classes he was a day student. The learned Counsel for the Appellant reminded him that in 1982 his father started a seven room apartment in their village Atta-Ikeduru and he replied as follows:
“My father could not have started a house at the village in 1982 because he was not working at that time. It was my mother who provided money for that house. But when we started work in the property now in dispute, the house in the village had to be suspended for work in the property now in dispute, to progress”.
When the question was put to him that his father had worked with Better Shoe Company between 1987 and 1988, he admitted but denied knowledge that his said father was a registered Contractor in Imo State neither was he aware that his father operated their business nor that his father trained J. I. Akaluka abroad. Speaking specifically about the said J. I. Akaluka, he denied that his father trained him as this could not have been possible since at that time his said uncle was studying abroad, his late father (1st Defendant) was not working but that:
“Rather it was my Mum that made the fund available for my uncle’s study abroad”.
Asked again that he knew and heard that his father sold the house because he was very sick he replied that it is not true that his father sold the house because he was sick but his father sold the house when he moved into a house off Ankwu Street with another woman and that he sold the property purportedly for medication as an excuse. He added that as at that time his father was sick, his mother took adequate care of him and that it was unimaginable that his mother locked up his father in a room to die and the said father crawled out of the room only to be rescued by a good samaritan as purported by the learned counsel for the Appellant, rather his father packed out of the disputed house because of his said father’s girl friend.
The PW2 further stated under further cross-examination that as at the time the house was sold his father was living comfortably with his concubine and it was not true that the 2nd Defendant/Appellant provided the funds for his father’s cure rather he (Appellant) provided the funds for his father to enjoy with his girl friend.
From the submissions of the learned Counsel in the Appellant’s Brief of argument, he has contended that the learned trial Judge did not carry out a proper evaluation of the pieces of evidence adduced by the Respondent and witnesses and those of the Appellant and in particular the documents on the issue of initial deposit, and instalments of N500 for eight months as according to him, a proper evaluation of the evidence would have revealed that in the natural order of things the Respondent’s evidence is incredible as the money she claimed to have contributed initially and/or monthly instalments for eight months would have been enough to secure the property. The learned Counsel for the Appellant has relied for the above submission on the cases of Osazuwa v. Isibor (2004) FWLR (Pt. 194) 387 at 406-408 paras. E-D and Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543.
The Law is trite that the evaluation of evidence and ascription of probative value to such evidence as led by the parties is the primary function of the trial Court/Judge who had the singular opportunity of hearing and watching the witnesses testify and an Appellate Court which is seized only of the bare records should not as a matter of cause interfere with the findings of fact based on such evidence particularly on the credibility of witness, unless of course, such findings are perverse or not borne out of the evidence on record or that the trial Court did not make use of his visionary and auditory faculties in the evaluation and appraisal process.
See Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074) 363 at 387 paras B-D, Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544 at 567. Paras. E-G; per Tobi JSC; Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 409-412 paras. G-B; where the self same Tobi, JSC, Laid the nine principles which should guide the evaluation of evidence by trial and Appellate Courts like ours. For the avoidance of doubt I shall summarize those principles as regards trial Courts as follow:-
1. The learned trial Judge should only be concerned with issues joined by the parties and in other words take into consideration winning and losing evidence which could determine the case one way or the other.
2. The trial Judge can commence the evaluation of the evidence from any of the parties he deems fit but usually that of the plaintiff provided equal and compassionate consideration was given to the evidence of the respective parties.
3. The result of the evaluation should not leave an Appellate Court in doubt that the trial Judge heard the evidence before him to the last sentence and word.
4. Strength should also be given to the case of the respective parties so that at the end of the exercise the Judge is not charged with likelihood of bias depending upon the impact or depth of the evaluation as it affected the party on the disadvantage of being discriminated against.
5. The trial Judge must take into consideration in the evaluation process evidence that violated the Evidence Act and reject or expunge same.
6. The trial Judge should also take into consideration the demeanour of witnesses which include the mannerisms of the witnesses or their overt and outward behavior.
7. In ascribing probative value or belief or disbelief of the evidence of the parties, such belief or disbelief must be borne out of the Record such that on appeal, the Appellate court may not hold such findings as perverse.
8. The trial Judge should take into consideration the totality of the evidence (both exculpatory and exculpatory) and not pick and choose the evidence of some and ignore others; and
9. After the evaluation of evidence, the trial Judge shall place the totality of the evidence on the imaginary scale of justice to see where and to what side the pendulum tilts in favour and where the pendulum tilts in favour of the plaintiff, Judgment is entered in his favour but when the pendulum tilts to the Defendant, the plaintiffs case is dismissed.
Against the foregoing background, the learned trial Judge carried out copious evaluation of the respective evidence of the parties and their witnesses including the entire documentary Exhibits tendered and as laid down in the case of
Fagunwa v. Adibi (supra) where Tobi, J.S.C again held that: “A trial Judge must consider relevant Exhibits tendered before him along with oral evidence. He cannot take only the oral evidence, and throw away documentary evidence which is primary evidence under Section 94(1) of the Evidence Act, CAP. 112 Laws of the Federation of Nigeria”, and came to the inevitable conclusion that he believed the Respondent and her witness, the (PW2), who corroborated the evidence of his mother that she contributed N1,500.00 (One Thousand, five hundred Naira) for the purchase of the property as credible.
The above conclusion is supported by the evidence on Record. For instance at page 220 of the Records the, Court below found out that the PW1 was insistent, unshaken and definite when cross-examined that even though the initial deposit was a mere N300.00 and the monthly installments to offset the mortgage loan was N43.07k and not N500.00, she nevertheless gave the 1st Defendant N1,500,00 initial deposit and N500.00 monthly installments for eight months and would not know whether the husband paid less monthly installments. The learned trial Judge also predicated his so holding on the fact and belief that:
“Bearing in mind that the evidence of the plaintiff that at the time of the purchase of the property and its reconstruction and improvements that the she was working as a nurse was not controverted.”
It is also to be noted that the trial Judge who had the opportunity of seeing and hearing the Respondent and PW2 testify held that the PW2 impressed him “as a truthful witness”.
I agree therefore with the submission of the learned Counsel for the Respondent that the evidence of the Respondent and PW2 on her contribution remained unchallenged since the only person who ought to have led evidence in rebuttal of their assertions on the contributions and initial deposit was the 1st Defendant who is unfortunately dead. Thus, in Bua v. Dauda (2003) 113 LRCN 2579 at 2589 para. Z, it was held per Uwaifo, JSC; that
“… since the evidence was not controverted or challenged and the case being a civil one, it is enough if it amounted to minimal evidence placed before the court, citing Nwaobuoku v. Ottih (1961) ALL NLR 487; Faseun v. Pharco (Nig.) Ltd. (1965) 2 ALL NLR 216.
“I think the submission on behalf of the respondent has merit. This is a very well known principle on which there are so many decided cases, some being Akinwunmi v. Idowu (1969) I ALL NLR 319 at 321; Omorogbe v. Lawani (1980) 3-4 S.C. 108; Fosile v. Folarin (1989) 3 NWLR (Pt. 107) 1 at 12; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 at 365-364; and UBA v. Achonru (1990) 6 NLR (Pt. 156) 254 at 289”.
From the foregoing authorities I also agree with the learned trial Judge that the evidence of the Respondent and PW2 are credible on her giving the 1st Defendant N1500.00 and the monthly deposit of N500.00 to assist in clearing the indebtedness or the Mortgage.
On the contention that Exhibits B, B1, B2, and C and C1 bear the names of Paul Akaluka the Respondent’s late husband, of the Respondent, there is ample evidence as was found by the learned trial Judge that the payments and expenditures incurred in those documentary Exhibits even though they were made in the name of Paul Akaluka were actually incurred by the Respondent as corroborated by the PW2 who was a common denominator between the Respondent and 1st Defendant, Besides, it was not disputed that the Respondent and 1st Defendant who were husband and wife agreed that the house should be bought in the name of the 1st Defendant when the going was good: A discussion between a husband and wife on the acquisition of property in the husband’s name as testified by the PW1 and PW2 which was not abnormal or unnatural.
The learned counsel for the Respondent has said it all that the purchase of the property In the name of the 1st Defendant did not derogate from joint ownership of the property. There is no contradiction on the contractual transactions relating to the properly. In fact as rightly submitted by learned Counsel for the Respondent, the 1st Defendant knew quite well and beforehand that his wife had equitable interest in the property and anticipated problem when he went ahead to sell the property without the knowledge and consent of the Respondent. This explains why the 1st Defendant purported to depose to Exhibit “O” the so called Affidavit of sale where he disinherited his wife and children. The pertinent question to be answered by the Appellant is why should this Affidavit be sworn to if the 1st Defendant had nothing to hide? Did the 1st Defendant serve a copy of the Affidavit on the Respondent after it was sworn to on the 8th of March, 1993? I would rather hold that it was the 1st Defendant nay the Appellant who foresaw the likely consequences of engaging in such a reckless venture of buying or selling property which antecedents like the Affidavit and the fact that its occupants were the wife and seven children of the seller, ought to have attracted the Appellant’s curiosity that there was an encumbrance or clog on the said property.
Accordingly, he cannot be heard to invoke the defence of bona fide purchaser without notice of the Respondent’s equitable interest in the disputed property nor can he hide under canopy of Section 132 of the Evidence Act, 1990 and the case of Odejide v. Registered Trustees,Gospel Light Assembly (2005) ALL FWLR (Pt. 264) 962; where the trial Court relied on the provision of Section 132(1) (b) of the Evidence Act and the dictum of Onnoghen, JCA on the exception to the rule against the admissibility of parole evidence to vary the contents of a contract or agreement. I am therefore rather of the considered view that the case above cited and the dicta of the Emeritus Tobi, JCA in Ezemba v. Ibeneme (2004) ALL FWLR (Pt. 223) 1786 at 1838-1840 were cited out of con as and undoubtedly that of my Noble Lord, Onnoghen, J.C.A. (as they were then); rightly stated the position of the law on the peculiar facts and circumstances of these cases.
In the instant case, going by the authority of Ezemba v. Ibeneme (supra) which dictum is in line with cases like Nnadozie v. Mbagwu (supra) which were also decided by Tobi, JSC, I cannot fault the decision of the learned trial, learned trial Judge accepting the evidence and finding that the Plaintiff substantially contributed towards the purchase of the property and contributed also to the reconstruction, expansion and improvement of the disputed house. Accordingly, she ought to be regarded as a joint owner of the property which ought not to be sold by the 1st Defendant without the consent of the Respondent notwithstanding that the property bears his name and all transactions were also in his name. The authorities of Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280 paragraph A; Karfi v. Karfi (1986) 3 NWLR (Pt. 27) 175 at 184 Paras. E-H, ably cited and relied upon by the learned counsel for the Respondent are quite on point and illuminating.
The learned author of the “ABC of Contemporary Land Law in Nigeria (Revised & Enlarged Edition)”, Hon. Justice I. A. Umezulike, OFR (Professor of Law) has in his discussions on the Concepts of Tenancy by the Entirety and Development of Constructive Trust aptly stated what should be the position of our Law in the circumstances the Respondent has found herself. See pages 509-517 of the . For instance, on the concept of Tenancy by the Entirety he posited that to protect and preserve the sanctity of marital real property particularly as in this case where the Respondent and 1st Defendant were married sacramentally or statutorily and they have lived together for decades and begotten seven children, the Common Law developed the concept of “tenancy by entirety”. That concept simply conceives of a single and indestructible joint ownership of real property held by spouses which like joint tenancy carries a right of survivorship but the right cannot be partitioned and is supported by the unity of marriage which in turn embodies the legal fiction that husband and wife are one. Accordingly, the result of this unity is that neither husband nor wife can by his or her sole act defeat the survivorship interest of the other as the 1st Defendant has done in this case. Jones v. Conwell 334 SE 2d 61, 64 (va 1954) and Sitomery v. Orlan 660 80 2d 1111 (Fla Dist. Cl App. 1993) refer.
The learned author had explained at Page 510 Paragraph 3 of the that: “………… the concept is of ancient common Law origin which has been described as a form of concurrent ownership that exists only between husband and wife by which the husband and wife become seized of the estate so granted as one person and not as ordinary joint tenants or tenants-in-common”. An incident of such estate is that the survivor of the marriage is entitled to the whole, a right which cannot be destroyed by one party without the assent of the other.” Thus as has been testified so copiously by the Respondent and PW2, while the husband was alive he had the right to control possession of the property and that explained why in this case every transaction in respect of the acquisition of the property was done in the name of the 1st Defendant as husband to the Respondent. However, by this concept, the 1st Defendant could not have conveyed the house to the Appellant during their joint lives so as to bind or defeat the right of survivorship of the Responders in the estate.
Coming home to the concept of “Constructive Trust” which the learned Author canvassed at pages 513-517 of the , reference was made to Lord Denning’s dictum in Hussey v. Palmer (1972) 1 WLR 1286, where the Master of Rolls described it as a trust imposed by Law wherever justice and good conscience require. It is said to be a remedy by which the Court can enable an aggrieved spouse or party to obtain restitution and the success of the party’s case does not depend on his or her direct physical or monetary contribution to the building or acquisition of the property. Thus in England, (and we see no reason why this principle should not be applicable in Nigeria especially in this Millennium), the Courts have held that if matrimonial property is purchased in the name of one of the parties (as in this case); the party in whose name the property was conveyed held same as a constructive trustee for the benefit of both.
In this wise, Lord Denning once more was incisive as ever in the celebrated case of Falconer v. Falconer (1970) 1 WLR 1333 when he intoned;
“This inference of a trust, the one for the other is readily drawn when each has made a financial contribution to the purchase price or the mortgage installment. The financial contribution may be direct as where it is actually stated to be contribution towards the price or installments. It may be indirect, as where both go out to work, and one pays for the housekeeping and other the mortgage installments. It does not matter who pays what so long as there is a substantial financial contribution towards the family expenses, it raises the inference of a trust. We should not give monied right priority over social justice. We should protect the position of a wife who has a share, just as years ago we protected the deserted wife” See further Rimmer v. Rimmer (1952) 2 ALL E.R. 863 at 869 and Manseh v. Barkoe (1975) 2 GLD 347.
In the case of Adaku Amadi v. Edward Nwosu (1992) 5 NWLR (Pt. 241) 273, ably referred to by the learned Counsel and a case which incidentally arose from this jurisdiction, the Supreme Court per Kutigi, JSC (as he then was); however took a contrary position to that of Lord Denning, when he held that the Appellant/wife’s evidence on her contributions towards the building of the house the subject matter of dispute was not pleaded and her Appeal was dismissed. Just like this case, the Respondent Claimed to have purchased the property in dispute known as No. 179 Tetlow Road, Owerri from its owner (Godfrey Amadi) for the sum of N140,000.00. The said Godfrey Amadi being the husband of the Appellant. The Respondent in tracing the root of title to Godfrey Amadi tendered a number of documents which included a Power of Attorney-Exhibit A and Deed of Assignment. Godfrey Amadi claimed that after he had sold the property to the Respondent, he used the money to develop another land at No. 33 Amokwu Street, Owerri, where he lived. He then testified that when he requested the Appellant to move to the new building with him, she bluntly refused and forcefully continued to remain in the disputed property.
The Appellant on the other hand claimed that the disputed property was family property allocated to her husband Godfrey Amadi, herself and children. She also claimed to have contributed labour and sand to the building of the property and that she owned it jointly with her former husband. After evaluation of the evidence and making findings of facts on the issues raised at the trial, the learned Trial Judge entered Judgment for the Respondent. The Appellant’s Appeal to the Court of Appeal was dismissed and on further appeal to the Supreme Court same was again dismissed by the Apex Court per Kutigi, JSC (as he then was) who held thus:
“She was clearly giving evidence on a matter which was not pleaded. It is settled that evidence led on matter not pleaded goes to no issue and ought to be disregarded when giving evidence.”
His lordship continued subsequently in the Judgment inter alia:
“…… but let me now be liberal and say that by using the words joint owner and co-jointly in paragraphs 14 and 20 of her Statement of Defence above, the Appellant meant that she contributed to the building of the house. If it were so, then certainty when she came to testify in court she ought to have explained the quantity and quantity of her contribution. She ought to have given details and particulars of the contributions which would have enabled the Court to decide whether or not she owned the property with her husband. She did not.”
In the instant case, the learned Counsel for the Respondent has indirectly canvassed the concept of constructive trust and tenancy by the entirety when he submitted rightly in my view that it does not make sense that a case that borders on bedroom and family discussion should be reduced into writing for in many instances, a man purportedly acquired assets solely in his name as in this case and during litigation in the course of marital problems where the man tries to throw out the woman from the family/matrimonial home, the woman had always succeeded in stopping such a mess provided she was able to prove her input into the house as was decided in Karfi v. Karfi (1986) 3 NWLR (Pt. 27) 175 at 184 paras, E-H.
The position taken by Kutigi, JSC in the Amadi v. Nwosu’s case which required that in a dispute of this nature, the wife must establish with sufficient particularity the quantity and quality of her contributions to the acquisition of the property in dispute has been criticized as not having taken into consideration the fact that under constructive trust, the wife need not establish her right to marital property with sufficient particularity as it could be sufficient in this case where the Respondent was abandoned with seven of their Children in the property while the 1st Defendant was hobnobbing with a concubine and subjected the Respondent to the untold hardships of taking care of those children’s upkeep, trained them until they have graduated from the University apart from making substantial contributions towards the acquisition, expansion and reconstruction of the property in dispute.
It would therefore be most unconscionable to throw the Respondent and children away from a house she had made such substantial contributions towards its acquisition and maintenance. Rather, the dictum of Denning, M.R. in the Falconer’s case (supra) where he held that sometimes the indirect contributions of a wife to the marital property cannot be quantified in monetary terms which would entitle her to a share in the property should apply, accords with modern reality particularly where the parties were husband and wife of Christian and Statutory marriage. Thus, it was held in the Falconer and Rimmer cases, that wives were entitled without further proof to share in the marital property acquired during marriage since it was the performance of their functions as wives that enabled their husbands (if at all in this case ) to perform theirs.
In any case, the Court below believed the Respondent and the PW2 that the Respondent made substantial contributions towards the property in line with the dictum of Kutigi, JSC in the Amadi v. Nwosu’s case and I am unable to interfere with that finding as it is not perverse but borne out of evidence more so when the Respondent and her witness established that in the course of the acquisition of the property the (Respondent) was a Nursing Officer while the 1st Defendant had retired as a Constable with no visible means of subsistence.
As I said earlier, the learned Counsel introduced Section 132 of the Evidence Act which makes it clear that where parties have reduced their transactions into writing, oral or extrinsic evidence is not admissible and cited Odejide v. Registered Trustees, Gospel Light Ministry (2005) ALL FWLR (Pt. 264) 962; where this Court Per Onnoghen, JCA (as he then was), relied on Section 132(1) (b) of the Act. With the greatest respect, I reiterate that the Sections of the Evidence Act and the dictum of Onnoghen, J.C.A. (as he then was) were cited out of con.
In the first place, there was no contract or written agreement between the Respondent and her late husband that the property was the husband’s exclusively. Rather from the concept of Constructive Trust and Tenancy by the Entirety as has been canvassed and demonstrated by the evidence and surrounding circumstances, there is presumption of joint ownership of that property and the 1st Defendant had no business disposing of it without the consent of the Respondent. Besides, the documents tendered by the Respondent fall within the exceptions to the general rule that parole evidence shall not be admitted to vary the contents of the documents mentioned in Section 132 of the Evidence Act, 1990 (now Section 128 of the 2011 Act). See the proviso to Section 132(1) thereof.
In my humble view, from the surrounding circumstances, the sale of the property in dispute by the 1st Defendant to the Appellant, is tainted with fraud, illegality and even want of capacity. In fact, assuming there was even a written Agreement or contract between the Respondent and 1st Defendant, provisos (a), (b) (c), (e) and subsections (2) and (3) of section 132 of the Act, shall apply in this case. See Olagunju v. Raji (1986) 5 NWLR (Pt. 42) 408 at 419; Awojala v. Seatrade Groningen B.V. (2002) 2 SCNJ 35 at 43, B.F.I.G. v. B.P.E. (2008) ALL FWLR (Pt. 416) 1915 and Musa v. Christlieb Plc (2000) 12 NWLR (Pt. 680) 145; where it was held that a written document like a receipt, is not the only means of proving payment of money for oral evidence of a person who witnessed the transaction in which the payment was made, is admissible.
Finally, the exclusion of oral evidence by documentary evidence under Section 132(1) of the Evidence Act is limited specifically to evidence of contents of Judgments, judicial or official proceedings, contracts, grants or other disposition and it is only the contents of these documents and not all documents, that must be proved by the production of the document and not by oral evidence. Thus, in H.N.B. Ltd. v. Gifts Unique (Nig.) Ltd. (2004) 15 NWLR (Pt. 896) 408; it was held that a statement of account not being one of those documents mentioned in the equivalent of Section 132(1) of the Evidence Act, oral evidence to explain the contents or entries therein were admissible. Accordingly, even though Exhibits B, B1 and B2 speak for themselves and it is not disputed that the Receipts were issued in the name of the 1st Defendant, there is ample evidence that the mortgage transaction and indeed the Bank Account were made in the name of 1st Defendant but when the 1st Defendant could not discharge his responsibilities to the Bank which threatened to sell the house, the Respondent to the knowledge of the PW2 went to make those payments. Therefore oral evidence of such payment is admissible and the Court below was right in accepting and believing the evidence of the Respondent and PW2 in this respect.
From the foregoing, the insinuation by the learned Counsel for the Appellant that the Respondent or her children would have pilfered the Receipts while they were living together with the deceased 1st Defendant is completely unfounded since the 1st Defendant parted ways with his family in 1986 and it was not until 1991 and 1993 that those payments were made. Again, there is no evidence that late Paul Akaluka ever reported the theft of those Receipts while he was alive. The lower Court was therefore right in ascribing probative value to them and the presumption under Section 149 of the Evidence Act on the common cause of events, human conduct in relation to the facts of this case are in favour of the Respondent.
In respect of Exhibits C and C1 which the learned Counsel for the Appellant objected to their admissibility on the ground that they were made in contemplation or anticipation of litigation, there is no doubt that Section 91(3) of the Evidence Act, CAP 112, Laws of the Federation, 1990 provided that:
“(3) Nothing in this Section shall render admissible as evidence any Statement made by a person interested at a time when proceedings were pending and anticipated involving a dispute as to any which the Statement might tend to establish”.
The above provision which is an exception to Section 191(1) and (2) of the Act has been the subject of interpretation by English as well as our Courts. See Robinson v. Stern (1939) 2 K.B. 260, Barkway v. South Wales Transport Co. Ltd. (1949) I.K.B. 54 at 61 Evon v. Noble (1949) I.K.B. 222, 225 and Bearmans Ltd. v. Metropolitan Police District Receiver [1961] 1 WLR 634 all English cases that have been followed by Courts in Nigeria. The essentials of that provision are the two phrases “a person interested” and “when proceedings were pending or anticipated”. In sum the subsection prohibits the admissibility of a statement as provided in Section 191 that for a document to be admissible it must be tendered by a person who can give evidence of the contents of the document. See Chief Anthony Okafor v. Mrs. Promise N. Okpala (1995) 1 NWLR (Pt. 374) 749 at 757; Chief Igumbor & Ors v. Chief Ugbede Obianke & Ors (1976) 9 & 10 S.C. 179.
By the provision of that subsection (3) therefore, a statement cannot be admitted under Section 191 if made by “a person interested in any proceeding and/or when the proceeding is pending or anticipated”. Thus, a person is held not to be interested under that subsection when he has no temptation to depart from the truth on one side or the other, and he is a person not swayed by personal interest but completely detached, judicial, impartial and independent of the proceeding or its outcome. See High Grade Maritime Services Ltd. v. First Bank of Nigeria Ltd, (1991) I SCNJ 11 at 121. On the whole, where a document which ought to be tendered by a party who can give direct oral evidence of the contents, is sought to be tendered by a person who is interested in the outcome of the proceedings in which case he has the temptation to be swayed by personal interest and to depart from the truth on one side or the other or that he is not completely detached, impartial or independent of the outcome of the proceedings, then the document will not be admissible.
Again the document at the same time must have been made during a pending proceeding or in anticipation thereof. In other words, these two conditions must co-exist conjunctively before the subsection can apply. In the instant case, the objection of the learned Counsel to the admissibility of Exhibits C and C1 are anchored on his claim that the Exhibits were made on 1/5/93 and 15/5/93 respectively immediately after the Respondent’s receipt of the 1st Defendant’s letter of 3/5/93. I agree with the submission of the learned Counsel for the Respondent that there is no evidence as to when the letter was received by the Respondent. In any case one of the Exhibits was made before the 1st of May, 1993.
Even if we discountenance Exhibits C and C1, the fact that the Respondent contributed substantially to the acquisition of the said disputed property has not been debunked by the Appellant. By the doctrine of Constructive Trust and Tenancy by Entirety, the Respondent had done more than enough by contributing to the conversion of the one bedroom apartment into three, apart from other improvements and the various sums given to her husband for the acquisition of the house. I hold the view that the Respondent would have given the 1st Defendant more than enough to secure the house from the mortgage but the 1st Defendant must have decided to squander same with his concubine without channeling it towards the purpose it was meant.
I had already held that it was rather the 1st Defendant and indeed the Appellant who anticipated that litigation would result ultimately through the sale and purchase of the property without the consent and knowledge of the Respondent who had a substantial stake nay equitable interest in the property, hence they (1st Defendant and Appellant), concocted Exhibit “O” the purported Affidavit of Sale on 8th of March, 1993 following which the Power of Attorney dated 5th April, 1993 was purportedly donated to the Appellant. In the light of the foregoing, I have no hesitation in resolving this issue against the Appellant and in favour of the Respondent.
ISSUE NUMBER TWO (2)
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT MR. PAUL AKALUKA (DECEASED) OUGHT TO HAVE OBTAINED THE CONSENT OF THE PLAINTIFF BEFORE SELLING THE PROPERTY TO THE APPELLANT?
On this Issue, the learned Counsel for the Appellant referred us to the holding of the learned trial Judge that in view of the substantial contributions made by the Respondent she has an equitable interest and accordingly the 1st Defendant ought not to have sold the property and submitted that the learned trial Judge erred in Law in so holding when they (Appellants) have not in the first place conceded that the Respondent proved her claim of being joint owner of the disputed property. On the other hand, he argued that even if the Court was right, the learned trial Judge did not apply the correct position of the Law to the facts of the case in order to arrive at the appropriate legal conclusion.
The learned Counsel alluded to the two basic elements of joint ownership of land (in this case the disputed property) which are the four unities and jus accrescendi. He elucidated on the principles and referred us to DR. T. O. Elias in his book NIGERIAN LAND LAW, 4th Edition Sweet & Maxwell Publishers at pages 747-248; the case of Ipaye v. Aribisala (1930) 10 N.L.R. 10 in which the Full Court reversed the Divisional Court’s decision while relying on two cases Short v. Stone (1710) 91 ER146 and RE POLLARD’S ESTATE (1863) 143 ER 161; where legal mortgages were held to have the effect of severance of joint tenancy.
Learned Counsel for the Appellant also referred to the dictum of Jesell M.R. in Carter v. Wake (1877) 4 Ch.D. on whether the conclusion reached in the case of legal mortgage applies to where only an equitable interest is involved and on the application of the decisions in the above cited English cases to the fact of our instant case, where the 1st Defendant with whom the Plaintiff/Respondent claimed were joint owners of the disputed property, he submitted that the said Paul Akaluka alienated his interest to a stranger by outright sale and accordingly joint ownership has been effectively severed and the Respondent can only be entitled to at least half of the estate and no more.
In his view, the legal consequences of severing the joint ownership by sale of his interest to a stranger, is not to render the sale null and void as was held by the learned trial Judge. He therefore maintained that even if the Court below was right that the Respondent proved joint ownership, that fact alone could not sustain the Reliefs (a) (b) and (c) of the Respondent’s claim adding that in the absence of claim of exclusive ownership of the property, the Court below was only permitted in Law and interest of justice to resort to the alternative Claim (d).
On the whole the learned Counsel for the Appellant finally submitted on this issue that there is no basis in law for the Court below to have held that the sale of the property in issue by Paul Akatuka (1st Defendant) was void without the consent of the Respondent a joint owner as this view has been shown in Ipaye’s case (supra) as not supported by Law and we were urged to hold that if at all the Respondent is entitled to any relief based on the trial Court’s finding that she is a joint owner, it is the alternative relief and no more.
ARGUMENT OF LEARNED COUNSEL FOR RESPONDENT ON ISSUE NUMBER TWO (2)
In response to the above submissions of the learned Counsel for the Appellant and the reliance placed on the case of Ipaye v. Aribisala (supra) it was submitted per contra by the learned Counsel for the Respondent that as far as the relationship between the Respondent and 1st Defendant was concerned it being a legal marriage, the learned trial Judge came to the right conclusion by holding as he did. He further submitted that the above cited case can be distinguished from the case on hand in that the relationship in Ipaye v. Aribisala was not that of husband and wife and as such it is proper to settle the property for the Respondent following her contributions to the acquisition, expansion and further improvements while living there in Amadi v. Nwosu (supra) was then retied upon to buttress his contention.
On the contention by the learned Counsel for the Appellant that the Respondent is entitled to half of the estate and nothing more, it was submitted by the learned Counsel for the Respondent that they tendered Exhibit J, the Valuation Report on the property upon which the Estate Valuer gave evidence in support of the alternative claim and same was never rebutted and accordingly the evidence should be deemed admitted. Rounding up his submission on the second issue the learned Counsel for the Respondent insisted that the Appellant never gave evidence of the value of the property and the Respondent having proved her case on the totality of the evidence, balance of probability and upon weighing the evidence on the imaginary scale of justice, the learned trial Judge entered Judgment for her. He asserted that the principle of joint tenancy enunciated in Ipaye’s case evolved from common Law principle which principle is now extant in Nigeria following the right of Ownership of immoveable property as created by Section 43 of the Constitution of the Federal Republic of Nigeria, 1999.
According to the learned Counsel for the Respondent, the above Section 43 being a Constitutional provision, it overrides the Common Law Principle of joint-ownership or co-ownership of property. He maintained that following the right of ownership of property in any part of the Federation, any breach of that right cannot be reduced to a mere part of the value of the property because a fraudulent joint ownership or Co-owner fraudulently sold the property without the consent of the other. It was therefore contended that an interpretation otherwise will amount to making nonsense of the above constitutional provision. We were therefore urged to resolve the second issue again in favour of the Respondent.
RESOLUTION OF ISSUE NUMBER TWO (2)
Now upon a careful consideration of the submissions of the learned Counsel for the respective parties and as I had earlier on observed on the concepts of constructive trust and tenancy by the entirety, I reiterate that just like the concept of co-ownership or joint ownership, the husband and wife concurrently own matrimonial property in the sense that their rights or estate in the property are un-severable without the consent of the other.
Again, as rightly submitted by the learned Counsel for the Appellant the joint nature of the title manifests itself in two basic elements which are the four unities and the right of survivorship otherwise known as “jus accrescendi” in legal parlance. Thus, the learned Counsel for the Appellant was on very firm ground when he cited and retried on the case of Iyaye v. Aribisala (1930) 10 NLR 10, which was decided on the basis that a joint tenant may by severance alienate his interest inter vivos as he is entitled so to do.
See Rihawl v. Aromashodun (1952) 14 WACA 204 and Dabiri v. Gbajuimo (1961) 1 ALL NLR 225. By such alienation, as was done by 1st Defendant to the Appellant, the Appellant is said to have acquired a separate right of ownership to an aliquot undivided share of the property. In this wise and as explained by the learned Counsel to the Appellant, the four unities of time, title, interest and possession, means that no one of the Respondent and 1st Defendant could point to any part of the property as his or hers. Each of them no doubt had the same identical interest in any part of the property and derived their title from one source and owned the house from the same point of time.
The above scenario is what a joint ownership in the ordinary parlance between children of the same parents or members of the same family entails. However, as far as joint ownership of matrimonial property is concerned, there is a fifth unity which does not share the same characteristics with the other four unities. This is the “unity of Marriage” which perceives of the indestructibility or non-severability of the rights of survivorship. As said earlier, the unity of marriage particularly in the case at hand where the parties were legally and sacramentally married embodies the legal fiction that husband and wife are one and therefore neither the husband nor wife can by his or her sole act defeat the survivorship interest of the other spouse. See the American cases of Jones v. Conwell (1984), Sitomery v. Orlan (1993) earlier cited and the English cases of Robert v. Wilson (1962) L.L.R. 3; Petit v. Petit (1970) A.C. 777, Gissing v. Gissing (1971) A.C. 886, Mansah v. Barkoe (supra) from Ghana and the Nigerian case of Amadi v. Nwosu (supra).
Although I am unable to see my way through the efficacy of the learned Counsel for the Respondent’s submission that Section 43 of the Constitution of the Federal Republic of Nigeria has over-ridden the concept of co-ownership of property, I am however in tandem with the learned Counsel that by the concept of constructive trust, the purported alienation of the property in dispute is null and void without the consent of the Respondent as co-owner. In accordance with the decisions Rimmer v. Rimmer (1952) ALL E.R. 863 Per Lord Denning, which I had earlier cited, as the house was purchased by the joint efforts of the 1st Defendant and the Respondent, the beneficial interests belong to both of them and the 1st Defendant ought to have sought the consent of the Respondent before disposing of the property.
The onus was on the 1st Defendant to show that the Respondent and he could no longer live under the same roof and that his wife was not entitled to the assertion of the right to the property in dispute. Not having been able to do so, on account death, the Court below was duty bound to have held on the preponderance of evidence that she made substantial contributions to the acquisition, expansion and improvements on the Property in dispute. I am therefore unable to interfere with the findings of facts as made by the learned trial Judge as they were based on cogent, compelling and concrete evidence. Truly he had placed the cases of the parties on the imaginary scale of justice and found out on the authorities earlier relied upon that the evidence of the Respondent and her witnesses preponderated those of the Appellants. See Adeye v. Adesanya (2001) 6 NWLR (Pt. 708). I; Olatunde v. Abidogun (2001) 18 NWLR (Pt. 746) 712; Adeleke v. Iyanda (2001) 12 NWLR (Pt. 729) I, Ude v. C.R.S.N.C. (2001) 14 NWLR (Pt. 723), 116; Enitolobo v. Adegbesan (2001) 2 NWLR (Pt. 698) 611 cited per Niki Tobi, JSC in Gabriel Iwuoha v. NIPOST LTD. [2004] 13 NWLR (Pt. 889) 128.
It is gratifying that in the final analysis the Appellants have conceded that since the Respondent had equitable interest in the disputed property, the Respondent assuming she had proved substantial contributions, which in my view she had done, is entitled to 50% of the Estate. The PW3 and Estate Valuer had carried a valuation of the Property in dispute and tendered a Valuation Report (Exhibit J) that puts the value of the property at N1.2 Million as at when sold but the 1st Defendant purportedly gave same away to the Appellant at a paltry sum of N360,000,00 (Three Hundred and Sixty Thousand Naira) only.
On the whole, I am satisfied that head on tail, the Respondent is entitled to 50% of the proceeds of the sale, otherwise the concept of Constructive Trust and Tenancy by the entirety prohibited the 1st Defendant from selling that property without the Respondent’s consent and Respondent is entitled to remain in that property for life.
In the circumstance, Issue Number 2 shall again be resolved in favour of the Respondent. This Appeal therefore lacks merit and is hereby dismissed with substantial cost assessed at N50,000.00 in favour of the Respondent.
CROSS APPEAL
As said earlier the learned Counsel to the Respondent sought the leave of this Honourable Court then sitting at the Port Harcourt Division on the 7th day of December, 2011 and same was granted him to Cross-Appeal against the Judgment of the learned Trial Judge. Leave of the Court was also granted the Respondent to raise a fresh issue for the first time in this Court to wit:
“WHETHER THE SALE OF THE PROPERTY IN QUESTION PLOT WB85A ROAD FEDERAL HOUSING ESTATE, TRANS-EGBU IN OWERRI IMO STATE BY THE DECEASED PAUL AKALUKA (1ST DEFENDANT ON RECORD) TO THE APPELLANT IS VOID FOR FAILURE TO OBTAIN THE PRIOR CONSENT OF THE GOVERNOR BEFORE SALE?
Arguing this sole Issue, the learned Counsel for the Respondent/Cross-Appellant relied on the provision of Section 22 of the land use Act, 1978 which provides that before the alienation of any land in an Urban Area, prior written Consent of the Governor at that time in question, of the Military Governor must be obtained. He pointed out that the land and house in question are in no doubt situate in Owerri Urban Area. Exhibit “P” he further argued, tendered by the Appellant had no endorsement of the requisite Governor’s consent on it and in the circumstance, the sale is void and unenforceable. We were then urged to hold on the authority of Savannah Bank v. Ajilo (1989) I NWLR (Pt. 57) 421 at 434 Para. C that the transaction between the Appellant and 1st Defendant was illegal, null and void and of no effect. He final asserted that from Exhibit “P”, there was no provision for the endorsement of Governors consent obtained and this being the case the purported sale is of no consequence. We were finally therefore urged to resolve the soul issue in favour of the Respondent/cross-Appellant.
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT/CROSS-RESPONDENT
Reacting to the above arguments of learned Counsel for the Cross-Appellant, S. I. Opara, Esq. for the Appellant/Cross-Respondent submitted that the Cross-Appellant’s Issue does not arise at all in that the document marked Exhibit “P” (the Power of Attorney) executed by the Late Paul Akaluka in favour of the Appellant over the property in question in this suit does not come within the purview of the documents mentioned in Section 22 of the Land Use Act. At best, the learned Counsel for the Cross-Respondent further submitted, appointed the Appellant in respect of the property in question. The said power of Attorney in the estimation of the learned Counsel for the Appellant/Cross-Respondent is neither an assignment, mortgage or sublease as it only authorities the Appellant to execute a formal deed on behalf of the deceased Paul Akaluka. Therefore, in his view, the case of Savannah Bank v. Ajile (1989) I NWLR (Pt. 57) 421 relied upon by Cross-Appellants learned Counsel does not apply to this case.
For the above submissions he rather relied on the case of Awojugbabe light industries Ltd. v. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) 379 at pages 435-436 paras. H-C. 438 paras. C-H per Iguh, JSC whose dictum he quote in extensor and UBA Ltd. v. IAS & Co. Ltd. (2001) FWLR (Pt. 75) 578 at 593, Per Aderemi, JCA (as he then was); to urge us to resolve the lone issue of the Cross-Appellant against the Cross-Appellant-Respondent.
REPLY ON POINTS OF LAW BY THE LEARNED COUNSEL TO THE RESPONDENT/CROSS-APPELLANT TO THE ARGUMENTS OF THE LEARNED COUNSEL TO THE APPELLANT/CROSS-RESPONDENT
Replying on points of Law to the arguments of the learned counsel to the Appellant/Cross-Respondent’s arguments on the Cross-Appeal, mere Esq., reiterated that Exhibit “P” the Power of Attorney is within the purview of the documents mentioned in Section 22 of the Land Use Act. According to the learned Counsel to the Cross-Appellant, the phrase transfer of possession covers the power of Attorney as it sought to transfer passion of the property. Reference was then made to Section 23 which fortifies the provision relating to obtaining the consent of the Governor before demise.
He further agreed with the authority of Awojugbagbe light industries Ltd. v. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) 379 at 435-436 paras. H-C; cited by the learned Counsel for the Cross-Respondent in his argument and explained as to where the consent is usually endorsed that it is usually at the back of the document/Exhibit but the power of Attorney has no such endorsement. He maintained that since more than ten years of the transaction, there is no pleading or evidence that the Appellant/Cross-Respondent applied for consent and that based on the forgoing circumstances, the Appellant never intended to obtain the consent of the Governor after Nineteen years.
It was submitted by the learned Counsel for the Cross-Appellant further that, the Law is dear that while executing the document, you include a provision for the Governor’s consent and then you apply immediately but that in this case there was no such indication and no application for the consent of the Governor. The learned Counsel for the Respondent/Cross-Appellant emphasized the point that by the under lined words in Section 22 of the Land Use Act any transaction involving land requires the consent of the Governor and that the mere execution of a document does not in any way exclude it from complying with Section 22 of the Land Use Act. He explained that they are not attacking the document but the noncompliance with Section 22 and 23 of the Act executed since mine teen years ago.
In the final analysis, we were urged to hold that there was no consent from the Governor and that the execution of the C power of Attorney document nineteen years ago without the consent of the Governor being sought and obtained is tong enough to show that there is no intention of the to make such an application for consent. We were further urged to declare the transaction as void from the foregoing as the general rule that one can execute the document first and go for the consent cannot be an excuse for delay defeats equity and inordinate delay cannot exonerate and indolent/Appellant/Cross-Respondent whose delay can also not pipen to success for him.
In conclusion the learned Counsel for the Respondent/Cross-Appellant urged us to nullify the document on the ground of non-procurement of the Governor’s nor Consent.
RESOLUTION OF THE SOLE ISSUE IN THE CROSS-APPEAL
I have carefully considered the submissions of learned Counsel on both sides of the divide in this Appeal and am of the considered view that the crux of the matter herein is the purport of Section 22 of the Land Use Act and whether from the provision of that Section, Exhibit “P” (the power of Attorney) executed between the deceased Paul Ukachukwu Akaluka (the 1st Defendant) and husband of Respondent is one of the those documents mentioned in that section to warrant the consent of the Governor of Imo State and whether the circumstance of this case where the 1st Defendant had neither sought and obtained the consent of the Governor before entering into the transaction, the transaction is illegal and void. To answer this crucial question, it is necessary to have recourse to the provisions of Section 22 and Allied sections of the Land Use Act, 1987 together with decided authorities in deeding those cited by the respective parties to buttress their respective positions. For the avoidance of doubt, Section 22 of the Act explicitly provides that:
“22 (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, and transfer of possession, sublease or otherwise however without the consent of the Governor first obtained:
Provided that the consent of the Governor—-
(a) …
(b) …
(c) …
(2) The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sublease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under Subsection (1) of this Section may be signified by endorsement thereon.”
Section 23 further provides that:
“23 (1) A Sub-lessee of a statutory right of occupancy may, with the prior consent of the Governor and with approval of the holder of the statutory right of occupancy, demise by way of sub-underlease to another person the land comprised in the sub-lease held by him or any portion of the land.
(2) The provisions of Subsection (2) of Section 22 of this Act shall apply mutatis mutandis to any transaction effected under Subsection (1) of this section as if it were a sub-lease granted under this Act.”
Finally on this issue, it is necessary to also reproduce the provision of Section 26 of the Land Use Act, 1978 which stipulates in mandatory terms that:
“26. Any transaction or any instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this Act, shall be null and void.”
The next pertinent question which we must answer at this juncture is whether the Power of Attorney issued in favour of the Appellant by the deceased 1st Defendant (Paul Akaluka)/husband of the Respondent is a transaction or an instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of the Land Use Act.
Put differently, does the Power of Attorney marked Exhibit “P” in these proceedings amount to a transaction or an instrument which purports to confer or vest in the Appellant an interest or a right in Plot WB 85A Road 8, Federal Housing Estate, Trans-Egbu Road, Owerri the subject matter of this Appeal such that if the consent of the Governor of Imo State was not sought, the transaction, instrument or purported conferment or vesting in the Appellant the interest or right in the said property would be null and void and of no effect?
Now, Black’s Law Dictionary 7th Edition by Bryan A. Garner defines “Power of Attorney” at page 1191 thereof as: “An instrument granting someone authority to act as an agent or attorney-in-fact for the grantor – Also termed letter of attorney. 2. The authority so granted.” The Learned Author went on to define the various categories of Power of Attorney to include for the sake of this Appeal, the following:
(a) General Power of Attorney which is a Power of Attorney that authorizes an agent to transact business for the principal.
(b) Irrevocable Power of Attorney which is that power that the principal cannot revoke and this is also termed “Power of Attorney coupled with interest.”
(c) Special Power of Attorney which is such power of Attorney that limits the agent’s authority to specific matter(s).
At page 1189 the term “Power coupled with interest” is defined as:
“A power to do some act, conveyed along with an interest in the subject matter of the power. A power coupled with an interest is not held for the benefit of the principal, and it is irrevocable due to the agent’s interest in the subject property. For this reason, some authorities assert that it is not a true agency power. – Also termed power given as security proprietary.”
At page 1190 of the same , the Learned Author quoted an analysis of the concepts of power coupled with an interest otherwise known as “Power given as security,” “Proprietary Power;” or “Naked Power” by Harold Giff Reuschlein & William A. Gregory, at page 99 para. 47 (1990) Edition of the “THE LAW OF AGENCY AND PARTNERSHIP” where it is stated thus:
“Suppose that the principal borrows money from the agent and by way of security authorizes the agent to sell Blackacre if the loan is not repaid and pay himself out of the proceeds. In such case there is no more reason why the principal should be permitted to revoke than if he had formally conveyed or mortgaged Blackacre to the Agent. Hence it would be highly unfair to the Agent to allow the principal to revoke. The reason why such a case is not properly governed by the considerations usually making an agency revocable is that this is in reality not a-case of agency at all. In a normal agency case the power is conferred upon the Agent to enable him to do something for the principal while here is given to him to enable him to something for himself.
Coupled with an interest means that the Agent must have a present interest in the property upon which the power is to operate.”
See also “THE NEW INTERNATIONAL WEBSTERS COMPREHENSIVE DICTIONARY OF THE ENGLISH LANGUAGE, DELLUXE ENCYCHOPEDIC EDITION” Published by Typhoon Media Corporation 2010 Edition at page 990.
From a careful perusal of the specie of Power of Attorney donated to the Appellant can we say with all sense of honesty as canvassed by the Learned Counsel for the Appellant that it does not come within the purview of the documents mentioned in Section 22 of the Land Use Act, 1978 and that at best the document merely appointed the Appellant as an Agent of the 1st Defendant (Paul Akaluka)?
By the recitals and operative parts of the Power of Attorney, it is clear to me that the document or instrument is not a mere or general Power of Attorney that at best seeks or sought to appoint the Appellant an agent of the deceased Paul Akaluka but rather a Power coupled with an interest in the property in dispute which is irrevocable. It is a power given as security by the 1st Defendant to Appellant to do something not for the 1st Defendant but for the Appellant himself. That Power of Attorney from the totality of the terms contained therein and the analysis earlier given by the Authors afore cited is as good as a Mortgage or outright assignment/conveyance of the property to the Appellant as can be seen hereunder that:
“WHEREAS:
1. The Donor is the owner, the original allottee by the Federal Ministry of Housing and the person entitled to the Right of Occupancy of a piece of property known as and called Plot WB85A, Road 8, Site 1 being situate and lying at the Federal Housing Estate, Trans-Egbu in Owerri Imo State, vide a letter of allocation with reference HC/14/36/82 dated 1/12/82.
2. The property originally comprised one bedroom with appurtenances and the DONOR subsequently converted same to three bedroom apartment with the consent and approval of the Federal Housing Authority.
3. The Donor purchased the property with a loan from the Federal Mortgage Bank, Owerri, the balance of which loan stood at N7,556,75.00.
4, The DONOR has offered to appoint the DONEE his Lawful attorney in respect of the property (Three bedroom apartment with appurtenances) and upon a consideration of the sum of N360,000.00 (Three Hundred and Sixty Thousand Naira only) out of which the sum of N7,556.75 (Seven Thousand Five Hundred and Fifty Six Naira, Seventy Five Kobo) shall be used to discharge the Mortgage which offer the DONEE has accepted.
NOW KNOW YEE ALL MEN that by these present and in consideration of the sum of Three Hundred and Sixty Thousand Naira, (N360,000.00) only paid by the DONEE to the DONOR the receipt of which the DONOR hereby acknowledges the DONOR do hereby as ‘BENEFICIAL OWNER’ appoint, constitutes and nominates the DONEE his lawful attorney over the said WB 85A, Road 8 Site 1 Federal Housing Estate Trans-Egbu, to do and execute any or all of the following:-
1. ….
2. ….
3. To manage, let, assign the property or any part thereof and obtain benefits there from as beneficial owner.
4. ….
5. ….
6. This Power of Attorney being given for valuable consideration, the donor hereby declares that it is and shall remain “IRREVOCABLE.”
I therefore reiterate particularly by clauses 3 and 6 highlighted above as the terms of the Power of Attorney/instrument of the transaction between the 1st Defendant and the Appellant, that same is a special type and at best a Mortgage Deed if not an outright assignment, conveyance or sale of the property to the Appellant as shall be demonstrated anon. In fact to buttress the fact that the transaction that took place between the Appellant and deceased 1st Defendant (Paul Akaluka) was an outright sale, Exhibits “D”, “E” and “F” are letters emanating-from the Late Paul Akaluka and his Lawyer to the Respondent intimating the said Respondent that the said property in dispute had been sold.
For the avoidance of doubt the first and last paragraphs of Exhibit D written by Paul Akaluka are explicit that:
“I am sure you remember that I have told you about the sale of my house at Road 8/85A, F.H.A. Site 1, Trans-Egbu Road Owerri since 1991. For your information, I have now sold the house to one Mr. Nicholas Okere of Ngor Okpuala. Grateful see what you can do to vacate the building for him immediately to enable him take over the house”
Exhibit “E” also addressed by the deceased 1st Defendant to the Respondent reads that:
“I write to inform you that my property WB 85A Federal Housing Estate -Trans-Egbu Owerri has been sold to Mr. N. N. Okere. The ownership of this property has been transferred to the buyer” See pages 234 and 235 of the Records.
As for Exhibit “F” written by the Appellant’s Solicitor B. I. Ibe & Co. which letter is exhibited at page 236 of the Records, references were made by the Learned Solicitor to Exhibits D and E which were duly annexed as notice to the Respondent to quit the property in dispute. The said Exhibit F reads in part (see paragraphs three and four thereof) inter alia:
“We refer to two attached documents dated 3/5/93 and 1/6/93 addressed to you by your husband and copies sent to our client. We are mandated to demand that you immediately give possession of the Bungalow you now occupy referred to particularly in paragraph 4 of the letter dated 3/5/93 and the letter dated 1/6/93 aforementioned on or before 30th June 1995. Our client wants to commence the use of the property by 1/7/93. We advise you comply with our clients demand to avoid unnecessary litigation.”
From the tenor of the above quoted letters the Learned Counsel for the Appellant cannot seriously contend that Exhibit “P” did not constitute an assignment or that it merely authorized the Appellant to execute a formal Deed on behalf of the deceased Paul. With the greatest respect to the Learned Counsel to the Appellant, in the case of Savannah Bank v. Ajilo (1989) 1 N.S.C.C. 135, the full complement of the Supreme Court in answer to the question posed in that case whether Section 22 of the Land Use Act which prohibits the alienation of Statutory Right of Occupancy without the consent of the Military Governor applied to “deemed” grants under Section 34(2) of the Act held that: “Every holder of a right of occupancy whether statutory or otherwise, is regarded as having been granted the right by the Military Governor or Local Government as the case may be, for the purpose of control and management of all land comprised in the State, Accordingly, every such holder, whether under Section 5, 34 or 36 of the Land Use Act, requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy, and this means that Section 22 is of general application to every rights holder under the Act pursuant to section, 5, 34 and 36 thereof.”
There is no doubt that Iguh, J.S.C. in the case of Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor. (1995) 4 NWLR (Pt. 390) 379 at 435-456 paras. H – C and 438 paras. C – H, ably cited by the Learned Counsel for the Appellant, strove along with his learned brothers to, in the words of a Learned colleague, surrender to the clamour and plea by Lawyers to the Supreme Court to interpret the Land Use Act in conformity with practical realities. Hence their eminent Lordships drew inspiration from the observations of Viscount Simmond in Denning v. Edwards (1961) A.C. 243 and reasoned that it ought to be stressed that the holder of a statutory right of occupancy is not prohibited by Section 22(1) of the Act from entering into an inchoate negotiation which may end up with the written Agreement for presentation to the Governor for his necessary consent or approval.
In his words:
“So long as such a written agreement is understood and entered into subject to consent of the Governor, there will be no contravention of Section 22(4) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to Governor for his consent to agree with Chief Williams SAN that Section 22(1) prohibits transaction or instruments whereby the holder of statutory right of occupancy purports to alienate as a complete transaction, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, the absence of the relevant consent of the Governor first had and obtained notwithstanding.”
The Emeritus Learned Law Lord emphasized still on this point that:
“In my view, Section 22(1) of the Land Use Act does not cover purported alienation or alienations which the parties did not intend to become immediately effective until necessary approval of the Governor is obtained. It does however cover and strike at transaction which effectively purport to enable an assignee, mortgagee, or sub-leasee of the right of occupancy to exercise his right there under without the prior consent of the Governor”
Alluding further to Section 22(2), he reasoned that the Section confirms that it recognizes cases where some form of written Agreement or instrument executed in evidence of the relevant transaction is submitted subsequently for endorsement by the Governor.
Aderemi, JCA (as he then was) endorsed this dicta of Iguh, JSC, and his Learned brothers in the Awojugbagbe Light Industries Ltd. v. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) at pages 435-436 (supra) when he stated in UBA Ltd. v. IAS & Co. Ltd. (2001) FWLR (Pt. 75) 578 at 593 that:
“The position of the Law as of today is explained that certain transactions must be entered into and they are inescapably necessary before seeking the consent of the Governor or his equivalent to the Government”
It would be recalled that the Learned Counsel to the Respondent in the Respondent’s Reply to Appellant’s Response to the Cross-Appeal had rightly argued that the phrase “transfer of possession” as contained in Section 22 of the Land Use Act covers the Power of Attorney (Exhibit “P”) as it sought to transfer the property in dispute to the Appellant assuming it is not an outright assignment or conveyance or even sale of the property from what I had highlighted in Exhibits D, F and E, tendered by the Appellant. I cannot therefore but agree more with the Learned Counsel for the Respondent that the prior consent of the Governor of Imo State ought to be sought and obtained since by the combined effect of Sections 22, 23 and 26 of the Land Use Act, the Power of Attorney is an instrument which sought to or transferred possession and interest on the disputed land/property to the Appellant.
Also by Section 3 of the Land Instruments Preparation Law of Eastern Nigeria, CAP. 71 of 1963 as applicable to Imo State then, “Instrument” which includes a Power of Attorney, is defined as “any document conferring, transferring, limiting, charging or extinguishing, or purporting to confer, transfer, limit, charge or extinguish any right title or interest in land, but not a Will.”
In Onagoruwa v. Akinremi (2001) 6 NSCQR (Pt. 11) 973 at 982 Per Uwaifo, JSC delivering the lead Judgment of the Supreme Court relied on several previous authorities including Awojugbagbe’s case on the need for the consent of the Governor to be sought and had in order for any transfer of title, interest or right over land to be valid when he affirmed that:
“It is true that any transfer of title derived even under the Registration of Titles Law must receive the consent of the Governor from the day the Land Use Act, 1978 came into force in order to make the transfer or alienation valid. That is what Section 22 and 26 of the Land Use Act stipulate: See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 7 NWLR (Pt. 97) 305; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) 379; International ile Industries (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt. 614) 268.”
The case of Awojugbagbe Light Industries Ltd.v.Chinukwe & Anor has endorsed the common practice now in vogue that a transaction for the transfer of interest in a Certificate of Occupancy can be inchoate subject to the consent of the Governor being obtained subsequently by the presentation of the Agreement for endorsement.
The Learned Author of the “LEGAL DRAFTING, CONVEYANCING LAW, WILLS & PRACTICE” 2012 Revised Edition, C. O. Adubi, Esq. (Revised by A. M. Adebanjo, Esq.;) at pages 141-142 in line with the provisions of Sections 22 and 26 of the Land Use Act, 1978 and relying on the authorities of International ile Industries (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt. 614) 268 and Adedeji v. N.B.N. Ltd. (1989) 1 NWLR 212 at 227 observed that:
“It is therefore important that the fact that the Governor’s consent was obtained must be stated on the Deed of alienation or transfer of his right of occupancy. However, where the Governor’s consent was duly obtained, the fact that it is not stated on the deed will not affect the validity of the deed.
The Learned Author however suggested and gave example that the better practice would be to show on the Deed that approval under Section 22 of the Land Use Act has been sought and granted thus:
“I consent to the transaction herein contained Dated this ….day of …2012.
…..
Governor of Lagos State”;
so as to assist a later purchaser investigating title and dispense with unnecessary requisitions on the matter. See also the opinion of Umezulike, C.J. at pages 197 to 199 of his “ABC OF CONTEMPORARY LAND IN NIGERIA” (supra) who was critical of the decision of Iguh, JSC in the Awujagbagbe’s case as unsustainable in view of the provisions of Sections 22(1) and (2) and 26 of the Land Use Act. The Learned Author reflected on the distinction drawn by Iguh, JSC and his Learned brothers between agreement for Mortgage which in their opinion does not require consent and the Mortgage, the agreement to transfer as against transfer the, former which does not require consent of the Governor, and he in my humble view was on very sound pedestal when he stated the correct practice which ought to be followed in transactions of the nature highlighted above that the parties prepare the draft instrument and with the appropriate form submit them to the Governor for his consent. If the Governor consents then he gives a letter to that effect to the parties who then prepare the final Deed in terms, exactly, of the Draft Deed already presented for the Governor’s consent or his delegated Commissioner or official.
According to him, it is therefore when the Governor’s consent has been given to this final Deed or document that parties are then free to take action or steps pursuant to the terms of the deed already consented to by the Governor, for any steps taken by the parties like the 1st Defendant and Appellant in this Appeal have done; by Exhibit “P” which purports to have transferred interest or possession by sale to the Appellant from the 1st Defendant, would tantamount to complete nullities.
Be that as it may, even the Emeritus/Learned Law Lord in the Awujagbagbe’s case opined that so long as a written Agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of Section 22(1) of the Land Use Act by the mere fact that such Written Agreement is executed before it is forwarded to the Governor for his consent, but can we say that the Power of Attorney (Exhibit “P”) was made subject to the Governor’s consent being sought and obtained? I have searched through the length and breadth of Exhibit “P” and there is no where it is indicated either on the front or endorsed on the back of the Exhibit that the Power of Attorney (Exhibit “P”) was executed subject to the consent of the Governor. Accordingly, I therefore agree completely that the 1st Defendant and Appellant executed the Power of Attorney with which the land was sold to the Appellant without the consent of the Governor nor was the Exhibit prepared subject to the consent of the Governor being sought and obtained for about 19 (nineteen) years in 2012 (now about 21 (Twenty-one) years and as such their manifest intention since then is that there is/was no desire on their part to seek such consent.
On all the authorities cited, I am bound to answer the question posed by the Respondent/cross-Appellant in the affirmative that the sate of the property in dispute without the consent of the Governor of Imo State, was and is null and void and of no effect whatsoever.
The Learned Trial Judge was accordingly right to have set aside the sale of the disputed property between the Appellant and deceased 1st Defendant Paul Akaluka. The Cross/Appeal is therefore meritorious and hereby succeeds. I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the opportunity to read the lead judgment just delivered by my learned brother, I. I. AGUBE, JCA, dismissing the appeal and allowing the Cross appeal. I agree with him completely, especially as my Lord dutifully evaluated the evidence adduced, which showed that the Respondent was the wife of the Late 1st Defendant and had contributed, substantially, to the funds used in paying the initial deposit for the purchase of the property, and when they moved to the property, she sponsored further development that enhanced the value of the property. She was living in the property with her children at the time of the purported sale of the house to the Appellant by her estranged husband, who had abandoned his family in the said property, frolicking with a concubine, elsewhere. Certainly, the legal/equitable interest of the Respondent in the property, as joint owner, could not be wished away by the Appellant.
In the case of Iliyasu v. Ahmadu (2011) 13 NWLR (Pt. 1264) 236, this court held, as follows, on the right of a wife over a property, bought and jointly developed, using the proceeds of business operated, principally, by the wife, (even though the land was bought in the name of the husband):
“Can one marriage partner lay claims to exclusive and sole ownership of what the two of them toiled and laboured to acquire and build when they were married pretending the other partner was a mere footnote? That is what the parties in this case tried to present…” Of course, by strict principles of law, the Respondent, the husband, could claim ownership of the land, because the Exhibits A and E carry his name as the purchaser (even though the 1st appellant signed Exhibit A in protest), and the Vendor (DW4) came to Court to say he sold the land to the defendant/respondent. But equity and conscience would not permit or allow the respondent rest to solely own and enjoy the property, to the exclusion of his wife (1st appellant), who worked with him and ran the restaurant business which generated the proceeds to buy the land and build the houses. … It is obvious that defendant/respondent did not prove sole and absolute ownership of the property against 1st appellant, because evidence showed he jointly acquired and built it with his wife (1st appellant), from the proceeds of their joint business, when they were still married. There is nothing to suggest that the subsisting rights and interests of the wife (1st appellant) to/in the land and buildings had extinguished at any time, either before the institution of the suit by the appellants or the counter-claim by the respondent, or while the suit was pending…” See pages 256-257 and 259 thereof.
On the claim, by the Appellant that he was a bona fide purchaser of the property without notice of Respondent’s interest, I think Appellant cannot, honestly, claim that he bought the land without having knowledge/notice of the equitable interests of the Respondent in the property. He was expected to make searches. Even a physical inspection of the property before he committed himself to the 1st defendant would have informed him to exercise caution. Because he failed to heed the signals of caution, he is paying for the error now, as he bought litigation and a farce.
In law, existing equitable interest of a party in land operates against the interest of a purchaser for value who had notice of the existing equity/encumbrances on the land, or where he was expected to have such notice, if he was diligent. See the case of Gbadamosi (Rtd) & Ors v. Akinloye & Ors (2013) LPELR-20937(SC); Nsiegbe & Anor v. Mgbemena & Anor (2007) LPELR-2065 (SC); (2007) 10 NWLR (Pt. 1042) 364.
With this and the more elaborate reasons, ably articulated by my learned brother, AGUBE JCA, I too, dismiss the appeal and allow the Cross-Appeal.
I abide by the consequential orders in the lead judgment.
Appearances
S. I. Opara Esq.; with C. C. Onyekanne and A. Eke (Mrs.)For Appellant
AND
For Respondent
