ONOJAEME v. UNION BANK & ORS (2020)

ONOJAEME v. UNION BANK & ORS

(2020)LCN/15373(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/AS/204/2011

RATIO

CIVIL PROCEEDING: BURDEN OF PROOF

JUDGMENT OF COURT: WHETHER EVERY ERROR OR MISDIRECTION WILL LEAD TO A REVERSAL OF THE JUDGMENT OF A COURT.

Misdirection occurs when a judge misconceives the issues or summarises the evidence inadequately or incorrectly for one side or the other, or makes mistakes in the law applicable to the issues in the case.

See; EZEBILO O. ABISI &ORS v VINCENT EKWEALOR & ANOR (1993) LPELR – 44(SC).
At pages 153 -155 of the record, is an evaluation of the case against the 1st Respondent and an evaluation of the evidence in respect of how the Appellant brought Chief Onokpuvie to the bank to pay off his loan to enable him escape the auctioneer’s noose and the trial Court held that he was impressed with the evidence of Dw1 the bank manager, therefore it’s not correct that the trial judge misunderstood the case or did not consider the 1st Respondent’s case.
Most importantly, the Appellant failed to show in what areas this occurred in the evaluation and the miscarriage of justice that ensued there from.
In FIRST BANK OF NIGERIA PLC v JIBRIN OKELEWU & ANOR (2013) LPELR – 20155(CA) this Court held thus;
“It is insufficient for a party to merely complain about an error or a misdirection of a Judge on appeal. He must go further to show how the error or misdirection affected the Judgment.”
Per AKOMOLAFE –WILSON JCA
Furthermore, it’s not every error or misdirection that will lead to a reversal of the judgment of a Court. It is only where the error or misdirection affects the judgment in a way that it is crucial to the decision that the judgment will be reversed. This was the decision in THE GOVERNOR OF OYO STATE v YERIMA & ANOR (2014) LPELR – 24131(CA). PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

DAVID A. ONOJAEME APPELANT(S)

And

1. UNION BANK OF NIGERIA PLC 2. BOMBOY BETHEL (For Himself And On Behalf Of The Estate Of Late Chief Bethel Onokpuvie) 3. SAMUEL OTEHERI RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the judgment of the Delta State High Court sitting at Ughelli division, delivered on 1st March, 2009 coram F.O. OHWO in Suit no: UHC/104/2002 wherein the trial Court sitting in Ughelli dismissed the Plaintiff’s case, the Plaintiff claimed as follows;
a. A declaration that by the relationship between the Plaintiff and the 1st Defendant, the 1st Defendant cannot without the consent and authority of the Plaintiff release his title deeds to the 2nd Defendant’s late father, Chief Bethel Onokpuvie.
b. The sum of N10,000,000 (Ten million naira) from the 1st Defendant being damages for the wrongful release of the title deed to late Chief Bethel Onokpuvie
c. A declaration that the transaction between the Plaintiff and the 2nd Defendant’s late Father Chief Bethel Onokpuvie is a pledge and not a sale
d. A mandatory order directing the 2nd Defendants to allow Plaintiff to redeem the said pledge and receive the redemption sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) from Plaintiff and surrender the said property together with its title deeds.
e. A mandatory order seeking the 3rd Defendant to surrender the said building to the Plaintiff and hand over any title documents in his possession to the possession to the Plaintiff.
f. Jointly and severally the sum of N222,000.00 per annum from 1998 to 2002 and thereafter until Judgment is delivered, being rents/consideration for Defendant use of Plaintiff’s said house or possession of same.’’

The Appellant dissatisfied with the judgment filed a notice of appeal on 9th April, 2009 and the parties filed and exchanged briefs in line with the Court of Appeal Rules.

The Appellant filed a brief on 10th October, 2018, and deemed 25th October, 2018 and Reply brief filed 4th December, 2017 settled by C. O. Ugwor, Esq of Thompson Okpoko & Partners, wherein he distilled 4 (four) issues for determination thus;
1. Was the learned trial judge right in dismissing the case.
2. The 2nd and 3rd Respondents having admitted that the Appellant was the original owner of the building called No. 9 Ogodo street Ughelli, whether the learned trial judge was right in law in holding that the burden of proving that the transaction between the Appellant and late Chief Bethel Onokpuvie in respect of building was a pledge and not a sale rested on the Appellant.
3. Was the learned trial judge right in law in holding that the title deeds of the property in dispute was lawfully in the possession of Late Chief Bethel Onokpuvie.
4. Was the learned trial judge right in his conclusion that the dispute in this case revolves round the control, management and possession of building called No. 9 Ogodo Street Ughelli.

The 1st Respondent’s brief was filed on 24th February, 2016 deemed on 16th November, 2017 settled by Ralph Kosi Nwalia Esq., of Ralph Kosi Nwalia & Co who settled 3 (three) issues for determination thus;
1. “Whether His Lordship was right in holding that the Title Deed was of the property in dispute was lawfully in the possession of late Chief Bethel Onokpuvie
2. Whether His Lordship was right in holding that the burden of proving that the transaction between the Appellant and Chief Bethel Onukpuvie in respect of the building was a pledge and not a sale.
3. Whether the learned trial Judge was right in dismissing the Appellant case in its entirety.”

The Amended 2nd and 3rd Respondents’ Joint Brief of Argument settled Larry Ovwromoh Esq., of Larry Ovwromoh and Associates, wherein they distilled 4 (four) issues for determination thus;
1. “Was the learned trial judge not right in dismissing the case based on the evidence adduced before him?
2. Was the learned trial Judge not right when he placed the burden of proving Pledge and not sale on the Appellant who so asserted?
3. Was the learned trial judge not right when he held that the Title Deeds to the Property in dispute were lawfully in possession of late Chief Bethel Onokpuvie having regards to the facts and evidence of this case?
4. Was the learned trial Judge not right in conclusion that the dispute in this case revolves round the control Management and possession of the building/landed property known and called No 9 Ogodo street, Ughelli?’’

APPELLANT ARGUMENTS
ISSUES 1 AND 2
The Appellant submitted that the lower Court misapprehended the case of the Appellant against the 1st Respondents, because he lumped the cause of action against the 1st, 2nd and 3rd Respondents together.

That Appellant borrowed money from the bank from the 1st Respondent, and after initial default he paid off the debt, he was therefore entitled to the release of the title documents and property. The 1st Respondent instead of releasing the documents to him, he released same to a third party Late Chief Bethel Onokpuvie on the grounds that the Appellant authorized it because he sold the property to Chief Onokpuvie. The Appellant denied this and the bank failed to provide a written consent to dislodge the Appellant’s denial despite the averment in paragraph 6c of their joint statement of defence that consent was express. He contended that the bank had no business with the relationship between Appellant and late Chief Bethel Onokpuvie having recovered its funds. This he submitted the lower Court ignored, as the said Late Chief Onukpuvie was a stranger to the contract there was no basis to release the Appellant’s title documents, he relied on HASTON NIGERIA LTD v ACB PLC (2002) 12 NWLR (PT 782) 628; UNION BANK v OZIGI (1991) 2 NWLR (PT 176) 677 AT 694.
He urged this Court to set aside the judgment.

Secondly, he argued that the Court was wrong in dismissing the case against the 1st Respondent, it was not disputed that the property at 9, Ogodo Street Ughelli originally belonged to the Appellant and therefore it was the duty of the 1st Respondent to prove sale from the Appellant to the 2nd Respondent’s late father. He relied on Section 136 (1) of Evidence Act, 2011.

He contended that having pleaded a deed of Assignment, the 2nd and 3rd Respondents failed to tender any but tendered Exhibit C1 found in the 1st Respondent’s file, which he terms an evidence of forgery that 2nd Respondent DW2 testified that the property was sold by his late father to the 3rd Respondent in 2000 but failed to say how his father acquired same from the Appellant.

Appellant submitted that the Appellant had a pledged transaction with the 2nd Respondent while the 2nd Respondent alleged that it was a sale transaction and therefore the onus was on them to prove sale and that Exhibit C1 does not prove sale and that evidence of the Appellant remained un-rebutted and the Court ought to have accepted it and the judgment should be set aside.
Thirdly, Appellant submitted that in respect of 3rd Respondent he gave no evidence as to his root of title, having alleged that the 2nd Respondent sold to him the onus remains on him to prove sale and that no sale between the Appellant and to 2nd or 3rd Respondents was tendered. He cited ONISESE v OYELEYE (2008) ALL FWLR (PT. 446) 202 1826 @ 1873; ISIBA v JT HANSON & ORS (1967) 1 ANLR 8 @ 10; ODUKWE v OGUNBIYI (1998) 8 NWLR (PT. 561) 339 @ 354.

Appellant submitted in respect of issue 2, that its common ground that Appellant built and was original owner of No. 9 Ogodo Street Ughelli, was used to get collateral for loan facility from the 1st Respondents and recanted the claim of the Appellant that it was meant to be a pledge for 7 1/2years in terms of 2nd Respondent lending N250,000 to him to settle his bank debt so as to avoid a bank forced sale, in exchange for Chief Onokpuvie taking possession of the mortgaged house by collecting rents for the period, at the end of which the Appellant was at liberty to redeem same and would be entitled to a return of its title documents.

That the 2nd and 3rd Respondents denied this and pleaded that it was an outright sale to the father of 2nd Respondent who sold to the 3rd Respondent, he relied on the case of ONOBRUCHERE v ESEGINE (1986) 1 NWLR (PT 19) 799 which he submits is on all fours with the case at hand, that the lower Court misapprehended the onus of proof and thereby occasioned a miscarriage.

The Appellant on issue 3 submitted that the issue was uncalled for as it was not in issue, and that the lower Court relied on evidence which did not arise from the pleadings, he relied on the following cases; EJOWHOMU v EDOK-ETER LTD (1986) 5 NWLR (PT 39) TERIBA v ADEYEMO (2010) ALL FWLR (PT. 533) 1866 – 1888; KINFAU v KINFAU (2006) ALL FWLR (PT. 328) 188 @ 203 on the definition of “an issue’’. He posit that from the pleadings of the Plaintiff and Defendants the lawfulness of possession of the title deeds by Chief Bethel Onokpuvie was never in issue in this case and issues were not joined and therefore the evidence of PW1 under cross examination was not pleaded, therefore the lower Court fell into error and caused substantial miscarriage of justice.

Finally, he submitted on issue 4 that the lower Court misconstrued the dispute in the case from her first two remarks in the judgment by lumping the case against the 1st Respondent together with the case of the Appellant against 2nd and 3rd Respondents. That the case of the Appellant against the 1st Respondent is for releasing Appellant title deeds to a third-party Chief Bethel Onokpuvie and it amounted to a breach of contractual relationship between Appellant and 1st Respondents and that it has nothing to do with the control, management and possession of the house called No. 9 Ogodo street Ughelli. He referred to paragraphs 5, 6, 7, 8, 13, 15 & 17 of the 2nd Further Amended Statement of Claim.

Appellant’s counsel also referred to the relationship between banker and its customer, he cited BANK OF THE NORTH v YAU (2001) 10 NWLR (721) 408; UNION BANK v OZIGI (1991) 2 NWLR (PT 176) 677.

Learned counsel for the Appellant argued that the lower Court did not make reference to the case against the 1st Respondent which is unlawful release of the title deeds of the disputed property.
He urged this Court to resolve the issues in favour of the Appellant.

ARGUMENTS OF 1ST RESPONDENT
ISSUES 1, 2 and 3
1st Respondent submitted that facts admitted need no further proof, that PW1 under cross-examination had admitted that “he knew the title deed in respect of the house was given to Chief Bethel Onokpuvie” and DW1 gave a graphic description of the handing over of the said deeds in support of PW1’s evidence and that the lower Court evaluated this and made findings on this.

1st Respondents contended that pleadings were not evidence, that despite the heavy weather made by the Appellant that it was a pledge, he failed to tender the agreement in evidence and therefore, the lower Court was right in holding that the title deed was lawfully in possession of late Chief Onokpuvie. He referred to Section 137 of the Evidence Act, 2011 and OKOYE v NWANKWO (2003) FWLR PT 156 AT PG 992 PAR H.

He further contended that the reliefs claimed are for unlawful release of title deeds and it is a declarative relief which must be proved by Plaintiff and not rely on weakness of Defendant’s case, he cited DIM v ENEMNO (2009) 172 LRCN AT 244; ODOFIN v AYOOLA (1984) 11 SC 72.

On whose burden it lies to prove that the transaction was a pledge and not a sale in issue 2, the 1st Respondent submitted that flowing from the case of the Appellant at the lower Court and the burden of proof laid on the Appellant that it was a pledge transaction and not sale and except this is satisfactorily done it does not shift to the Defendant. He cited in support IROAGBARA v UFOMADU (2009) 11 NWLR 153 PT. 587; ONYEMACHI v NWAONAMUO (1992) 9 NWLR PT 262 AT 372; ONOBRUCHERE v ESEGINE (1986) 1 NWLR PT 19 PG 799 on the point that he who asserts must prove as in Section 137 of the Evidence Act.

Counsel for 1st Respondent posit on Exhibit C1 tendered by 1st Respondent which the Appellant did not deny that the lower Court at page 154 and 155 evaluated the evidence.

That the Appellant said he had no document evidencing his pledge with Chief Bethel Onokpuvie because the lawyer Dafiagho seized the document. He posits that it was curious that Appellant made no report to the police or Nigerian Bar association, he simply slept on his right until it extinguished and evaporated. That he failed to prove the transaction was a pledge.

Counsel submitted that the trial Court was right in dismissing the case of the Appellant in its entirety having failed to prove declaratory reliefs case with cogent compelling evidence in issue 3. He contended that the Appellant did not arrest the lawyer having found that the agreement was a sale when he did not authorize a sale, neither did he call the lawyer to testify, or report the said Chief Bethel Onokpuvie, he ought to lead evidence on forgery in a criminal case, he cited HUSSEINI v MOHAMMED (2005) 17 NWLR PT. 954 AT 404; AGBI v OGBEH (2006) NWLR (PT. 990) 65 to the effect that failure to call vital witnesses is fatal to the claim.

1st Respondent submits that the Appellant case against the 1st Respondent at the lower Court was forgery but failed to plead same nor particulars.

He submitted that beyond a bare assertion of a pledge the Appellant did nothing, he cited LARMIE v DPMS LTD (2005) 18 NWLR (PT 958) 438, and was therefore not entitled to the reliefs sought.

2ND and 3RD RESPONDENTS’ ARGUMENTS
On issue 1, the Respondents who filed a joint brief submitted that the lower Court did not lump the case of the Respondents together. That the Appellant borrowed the money from the 1st Respondent a day before the auctioneer was to sell the Appellant’s property. The subject matter of the suit, that even though they pleaded that consent was express is neither here nor there but that there was no clear evidence by PW1 that the agreement was that Chief Bethel Onokpuvie was to be in custody of the document of the house in question, at page 110, lines 9 – 11 of the records, he relied on UKATA v NDINAEZE (1997) 4 SC 117 AT 129 LINES 37 – 40.

He posit that contrary to Appellant’s submission, Chief Bethel Onokpuvie was brought in at the last hour to forestall the force sale at a giveaway price, and he paid for the debt to the bank via a cheque, that a contrary evidence was rejected by the lower Court who found that the said Chief was in the bank at the Appellant instance. He submitted that the case of HASTON NIGERIA LTD v ACB PLC (SUPRA) was inapplicable, he referred to the evidence at page 152 – 154 lines 12 – 13.

The 2nd and 3rd Respondents submitted that the 1st Respondent was right to have released the deed to the Chief Bethel Onokpuvie at the request of Appellant and the Court rejected arguments of the Appellant.

Respondents submitted that secondly, the lower Court was right to reject the claim of the Appellant, on the ground that he failed to discharge the burden of proving that he entered into a written pledge agreement with Chief Bethel Onokpuvie after admitting that the pledge agreement he claimed he signed was in fact Exhibit C1 which turned out to be a document he identified under cross -examination as sales agreement and that it is evidence of receipt for payment, see pages 102 (lines 31 – 32). They aligned with the position of the 1st Respondent that burden of proof of a pledge laid on him, they contended that the evidence on record confirmed that Chief Onokpuvie was put in possession and has been collecting rents from tenants undisturbed till today, that after the payment for the loan Chief Onokpuvie acquired an equitable interest in the legal estate upon being put in possession, he cited OGUNSOLA v AZEEZ (2005) A FWLR (PT 240) 139; AYINLA v SIJWOLA (1984) 5 SC 44. He further contended that the cases of ONISESE v OYELEYE (SUPRA); ISIBA & ORS v HANSON & ORS (SUPRA) and ODUKWE v OGUNBIYI (SUPRA) were inapplicable.

They further relied on BALIOL NIG LTD v NAVCON NIG LTD (2010) 5 (2009) 7 SCNJ 29 that in the absence of any pledge agreement tendered the oral evidence is not admissible.

Thirdly, they referred to paragraphs 19 of the 2nd Further Amended Statement of claim that 3rd Respondent illegally acquired Plaintiff’s said house and is in possession of same and this was the same evidence in Chief and nothing more, they submitted that based on the evidence of the Appellant, the 3rd Respondent was not a trespasser but in lawful possession as the Appellant had no permission to grant the 3rd Respondent.

On Issue 2, the Respondents submit that evidence of the 2nd and 3rd Respondents was as their evidence on record and that in addition Chief Bethel Onokpuvie sold the property to the 3rd Respondent for N3,000,000 (Three Million Naira) by a deed of assignment 16th June, 2000.

They cited the following cases in aid; ALAO v AKANO & 2 ORS (2005) ALL FWLR (PT. 264) 799 AT 808; AYORINDE v SOGUNRO (2013) 1 WLR 2; ORJI v DORJI TEXILES MILLS (NIG) LTD & ORS (2009) 12 SCNJ 251 AT 265. Counsel for the Respondents distinguished the facts of the case of ONOBRUCHERE v ESEGINE that the facts were radically different from that of his case hence inapplicable. They posit that Appellant was bound by Exhibit C1 and its contents since he alleged that the transaction between him and the late Chief Bethel Onokpuvie was a pledge and having admitted signing a blank agreement paper which he identified and was tendered through him, the onus of proof laid on him.

The 2nd and 3rd Respondents submitted in respect of Issues 3 and 4 arguing both together that the Appellant’s first ground of appeal was that the summary of the lower Court which is apt and was distilled as a conclusion of the learned trial judge on that basis that the statement does not capture the case against the 1st Respondent which is the unlawful release of title documents by 1st Respondent’s bank. Counsel submitted that this was a broad perspective of the case while that Appellant narrowed the perspective. That the trial judge had summarized the case against the 1st Respondent from each party’s view in pages 93 – 94 as pleaded in 2nd Further Amended Statement of claim in paragraphs 22(1), (2), (3), (4), (5) and (6).

Most importantly, he posit that Appellant has not shown/demonstrated how he has been affected by the summary complained of, the onus of which lies on him. He cited NEW NIGERIA BANK LTD v EDOMA (2001) NWLR (PT. 695) 535.

The 2nd and 3rd Respondents further contended that issue 3 is distilled from ground 3 which deals on the judge’s finding that the title deeds to the property in dispute was lawfully in possession of Chief Onokpuvie, when the Appellant seeks a declaration that the 1st Respondent unlawfully released the title deeds to 1st Respondents and seeks N10, 000, 000 (Ten Million Naira) when in his brief of argument at page 10, issue 3 he stated that the lawfulness of the title deed by Chief Bethel Onokpuvie was never an issue in the case and questioned why the Appellant asked for a claim of N10,000,000 (Ten Million Naira) for the wrongly release it amounts to contradiction. He urged that it be discountenanced.

Counsel submitted that learned trial judge was right when he examined all evidence and came to the finding that the Appellant directed the 1st Respondent to release the documents to him when he under cross – examination answered that the title deeds of the house were given to Chief Onokpuvie. That Appellant strangely attacked the evidence of Pw1 (his witness) as not pleaded. Counsel submitted quite strongly that in all the analysis of the trial judge the findings have not been shown to be perverse or occasion miscarriage, furthermore the handover of the documents to 1st Respondent to Chief Onokpuvie was not a breach of contractual relationship between the Appellant and as no issue was formulated from ground 4 it ought to be deemed abandoned.
He urged the Court to resolve these issues in favour of the Respondents.

APPELLANT’S REPLY ARGUMENTS
The Appellant’s counsel submitted in reply to the 1st Respondent’s reply on issue 1 that there was nowhere in the entire issue 1 where the 1st Respondent responded to the argument of Appellant at pages 9-11 of the brief, that the lawfulness of possession of the title documents and also on the issue of unpleaded evidence of Pw1 and therefore contended that they have conceded the position.

He contended in respect of issue 3 that Section 149(1) of the Evidence Act applied to not calling the solicitor of the 2nd Respondent’s father who was briefed to prepare a pledge agreement, that it does not hold water because even if called, he would not testify in his favour and implicate himself.
He asserted that he pleaded forgery in page 92 of record in 2nd Further Amended Statement of claim.
On the whole, he urged the Court to allow the appeal.

RESOLUTION
I have read the issues formulated by parties and find that; they are similar on the areas of complaint but I shall adopt the Appellant’s issues but in a different order. Issues 1, 2, 3 are common to all parties while issue 4 is common to the Appellant and the 2nd and 3rd Respondents.

I shall in resolving the issues settle the issues in this order; 4, 3, 2 & 1 since the evidence in respect of each issues flows from one to the other, it is in this light that I shall holistically resolve the issues together but in the above order.

The learned trial judge in his opening of the judgment while introducing the Originating processes filed in the matter, in summary stated that “the dispute in this matter revolves round the control, management and possession of the building called No 9 Ogodo Street, Ughelli.’’
Though the Appellant put it as in the conclusion but it appeared at the start of the summary of the case in his judgment.
A perusal of the judgment shows that evaluation of the pleadings, evidence or Exhibits had not begun, the learned trial judge took a holistic view of the cross section of each party’s case as put forward by the Appellant and came to this introduction. The Claimant had stated that he pledged his house to the 2nd Respondent for a term of 7 1/2years and a sum of N249,000 Thousand as payoff for the loan and to revive his business after which he wrote a hand over letter for him to the Tenants introducing him as their new landlord, this has to do with Control and management of the house at No. 9, Ogodo street. Thereafter, the Claimant contends that possession should be returned to him as the 7 1/2years period has expired same was resisted and later sold to the 3rd Respondent who is now in possession.
In view of this, I do not see how the description of the suit has affected the Appellant/Claimant or occasioned miscarriage of justice when it was not anchored on any finding and does not connect with page 151 of the record which is page 15 of the Judgment, where the lower Court stated that he would take all the three reliefs together. The three reliefs are declarations and are interconnected, a finding in the first issue in the negative would mean a denial of relief 2 because it is dependent on the success of relief one. I do not agree that the lower Court misapprehended the case of the 1st Respondent by lumping the case of 2nd and 3rd Respondents together.
Permit me to say that the case of the 3rd Respondent is very clear, he bought from the 2nd Respondent and is in possession, therefore once the case against the 2nd Defendant succeeds or fails the 3rd Respondent swims or sinks with the 2nd Respondent, while the case of the 1st Respondent is whether he had consent to release the title document to the 2nd Respondent. Later on, in the Judgment the lower Court evaluated the evidence against each party and relief, I have scanned through the Judgment and I am convinced that the trial Court had a mastery of the facts and issues at play.
Misdirection occurs when a judge misconceives the issues or summarises the evidence inadequately or incorrectly for one side or the other, or makes mistakes in the law applicable to the issues in the case.

On issue 3, in respect of whether the trial judge was right in law in holding that the title deeds of the property in dispute was lawfully in possession of late Chief Bethel Onokpuvie which is now issue 2 but number 3 of the Appellant’s issues in the brief of argument.
The Appellant claims against the 1st Respondents thus in relief 1 & 2 thus;
1. A declaration that by the relationship between the Plaintiff and the 1st Defendant, the 1st Defendant cannot without the consent and authority of the Plaintiff release his title deeds in the 2nd Defendant’s late father Chief Bethel Onokpuvie.
2. The sum of N10,000,000.00 (Ten Million naira) from 1st Defendant being damages for wrongfully releasing the title deeds to late Chief Bethel Onokpuvie. And pleaded in his 2nd Further Amended Statement of claim in paragraphs 8 & 9;
8. To avert the sale of his said property, Plaintiff approached 2nd Defendant’s said late father, Chief Bethel Onokpuvie for financial assistance in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) to enable him pay off his indebtedness which had risen to N80,598.26 and revive his business. Consequently, Plaintiff entered into a pledge agreement with 2nd Defendant’s father, Chief Bethel Onokpuvie wherein it was agreed that 2nd Defendant’s late father was to advance the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) to Plaintiff and in consideration take possession of Plaintiff said property and collect rents there from for a period of 7 1/2years.
9. Further to paragraph 8 above Chief Bethel Onokpuvie on 30/1/91, took Plaintiff to his then solicitors one Mr. Dafioghor who prepared a draft pledge agreement in the presence of witnesses for both parties. As the following day 31/1/91 was the last day of the said notice the said Mr. Dafioghor requested Plaintiff to sign a blank agreement paper and rush to the 1st Defendant’s office promising that he would transfer the contents of the draft agreement to the blank agreement paper. Plaintiff and 2nd Defendant’s late father, Chief Bethel Onokpuvie signed the said blank agreement paper and rushed to the 1st Defendant’s office.
The evidence on record revolves round the Claimant, PW1 and Dw1.
The 1st Respondents pleaded that;
G. On receipt of the Auctioneer’s letter, the Plaintiff through his solicitors B. B. E. IDIGBE & CO., wrote a letter to the auctioneer requesting him to stay action on the sale of the Plaintiff’s mortgaged property and sent a copy of the said letter to 1st Defendant. The letter dated 30/1/91 shall be relied upon at the trial of this case. A similar letter was directly written to the 1st Defendant by the same Solicitor’s dated 29/1/91, which shall also be relied upon at the trial of this case. That on 31/1/91, the Plaintiff and the 2nd Defendant came to the 1st Defendant’s branch in Ughelli to inform officials of the branch that the Plaintiff had sold the property to the 2nd Defendant’s deceased father to forestall the 1st Defendant’s auctioneer selling the said Mortgaged property. A copy of a Deed of Assignment dated 31/1/91 executed between the Plaintiff and 2nd Defendant’s deceased father was produced by the Plaintiff and handed over to official of 1st Defendant for record purposes. It shall be relied upon at the trial of this case.
H. That consequent upon the facts averred to above, the 2nd Defendant’s deceased father issued a Union Bank of Nigeria Ltd Cheque No. 046368 dated 31/1/91 for N249,000.00 to off-set the indebtedness of the Plaintiff to the first Defendant.
I. That the Deed of Assignment was not produced in the premises of the 1st Defendant and was also not executed there. Additionally, up till the institution of this action, the Plaintiff did not at any time complain to the 1st Defendant that the Deed was a forgery or that he was made to sign a document which did not indicate the correct transaction he entered into with the 2nd Defendant’s deceased father.
J. The 1st Defendant denies receiving any letter from the Chamber of T. J. Onomigbe Okpoko & Co., on behalf of the Plaintiff. However, after the Deed of Release was prepared by the Head Office of the 1st Defendant, copies were given to the Plaintiff. The first Defendant shall rely on the Deed of Release at the trial of this case.
K. That after the payment of N249,000.00 above was made by the 2nd Defendant’s deceased father, the Plaintiff instructed officials of the 1st Defendant to release his title documents of the Mortgaged property to the 2nd Defendant’s deceased father which was duly complied with.
L. That after the payment made by the 2nd Defendant’s deceased father for the benefit of the Plaintiff referred to above and after the release of the title documents to the 2nd Defendant’s deceased father to the knowledge of the Plaintiff. The Plaintiff did not demand for the same documents from the 1st Defendant as he was already aware that they were the 2nd Defendant’s deceased father.
M. Consequent upon all the facts deposed to above, the 1st Defendant shall rely on the principle of estoppel to contend at the trial of this case that the Plaintiff cannot now resile from the transaction which he made the 1st Defendant to believe he duly entered into with the 2nd Defendant’s deceased father as a result of which his title documents were released to the 2nd Defendant’s deceased father.
N. The 1st Defendant shall also rely on the principles of laches and acquiescence to contend at the trial of this case that this suit is stale, frivolous and not maintainable in law.
PARTICULARS
I. The Plaintiff did nothing about the allegedly forged Deed until the institution of this case.
II. The Plaintiff took no step to alert or warn the 1st Defendant about the allegedly forged deed, particularly of the need not to release his title documents to the 2nd Defendant’s deceased father.
III. After becoming aware of the release of his title documents to the 2nd Defendant’s deceased father, the Plaintiff did nothing about it, which would have prompted the 1st Defendant to retrieve them from the 2nd Defendant’s deceased father.
IV. The Plaintiff encouraged the 1st Defendant by words and conduct to release his title documents to the 2nd Defendant’s deceased father.

Pw1 – Robert Utomutobie, a contractor testified that he escorted the Appellant to the 2nd Respondent father’s lawyer’s office; Chief Dafiagor to sign as a witness for the loan of N250,000 which the Appellant was to collect to pay the bank under cross examination at page 110 and paragraph 10 of the record, he stated that;
“The paper containing the agreement was read to me before I signed. I agree the terms of the agreement was that late Chief Bethel Onokpuvie was to be in custody of the documents of the house for the duration of 7 1/2years.’’
Pw1 emphasised at paragraph 15 of same page thus;
“…I know the title deeds of the house were given to Chief Bethel Onokpuvie. It is not correct as suggested that…”
Under cross-examination by 2nd and 3rd Respondents, he stated
“I do not know whether the Plaintiff has paid the money to Chief Onokpuvie. Plaintiff did not hand over title deeds to Chief Onokpuvie in my presence.’’

Dw1 also in the defence above stated clearly and gave a graphic description of the event leading to the payment of the loan of N80,500 by Plaintiff through Chief Onokpuvie, he stated that they both came to the Manager’s office, he as advance officer was invited by the then Manager of the bank to join them and Exhibit C was given to him by the manager to file as proof of sale of the house to be auctioned to Chief Onokpuvie. Who then wrote out a cheque for N249,000 in the name of the Appellant who then expressly gave consent for the title deeds to be issued to the said Chief Onokpuvie, which he complied with. See page 114 of the record.

He had not seen the Appellant since and his account was operated for a short time and it went dormant, he stood by his evidence under cross examination and it was not challenged.

The Appellant challenged the evidence of PW1 as unpleaded and should be discountenanced, who I am afraid was his witness and was evidence elicited under cross-examination which is relevant and credible and supports the case of the adversary, it is the law that such evidence constitutes evidence on which he can rely in proving his own case, see AKOMOLAFE v GUARDIAN PRESS LTD (2010 ) VOL 1 (PT. 1) MJSC 93; MADAM SARAH OSCAR & ANOR v MALLAM MANSUR ALIYU ISAH (2014) LPELR- 23620 (CA).

The Claimant in paragraph 15, 16 (d) & 17 of the 2nd further Amended Statement of claim together with paragraph 2 of the reply to statement of 2nd and 3rd Defendant statement of defence pleaded that he did not authorize the release of the title deeds to the Chief Onokpuvie nor give consent and clearly alleged a collusion between the 1st Defendant and the 2nd Defendant to release the title deeds to him. Furthermore, the first relief in this action is; for a declaration that the 1st Defendant cannot without his consent release the title document to the 2nd Defendant. The Claimant/Appellant pleaded forgery and gave particulars in his claim in this respect, therefore in the light of these copious pleading, can he say that the learned trial Court crossed his boundary when he found and held that the title deeds were lawfully in possession of the 2nd Defendant? Even the 1st Defendant in paragraph 3L of his defence averred that the Claimant upon the receipt of N249,000 instructed the 1st Defendant to release his title deeds to the 2nd Defendant which was duly complied with, they denied the allegations of forgery collusion in paragraph 3o of the defence.

I am convinced that by these above pleading and relief, Claimant indeed put it in issue, and all parties joined issues on this title documents, therefore the trial Court was on firm standing when it acted on this and the evidence was obtained during the cross examination by 1st Defendant’s counsel.
I resolve this issue against the Appellant.

On the next issue which I will resolve together with issue 1; whether the learned trial judge was right in law in holding that the burden of proving that the transaction between the Appellant and late Chief Bethel Onokpovie in respect of the building was a pledge and not a sale rested on the Appellant when the 2nd and 3rd Respondents had admitted that the Appellant was the original owner of the property in dispute; and whether the lower Court rightly dismissed the case of the Appellant in its entirety.

This touches on the question of burden of proof, it is trite that in civil actions burden lies on he who asserts, and he who will lose if no evidence was adduced in respect of the case, from these principles of law firmly set in our Evidence Act, Section 134 and 136 thereof, it cannot be negotiated or waived.
The case of BULETINT (NIG) & ANOR v OLANIYI & ANOR (2017) LPELR -42475(SC), EKO JSC held;
“whoever desires a Court of law to give him Judgment as to any legal right dependent on the existence of facts he asserts, has the burden or onus of proving that those facts exist. Failure to prove or establish positively asserted facts leads to assumption, admittedly, that those positively asserted facts do not in fact exist.”
Applying the above, the burden lies on the Appellant to prove that the process through which the property changed hands, this is because in the pleadings he asserts that there was forgery and collusion between/among the parties to deprive him of ownership of the property, this is a criminal allegation and having pleaded together with particulars the proof of same is beyond reasonable doubt and until discharged it cannot shift.
In DARMA v MUSTAPHA & ORS (2014) LPELR – 23734 (CA), this Court also held on whom lies the burden of proof in civil cases; effect of failure to discharge the burden of proof;
“It is correct as stated by both Counsel that in a civil suit, the general onus is on the Claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. Where a Claimant fails to discharge the onus of proof upon him at the close of pleadings, a Defendant is not obliged to adduce any evidence in rebuttal …”
per ABIRU, J.C.A (PP. 47-49, PARAS. D-B)
From the above precedents, the relevant sections in the Evidence Act; Sections 131(1)-(2) and 135 of the Evidence Act, 2011 reads as follows: –
131(1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
135. if the commission of a crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.
The fact of admission in this dispute is neither here nor there, the proof begins with the Appellant who asserts that the transaction between him and the 2nd Respondents did not lead to an outright sale but one of a pledge. It is not disputed that the property was originally that of the Appellant but what is disputed is that it was not lawfully/willingly given to the 2nd Respondent by the Appellant. The evidence on record largely turns at where the Appellant stated that it was a pledge relationship, while the 1st Respondent and 2nd Respondent claim it was an outright sale, therefore the burden of proof lies on the Appellant to prove the pledge and circumstances surrounding same
The evidence on record is that the due to imminent auction of his property of which he deposited title deeds of the property at First Bank, see Exhibit D and D1, he approached the 2nd Respondent for the sum of N250, 000 to offset the loan of N80,500 and to revive his business, they both went to the 2nd Defendant’s lawyer one Chief Dafiagor and entered into an agreement for a pledge which terms was that apart from the N250,000, the 2nd Respondent was to collect rent for 7 1/2years. He signed the letter of introduction to the tenants who were now to pay rents to 2nd Respondent as their new landlord, see Exhibit E2:
“Titled Change of land lord’’
I hereby inform you that from the month of February 1991 your house rent will be paid to Chief Bethel Onokpuvie of Ogon Town, Ogon Clan,
Thank you for your Co-operation.’’
Singed
David Onojaeme
There is no suggestion that there is a pledge or a limited period of rent collection.
Thereafter they both went to the bank to deposit the cheque issued by the 2nd Defendant. The missing link is how did the 1st Defendant get Exhibit C1 in its vault? The Claimant also did not produce the vital document the pledge in evidence. The 1st Respondent testified as an eyewitness that both Appellant and Claimant came to the bank, it was the Appellant who informed them that he had sold the property to the 2nd Respondent and handed over the document of sale Exhibit C to them, while the 2nd Respondent wrote the cheque for N249,000 less one thousand for contribution to solicitors fees for agreement, and that till date the Appellant never returned to the bank for any complaints or documents thereof.
In the light of this evidence, the 3rd Respondent stated that it was upon sale of the property by the 2nd Respondent that the title deeds and sales agrmeeent of the transaction between the Appellant and the 2nd Respondents were given to him and possession handed over to him.

The learned trial judge rightly held that the burden of proving that the transaction between the Appellant and late Chief Onokpuvie was a pledge and not an outright sale therefore lies on the Appellant.
In FAPOHUNDA v R.C.C.N.LTD (2019) 3 NWLR 163 AT 200 PAR G-H, the Apex Court; per RHODES VIVOUR, JSC held that;
“the burden of prove rests on a party who desires, the Court to give him judgment dependent on the existence of facts which he asserts failing to discharge that burden, by calling the material evidence in the matter, will consequentially result in the dismissal of the reliefs the party seeks from the Court.”
The Appellant has relied heavily on the case of ONOBRUCHERE & ANOR v ESEGINE (SUPRA) as on all fours with the case at hand, I have taken time to read the said judgment and find that, it is based on customary pledge unlike this that agreements were said to be drawn but none was tendered.
In that case, the Court confirmed that the Plaintiff seeking declarations had the burden of proof generally but where the Plaintiff pleads possession of the land in dispute as his title and Defendant admits that possession but adds that the land was given to the Plaintiff on pledge, then onus shifts onto Defendant to prove that the Plaintiff is not the owner of the land, his possession of which has been admitted.
In this case, the Appellant pleaded that he put the 2nd Respondent into possession upon a pledge and the terms were for 7 1/2years while at page 104 paragraph 6 of record was said to be “to take care of interest’’ plus N250, 000 to pay off loan from bank and balance to revive his business, he could not confirm if he had paid off the loan the 2nd Respondent gave him, see page 106 of record. It was not confirmed by PW1 but a look at relief 4 of the claim;
“A mandatory order directing the 2nd Defendant to allow Plaintiff to redeem the said pledge and receive the redemption sum of N250,000 (Two Hundred and Fifty Thousand) from Plaintiff and release the said property.”
Speaks volumes, that if at all there was a pledge it has not been redeemed within 7 1/2years, this was not mentioned in evidence or pleaded in the statement of claim, it then means that if at all there was a pledge the contents and conditions therein has not been placed before the Court, the onus of proof therefore has not been discharged by the Appellant whereas the Respondents have proved sale by; Exhibit C1 and the evidence of Dw1.

Pw1 said he signed a blank sheet and later said there was signature of the 2nd Respondent and the lawyer Dafigor on the paper he signed, therefore it was not a blank sheet.

I agree that the facts of the case of ONOBRUCHERE & ANOR v ESEGINE (SUPRA) differs from the case at hand and is inapplicable.

This leads me to the burning issue of whether the learned trial judge rightly dismissed the case of the Appellant.

Flowing from the above, the Appellant had pleaded forgery and collusion against the 1st and 2nd Respondents herein including the lawyer Chief Dafiagor, this is a criminal allegation within a civil action but the burden is that of beyond reasonable doubt.

The Appellant alleged that what he signed for was a pledge and not sale, PW1 also said it was read to him. In all of this, he testified that the Plaintiff went to the bank to give the cheque but 1st Respondent testified that it was a sale agreement given to the bank. The question at this stage is why did he not inform the bank of the pledge to secure the title deeds? The bank was not aware of the pledge and had no privity of contract with them hence, he could not have withheld the title deeds. The Appellant did not report the 1st Respondent or sue them, neither did he report the said lawyer to the NBA or police who refused to give a copy of the agreement, he paid for and was entitled to. He had no evidence of this, even his lawyer who accompanied him to the bank did not testify to confirm the surprise find of Exhibit C1 in the file, though the 1st Respondent Dw1 said they never came to inspect the file in the bank. He took no concrete action between the preparation of the deed in February, 1991 and the time the 7 1/2years expired and 1989 when he began to write through his lawyer, no demand letters until Exhibit B were issued before this time to Chief Onokpuvie what was produced was just mere oral assertion without more.

The Appellant has failed to prove collusion and forgery against the 2nd Respondent as pleaded in his claim, the 2nd Respondent was brought in to the bank and he was introduced as the new buyer, he was not introduced as a pledgee and then upon paying the balance of the loan stepped into the shoes of new owner. I find no collusion here neither do I find the 1st Respondent guilty of any wrong, it was the representations made to the bank that changed the theme.

The Appellant identified Exhibit C1 as the sales agreement between him and Chief Onokpuvie. See page 104, paragraphs 30, he identified his signature on Exhibit C1.

There were material contradictions as to where the cheque was issued, PW1 said at page 110, line 15 that he did not know the location where the money was given to the Plaintiff, under cross-examination by 2nd and 3rd Respondents’ counsel, he said no money was given to Plaintiff on 31st January, 1991 by Chief Onokpuvie. The Plaintiff said he was issued the cheque in the chambers and only him went to the bank to pay the said sum evidenced by Exhibit A, see page 105 paragraphs 14. Under cross-examination, he said he wrote him to come for his money and allow him redeem his pledge but in evidence – in – Chief, he said he was to pay back the money and it was to attract interest; the pledge was to take effect from February 1991.

From the above, there is no cogent evidence that the money was given in the chambers as stated by Plaintiff, PW1 was not with him on 31st January 1991. Therefore, the Plaintiff has not proved that he alone took the cheque to the bank neither was the money given before he got to the bank. This evidence is very vital to the dispute herein because when put against that of the Dw1, the bank manager who said it was written in his presence and Exhibit C1 given to them by Appellant. The lack of proof is fatal to the Appellant’s case and there is no cogent evidence strong enough to sway this Court, the trial judge painstakingly passed the evidence through a test and found them unsatisfactory.

Furthermore, the Exhibit C was issued in 1989 after the transaction in 1991, it smacks of an afterthought in preparation of the suit to be filed and therefore of no effect.
I resolve the last two issues 3 and 4 against the Appellant.
Having found all issues above against the Appellant, the appeal lacks merit and fails.
It is dismissed. The judgment of the Delta State High Court sitting at Ughelli Division, delivered on 1st March, 2009 coram F.O. OHWO is hereby affirmed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Cost of N200,000 to the 1st, 2nd and 3rd Respondents respectively.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA O. OBASEKI-ADEJUMO; in the instant appeal.

This is to state that I am in total agreement with the judgment of His Lordship in the appeal and have nothing useful to add by way of contribution.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the Appeal be dismissed.
The Appellant failed to prove that possession of the title Deeds and collection of rents by the Respondent were mere evidence of pledge.

The Respondents had proved that there were facts suggestive of the sale of the land as testified to. The Exhibit C1 re-enforced it. Appeal is dismissed and the Judgment of the trial Court is affirmed, accordingly.

Appearances:

O. Ugwor For Appellant(s)

I R. Nwalia, Esq., with him, Onome Jessica Nwose for the 1st Respondent

Larry Ovwromoh for the 2nd & 3rd Respondents For Respondent(s)