IN THE COURT OF APPEAL OF NIGERIA
On Friday, The 21st day of February, 2014
CHIEF JACOB N. OBASI ................. Appellant
SLYVANUS O. EBENUGWU .............. Respondent
C. C. Onyemuwa, Esq. for Appellant
U. A. Emeagwara, Esq. for Respondent
UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Honourable Justice Onuoha A. K. Ogwe of the High Court, Umuahia, Abia State in Suit No. HOM/110/2004 delivered on the 20th day of March, 2008.
The Respondent as Plaintiff's at the trial court filed an action seeking the following reliefs namely:
(a) A declaration that the Defendant's continued seizure and/or withholding of the Plaintiff's title Deed (registered as 14/14/90 at the land Registry Umuahia is wrongful.)
(b) An order of Court compelling the Defendant to accept from the Plaintiff the loan redemption sum of Twenty Four Thousand Naira (N24,000.00) and to return the said title deed to the Plaintiff.
(c) An Order of court compelling the Defendant to render unto Plaintiff an account of the rents he collected from the property No. 12 Afara Road, Omoba, with effect from December, 1999 and to pay over the same to the Plaintiff.
The facts of this case culminating into this appeal are that the Plaintiff now Respondent is the owner of the property in dispute situated at 12A Afara Road, Omoba, Abia State. He bought the land from one John Eyuka and tendered CTC of the registered agreement. He said the Appellant has the original copy of the land document. He stated that he built a nine (9) bedroom concrete house on the land and tendered a receipt of annual rates he paid to the landlord and property rate receipts he paid to the local government.
According to the Respondent, in 1987 he borrowed Nineteen Thousand Naira (N19,000) with interest of Five Thousand Naira (N5,000) from the Appellant and could not repay at the agreed time. Appellant asked him to give him the property in dispute to be collecting rents for the interest. The Respondent invited Seven (7) witnesses to observe the transaction which includes his friends and village people as the parties came from the same village. Appellant took the Agreement made in draft and offered to type same at Aba as well as the documents of the house as security for loan. The Appellant did not bring the typed agreement rather he assured the Respondent he could have his house anytime he wanted. Appellant collected the rent up until 1999. On 19/12/99, Respondent went to Appellant's house with Four (4) of those witnesses with a bottle of wine and the N24, 000 which he borrowed. Appellant took the wine but asked Respondent to take the money home until January 2000.
On 21/12/99, Respondent's landlord came to him to enquire whether he had sold the property to Appellant because he came to him to change the documents into his name. Respondent told his landlord he did not sell the property. In January 2000, Respondent went with the same four (4) witnesses to Appellants house and his wife told them that he was not in. Respondent took the matter to their traditional ruler who summoned the Appellant and he told the Eze that the house was sold to him for Two Hundred and thirty Thousand naira (N230, 000). Appellant was given a date by the Eze to produce the document as he said he was not ready. Appellant never showed up for the Eze arbitration even after six (6) adjournments.
The Appellant on the other hand said he is the owner and in possession of the house in dispute and has the title deed. He stated that he got the possession of the house in dispute in 1987 and the former owner was the Respondent. Appellant said Respondent borrowed N27, 000 in two (2) instalments of N15, 000 and N12, 000. Both parties agreed on the sale of the house for N28, 000. Appellant went with his wife on a Sunday and a temporary receipt for N28, 000 was given to him which included the traditional rites money and the Respondent surrendered the title document to him. He started collecting rent and maintaining the property as he took over possession and nobody challenged his possession. Appellant did not have or produce the temporary receipt at the lower court. While the Respondent alleged the property was on pledge, Appellant said is a sale. Appellant further told the traditional ruler that Respondent sold the house to him and if he wanted Appellant to re-sell it to him, he should pay N230, 000. Appellant called two (2) witnesses which includes his wife while the Respondent called two (2) witnesses who testified on his behalf. At the conclusion of the argument, the learned trial judge granted the reliefs sought by the Respondent.
Being dissatisfied with the said decision, the Appellant filed a notice of Appeal on 6th May, 2008 upon the following four (4) grounds of appeal as reproduced hereunder shorn of their particulars as follows:-
"the judgment is against the weight of evidence"
"the learned trial judge erred in law in failing to dismiss the Plaintiff's suit by reason of the Defendants equitable title over the property in dispute known as No. 12 Afara Road, Omoba."
"the Honourable court erred in law when it failed to invoke the provisions of Section 149(d) of the Evidence Act 2004 against the Plaintiff by holding that the Plaintiff's failure to produce the purchase receipt in his custody would have been against him if produced."
"the learned trial judge erred in law when he made a finding that the transaction between the Plaintiff and the Defendant was only a loan transaction which did not crystallize into a purchase agreement in spite of proof of the equitable title of the Defendant over the said property."
"the learned trial judge erred in law when he ordered the Defendant to render account of the rents from the property from the year 2000 and pay same over to the Plaintiff less agreed interest of N5, 000 from 1987 up till December 1999 when there was evidence by the Plaintiff (though not conceded) that he gave the Defendant the property to collect rents for the interest on the loan transaction.
From the above grounds of Appeal, the Appellant filed a brief of argument dated 16th March, 2010 and filed on the settled by O. O. Nkume Esq. wherein he formulated four (4) issues for determination as follows: -
(a) Whether having regard to the evidence in the case the Defendant's equitable title to the property in dispute was proved to entitle the court to dismiss the Plaintiff's claim and uphold the Defendant's counter claim.
(b) Whether the trial court was right in not invoking the provisions of Section 149(1) of the Evidence Act against the Plaintiff in refusing to produce the purchase receipt forcibly collected from the Defendant by the Plaintiff through the aid of the dreaded Bakassi Vigilante in resolving the issue of loan transaction or sales transaction in favour of the Defendant.
(c) Whether the trial court rightly decided that the transaction was only a loan transaction without any evidence of sale of the property having regard to the evidence before the court of the payment of purchase price, issuance of receipt, possession of disputed property by the Defendant and collection of rents by the Defendant from the tenants.
(d) Whether the trial court was right in ordering the Defendant to account for rents collected from the property to the Plaintiff from 2000 and in granting injunction against the Defendant having regard to the evidence before the court.
The Respondent filed a Respondent brief on 17th April, 2011, settled by Prince Emeogwara Uche A. of counsel. In the brief, the Respondent's counsel adopted the issues for determination as formulated by the Appellant.
At the hearing of the appeal on the 3rd/12/2013, the Appellant's counsel, Onyemuwa, Esq. adopted and relied on the Appellant's brief of argument dated and filed on the 16/3/2010, but deemed filed on the 28/2/2011. He urged the Court to allow the appeal. The Respondent's counsel, Emeagwara adopted the Respondent's brief of argument dated 17/4/2011 and filed on the 9/5/2011 but deemed filed on the 26/7/2013 and urged the Court to dismiss the appeal.
Issues 1 and 2 will be considered together in view of their similarities.
"Whether having regard to the evidence in the case the Defendant's equitable title to the property in dispute was proved to entitle the court to dismiss the Plaintiff's Claim and uphold the Defendant's Counter Claim."
The Appellant's counsel in his argument on this issue submitted that in law the proof of payment of purchase price, issuance of receipt of payment and exercise of acts of possession and ownership raises the issue of equitable title of Appellant over the property in dispute which cannot be defeated by a lame loan transaction argument by the Respondent. The evidence of the Respondent that his inability to repay the loan to the Appellant led to the divestment and subsequent possession of his property known as No. 12 Afara Road, Omoba does not suffice in the absence of any documentary evidence as in the ordinary course of business lending; transfer of property to the lender and the exercise and acts of possession and ownership is not a usual term of a pure loan transaction but a term of sales transaction. Counsel submitted further that it is settled that he who asserts must prove and where such assertion is not proved as in the case of the Respondent, the onus of proof does not shift to the Appellant but to the Respondent to prove how his property was divested. He submitted that the Respondents inability to call as vital witnesses, the tenants to show that they stopped paying rents to their former landlord that is the Respondent and started paying rents to the Appellant is fatal to the case of Respondent and cannot be cured by the tainted evidence of the PW2 and PW3. Appellant counsel argued that the Appellant and Respondent were at ad idem that the initial transaction was a loan agreement and the property in dispute was not used as collateral security nor the deposition of the original title deed as collateral.
Further learned counsel submitted that, when Respondent was unable to repay the loan as agreed, he gave the Appellant one of his properties to collect rent and also gave him the original title deeds of the property without giving evidence why he could not himself collect the rents and pay up the loan. Appellants counsel also submitted that Respondents evidence as to the handover of the original title deeds and collection in pursuance of the loan transaction is an afterthought and concocted to defeat the purchase transaction and transfer of ownership and possession to the Appellant as evidenced by DW1 and DW2. It is contended that the Respondent failed to call his wife to give evidence as the wife's evidence would have been against him, hence he suppressed same. Counsel further submitted that the Appellants evidence were not challenged or controverted and is weightier than the Respondents evidence. Counsel urged the court to invoke the provisions of Section 149(c) of the Evidence Act (2004) in presuming that the common course of business contract of sale was followed and grant the Appellants counter claim of compelling the Respondent to execute in triplicate a Deed of Irrevocable Power of Attorney in respect to the said property while dismissing the Respondents claim.
The Respondent counsel in his response, summarized the evidence of the Respondent as conceded by the Appellant as follows; the Respondent is the legal and registered owner of the property called No. 12A Afara Road, Omoba Isiala Ngwa South, the property is covered by a registered title Deed in the name of the Respondent as 14/14/19, nine (9) bedroom bungalow concrete block was built by the Respondent, there was an initial loan transaction between the parties which the Respondent failed to repay, Respondent visited the Appellant with some people including the PW2 and PW3 on December 1999 and in January 2000 in respect of the title deed deposited with him by the Respondent, there was an attempt at customary arbitration at the traditional ruler's cabinet which the Appellant refused to submit to, the Appellant has custody of Respondent title document and was collecting rent in the property up to the point of judgment, no one witnessed the earliest loan transaction, Respondent continued paying the annual ground rent to his native landlord and the property rate to the local government authority from the year of the pledge transaction 1989 to 2001 while the Appellant never paid any of these.
Respondent counsel argued that it is a correct proposition of law that in civil cases the initial burden of proof rests in the Plaintiff. However, the admitted facts on the pleading and the evidence led before the trial court points that the title of the building as at the point of dispute was vested in the Respondent. He submitted that the burden of leading evidence that the Respondent was no longer the owner of the property in dispute, and has divested his title in favour of the Appellant rests with the Appellant. He relied in the case of Echi vs. Nnamani (2000) 5 SCNJ 155, 164, Ejemruvwo Oyovibiave & 2 Ors vs. T. Omamurhomu (1999) 7 SCNJ 60, 69, Kodo vs. Yussuf (2001) 2 SCNJ, 49; Ewo vs. Ani (2004) All FWLR (PT. 200) 1484, 1499.
Respondent further submitted that the evidence of the Appellant, the DW2 and the DW3 as to the retrieval of the phantom purchase receipt was shown under cross examination to be false, unreliable and lacking in credit. And submits that the summation of the trial court to ascribe value and credit to witnesses before it is within their legal province. He cited the case of Igbi & Anor vs. The State (2000) 2 SCNJ 63.
Learned counsel to the Respondent urged the court to act and uphold the judgment of the trial court to the effect that what transpired as between the Respondent and the Appellant in 1987 was a simple pledge/loan transaction, that the Appellant has at the trial court failed to show how the Respondent legally divested his legal title to him. Respondent counsel submits that there is no legal obligation on the Respondent to call his wife to be witness for him at the trial as the Respondent's wife died in the year 1990. And it is the law that a party is not required to call a particular witness when he could prove his case otherwise.
"Whether the trial Court was right in not invoking the provisions of Section 149(d) of the Evidence Act against the Plaintiff in refusing to produce the purchase receipt forcibly collected from the Defendant by the Plaintiff through the aid of the dreaded Bakassi Vigilante in resolving the issue of loan transaction or sales transaction in favour of the Defendant."
In this issue, learned Appellant's counsel argued that Appellant in his evidence said the Respondent issued him a temporary purchase receipt after payment of the agreed purchase price of the property. He submitted that DW2 in corroborating the evidence of DW 3 stated that during the pendency of suit in 2001, the Respondent procured Bakassi boys to abduct and detain the Appellant and forcibly retrieved the temporary purchase receipt from DW 2 and handed over same to the Respondent as the said temporary receipt was a condition for releasing the Appellant on bail. The learned counsel stated that the act of the Respondent in resorting to self help after submitting the matter for adjudication, the illegal arrest and detention of the Appellant by the Bakassi boys and demand for the receipt would have weighed in the mind of the trial court in believing the evidence of the DW 2 and DW 3 and thereby invoking the provision of S.149(d) of the Evidence Act. He further submitted that failure of the trial court in invoking the provisions of S.149(d) of the Evidence Act against the Respondent occasioned a substantial miscarriage of justice in resolving the issue whether or not the transaction was a loan transaction.
Learned counsel to the Appellant urged the Court to invoke the said provision of the law that the said transaction involved the sale of the property in dispute and divesting of the possession and ownership from the Respondent to the Appellant which transaction the Respondent set out to suppress by the forcible retrieval of the receipt of payment and refusal to produce same at the hearing.
The Respondent counsel in his response to the argument of the Appellant counsel submitted that the existence and issuance of the fathom receipt of sale of the Respondent property by the Respondent to the Appellant as contended by the Appellant in their brief was largely and clearly unproven and remain discredited at the trial. The learned counsel to the Respondent recapped the finding of fact by the trial court on the existence or non-existence of the alleged Appellant purchase receipt after going through the evidence of DW 1, DW 2 and DW3 and held that this receipt was mysterious and doubtful. He further stated that the trial court was of the view that the evidence of DW 3 who had all opportunities of mentioning it on record at the earliest opportunity, at the magistrate court (Exhibit 7) "was an after-thought". Respondent counsel further submitted that a finding of fact of a trial can only be set aside by the Court of Appeal where it only borders viva voce of parties evidence, contrary to prove by documentary evidence, where it is only shown to be perverse and unreasonable on the face of evidence before the court. See Ibekwe vs. FRN (2000) ALL FWLR (PT 213) CA, 1730.
Learned counsel relying in the case of Odi vs. Iyala (2004) ALL FWLR (PT 207) SC, 570/598 paragraphs G - H where the Supreme Court held that
"where an issue is left in doubt so as to make the court speculate, the party on whom the proof rests will ultimately loose when the essential fact he relies on becomes uncertain or in doubt as to its existence."
That such was the case of Appellant and his bogus claim of a purchase of property of the Respondent, the subsequent issuance to him by an illiterate Respondent of a purchase receipt and its alleged retrieval by the Respondent from the DW 2 and DW3 with "Bakassi" people. They remained unproven, doubtful and mysterious. Learned counsel further submitted that there is no legal requirement on the trial Court on the face of the pleadings and admitted evidence before it, to invoke S.149 (d) of the Evidence Act against the Respondent, whereas the Appellant has failed woefully in the discharge of the evidential burden on him in the matter. And he who asserts must prove. See S.136 and 137 of the Evidence Act.
Suffice it to say that I have considered the submissions of learned counsel with regard to this issue. In order to establish equitable title to property, the law has long been established that where a person pays for land and obtain receipt for the payment by his going into possession and remaining in possession of the property, an equitable interest is created for him in the land such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable interest in the land; such a situation as stated here creates an agreement for sale, See Shobajo vs. Ikotun & Anor (2002).
There are five ways of proving or establishing title to land or ownership of land. These are by (a) Traditional evidence (b) Production of documents duly authenticated (c) By positive acts of ownership extending sufficient over a length of time (d) By acts of long possession and enjoyment of the land (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. The law is that the establishment of one of the five ways is sufficient proof of ownership. See Nkado vs. Obians (1997) 5 NWLR (PT 503) at 31.
On the issue of whether the Defendant has proved equitable title to the property in dispute having regard to the evidence in the case, both DW1 and DW2 in their evidence stated that PW1 gave DW1 temporary receipt and surrendered the title document to him. See pages 60 & 68 of the Records. On the other hand, DW1 thereafter stated that he did not have the temporary receipt. His reason being that the Bakassi Boys retrieved the purchase receipt from his wife while he was abducted and handed it over to the Plaintiff. See pages 55 pgh 16 (b) and 89 of the Records. In addition to this, the Appellant admitted that he did not participate in Eze Elijah Adindu's Arbitration but rather requested the sum of N230,000.00 from the Respondent if he wanted to repurchase the property. It is trite that facts admitted in evidence need not to be proved, See Okoebor vs. Police Council (2003) 12 NWLR (PT 834) 444 SC. Looking at the chronology of the pleadings of both parties, Eze Adindu Arbitration came up before the Bakassi incidence as alleged by the Appellant. The Appellant ordinarily should have had the said temporary receipt if at all the receipt was issued to him and it is in existence. The trial court rightly observed, "one wonders why the Defendant took all that trouble to go and tell the Eze that and still refused to submit to settlement and state his simple case of purchase backed by receipt knowing that Plaintiff had no receipt." See page 110 of the Records.
Furthermore, the trial court observed and stated some issues or facts agreed upon by both sides as: (a) The property in dispute which is a house occupied by rent paying tenants was at all material times prior to the transaction owned by the Plaintiff. (b) That Plaintiff took a loan of a disputed amount from Defendant and failed to repay at the agreed time. (c) The Plaintiff visited Defendant with some people over the property (d) Defendant has the title documents and has been collecting the rent until now (e) Nobody else witnessed the loan transaction.
The law is trite that a trial court is in the best position to assess the credibility of witnesses. See Gira vs. State (1995) 3 NWLR (PT. 385) 619 at 631 per Rowland, JCA (of blessed memory). The trial court stated that the testimony of the Plaintiff and his witnesses agreed on the material point. They gave evidence which was unchallenged that it was the failure of Respondent to repay the loan that made all of them to concede to Appellants' demand to be collecting the rent until he was paid. It was at the same gathering that Appellant demanded for the title document which was given to him in their presence. Appellant did not challenge these testimonies. See page 109 - 110 of the Record.
On the other hand, the trial court went further to observe in its judgment as follows:
"I watched Defendant and his wife in the witness box in their shifty way of giving evidence and responding to questions and they did not strike me as witnesses of truth".
Further to the issue of the title document, DW1 and DW2 in their testimony stated that the title document was issued to the Appellant in the year 1987 when the property was bought while in the testimony of PW2 and PW3, they alleged that the title document was given to him after the oral agreement to collect rent and pending when the draft document of the oral agreement be made ready. The said title document is still in the name of the Respondent from 1987 till 2004 at the commencement of this suit at the trial court, which is about 17 years interval.
I throw my weight with the reasoning of the trial court when it acknowledged the fact that there is no legal nexus between the Appellant and the house based on the title deed as it conveys nothing to him. The Appellant is supposed to have two documents linking him to the house that is the title deed and the purchase receipts.
Another point to consider is the invocation of Section 149 (c) (d) of the Evidence Act now Section 167 (c) (d) of the Evidence Act 2011 (As Amended) which the Appellant argued that the trial court failed to consider. It provides as follows:-
"the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the court may presume that:
(a) the common course of business has been followed in particular cases.
(e) evidence which could be and is not produced be unfavourable to the person who withholds it.
Where the evidence before the Court is neither challenged nor contradicted and not rendered inadmissible by the provisions of any enactment, the court would be right and justified in relying on such evidence in arriving at its decisions. See P.T.F. vs. I.F.M.S. Ltd (200) 16 NWLR (PT 794) 586 CA.
It is my humble view that the Appellant has not succeeded or established or prove his equitable title nor show evidence of purchase of property as to establish ownership. I agree with the reasoning of the learned counsel to the Respondent that there is no legal requirement on the trial court on the face of the pleadings and admitted evidence before it, to invoke S.149 (d) now S. 167(d) of the Evidence Act 2011 (As amended), Issues 1 and 2 are hereby resolved against the Appellant.
Issue 3 and 4 will be considered together.
"Whether the trial court rightly decided that the transaction was only a loan transaction without any evidence of sale of the property having regard to the evidence before the Court of the payment of purchase price, issuance of receipt, possession of dispute property by the Defendant and collection of rents by the Defendant from the tenants."
In arguing this issue, learned counsel to the Appellant submitted that the evidence before the court points to the fact that there was a contract of sale of a property entered between the Appellant and the Respondent as the evidence of the Appellant as DW1 disclosed that all the ingredients of a contract or agreement for sale existed in the transaction which include (a) offer (b) Acceptance, (c) Consideration (d) Capacity of Contract (e) Intention to create legal relationship. See Yaro vs. Arewa Construction Ltd (2007) 17 NWLR (PT 1063) 333 at 341 Ratio 10 (PT 377). Learned counsel further submitted that the Appellant and the Respondent who were parties to the said contract or sale are ad idem and the agreement is binding on both parties and enforceable by the Court and is not dependent on any other term or condition to be concluded or enforceable like typing the agreement or signing the agreement or perfection of the agreement as all this will transform the Appellant's equitable Estate into a legal Estate instead of violating the contract. That all the ingredients of equitable interest in the property were met; by the payment of money and possession. It has been decided that when a person pays for land, obtains receipt of payment followed by going into possession and remaining in possession, an equitable interest is created for him on the land. See the case of Elaran vs. Aderonpe (2008) 11 NWLR (PT 1094) 50 at 58 Ratio 10.
Learned counsel to the Appellant submitted that in proof of a valid contract of sale of property and the existence of the Appellants equitable Estate that the trial court was wrong in coming to the conclusion that the court find no evidence of sale of property before it particularly when there was evidence of payment, transfer of property and exercise of act of possession and ownership i.e. collection of rents all of which are not evidence of loan transaction but sales transaction. Counsel urged the Court to grant the Appellant's relief in the counter claim and compelling the Respondent to execute within 3 days of it judgment.
Learned Counsel to the Respondent in his Response, adopts his submissions on issues 1 and 2. He further stated that the proof of the existence or otherwise of the fact of purchase and sale lay strictly on the Appellant by Sections 136 and 137(1) of the Evidence Act. He argued that when facts are in dispute on the pleadings, they are held to be in issue, to be resolved by credible evidence, oral or documentary, citing in support of the case of Ikoku vs. Ekeukwu (1995) 7 SCNJ, 180, or (1995) NWLR (PT 410) 637. Counsel contended that the fact of the existence of sale or issuance of any sale/purchase of land receipt by the Respondent to the Appellant was clearly denied by the Respondent. What was left on the state of admitted facts was that the Respondent has the legal title in the property and it is for the Appellant to lead cogent, credible and uncontroverted evidence to prove the contrary. And this, the Appellant failed to prove at the trial court. He further stated that collection of rent and possession of the property by the Appellant from 1987 to 1999 does not clog the wheel of redemption. He referred to the case of Iwuchukwu v Anyanwu (1993) 8 NWLR (PT 311) CA 307, 318 paragraphs H-A.
Counsel also submitted that Appellant's counsel submission at page 9 of the Appellant's brief, last paragraph runs foul of the law as the Appellants counter claim was dismissed. Having not appealed against the dismissal of his counter-claim in any of his grounds of appeal, cannot be heard in his Brief of argument. It is the practice that the buyer always produces documents of transfer of sale of land or deeds for the seller to sign. See Obiora vs. Oselle (1999) 8 NWLR (PT 208) 165. Finally, counsel contended that the Appellants argument on the existence of equitable title by reason of an "unproven" payment of purchase price, issuance of receipt, possession of the disputed property and collection of rent from tenant cannot mature into a legal title against the true owner. It can only succeed against subsequent purchase of the legal estate but not against the present and existing legal owner, the Respondent. The onus is on the Appellant to demonstrate through credible evidence how the Respondent lost his legal title and divested it on the Appellant. He thus submitted that the lower court was right when it held that the transaction is a pledge and the Appellant to accept redemption of the property.
"Whether the trial court was right in ordering the Defendant to account for rents collected from the property to the Plaintiff from 2000 and in granting injunction against the Defendant having regard to the evidence before the Court."
In this issue, learned counsel to the Appellant submitted that the trial court was wrong to have ordered the Appellant to account for rents collected from the property from the year 2000 considering the evidence of the parties and also grant of injunction restraining the Appellant from his property in his possession. That the sketchy uncorroborated evidence of the Respondent as to how he divested himself of the property does not support the decision of the court. Counsel in reiterating the arguments he canvassed in issues 1 and 2 further submitted that the absence of documents to prove the loan transaction, the only reasonable conclusion is that the Respondent parted with his original title deeds and possession of the property to the Appellant on agreement of sale of the house. He stated that the law is settled that he who asserts must proof and the onus is on the Respondent to prove that the alleged loan transaction defeats the proved sales agreement and all the ingredients of a contact of sale including Appellants exercise of acts of possession and ownership. It is his view that the Respondent woefully failed to discharge the onerous burden on him and as such the onus didn't pass to the Appellant to prove the loan but the contract of sale which he has discharged. Appellant's counsel further submitted that the Respondent having accepted giving the Appellant the property to collect rents until repayment of the loan (though not conceded), the Appellant cannot be ordered to account for rents collected for any period until it is established that the transaction was a mere loan transaction and did not crystallize into a sales transaction. He finally concluded that on the preponderance of evidence of contract of sale of property the court ought not to grant the order of injunction against the Appellant and urge the court to dismiss the Respondents suit and grant the counter claim of the Appellant.
In response to the Appellants argument, the Respondent submitted that the trial court was right in ordering the Appellant to account for rent collected from the property of the Respondent from the year 2000 as the admitted and proven fact of the case was that the transaction between the parties was a pledge. And in the year 1999 and 2000, the Respondent came with people to redeem the property, the Appellant refused which led to the suit. He argued that in law and equity, a situation of constructive trust arose between the Appellant and the Respondent having rejected redemption. Counsel to the Respondent refers the court to Section 19(3) High Court law (Cap 48) law of Abia State Vol. 1 (1991-1997) and relied in the case of Udensi vs. Mogbo (1976) 7 SC 1, pages 22-23. Respondent counsel also reiterating his argument proferred in issues 1 and 2 urged the court to dismiss the appeal as lacking in merit and uphold the judgment of the lower court.
In considering issues 3 and 4, which basically are on whether the transaction between the parties it was a loan transaction as decided by the trial court or a contract of sale, it is apposite to state here that in order for an action to be brought for specific performance of a contract for sale of land or any interest in land there must be a written memorandum of the contract signed by the Defendant or by his duly authorized agent. See Adeniran vs. Olagunju (2001) 17 NWLR (PT 741) 169 at 188.
However, one of the exceptions to the general rule on contract for sale of land is where there is adequate memorandum in writing, signed by the party to be charged, spelling out the terms of the contract, the names of the parties and their addresses, then such a contract can be enforceable and a suit can be predicated on it. It follows therefore, that when there is no written contract for the sale of land but subsequently, there is a memorandum in writing containing all the prerequisite of a valid contract, then such a contract could be enforceable. As generally, the law would not allow the statutory provisions to be used as an instrument of fraud. See Mba-ede vs. Okufo (1990) 2 NWLR (PT 131) 787.
It is worthy of note that the production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration. Thus, before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that (a) the document is genuine or valid (b) it has been duly executed, stamped and registered (c) the grantor has the authority and capacity to make the grant (d) that the grantor has in fact what he propose to grant and (e) that the grant has the effect claimed by the holder of the instrument see Ayorinde vs. Kuforiji (2007) 4 NWLR (PT. 1024) 341 CA.
In the instant case, the Plaintiff in his evidence in court showed the agreement between him and the owner of the property, one John Eruka Ochiegbu of Umuikre Omoba, and produced certified true copy of agreement. Furthermore, the annual receipt paid to the landlord dated 31/12/99 admitted in evidence and the property rate paid to the Isiala Ngwa South Local Government Area dated 25/10/95 and 23/9/97 were received in evidence respectively and were not opposed to by the Appellant.
The fact that the Appellant produced the title deed or that he collects the rent in the property has not convinced this court to believe that Respondent genuinely divested his legal interest to him. It safely be stated that the Respondent unsuspecting and having trusted the Appellant gave the title document to him without knowing the legal implication of parting with same without a written agreement.
The Plaintiff stated, "when I went to him to enquire if the agreement was ready, he said he had not collected it from Aba. He finally did not bring it saying that there was no problem that I would have my house anytime I was ready". The issue of constructive trust which comes into play in the instant case is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holders of the legal title may not in good conscience retain the beneficial interest, equity coverts him into a trustee. See Ibekwe vs. Nwosu (2011) LPELR - SC. 108/2006.
In order to establish a valid contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof. The parties must intend to create legal relations and the promise of each party, in a simple contract, must be supported by consideration. There must be a concluded bargain, which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. If the terms are unsettled, uncertain or vague that they cannot be ascertained with reasonable degree of certainty, there will be no valid contract enforceable at law unless the uncertain part of the contract is unsubstantial and can be separated from the vital parts thereof. See Alfotrin Ltd vs. A.G Federation (1996) 9 NWLR (at 475) 634.
Consequent upon what was said above, I agree with the reasoning of the trial court that the transaction is not a contract of sale but a loan transaction as the Appellant has no valid or genuine document of sale connecting him to the land in dispute. The Appellant in my view took advantage of the Respondents trust and ignorance; thereby withholding his title document.
Section 143 Evidence Act (2011) (As Amended) provides:-
"when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner".
The law therefore presumes the person in possession of land to be the owner. Therefore, in order to displace a party in possession, a claimant has to show that the party in possession is in possession without his consent or his tenant. See Jinadu vs. Esurombi - Aro (2005) 14 NWLR CA (944) 142 CA. Until the contrary is proved, possession in law follows the right to possess. Thus, it is not enough to posses. Also, it is not enough that a claimant is able to show he has been in possession of land for the requisite number of years. The burden on him is higher than that. He has to show something more. He has to show that he is the one claiming that land owned by his title has now become his because the owner has either been dispossessed or has discontinued possession. Therefore, the claimant has the clear onus to prove that the title holder has been dispossessed or has discontinued his possession see Majekodumni vs. Abina (2002) 3 NWLR (PT. 755) 720 SC.
The burden of proof in civil cases are of two folds, the first is the ability of a Plaintiff to establish and prove the entire or reasonable portion of his case before a court of law can give judgment in his favour. This one is always constant on the Plaintiff. The other burden of proof is related to particular facts or issues which a party claims exist. It is that burden of proof that oscillates from one party to the other. Clearly, the onus of proof of a fact in issue is on the party who will lose if such a fact is not proved. Thus, the onus of proof is not static as it shifts from time to time. Where, for instance, in a land case, the Plaintiff pleads possession of land as his root of title and the Defendant admits possession but adds that the land was given to the Plaintiff on pledge, then the onus shifts on the Defendant to prove that the Plaintiff is not the owners of the land, the possession of which he has admitted. See Ebong vs. Ikpe (2002) 17 NWLR (PT. 797) 504 CA.
The trial court stated, since the Appellant agrees that the property was that of the Respondent before the dispute, but alleged that he had bought it, the burden called evidential burden by the Evidence Act as distinct from burden of proof shifts to Appellant to establish the sale". See page 111 of Records. The reasoning of the trial court is clear, while the Respondent bears the burden to proof his case beyond reasonable doubt, the Appellant bears the evidential burden to prove the property belongs or was sold to him by the Respondent. It is my considered view that the Respondent has proved this burden at the trial court while the Appellant has not discharged the evidential burden on him.
On the issue of counter claim, it was observed that the trial court at pages 114 of Records stated that the Appellant failed to prove any of his reliefs in the counter claim without expressly dismissing the counter claim of the Appellant. The consequence for effect to prove means that the claim is not substantiated. This tantamounts to dismissal as the Appellant has failed to prove any of his claims.
In conclusion, therefore and having resolved all the issues this appeal lacks merit and it is hereby dismissed. The judgment of the lower court delivered on 20th March, 2008 is hereby affirmed. There shall be N50,000.00 cost to the Respondent against the Appellants.
PHILOMENA MBUA EKPE, J.C.A.:
I have had the opportunity of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) JCA. I agree with all the reasoning and conclusions therein and I also adopt same as mine. His Lordship has very carefully dealt with all the salient issues raised in this appeal and I have nothing more useful to add.
Consequently, I too agree that this appeal is unmeritorious and I do dismiss it accordingly. The judgment of the lower court delivered on the 20th day of March 2008 is hereby affirmed. I abide by his Lordship's order as to costs.
PETER OLABISI IGE, J.C.A.:
I had the advantage of reading the leading judgment delivered by my Lord Uwani Musa Abba Aji, PJ.
My Lord had admirably dissect and dealt with all the issues raised in the appeal and I am in complete agreement with the resolutions of all the issues raised for determination.
I also hereby dismiss the appeal as lacking in merit. I also abide with the order relating to costs awarded against the Appellants.