➥ CASE SUMMARY OF:
Mrs. Oluwaseun Agboola v. United Bank For Africa Plc (UBA) & 2 Ors. (2011) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.86/2003
➥ JUDGEMENT DELIVERED ON:
Friday, the 25th day of March, 2011
➥ AREA(S) OF LAW
Title to land.
Admissibility of purchase receipt.
➥ NOTABLE DICTA
⦿ A PARTY MUST RELY ON THE STRENGTH OF HIS CASE
It is a cardinal principle of the law that a party must rely on the strength of his case and not on the weakness of his opponent. see Ituama v. Akpe-Ime (2000) 2 NWLR part 680 page 156, Ihekoronye v. Hart (2000) 15 NWLR part 692 page 840. — A.M. Mukhtar, JSC.
⦿ CERTIFICATE OF OCCUPANCY IS A PRESUMPTION OF EXCLUSIVE POSSESSION
It is settled law that a Certificate of Occupancy regularity issued by competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. The presumption is however rebuttable. But there is no evidence from the Appellant to rebut the presumption. As a matter of fact, the Appellants did not attack the Certificate of Occupancy. — F.F. Tabai, JSC.
⦿ SCENERIOS WHERE A COURT WILL BE WARY OF SETTING ASIDE AN AUCTION SALE PURSUANT TO A MORTGAGE
The court will also be wary to set aside an auction sale where the scenario indicates that the under mentioned facts are shown to the satisfaction of the court: 1) That the mortgagor did mortgage the property in dispute to the mortgagee. 2) The loan or any installment has become payable. 3) Notice of demand of repayment of roan from the mortgagee to the mortgagor. 4) The power of sale under the mortgage agreement has arisen. 5) Pre-condition of notice of sale is given to the mortgagor by the mortgagee or his agent. 6) The power of sale was exercised and the title in the property passed to the purchaser. Gbadamosi v. Kabo Travel Limited (2000) 8 NWLR Pt. 668 Pg. 243. Oguchi v. F.M.B. (Nig.) Ltd. (1990) 6 NWLR Pt. 156, Pg. 330. Bank of the North v. Alhaji Mumuni Muri (1998) 2 NWLR Pt. 536 Pg. 153. Akande v. F.B.N. (2004) 8 NWLR Pt. 875 Pg. 318. — O.O. Adekeye, JSC.
⦿ A MORTGAGEE IS NOT A TRUSTEE OF A POWER OF SALE FOR THE MORTGAGOR
The purchaser ought to have been made a party to this suit in view of the reliefs of the plaintiff to declare the sale null and void and consequently to set it aside. Any order made in favour of the plaintiff will adversely affect the purchaser. It is also pertinent that where there is prayer to set aside an auction sale, the court must remember that it is settled law that a mortgagee is not a trustee of a power of sale for the mortgagor except for the balance of the purchase money. It is a power given to him for his own benefit, enabling him to protect the mortgage debt. A purchaser who bought a property sold by a legal mortgage in exercise of his power of sale under a mortgage upon a default and repayment of a loan by the mortgagor is not a trespasser. All State Trust Bank v. Nsofor (2004) All FWLR Pt. 201, Pg. 7719 Union Bank of Nigeria v. Ozigi (1991) 2 NWLR Pt. 176, Pg. 677. — O.O. Adekeye, JSC.
⦿ BUILDING ERECTED ON A MORTGAGE LAND FORMS PART OF THE MORTGAGED PROPERTY
For the purpose of this appeal, it must be emphasized that a building erected on a mortgaged land form part of the mortgaged property by virtue of the maxim quic quid plantatur solo solo cedit – meaning “he who owns the land owns what is on it”. Adepate v. Babatunde (2002) 4 NWLR Pt. 756, Pg. 99 — O.O. Adekeye, JSC.
⦿ REQUIREMENTS BEFORE DOCUMENT OF TITLE IS ADMITTED AS SUFFICIENT PROOF
Mere production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration, 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 proposes to grant. (e) That the grant has the effect claimed by the holder of the instrument. Ayorinde v. Kuforiji (2007) 4 NWLR, Pt.1024, Pg. 341, Dosunmu v. Dada (2002) 13 NWLR Pt. 783, Pg. 1 Romaine v. Romaine (1992), 4 NWLR Pt. 238 Pg. 650, Kyri v Alkali (2001) FWLR, Pt 60, Pg. 1481 Dabor v. Abdullahi (2005) 29 WRM 11 SC 7 NWLR Pt. 923, Pg. 181. — O.O. Adekeye, JSC.
⦿ PARTY CANNOT RAISE NEW ARGUMENT FOR THE FIRST TIME ON APPEAL WITHOUT LEAVE
A counsel cannot make out a case not pleaded by a litigant in his address before the court. Where the appellant did not predicate her case on customary law before the lower court, she cannot raise same here afresh before this court. The simple answer is that an appeal is not a new action but a continuation of the matter which is the subject – mater of the appeal. Hence an appellant cannot be allowed to set up a case different to that which was made out at the court below. This is because the appellate court would not have had the benefit of the opinion of the lower court on the issue. Eze V. A- G Rivers State (2001) 18 NWLR pt, 746, pg. 524 Ejiofodomi V. Okonkwo (1982) II SC 74 Dwege V. Iyamahan (1983) 8 SC 76 A-G Oyo State V. Fairlakes Hotels Limited (1988) 5 NWLR pt. 92, pg. 1 FRN V. Zebra Energy Limited (2002) 3 NWLR pt. 754, pg. 471. — O.O. Adekeye, JSC.
⦿ REQUIREMENT FOR VALID SALE OF LAND UNDER NATIVE LAW & CUSTOM
Under Native law and custom the requirements for a valid sale are:- (a) Payment of purchase price (b) Purchaser is let into possession by the vendor (c) In the presence of witnesses. It is not necessary to have a written contract or conveyance as under English law. Adesanya V. Aderounmu (2000) 6 SC pt.2, pg, 18, Elema V. Akeuzua (2000) 6 SC pt, 3, pg. 26. — O.O. Adekeye, JSC.
⦿ LAND – REGISTRABLE INSTRUMENT NOT REGISTERED CREATES EQUITABLE INTEREST
It is however trite law that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered has thereby acquired an equitable interest which is as good as legal estate. This equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. Nsiegbe v. Mgbemena (2007) 10 NWLR pt. 1042, pg. 364, Okoge v. Dumez (Nig.) Limited (1985) 1 NWLR, pt. 4, pg. 783. — O.O. Adekeye, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Aloma Mariam Mukhtar, J.S.C.
⦿ FOR THE APPELLANT
Mr. M. L. Hanafi.
⦿ FOR THE RESPONDENT
Mr. Olalekan Yusuf.
➥ CASE HISTORY
This is an appeal against the judgment of the Court of Appeal, Ilorin, Division which allowed the appeal of the defendants from the court of first instance. The plaintiff’s case in the High Court of Kwara State is in respect of a two storey building known as WO15 Sadiku Road, Kulende, Ilorin, which the 1st defendant/respondent sold by auction. The plaintiff bought the land upon which she built 30 rooms, from one Alhaji Sule Tahiru. The sale agreement was in the name of the appellant and was witnessed by her brother, the 3rd defendant who mortgaged the property to the 1st defendant, without her knowledge and consent since the documents were in his possession.
She claimed the following reliefs against the defendants:- (i) A declaration that the purported sale of the plaintiffs house lying and situate at Kulende, behind Goodwill Hotel on 28/11/94 by the 2nd Defendant acting on behalf of the 1st Defendant is illegal unconstitutional, null and void. (ii) An order setting aside the sale of the said house. (iii) A declaration that the purported mortgage of the plaintiff’s house by the 3rd Defendant to the 1st Defendant without her knowledge or consent is illegal unconstitutional null and void. (iv) A perpetual injunction restraining the Defendants by themselves their agent or any other person howsoever in respect of the said building. (v) Damages of Fifty Thousand Naira (N50,000.00) for the unlawful act and embarrassment caused to the plaintiff’s person.”
The 1st and 2nd defendants denied the case of the plaintiff. At the close of pleadings, the parties adduced evidence which were evaluated by the learned trial judge, who at the end of the day gave judgment in favour of the plaintiff, and granted the reliefs sought.
The defendants appealed to the Court of Appeal, Ilorin Division, which allowed the appeal.
➥ ISSUE(S) & RESOLUTION
I. Whether the Appellant’s exhibit is inadmissible?
RULING: IN RESPONDENT’S FAVOUR.
A. “The receipt has nothing that connects the appellant, and it is neither a purchase receipt nor an agreement as claimed in paragraph (7) of the reproduced pleading above. The name of the appellant is not reflected on it, nor is the identity or description of the land in controversy mentioned. Even though the name of Alhaji Tahiru Sule is on the receipt, the remaining content of Exh. 1 does not correspond with the averments in paragraphs 6 and 7 of the statement of claim supra. Exhibit 1 is not an agreement and does not fall within the description of it, nor does the evidence of the plaintiff which I have reproduced above.”
B. “I will now go back to the argument on the purported pleading of the said Exhibit 1. The averments reproduced above are not in tandem with what was produced as an evidence of purchase. They are not reconcilable. Pleadings are meant to be specific and documents sought to be relied upon must be specifically pleaded, but in the instant case, exhibit 1 was not pleaded. See Mandilas and Karaberis Ltd v. Otokiti 1963 1 All NLR 22. On the objection of the learned counsel that Exhibit 1 was not pleaded, the learned trial judge should have rejected it, in view of the averments, for it was definitely not pleaded. It is an elementary principle of law that parties are bound by their pleadings, as the main aim of pleadings is to put the other party on notice of what to meet at a trial, so that it would also be well prepared and not taken by surprise. Anything outside the pleadings that is sought to form part of the trial must be ignored as it goes to no issue. See Odumosu v. A.C.B. Ltd (1976) 11 SC page 261, Ebosie v. Phil-Ebosie (1976) 7 SC page 119, and Ojeh v. Kamalu (2005) 18 NWLR Part 958 page 523.”
C. “For the 3rd Defendant who is respondent herein there is Exhibit D2 a Dead of Conveyance which though stamped, was not registered. Having regard to the fact that it was not registered, it was inadmissible as evidence of title. It was however admissible in proof of the transaction between the within named parties in which the sum of N1,000.00 was paid for the land.”
II. Whether the learned Court of Appeal Justices were right, in reversing the judgment of the learned trial judge on the ground that the appellant failed to prove her title to the property in dispute?
RULING: IN RESPONDENT’S FAVOUR.
A. “I will start with the treatment of the learned counsel argument on the nature of the sale/acquisition of the land in dispute i.e whether the land in dispute was bought under customary law. I have examined the statement of claim, and nowhere in it have I seen any averment that neither stated that the transaction between the appellant and the said Alhaji Tahiru was under customary law, nor was it so alluded. I find the suggestion of learned counsel for the appellant that because the transaction was between two natives, and so it was governed by customary law ridiculous and incomprehensible, because nowhere in the statement of claim was it stated that the parties are natives. Consequently I fail to see the basis of this claim.”
B. “I am mindful that a party is not expected to plead evidence (see Obimianmi Brick and Stone (Nig.) Ltd v. ACB (1992) 3 NWLR Part 229 page 260, and Adegbite v. Ogunfaolu (1990) 4 NWLR part 146 page 578), but nevertheless such important and serious matter that touches on the root of the claim of title to land, must be or ought to be pleaded specifically. This, the plaintiff failed to do, and at this stage of the proceedings she is raising this issue freshly, without the leave of court. This practice is not allowed by the law, and the court will not accommodate it, for the law is trite that to raise a fresh issue on appeal a party must seek and obtain leave from the court. A party cannot at random stray into an argument that did not form part of the case in the lower court, and in the process seek to formulate a new and different case other than the one originally instituted. See Dweye v. Iyomahan (1983) 8 SC 76, University of Ibadan v. Adetoro (2000) 9 NWLR part 673 page 631, and Oshatoba v. Olujtan (2000) 5 NWLR part 655 page 159. At any rate, as I have already stated above, parties are bound by their pleadings, and the law expects that they should confine themselves within the periphery of their pleadings. In the instant case, since the appellant’s claim was not based on sale under customary law, the learned court couldn’t have adverted its mind to it and find on it.”
C. “The problem I seem to have here is, how the site plan could have been drawn and submitted to the Superintendent of Works, Ilorin on the same date the land was purchased. The speed at which this was done is questionable. As a result of this, I have my doubt that these exhibits have lent credence to the establishment of the acts of ownership and possession claimed by the appellant. Exhibits 4 – 22 that are rent receipts purportedly written and given to the tenants in the building on the land in dispute by the appellant are neither here nor there. None of them bears anything to link it to the address of the house in dispute. There is no nexus to this case other than that they bear the name of the appellant. Another point that is worthy of note is the fact that the receipts bear different addresses of the appellant, that are in the same Kulende Area of Ilorin, as the property in dispute. It seems the appellant has other various properties in the area, and the receipts may well be in respect of these various other properties, apart from the said Sadiku Street. In one exhibit the appellant’s address is No. 2, Olorunsogo Street, i.e. Onire, Kulende, Ilorin, and in another one it is No.2, Alagbon Street, Kulende, Ilorin. The exhibits are to my mind not cogent and reliable to establish the ownership of the property in dispute. I am at a loss as to why the appellant did not call any of the tenants as witness, to prove the identity of the house for which he was issued any of Exhibits 4 – 22. It is settled law that civil suits are decided on preponderance of evidence, and balance of probability. See Elias v. Omobare (1982) 5 SC. 25, and Woluchem v. Gudi (1981) 5 S.C. page 291.”
D. “Just as she did not consider it necessary to call the said Alhaji Sule Tahiru from whom she purportedly bought the land she eventually built on. Again, I am not satisfied that the said Exhibits 4 – 22 have proved ownership and long possession. The three ways under which the appellant predicated her claim for title have definitely not been established, and so her claim to the ownership of the property has not been proved. The learned Court of Appeal was therefore right in reversing the judgment of the learned trial judge, so my answer to this issue is in the affirmative.”
III. Whether exhibit D2 (the Respondents deed of conveyance) is admissible in proof of payment of money in the absence of any averment in the statement of defence that money was paid or acknowledged?
RULING: IN RESPONDENT’S FAVOUR.
A. “Could it be a coincidence that it was the same vendor that the appellant claimed sold her own properly to her that was also the vendor to the 3rd respondent I think not, for when one considers her evidence against the backdrop of the totality of the evidence adduced, one will be convinced that the property was the 3rd respondent’s property, otherwise why would Exhibit D2 bear the 3rd respondent’s name, and why would he use it to secure overdraft facilities I bear in mind the evidence of the appellant that the 3rd respondent apologized to her that he mortgaged the property in dispute because he was in need of the money. But then again, a pertinent question to be asked here, is if the property was the appellant’s what was the document of title (which did not bear her name) doing in possession of the third defendant, who held on to it to the extent of having the audacity to use it to obtain overdraft facilities from the 1st defendant. It is definitely fishy. I am satisfied that even though the document was not registered, and was so not admissible in view of the provision of Sections (2) and (15) of the Land Instrument Registration Law, it was admissible for the purpose of establishing the transaction between the vendor and the purchaser. In this respect, I endorse the finding of the learned Court of Appeal which reads thus:- ‘It is my considered view that exhibit D2 is admissible evidence to prove the fact that some money exchanged hands between the parties in Exhibit D2 – in this case N1,000.00 on account of the land transaction testified thereto.’”
IV. Assuming that the appellant failed to prove her title to the disputed property, was the court of Appeal right in dismissing the Appellant’s claim on damages and injunction for the unlawful act committed against the property regards being had to the fact that the Appellant’s possession of the property is not disputed?
RULING: IN RESPONDENT’S FAVOUR.
A. “The issue and argument will to my mind be necessary only if the appellant proved exclusive possession to the property in dispute. It has been decided in this judgment that the appellant has failed not only to prove title to the property, but also she has failed to establish exclusive possession which is a sine quo of success in a claim of trespass. The argument by the learned counsel for the appellant and the cases of Adegbite Ogunfoolu (1990) 4 NWLR part 146 page 578, and Eketresu v. Oyebebere (1992) 9 NWLR part 266 page 438 cited by learned counsel for the appellant are of no relevance and assistance to the appellant.”
“In the circumstances, this issue is resolved in favour of the respondents, and ground of appeal No. (7) from which the issue is distilled fails and it is dismissed. The end result is that the appeal fails in its entirety and it is dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)