Anthony Aruna Braimah Vs Alhaja Nimota Abiola A. Abasi & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

This matter has a chequered history. The action commenced on 14th December 1976 when the plaintiff Alhaja Nimota Abiola Abegbe Abasi (who is now respondent in this appeal) issued a writ of summons in the High Court of Lagos State claiming from Anthony Aruna Braimah (now appellant) and the Registrar of Titles, as 1st and 2nd defendants respectively:-

”1. Declaration that the deed of transfer dated 31st October, 1967 of her property registered as title No. MO 6008 to Alhaja Ayisatu Adenike Majekodunmi is void for fraud the signature of Nimota Abiola Abegbe Abasi thereto having been forged.

2. Declaration that the further deed of transfer dated 29th August, 1968 to Anthony Aruna Braimah is void as Alhaja Ayisatu Adenike Majekondunmi had no title to transfer.
3. Rectification of the register of titles by expunging therefrom, the name of the first defendant as proprietor of the said land reinstating instead the plaintiff’s name, alternatively a declaration that the plaintiff is entitled to be indemnified by the Registrar for her loss.”

Pleadings were filed and exchanged. The 1st defendant, Anthony Arona Braimah, subsequently, with leave of court, amended his statement of defence to which the plaintiff filed a reply.

The action proceeded to trial before Ayorinde J. (as he then was) who on 7th October, 1982 in a reserved judgment found for the plaintiff and entered judgment in her favour in terms of her claims. Being dissatisfied with the judgment, the 1st defendant appealed to the Court of Appeal. That court (coram: Ademola, JCA, Nnaemeka-Agu and Kutigi, JJCA, as they were then) on 13th January 1986 allowed the appeal on the ground that the trial Judge delivered his judgment outside the 3-month period laid down in section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 as it stood before the amendment effected by Decree No. 17 of 1985 which came into operation on 27th August 1985. A new trial was ordered by the Court of Appeal.

The new trial came before Oguntade, J. (as he then was). After evidence had been led on both sides and learned counsel for the parties had addressed the court, the learned Judge, in a well considered judgment delivered on 9th March 1987, found for the plaintiff and entered judgment in her favour in terms of her claims.

The 1st defendant was unhappy with the judgment of Oguntade, J. and appealed once again to the Court of Appeal. This time, that court, on 6th January 1992, dismissed the appeal and affirmed the judgment of Oguntade, J.

It is against this judgment that the 1st defendant has further appealed to this court upon 4 grounds of appeal. In his brief filed pursuant to the rules of this court he has formulated the following questions as calling for determination in this appeal, that is:

“(a) proof of identity of the original grantee;

(b) burden of proof of fraud; and

(c) purchaser for value without notice.”

The plaintiff, in her own brief, raises the following four questions which are not dissimilar to the three broad headings argued in the 1st defendant’s brief:

“1. Whether the respondent has established a right to rectification of the titles register.

2. Whether the appellant is a bona fide purchaser for value of the legal estate.
3. Whether the appellant has established the existence of another person with names identical to the respondent’s: Alhaja Nimota Abiola Abegbe Abasi.
4. Whether an allegation of fraud, in the circumstances of this case, must be proved beyond reasonable doubt.”

At the oral hearing of this appeal, the learned Chief Justice of Nigeria, who presided, drew the attention of learned counsel for the parties to the fact that Kutigi JSC (a member of the panel hearing the appeal) took part in the hearing of the first appeal to the Court of Appeal and would want to know if any party was objecting to his participating in the hearing of the present appeal. Both counsel indicated they were not objecting to Kutigi JSC’s participation. This is understandable as the issue of law involved in the first appeal to the Court of Appeal was different to the issues now to be resolved in this appeal.

The 2nd defendant who took no part in the appeal to the Court of Appeal also took no part in the hearing of the present appeal. No brief was filed on his behalf nor was he represented by counsel at the hearing, even though all relevant papers, including hearing notice, were served on him.

Learned counsel proffered oral arguments in further expatiation of the submissions in their respective briefs. Before proceeding with a consideration of the arguments advanced by learned counsel, I think it is appropriate at this stage to give a short resume of the facts.

The plaintiff, Alhaja Nimota Abiola Abegbe Abasi was at one time a wife to Mr. Adebiyi Majekodunmi, a legal practitioner but now deceased. While they were living together as husband and wife, the plaintiff sometime in 1965 or thereabout applied to the Lagos Executive Development Board (LEDB, for short) for a plot of land in Surulere to be allocated to her. In response, the LEDB allocated to her plot No. 122 in Animashawun Estate, Surulere and demanded from her the purchase price of 556 Pounds (now N1,112.00). She paid the purchase price through her husband who acted throughout as her agent in the purchase of the land. The LEDB conveyed the land to her by a deed of conveyance dated 1st December, 1965 signed by the Board’s Chairman. The deed (Exhibit 1) bearing her names was registered as title No. MO 6008 in the Lagos registers of titles. The plaintiff entrusted to her husband, Mr. Majekodunmi, the safe custody of the document of title.

Relations soon went sour between the couple resulting in the plaintiff living apart from the husband. She, however, continued to visit the land. When Mr. Adebiyi Majekondunmi died in 1975 (two years after the plaintiff left him), the plaintiff approached Mrs. Majekodunmi and her daughter (P. W.1) who were the administrators of his estate for the return to her of her title document No. MO 6008. When she was told that the document could not be found among his papers, the plaintiff caused a search to be made in the Lands Registry. It was discovered that the owner of the title deed had, by Exhibit 2, purportedly sold the land to one Alhaja Ayisatu Adenike Majekodunmi, who in turn had sold the same to the 1st defendant. The plaintiff then instituted the action leading to this appeal against the 1st defendant and the Registrar of Titles as 2nd defendant. Learned counsel think it is appropriate at this stage to give a short resume of the facts.

The plaintiff, Alhaja Nimota Abiola Abegbe Abasi was at one time a wife to Mr. Adebiyi Majekodunmi, a legal practitioner but now deceased. While they were living together as husband and wife, the plaintiff sometime in 1965 or thereabout applied to the Lagos Executive Development Board (LEDB, for short) for a plot of land in Surulere to be allocated to her. In response, the LEDB allocated to her plot No. 122 in Animashawun Estate, Surulere and demanded from her the purchase price of 556 Pounds (now N1,112.00). She paid the purchase price through her husband who acted throughout as her agent in the purchase of the land. The LEDB conveyed the land to her by a deed of conveyance dated 1st December 1965 signed by the Board’s Chairman. The deed (Exhibit 1) bearing her names was registered as title No. MO 6008 in the Lagos registers of titles. The plaintiff entrusted to her husband, Mr. Majekondunmi, the safe custody of the document of title.

Relations soon went sour between the couple resulting in the plaintiff living apart from the husband. She, however, continued to visit the land. When Mr. Adebiyi Majekondunmi died in 1975 (two years after the plaintiff left him), the plaintiff approached Mrs. Majekodunmi and her daughter (P.W.1) who were the administrators of his estate for the return to her of her title document No. MO 6008, When she was told that the document could not be found among his papers, the plaintiff caused a search to be made in the lands registry. It was discovered that the owner of the title deed had, by Exhibit 2, purportedly sold the land to one Alhaja Ayisatu Adenike Majekodunmi, who in turn had sold the same to the 1st defendant. The plaintiff then instituted the action leading to this appeal against the 1st defendant and the Registrar of Titles as 2nd defendant.

At the trial, plaintiff denied executing Exhibit 2 and denied selling her land to Alhaja Ayisatu Adenike Majekodunmi or anyone else. She testified that Alhaja Ayisatu Adenike Majekodunmi was an old woman living in Abeokuta and was her mother-in-law being Mr. Adebiyi Majekodunmi’s mother. 1st defendant also testified that he did not know Alhaja Ayisatu Adenike Majekodunmi and that he carried out all negotiations leading to the sale of the land to him with Mr. Adebiyi Majekodunmi.

Identity of the original purchaser of the land:

Learned counsel for the Ist defendant made much weather, both in the courts below and in this court, of the fact that the plaintiff did not sign the deed of conveyance, Exhibit 1, by which the LEDB conveyed the land to the original purchaser. It is learned counsel’s submission that as the deed was not signed by the plaintiff, the purchaser must be one who signed it even though such person bore names similar to the plaintiffs. Learned counsel for the plaintiff countered that 1st defendant’s argument was mere conjecture or speculation as he failed to produce such a purchaser. The lower courts agreed with the plaintiff.

The plaintiff pleaded thus:

“1. The plaintiff is a trader and the proprietor of plot No. 122 in Animashawun Estate, Surulere, registered as title No. MO 6008 in the Lagos register of titles.

2. The said plot was sold and conveyed to the plaintiff as evidenced by a deed of conveyance dated 1st December, 1965 signed by the Chairman of the Lagos Executive Development Board and its Secretary.
3. The plaintiff paid for the plot of land an amount of 556 Pounds now N1,112.00 in 1965.
4. The said sum of 556 Pounds now N1,112,00 was handed by the plaintiff to her late husband Me. A.A. Majekodunmi who paid the money to the Lagos Executive Development Board on the plaintiffs behalf.
5. The plaintiff entrusted to the said Me. A.A. Majekodunmi the transactions with the Lagos Executive Development Board, the collection and safe custody of the document of title to the property.
6. The plaintiff later knew that the property was registered as title No. M06008.”

The 1st defendant denied paragraphs 1-5 above and averred in his pleadings –

“1. With reference to paragraphs 2,3 and 11 of the statement of claim, the 1st defendant avers that one Alhaja Nimota Abiola Abegbe Abasi (hereinafter called ‘the grantee’) with identical names with the plaintiff was the original proprietor of plot No. 122, Animashaun Estate, Surulere, Lagos registered as title No. MO 6008 (“the property’) in the lands register of titles, Lagos Lands Registry.

2. The 1st defendant avers that by a deed of indenture dated the 1st day of December, 1965 signed by all the parties thereto. The Chairman and Secretary of the Lagos Executive Development Board (now LSDPC) and the grantee, the land in dispute was sold to the grantee and accordingly conveyed to her by virtue of the said deed of indenture.”

The plaintiff led evidence in support of her averments but the 1st defendant did not adduce any evidence of the existence of any woman, other than the plaintiff, who was the purchaser to whom the LEDB sold the land. On the evidence before him, the learned trial Judge observed and found:

”In his address Mr. Molajo submitted that the submission by Mr. Ayanlaja that another person who bore identical names with the plaintiff had been the grantee of the land in Exhibit I was a mere speculation. I wholly agree with Mr. Molajo.

It is too much for me to imagine that another person not the plaintiff bore all four identical names with plaintiff and acted through Me. A.A. Majekodunmi who was plaintiff’s husband. The 1st defendant did not go beyond leaving the court to speculate on such possibility. No evidence of any kind was called by 1st defendant to show that any person by the names- Nimota Abiola, Abegbe Abasi other than the plaintiff ever existed. If such a person existed, where are her relations or personal representatives Did not anybody ever see her

It is in my view a most fanciful and unrealistic speculation. I reject it and find as a fact that it was the plaintiff who gave money to her husband Mr. A.A. Majekodunmi so that he could pay for the land on her behalf. I find as a fact that the plaintiff was the intended grantee in Exhibit 1.”

The court below, per Sulu-Gambari JCA, in affirming the above views of the learned trial Judge, said:

”It is the further contention of the appellant that the onus lies on the respondent to prove that there is no other person bearing those names than herself. I do not think so. The plaintiff already brought the action claiming that her title deed had been tampered with and somehow falsified. She led evidence to establish that she was the wife of late Chief Majekodunmi with whom the 1st appellant negotiated to buy off the property. If the 1st appellant claims that there is another person known by those names, I would suppose that that is a peculiar knowledge, the onus of establishing which must squarely rest on the 1st appellant.

The learned trial Judge also held that the contention that there is another person bearing all the names of the respondent was most fanciful and unrealistic speculation: the 1st defendant/appellant did not call the person who he claimed to be bearing all the names of the respondent; that it is too much of a coincidence for a person to bear all the four names of another. If such a person exists or existed, where did she live Where is she now or if she is dead, who can give evidence of her existence All these information were not supplied and the learned trial Judge did not find the defence put forward by the present appellant on this particular issue convincing.

I share the same view.”

It is the contention of learned counsel for the 1st defendant that by holding as above the courts below placed the burden of proof of the identity of the original purchaser on the 1st defendant rather than on the plaintiff. With respect, I do not accept learned counsel’s submission. No doubt the plaintiff had the primary duty of proving her case. The burden was on her to prove the facts she relied on in proof of her claim – see section 135 of the Evidence Act. But the burden is not static for section 137 provides:

“137(1) In civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the co un would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no mare evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”

The plaintiff, having proved that she purchased the land in dispute from the LEDB and was given, through her husband, a title document registered as No. MO 6008 and bearing her full names of Alhaja Nimota Abiola Abegbe Abasi, the onus, in my respectful view, shifted on the 1st defendant who averred that another woman, Other than the plaintiff, bearing the same names as on the title document was, in fact, the original purchaser. He led no iota of evidence in the discharge of the burden on him. I think the courts below are right in holding, on the evidence, that the person mentioned in Exhibit 1 as the purchaser is no other than the plaintiff. As was said by Sir Ademola, CJF (as he then was) in Nwabuoku v. Ottih (1961) 1 All NLR 487, 490; (1961) ANLR 507, 511; (1961) 2 SCNLR 232, 235;

“The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the respondent was in terms of his writ. In the absence of any evidence of rebuttal the appellant was entitled to judgment, and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent’s case.”

See also Aikhionbare v. Omoregie (1976) 12 SC 11; Okupe v. Ifemebi (1974) 3 SC 97, Atane v. Amu (1974) 10 SC 237. It is trite law that civil cases are decided on a preponderance of evidence; the onus of adducing further evidence is on the party who would fail if such evidence were not produced – see; Odulaja v. Haddad (1973) 1 SC 357. The plaintiff having adduced evidence to show that Exhibit 1 was issued to her, the burden shifted to the 1st defendant to lead further evidence that the document was, in fact, issued to someone else, as pleaded by him in paragraph 4 of his amended statement of defence. Having failed to do this, he cannot now complain that judgment was entered in plaintiff’s favour.

The 1st defendant premised his complaint on the fact that plaintiff, on her admission, did not sign Exhibit 1 but someone else did. It is argued that someone else must be the Alhaja Nimota Abiola Abegbe Abasi named in Exhibit 1 as the purchaser. This argument loses sight of the evidence of the plaintiff wherein, under cross-examination, she said:

“I did not sign any agreement with LEDB. My husband did everything on-my behalf.”

If the plaintiff’s husband, whose conduct in respect of transactions relating to the land in dispute would appear not to be beyond reproach, procured someone else to sign Exhibit 1 on behalf of the plaintiff knowing her to be illiterate, would this, per se, alter the fact that plot No. 122 in Animashawun Estate was sold and conveyed by LEDB to the plaintiff who, on the uncontradicted evidence before the court paid for same I rather think not. The situation might have been different if some other woman had come forward claiming to bear the names on Exhibit 1 and shown to have signed the document. That further evidence was not produced by the 1st defendant who had the burden to produce same. I agree entirely with the learned trial Judge when he said: “The conclusion I have come to is that Exhibit 1 is plaintiff’91s document notwithstanding that she did not sign it. She could properly in my view rely upon it. That being my view of the matter the bottom is knocked out of the 1st defendant’s case completely.”

Burden of proof of fraud:

By her pleadings, plaintiff claimed that Exhibit 2, the document by which the land in dispute was sold to Alhaja Ayisatu Adenike Majekodunmi, was a forgery in that although it was purported to have been executed by her but it was, in fact, not executed by her. I do not think the 1st defendant is seriously challenging the fact that plaintiff did not sign Exhibit 2.

Plaintiff, in her statement of claim, pleaded:

“10, Enquiries revealed that the land registered as title No, MO 6008 had been transferred to one Alhaja Ayisatu AdenikeMajekodunmi by documents on which the plaintiff’s names had been forged.

11. The plaintiff did not sign any deed of transfer and did not sell the land to anyone,
12. By a further forged deed of transfer the land was further transferred to Mr, Anthony Aruna Braimah of the Federal Ministry of Education, Lagos.”

And in her reply to the amended statement of defence of the 1st defendant, she further pleaded:

“2, The plaintiff will contend that even if the defendant is a subsequent registered owner he acquired no title in the property in dispute as his predecessor in title purported to acquire the property by fraud to wit – forgery of the plaintiffs name and signature.

5. The plaintiff denies executing any deed of transfer and puts the first defendant to the strictest proof thereof.
6. The plaintiff will contend at the trial that the first defendant is party to the fraud because he never made any attempt to check the genuineness of the purchase,”

Can it be said that plaintiff alleged that 1st defendant forged Exhibit 2 I do not think so, Her case simply was that Exhibit 1 conveyed the land in dispute to her and as she did not sign Exhibit 2, Exhibit 2 was a forgery and transferred no title in the land to Alhaja Ayisatu Majekodunmi who purportedly sold same to the 1st defendant. What I make of plaintiffs pleadings is that she accused the 1st defendant of negligence, in not checking on the genuineness of his purchase. That is, he did not make proper search before buying, It is not that he took part in the actual forgery of Exhibit 2,

The learned trial Judge found as a fact that plaintiff did not sign Exhibit 2, The court below affirmed this finding. It has not been shown to my satisfaction that these concurrent findings of fact of the two courts below is perverse, I am satisfied on the evidence that Exhibit 2 is a forgery and being so the transaction it purports to evidence is completely vitiated; it transferred no title to the transferee mentioned therein or to any other person. There is, in my respectful view, sufficient evidence to satisfy the requirement of section 138 of the Evidence Act as to proof beyond reasonable doubt. With respect to the learned counsel for the 1st defendant, I find no substance in the arguments advanced by him, both in his written brief and oral submissions, to the contrary. Purchaser for value without notice:

The 1st defendant contends that as he is a purchaser for value of the legal estate in the land in dispute without notice of any fraud, he has an unanswerable defence to the plaintiffs claim, This submission is predicated on the fact that plaintiff is not the original purchaser of the land and that Exhibit 3 transferred the legal estate in the land to him. As I have decided above, both premises are wrong. On the evidence available (i) the plaintiff has been proved to be the original purchaser, and (ii) Exhibit 2 not having been signed by her or on her authority is a forgery and, therefore, transferred no title to 1st defendant’s vendor. He is, therefore, not a purchaser of the legal estate. The defence, as found by the two courts below, is not available to him notwithstanding that he had no notice of the fraud perpetrated in this case.

My conclusion is that all the arguments advanced in favour of the 1st defendant fail. This appeal equally fails and it is dismissed by me. I affirm the judgment of the courts below and award N10,000 (ten thousand naira) costs of this appeal to the plaintiff/respondent against the 1st defendant/appellant.

UWAIS, C.J.N: I have had the advantage of reading in draft the judgment read by my learned brother Ogundare, J.S.C. I entirely agree that this appeal lacks merit and that it should be dismissed.

Accordingly the appeal is hereby dismissed with N10,000.00 costs to the plaintiff/respondent against the defendant/appellant.

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Other Citation: (1998) LCN/2789(SC)