Gerhard Huebner Vs. Aeronautical Industrial Engineering And Project Management Co. Ltd (Aiep/dana) (2017)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALINJE J.S.C.
The Appellant herein was the plaintiff at the Kaduna State High Court (hereinafter to be referred to as the trial Court). At paragraph 19 of his statement of claim dated 17th of May, 1995 and filed on the 24th of October, 1996, the appellant claimed against the Respondent, the following reliefs:-
i) A declaration that the Defendant holds the legal estate in the land at Kajuru bought by the plaintiff in its name upon a resultant trust to the benefit of the plaintiff.
ii) A declaration that the defendant is consequently obliged to comply with the instructions of the plaintiff in respect of the transfer of the legal estate in the said land.
iii) A declaration that the issue of certificate of occupancy in favour of the defendant in respect of the land does not affect the position of the defendant as Trustee nor that of the plaintiff as beneficiary of the legal estate.
iv) An injunction compelling the defendant to comply with the plaintiff’s instruction concerning the transfer of the legal estate in the said land to Kajuru Nigeria Ltd.
v) Alternatively to
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(i) above a declaration that the receipts applications and certificates of occupancy issued in the name of the defendant are null and void being instruments issued pursuant to and based upon an illegal, void and or voidable transaction/arrangement.
vi) A perpetual injunction restraining the defendant from interfering with the interest of the plaintiff and possession of the said land.”
The Respondent denied the claims as enumerated above and stated that they were frivolous, vexatious and constituted an abuse of Court processes and should be dismissed. Issues having been joined between the parties, the case proceeded to trial. At the end of the trial which spanned slightly over 6 years and in a reserved and considered judgment delivered on the 5th of November, 2002, the appellant’s claims were dismissed in its entirety for lack of merit. The Appellant’s appeal to the Court of Appeal was equally dismissed on the 11th May, 2006.
The appeal herein is against the decision of the Court of Appeal (henceforth to be referred to as the lower Court). The notice of appeal at page 703 of the printed record of this appeal dated and filed on the 12th of May, 2006
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contains three grounds of appeal.
Parties filed and exchanged briefs of argument. Mr. R.A Oluyede, learned counsel for the Appellant, who also settled the Appellant’s amended brief of argument dated and filed on the 13th May, 2015 formulated two issues for determination of this appeal as follows:-
- Whether the Court of Appeal was right to confirm the trial Court’s exclusion of documentary and oral evidence which were adduced by the Appellant before the trial Court to establish circumstances by which it may be implied that the Respondent held the legal estate in the subject – property upon a resultant constructive trust in his favour.
- Whether the Court of Appeal was right to hold that the Appellant was obliged to prove an implied resultant constructive trust by “credible and reliable evidence” showing the “grant” by him and “acceptance” by the defendant of the trust.
Mr. S. A Adeniran, learned counsel for the Respondent who also settled the Respondent’s brief of argument also formulated two issues for the determination of this appeal and they read as follows:-
- Whether the Court of Appeal was right to confirm the trial
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Court’s finding at law and upon the facts and circumstance of the case before the trial Court that the documentary evidence before it (i.e trial Court) as borne out by Exhibits A1, A2 and A3 being the Kachia local Government Certificate of Occupancy and the Kaduna State certificate of Occupancy respectively cannot be varied or altered by oral or extrinsic evidence as sought by the plaintiff/appellant to establish a “resultant or implied or constructive trust in his favour.
- Whether the Court of Appeal was right to hold that the Appellant has the onus of proof as required by law (i.e standard of proof in civil proceedings) to prove an implied resultant/constructive trust by credible and reliable evidence.
Learned counsel for the Appellant filed a reply brief of argument on the 5th of November, 2015 and same was deemed properly filed and served on the 17th January, 2017 .
The issues formulated by both parties are similar. The main thrust of the Appellant’s case is that there is between him and the Respondent a relationship based on constructive trust in relation to the disputed property. Having read through the record of
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appeal and the briefs of argument filed by the respective parties, I am of the firm view that the only issue calling for the determination of this appeal is whether the lower Court was right when it dismissed the Appellant’s appeal for failure to adduce sufficient evidence in proof of his claim that the Respondent is holding the legal estate upon an implied trust in respect of the disputed property for his benefit by implication of law.
Before I delve into the argument of counsel in this appeal. I wish to set out in brief the fact of this case. Sometimes in 1975, the District Head of Kajuru District in Kachia Local Government Area of Kaduna State, acting on the instruction of the Emir of Zaria granted permission to the Appellant to build a temporary weekend hospitality resort on a hilltop in Kajuru Village. The Appellant initially built a temporary structure. Later he built a permanent structure which he named “The Kajuru Castle”. As a result of the desire to expand the business, the Appellant sometimes in 1981 commenced negotiation through the agency of the District Head to purchase the
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land surrounding the said hill measuring 70 hectares. He was in the final stages of the negotiation, when in 1986 he was appointed the Managing Director of the Respondent. Being a German, the Appellant was advised to buy the land in the Respondents name as it was unlawful for him to hold a legal estate in Kaduna State. The Appellant heeded the advice and purchased the land in the name of the Respondent. The receipt which evidenced the purchase of the said land was issued in his name and the name of the Respondent.
Subsequently a certificate of occupancy dated 1st of January, 1997 was issued to the Appellant by Kachia Local Government. This certificate was used in applying for a statutory certificate of occupancy from Kaduna State Government. The application was successful and a certificate of occupancy dated 6th March. 1999 was issued by Kaduna State Government. Both certificates were issued in the name of the Respondent and were admitted in evidence at the trial Court as Exhibits A1 and A3 respectively.
In his argument, learned counsel for the Appellant submitted that the evidence before the trial Court clearly established that the disputed
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property was purchased and developed with the Appellant’s private resources and that Exhibits A1 and A3 were admitted in evidence to establish the capacity of the Respondent as an implied trustee for the benefit of the Appellant and that the lower Court was wrong when it relied on Section 132(1)(a) of the Evidence Act and held that the testimonies of PW1- PW14 cannot vary Exhibits A1 and A3 which were issued in the name of the Respondent.
Learned counsel faulted the advice given to the Appellant against holding legal estate in Nigeria and contended that the provision under the Land Tenure Law which forbids aliens from acquiring legal estate in land in Northern Nigeria was abrogated by the Land Use Act 1978. In a further argument, learned counsel cited Sections 5(1) and 6(1) of the Land Use Act and submitted that the words “any person” used in those sections include aliens as well. According to the learned counsel, implied trust is an equitable conversion of the holder of the property into a trustee by operation of law, as such the question of leading evidence to prove a grant and ‘acceptance’ does not arise. In aid, learned counsel cited Ezeanah
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v Atta (2004) 7 NWLR (Pt. 468).
Finally, learned counsel urged this Court to allow the appeal and set aside the decision of the lower Court.
In his argument, learned counsel for the Respondent submitted that the oral testimony of the Appellant cannot vary the contents of Exhibits A1 and A3 which were clearly issued in the name of the Respondent and that the Appellant on the authority of Ughutevbe v Shonowo & Anor (2004) ALL FWLR (Pt.220) 1185 At 1211 – 1212 Paragraphs E-A, failed to establish before the lower Court the existence of any legal relationship between him and the Respondent, as such he is not entitled to judgment in his favour. Learned counsel also cited in aid the authorities in Anayelugo v Ogunbiyi (1998) 6 SCNJ 102; Abraham v Agbetola (1997) 5 SCNJ 94.
The lower Court in its lead judgment delivered by my Lord, Sanusi, JCA (as he then was) at page 694 of the printed record of this appeal. held:-
“I will however add that issue of existence of trust resultant or implied had not been duly proved by the plaintiff/appellant by any credible evidence. It is the plaintiff who said that he granted the landed property in trust to
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the defendant company. There was no evidence produced by the plaintiff such as resolution by the defendant’s Board or any document establishing such trust in that regard wherein the defendant company to which the plaintiff was a Managing Director, accepting such regard. In the surrounding circumstance of the instant case therefore I hold that there was no credible and reliable evidence showing that an implied resultant/constructive trust existed in favour of the plaintiff.”
The claims of the Appellant have been reproduced elsewhere in this judgment. Appellant did not set out a claim for declaration of title. His principal claim is for a declaration that the Respondent holds the legal estate in the Land at Kajuru bought by him, the Appellant, in the Respondent’s name upon a resultant trust to the benefit of the Appellant. Trust is defined at page 1513 of the Blacks Law Dictionary, 7th Edition as the right enforceable solely in equity to the beneficial enjoyment of property to which another person holds the legal title. Where a party claims certain property that is held in constructive trust for his own benefit, he has a duty to prove that the title document
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in possession of the trustee is valid and in proper custody. The moment he successfully contradicts and renders the title document in the name of the trustee invalid, his claim automatically fails, since the success of his claim depends largely on the validity of the documents of title in the name of the trustee. In the instant case, the evidence called by the Appellant at the trial Court was not meant to contradict Exhibits A1 and A3. On the contrary such evidence was called to strengthen those exhibits and was meant to justify the role the Appellant played towards the acquisition of the property and Exhibits A1 and A3. To that extent. the provision of Section 132 of the Evidence Act was cited out of con before the lower Court, and so I hold.
A constructive or implied trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstance that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. See Beatty v Guggenheim Exploration Co. 122 N.E 378, Black’s Law Dictionary 7th Edition, Page 1513. In Kotoye v Saraki (1992) NWLR
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(Pt. 264) 156, (1992) 11/12 SCNJ 26, this Court held that constructive trust, as in this case, imposed by equity on the ground of conscience and is not based on the prior presumed intention of the parties. See Ughtevbe v Shonowo (supra); Ibekwe v Nwosu (2011) 9 NWLR (Pt. 1251) 1 at 5 Paragraphs A-C.
An implied trust founded upon the unexpressed intention of the settlor and same is raised and created by implication of law from the surrounding circumstances of the case. It does not require agreement between the settlor and trustee. See Adekeye v Akin Olugbade (1987) 3 NWLR (Pt. 60) 214 at 227; Kotoye v Saraki (1994) 2 NWLR (Pt. 357) 414 at 443 Paragraph H. Constructive trust is neither granted nor accepted, but it is foisted upon the parties by the operation of law. To that extent, the question of whether the Appellant produced evidence of the resolution of the Board of the Respondent authorizing such a trust does not arise at all.
Trust involves three elements, namely:-
- A trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another.
- A beneficiary to whom the trustee owes equitable
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duties to deal with the trust property for his benefit.
3 Trust property, which is held by the trustee for the beneficiary. See Black’s Law Dictionary, Page 1513.
From the evidence available at the trial Court, it will appear that the appellant did acquire the disputed property with his personal money in the name of the Respondent. This is so because the property in dispute was acquired between 1976 and 1985 before the Appellant became the Managing Director of the Respondent in 1986. Also DW1, a witness called by the Respondent admitted under cross examination, the following at page 313 thus:-
“I confirmed that Mr. Huebners name was erased from Exhibits A1. When I got to Kachia Local Government to collect Exhibits A1, I saw Mr. Huebners name on the document, and I observed that Mr. Huebners name ought not to be in the document. I made this observation to the staff of Kachia Local Government. And because of this observation, I did not collect the document that day. When I went to collect the document finally, Mr. Huebners name had been erased from the document and AIEPs name was put in its place. I played no role
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at all in obtaining Exhibits A3.”
Having come to the conclusion that the disputed property was acquired by the Appellant, the question that agitates my mind is whether the Appellant was qualified and had the capacity to hold legal estate in land in Nigeria. The law is settled that equity does not operate in vacuum. In answer to this question, learned counsel for the Respondent submitted that the Appellant knew and had consistently maintained the fact that he as an alien cannot hold title to land by virtue of the relevant provisions of the Nigerian Law relating to landed property. Learned counsel further submitted that since the Appellant is barred from holding title to land under the Land Use Act 1978, he could not hold any legal interest over the disputed property which is capable of being entrusted to the Respondent. In aid, learned counsel cited the case of Chief S. O Ogunola & 6 Ors v Hoda Eiyekole & 9 Ors (1990) 4 NWLR (Pt. 146) 632 at 642 paragraphs B-D. In that case, my learned brother Olajide Olatawura (JSC) of blessed memory who delivered the lead judgment, said:-
“The learned trial Judge in interpreting Section 36(1) of the Land Use Act placed much reliance
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on the word ANY to include foreigners – Section 1 of the Act specifically limits its benefits to Nigerians. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy because that Section 36(1) provides for ANY PERSON: Aliens are not Nigerians. I reproduce Section 1 of the Act if only to re-emphasize that the Act was promulgated for the benefit of Nigerians:
“1. Subject to the provision of this Decree, all land comprised in the territory of each State in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provision of this Decree.”
In their concurring judgment, my lords Obaseki, Karibi Whyte and Wali JJSC agreed entirely with the view expressed by Olatawura JSC. Agbaje JSC dissented. At page 656, he held:-
“In my judgment a non-Nigerian who is a holder of land is entitled to the benefits of Section 36{1) of the Act provided the non-Nigerian in the words of the definition section of the Act is a person entitled to a right of occupancy or a person to whom a right of
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occupancy has been validly assigned.”
Learned counsel for the Appellant has urged this Court to adopt the dissenting view of Agbaje JSC as it is more in accord with the law that creates trust. In alternative learned counsel invited this Court to look further into this matter and if necessary depart from the relevant holding, especially the dictum of Olatawura JSC. I wish to state clearly that the views expressed by my lord Agbaje JSC was raised in a dissenting judgment. A dissenting judgment, however powerful, learned and articulate is not the judgment of the Court and therefore not binding. The judgment of the Court is the majority judgment which is binding. See Orugbo v Una (2002) 16 NWLR (Pt. 792) 175 at 208 Paragraphs B-C. The law under which the case of Ogunola & Ors v Eiyekole (supra) was decided, that is the Land Use Act 1978, has not been repealed or altered. It is still the extant law that regulates land administration in this country. The call therefore on this Court to depart from the said decision is without merit. I entirely associate myself with the decision of my learned brothers in Ogunola & Ors v Eiyekole (Supra) and hold that the
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Appellant being an alien had no legal capacity to hold interest in land in Kajuru Local Government Area of Kaduna State. This being so and by virtue of the Latin Legal Maxim, Nemo dat quod non habet, the Appellant cannot benefit from property which he was incapable of owning.
Finally, Kajuru Nigeria Ltd is not a party to this appeal. and was not made a party to this case at the trial. The law is settled that a Court can only exercise its jurisdiction or power over parties before it and strictly in respect of the case between them upon issues raised and reliefs sought. It cannot do so concerning, and to the extent it may affect persons who are not parties before it and must resist the temptation to make pronouncement to that end. The Court must confine its decision to the parties and their claims. See Ojogbue v Nnubia (1972) 1 ALL NLR (Pt.2) 226; Ochonma v Unosi (1965) NMLR 321; Labide v Regd. Trustee Cherubim & Seraphim (2003) FWLR (Pt. 142) 89 at 105 Paragraphs G-H; Intercontractors (Nig) Ltd v UAC of (Nig) Ltd (1988) 2 NWLR (Pt. 76) 303; Green v Green (1987) NWLR (Pt 61) 481. I therefore agree with the learned counsel for the Respondent that the lower
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Court was right when it upheld the refusal of the trial Court to compel the Respondent to comply with the Appellant’s instructions concerning the transfer of the legal estate in the land to Kajuru Nigeria Limited.
Based on the reasons I have set out in this judgment, the sole issue formulated by me for determination of this appeal is resolved against the Appellant. In the result, this appeal shall be and it is hereby dismissed
I make no order as to costs.
SC.198/2006
