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Chinye A. M. Ezennah V. Alhaji Mahmoud I. Atta (2004) – SC

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➥ CASE SUMMARY OF:
Chinye A. M. Ezennah V. Alhaji Mahmoud I. Atta (2004) – SC

by Branham-Paul C. Chima

➥ COURT:
Supreme Court – SC.226/2000

➥ OTHER CITATION:
(2004) 7 NWLR (Pt. 873) 468

➥ AREA(S) OF LAW
Resulting Trust.
Certificate of occupancy.
Promise of marry.

➥ NOTABLE DICTA
⦿ A PARTY WHO HAS JUDGEMENT CANNOT COMPLAIN EXCEPT BY APPEAL OR CROSS-APPEAL
A party who has judgment in his favour and who has not cross-appealed or who has not taken out a respondent’s notice is not entitled to raise any adverse issue arising from the judgment. The only way to show grievance of a judgment is by way of appeal and in certain cases by way of a respondent’s notice. In view of the fact that the appellant had judgment in the High Court, all that she should have done, if not satisfied with the statement of the trial Judge on the issue of payment of the processing fee ofN300.00 by the respondent was to commence a cross-appeal. In the absence of that, the appellant has to accept the decision of the High Court with all its sweetness and bitterness cum onere.  And what is more, the judgment before this court on appeal is the judgment of the Court of Appeal and not the judgment of the High Court. In the circumstances, I shall discountenance all the negative issues raised against the judgment of the learned trial Judge by counsel for the appellant. — N. Tobi, JSC.

⦿ TWO ELEMENTS OF BREACH OF PROMISE TO MARRIAGE
Two elements are necessary to constitute a breach of agreement or promise of marriage. First, the party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex. Second, the party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage. — N. Tobi, JSC.

⦿ THERE MUST BE REAL INTENTION BY OBVIOUS ACTS TO CONCLUDE AGREEMENT TO ENTER INTO MARRIAGE
Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology. Accordingly an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage. A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry.  While the law may at times require that an agreement to marry should be in writing, the law will be prepared to hold, in appropriate cases, that the parties intended to marry in the absence of any written agreement. In this respect, the court will take into consideration the institution of marriage as a trade in the relevant society and how persons generally engage themselves in agreement of marriage. In this regard, the law will be more stringent in agreement to enter into marriage under the Matrimonial Causes Act and to some extent under Islamic Law than agreement to enter into marriage under customary law. I say this because while the first two types of marriages have settled principles and formalities of marriage, the third one is essentially transient, depending upon the custom, cultures and ethos of a given society. — N. Tobi, JSC.

⦿ CERTIFICATE OF OCCUPANCY IS IN SUBSTANCE A TERM OF YEARS MAKING IT A LEASE
What is the legal basis of a certificate of occupancy? A holder of a certificate of occupancy holds the title to the property and subject only to the conditions stipulated in the Land Use Act. A certificate of occupancy creates a term of years absolute or a lease for a number of years stated therein. See Chiroma vs. Suwa (1986) 1 NWLR (pt. 19) 751. The greatest legal estate that can now subsist under the Land Use Act is a term of years. The grant of a term of years under a certificate of occupancy is in substance a lease. See Dr Otti vs. Attorney-General of Plateau State (1985) HCNLR 787. — N. Tobi, JSC.

⦿ CERTIFICATE OF OCCUPANCY IS A PRESUMPTION OF TITLE – BETTER TITLE REBUTS IT
In other words, a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the court can revoke it. See Osazuwa v. Oji (1999) 13 NWLR (Pt. 634) 286. See also Atta vs. Ezeanah (2001) FWLR (Pt. 49) 1489, (2000) 11 NWLR (Pt. 678) 363; Shogo vs. Adebayo (2000) 14 NWLR (Pt. 686) 121. — N. Tobi, JSC.

⦿ RESULTING TRUST IS BASED ON THE PRESUMED INTENTION OF THE PARTY
One other expression for resulting trust is implied trust. An implied trust is one founded upon the unexpressed but presumed intention of the settlor. Such trusts are also referred to as “resulting” because the beneficial interest in the property comes back or results to the person who provided the property or to his estate. — N. Tobi, JSC.

Available:  B.V. Magnusson v. K. Koiki & Ors. (1993) - SC

⦿ WHERE CONCURRENT FINDINGS OF FACT IS PERVERSE
It is trite law that where the findings of trial court and indeed the concurrent findings of the Judge and the Court of Appeal are perverse, this court can interfere and give the correct findings as the evidence in the record show. See Ajeigbe vs. Odedina (1988) 1 NWLR (Pt. 72) 584; Okonkwo vs. Okolo (1988) 2 NWLR (pt. 79) 632; lbhafidon vs. 1gbinosun (2001) FWLR (pt. 49) 1426, (2001) 8 NWLR (Pt. 716) 653. — N. Tobi, JSC.

⦿ WAYS TO PROVE OWNERSHIP OF LAND
In a civil claim of title to or ownership of land, for a party to succeed, he must prove his title in one of the five ways laid down in this court’s decision of Idundun vs. Okumagba (1976) 9-10 SC 227 followed by a long line of other decided authorities to the following effect:  Proof by traditional evidence  Proof by production of documents of title duly authenticated to prove title.  Proof by acts of ownership extending over a sufficient length of time, numerous and positive as to warrant the inference that the person is the true owner. Vide Ekpo vs. Ita 11 NLR 68.  Proof by acts of long possession and  Proof of possession of connected or adjacent land in circumstances probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. — Onu, JSC.

⦿ WHAT CONSTITUTES A RESULTING TRUST – CANNOT RELY ON RESULTING TRUST IF NOT PLEADED
For the definition of what constitutes resulting trust see the case of Shephard vs. Cartwright (1995) AC 431 at 445. See also Black’s Law Dictionary, 6th edition at page 1315. As clearly illustrated in the leading judgment of my learned brother, Tobi, JSC, there are no hard and fast rules about what amounts to resulting trust especially as it relates to land. Where it arises, the claimant of the piece of land must prove by hard and concrete evidence that he actually owned and/or was entitled to the land but voluntarily or involuntarily opted that the Title Deed or Deed of Assignment be made in favour of another in anticipation of a marriage of whatever the case may be. Where a party as in the instant case, fails to properly plead the issue of resulting trust (or any other trust) he cannot raise the issue at the address stage or on appeal as the evidence or arguments or submissions on facts not hitherto pleaded, go to no issue. — Onu, JSC.

⦿ RESULTING TRUST IS TRUST IMPLICIT IN THE CONDUCT OF PARTIES
Resulting Trust is a trust that can be readily deduced as being implicit in the conduct of parties but without express intent. Black’s Law Dictionary relies on the definition of a resulting trust as made out in the case of Lifemark Corp. vs. Newit Jx.  App. 14 Dist, 655 SW. 2d 310, 316 as a’ “trust that arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that person taking or holding that property should have the beneficial interest therein, unless inference is rebutted or the beneficial interest is otherwise effectively disposed of’. — Pats-Acholonu, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Tobi, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
O. Adesina (Mrs.).

⦿ FOR THE RESPONDENT
A.R. Ogunde, Esq.

➥ CASE HISTORY
The property is Plot 999 Cadastral Zone B6, Mabuchi District, Abuja. She applied for land in August 1992. File No. DT291 belongs to her. She completed the application form in her own handwriting and signed it. She paid an application fee of N300.00. That was in August 1993. Her signature is not on the portion meant for signature of applicant. It is the respondent’s signature and his name, apparently signing for the appellant. An additional fee of N6,700.00 was introduced by the Federal Capital Territory. She paid the fee, vide exhibits B and B1. Originals of exhibits B and B 1 were handed over to the respondent who was to follow up the application. Respondent sent to the appellant the certificate of occupancy for her signature. Respondent refused to give her the certificate of occupancy and started developing the land.

The appellant, as plaintiff, had filed action seeking for the following  reliefs: “A declaration that the plaintiff is the bona fide owner of all that Plot No. 999 Cadastral Zone B6, Mabuchi District Abuja. A mandatory order directing the defendant to hand over the Federal Republic of Nigeria certificate of occupancy No. FCT/ ABU/DT.291 covering the said plot to the plaintiff forthwith. A perpetual injunction restraining the defendant either by himself, his agents or privies howsoever called from further trespassing on the land. Two million naira (N2,000,000.00) as general damages for trespass on the said plot.”

Available:  Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

The learned trial Judge, after hearing evidence and the submission of counsel, gave judgment in favour of the appellant in respect of claims 1, 2 and 3. He refused claim 4 on general damages for trespass.

Dissatisfied, the respondent, as appellant, appealed to the Court of Appeal. The appellant as respondent, crossed appealed. The Court of Appeal overturned the decision of the High Court.

Dissatisfied, the appellant filed an appeal in this court.

➥ ISSUE(S) & RESOLUTION

***APPEAL ALLOWED

A. THAT CERTIFICATE OF OCCUPANCY WAS NOT IN RESPONDENT’S NAME
“It is clear from the above evidence that the certificate of occupancy was not issued in the name of the respondent. The evidence of PW1 and PW2 is clear that the certificate of occupancy was issued in the name of the appellant. Although the evidence of DW3 did not so indicate, that could be inferred from his evidence. What is clear in his evidence is that the certificate of occupancy was not issued in the name of the respondent. All he did was to send the certificate to him.”

“In short, all the indices in this case point to one direction and they are follows:- Application for the land was made in the appellant’s name. The land was allocated to the appellant. There is no evidence that both parties agreed to marry There is no evidence that the expenditure lavished by the respondent to continue to retain the affection of the appellant was in furtherance of marriage that was contemplated and planned or known and believed or agreed by both parties There are not in existence any facts to establish or show that there is now a resulting trust in consequence of the failure or arising out of the breach of promise to marry committed by the appellant.”

B. THAT THE RESPONDENT DID NOT PLEAD BREACH OF TRUST
✓ “It is clear from the wordings of Order 25, rule 5(1) of the Rules of Court that the breach of trust shall be pleaded. There is no such pleading in the statement of defence and that is prejudicial to the case of the respondent. It is trite law that rules of court must be followed and obeyed by the parties and the courts. See Solanke vs. Somefun (1974) 1 SC 41; Dr. Aina vs. Miss Aina (1986) 2 NWLR (Pt. 22) 316; Ibodo vs. Enarofia (1980) 5-7 SC 42; Olusesi vs. Dyelusi (1986) 3 NWLR (Pt. 31) 634; John vs. Black (1988) 1 NWLR (pt. 72) 648.” “I do not think the passage cited by learned counsel above is helpful to the case of the respondent. Lord Denning was careful in distinguishing between the pleading of the material facts as opposed to the legal result or legal consequence. I do not see where the respondent pleaded relevant facts in relation to the doctrine of resulting trust.”

✓ “In the case in hand, where an agreement of marriage between the appellant and the respondent was neither pleaded nor can be inferred, a resulting trust is out of the question and I so hold.”

C. THAT NO PROOF OF RESULTING TRUST IN THIS SCENARIO
✓ “Is there any evidence before this court that the respondent purchased the property in dispute for the appellant? Is there any evidence that the appellant holds the property in dispute in trust for the respondent? I do not see any such evidence. None of the three witnesses for the respondent gave such evidence. I do not see any relation of a settlor and a beneficiary in the relationship between the respondent and the appellant respectively.  Assuming without conceding that, the resulting trust was properly pleaded, the law could not have availed the respondent particularly in the absence of proof of an agreement of marriage between the appellant and the respondent.”

✓ Be it noted that the acceptance of exhibit C was duly signed by the appellant. There was no evidence on record that the respondent was the one who completed the land application forms, paid the initial application fees of N300 and equally the processing fees of N6.700.00.  DW2 in his evidence under cross-examination said “I do not know who made the payment of N6,700 to FCDA but made a refund of N6,700. This witness had on this same issue testified: “He said that he would get in touch with her (meaning appellant) to pay up the difference.”
From the foregoing piece of evidence it goes without saying that it was the appellant who made the payment of N6,700 in respect of this land. It is therefore my firm view that there was no basis for the learned trial Judge to have held as he did that “it follows that since the application for land cannot be submitted without the processing fee of N300.00 the defendant went through all the process by paying the fees and charges as they accrued till the certificate of occupancy was finally obtained.” It is for this reason that I share the appellant’s view that the court below, with utmost due respect ought not to have held that “the finding of fact by the learned trial Judge that the appellant procured the land in the name of the respondent … cannot be faulted.”

Available:  ALHAJA WULEMOTU AJIBONA v. ALHAJI SURAJUDEEN KOLAWOLE & ANOR (1996)

✓ “It is indisputed that the respondent assisted the appellant to facilitate the processing of the plot acquisition just as he did for other persons including DW2 and appellant’s sister. This, in the words of DW3, is normal since important personalities in this country are known sometimes to help other people to process their certificate of occupancy vide the evidence of PW1 to the effect that the applicant must obtain and complete an application form. The form, it is stressed, must be signed by the appellant, his attorney or agent, and has to be duly processed up to the stage of approval by the Minister after which a certificate of occupancy is then issued in the name of the applicant. Extant on the record is the fact that the appellant complied with the requirements for land allocation. Even the forwarding letter of exhibit D was in the name of the appellant. There is no iota of evidence to indicate that the application or the final allocation of land was all done pursuant to the purported marriage agreement as held by the court below. Where the holding or finding of a lower court, as in the instant case, is not supported by evidence, the Appeal Court is obliged to set same aside. See Latiko vs. Kutigi (1999) 3 NWLR (pt. 596) 509 at 510; Okeke vs. State (1999) 2 NWLR (Pt. 590) 246 at 259; Tokimi vs. Fagite (1999) 10 NWLR (Pt. 624) 588 at 591 and Olohunde vs. Aderoju (2000) FWLR (Pt. 42) 1355, (2000) 10 NWLR (pt. 676) 562 at 597”
.
.
.
✓ DECISION:
“In sum, this appeal succeeds and it is allowed. The judgment of the Court of Appeal is hereby set aside. I restore the judgment of the trial Judge. I order that the respondent pays the appellant the cost of N10,000.00.”

➥ MISCELLANEOUS POINTS
Per Pats-Acholonu JSC: “In fact this is a case that the respondent should have spared himself the agony of going through the court processes. For him, when the going was good he lavished love (I imagine it was reciprocated) money and eventually landed property on the appellant. When the tide turned, he fell back on non-existent agreement to marry and urged the court to go the extra mile of pronouncing the existence of a resulting trust. I refuse to lend hand to assuage the feelings of a lover whose romance went awry. The love that once bound these two people and now got frosted can be likened to verse xxxv of Shakespeare “sonnets” a sort of lamentation, and also verse 1 of “passionate pilgrim”. Thus we have in this case so much love and then so much pain. It is the way of the world.”

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ PLEADINGS ARE TO CONTAIN THE MATERIAL FACTS, NOT THE LEGAL RESULT
Lord Denning in Re Vandervell’s Trusts (No.2) (supra): “Mr. Balcanbe for the executors stressed that the point taken by Mr. Mills was ‘not covered by the pleadings. He said time and again: This way of putting the case was not pleaded. No such trust was pleaded.” And so forth. The more he argued, the more technical he became. I began to think we were back in the bad old days before the Common Law Procedure Acts 1852 and 1854, when pleadings had to state the legal result; and a case could be lost by the omission of a single averment. See Bullen and Leake’s precedent of pleadings, 3rd ed. (1868), P. 147. All that has been long swept away. It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present in argument any legal consequence of which the facts permit. The pleadings in this case contained all material facts. It does not appear that Mr. Mills put the case before the Judge; but this does not entail any difference in the facts only a difference in stating the legal consequences. So it was quite open to him.”

➥ REFERENCED (OTHERS)

End

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