Anthony Aruna Braimah v. Alhaja Nimota Abiola Abegbe Abasi & Anor

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.

I have read before now the lead judgment of my learned brother Ogundare, JSC and I agree with his reasoning and conclusion for dismissing the appeal.

The facts of this case as emerged from the pleadings and the evidence of the parties are not seriously in dispute.

Alhaja Nimota Abiola Abegbe Abasi who was one of the wives of late A. Majekodunmi Esq., and the plaintiff in this case, bought a plot of land through her late husband, from L.E.D.B. for the sum of 556 Pounds. This plot of land is plot No. 122 Animashawun Estate. Surulere, Lagos. The plaintiff entrusted Mr. Majekodunmi with the whole transaction. The plot of land was registered in plaintiffs favour as title No. MO 6008 and all the documents relating thereto were kept in custody of her late husband, Mr. Majekodunmi.

On the death of Mr. Majekodunmi the plaintiff demanded the release of the title documents of the said plot bought by her late husband on her behalf, from his senior wife and his daughter who were put in-charge of the

P.16

management of his estate. It was then discovered that late Majekodunmi had fraudulently first transferred the plot to Alhaja Ayisatu Adenike Majekodunmi, his mother and subsequently to Anthony Aruna Braimoh, the 1st defendant.

In her statement of claim, particularly in paragraphs 1, 2, 3, 4, 5, 9, 10, 11 and 12 the plaintiff averred 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 registers 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, Mr. A.A. Majekodunmi, who paid the money to the Lagos Executive Development Board on the plaintiff s behalf.
5. The plaintiff entrusted to the said Mr. A.A. Majekodunmi the transaction with the Lagos Executive Development Board, the collection and safe custody of the document of title to the property.
6. After the death of Mr. A.A. Majekodunmi, the plaintiff lodged a verbal claim with Mrs. Majekodunmi, and her daughter who the plaintiff learnt are in charge of the estate, that the land certificate No. 6008 was in the custody of Mr. A.A. Majekodunmi and that she wanted to collect it.
7. Enquiries revealed that the land registered as title No.

P.17

MO 6008 had been transferred to one Alhaja Ayisalu Adenike Majekodunmi 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 Braima of the Federal Ministry of Education, Lagos,”

In answer to the averments above, the 1st defendant, in his amended Statement defence, particularly paragraphs 5, 6, 7, 8, 9 and 10 pleaded as follows:-

”5. 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.

6. The 1st defendant further says that the grantee in like manner and style of execution as in the deed of indenture above referred to executed a deed of transfer on Lands Form 7 dated 31st October, 1967, to one Alhaja Ayisatu Adenike Majekodunmi (“the vendor”). The duly stamped deed of transfer was registered in the proprietorship register of the certificate of title No. MO 6008 and shall be founded upon at the trial of this action.
7. The 1st defendant (who is a civil servant) avers that sometime in 1968, he entered into discussion with a view to buying the property. The vendor and the 1st defendant agreed to a purchase price of 750 pounds (N1,500.00).

P.18

The 1st defendant thereafter applied to the African Staff Housing Board for a loan of 750 pounds (N1,500.00) to finance the purchase of the property. The 1st defendant will further show that the said housing board on behalf of the 1st defendant carried out a search at the Lands Registry, Lagos, on the property which showed that the vendor had no caution, charges or encumbrances against her title.

9. The 1st defendant will further show at the trial of this action that he eventually paid through the African Staff Housing Board to the vendor a sum of 750 pounds (N1,500.00). The 1st defendant says that as a result of this payment the vendor transferred the property registered under land certificate title No. MO 6008 to him by virtue of a duly executed deed of transfer on Lands Form 7 dated the 29th day of August, 1968. The deed of transfer was thereafter registered and noted on the proprietorship register of certificate of time No. MO 6008. The 1st defendant shall rely on the documents aforesaid at the trial of this action.
10. The 1st defendant avers that his interest in the property is adequately registered in accordance with the Registration of Titles Law Cap. 121 Laws of Lagos State and contends that as a subsequent registered owner of the property and as a bona fide purchaser for value without notice of any fraud or other irregular dealing, he acquired an indefeasible title to the property.”

The case proceeded to trial at the end of which Oguntade, J., as he then was, painstakingly considered and evaluated the evidence and arrived at the following conclusions:-

P.19

“The plaintiff gave her names as Nimota Abiola Abegbe Abasi. If the submission of Mr. Ayanlaja is correct, it then means that another person by the same names Nimota Abiola Abegbe Abasi was the grantee in Exhibit 1 because those are the names by which the grantee in Exhibit 1 received the grant.

It was not disputed that the plaintiff stated her true names to the court. The plaintiff testified that she received a letter of allocation to her of the land in dispute. She gave the letter and the sum of 556 Pounds to her husband the late Mr. A.A. Majekodunmi. Mr. Majekodunmi later collected on plaintiff’91s behalf documents in respect of the land. He kept them for plaintiff. The plaintiff said that she did not sign Exhibit I. The plaintiff also said that her late husband was a lawyer. When one checks the story of plaintiff as given against the contents of Exhibit 1, one gets the impression that the plaintiff spoke the truth. Plaintiff’s names in full appear on Exhibit 1. Her address was stated as c/o A.A. Majekodunmi. The said A.A, Majekodunmi signed as a witness and solicitor in Exhibit 1. Further the daughter of A.A. Majekodunmi testified as P.W.1. She said that plaintiff was the wife of her father and that the plaintiff could not sign the signature shown against her name in Exhibit 1. P.W.1, and plaintiff’s children had taught plaintiff how to sign her name and she was only able to do this in a crude form.

It is too much for me to imagine that another person not the plaintiff bore all four identical names with plaintiff and acted through Mr. 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

P.20

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 did she live? Where is she now? If she is dead 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 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 conclusion I have come to is that Exhibit 1 is plaintiffs (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 ease completely.”

As regards Exhibits 2 and 3 the document by which the property in Exhibit 1 was purportedly transferred by the plaintiff to Alhaja Ayisatu Adenike Majekodunmi and subsequently to the 1st defendant respectively, the learned trial Judge concluded thus on the issue:

“I have looked at the signature on Exhibit 2 myself. It is a most impressive inscription attributable to a skillful and experienced hand. It is certainly not the plaintiffs. The plaintiff from her demeanour and bearing is obviously an illiterate woman. She wrote her name before the court. See Exhibit 8. Although she wrote just about her first name Nimota, she did so under great efforts which took her some time. I am satisfied she spoke the truth. I find as a fact that the plaintiff did not sign Exhibit 2. Since I have held that the plaintiff is the person to whom the land was

P.21

allocated, only plaintiff could transfer it. Some person other than plaintiff purported to transfer the land to Alhaja Ayisalu Adenike Majekodunmi in Exhibit 2. No title passed to Alhaja Ayisatu Adenike Majekodunmi vide Exhibit 2 as the purported vendor had no title to pass to Alhaja Ayisalu Adenike Majekodunmi.

Since Alhaja Ayisatu Adenike Majekodunmi did not obtain any title vide Exhibit 2, she had no title to pass to the 1st defendant vide Exhibit 3. The 1st defendants bought nothing vide Exhibit 3.

I am therefore satisfied that the entry in the register which purports that the plaintiff sold her land and transferred same to Alhaja Ayisatu Adenike Majekodunmi was obtained by fraud/forgery:’ On the contention of the 1st defendant that he is a purchaser for value without notice of any fraud, the learned trial Judge remarked and concluded:-

“The thing to point out here is that a person putting forward the plea that he is a valuable purchaser for valuable consideration without notice almost invariably does so to protect the estate he has transferred to him. But where the deed of purchase or the transaction upon which the plea is founded transfers or confers no estate or title the plea is absolutely useless.

Once fraud or forgery is shown to have taken place before an estate is purported to be transferred to a defendant his acquisition will be invalidated.”

The relief claimed by the plaintiff including the rectification of the register of title were granted in her favour.

Aggrieved by this decision the 1st defendant appealed to the Court of Appeal, Lagos Division and in a considered

P.22

and unanimous judgment of that court delivered by Gambari JCA he dismissed the appeal after making the following findings on the vital issues raised and canvassed before them-

1. Identity of the original grantee of the plot of land in dispute.

“The plaintiff had 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 one 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 as most fanciful and unrealistic speculation: the 1st defendant/appellant did not call the person who he claimed to be bearing all 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.”

2. Purchaser/or value without notice

“I am in a total agreement with the learned trial Judge that where a plea of bona fide purchaser for value is being

P.23

made, there must be a valid transfer of the property to the man raising that plea. So where a deed of purchase or transaction upon which the plea is founded, transferred or conferred no estate or title to the purchaser for value, the plea is absolutely useless.

It follows therefore that once the fraud of forgery is established to have taken place before an estate is purportedly transferred to a person who calls himself a bona fide purchaser for value, the transfer so obtained will be rendered invalid.”

3. Burden of proof

“There is no doubt that the plaintiff/respondent in her pleadings alleged fraud. She gave evidence that she did not sign Exhibit 2 which is the main document to be proved to have been falsified in this case.

The learned trial Judge held, in my opinion quite rightly, that though the respondent did not sign Exhibit 1, having paid the purchase price of the land, she had substantial intention to purchase the land therefore Exhibit 1 is the plaintiff’s document notwithstanding that she did not sign it. She could also properly rely on it. There was no appeal specifically on that decision..

The learned trial Judge pointed out that the plaintiff/respondent did not plead that it was the defendants that forged the document. All that she did was to prove that her signature was forged on Exhibit 2 or that someone (surely not herself) who had not acted on her instruction and on her behalf falsely signed Exhibit 2. This piece of evidence was not challenged.”

The learned JCA proceeded to consider both section 61(1)(d) of the Registration of Titles Law of Lagos State

P.24

and section 37(1) of the Evidence Law and concluded-

“On the totality of the evidence, the learned trial Judge held that he was satisfied that the entry in the register which purported to show that the respondent sold her land or transferred same to Alhaja Ayisatu Adenike Majekodunmi was obtained by fraud or forgery and that was sufficient requiremem of the provision of section 61(1)(d) of the Registration of Titles Law of Lagos State to enable the court to make an order of rectification. This decision has never been faulted in this appeal.

The learned trial Judge then came to the inevitable conclusion that the burden of proof had been discharged by the respondent whose evidence and other pieces of evidence led in support of her allegation of fraud had remained largely unchallenged..

Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt because it would be impossible to achieve such.”

The appeal was dismissed. The defendant further appealed to this court. Henceforth the plaintiff and the 1st defendant will be referred to in this judgment as the respondent and the 1st appellant respectively.

In the brief filed by the 1st appellant, the following only single issue was formulated –

“Whether the plaintiff/respondent made out a case for the rectification of the register of title No. MO 6008 as enjoined by section 61(1)(d) of the Registration of Titles Law Cap 121 Laws of Lagos State as to have the name of the appellant removed therefrom.”

In this contribution, I do not intend to go over the argument presented by learned counsel for the 1st

P.25

appellant and the respondent respectively. It is clear from the respondent’s statement of claim, she was relying on Exhibit 1, the deed of conveyance which was executed by L.E.D.B. in her favour. She was duly registered as the owner of the plot of land in dispute under title No. MO 6008. This much was indirectly admitted by the 1st appellant in paragraph 4 of the amended statement of defence in which he averred that:-

” … one Alhaja Nimota Abiola Abegbe Abasi (hereinafter called “grantee”) with identical names with the plaintiff was the original proprietor of plot No. 122 Animashawun Estate, Surulere, Lagos, registered as title No. MO 6008 [‘the property’] in the lands register of titles, Lagos Land Registry.”

The 1st appellant was unable to produce evidence that there was any living woman other than the respondent, bearing such identical names. He was likewise not able to fault the evidence of the respondent that she was the same and only identical person referred to in paragraph 4 of the amended statement of defence of the 1st appellant. The evidence was rightly accepted by the two lower courts. Section 61(1) of the Registration of Titles Law (Cap. 121) Laws of Lagos State was given the treatment and consideration it deserved by the trial court as well as by the Court of Appeal to attract any further comment from me. The evidence showed clearly that both Exhibits 2 and 3 were fraudulently manufactured by late Mr. Majekodunmi Exhibit 3 which is the title deed of the 1st appellant, purported to derive its authenticity from Exhibit 2. The respondent was able to establish by cogent and reliable evidence that she was not a party to the making

P.26

and execution of Exhibit 2, nor was it made on her authority or by her consent. The 1st appellant could not therefore be said to have acquired any interest or estate in the land in dispute. It remains the undisputed property of the respondent, notwithstanding the spurious execution of Exhibits 2 and 3. The requirement of section 61(1)(c) of Cap. 121 Laws of Lagos State for rectification of the register in respondent’s favour was fully satisfied.

Learned counsel for the 1st appellant also raised in this court as he did in the two lower courts that 1st appellant was a purchaser for value without notice, a phrase that connotes that he conducted proper investigations in the Land Registry of Lagos State and elsewhere and was satisfied of the genuiness of title of his vendor as shown in Exhibit 2. He said he was not aware of any fraud or impropriety affecting Exhibit 2. But the evidence adduced showed that he did not demand to see or know the holder of Exhibit 2 from which he derived his own title, but contented himself with the representation made to him by late Majekodunmi who was described by both the trial court and the Court of Appeal as the perpetrator of the whole fraud. 1st appellant failed to exhibit the type of vigilance and caution required in a transaction of this nature. He could therefore not justify his negligent conduct in the transaction by the plea that he was a purchaser for value without notice. Equity aids the vigilant and not the indolent. Section 53(2) of the Registration of Titles Law of Lagos could not avail him.

Sub-section (1) of section 28 of the aforesaid law provides as follows:-

”(1) The registered owner of any land or charge may in

P.27

the prescribed manner transfer such land or charge or any pan thereof.”

While sub-sections (1) and (2) of section 53 of the same law further provide that-

”(1) Registration of any person as owner of any land, lease or charge, consequent on a forged disposition or any disposition which, if unregistered, would be absolutely void confers no estate on such registered owner, but he shall, in the event of the register being rectified to his prejudice on that account and claiming in good faith under a forged disposition be entitled to recover compensation from the Government.

(2) Nothing in this section shall be deemed to invalidate any estate acquired by any subsequent registered owner, being a purchaser for value, or by any person deriving title under such subsequent registered owner.”

The section does not validate spurious transfer as in the present case. The law does not protect the inadequacies of such investigation. See Phillips v. Ogundipe (1967) 1 All NLR 258 at 266 where Coker JSC commented on and interpreted both sections 53(1) and (2) and 61(3) of the same law thus:-

”The section does not validate spurious transfers. As stated before …. and so even where a subsequent registered owner is in possession, the register may still be rectified against him.”

Also Elias CJN in Lababedi v. Lagos Metal Industries Nig. Ltd. (1973) 1 SC. I particularly at 17 had this to say on section 53(1) and (2) of the Law (supra)  ” It cannot be too strongly emphasized that proof of fraud or forgery is fatal to any claim that a plaintiff may seek to establish under

P.28

section 53, no matter at what stage this is shown to have occurred in the chain of transactions leading to the plaintiffs dealing in registered land. It is as well to point out that the reference to the ‘registered owner’ in section 53(1) does not necessarily mean the first registered owner; equally, the reference to the ‘subsequent registered owner’ in section 53(2) does not necessarily mean the second registered owner … the registered owner could be the 3rd and 4th … [pt 18]. It is accordingly incorrect to – assume that fraud or forgery can under section 53 of the Act vitiate only the title of the first not that of a second or subsequent registered owner and registered owner.”

These are concurrent findings by both the trial court and the Court of Appeal which the Supreme Court is always slow to interfere with unless such findings have been demonstratively shown to be perverse. See Ometa v. Numa (1935) II NLR 18 and Okonkwo v. Okagbue (1994) 9 NWLR (Pt. 368) 301. I have not been convinced that the findings are perverse or erroneous. I affirm them.

It is for this and the more detailed reasons in the lead judgment of my learned brother Ogundare JSC that I also hereby dismiss this appeal and affirm the decisions of the two lower courts. I abide by the consequential orders made in the lead judgment, including that of costs.

I read before now the judgment just delivered by my learned brother, Ogundare, JSC. I agree with his reasoning and conclusions. I also find no merit in this appeal. Both the trial High Court and the Court of Appeal have rightly found in favour of the plaintiff/respondent. The appeal is accordingly dismissed with costs of N10,000.00 (ten thousand naira only) in favour of the plaintiff/respondent against the 1st defendant/appellant only.

P.29

 The judgment just read by my learned brother Ogundare, J.S.C. was made available to me in draft. I agree with his reasoning and conclusions. I too will dismiss the appeal. Although the legal estate in registered land is vested in the registered proprietor, the court has jurisdiction in certain circumstances to rectify the register, for example, where any entry has been obtained by fraud or by forgery as in the instant case.

I abide by all the orders contained in the judgment of my learned brother Ogundare, J.S.C.

Appeal dismissed.