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.