Emmanuel Omozeghian V. Chief J. J. Adjarho & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The appellant, a retired driver with the Edo State Civil Service is the owner of a house situated at and known as No. 18 Good Samaritan Road, Uselu, Benin City, where he lives with his family and some rent paying tenants. He entered into a hire purchase agreement for the purchase of a vehicle in April 1994, and when he could not pay accumulated monthly installments of N30,000.00 (thirty thousand Naira) the hire purchase company seized the vehicle from him. To assist the appellant, the 2nd respondent took him to the 1st respondent on the 5th of September, 1995 to secure a loan. According to the appellant, the 1st respondent agreed to lend him the sum of N150,000.00 (One hundred and fifty thousand Naira) at an interest rate of 35% repayable by the 5th of September, 1996 but the 1st respondent’s lawyer in collusion with the 1st respondent prepared a sale agreement for his house, which was read over to the illiterate appellant as a loan agreement, which he signed.

The appellant claimed that he discovered the fraud the following year when he went to the 1st respondent to plead for more time to repay the loan and was told that the agreement he signed was for the sale of his house and this was followed with a letter dated 26th August, 1996 and headed “Reminder of Sales Agreement of 5/9/95” telling the appellant to vacate the house for the 1st respondent on or before the 4th day of September, 1996. It was on the receipt of this letter that the appellant brought out the agreement for someone to read to him and was shocked to be told that the document said that he had sold his house to the 1st respondent for N780,000.00 (seven hundred and eighty thousand Naira). The 1st respondent thereafter caused a “Not for Sale” sign and his name to be painted on the appellant’s house.

Alarmed at this development, the appellant instituted an action against the respondents at the High Court of Justice, Benin City before Hon. Justice G. E. Edokpayi, wherein he sued the respondents for the following reliefs:-

1. A declaration that the agreement made between the plaintiff and the 1st defendant on the 5th of September, 1995 in as much as it purports to be a Sales Agreement, is fraudulent, illegal, null and void and of no effect.

Particulars of Fraud

When the document in question was read to the plaintiff, who is an illiterate, the aspect relating to sale of the property as well as the sum of N780,000.00 was cleverly concealed from him.

What was read to the plaintiff was that a loan of N150,000.00 had been granted by the 1st defendant to the plaintiff with an interest rate of 35% repayable by the 5th of September, 1996.

Particulars of Illegality

(i) By virtue of S. 34 of the Land Use Decree 1978 the plaintiff is deemed to hold a statutory right of occupancy in respect of the land in question, consequently, S. 22 of the land Use Decree makes it unlawful to alienate such land without the consent of the Military Governor First and obtained.

(ii) S. 6 of the Lands Instruments Registration Law requires such document to be reg1stered before it can be used. S. 8 provides that no such document can be registered unless the illiterate executing it does so in the presence of a Magistrate or other approved Judicial Officer with such officer verifying such execution.

2. A declaration that the 1st defendant’s conduct in invading the plaintiff’s premises, painting his name on the plaintiffs building situate at No, 18 Good Samaritan Road, Uselu, Benin City and threatening to evict the plaintiff therefrom is an act of trespass.
3. N50,000.00 damages for the defendant’s acts of trespass.
4. An order that the 1st defendant return to the plaintiff, the title documents to the land used by the plaintiff to secure a loan of N150,000.00 obtained from the 1st defendant, viz:-

(a) The two Oba’s approvals.

(b) The building plan of the house erected on the land.

5. An order of perpetual injunction restraining the defendants, their agents, servants or privies from further trespassing on the plaintiff’s said property.

At the trial that ensued, the appellant testified for himself, while the 1st respondent and another witness testified for the respondents. After hearing addresses from counsel, the learned trial Judge, Edokpayi, J., delivered his judgment on the 14th of July, 2000, wherein he held as follows-

“I have not and I do not believe the evidence of the plaintiff. I believe the 1st defendant and the defence witness, Aghojah, Esq., whose evidence have been amply supported by the contents of exhibit D which the plaintiff and his witness in that document willingly and intentionally executed as the written agreement of the transaction between the plaintiff and the 1st defendant. Weighing the evidence adduced by the plaintiff in support of his claims and placed side by side the evidence of the defence on the imaginary scale of justice of this case; I prefer the case of the defence to that of the plaintiff. I finally come to the conclusion that the plaintiff has not established his case or any of his claims on the preponderance of evidence. Consequently, the plaintiff’s claims and action which lack merit are dismissed”.