MRS OLUWASEUN AGBOOLA  VS UNITED BANK FOR AFRICA  PLC& ORS
SUPREME COURT OF NIGERIA
ALOMA M. MUKHTAR JSC (Presided and Read the Lead Judgment)
FRANCIS FEDODE TABAI  JSC
IBRAHIM TANKO MUHAMMAD JSC
OLUFUNLOLA OYELOLAADEKEYE JSC
SULEIMAN GALADIMA JSC

Issues:
Whether the appellant’s exhibit is inadmissible.
Whether the learned Justices of the Court of Appeal were right, in reversing the judgment of the learned trial Judge on the ground that the appellant failed to prove her title to the property in dispute.

Whether exhibit D2 (the respondents’ deed of conveyance) is admissible in proof of payment of money in the absence of any averment in the statement of defence that money was paid or acknowledged.

Whether the admission of exhibit D2 without any evidence that the respondent was put in possession is enough to confer title to the property on the respondents.

Assuming that the appellant failed to prove her title to the disputed property, was the Court of Appeal right in dismissing the appellants’ claim on damages and injunction for the unlawful  act committed against the property regards being had to the fact that the appellant’s possession of the property is not disputed.

Facts:
The plaintiff claimed that she bought the land known as No. 15, Sadiku Road, Kulende, Ilorin, Kwara State from one Alhaji Sule Tahiru and upon which she built 30 rooms on it. She further claimed that she kept the title document in the custody of her brother, the 3rd defendant and the latter mortgaged the property to the 1st defendant without her consent.

She  commenced an action in the High Court of Kwara State praying  for a declaration that the purported sale of the house by the 2nd defendant acting  on behalf of the 1st defendant is illegal, null and void and the mortgage  made  without her consent and knowledge is illegal null and void,  perpetual injunction restraining defendants however in respect of the building and damages for the unlawful act and embarrassment caused to her.

She tendered in  evidence a receipt allegedly issued by the vendor and survey plan prepared in  respect of the land. The trial court granted plaintiff’s claims. The defendants were aggrieved and appealed to the court of Appeal where the appeal was allowed. Also aggrieved, the plaintiff appealed to the Supreme court.

Proper claim to be filed by party challenging sale of land by auction on grounds that vendor had no title
*The appropriate remedy for a third party who is challenging an auction on sale ofland sold on the ground that a defendant has no title to the property sold and that valid title is vested in the said third party is by bringing an action for declaration. [P. 101, Paras. G – H]

Inclusion of building on mortgaged land as part of mortgaged property and rationale for –
A building erected on a mortgaged land forms part of the mortgaged property by virtue of the maxim quiquid plantatur solo, solo cedit – meaning he who owns the land owns what is on it. [Adepate v. Babatunde (2002) FWLR CPt. 91) 1503, (2002) 4 NWLR (Pt. 756)99 referred to] [P. 101, Paras. F – G]

Purport of power of sale given to mortgagee and status of a purchaser in exercise of –
A mortgagee is not a trustee of a power of sale for the mortgagor except for the balance, of the purchase money. It is a power given to him for his own benefit, enabling him to protect the mortgage debt. A purchaser who bought a property sold by a legal mortgage in exercise of his power of sale under a mortgage upon a default and repayment of a loan by the mortgagor is not a trespasser. [All State Trust Bank v. Nsofor (2004) All FWLR (Pt. 201) 1719; Union Bank Nigeria Ltd v. Ozigi (1991) 2 NWLR (Pt.176) 677 referred to] [P. 101, Paras. E -F]

Attitude of court

Attitude of court to claim for order setting aside an auction sale –
The court will also be wary to set aside an auction sale where the under mentioned facts are shown to the satisfaction of the court;
(a) That the mortgagor did mortgage the property in dispute to the mortgagee.
(b) The loan or any installment has become payable, (c) Notice of demand of repayment of loan from the mortgagee to the mortgagor,
(d)The power of sale under the mortgage agreement has arisen,
(e) Precondition of notice of sale is given to the mortgagor by the mortgagee or his agent,
(f) The power of sale was exercised and the title in the property passed to the purchaser. [Gbadamosi v. Kabo Air Travels Limited (2000) 8 NWLR (Pt. 668) 243; Oguchi v. F.M.B. (Nig.) Limited (1990) 6 NWLR (Pt. 156) 330; Bank of the North v. Muri (1998) 2 NWLR (Pt. 536) 153; Akano v. F. B. N Plc (2003) FWLR (Pt. 185) 491, (2004) 8 NWLR (Pt. 875) 318 referred to] [P. 101, Paras. A – D]

Proper approach of court to claim of title to land-
Where a plaintiff has claimed for declaration, damages and perpetual injunction, title is put in issue

between the parties. The act of vesting legal title in respect of land in a person is a matter
of law to be deduced from the facts and evidence admitted. [Nasiru v. Abubakar (1997) 4 NWLR
(Pt. 497) 32 referred to] [Pp. 100 -101, Paras. H -A]

Onus on party to succeed on strength of own case and not rely on weakness of defence –
A party must rely on the strength of his case and not on the weakness of his opponent. [Itauma v. Akpe-Ime (2000) FWLR (Pt. 16) 2809, (2000) 12 NWLR (pt. 680) 156; Ihekoronye v. Hart (2000) FWLR (Pt. 15) 2571, (2000) 15 NWLR (Pt. 692) 840 referred to] [P. 97, Para. D J
Five ways of proving title to land –

The five ways of proving title to land are by:
1 .By traditional evidence,
2. By production of documents of title
3.By proving acts of ownership numerous and positive enough to warrant an inference
that the person is the true owner (such as selling, renting out or farming on all or part of the land),
4. By proving acts of long possession and enjoyment of the land under section 145 of the Evidence Act.
5. By proof of possession of connected or adjacent
land (the contiguity rule).

In the instant case, the plaintiff failed to establish her ownership of the disputed property in any of the above mentioned ways, therefore, the trial court erred by granting the declaration of title claimed by her. [Idundun v. Okumagba’ (1979) 9·10 SC 140 referred to] [P. 92, Paras. B – D)
Conditions precedent to sale of land under customary law and needlessness of written contract therefor –
Under native law and custom the requirements for a valid sale are:
(a) Payment of purchase price,
(b) Purchaser is let into possession by the vendor, (c) In the presence of witnesses.

Written contract

It is not necessary to have a written contract or conveyance as under English law. In the instant case, where the case of the plaintiff failed to satisfy the above, the issue being raised in the Supreme Court without being raised in the trial court, the Supreme Court therefore discountenance same. [Adesanya v. Aderonmu (2000) FWLR (Pt. 15) 2492, (2000) 6 SCNJ 242; Elema v. Akeuzua (2000) FWLR (Pt. 19) 534, (2000) 6 SC (Pt. 3) 26 referred to] [P. 103, Paras. G – H]
Meaning of quiquid plantatur solo, solo cedit –

Quiquid plantatur solo, solo cedit – means he who owns the I and owns what is on it. [Adepate v. Babatunde (2002) FWLR (Pt. 91) 1503, (2002) 4 NWLR (Pt. 756) 99 referred to] [P. 101, Para. G]

Onus on who asserts to prove and how discharged, Evidence Act, section 135 considered –

By the provisions of section 135, Evidence Act, he who asserts must prove. To discharge this burden, a party must adduce cogent and credible evidence that has direct relevance to the matter in controversy, and it is only when he does that that he discharges the burden.