3PLR – CHIEF MRS. F. AKINTOLA AND ANOR. V. MRS. C.F.A.D. SOLANO
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
CHIEF MRS. F. AKINTOLA AND ANOR.
V.
MRS. C.F.A.D. SOLANO
IN THE SUPREME COURT OF NIGERIA
18TH APRIL, 1986
SC 107/1984
OTHER CITATIONS
(1986) 2 NWLR (Pt.24) 598
LN-e-LR/1985/29 (SC)
BEFORE THEIR LORDSHIPS
KAYODE ESO, JSC
MUHAMMADU LAWAL UWAIS, JSC
DAHUNSI OLUGBEMI COKER, JSC
ADOLPHUS GODWIN KARIBI-WHYTE, JSC
CHUKWUDIFU AKUNNE OPUTA, JSC
REPRESENTATION
Kehinde Sofola, S.A.N.., (with him Kayode Sofola) – for the appellants
Chief Olisa Chukwura, S.A.N., (with him Miss A.A. Adeniji) – for the respondent
OTHER ISSUES
REAL ESTATE/LAND LAW:- Declaration of title to land – Alienation of title to land – How proved
REAL ESTATE/LAND LAW:- Family land – Sale of without evidence of consent of the head of the family – Whether title arising therefrom void – Property sold by family head as his own personal property and not as head of the family or on behalf of the family – Effect
REAL ESTATE/LAND LAW:- Stool or chieftaincy land – Grant of same to third party – Power to grant stool under customary law – How proved – Whether stool does not belong to the chief beneficially in his private capacity and he cannot dispose of it without the approval of his council – Whether the chiefs’ control of such land is however greater than the ordinary communal land – Whether members of the community cannot demand allotments from chieftaincy land as of right
REAL ESTATE/LAND LAW:- Trespass to land – Claim for declaration of title to land damages for trespass – Where possession proved – What party accused of trespass must show to escape liability
REAL ESTATE/LAND LAW:- Registrable instrument – When not registered – Whether cannot be pleaded – Whether action may precede registration but pleadings cannot precede registration of the Instrument
CUSTOMARY LAW – STOOL LAND:- Meaning and Nature of Stool or chieftaincy land – Grant of same to third party – Power to grant stool under customary law – How proved – Ownership of stool land – Whether does not belong to the chief beneficially in his private capacity and he cannot dispose of it without the approval of his Council – Whether the chiefs’ control of such land is however greater than the ordinary communal land – Whether members of the community cannot demand allotments from chieftaincy land as of right
CHILDREN AND WOMEN LAW: Women and Real Estate/Land – Defence of interest in land – Dispute over title relating to Stool land or family land – Relevant considerations – Women and Justice Administration – Role of sound lawyers who can straddle both relevant facts and applicable
ETHICS – LEGAL PRACTITIONER:- Pleadings – Duty of counsel to draft proper pleadings – Duty of court and counsel to ask for proper reliefs based on the State of pleadings from Court – Duty of Counsel to know the State of the law with regard to any applicable set of facts and be ready to address the court on same
COMMERCIAL LAW – CONTRACT:- Sale transactions – When reduced into writing – Whether no oral evidence would be admitted in proof thereof – When contract is a conveyance – Effect of non-registration
PRACTICE AND PROCEDURE – COURT:- Reference of many authorities and decided cases in a judgment – Need not to use it as an excuse to lose sight of the pleadings as well as the duty to consider a case only on the issues arising from those pleadings and the authorities which establish the principles of law which those issues raise and no more
PRACTICE AND PROCEDURE – COURT:- Civil proceedings – Duty of trial courts (and counsel for the Plaintiffs especially) to look critically at the pleadings and where appropriate give judgment on the pleadings if no triable issue of fact has been raised –
PRACTICE AND PROCEDURE – COURT:- Civil proceedings – Duty to critically consider pleadings and applicable – Duty where plaintiff’s Statement of Claim does not disclose a cause of action even if all the allegations of fact therein averred are established – Whether the defendant is entitled to move the court to have the case dismissed – Where the Statement of Defence does not answer, deny, or not admit, the essential facts on which the plaintiff’s case rests – Whether plaintiff is entitled to ask for judgement on his Statement of Claim –
PRACTICE AND PROCEDURE – COURT:- Civil proceedings – Need for parties to be allowed to address the court on the applicable laws regardless of the state of averred facts – Justification
PRACTICE AND PROCEDURE – EVIDENCE:- Declaration of title to land – Where Plaintiff establishes by evidence facts which would justify the Court to grant his claim if the evidence are uncontradicted – Duty of the defendant to defeat the plaintiffs claim by establishing on his part facts which are sufficient to discredit the plaintiff’s evidence – Where evidence adduced by the defendant is not strong enough to achieve that end – Whether the plaintiff is entitled to take benefits of weakness of defence’s case in strengthening his own
PRACTICE AND PROCEDURE – JUDGMENT:- Land case – Whether udgement in a land case is not a judgement contra mundum but based on the relative strengths of the cases of the opposing parties.
PRACTICE AND PROCEDURE – PLEADINGS:- Averments – Where not specifically denied – averment that a party “is not in a position to deny or admit averments” of the opposition – Whether deemed to have averments unchallenged and thus not to in issue
PRACTICE AND PROCEEDINGS – PLEADINGS:– Need to raise triable issues in pleadings – Party’s oral evidence which is contrary to his pleadings – Effect of thereto
PRACTICE AND PROCEDURE – PLEADINGS:- Averments in the Statement of Claim – Defendant’s duty to deny all such material averments in it as the Defendant intends to deny at the hearing – Allegation of fact which is not specifically denied, or stated not to be admitted – Effect – Need for denial of aversions not to be evasive but specific as to meet the point of substance pleaded in the Statement of Claim
PRACTICE AND PROCEDURE – PLEADINGS:- Averments – General traverse of same by defendant – Whether only effect is to cast on the Plaintiff the burden of proving the allegations generally denied – Whether in principle a general traverse is not enough to controvert material and essentially important averments in the Statement of Claim
WORDS AND PHRASES:- “the general tenor of the Appellants’ pleadings.” – “not in a position to admit or deny a material averment in a Statement of Claim” – Meaning and effects
INTERPRETATION OF STATUTE:- Section 16 of the Land Instruments Registration Law above
MAIN JUDGEMENT
COKER, J.S.C.:-
This appeal is by Chief (Mrs.) F. Akintola, the only surviving of three defendants at a stage of the proceedings before the High Court of Oyo State. Before the hearing, the 1st and original defendant, Samuel Odutola Latona, died and the claims against him were withdrawn and his name struck out of the suit. After the judgment of the High Court and while the appeal of the plaintiff was pending before the (Federal) Court of appeal, the 3rd defendant, E.O, Dickson died and two of his issues, namely Mrs. A. Adetola Winjobi and John Dickson, were substituted in his place by an order of the court dated the
26th day of May, 1981. Another observation is that although the Notice
of Appeal dated 7th January, 1982 described both Chief (Mrs.) F. Akintola and the deceased E.O. Dickson, as the appellants, the two affidavits of Chief (Mrs.) Akintola dated 7th January, 1982 and 7th February, 1982 indicate that she alone instructed Chief Fajemisin, learned Counsel, to file the appeal and to seek leave to appeal against the decision of the Court below. And it was only Chief (Mrs.) Akintola who filed a Bond for security for Costs on 12th March; 1982. The position then is that the only appellant before this Court is Chief (Mrs.) F. Akintola. The appeal therefore is not by Chief Mrs. F. Akintola and (the deceased) E.O.Dickson as the papers before the Court (including the appellants’ brief) seem to indicate.
This appeal concerns a claim for declaration of title to a piece of land along Ikirun Road, Oshogbo, damages for trespass and order of injunction in respect of the land, which is described in a plan No. SEW/W/2377B prepared by M. A. Seweje, Licensed Surveyor, and marked exhibit A. The area verged blue was occupied by Chief (Mrs.) Akintola, while the area occupied by Mr. Dickson was verged “Green” thereon.
The plaintiff claimed ownership of the land by virtue of grant to D. G. Dedeke by Samuel Oyedokun, Latona II, the Ataoja of Oshogbo, on the 14th March, 1935. The grant was in exchange for another piece of land at Oshogbo which his later father, Latona I, Ataoja of Oshogbo, granted him in 1902, but which was subsequently occupied by a newly found society known as “The Oshogbo Improvement Society” of which the said Latona I, the Ataoja, was president.
Evidence was led that D. G. Dedeke took possession of the land after it had been demarcated by the two messengers of the Ataoja, Samuel Fatunbi and Mustapha Alao in the presence of witnesses. A document or memorandum made on the date of grant, 14/3/35, and in the handwriting and under the signature of the said D.G. Dedeke which was pleaded by plaintiff was tendered and received in evidence without objection and marked exhibit J. The document contained a sketch plan of the land and a short statement of the grant with the names of witnesses to the grant. The land was later demarcated by D.G. Dedeke into four portions, each with a statement under his signature and dated June 6th, 1935 purporting to devise each to his heirs named thereon. The four devises were mentioned in his last will and Testament made subsequently on the 3rd February, 1938. It was also tendered and admitted in evidence. The sole surviving plaintiff, Mrs. Solano, a grand daughter of D.G. Dedeke, and five other witnesses testified for the plaintiff, while the 2nd defendant (i.e. the appellant) only gave evidence on her own behalf and tendered a deed of conveyance dated 22nd May, 1972.
The deed which was submitted for registration on the 20th July, 1972, was executed by Samuel Oduola Latona, who was originally the only defendant in the suit; he was in the said deed of conveyance described as “seized of the hereditaments beneficially under native law and custom free from incumbrances.” The habendum stated that “the vendor was Beneficial owner, hereby grants and conveys unto the Purchaser. . .” The deed did not describe him as either the head of the Latona family or as representative of members of the Latona Family. In paragraphs 6 and 7 of the Statement of Defence of 2nd defendant/appellant-Chief (Mrs.) Akintola, pleaded as follows:-
(6) “The 2nd Defendant asserts that she did not commit any trespass on the land or any part of the land in dispute and she, (2nd defendant) bought the first part of the land in dispute edged blue in the survey plan attached to the Plaintiffs statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st Defendant to the 2nd Defendant vide a Deed of Conveyance; which will be tendered at the hearing.”
(7) “The 2nd defendant will also contend at the hearing that when the said part of the piece of land in dispute was sold and conveyed to her by the 1st defendant, there was no sign board found or seen on the said land and that only a thick bush was seen on the land.”
The 3rd defendant, E.O. Dickson, pleaded the same title of the 1st Defendant, Samuel Oduola Latona. In paragraphs 6 and 7 of his statement of defence, he averred:-
“(6) The 3rd defendant asserts that he did not commit any trespass on the land or any part of the land in dispute as he, (3rd defendant) bought the part of the land in dispute marked “E” and edged green in the survey plan attached to the plaintiffs’ statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st defendant to the 3rd defendant vide a Deed of Conveyance which will be tendered at the hearing.
(7) The 3rd defendant will also contend at the hearing that when the said part of the land in dispute was sold and conveyed to him by the 1st defendant, there was no sign board or any inscription of any of the plaintiffs found or seen on the said land and that only a thick bush was seen on the land.”
The appellant in her evidence testified that she bought the land from the Latona Family through Prince Oduola Latona. This is contrary to her pleading, and therefore her testimony in this regard went to no issue. Similarly, her evidence that Oduola Latona was the head of the family was not pleaded. If as she admitted, the land was Latona family land, her title to the land was therefore void and was not better than that of D.G. Dedeke. See Solomon v. Mogaji (1982) II SC.1.
In his judgment, the learned trial judge stated:-
“(a) The 5th plaintiff (witness) Bishop S.C. Phillip said that he knew Canon Dedeke very well and he requested him to look after his land in Oshogbo which was passed to him by his father. The witness said that he went to see the land with one Ojo Omitoyin who was farming on the land (and) in accordance with Canon Dedeke’s request, he erected pillars at the four corners of the land. When he heard that some people were making trouble on the land, he put a signboard on it. The witness stated that he knew nothing more about the land other than that Ojo Omitoyin was put in care of the land and he was farming on it. The land was also fenced with wire. The evidence of the witness showed that he was always on the land.
(b) Exhibit’ J’ which I am satisfied is admissible indicated that Pa D. G. Dedeke was granted a piece of land by Ataoja Latona II and the land was referred to in his Will, Exhibit ‘H’ … but this cannot be regarded as a conclusive and satisfactory proof of the grant.
(c) “On the issue of possession, the plaintiff claimed to have been in possession from 1935-1973. Her grandfather was granted the land in 1935 and he put Ojo Omitoyin on the land farming there and he remained there until he died. Plaintiff also claimed that concrete pillars were erected on the four sides of the land by the 5th plaintiff’s witness and also a signboard proclaiming that the land belonged to Daddy D.G. Dedeke. Apart from the evidence of the plaintiff and her witnesses as to the occupation of the land by Ojo Omitoyin, there is no evidence from anyone connected with Ojo Omitoyin who unfortunately died before hearing commenced in this case or from the neighbours who have lands around the land in dispute or even from any member of Latona family.
(d) It is my view that the evidence of possession or acts of ownership produced by the plaintiff is not strong enough having regard to the facts that the plaintiff failed to call any member of the family of Ojo Omitoyin or even any of the neighbours as boundarymen.
(e) In a claim for declaration of title, evidence of boundarymen is very important especially when the root of title is being challenged’ and when the plaintiff is also relying on possession as acts of ownership. Surely, of Ojo Omitoyin had been farming on this land in dispute, people around there must have seen him and one or two of them should have been called to testify in support of this important point, the failure of which must be fatal to the plaintiff’s case.”
Throughout in his judgment, the learned trial judge did not refer to the case of or the evidence of any of the defendants before dismissing the plaintiff’s claim with costs. The plaintiff’s appeal to the (Federal) Court of Appeal was allowed in a unanimous decision of the appeal court, and judgment was entered in favour of the appellant. In the lead judgment, Uche-Ome, J .C.A., allowed all the six grounds of appeal. He held that there was sufficient proof of grant of the land before the trial judge and that he erred in holding otherwise, particularly as he did not disbelieve the evidence of any of the witnesses called by the plaintiff in proof of the grant of the land and of the various acts of effective possession exercised by D.G. Dedeke, in his lifetime, and his agents and successors after his death. He observed that the trial judge failed to advert his mind to three other pieces of evidence apart from the evidential value of Suit No.1/205/55 which was a claim of trespass to the land in dispute against Omitoyin and Cannon Dedeke, caretaker and successor to D. G. Dedeke, respectively. He further held that on the pleadings there was no challenge to the root of title of the plaintiff and there was therefore no need for the evidence of boundarymen. In the result, the Court below allowed the appeal, set aside the decision of the trial court and entered judgement in favour of plaintiff by
(1) making an order of declaration of title sought in writ
(2) awarding N400 damages for trespass against the defendants and
(3) order of injunction. In addition, the court awarded costs against the defendants/respondents. Against this decision, the 2nd defendant/1st respondent appealed to this court on four grounds and two additional grounds, for which leave was granted. The questions which learned, Counsel, Sofola, S.A.N., asked this Court to decide are five namely:-
“(1) Whether, on the evidence of the Respondent alone, she was entitled to judgment on the claim for declaration of title, there being no evidence of title in the Ataoja Latona II when he purported to make a grant of land to the late D. G. Dedeke and no evidence of their being witnesses to the alleged grant;
(2) Whether, on the evidence, the land in dispute is the same land as the land allegedly granted to late D.G. Dedeke in 1935;
(3) Whether Exhibit ‘G’ was properly admitted at the trial and if so, I what value has it on the case of the Respondent;
(4) Whether the Respondent proved possession and/or acts of ownership to the land in dispute sufficient to entitle her to judgment on her claims;
(5) Whether the Court of Appeal was right in holding that there was no challenge to the root of title of the Respondent.”
The law does not require a case for declaration of title or for damages’ for trespass for a plaintiff to call a multitude of persons as witness are admissible and relevant to the issue before the court; it is for the trial court to evaluate their evidence and decide the case on the preponderance of evidence adduced by the parties. The trial judge is not a judge of which person should be called as witness. That is the function of counsel conducting the case.
At this juncture, I consider it necessary to keep in view the issues posed in the pleadings in so far as they are material to this appeal. The first matter is that neither the identity of the land granted to D. G. Dedeke nor the parcel which plaintiff was claiming against each of the two defendants, was ever in dispute. The description of the land which plaintiffs averred was granted to D. G. Dedeke and its relation to the parcel of land in dispute was pleaded in paragraphs 7,8,9,10,11,12 and 13 of the statement of claim, which reads:-
“(7) One Mr D..G. Dedeke now deceased was carpenter of high repute in his lifetime and was responsible for the building of many Churches in Oshun Division. By virtue of this work he won (sic) the love and affection of many people because of his dexterity in this profession. He was resident in Oshogbo for a very long time during which time and period he won the affection of the Ataoja, Chiefs and people of Oshogbo.
(8) In furtherance of this affection and to perpetuate the animation the Ataoja and his Chiefs granted the said D.G. Dedeke land to erect a building so as to settle permanently in Oshogbo. This grant was in 1902.”
(9) Later on the Ataoja Latona I requested the said D.G. Dedeke to surrender the grant to him to a society known as Oshogbo Improvement Society and promised to give the said D. G. Dedeke another parcel of land. D.G. Dedeke complied with the request of the said Latona I but was unable to give the grant before his death. Latona I informed his son Samuel Oyedokun of this promise to D. G. Dedeke the said Samuel Oyedokun later succeeded his father as Atajoa of Oshogbo and was designated as Latona II, and he also promised to carry out the wishes of his late father in the grant of the land to D.G. Dedeke.
(10) In 1935 in furtherance of his promise to D.G. Dedeke Latona II granted a parcel of land on Ikirun Road to the said D. G. Dedeke and put him in possession of the land as the Ataoja of Oshogbo with the consent of the Chiefs and Community of Oshogbo. The grant was under Yoruba Native Law and Custom.
(11) The said D.G. Dedeke was put into possession and he exercised acts of ownership on the said land without any disturbance from anybody until his death in 1938.
(12) The said D.G. Dedeke made a note or memorandum of the land granted to him in 1935 and disposed of the said land in his Will to his Children and in the said Will the land which is the subject matter of this action was described as Plan G.
(13) The last Will and Testament of the said D.G. Dedeke was made on the 3rd day of February, 1938. The said Dedeke died on the 24th day of May, 1938 and probate of the said Will was granted on the 17th day of November, 1938 by the Supreme Court of Nigeria Probate Division to the 1st plaintiff and Caon T. o. Dedeke now deceased. ”
These averments (excepting 10 and 11) were amongst those which the defendants pleaded they could neither admit nor deny. And as the court below found, they were therefore deemed not to be in issue. See Lewis, Peat (N.R.I.) v. Akhiemen (1976) 7 S.C. 157. It follows therefore that the averments that the land was stool land of the Ataoja of Oshogbo was in Issue.
Secondly, the trial judge found that the grant to D.G. Dedeke was proved, when he said:-
“Exhibit J which I am satisfied is admissible indicated that Pa D. G. Dedeke was granted a piece of land by Ataoja Latona II and the land was referred to in his Will, Exhibit H.”
Thirdly, Exhibit J, dated 14/4/35 spoke of the grant made in 1935, more than 20 years in 1971 after it was made. The document was rightly received in evidence. It was written by D.G. Dedeke himself and as he had personal knowledge of its contents, it was admissible under section 90(1) Evidence Act. See Adekunle Coker v. Albert Farlat 14 W ACA. 216, p.218. The statement in Exhibit J reads:-
“A Plot of Land in Oshogbo Town. Samuel Oyedokun Latona II the Ataoja of Oshogbo give me a plot of Land in the Town of Oshogbo today. As an exchange to the Land given to me by his late father (my Good Friend) the Latona I Ataoja of Oshogbo in the year 1902 that is- 33 years ago. The former Land is now in use by the inhabitant of Oshogbo. By a Society new formed, in the which Ataoja is the President. The name of the Society is ‘The Oshogbo Improvement Society.’ The new Land given this day June fourteenth one thousand nine hundred and thirty five. The names of the Ataoja’s messengers sent to given me the Land are as follows.
SANUSI FATUNBI and MUSTAFA ALAO
Witnesses are these:-
John Omitoyin (Oshogbo) – Benjamin Ogunremi (Igbaraoke)
Samuel Ogunsina (Oshogbo) – Solomon Oladosu (Igbaraoke)
Ojo Omitoyin (Oshogbo)
Ezekiel Ajayi (Ikare)
Titus Adebayo (Igbaraoke)
March 14th 1935
(Signed)
(D.G. Dedeke) 14/3/35”
Therefore, its contents are presumed to be correct. See s.129 Evidence Act. There was no contrary given by the defendants. Apart, there was the direct and uncontradicted evidence by plaintiffs’ witnesses of the various acts of ownership and possession by D. G. Dedeke, Omitoyin, Bishop Phillips and others since 1935 before the defendants came on the land in 1971. In Onyekaonwu and Ors. v. Ekwubiri (1966) 1 All N.L.R. 32, 34-35 it was said by Bairamian, J.S.C. that:-
“There is a saying that possession is nine-tenths of the law; and a great grandmother means three generations. There is also section 145 of the Evidence Act, which provides that-
‘When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms, that he is not the owner.’ and ‘The rule is that the person in possession can maintain trespass against anyone who cannot show a better title’.”
It was not the case of the defendants that the land granted to D.G. Dedeke was different from the land in dispute. Indeed, there was the finding of the’ trial judge that he was satisfied that exhibit J was indicative of grant by Ataoja Latona II of the land referred to in the Will Exhibit ‘H’. Having so held, it is inconsistent and self contradictory to say later that plaintiff failed to call any witness who had personal knowledge about the grant or of insufficiency of the evidence of the grant.
The learned trial judge was of the erroneous view that it was necessary for the plaintiffs to call witnesses who were either present at the time of the grant or who had personal knowledge of the grant to support the grant as shown in the document, exhibit J, when he had earlier found that the land was granted to D.G. Dedeke by Latona II, the Ataoja of Oshogbo. There was no need to call any boundaryman since it was common ground that as a stool land, Latona II, the Ataoja had power to grant it. The trial judge did not find that Latona II had no power to grant D.G. Dedeke the said land.
Again on the issue of possession, the trial judge accepted the evidence of the plaintiff and her witnesses as to the occupation of the land by Ojo Omitoyin, but held “there is no evidence from anyone connected with Ojo Omitoyin, who unfortunately died before hearing commenced in this case or from neighbours who have lands around the land in dispute, or even from any member of Latona family.” With respect to the learned judge, the law does not require such additional evidence. The evidence of Bishop Phillips was that Omitoyin was caretaker and was farming on the land and that piece of evidence was not challenged or rejected. Other witnesses also gave like evidence. I agree with the Court below that the reasons given by the trial judge for refusing to grant the declaration of title sought and for not awarding the plaintiff damages for trespass to the land were not legitimate. Once plaintiff had proved possession it was for the defendants to prove some right to possession. See Lawal v. Ijale (1967) N .M.L.R. 155,157, Coker v. Farhat 14 W ACA 216, p.219. As already observed, Chief (Mrs.) Akintola did not prove any title whatsoever. Her title was void. There was no evidence whatsoever that the land belonged to her vendor, Samuel Oduola Latona, or as alleged in the brief filed by her learned counsel in paragraph 4, page 2, to writ:-
“(4) The Appellants case is rather short and simple. Each denied trespass and claimed to have bought their respective holdings from the Latona family through Oduola Latona, the then head of the family.”
No witness was called to give evidence that Oduola Latona was head of the family. Indeed as I have shown, that was not the case on the pleadings of both Chief (Mrs.) Akintola and E.O. Dickson. Only the former produced a deed, which was registered after the commencement of the proceedings and on a date subsequent to her pleading and therefore inadmissible. Dickson did not call evidence and his deed of conveyance was not produced at the hearing. See Mrs. S.A. Kareem and Ors. v. David O. Ogunde (1972) 1 All N.L.R. (Pt. 1) 73, p.76 and s.16 of the Land Instruments Registration Law of Western Region Cap.56.
As Oduola Latona purported to sell the property as his own personal property and not as head of the family or on behalf of the family, the sale was void. See Solomon v. Mogaji (1982) II S.C.1.
There was no evidence whatsoever, that Latona as a member of the family was ever in possession of the land or has better right of possession than D.G. Dedeke who proved a grant from the Latona II, Ataoja coupled with prior possession of the land.
The authorities undoubtedly weigh heavily in favour of the plaintiff and against the defendants.
The Court below is right in holding that the trial judge misdirected himself in rejecting the plaintiff’s case by demanding a higher degree of proof from the plaintiff in the circumstances of the case. There is no concept which could be described as absolute title as between the parties. Once there is a finding of possession in favour of the plaintiff the onus was on the defendants to prove better title in order to justify their subsequent entry. The duty of the trial judge was to compare the relative strength of the case of both parties and to decide the case on the preponderance of evidence or balance of probabilities. See Abdul Kareem v. Daniel Fajebe (1968) N.M.L.R. 151, Anukanti v. Ekwonweaso (1978) 1 SC.37. In this case, the evidence of grant and various acts of possession Qn the part of D. G. Dedeke and those claiming through him were uncontradicted or not challenged by the defendants. Consequently, they were entitled to judgment. See Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C. 135.
What the court had to decide at the end of the trial is which of the parties on the preponderance of credible evidence was entitled to judgment. See Alhaji L.A. Onibude and Ors. v. Alhaji A.W. Akibu and Ors. (1982) 7 S.C. 60,89.
Plaintiffs pleaded and proved prior possession, the defendants cannot by merely entering the land dispossess them, excepting they proved a better title. See AROMIRE v AWOYEMI (1972) 2 SC. 1, p.3 and Fagbemi Akano v. Moses A. Okunade (1978) SC. 129, 137.
The judgment of the trial court therefore was based on wrong principles of law and the court below was right to set it aside and substitute a decision in accordance with the correct principles. See Chief Frank Ebba etc. v. Chief Warri Ogodo and Ors. (1984) 4 SC. 84, p.90. There was no issue raised on the pleadings and Latona II, the Ataoja of Oshogbo, had not the power to make the grant. The trial judge accepted that Ataoja made the grant. The evidence called by the plaintiff remained unchallenged throughout. Neither of the two defendants called any evidence to justify her/his entry on the land, the plaintiff was therefore entitled to judgment; See WACA No. 380 Aina Edu (as head of the Family of Adoyi (or Ajoye) and Ogunlana II Chief Obanikoro of Lagos v. Yesufu Suberu Aina Obe and Suwebatu Falohun etc; WACA Selected Judgments-February, April-May 1953, 57 at p.60 where Verity, C.J. stated the principle:-
“When in such cases the plaintiff has established by evidence such facts as would justify the Court in a declaration of title if the plaintiff’s evidence be uncontradicted the defendant can only succeed in defeating the plaintiffs claim by establishing on his part facts which are sufficient to discredit the plaintiff’s evidence. In such circumstances, if the evidence adduced by the defendant is not strong enough to achieve this end the plaintiff is entitled to its weakness and rely upon his own.”
See also Victoria Aduke and Nathaniel Alabi v. Solomon Aiyelabola (1942) 8 W ACA 43, at p.45; F .S.C. 205/59; Akwuele Nwabogu and Ano. v. Michael ago Ibeziako and 2 others, (unreported) when Brett, F.J. stated the same principle:-
“While it is common place that a plaintiff seeking a declaration of title must succeed on the strength of his own case, there are occasions when the weakness of defence tends to strengthen the plaintiffs case and this may well be such an occasion.”
On the question whether the land in dispute is the same as that allegedly granted to D. G. Dedeke, the answer was given by the learned trial judge when he found:-
“It is clear that looking at both Exhibits ‘J’ and’ A’, the land on both exhibits appears to be identical but one important point to note is that the plaintiff gave Exhibit ‘J’ to the 1st plaintiff’s witness and from it, he made out Exhibit’ A’, although he also gave evidence that I he went on the land and carried out the survey.”
As regards the admissibility of Exhibit G, I agree with the Court below that the document does not fall within the class of document the admissibility of which is prohibited by any law on the authority of Alade v. Olubade (1976) 2 SC.183. The document was admitted by consent. .. The chiefs were not interested persons at the time it was made. In any event, the document was even not necessary for proving the plaintiffs’ case. The onus as I have already pointed out, was for the defendants to prove that the beneficiaries of D. G. Dedeke, who were proved to be in possession, had no right to remain in possession. But no iota of evidence was offered by the defendants in this regard.
All the grounds of appeal seemed to overlook the overwhelming and uncontradicted evidence of the grant and of acts of possession on the part of the plaintiffs. The only reason for declining to give judgment in their favour was the erroneous view of the trial judge on grounds of insufficiency of evidence whereas the case should have been decided on the relative strength of the evidence of both parties, bearing in mind the onus was on the defendants of proving better right to possession as against. the plaintiff and his predecessors who are person in prior possession.
I have come to the decision, having regard to the above considerations that this appeal is without merit and must be dismissed. The appeal is dismissed and the decision of the Court below is hereby affirmed. I award N300.00 costs to the Respondent.
KAYODE. ESO J .S.C. :–
I have had the advantage of a preview of the draft of the judgment which has just been delivered by my learned brother Coker, J .S.C. and I am in complete agreement. There was as my learned brother has carefully set out in that judgment an overwhelming evidence of the grant to the plaintiffs and of various acts of ownership. All these were uncontradicted by the admissible evidence given by the Respondent who was the only witness for the defence and the evidence of whom went to no issue on several points as they were not pleaded. All these have been highlighted in the aforesaid judgment of Coker, J .S.C. I will therefore dismiss the appeal as being without merit and abide by the order as to costs contained in the judgment of my learned brother Coker, J .S.C.
UWAIS, J .S.C. :–
I entirely agree with the reasons and conclusion in the judgment read by my learned brother Coker, J.S.C., the draft of which I have had the opportunity of reading in advance. I do not wish to add anything.
Accordingly, I too would dismiss the appeal with N300.00 costs to be respondent.
KARIBI-WHYTE, J .S.C.:-
I have had the privilege of a preview of the judgment of my learned brother D.O. Coker, J .S.C. in this appeal. I agree entirely with the reasoning and conclusions therein. I wish to make very short comments only on one aspect of this appeal which in my view requires elaboration. It is the question whether it was necessary to prove the title of the grantor in this appeal. The facts and the circumstances leading to this litigation, and the history of the conflicts so far have been lucidly set out in the judgment of my learned brother D.O. Coker, J.S.C., I therefore do not wish to repeat them. It is however of crucial relevance to observe that the title of appellants was in Chief Samuel Oduola Latona, the first defendant, who died before the commencement of hearing before the learned trial judge, and whose defence was subsequently struck out of the action. It is also pertinent to this judgment to set out the paragraph of the statement of claim of Plaintiff/Respondent, which pleaded the root of title relied upon; and the statement of defence of the Samuel Oduola Latona which purported to join issues with them.
Paragraphs 8, 9, 10, 11, 12, 13, 14, 15 of the statement of claim averred as follows:-
“(8) In furtherance to this affection and to perpetuate the animation the Ataoja and his Chiefs granted the said D.G. Dedeke land to erect a building so as to settle permanently in Oshogbo. This grant was in 1902.
(9) Later on the Ataoja Latona I requested the said D.G. Dedeke to surrender the grant to him to a society known as Oshogbo Improvement Society and promised to give the said D. G. Dedeke another parcel of land. D.G. Dedeke complied with the request of the said Latona I but was unable to give the grant before his death. Latona I informed his son Samuel Oyedokun of this promise to D. G. Dedeke the said Samuel Oyedokun later succeeded his father as Ataoja of Oshogbo and was designated as Latona II, and he also promised to carry out the wishes of his later father in the grant of the land to D.G. Dedeke.
(10) In 1935 in furtherance of his promise to D. G. Dedeke Latona II granted a parcel of land on Ikirun Road to the said D. G. Dedeke and put him in possession of the said land as the Ataoja of Oshogbo with the consent of the Chiefs and Community of Oshogbo. The grant was under Yoruba Native Law and Custom.
(11) The said D.G. Dedeke was put into possession and he exercised acts of ownership on the said land without any disturbance from anybody until his death in 1938.
(12) The said D.G. Dedeke made a note or memorandum of the land granted to him in 1935 and disposed of the said land in his Will to his children and in the said will the land the subject of this action was described as Plan G.
(13) The last will and testament of the said D.G. Dedeke was made on the 3rd day of February, 1938. The said D.G. Dedeke died on the 24th day of May, 1938 and probate of the said will was granted on the 17th day of November, 1938 by the Supreme Court of Nigeria Probate Division to the 1st Plaintiff and Canon T. O. Dedeke now deceased.
(14) The executors of the said D. G. Dedeke became seised of the property the subject matter of this dispute and also exercised acts of ownership on the said land without any disturbance by anybody.
(15) The second executor of D.G. Dedeke, Canon T.O. Dedeke died intestate on the 24th day of March, 1970 and letters of administration of his estate was granted by the High Court of Lagos Probate division to the second plaintiff.”
Also paragraphs 4,5,6,7,8 of the statement of defence of 1st defendant subsequently struck out before hearing averred as follows:-
“(4) The 1st Defendant denies paragraphs 10,11,14,17,18,23 and 24 of the statement of claim and puts the Plaintiffs to the strictest proof thereof.
(5) The 1st Defendant is not in a position to admit or deny paragraphs 2,5,6,7,8,9,12,13,15,16,19,20 and 21 of the statement of claim and puts the Plaintiffs to the strictest proof thereof.
(6) The 1st Defendant asserts and will prove at the hearing that the land in question was never at any time granted to D.G.. Dedeke.
(7) The 1st Defendant will contend at the hearing that the land in dispute had been rightly sold to the 2nd and 3rd Defendants and that no member of D. G. Dedeke Family or His Executors at any time occupied, or took possession of the land in dispute.
(8) The 1st Defendant will also contend at the hearing that the land in dispute is part of a large parcel of land inherited by the entire members of Latona’s Family including the 1st Defendant as the principal representative of the said Family.”
On the other hand the statement of defence of the 2nd and 3rd defendants now appellants averred in paragraphs 5,6,7 as follows:-
“(5) The 3rd defendant is not in a position to admit or deny paragraphs 2, 5, 6, 7, 8, 9, 12, 13, 15, 16, 19, 20 and 21 of the statement of claim and puts the plaintiffs to the strictest proof thereof.
(6) The 3rd defendant asserts that he did not commit any trespass on the land or any part of the land in dispute as he, (3rd defendant) bought the part of the land in dispute marked ‘E’ and edged green in the survey plan attached to the plaintiffs’ statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st defendant to the 3rd defendant vide a Deed of Conveyance which will be tendered at the hearing.
(7) The 3rd defendant will also contend at the hearing that when the said part of the land in dispute was sold and conveyed to him by the 1st defendant, there was no sign board or any inscription of any of the plaintiffs found or seen on the said land and that only a thick bush was seen on the land.”
Thus at the hearing of the action only the averments in the Plaintiff/ Respondent’s statement of claim and the statements of defence of the 2nd and 3rd defendants who are the 1st and 2nd appellants, survive. It is in respect of these averments that issues would appear to have been joined. On a careful examination of the averments of the 2nd and 3rd defendants, the relevant averments of the plaintiff in paragraphs 8, 9, 10, 11, 12, 13, 15 were not specifically denied. They choose neither to admit nor deny them. The 3rd defendant included paragraph 11 of the statement of claim in such imperfect denial. It is now accepted that where a statement of defence avers that it is not in a position to deny or admit, it is deemed not to have denied the averments in the statement of claim, and therefore the averments therein in the statement of claim will be deemed not to be in issue-See Lewis and Peat (N.R.l) v. Akhimien (1967) 7 SC. 167. It follows therefore that the averments that the land in issue was land granted to the grandfather of the Plaintiff by the Ataoja of Oshogbo in 1902, and put into possession in 1935 by the Ataoja of Oshogbo with the consent of the chiefs and community of Oshogbo, and that the land devolved to Plaintiff, by inheritance through her father Canon T.O. Dedeke, was no longer in issue. In my opinion, the defendants did not at any time put the root of title of the Plaintiff in issue.
Counsel for the appellant in a well written brief and in his oral submission before us, raised five questions for determination in this appeal; arising out of his three grounds of appeal filed and argued. They are as follows:-
“(1) Whether, on the evidence of the Respondent alone, she was entitled to judgment on the claim for declaration of title, there being no evidence of title in the Ataoja Latona II when he purported to make a grant of land to the late D. G. Dedeke and no evidence of their being witnesses to the alleged grant;
(2) Whether, on the evidence, the land in dispute is the same land as the land allegedly granted to late D.G. Dedeke in 1935;
(3) Whether Exhibit ‘G’ was properly admitted at the trial and if so, what value has it on the case of the Respondent;
( 4) Whether the Respondent proved possession and or acts of ownership to the land in dispute sufficient to entitle her to judgment on her claims;
(5) Whether the Court of Appeal was right in holding that there was no challenge to the root of title of the Respondent.”
It is convenient to consider the first and the last questions together. Mr. Sofola, S.A.N. has submitted that. the Court of Appeal was in error to have granted a declaration of title in favour of the Plaintiff in the absence of any evidence of title in the Ataoja Latona II, and evidence of witnesses to the alleged grant. The learned senior counsel referred to Cole v. Folami (1956) 1 FSC.66, 69 and Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 as to the necessity for the proof of title of a grantor or donor of land. I think counsel is in error to raise this issue. The title of the grantor of the land in dispute has never been an issue in this litigation and cannot be raised at this stage. Similarly, the identity of the land in dispute. Indeed the learned trial judge found that the grant of the land to D. G. Dedeke through who respondent is claiming was proved. It is obviously not the case that the Court of Appeal relied on the evidence of Plaintiff alone. There were the testimony of the other witness and documentary evidence such as Exhibit G. There was no evidence by the Plaintiff on the issue of the grant. In the circumstances it would be right to believe such uncontradicted evidence-see Akibu v. Opaleye (1974) 1 All N.L.R. (Part 2) 344.
It is well settled that in a case for a declaration of title to land, the Plaintiff succeeds on the strength of his own case and not necessarily on the weakness of the case of his opponent see Kodilinye v. Odu (1934) 2 W.A.C.A. 40, Arase v. Arase (1981) 5 S.C. 33. Respondent in this appeal had throughout asserted the root of title to be in the Ataoja of Oshgbo. Consistent with this claim is Exhibit G. which unequivocally stated that the land was stool land, and the conveyance was made by the Ataoja and chiefs of Oshogbo. It is well settled law that chieftaincy or stool land does not belong to the chief beneficially in his private capacity and he cannot dispose of it without the approval of his council. See Oyekan v. Adele (1954) 14 W.A.C.A. 204. The chiefs’ control of such land is however greater than the ordinary communal land. Members of the community cannot demand allotments from chieftaincy land as of right. The Ataoja can as in this case alienate stool land or chieftaincy land with consent of his chiefs.
It was therefore, in view of the assertion in Exhibit G, which is not being challenged, an error for the trial judge to insist on witnesses to the transaction. The Court of Appeal was therefore right to set it aside and substitute a decision in accordance with the principles-see Chief Frank Ebba v. Chief Warri Ogodo and Ors. (1984) 4 S.C. 84 at p.90.
I entirely agree with the other reasons given by my learned brother D.O. Coker, J .S.C. for dismissing this appeal. I also will dismiss the appeal with N300 to the Respondents.
OPUTA, J .S.C. :–
I have had the advantage of a preview in draft of the lead judgment just delivered by my learned brother Coker, J .S.C. I am in complete agreement with him that the learned trial judge committed a very serious error in dismissing the Plaintiff’s case for what he erroneously held to be “insufficient evidence.” A land case is a civil case. It does not require proof beyond reasonable doubt. In this case all the trial judge had to decide was the relative strengths of the cases of the two contending parties-the Plaintiff and the Defendants. If on the pleadings and the evidence, the balance if tilted in favour of the Plaintiff (as it obviously was) then the Plaintiff wins on the preponderance of evidence. The standard of proof required of the Plaintiff is, that on the issues (if any) joined in the pleadings; and on the evidence adduced by her in proof of those issues; and having regard also to the weakness of the case for the defendants on which she can safely rely; she is entitled to the reliefs she sought (here a declaration of title, damages for trespass and an injunction):-Egbunike and Anor. v. Muonweokwu (1962) All N.L.R. 46 at p.51; Victoria Aduke and Anor. v. Solomon Aiyelabola (1942) 8 W.A.C.A. 43 at p.45; Akunwata Nwagbogu and Anor. v. Michael ago Ibeziako and Ors. F.S.C. 205 (unreported) per Brett, F.J.; Josiah Akinola and Anor. v. Fatoyinbo Olowu and Ors. (1962) W.N.L.R. 133 at p.134 per Unsworth, F.J.
There was evidence galore of a grant of the land in dispute to the plaintiff’s grandfather, D.G. Dedeke, there was evidence of acts of possession of Plaintiff’s predecessors in title on the land in dispute.
These were not contradicted. But the learned trial judge want more proofs. He wanted boundarymen called. To prove what, I humbly ask? If by Section 145 of the Evidence Law, mere admission of Plaintiff’s possession throws the burden of proof on the defendant to prove the negative – namely to prove that the Plaintiff is not the owner – a fortiori, pleading a grant by the Ataoja and his Chiefs followed by acts of possession, these were more than enough to ground a declaration of title in favour of the Plaintiff. The learned trial judge obviously misdirected himself on the burden of proof and then came to a conclusion which was almost perverse, a decision which paid but scant regard to the pleadings of the parties. It is good to refer to so many authorities and decided cases in a judgment. This shows hardwork and scholarship. But it is better not to lose sight of the pleadings and to consider the case only on the issues arising from those pleadings and the authorities which establish the principles of law which those issues raise and no more. Every other thing apart from the above will ever remain an exercise in futility no matter how erudite and ingenious such exercise may be. My further comment is only to emphasise the point made above about pleadings and the important role they play in civil proceedings.
This case is a straightforward frontal contest between the estate of Canon T.O. Dedeke represented by Mrs. C.F.A.D. Solano (one of the beneficiaries) of the one part, ‘and Chief (Mrs.) F. Akintola and Mr. E.O. Dickson of the other part. The Plaintiff, (now Respondent in this Court) pleaded as her root of title a grant of the land in dispute by the Ataoja of Oshogbo Latona I in 1902. The land thus granted to the Plaintiff’s grandfather and predecessor in title was later surrendered by the grantee D. G. Dedeke at the request of the grantor “to a society known as Oshogbo Improvement Society” with a promise by the grantor of another piece of land in exchange. In 1935 the reigning Ataoja, Latona II, fulfilled his father’s promise and granted the plaintiff’s predecessor in title, D.G. Dedeke “a parcel of land on Ikirun Road.” This grant was in accordance with Yoruba Customary law and was made with “the consent of the Chiefs and community of Oshogbo”.
These facts were clearly pleaded in paragraphs 8, 9 and 10 of the Statement of Claim. D.G. Dedeke, the original grantee was “put into possession and he exercised acts ownership on the said land” without let or hindrance from any quarter. The said D. G. Dedeke disposed of the land in dispute described as Plan G in his Will to his children and grandchildren who are represented by the plaintiff in this case. On the pleadings therefore, the plaintiffs case is essentially based on a grant followed by acts of possession. It is to be observed that the acts of possession were consequent on and as a result of the grant pleaded. The onus was then on the Plaintiff to establish this grant to succeed in this case. But since an onus only arises when a particular contention or averment of fact is in dispute between the parties, it becomes necessary to look at the Statement of Defence of the Defendants to find out what issues arose out of the pleadings.
The 1st Defendant died before the case was ripe for hearing. There was no application to substitute someone else for the 1st Defendant. Rather, the action against him was withdrawn and accordingly struck out leaving as the main contestants the 2nd and 3rd Defendants who were then renumbered 1st and 2nd Defendants. What were the pleadings of each Defendant? What did each plead as her or his root of title? The answers to the above questions will reveal the real question or questions in controversy between the parties. They will settle the issues of fact. And such issue will then dictate what should be proved and by whom. By paragraphs 5 and 6 of her Statement of Defence, Chief Mrs. Faderera Akintola pleaded as follows:-
AND
(5) The 2nd Defendant is not in a position to admit or deny paragraphs 2, 6, 7, 8, 9, 10, 11, 12, 13, 16, 19, 20 and 21 of the Statement of Claim and puts the plaintiffs to the strictest proof thereof.
(6) The 2nd Defendant asserts that she did not commit any trespass on the land or any part of the land in dispute and she (2nd defendant) bought the first part of the land in dispute edged blue in the Survey plan attached to the Plaintiffs Statement of Claim from the 1st Defendant and the said piece of land was properly conveyed by the 1st Defendant to the 2nd Defendant vide a Deed of Conveyance which will be tendered at the hearing” (the underlining is mine because it was later argued that the identity of the land in dispute was not proved).
It is thus clear that Mrs. Akintola’s root of title is a conveyance to her, from the 1st Defendant. The question will arise as a simple and straight forward matter of the rules of pleading – How should a conveyance be pleaded? What is a party relying on a conveyance required to plead? The Statement of Defence of Mr. Elijah Oyeleye Dickson is almost the same as that of Chief Mrs. F. Akintola. He too in paragraph 5 of his Statement of Defence was not “in a position to admit or deny paragraphs 2, 5, 6, 7, 8, 9, 12, 13, 15, 16, 19, 20 and 21 of the Statement of Claim” and he too put “the plaintiffs to the strictest proof thereof.”
Mr. Dickson again like Mrs. Akintola pleaded in his paragraph 6 of his Statement of Defence that he “bought the part of the land in dispute marked E and edged green in the Survey plan attached to the Plaintiffs’ Statement of Claim from the 1st Defendant and the said piece of land was properly conveyed by the 1st Defendant to the 3rd Defendant vide a Deed of Conveyance which will be tendered at the hearing.” Mr. Dickson’s root of title is also a conveyance “which will be tendered at the hearing.”
What type of pleading is this? It is a big surprise that learned counsel for the plaintiff in the court of first instance did not at the close of pleadings apply for paragraph 6 of both Statements of Defence (that of Mrs. Akintola and Mr. Dickson) to be struck out, in which case the bottom would have also been knocked out of the case of either defendant. If this were done the plaintiff would have asked for judgment on the pleadings.
By Section 16 of the Land Instruments Registration Law Cap.56 Vol.111 Laws of Oyo State applicable to land in Oshogbo and thus to the land now in dispute:-
“S.16 No instrument shall be pleaded or given in evidence in any court as affecting land unless the same shall have been registered in the proper office as specified in Section 3.
Provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1944 and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”
Oshogbo where the land in dispute is situate is in Oyo State and Section 16 above applies to all lands in Oshogbo including the land now in dispute. It is very clear and obvious from paragraph 6 of each Statement of Defence of the two Appellants that the proviso to Section 16 of the Land Instruments Registration Law of Oyo State set out above does not apply to the purported Conveyances not being each “a memorandum given in respect of an equitable mortgage.” The 1st Defendant, Chief Mrs. F. Akintola, gave evidence on 10/7/74 and tendered the conveyance on which she relied as her root of title as Ex. Q. Exhibit Q is copied at pp.117-119 of the record of proceedings. On its face, Ex. Q was “made this 22nd day of May, 1972”. There is nothing on its face to show that Ex. Q was ever registered either before or at any stage of the trial. In Patrick Osai v. Victor Nwajide and Anor. (1975) 4 S.C. 209 at p.209, this Court observed:-
“… at the time that the plaintiffs filed their Writ on 4th March, 1971 and their Statement of Claim on 15th June, 1971 and the defendant filed his Statement of Defence on 8/7/71 Ex. 1 (the Deed of Lease later registered as No. 74 at page 74 in Volume 459 of the Land Registry at Enugu on 7th of September 1971) had not been duly registered as required by the mandatory provision of Section 15 of the Land Instruments Registration Law Cap. 72 in Volume 4 of the Laws of Eastern Nigeria, 1963 which is the applicable law.”
Section 15 of the Land Instruments Registration Law of Eastern Nigeria is the same as s.16 of the Land Instruments Registration Law of Oyo State of Nigeria Cap.56 applicable to this case now on appeal. In Patrick Osai’s case supra this Court held at p.212:-
” At the close of pleading it is quite clear that the plaintiffs did not plead any registered instrument as being the basis of their claim, because if the Deed of Lease had been registered. . the registration particulars and date of registration would have been pleaded. At this stage it was open for the learned judge to strike out the pleadings” (the underlining is mine and it is a pointer to what the learned trial judge should have done in this case now on appeal).
It is trite law that by virtue of section 16 of the Land Instruments Registration Law above, a registrable instrument which is not registered cannot be pleaded. The action may precede registration but pleadings cannot precede registration of the Instrument: see also Ojugbele v. Olasoji (1982) 4 SC. 31.
Applying the ratio decidendi in Patric assai’s case and Ojugbele’s case supra to the case of the Appellants, it is clear that the two Appellants relied on sale transactions between them and one Prince Samuel Oduola Latona. These transactions having been reduced into writing no oral evidence would have been allowed in the circumstances of this case. Again, since the writings were specifically pleaded as Conveyances, they had to be registered to be even pleaded at all let alone being given and admitted in evidence. Having not been registered the conveyances should not have been pleaded. Having, nevertheless, been pleaded, it was incumbent on the trial judge to strike out paragraph 6 of each Appellant’s Statement of Defence. If this were done, any evidence given about the sale to the Appellants by Prince Samuel Oduola Latona will then go to no issue. Then again the Respondent’s case based on grant as pleaded in paragraphs 8, 9,10,11 and 12 will stand undisputed and uncontradicted and totally unchallenged as the defendant’s pleading did not even deny these paragraphs. All that the Defendants/Appellants pleaded was that they were not in a position to admit or deny these vital paragraphs.
One of the essential rules of pleading is that the defendant’s pleading shall deny all such material averments in the Statement of Claim as the Defendant intends to deny at the hearing. Every allegation of fact which is not specifically denied, or stated not to be admitted shall be taken as established at the hearing. Denial should therefore not be evasive. It should meet the point of substance pleaded in the Statement of Claim and where any allegation of fact in the Statement of Claim has not been specifically denied or denied by implication, the Plaintiff is not even obliged to establish it by evidence:-Economides v. Thomopulos and Co. Ltd. (1956) 1 F.S.C. 7 at p.10. The law and the Rules of Pleading do allow a general traverse, the only effect of which is to cast on the Plaintiff the burden of proving the allegations thus generally denied:- Jimona v. N. E. C. (1966) 1 ALL N .L.R. 122 at p.124: see also Warner v. Sampson (1959) 1 Q.B. 297 at p.310. But having said this, I must hasten to add that in principle a general traverse is not enough to controvert material and essentially important averments in the Statement of Claim like paragraphs 8, 9 and 10 in this case which form the very foundation of the Plaintiff’s Claim. These paragrarhs are radical and must be specifically denied:-L. C. C. v. Ogunbiyi (1969) 1 ALL N.L.R. 297 at p.299. If the grant pleaded by the Respondent in paragraphs 8, 9 and 10 of her Statement of Claim is thus taken at the close of pleadings as established, then the Respondent must, in any event, win, since the Defendants have not set up any case which will on the balance of probability weigh against the case of the Plaintiff, the purported conveyances of the Defendants having proved abortive for want of registration: see also Mrs. S.A. Kazeem and Ors. v. David O. Ogunde and Anor. (1972) 1 ALL N .L.R. (Part 1) 73 at p.76; see also Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113 at p.117.
On the issue of trespass, there was abundant credible evidence that the Respondent and her predecessors in title had been in possession of the land in dispute since 1935. Since the Appellants also claim to be in possession from 22nd May, 1972 (the date on EX.Q) the law is that the Appellants have to prove a better title to avoid judgement against them even for trespass. In this case no title can be founded on an unregistered conveyance like EX.Q which cannot even be pleaded. See Alhaji Fasasi Adeshoye v. J. O. Shiwoniku (1952) 14 W.A.C.A. 86 at p.87. The Appellant’s title being defective, the Respondent’s claims become more and more impregnable.
I shall now deal briefly with the Question for Determination as formulated by the Appellants as they related to the Pleadings and Issues joined on those pleadings. Question N. 1 reads:-
“(1) Whether, on the evidence of the Respondent alone, she was entitled to judgment on a claim for declaration of title, there being no evidence of title in the Ataoja Latona II when he purported to make a grant of land to the late D. G. Dedeke and no evidence of their being witnesses of the alleged grant” (the italics are mine).
Before considering this question in any detail, it is necessary to have clear idea of the meaning of, and need for evidence in proceedings before the court. If a thing is self-evidence it does not require evidence. What therefore is evidence? Simply put, it is the means by which any matter of fact, the truth of which is submitted to investigation may be established or disproved. Evidence is therefore necessary to prove or disprove an issue of fact. If a fact is not in issue, it will be either redundant (to take a most favourable view) or unnecessary (to take the correct legal view) to tender evidence in proof or otherwise as evidence is nothing but proof legally presented at the trial of an issue. The Respondent in paragraphs 8, 9 and 10 of her Statement of Claim pleaded a grant of the land in dispute by the Ataoja Latona II and his Chiefs under Yoruba Customary Law. The Appellants did not plead either:-
(i) That the Ataoja II and his Chiefs had no capacity under Oshogbo, or Yoruba Customary Law to make the grant OR that if they had such capacity, (ii) the land in dispute was not stool land or communal land and therefore did not belong to the Ataoja and his Chiefs.
All the Appellants pleaded in answer to paragraphs 8, 9, and 10 of the Statement of Claim was that they “are not in a position to admit or deny” these essential paragraphs (see paragraph 5 of each Statement of Defence). When such is the state of the pleadings any credible evidence of the grant pleaded see (P.W.l, P.W.2, P.W.3, P.W.4 and EXS. A,H,J ,K,C,O) will be sufficient as the other side had offered nothing to the contrary. In such a situation, also Cole v. Folami 1 F .S.C. 66 at p.69 will operate against the present Appellant. In Cole’s case supra both parties conceded that the land in dispute belonged originally to the Oloto Chieftaincy Family. There as here the Plaintiffs/Appellants failed to prove a valid sale with the consent of the family. Here the Appellants also relied on EX.Q which was not registered and therefore could not even be pleaded let alone tendered in evidence. In Cole’s case supra the Appellant lost. In this case the Appellants deserve to lose. Judgement in a land case is not a judgement contra mundum. It is a judgement based on the relative strengths of the cases of the opposing parties.
Where one party’s case is hopeless as that of the present Appellants, the Respondent is entitled to rely on the weak case of the Appellants and there the onus on her will not be as high as it would otherwise be. The evidence of the Plaintiff/Respondent and her witnesses and all the exhibits she tendered-all these were more than enough to grant the declaration she claimed. The trial court was wrong in denying her a declaration. Thank goodness the court below corrected this error. Question No.2:
“Whether, on the evidence, the land in dispute is the same land as the land allegedly granted to late D.G. Dekede in 1935?”
In paragraph 12 of her Statement of Claim, the Plaintiff now Respondent pleaded that her grandfather “made a note of memorandum of the land granted him in 1935” and disposed of same by his will describing it therein as Plan G. In paragraph 18 of the Statement of Claim, the Plaintiff pleaded a plan SEW/W/2377B of 16/4/72 tendered in evidence as EX.A. The Appellants did not mention paragraph 18 (which pleaded the plan of the land in dispute) at all in their Statements of Defence’ except for the general traverse. Rather in paragraph 6 of their Statement of Defence, the Appellants in fact used the “survey plan attached to the Plaintiff’s Statement of Claim.” The 1st Appellant denied trespassing on the portion of EX.A (the Plaintiff’s survey plan of the land in dispute) and claimed she bought that portion which “was properly conveyed by the 1st Defendant to the 2nd Defendant vide a Deed of Conveyance which will be tendered at the hearing.” The 2nd Appellant also pleaded that he bought “the part of the land in dispute marked E and edged green in the survey pIan attached to the Plaintiff’s Statement of Claim. . .” It is thus obvious from the pleadings that the identity of the land in dispute was never in issue. To have a dispute there musts be at least two parties – the claimant and the opposser. The land in dispute in any given case is thus the land claimed by the Plaintiff shown on his or her plan, the ownership by the Plaintiff of all or part of which, a defendant denies. Here the land claimed by the Plaintiff is delineated in Survey Plan EX.A. Nobody has made the identity or extent of EX.A an issue in the pleadings. It cannot be made now in counsel’s Brief of Argument. Question No.2 therefore does not arise.
Question No.3:
“Whether EX.G was properly admitted at the trial and if so what value has it on the case of the Respondent?”
The Respondent in paragraph 10 of her Statement of Claim pleaded a grant by the Atajoa, Latona II “with the consent of the Chiefs and community of Oshogbo. This obviously implies that the land thus granted was not a personal property of the Ataoja but communal hence it was necessary to obtain “the consent of the Chiefs and Community of Oshogbo.” Exhibit G is at p.113 of the record. It is a letter written on 30th May, 1957 ante motam litem (before these proceedings began) confirming the grant pleaded by the Respondent in paragraph 10 of her Statement of Claim. To be an issue requiring proof, there should be an unequivocal and clear denial of that paragraph (paragraph 10 of the Statement of Claim) in the Appellant’s Statement of Defence. The 1st Appellant was in paragraph 5 of her Statement of Defence “not in a position to admit or deny paragraph 10 of the Statement of Claim”. The 2nd Appellant did not deny paragraph 10 specifically nor did he mention as the 1st Appellant did that he was not in a position to admit or deny that paragraph. As I observed above when dealing with the identity of the land raised in question No.2, pleading that the Defendant is not in a position to admit or deny a material averment had always been held to be an insufficient denial: Harris v. Gamble (1878) 7 Ch. D. 877; Rutterv. Tregent(1879) 12Ch. D. 758; Warmerv. Sampson (1959) 1 Q.B. 287 at pp.310/311; Wallerstein v. Moir (1974) 1 W.L.R. 991 at p.l002. All these English cases were carefully considered by this Court in Messrs Lewis and Peat (N.R.I.) Ltd. v A.E. Akhimien (1976) S.C. 157 at pp.163 and 164. The decision of this Court then was and now still is that:-
“(1) When as a result of exchange of pleadings by parties to case material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an issue of fact.
(2) To raise such issue there must be a proper traverse.
(3) A proper traverse must be a specific denial or a specific non admission.
(4) A paragraph in a Statement of Defence that “the defendant is not in a position to admit or deny… and will at the trial put the plaintiff to proof” amounts to insufficient denial.
(5) A general traverse or general denial usually contained in the first paragraph of every Statement of Defence or else used as a preamble ought not to be adopted in respect of essential and material allegations in the Statement of Claim.
When one applies the above principles to the pleadings in this case, it is obvious that at the close of pleadings there was not one single legally acceptable issue of fact between the parties. The question No.3 – whether EX.G was properly admitted should then not arise. Exhibit G was tendered by the Respondent ab abundantia cautela (by an abundance of caution) and it does not lie in the mouths of the Appellants at this late stage to challenge EX.G. It is high time our trial courts (and counsel for the Plaintiffs especially) begin looking critically at the pleadings and where appropriate giving judgment on the pleadings if not triable issue of fact has been raised. There the plaintiff’s case should be considered on his pleadings and the applicable law. Where the plaintiff’s Statement of Claim does not disclose a cause of action- that is where, even if all the allegations of fact therein averred are established yet still the plaintiff would not be entitled to the relief sought, there instead of filing a Statement of Defence, the defendant should move the court to have the case dismissed. Alternatively where the Statement of Defence does not answer, deny, or not admit, the essential facts on which the plaintiff’s case rests, the plaintiff should be courageous enough to ask for judgement on his Statement of Claim. The parties will then address the court on the applicable law (the facts averred in the Statement of Claim being at the close of pleadings deemed to have been established). This is so, because, even if all the facts pleaded in the Statement of Claim are admitted, there may still arise issues of law to be settled before judgment is delivered. A mere dispute about fact may in loose form of speech be called an issue but no court settles a case on the facts alone divorced from their legal consequences. That too is an issue-call it an issue of law to distinguish it from issues of fact settled at the close of pleadings:-Fidelitas Shipping Co. Ltd. v. V/C Exportchleb (1965) 2 ALL E.R.9 at p.10.
Question No.5:
“Whether the Court of Appeal was right in holding that there was no challenge to the root of title of the Respondent.”
I, on purpose, left Question No.4 dealing with proof of possession and/or acts of ownership because those were not the roots of title pleaded by the Respondent. Her claim was solidly anchored on a grant. Acts of possession were merely incidental to that grant and though a necessary aftermath, they do not form the root of Respondent’s title as pleaded. As I observed earlier on, there was ample evidence of acts of ownership and possession by the Respondent’s predecessors in title- the caretaker put on the land, the devolution of the land in dispute by his Will by D.G. Dedeke etc. The Court of Appeal Ibadan Division per Uche Omo, J .C.A. at p.152 of the Record of proceedings observed in lines 15-17:-
“I agree with appellant’s counsel that at the stage of hearing there was no challenge to the root of title of the appellant as the trial judge stated. The state of the pleadings and indeed evidence is to the effect that the respondents were not in a position to admit or deny appellant’s root of title. They relied entirely of the ‘title’ or the 1st defendant who was then not a party.”
I may add that, as if to make their already bad case incurably bad, the two remaining defendants each pleaded as her or his root of title a conveyance the particulars of which – registration wise – were never pleaded and not being pleaded could never have been given in evidence: see Patrick Oassai’s case supra.
What is the argument of learned counsel for the Defendants now Appellants in support of Question No.5 which to my mind is the most radical, the most fundamental and the most far-reaching of all the “Questions for Determination” raised in the Appellants’ Brief? It is this:-
“It is humbly submitted that the general tenor of Appellants’ pleadings and evidence do not support this finding of the Court of Appeal.”
The entire commentary and observation I have made in this case were confined solely to the pleadings. I wanted to emphasise the importance of clear, precise and accurate pleadings- pleadings that are not evasive but answer the point of substance. One cannot shut one’s eyes to the present tendency to make pleadings less exact than they ought to be. But if there are to be pleadings at all, there is a great advantage in holding that they should define the issues between the parties and that neither party should at any time be embarrassed by the pleadings of the other side. Matters of substance like the Plaintiff’s root of title should be denied positively or specifically stated not admitted. It is wrong to leave such positive and specific denial to what is called “the general tenor of the Appellants’ pleadings.” It is not even sufficient traverse to say that the Defendant is not in a position to admit or deny a material averment in a Statement of Claim. The usual general traverse that precedes every Statement of Defence has also been held to be an insufficient denial of a material fact. It is not such a denial that puts the fact so denied in issue:- the case of Messrs Lewis and Peat (N.R.I) Ltd. supra refers. There must first be an issue of fact raised on the pleadings; before there can arise the need for evidence to prove that disputed fact. The learned counsel’s argument – on Question No.5 is therefore untenable. In the final result and for all the reasons given above and for the fuller reasons in the lead judgement of my learned brother Coker, J .S.C. (which I now adopt as mine) I, too, will dismiss this appeal. It is hereby dismissed and the judgement of the court is thereby affirmed. There will be costs to the Respondent which I asses at N300.00.
