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FEDERAL SUPREME COURT OF NIGERIA
19TH MAY, 1958.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided)
WILFRED HUGH HURLEY, AG. F.J.
SAMUEL OKAI QUASHIE-IDUN, AG. F.J. (Read the Judgment of the Court)
REAL ESTATE/LAND LAW:- Sale of property and passage of property – Onus of proof – On whom lies – When proof of long possession can avail a claimant to title over land
DEBTOR AND CREDITOR:- Loan secured by way of mortgage – Repayment of loan – Circumstantial evidence – Whether acceptable – Whether it is necessary for a mortgagee whose loan has been repaid to re-convey title to property creditor to mortgagor due to a purported but invalid sale
CHILDREN AND WOMEN LAW:- Women and Inheritance/Justice Administration/Real estate – Possession of property held by deceased heir as mortgagee – Where mortgage is shown to have been repaid – Whether title can be established through sufficient evidence of those possessory rights
PRACTICE AND PROCEDURE – ACTION – LIMITATION OF ACTION:- Limitation of Action to recover land – Proof of adverse possession – Whether onus on the person in whose favour the period of limitation is alleged to have ran.
QUASHIE-IDUN, AG. F.J. (Delivering the Judgment of the Court):
The undisputed facts in this case are briefly as follows:-
The plaintiffs-respondents are the issues of one William George Barber (deceased) who was the owner of the land in dispute situated at 19 Williams Street, Lagos. The said property comprised of a building and the deceased occupied it up to the time of his death in the year 1904. In the year 1896 the said William George Barber mortgaged the property in dispute, and another property adjacent to it known as No.90/92 Broad Street, Lagos, to one, James Emmanuel Wright, who died in 1928. The defendants-appellants are the surviving next-of-kin of the deceased James Emmanuel Wright.
In the year 1926 the building on the property in dispute was demolished by the Lagos Town Council and the land on which the building stood is the subject of the present litigation between the parties.
The case of the plaintiffs-respondents is that the late William George Barber paid the mortgage debt in respect of the property in dispute and that by a deed of conveyance dated on the 13th July, 1898, he sold the property known as 90/92 Broad Street, Lagos, to the late James Emmanuel Wright for the sum of £300.
James Emmanuel Wright lived in the house, No. 90/92 Broad Street, after he had purchased it and continued to live there until he died in 1926. When James Emmanuel Wright was alive he never laid any claims to the property in dispute either as a mortgagee or a purchaser. In 1949 the plaintiffs-respondents received information that the defendants-appellants were going to sell the land in dispute.
The plaintiffs-respondents then instituted an action against the defendants seeking a declaration of title in respect of the property in dispute as well as the property at No.90/92 Broad Street.
The claim in respect of No. 90/92 Broad Street was withdrawn. The suit which was numbered as No. 32/51 was heard by Jibowu J. It is clear from the Judgment of Jibowu J. that besides the issue as to whether or not the property in dispute was sold by William George Barber to James Emmanuel Wright, the issue as to whether or not William George Barber paid the mortgage debt in respect of the property in dispute was also tried.
The learned trial Judge (Jibowu) held inter alia that the mortgage debt had been satisfied and that the property in dispute never passed by sale to James Emmanuel Wright. Jibowu J. however non-suited the plaintiffs-respondents in that action on the ground that he was unable to make a declaration that the property belonged to the plaintiffs-respondents in fee simple, as, although he was satisfied that the mortgage debt had been paid, there had been no re-conveyance of the property from the mortgagee to the mortgagor.
The plaintiffs-respondents then instituted the present action claiming a re-conveyance of the property by the defendants to them. In his judgment the learned trial Judge (Jobling) dealt in detail with the evidence and gave judgment for the plaintiffs on their claim. The defendants have appealed from the said judgment on a number of grounds of appeal filed. Counsel for the defendants-respondents, however, argued on ground (I and 4) and on ground (2).
Ground (2) reads:- The learned trial Judge erred in law and in fact in holding that the Statute of Limitation does not apply to the present case. In support of this ground of appeal Counsel for the appellants has referred to the Real Property Limitations Act 1874 and has submitted that the defendants-appellants gave evidence of long possession of the property in dispute.
In his judgment the learned trial Judge stated that he was satisfied that the third defendant let the land to tenants between 1946 and 1956 and that at one time his mother deposited firewood on a portion of the land; that the plaintiffs vacated the property in 1926, but visited it from time to time and protested when they considered that any one was exercising rights of ownership over the land. The learned trial Judge continued and stated:
“In my view the occasional deposit of firewood on the land by Henrietta de Souza was not an entry into possession.”
He also held that even if the defendants claimed that they had been in possession of the land from 1946 to 1956 this possession was only for a period of five years because the period of possession would only run from 1946 to 1951 when the plaintiffs instituted the first action in which they were nonsuited.
I agree with the learned trial Judge’s finding that the defendants failed to prove that they were covered by the Statute of Limitation.
The onus of proving long possession was on the defendants-appellants; and although the plaintiffs-respondents alleged in their Statement of Claim that some time after the death of James Emmanuel Wright, his sister, Henrietta de Souza, took possession of the land and that after her death the defendants continued in possession, the evidence adduced supported the finding of the learned Trial Judge that the defendants had not proved long possession.
Grounds (1) and (4) read as follows:
“1. The learned trial Judge erred in law in holding that the dealings with the property by the defendants’ predecessor were inconsistent with the mortgage to the defendants.
In support of these grounds, Counsel for the appellants has argued that the learned Trial Judge was wrong when he came to the conclusion that the mortgage debt had been paid and that there was no direct evidence to support that finding.
In my view the learned trial Judge was justified in coming to the conclusion that the mortgage debt had been paid. He considered the evidence led in support of the allegation that after the redemption of the property in dispute and the sale of No. 90/92 Broad Street to Wright, Barber mortgaged the property in dispute in 1901 and in 1902 and repaid the loans in each case. Although the learned trial Judge held that there was not sufficient evidence that the plaintiffs received and were paid compensation when the building on the land was demolished by the Lagos Town Council, I think it was the duty of the defendants who said they were in possession of the property to have proved that they and not the plaintiffs claimed or were paid compensation by the Town Council. This they never did. The inference that the mortgage debt had been paid was the only one that could be drawn from the evidence adduced before the trial court. In my view the appeal should be dismissed. Costs assessed at 30 guineas.
ADEMOLA, F.C.J. I concur.
HURLEY, Ag. F.J. I concur.