3PLR – A.S. AJIFERUKE V ABIOLA AKERELE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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A.S. AJIFERUKE

V

ABIOLA AKERELE

FEDERAL SUPREME COURT OF NIGERIA

20TH MAY, 1900.

3PLR/257/1959

OTHER CITATIONS

LN-e-LR/1960/15 (SC)

BEFORE THEIR LORDSHIPS

MYLES JOHN ABBOTT, AG. C.J.F. (Presided and Read the Judgment of the Court)

LIONEL BRETT, F.J.

PERCIVAL CYRIL HUBBARD, AG. F.J.

MAIN ISSUES

APPEAL – Findings of trial court – Attitude of Supreme Court.

LAND LAW – Declaration of title – Plaintiff’s conveyance later in time than defendant’s – Nature of burden on plaintiff

PRACTICE AND PROCEDURE – EVIDENCE – Document – Duplicate of – Admissibility of

REPRESENTATION

1. A. Molajo -for the Appellant.
2. Moore -for the Respondent.

ABBOTT, AG. C.J.F. (Delivering the Judgment of the Court):

This is an appeal by the plaintiff against a non-suiting of his claim against the defen­dant/respondent for, first, a declaration that he, the plaintiff, is the owner of a piece of land at Surulere; second, damages for trespass; and third, an in­junction to restrain further trespass. The judgment of the High Court of Lagos, Coker, J., was delivered on 13th November, 1958.

In this court Mr. E.A. Molajo appeared for the plaintiff/appellant, and Mr. O. Moore for the defendant/respondent. The only ground of appeal originally filed, which was also argued, is the general ground, and at the opening of the appeal Mr. Molajo obtained the leave of this court to file and argue certain additional grounds, which read as follows:

1. The learned trial Judge erred in law in admitting in evidence a copy of an alleged Sales Record without a date and without any reference to the plot of land in question in the case.

2. The learned trial Judge misdirected himself when he said in his           judgment:

(a)     “The result is that I find and hold that the plaintiff or his im­mediate predecessor in title was never, whilst the defen­dant has always been in possession of this land.

(b)     And the defendant’s conveyance clearly precedes that of the plaintiff in point of time.

(c)     Besides the defendant has always been in possession.”

Mr. Molajo sought to urge that, had the learned trial Judge not had be­fore him the “alleged sales record” (Exhibit G), his decision would have gone the other way. I am quite unable to agree that this was so. The learned Judge, in his review of the evidence, referred to Exhibit G, and on looking at the record of the evidence it shows that on its being tendered to Mr. Thomas, the witness who produced it, objection was taken to the fact that the docu­ment appeared to be not an original but a copy. The learned Judge, however, decided, correctly in my view, to admit the document, which was, as he said, not produced as a copy but as a record, prepared by the witness of his dealings with the property several years ago. It was, in effect, a duplicate.

The first ground of appeal seeks to question the admission of this docu­ment on other grounds which were not advanced in the court below, and it became necessary for Mr. Molajo to be informed that his other grounds could not be advanced here. As I have said, I consider that in the cir­cumstances the admission of the document by the trial Judge was perfectly in order.

The second additional ground of appeal contains three allegations of misdirection, and in fact Mr. Molajo conceded that parts (a) and (c) in effect raised the same point. In my view there is no misdirection as alleged, either in parts (a) and (c) separately or in the two taken together. The learned Judge, in the quotation in part (a), was in effect giving his decision on the case before him. It was not perhaps necessary for him to hold that the defen­dant had always been in possession of the land, as in the circumstance of this case it was for the plaintiff, suing as he was for a declaration of title, to show that in spite of the conveyance to him being later in date than the conveyance to the defendant he nevertheless had the legal estate by virtue of other cir­cumstances. This he failed to do, and I am certainly not prepared to say that the learned trial Judge was wrong in his determination on this question. He had the opportunity of seeing the witnesses and judging their demeanour and credibility (an opportunity which is denied to us) and he was fully enti­tled, in my opinion, to come to the conclusion which he did. In addition, the learned Judge was not impressed with the evidence purporting to support the title of Mrs. Palmer, said to be the appellant’s predecessor in title.

The misdirection alleged in part (b) of ground 2 is, of course, no mis­direction at all, because it is abundantly clear that the defendant’s con­veyance is dated some two months before the plaintiff’s.

On the general ground Mr. Molajo submitted, by reference to various portions of the evidence, that the plaintiff, by himself and or his predeces­sors in title, had had, for some years preceding the date of the conveyance to him, the possession of the land. The learned Judge did not find it possible to – accept most of the evidence adduced by the plaintiff, and indeed there is one important discrepancy which may well have, I think justifiably, influenced the learned Judge in coming to this decision. The plaintiff stated that he had employed one Mustapha as his caretaker on the land, but Mustapha, in the witness box, denied the truth of that statement. The learned trial Judge came to the conclusion that on the evidence, the plaintiff had failed to dis­charge the onus, admittedly a heavy one, which lay upon him, to prove that he was entitled to the declaration which he claimed. It was a heavy one owing to the defendant’s conveyance being earlier in date. Having read the evidence which appears on the record before this court I do not find it possi­ble to say that the learned trial Judge was either unjustified in coming, or not entitled to come, to the decision at which he arrived.

It follows that I would dismiss this appeal, and I would award the sum of 25 guineas to the respondent for costs.

BRETT, F.J.: I concur.

IIUBBARD, AG. F.J.: I concur.

Appeal Dismissed.