3PLR – ADELAJA V ALADE CA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ADELAJA

V

ALADE

COURT OF APPEAL

IBADAN DIVISION

CA/I/299/88

FRIDAY 20^TH MARCH, 1992

3PLR/1992/5  (CA)

OTHER CITATIONS

6 N.W.L.R. 1 – 131

 

BEFORE THEIR LORDSHIPS

JOSEPH DIEKOLA OGUNDERE, J.C.A.

EMANUEL OBIOMA OGWUEGBU, J.C.A.

RABJU DANLAMI MUHAMMAD, J.C.A.

BETWEEN

1. ABIODUN ADELAJA
2. ABIODUN OYETUBO
3. CHIEF A. T. OLUKOYA (Attorney for KOLA AYODELE)

AND

1. YUSUF ALADE
2. RAUFU GBADEGADE

 

REPRESENTATION

MAIN ISSUES

CONVEYANCE ‑ Sections 18 (1) (5) and 31 (2) Lands Instruments Registration

Law Cap.56 Laws of Oyo State 1978 ‑ Proof of due execution of deed ‑ What

constitutes.

REAL ESTATE – CONVEYANCE ‑ Registrable instrument ‑ None registration of ‑ Effect of

COURT ‑ Duty on court to give adequate consideration to parties cases

DEEDS ‑ Section 130 Evidence Act ‑ Effect on deeds ‑ How construed.

EVIDENCE ‑ Admissions ‑ Admission of fact during examination ‑ Defendant

admitting fact under examination in chief, but denying it under cross

examination ‑ What court should do in the circumstance

EVIDENCE ‑ Proof‑ Prima facie evidence of title ‑ Section 48 of Cap .54 Laws of

Oyo State, 1978 ‑ What constitutes.

EVIDENCE ‑ Rule that preponderance of probability may constitute sufficient

ground for verdict ‑ Section 137 (1) Evidence Act ‑ Relationship between.

PRACTICE AND PROCEDURE – EVIDENCE Section 130 Evidence Act ‑ Effect on deeds ‑ How construed.

 

MAIN JUDGEMENT

OGUNDERE, J.C.A. (Delivering the Leading Judgment):

Before Ademakinwa J. at the High Court of Justice, Ibadan, the plaintiffs’ claims as endorsed on the writ and paragraph 19 of the Amended Statement of Claim are as follows:

1. Declaration of title to a statutory right of occupancy under the provision of Decree No.6 of 1978 in respect of all that piece or parcel of land lying being and situate at Tabontabon Village, Off Ring Road, Ibadan as per the Plan No. FA/M/324 drawn by Licensed Surveyor A.O. Adebogun dated 16/11/79.
2. N200.00 general damages for a continuing trespass commenced since month of June, 1977 by the defendants, their agents and/or servants on the said landed property in Ibadan.

 

3. INJUNCTION restraining the defendants, their agents, servants, privies and all those claiming through the defendants from committing further acts of trespass on or in any other way interfering with plaintiff’s ownership and/or possession of the said landed property.

 

The case for the plaintiffs as disclosed in the amended Statement of Claim was that in 1957, the Alade family laid out their family land at Tabontabon Village near Ring Road, Ibadan into plots for sale. The family head and representatives were Adebayo Alade, Adetohun Alade (deceased) and Yesufu Alade, first defendant. Adebayo Alade being literate had obtained a certificate of title dated 4/12/57, signed by the Oba I. B. Akinyele, Chairman and W. Sulpson Secretary to the Ibadan (Provisional) District Council, in respect of the 10.17 acres family land. The first plaintiff Abiodun Adelaja bought for himself 6 plots Nos. 20, 21, 24, 25, 32, 37 as witness the Sale Agreement dated 23/3/58 and a conveyance registered as No.53/53/259 of 16/6/58. Abiodun Oyetubo, 2nd plaintiff bought Plot 33 as witness a Deed of Conveyance registered as No.48/48/353 and dated 4/12/59. Kola Ayodele bought four plots Nos. 16, 17, 28, 29 as evidenced by a Deed of Conveyance registered as 16/16/254 of 16/6/58. The Eleven plots bought by the plaintiffs are as shown in Survey Plan FA/M/32 dated 21/2/78 by A.O. Adebogun licensed

surveyor.

The plaintiffs have been put in possession and exercised acts of ownership on the land until 30/5/1977 when 2nd plaintiff saw 2nd defendant and two workmen constructing a building foundation on the land. The said building obstructed the right of way of the plaintiffs, hence the plaintiff brought this action.

In their Statement of Defence the 2nd defendant denied liability as he was a workman for the 1st defendant who as head of his family has completed the building. The first defendant denied being a party to the documents of title pleaded by the plaintiffs save that he sold two plots to the 1st plaintiff. The plaintiffs’ plan included areas of land already litigated upon and the claims of Adelaja as Attorney for Victor Oludemi was dismissed in suit No 1/147/75 against Olatunde Fanoiki and the 1st defendant Yesufu Alade. The plaintiffs plan also included parcels of land not sold to them. It was averred that in addition to other defences the 3rd plaintiff was guilty of laches and acquiescence. They denied trespass on land allegedly sold to first and second plaintiffs and their claims to plots 32 and 33 were dismissed in Suit No.1/402/77. Adelaja & Anor v. Yesufu Alade & Anor in respect of which they pleaded res judicata.

In a reply to the Statement of Defence the plaintiffs averred that the first and second plaintiffs in suit 1/402/77 were also plaintiffs in the present suit I/279/78 and that the third plaintiff joined the two plaintiffs in 1/402/77. The trespass on the land in dispute in Suit 1/402/77 extended to the land of Kola Ayodele who sue through his Attorney Chief A.T. Olukoya. The area in dispute in suit 1/147/73 did not include plots 28 and 29 belonging to Kola Ayodele on which 1st defendants building has encroached. In that case, the verdict was a non‑suit. Also the dismissal of 1/402/77 was not on its merits and res judicata does not avail the defendants.

The learned trial Judge after taking the evidence of the parties in proof of their pleadings as regards the area allegedly trespassed upon at pp.60 and 61 of the Record made the following findings of facts:-

“The area allegedly trespassed upon and the cause of dispute in the present action is the area verged Black in Exhibit ‘K’. The building which had been erected on the said area touches slightly plot 32 in the area verged Green in Exh. ‘K’, claimed by the 1st plaintiff. It also touches plot 33 in the area verged Blue in Exhibit ‘K’ claimed by the 2nd plaintiff. And so does it abut on plots 28 and 29 in the area verged Yellow in Exhibit ‘K’ claimed by the 3rd plaintiff. Under cross examination the 6th P.W. admitted that he did not use the Alade layout plan in preparing either Exhibit ‘L’ or Exhibit ‘K’. In both instances he made use of Exhibits ‘D’, ‘E’ and ‘F’, the Deeds of Conveyance executed in favour of the three plaintiffs, respectively. Exhibits ‘K’ and ‘L’ were drawn to the same scale of 40 feet to an inch and only the beacons found on the ground relating to Exhibits ‘D’, ‘E’ and ‘F’ were shown in Exhibit ‘K’. He also admitted that since he had not seen the A lade Layout plan, it would be difficult for him to say whether the plots reflected in Exhibits ‘D’, ‘E’ and ‘F’ fall within the said layout. There is an existing road in front of the land in dispute verged ‘Black’ in Exhibit ‘K’.

The learned trial Judge after noting that as regards declaration of title, the plaintiff who relies on a Deed of Conveyance must prove that the grantee is the owner of the land in dispute or a person authorised to do so found at p.61 ‑ 62 that Adebayo Alade P.W.4, a brother, and co‑signatory of the first defendant admitted that three members of the Alade family, Adebayo Alade Yesufu Alade and Adetohun Alade executed Exhibit ‘D’ the Conveyance in first plaintiff’s favour before an Ibadan Chief Magistrate on 16th June, 1979 at p.66 ‑ 67 of the record, the learned trial Judge also found as follows:‑

“The 1st defendant has admitted in paragraph 3 of the Statement of Defence, in his evidence before this court and in the submission of his counsel, Mr. Yemi Adefuye, that he sold one plot each to the 1st and 2nd plaintiffs. He has also admitted joining in the execution of a deed of conveyance in favour of each of the 1st and 2nd plaintiffs in respect of each plot sold. As far as the 1st and 2nd plaintiffs are concerned no evidence has been adduced before me except in relation to the deeds of conveyance the original of which have been tendered and admitted before me as Exhibits “H” and “R” respectively. Since these two documents have been proved to be more than twenty years old (they were executed on the 16th of June, 1958 and 4th of December, 1959 respectively) and have been produced from proper custody, it is my view that they are entitled to the presumption that they were duly executed and attested by the persons by whom they purported to be executed and attested as provided for under Section 122 of the Evidence Act (Cap.62) Laws of the Federation of Nigeria. I therefore hold that the deeds of conveyance (Exhibits ‘H’ and ‘R’) were duly executed by the 1^st defendant. Yesufu Alade in favour of the 1st plaintiff, Abiodun Adelaja and the 2nd plaintiff, Abiodun Oyetubo respectively.

Ademakinwa J. also held that Suit No. 1/402/77 which was dismissed for want of prosecution was not decided on the merits and cannot support a plea of estoppel per rem judicatam by the defendant. Ademakinwa J. thereupon granted a declaration of a statutory right of occupancy in favour of the 1st plaintiff in respect of six plots numbered 20, 21, 24, 25, 32, 37 as shown in the survey plan in the original Deed of Conveyance, Exhibit ‘H’ and in favour of the second plaintiff plot No.33 as shown in the plan attached to his original deed of conveyance Exhibit ‘R’.

He refused the 3rd plaintiff’s declaration of title as regard plot 33 shown on the survey plan attached to his Deed of Conveyance Exhibit ‘F’, first because the original conveyance was not tendered and he could therefore not extend to it the presumption of due execution of a 20 years old Deed under Section 123 of the Evidence Act, 1990 Laws of the Federation as he accorded to Exhibit ‘H’ and ‘R’. He refused the claim in trespass against the defendants because plots No.34, 35, 36, 41, 42 and 43 which were clearly shown in Exhibit ‘J’ and ‘L’ could not be reflected in Exhibit K. Also interference with an easement of right of way cannot found an action in trespass. Opeifa v. Lawal (1935) 12 NLR 11. Finally the learned trial Judge granted the first and second plaintiffs, with regard to their plots of land, a declaration of a right to a statutory right of occupancy under the Land Use Act, 197 and dismissed the claims of the third plaintiff.

Dissatisfied, the 1st and 2nd plaintiffs appealed against the dismissal of their claim in trespass, and the 3rd plaintiff appealed against dismissal of his declaratory action.

The defendants filed a notice that the decision of the court be1ow be varied and the plaintiffs’ claims be dismissed. With leave of court on February 4, 1991 the appellants successfully applied for the amendment of their ground of appeal by amending ground 2 and adding additional grounds of appeal.

The original ground 1 is as follows:-

The learned trial Judge erred in law by dismissing the 1st and 2^nd plaintiffs’ claim to trespass and Injunction after having granted Dec1aration of Title to a statutory right of occupancy to them both in respect of their portion of the land in dispute covered by plots 32 and 33 as contained in the plans annexed to their respective Deeds of Conveyance”.

Amended Grounds 2 to 6 shorn of the partici1ilars are as follows:-

“NEW GROUND 2 The learned trial Judge erred in law and on fact in refusing to grant third appellant the declaration of title sought in respect of Plots 28 and 29 contained in Exhibit “F” when he decided as follows at page 67 line 26 to page 68 lines 1 to 10 of the Records.

GROUND 3 The learned trial Judge further erred in law and on fact when he said about the third appellant at page 68 lines 29 of the records as follows:

‘Furthermore there is no convincing evidence before me to show that Kola Ayodele (third appellant mine) has done anything to safeguard his interest on the land since purchase in June 1958. ……………….. I am satisfied on the basis of the facts adduced before me in this case that the plea of laches and acquiescence are available to the defendants as against the 3rd plaintiff (Appellant) in this case: The 3^rd plaintiffs claim for declaration of title is therefore refused’.

GROUND 4 The learned trial Judge misdirected himself in law and on fact when he voluntarily undertook the plotting in unchallenged Survey Plans tendered before him the relative positions of plots 26,27,34,35,36,41,42 and 43 and comparing same all of which are shown in PLAN No. FA/M/32A i.e. Exhibit ‘K’ in respect of Suit No. 1/279/78 thus erroneously creating motive neither contained in Respondents’ pleadings nor contemplated nor intended by the plaintiffs (Appellants) in those plans.

GROUND 5 The learned trial Judge erred in law and on fact in dismissing the third appellant’s case when the respondents who challenged the existence of Exhibit ‘F’ failed to discharge the burden of proof after the third appellant had established by evidence the existence of Exhibit ‘F’ cast on the respondents by virtue of Section 137 (2) of the Evidence Act that Exhibit ‘F’ is a forgery.

GROUND 6 The learned trial Judge misdirected himself in law and on fact when he dismissed, without more, the appellants’ claim to trespass and in junction when it is apparent from Exhibits ‘R’, and ‘E’, ‘F’ and ‘H’ and ‘D’ which Exhibit ‘K’ i.e. the undisputed composite PLAN NO. FA/H/32A, showed relative positions of Plots 28, 29, 32 and 33 being Plots alleged to have been trespassed upon by the respondents and which was tendered and admitted in evidence with no objection at the trial of the suit that gave rise to this Appeal”.

The two grounds of the respondent’s cross appeal are as follows:-

“1.     The trial Judge erred in law when he applied the presumption of due execution of a conveyance of six plots of land under Section 122 of the Evidence Act in favour of the 1st plaintiff after he had already held that the 1st plaintiff’s witnesses failed to prove the execution of the said document. The presumption having been rebutted by the direct evidence of the 1st defendant and 4th plaintiff’s witness, the 1st plaintiff’s claim should have been dismissed. The trial Judge thereby came to a wrong conclusion in declaration of title in favour of the 1st plaintiff for six plots of land.

2. The trial Judge erred in law when he wrongly admitted exhibit H, under re‑examination of 4th plaintiff’s witness and after excluding exhibit H, there is nothing upon which the title of the 1st plaintiff could be based”.

At the hearing of this appeal, F. Odeleye Esquire learned counsel for the appellant and A. Adefuye Esquire learned counsel for the respondent adopted their respective briefs and offered no oral submissions. The appellants set down the issues for determination at p.10 of their brief of arguments thus:-

“ISSUES FOR DETERMINATION

Did Exhibit ‘F’ i.e. the Certified True Copy of Deed of Conveyance dated the 16th June, 1958 and registered as No. 16 at page 16 in volume 254 of the Lands Registry, Ibadan pass any property of Alade family to Kola Ayodele, represented by Chief A.T. Olukoya, the third appellant. Was Kola Ayodele, entitled to the presumption arising from the provisions of Sections 18(1 ) ‑ (5) and 31(1) and (2) of Land instruments Registration Law Cap. 56 Volume 111 Laws of Oyo State.

Was the third appellant entitled to the presumption arising from Section 122 of the Evidence Act.

Whether all the appellants are not entitled to judgment as claimed jointly and severally against the respondents in respect of legs (2) and (3) of their claim which were dismissed.

Whether by virtue of Section 137 (2) of Evidence Act the first respondent who challenged the existence of exhibit ‘F’ should further show beyond reasonable doubt that Exhibit ‘F’ so proved is a forgery”.

In the appellants’ brief all the issues were argued together. It was submitted the first respondent cannot plead ignorance of Exhibit “F” the certified true copy of the conveyance of Alade family of land to Kola Ayodele, Section 18 of the Land Instruments Registration Law of Oyo State having been complied with which is conclusive of its validity, the more so as Exhibit “F” was not proved to be a forgery, the onus of which lies on the respondents under Section 137(2) of the Evidence Act, 1990 Laws of the Federation Benson Ikoku v. Enock Oli (1962) 1 SCNLR 307; (1962) 1 All NLR (Vol.1) (Part 1), 194, 199. It was submitted that the lower court

erred when it held that since the Original Deed of Conveyance to Kola Ayodele was not tendered, the presumption of the execution and attestation of 20 years old Deeds under Section 122 of the Evidence Act will not avail the 3rd defendant, as exhibit “F” was prepared by the Registrar of Deeds, Lands Registry, Ibadan on 19‑11‑79 even though executed on 16th June, 1958 which Deed of Conveyance was admissible in evidence by the combined effect of Sections 18(1) ‑ (5), 31(1) and (2) of the Land Instrument Registration Law. Jules v. Ajani (1980) 5 ‑ 7 S.C. 96, 98; where such an exhibit as “F”‑ a certified true copy of an Original Deed of Conveyance was held to be admissible in evidence without any further or other proof in all civil cases. It was submitted that the question of presumption as to due signature and execution of documents which are twenty years old under Section 123 of the Act does not arise having regard to Sections 18 and 31 of the Land Instruments Registration Law. Cardoso v. Daniel (1966) 1 All NLR 25. It was therefore submitted that Exhibit “F” must be taken to have been executed by persons among whom were P.W. 1 and first defendant. And having conveyed the land in dispute to Kola Ayodele there was nothing left, to transfer o the second respondent by the first respondent.

Also as the document was executed on 16‑6‑58, it was 20 years old on its tender for admission. Johnson & Anor. v. Lawanson & Anor (1971)1 NMLR 380; Okupe v. Ifemembi (1974) 3 S.C. 97.

It was submitted that the access Road constituted an easement of way as shown in Exhibits “R”, “E” or “H” or “D” and “F” and that an adjoining land owner is also the owner of the half of the soil of the road, and that it was part of the land granted, in so far as the respondents land owner did not reserve their right over the road. Trespass was therefore proved by the unauthorised entry of the respondents to 3rd appellant’s land and that the plea of laches and acquiescence will not avail the respondents. Swan v. Sinclair (1925) AC 227. It was finally submitted that the appeal be allowed.

In the respondent’s brief, the claims of the three plaintiffs were summarised thus: the first plaintiff claimed 6 plots, Nos. 20, 21, 24, 25, 32, 37; the second plaintiff claimed plot No.33 and the third plaintiff claimed four plots Nos. 16, 17, 28,29. The first defendant admitted the sales of plot No.32 to the first plaintiff but denied selling any other parcel of land to any of the plaintiffs.

Judgment was given in favour of the first and second plaintiffs on their declaration sought by their claims for trespass and injunction were dismissed, whilst the case of the third plaintiff was dismissed. It was then submitted that the real issue in the appeal is the burden of proof, and the onus was on the plaintiffs to prove their claims by the strength of their case not by the weaknesses of the case for the defendants.

As to the proof of the documents Exhibits “D”, “E”, and “F’, conveyances; “D” to the first plaintiff executed on 16th June and registered on 23rd June 1958, “E” to the second plaintiff executed on 4th December and registered on 28th December, 1959, “F’ to Kola Ayodele executed onl6th June 1958, all three were 20 years old when admitted in evidence. Since there is an admitted original owner, those who claimed sale of land to them must grove the sale. The question of fraud was not in issue. The 1st defendant denied sale of those plots except the sale of No.32 to the first plaintiff, and 33 to the second plaintiff. It was then submitted that Section 26 of the Land Instruments Registration Law now Section 27 of the 1978 Laws of Oyo State provided that registration shall not cure any defect in an instrument or confer on it any effect or validity which it would not otherwise have. Omosanya v. Anifowose (1959) SCNLR 217; (1959) 4 FSC 94, 97. It was submitted under sections 18(1) ‑ (5) and 31(1)(2) of the Law deal with registration and admissibility. The presumption of due execution of documents 20 years old under Section 123 Evidence Act, 1990 Laws, is rebuttable. A denial on oath by the person alleged to have executed such instruments constitutes such a rebuttal as in this case. Then, the plaintiff has the onus to prove the execution. The learned trial Judge was therefore right to apply the principles in Omosanya’s case which was confirmed by the Supreme Court in Johnson & Ors. v. Lawanson & Anor (1971) NMLR 380, 381, 388 ‑ 389, (1971) 1 All NLR 56, 62. It was then submitted that the appellant had no genuine complaint.

As to the dismissal of the plaintiffs’ case in trespass and injunction based on the discrepancies between Exhibits J, K, and L, it was submitted that Exhibit K is the survey plan in support of plaintiff’s case. Where the plaintiffs present a plan which varies with other plans tendered by the same plaintiffs and gave evidence which rendered Exhibit K unreliable, no declaration should be made in plaintiffs’ favour. These inconsistencies were pointed out in the address of the respondent’s counsel in court as can be seen in the Record p.45 lines 25 to 30 and p.46 lines 1 ‑ 18. In this regard, the defendants had no onus to prepare a counter plan, it is the plaintiffs who should prove their case. As there were differences between Exhibits J,K,L the learned trial Judge was right to dismiss the plaintiffs’ claim to an injunction as a court would not grant an injunction in respect of an uncertain area of land. Kwadzo v. Adjei (1944)10 WACA 274; Udofia v. Afia (1940) 6 WACA 216; Ezeokeke & Ors. v. Uga (1961) 2 SCNLR 199; (1962) 1 All NLR 482.

With regard to laches and acquiescence, it was submitted that the plaintiffs did not give any evidence of possession except that they purchased the land long time ago. The first defendant had spent a considerable sum of money on the land E before the 1st plaintiff started to complain as could be seen in exhibit Q 1. If the lower court was wrong on this point it would not affect the judgment once his decisions on the presumptions and unreliable Exhibit K is upheld.

On easement, 1st defendant’s family is the owner of the land which is the dominant tenement. The appellants whose title was in dispute cannot claim their holding as a dominant tenement. See Halsbury’s Law of England Ed. Vol.19 note (h) at p.65, Opeifa v. Lawal (1935) 12 NLR 11. Even if the lower court was wrong on this issue the court’s decision would still be valid.

On the omnibus ground, it was submitted that as the trial court unquestionably evaluated the evidence, appraised the facts, this Court of Appeal should not substitute its own views. Akinloye & anor v. Eyiyola & Ors. (1968) NMLR 92, 93, 95.

The Cross Appeal. It was submitted that the admission of Exhibit “H” under cross examination and the lower courts application of the presumption of due execution was wrong in law. The certified true copy was Exhibit D and the 1st defendant denied the signature on it as his, whereupon it was submitted that the appeal should be dismissed in its entirety.

Upon a calm and deep consideration of the record of proceedings in the lower court and the briefs of arguments of both parties, the dominant question is the burden and quantum of proof in a declaration of title action founded on Registered Deeds of Conveyances of land, in a layout of plots of land and an appreciation of the presumption as to statement in documents as to twenty years old under the Evidence Act Section 122 as to documents, and under section 130 as to Deeds of Conveyance, and Instruments inter alia. Here we are concerned with conveyances.

First, under Section 5 of the Land Titles Registration Law, formerly Cap.57 of the Laws of Western Region of Nigeria 1959, now Cap.54, Laws of Oyo State, 1978, every conveyances of a fee simple estate in any land, for a consideration which consists wholly or in part of money, and every grant of lease or an assignment thereof having not less than 40 years to run must be registered in the Lands Registry by the grantee as the owner of the fee simple estate or lease. If not so registered, they are void. All the Deeds of Conveyance admitted in evidence at the trial were so registered and are therefore prima facie valid. Under Section 48 of the Law, registration of a person as owner of freehold land shall vest in that person an estate in fee simple in that land. Thus when pleaded and tendered in evidence it is a prima facie evidence of title. But due execution of each conveyance has to be proved unless admitted in the pleadings or at the trial, or the presumption under Section 130 Evidence Act, with no rebutting evidence can be prayed in aid.

See Johnson & Ors. v. Lawanson & Anor (1971) 1 All NLR 56, 62, where Coker JSC opined thus:-

“It is difficult not to feel some remorse at a situation calling for a review of a stand‑point which had influenced the law of this country for some twelve years or more and the relish with which that line of decisions had been followed must be considered as clear evidence of the piquancy of such feeling. Section 129 of the Evidence Act, Cap.62 seems to have been lucidly worded and seems clearly to imply that recitals, statements etc,. …………… contained in deeds etc …………………… 20 years old at the date of the contract shall be taken to be sufficient evidence of the truth of such facts, etc. We entertain no doubt whatsoever about the real meaning of the section and are equally without any doubt that the deeds, instruments etc., postulated by the section must be 20 years old ‘at the date of the contract. It may of course bewilder the lawyer that in order to secure the benefit conferred by this section he has to relate his deed or instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute ‘present legal proceedings’ for the word ‘contract’ which manifestly dominates the section, seems to us perverse”.

In short the Deed or Instrument must have a recital of a contract executed 20 years before that Deed or Instrument was executed. The 20 years must not be calculated from the date the Deed of Instrument was executed and the date it was tendered in evidence in legal proceedings. The Supreme Court then overruled such decisions as Maurice Goalin Ltd. v. Wahab Atanda Aminu (Privy Council Appeal No.17 of 1957) in which the 20 years was calculated from the date of the Deed till the date it was tendered.

None of the Deeds of Conveyance Exhibited in the case recited any contract 20 years old at the time of execution of any of them. Therefore the presumption under Section 140 of the Evidence Act does not avail the appellants. But by the combined effect of Sections 18(1)(5) and 31(2) of the Land Instruments Registration Law Cap. 56 Laws of Oyo State 1978 an instrument including a Deed of Conveyance when registered, under the law, both the original, and its certified true copy under the hand of the Registrar in the Lands Registry are admissible in evidence and constitute sufficient proof of its due execution. Jules v. Ajani (1980) 5 ‑ 7 SC96, 110, 116; Cardoso v. Daniel (1966) 1AI1 NLR 25; In Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137;(1990) 3 SCJN 131, l42 the Supreme Court re‑affirmed the Jules principle that a Registered Conveyance under the Land Instruments Registration Law is sufficient evidence of its due execution. An instrument is not evidence of title to land. It is only when a conveyance is registered under Section 5 of the Land Titles Registration Law Cap.54, 1978 Laws of Oyo State that by virtue of Section 48 thereof when pleaded and tendered in evidence it constitutes prima facie evidence of title. Therefore unless so admitted in pleadings or at the trial, its due execution must be proved unless the party concerned can pray in aid the presumption under Section 130 of the Evidence Act as to recitals, statements, and description of facts, matters, and parties contained

in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, which shall unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions. The contract, the Deed, inter alia, recited must be 20 years old on the date the Deed, inter alia was executed. The presumption under Section 123 relates only to documents 20 years old not to Deed, etc. recited under Section 130, Evidence Act. All presumptions may however be rebutted.

The learned trial Judge however found first that the first defendant now respondent Yesufu Alade, DWI admitted joining others in executing a Deed of Conveyance each, Exhibits D and R respectively for the first and second plaintiffs now appellants, so did 4 PW Adebayo Alade in his evidence in chief. Therefore in spite of the fact that the learned trial Judge wrongly tagged the presumption under Section 123 of the Act, his findings cannot be faulted on that score. The conveyance of plot 33 to Abiodun Oyetubo second plaintiff/appellant by Exhibit ‘R’ being the original, and Exhibit ‘E’ being the certified true copy and the three parcels of land or six plots to the 1st plaintiff/appellant in Exhibit ‘H’ the original, and Exhibit ‘D’ the certified true copy as found by the learned trial Judge are confirmed.

If a defendant admits a fact under examination in chief, and denied it under cross examination the lower court was entitled to believe the first story. With the admission of the vendors and if the layout plan pleaded in para 6 and 7 of the Statement of Claims was produced, and super‑ imposed on the survey plans in Exhibits Rand H, and proved as part of the layout, the plaintiffs claim should have succeeded. Part of the finding of the learned trial Judge at p.60 to 61 of the record was that P.W.6, Adesina Olufemi Adebogun the plaintiffs’ surveyor did not use the layout plan in preparing exhibits “L” of “K” the plaintiffs’ Deeds of Conveyance Exhibits “D” and “F” and he admitted that it was difficult for him to say whether the plots reflected in Exhibits D, E, F, fell within the layout plan which he had not seen.

Exhibit D, E. and F are the certified true copies of the Conveyance to the first, second and third plaintiffs, respectively. For these reasons their appeal on the dismissal of their claim in trespass and injunction must fail. Their appeal on that score is dismissed. In the circumstances, the plaintiffs case on the declaration of title is not proved by preponderance of evidence so as to dismiss the cross appeal. It is allowed in part. However, as the 3rd plaintiff/appellant’s conveyance was registered under the Land Titles Registration Law, Section 48 thereof prima facie vested an estate in fee simple in the land in him, even though the plan on his conveyance was not superimposed on the layout survey plan which was not produced at the trial, his case cannot be dismissed outright.

In considering what final order to make, counsel on both sides invited to address us on the appropriateness of an order of non‑suit of the three appellants. I am of the view that the appellants’ title to the plots they claimed are inchoate, that is they have shown prima facie title to the plots they hold, but have not related them to the layout plan they pleaded.

In the circumstances, and in sum, the appeal on trespass and injunction fails and is dismissed. The appeal on the 3rd appellant’s land holding by Exhibit F partially succeeds. The cross appeal that plaintiffs appellants appeal be dismissed also partially succeeds. An order of non‑suit is made against the three appellants with N450 costs to the respondent/cross appellant, and N200 costs to the appellant/cross respondent.

OGWUEGBU, J.C.A.: I have had the opportunity of reading in draft, the judgment just delivered by my learned brother Ogundere J.C.A and I agree that the 1st and 2nd claims for declarations of title to the respective plots of land by the appellants were not proved by preponderance of evidence. In Smith Okarume v. Timothy Obaboko (1966) NMLR 47 it was stated that as a general rule, in civil cases the preponderance of probability may constitute sufficient ground for a verdict but this general rule is subject to the statutory provision in Section 137(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. The plaintiffs/ appellants did not quite achieve that in the case before us.

This is so because the Alade family layout plan prepared by T. Bickersteth ‑ a licensed Surveyor was not tendered in evidence and superimposed on the survey plans in Exhibits “F”, “H” and “R”.

In addition, PW6 did not make use of the Alade family layout plan in preparing Exhibits “L” or “K”. He could also not say whether the plots of land shown in Exhibits “D”, “E” and “F” are within the layout plan of Alade family land.

In respect of the 3rd plaintiff/appellant, it is my view that the learned trial Judge did not give adequate consideration to his case. He glossed over Exhibit “S” in his judgment ‑ the certified true copy of the “Report of the Fingerprint Examination” dated 22/5/73. This document was tendered by PW8 and he is a witness called by the plaintiffs/appellants.

In the said Exhibit “S”, It was stated in part:

“The second fingerprint (i.e. the one below) of each document (marked A, B, C, and D) is the right thumb impression of the same person and is identical with the right thumb impression of Yesufu Alade on CRO. 20 marked ‘F’. This Yesufu Alade is the 1st defendant/respondent.

It was clearly wrong for the learned trial Judge to hold as he did at page 65 lines 28 ‑ 32 of the record thus:

“I must say that I do not find Exhibit “S” of any value in proving that the 1st defendant joined in the execution of the original Deeds of conveyance given to the 1st, 2nd and 3rd plaintiffs, the certified true copies of which are Exhibit ‘D’, ‘E’ and ‘F’”.

He should not have treated Exhibit “S” as irrelevant. He should have resolved the issue whether the thumbprint of the 1st defendant confirmed in Exhibit “S” is in respect of Exhibit “D”, “E” or “F” or all of them.

I do not think that the case of the 3rd plaintiff/appellant was put in the imaginary scale and found wanting in weight. The failure to give adequate consideration to Exhibit “S” affected the result of the decision. See Mogaji v. Odofin 1 (1978) 4 S.C. 91;(1978) LNR 2l2.

The bare denial by the 1st defendant that Exhibit “F” is not his deed is not sufficient ground to hold that the 3rd plaintiff did not prove due execution.

By virtue of Sections 109(iii), 111 and 112 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990, there is no difference in the legal effect to be given to Exhibit “F” ‑ the certified copy of the Deed of Conveyance dated 4/6/58 between the 3rd plaintiff/appellant and his grantors (the representatives of Alade family (certified by the Deeds Registrar) and Exhibits “H” and “R” which are originals of similar deeds of conveyance by the same grantors at that stage of the proceedings.

Exhibit “F” is admissible in law and the law presumes that it is genuine and has been regularly certified as a copy of the original by the officer charged with responsibility of doing so. See Cardoso v. Daniel & Ors. ([986) 2 NWLR (Pt. 20) 1 at 43.

I am therefore of the view that the third plaintiff/appellant should have been treated on equal footing with the 1st and 2nd plaintiffs/appellants by the learned trial Judge.

Having heard arguments from both learned counsel on the propriety or otherwise of an order of non‑suit, I hereby enter a non‑suit against all the plaintiffs/appellants.

The appeal on trespass and injunction is dismissed. In the result, the appeal succeeds in part and the cross appeal partially succeeds as well.

I abide by the order as to costs contained in the lead judgment.

MUHAMMAD, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother Ogundere JCA. I agree with the conclusion reached therein. I too would dismiss the appeal and allow the cross‑appeal in part. I also abide by the consequential orders made in the lead judgment.

Appeal allowed in part    

Cross‑appeal allowed in part