3PLR – ALHAJI ETIKO V. M. AROYEWUN (DECEASED)

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI ETIKO

V.

M. AROYEWUN (DECEASED)
[SUBSTITUTED BY SABITIYU ADUKE & 3 ORS]

FEDERAL SUPREME COURT OF NIGERIA

3RD JUNE, 1959.

F.S.C. 149/1958

3PLR/1959/20 (SC)

BEFORE THEIR LORDSHIPS

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

LIONEL BRETT, F.J.

LOUIS NWACHUKWU MBANEFO, F.J.

REPRESENTATION:

1. A. Kotun for Appellant.
2. Somolu for Respondents.

MAIN ISSUES

EVIDENCE – Sections 90(1) and 129, Evidence Ordinance – Distinction be­tween.

EVIDENCE – Statement in a document twenty years old – Presumption of truth – Section 129, Evidence Ordinance.

PRACTICE AND PROCEDURE – EVIDENCE – Statement made by a person in a document – Admissibility of ­Section 90(1), Evidence Ordinance.

LAND LAW – Declaration of title – Identity of land certain – No necessity for plan.

MAIN JUDGMENT

ABBOTT, Ag. C.J.F.:

This is an appeal by the defendant from the judgment of the Lagos High Court (Bellamy, J.) awarding to the plaintiffs/respondents a declaration of title to certain land at Odunfa Street, Ebute Metta, £100 damages for trespass and an injunction.

The appeal was based on four grounds of which the second and third can be very briefly disposed of.

The second ground alleges that “the learned trial Judge was wrong in law in comparing the plan on Exhibit “E” (the conveyance to the respondent) “With the plan attached to the Statement of Claim when that plan was not in evidence.”

The circumstances which gave rise to this ground arose as follows: When the plaintiff was giving evidence he tendered the plan which he had prepared of the land in dispute. There does not appear to have been any objection to the plan being received in evidence but the Judge marked it “A” for identification. It was thereafter referred to freely by the parties in the course of the trial, but was never fully received in evidence. Knowing that the plan was marked for identification only plaintiffs’ Counsel should have taken steps to see that the plan was duly identified and received in evidence. There is, however, no dispute as to the identity of the land with which this case is concerned and E.O. Griffin, from whom the plaintiff bought, gave evidence identifying the land which Griffin then sold under Exhibit “E” with the land in dispute. Thus, even if as alleged in ground 2, the trial Judge’s use of the plan attached to the Statement of Claim was wrong (as to which I am by no means satisfied), there was ample other evidence identifying the land claimed with what the respondent bought.

There being no difficulty about identifying the land in dispute it was open to the Court below to grant the declaration sought without basing the declaration on a plan. The order granting the plaintiff’s a declaration was however, based on the plan attached to Exhibit “E” and not on Exhibit “A”, and I cannot see anything wrong with that in view of Griffin’s evidence.

The third ground alleges that no evidence was given in support of the claim for damages. This allegation is quite without substance. The respondent himself stated in evidence that he spent £75 on putting up a brick wall, which was to a large extent demolished by the appellant. This evidence of the cost of the wall was unchallenged. Mr Kotun, for the appellant, sought to argue, on this ground, that the award of damages was wrong because no particulars of the damage had been given – a very different matter from that complained of in this ground of appeal – and Counsel was informed he could not be permitted to argue this point.

Mr Kotun dealt with the first and fourth grounds together. So far as the first is concerned, the error alleged in the first ground is that the Judge wrongly applied section 90(1) of the Evidence Ordinance to the recital in Exhibit “E”: I am of opinion that the learned trial Judge correctly applied section 90(1) of the Evidence

Ordinance in this case. The material portion of the sub-section reads as follows:

“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

1. if the maker of the statement either
2. had personal knowledge of the matters dealt with by the statement; or
3. ……. ; and
4. if the maker of the statement is called as a witness in the proceedings:”

Having quoted the subsection, the learned trial Judge proceeds:

“Now, the plaintiff called as a witness ’the maker of the statement’, viz., Elisha Olatunde Griffin (witness 2). He said in evidence that he knew the land in dispute and had been the owner of it. He said that he bought the land in 1950 under the conveyance, Exhibit “G”, and that the land in dispute formed a third portion of the whole area he bought. He went on to say that the plot of land that he bought was 60 feet by 150 feet in area, and that the land that he sold to the plaintiff was 50 feet by 60 feet in extent. having a frontage on Odunfa Street of 50 feet and being 60 feet deep.

In my opinion, the provisions of subsection (1) of section 90 of the Evidence Ordinance have been satisfied, and the recitals in Exhibit “E” are admissible in evidence as proof that the land in dispute formed part of the land edged red on the plan attached to Exhibit “F’.”

I entirely agree with the learned trial Judge as to the admissibility of the recitals in Exhibit “E” for the purpose for which he admitted them and with the conclusions at which he arrived as a result. To my mind, this was exactly the type of difficulty which section 90(1) of Cap. 63 was designed to meet.

Mr Kotun sought to urge that section 129 of Cap. 63 must be complied with in addition, before section 90(1) can be employed. Section 129 reads as follows:

“Recitals, statements, and descriptions of facts, matters and parties contained in deed, instruments, Acts of Parliament or statutory declarations, twenty years old at the date of the contract, 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.”

It is quite obvious, in my opinion, that section 90(1) deals with one set of circumstances and section 129 with another, totally different. By virtue of the latter section, the facts stated in, for example, a recital in a document of the age specified, are presumed to be true, except insofar as they may be proved to be inaccurate. In other words, a recital in such a document is prima facie evidence of the facts averred therein. The former section provides that oral evidence is required, plus other conditions, to make admissible as evidence a statement made by a person in a document and tending to establish a fact whereof direct oral evidence would be admissible. To put the distinction another way, section 129 raises a presumption as to the correctness of a recital in a document 20 years old, while section 90(1) provides for the admissibility, on certain conditions being fulfilled, of a statement in a recital no matter what the age of the document containing it.

The only other point seriously argued by Mr Kotun fell under the fourth ground, where he sought to attack the learned trial Judge’s finding that ’There is not a fragment of evidence before me to show that the land in dispute in this case is included in the land purchased by the defendant under the deed of conveyance, Exhibit “H”. Mr Kotun submitted that there is evidence on this point and referred to certain passages of the evidence in the record. I am, however, quite unable to agree that any of the passages referred to provided any such evidence.

That disposes of all the grounds of this appeal, which I would dismiss with costs to the respondents assessed at 20 guineas.

Appeal dismissed.