3PLR – KARIMU AYINLA V. SIFAWU SIJUWOLA

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KARIMU AYINLA

V.

SIFAWU SIJUWOLA

SUPREME COURT OF NIGERIA

S.C.26/1983

FRIDAY, 11TH MAY, 1984

3PLR/1984/15  (SC)

 

OTHER CITATIONS

(1984) NSCC 301

 

BEFORE THEIR LORDSHIPS

MOHAMMED BELLO, J.S.C.

ANDREWS OTUTU OBASEKI, J.S.C.

KAYODE ESO, J.S.C.

AUGUSTINE NNAMANI, J.S.C.

MUHAMMADU LAWAL UWAIS, J.S.C.

REPRESENTATION

CHIEF SOBO SOWEMIMO, S.A.N. (WITH HIM M.A. O. ADEFALA), FOR THE APPELLANT.

  1. A. B. OLAWALE FOR THE RESPONDENT.

MAIN ISSUES

LAND LAW – Declaration of title – Trespass -Possession – Injunction – Scope of Section 129 of the Evidence Act – Priority of registration – Section 16(1) of the Land Instruments Registration Law of Lagos State – Effect of title to land under native law and custom and possession -Ownership of land – Effect of possession on either equitable interest or legal estate.

MAIN JUDGMENT

NNAMANI, J.S.C.: The appellant herein was the 1st defendant at the Ikeja High Court in Suit No. IK/34/71. In that suit the plaintiff (respondent herein) had sued him and one Afolabi alias Baba Ramuni (who died in the course of proceedings) claiming the following reliefs:­

 

‘(1)    Declaration of title to apiece or parcel of land situate, lying and being at Fagbile, Odi Olowo, Mushin, Ikeja District.

 

(2)     £100 general damages for trespass.

 

(3)     Possession of the said piece and parcel of land.

 

(4)     An injunction restraining the defendants, their servants and/or agents from further acts of trespass to the said land.’

 

Pleadings were duly ordered, filed and exchanged.

 

The matters on which the parties joined issue can be seen from some relevant paragraphs of the parties’ pleadings. In paragraphs 3, 4, 5, 6, 7, 8, 9,10,11, 12, 13, 14, 16 and 17 the plaintiff averred as follows:­

 

‘3.      That the land in dispute is situate, lying being at 18, Ayantuga Street, Fagbile Odi-Olowo, Mushin and particularly described in Plan No. 139C/59 drawn by Mr. E. O. Litan, a Licensed Surveyor, a copy of which is attached to the particulars of claim and marked Exhibit A.

 

  1. That by virtue of a deed of sale in 1910, the piece or parcel of land in dispute was sold to one Oguntohun.

 

  1. That on 11th January, 1915, in Suit No. 113/1913, it was decided that Oguntohun should pay the sum of £20 to members of the Ojomo Eyisha family to have his title ratified and confirmed, which he did.

 

  1. That the said Oguntohun sold the piece or parcel of land in dispute to Chief Ayodele Williams on 1st September, 1930.

 

  1. That in Suit No. 13/1950 of the High Court of Lagos, the Ojomo Eyisha family sued Ayodele Williams the predecessor-in-title of the plaintiff, in respect of the land, the subject-matter of this action, and on 18th January, 1951, the claims of the Ojomo Eyisha family was (sic) dismissed in favour of Ayodele Williams.

 

  1. That an appeal was filed in Suit W.A.C.A. No. 3605 by the said Ojomo Eyisha family to the West African Court of Appeal, and the said appeal was dismissed in favour of Ayodele Williams on 10th November, 1952.

 

  1. That the said Chief Ayodele Williams sold the piece or parcel of land in dispute to the plaintiff by virtue of a deed of conveyance dated 26th September, 1959 and registered as No. 52 at page 52 in Volume 337 of the Lands Registry Office, Ibadan.

 

  1. That the plaintiff has been in possession of the piece or parcel of land in dispute since 1959 and has been exercising all rights of ownership over it.

 

  1. That the plaintiff erected a fence on the land in dispute and put two men who erected temporary sheds or stalls and paid the plaintiff a total rent of 14 7 monthly for use and occupation of the plaintiffs land.

 

  1. That the plaintiff also has many building blocks and sand on the land in dispute in preparation for building operations.

 

  1. Sometime in January, 1971, the defendants, by themselves their servants and or agents entered the land in dispute, removed the fence on it, destroyed the temporary sheds and drove away the plaintiffs tenants with the assistance of 12 hefty men and took possession of the land.

 

  1. That the defendants started building operation on the land in dispute ignoring the plaintiffs warnings and used the plaintiffs block and sand. …

 

  1. That the plaintiff will rely at the trial on a deed of conveyance dated 26th September, 1959 and made between Ayodele Williams and the plaintiff.

 

  1. The plaintiff will also rely at the trial on Plan No. SEN/L/1870 dated 12th May, 1976 attached to this statement of claim.’

 

The italicizing in the preceding paragraphs is mine, and for reasons which will appear later in this judgment, I find it necessary to highlight the fact that all the plaintiffs averments are referrable to the land in dispute.

 

In answer as contained in paragraphs 3, 4, 5, 6, 7, 8, 9,10,11, 12, 13, 15, 18 of his statement of defence the 1st defendant/appellant averred as follows:­

 

‘3.      That the 1st defendant denies paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of the statement of claim and puts the plaintiff to strict proof of the averments contained therein.

 

  1. With reference to paragraph 3 of the statement of claim the 1st defendant avers that he does not know what land the plaintiff claims is in dispute between him and the plaintiff and will contend that the plaintiffs claim as formulated and pleaded discloses no reasonable cause of action.

 

  1. The 1st defendant however lays only claim to the land (hereinafter called “the said hereditaments” shown and edged in red on the plan attached to his deed of conveyance.

 

  1. The 1st defendant avers that under and by virtue of the deed of conveyance from the Ojomo Eyisha family who were the original owners of the land in dispute from time immemorial he became the owner of the land by virtue of the sale made to him by the said Ojomo Eyisha family in 1967.

 

  1. The 1st defendant avers that at the time he bought the land he was put into possession by his vendors the said piece of land being vacant and that thereafter he commenced building operations in the said piece of land.

 

  1. The 1st defendant avers that up to the time he started to commence building operations on the land in dispute his possession of the said piece of land had not at any time being (sic) disturbed.

 

  1. The 1st defendant avers that he and his predecessors-in-title have been in exclusive unchallenged possession of the said hereditaments up to the point of time when he started to build.

 

  1. The 1st defendant avers that up to the date hereof he is still in open and exclusive possession of the said hereditaments.

 

  1. The 1st defendant avers that he has since commenced building operations on the land and had carried the erection of the new building up to the roof level when the plaintiff appeared with a policeman who arrested the 1st defendant’s workmen but ultimately released them having found the complaint against them to be baseless.

 

  1. The 1st defendant avers that the plaintiff has never been in possession of any part of the land edged red on the plan attached to the statement of claim.

 

  1. The 1st defendant avers that his own land on which he is now erecting a building is at Ayantuga Street, Mushin and not at Fagbile Odi-Olowo, Mushin as claimed by the plaintiff …

 

  1. The 1st defendant will rely on the judgment in Suit No. S.C.522/63, Wahabi Amusa v. Chief Ayo Williams estopping the plaintiff from denying the title of the Ojomo Eyisha family.’

 

At the trial the plaintiff gave evidence and called three witnesses to testify on her behalf. She also tendered the conveyance executed in her favour by Chief Ayodele Williams and this was received in evidence as Exhibit A. A plan of the land in dispute prepared by her surveyor was received in evidence as Exhibit B.

 

Quite significantly the defendant/appellant chose not to give evidence personally. He called as his only witness a member of the Ojomo Eyisha family who among other things tendered in evidence a conveyance executed in the appellant’s favour by the Ojomo Eyisha family. This was tendered as Exhibit C. He also tendered the certified copy of a Supreme Court judgment in Suit No. S.C.522/1963, Wahabi Amusa v. Chief Ayo Williams.

 

After carefully sifting the evidence before him, the learned trial Judge, Oshodi, J., gave judgment for the plaintiff in relation to all her claims except the claim for possession which he struck out. Concluding his judgment, the learned trial Judge said:-

 

‘From the evidence before me it is clear that the root of title of the land in dispute is from the Ojomo Eyisha family although the plaintiff admitted under cross-examination that she does not know the history of the land. But from the recitals in Exhibit A the history of the land is clear in support of the plaintiff’s claim. On the question of history the answer could be found in the case of Ekpo v. lta, 11 N.L.R. 68 where it was decided that the evidence of “traditional history” given by the plaintiffs in an attempt to establish their ownership of the land is inconclusive, a Court may yet determine ownership of the disputed land in their favour if they succeed in establishing acts of ownership numerous and positive enough to warrant the inference that their possession of the land is to the exclusion of the defendants. As stated above, I am satisfied that the plaintiff had possession until the defendant came on the land. By virtue of Exhibit A I am satisfied that the plaintiff has a legal title. In Thomas v. Holder, 12 W.A.C.A. 78 it was held that where a plaintiff traces his title to one whose title to ownership has been established then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. The defendant’s claim is based on Exhibit C which shows that the root of title is from the Ojomo Eyisha family and this apparently purports to grant a legal title to the 1st defendant. Besides the building on the land one cannot see any evidence of the defence to oust the possession of the original owner.’

 

Dissatisfied with this judgment the appellant appealed to the Court of Appeal (Kazeem, Ademola and Nnaemeka-Agu, JJ.C.A.) which on 22nd March, 1982 dismissed his appeal. The appellant still dissatisfied has now appealed to this Court.

 

Five grounds of appeal were originally filed. By leave of this Court the appellant filed four additional grounds of appeal. It is in fact these that the learned senior advocate who appeared for the appellant, Chief Sobo Sowe­mimo, argued before us, although the original grounds were dealt with in his brief. I shall set those grounds down only because it would show the peculiar manner in which the Court of Appeal handled the appeal before it. In additional ground 1 the appellant complained that:­

 

‘The Federal Court of Appeal misdirected itself on the facts when it held that the land in dispute forms part of the said large parcels of land sold by the Ojomo Eyisha family to Oguntohun in 1910 who then sold the said large parcels of land to Chief Ayo Williams when there was no such averment in the pleadings, i.e. the amended statement of claim and no evidence was led at the trial to establish such finding by the Federal Court of Appeal;

 

Ground 2

 

The Federal Court of Appeal misdirected itself on the facts in accepting the finding of the Court below that the land in dispute which the plaintiff bought from Chief Ayo Williams was the same as the land which Chief Ayo Williams bought from Oguntohun who bought from the Ojomo Eyisha family in 1910 when there was no survey plan of the land bought by Chief Ayo Williams tendered in evidence nor was any evidence led to identify the land in dispute as falling within the land bought by Chief Ayo Williams from Oguntohun in 1930 nor was any member of the Ojomo Eyisha family called by the plaintiff to give evidence that the land in dispute fell within the said large parcels of land sold to Oguntohun in 1910;

 

Ground 3

 

The Federal Court of Appeal misdirected itself on the facts and in law when it held and made a wrong evaluation that both the plaintiff/ respondent and defendant/appellant traced their root of title to a common owner the Ojomo Eyisha family without adverting its mind to whether or not the plaintiff/respondent led conclusive evidence to connect her title directly to the Ojomo Eyisha family. The plaintiff/respondent failed to discharge the onus of proof that her predecessor in title derived their title from the Ojomo Eyisha family; and

 

Ground 4

 

The Federal Court of Appeal misdirected itself in law and on the facts invoking and applying the provisions of Section 129 of the Evidence Act as raising a presumption in favour of the plaintiff/respondent to which no contrary rebuttable evidence was adduced by the defendant/appellant without adverting its mind to the rebuttable evidence adduced by the defendant/appellant. (i) Paragraph 3 of the statement of defence which specifically denied the averments in paragraphs 2, 3, 4, 5, 6, 7 and 8; (ii) the evidence of d.w.l, i.e. Bashiru Akamo a principal member of the Ojomo Eyisha family since 1953 gave evidence that – (a) the family had always disputed Chief Ayo Williams’ claim to own a large area of land in Mushin which resulted in litigation as pleaded in paragraphs 7 and 8 of the statement of defence the Supreme Court judgment of 1964 which was tendered as Exhibit D dismissing Chief Ayo Williams’ claim to ownership of the said land as against the Ojomo Eyisha family; and (b) that the Ojomo Eyisha family sold the land in dispute to the defendant/appellant.’

 

These complaints arose from those portions of the judgment of Kazeem, J.C.A., where the learned justice said:­

 

‘In the plaintiff’s amended statement of claim, the following averments were made: “That a large parcel of land of which the land in dispute forms a part originally belonged to the Ojomo Eyisha family…” and later “In the present appeal, both parties traced their root of title to a common owner the Ojomo Eyisha family. The respondent was able to prove a better title from her deed of conveyance, Exhibit A, which shows on the recitals a root of title dating back to 1910. Those recitals of course raise a presumption under Section 129 of the Evidence Law of an instrument twenty years old at the date of the contract; and the contents of those recitals would be deemed to be true unless the contrary is shown. See Johnson v. Lawanson (1971) 1 All N.L.R. 56. No contrary evidence was led by the appellant to rebut the presumption. According to those recitals, the Ojomo Eyisha family had since 1915 divested themselves of whatever interest they had on the land in dispute to Oguntohun who in turn sold it in 1930 to Chief Ayo Williams (the respondent’s vendor). There was therefore nothing left for the family to sell. Hence the purported sale by the said family to the appellant in 1969 was not valid. Nemo dot quo non habet.”’

 

As regards the first passage above which formed the complaint in ground 1 of the additional grounds of appeal, the Court of Appeal, with due respect, clearly misdirected itself. There was no reference in the amended statement of claim to the land in dispute being part of a large parcel of land purchased by Chief Ayo Williams nor did the plaintiff/respondent give any such evidence. It did not appear either in the judgment of the learned trial judge.

 

The other matter which was introduced by the Court of Appeal related to Section 129 of the Evidence Act. As indicated earlier in this judgment this forms ground 4 of the additional grounds of appeal. Apart from mentioning it while reviewing the submissions of learned counsel for the defendant, the learned trial judge did not deal with it.

 

Section 129 of the Evidence Law provides as follows:­

 

‘Recitals, statements and descriptions of facts, matters and parties contained in deeds, 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.’ The emphasis has been on `contained in deeds, instruments, etc. and `at the date of the contract.’

 

The recitals and statements which are to enjoy such presumption of correctness must necessarily be contained in some deed or instrument which is 20 years old or more at the date of contract, i. e. the date at which the conveyance which it is sought to support was executed. The material date is the date of contract. This Court stated clearly the proper interpretation of the section in John Kobina Johnson v. Irene Ayinke Lawanson CN Anor. (1971) 1 All N.L.R. 56 when it said at pages 62 and 63 (as per Coker, J.S.C.):­

 

‘It is difficult not to feel some remorse at a situation calling for a review of a standpoint which had influenced the law of this country for some 12 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 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 the section without advertence to a contract, or worse still, to substitute “present legal proceedings” which manifestly dominates the section, seems to us perverse … the section is concerned with only the contents of the documents envisaged and not with the fact of the documents concerned; and secondly the section clothes such recitals and statements with the sanctity of a presumption only when the deeds containing them are 20 years old “at the date of the contract.”’

 

It remains to add that the question of the presumption under Section 129 of the Evidence Act can only arise if the document containing the recitals and statements to be presumed correct is tendered in evidence. To return now to the appeal in hand, Section 129 of the Evidence Act was clearly inapplicable. There were recitals in Exhibit A which was tendered in evidence in the trial Court. These recitals were in the same terms as the averments of the plaintiff/ respondent in paragraphs 4 to 9 of the amended statement of claim. No evidence was led to prove these averments. More important was that the recitals were not contained in any deed or instrument tendered in evidence which could be said to be 20 years old on the 26th September, 1959 when Exhibit A was executed in favour of the respondent. From the judgment of the Court of Appeal one can see that the conclusion of that Court that Section 129 of the Evidence Act was applicable to this appeal and so that the recitals in Exhibit A, in the absence of any rebutting evidence were correct, largely influenced the conclusion it reached. If this appeal turned only on these matters I would have had no difficulty in allowing it. It is my view, however, that the appellant cannot be made to suffer because the Court of Appeal, perhaps inadvertently, introduced some extraneous matters into a case which the learned trial judge had dealt with in a direct and positive manner. It seemed to me in the circumstances more in accord with the dictates of justice that the appellant should only succeed if he could show that the learned trial judge was wrong in the decision he arrived at.

 

Before coming to the issues which the learned trial judge had to deal with, and the correct manner in my view in which he handled them, I shall briefly set down the submissions of learned senior advocate of Nigeria, Chief Sowemimo, for the appellant and learned counsel to the respondent Mr. Olawale in respect of the trial Court’s judgment. Chief Sowemimo submitted that the respondent failed to establish by evidence the averments in paragraphs 5, 6, 7 and 8 of the amended statement of claim set down above. In so far as judgments were pleaded, certified true copies ought to have been tendered, the judgments being public documents under Section 108 of the Evidence Act. He submitted further that the learned trial judge appears to have relied on the recitals in Exhibit A when no evidence was led to prove them. On possession, he argued that the respondent did not show when and by whom she was put in possession of the land in dispute. He attacked the learned trial judge’s reliance in his judgment on Ekpo v. Ita case arguing that it could not be said that the respondent had numerous and positive acts of ownership spanning over several years on the land in dispute. He finally submitted that the respondent did not establish her root of title to the Ojomo Eyisha family and that since there was no conveyance by Oguntohun to Chief Ayo Williams, the latter could only have acquired an equitable interest which he transferred to the respondent. If the respondent had only an equitable interest, the appellant who had a legal estate had a better title and even if a trespasser was entitled to succeed. He also submitted that if both the appellant and respondent claimed possession the person with the better title had to succeed. He referred to the cases Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101 at 102, 111 and 112; Kareem v. Ogunde (1972) 1 All N.L.R. 73 at 77, and Omosanya v. Anifowoshe (1959) 4 F.S.C. 100.

 

In his reply, learned counsel for the respondent pointed to the fact that the appellant never gave evidence of his possession and his witness testified to the effect that a conveyance was executed in his favour in 1969. On the contrary the respondent, he said, gave evidence of her possession and numerous acts of ownership. He submitted that ownership could be proved in five ways. Sunday Piaro v. Wokumu Tenale G’ Ors. (1976) 12 S.C. 31 at 40 and 43. The respondent he said proved hers by production of documents and acts of ownership.

 

It seems to me that the relevant paragraphs of the amended statement of claim were paragraphs 9,10,11,12,13 and 14 set down earlier and if the learned trial judge relied on them the respondent was bound to succeed. It is clear that the learned trial judge did not rely on the recitals in Exhibit A (including the judgments) which had not been established before him by evidence but which make up the history of the land. Although in his judgment as could be seen from the portion cited earlier he said that ‘from the recitals in Exhibit A the history of the land in dispute is clear in support of the plaintiffs claim’ he conceded that the plaintiff had agreed she did not know the history of the land. Moreover he seemed to have placed more emphasis on Ekpo v.Ita (supra) which is authority for the proposition that ownership could still be established where traditional history is inconclusive if there are numerous and positive acts of ownership.

 

As to possession, there was evidence before the learned trial judge that the respondent was in possession of the land in dispute long before the appellant broke into it in 1971. The conveyance, Exhibit A, was executed in her favour on 26th September, 1959. It was argued that there was nothing to show when and by whom she was put in possession. In my view there was evidence from which it can be inferred that she went into possession in 1959. In her testimony in the trial Court she said:­

 

‘The land is at Ayantuga Street, Mushin. I bought the land from Chief Ayo Williams now deceased. Chief Ayo Williams gave me a Deed of Con­veyance. Here it is and I seek to tender it. After I bought the land I cut down some of the palm trees and built two houses referred to as bulldog buildings. I gave out the two buildings on rent to a carpenter and palm­wine tapper respectively. I had some blocks and some quantity of sand on the land.’

 

I do not think that in order to establish when she went into possession there has to be some ceremony after which the vendor will pointedly take her to the land and say I now put you into possession. In the normal course of things the vendor would have shown the purchaser the land in question several times during the negotiations for purchase. While on possession, it may be mentioned that there is evidence tendered by the appellant which could bolster the respondent’s possession. Although I have disregarded the recitals in Exhibit A, and although Exhibit D (i.e. the Supreme Court suit between Chief Ayo Williams and a purchaser from the Ojomo Eyisha family) and Exhibit E (the plan attached to that suit) were of no assistance to the appellant’s case as no attempt was made to relate the land here in dispute to the land in dispute in that suit and besides the Ojomo Eyisha family were not parties to that suit, it goes to establish that Oguntohun bought some land from the Ojomo Eyisha family in 1910 and sold same to Chief Ayo Williams in 1930, and that it was not until 1950 that that family challenged his possession and title. I think that it can safely be inferred that the respondent was in possession of the land in dispute for about 12 years before the appellant broke into the land in 1971. What was the contrary evidence on possession? Was the appellant in possession of the land in dispute before he broke into it in 1971? The learned trial judge did not make a direct finding on this but he significantly stated in his judgment that ‘besides the building on the land (commenced after 1971) one cannot see any evidence of the defence to oust the possession of the original owner.’

 

Although the appellant averred in paragraph 7 of his statement of defence that ‘at the time he bought he was put into possession by his vendors the said piece of land being vacant and that thereafter he commenced building operations on the said piece of land’ he fatally in my view failed to give evidence on his own behalf at the trial. There was therefore no evidence to support this averment. His only witness Bahiru Akamo never said either that he was put in possession. All he said on this was ‘as at the time that land was sold to the 1st defendant it was a complete bush and scattered palm trees all over it’ a piece of evidence which the learned trial judge rejected. It seems that the appellant bought the land in 1967 from the Ojomo Eyisha family, got his conveyance in 1969 and waited until 1971 when he broke in. As to numerous acts of ownership spread over a length of time the learned senior advocate appearing for the appellant had made a proposition that:­

 

‘numerous acts of possession involves a long time. Numerous acts of ownership to operate as title against a third party one should establish (1) that these numerous acts of ownership were positive and uninterrupted for a long period of time, at least 15 years or in the alternative these acts of ownership must have been continuous to the knowledge of the third party and who did nothing until a building was completed on the site. The third party is the rival claimant.’

 

No authority was cited for this proposition and I think the time cannot be arbitrarily pegged at 15 years. The period of 12 years as in the instant case seems to me sufficient. The building of the bulldog buildings on the land, the letting to the carpenter and wine tapper who were obviously plying their trade on the land, and the deposit of blocks and sand on the land were in my view sufficient numerous and positive acts of ownership. None of them was interrupted either by the Ojomo Eyisha family or by the appellant.

 

Then there are the competing conveyances Exhibits A and C. Both were duly registered. Exhibit A which was executed on 26th September, 1959 was registered on 19th October, 1959 while Exhibit C executed on 9th April, 1969 was registered on 16th April, 1969. Clearly between these two registered conveyances that of the respondent was first in time and took priority although the act of registration does not confer a better title. In fact registration of instruments is not concerned with the validity or authenticity of such instruments. Once the deed is registrable it will be accepted for registration even if its terms are inconsistent with a deed in relation to the same land registered earlier. Although I agree with Chief Sowemimo that registration is not notice to the whole world (see Omosanya v. Anifowoske (1959) 4 F.S.C. 94, 98) the earlier registration by the respondent would have given notice to the appellant, if only he made a diligent search, that the land had been previously dealt with. Section 16(1) of the Land Instruments Registration Law (Cap 64 of the Laws of Lagos State), to which both the learned trial judge (indirectly) and the Court of Appeal made reference provides as follows:­

 

‘Subject to the provisions of this law, and in particular of subsection (2) of this section every instrument registered under this Law shall, so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration as hereinafter defined in the proper office as specified in Section 3, and every instrument registered before the commencement of this law shall be deemed to have taken effect from the date provided by the law in force at the time of its registration.’

 

The Supreme Court in Amankra v. Zankley (1963) 1 All N.L.R. 304 considered the meaning of this section as well as Section 15 thereof. The Court was of the view that the Act envisages that a person who receives a conveyance should register it and registration is intended to give protection to others to whom the original owner might wish to sell the land again. It came to the conclusion (as per Bairamian J.S.C.) that if both competing deeds are registered, each takes effect as against the other from the date of registration. The benefit of earlier registration is preserved. Of course the case was not exactly on all fours with the present case as indeed there is no case of an earlier executed deed being registered later. In the instant appeal the deed, Exhibit A, was executed and registered about 10 years before Exhibit C was executed and registered. Its priority over Exhibit C is beyond question.

 

In D. O. Idundun and Ors. v. Daniel Okumagba and Ors. (1976) 1 N.M.L.R. 200 this Court set out five ways any one of which could be used to establish ownership of land. Two of them were:­

 

(i)      by production of documents of title which must be duly authen­ticated in the sense that their due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of contract;

 

(ii)     acts of a person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person (or persons) is (are) the true owner(s).

 

I have already dealt with (ii) in this judgment. As regards (i) above, the respondent produced Exhibit A duly executed by Chief Ayo Williams in her favour. By paragraph 9 of her amended statement of claim she claimed that an estate in fee simple had been conveyed to her by Chief Ayo Williams. The title of Chief Ayo Williams was never successfully challenged by the appellant or the Ojomo Eyisha family. Both Exhibits D and E were of no assistance to the appellant for purposes of such a challenge. The appellant’s only witness did say in his evidence that Chief Ayo Williams was not the owner of the land in dispute but that to my mind is not sufficient. This is so since the same witness admitted under cross-examination that Chief Ayo Williams in his lifetime laid claim to a large area of land in Mushin. The Ojomo Eyisha family he said disputed this claim and Chief Ayo Williams sued the family in Court and obtained judgment.

 

Taking all into account, it is my view that the learned trial judge was right to conclude as he did:­

 

‘It is true that the nature of the declaration the plaintiff is claiming is not stated in the writ of summons but it is clear from paragraph 9 of the amended statement of claim and Exhibit A that the title which the plaintiff obtained from Chief Ayo Williams is a title in fee simple. I am satisfied that the plaintiff has made a case sufficient to enable me exercise my discretion in her favour and grant her a declaration of title in fee simple despite her failure to state the nature of the declaration she is asking for in her writ of summons.’

 

There is one more matter that I would wish to deal with. At the conclusion of addresses of counsel, the learned senior advocate appearing for the appellant referred to the cases Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101, 102 and 112; Kareem v. Ogunde (1972) All N.L.R. 73, 77; Omosanya v. Anifowoshe (1959) 4 F.S.C. 100 and Da Costa v. Ikomi IN Ors. (1968) All N.L.R. 394. He contended that as no conveyance was given to Chief Ayo Williams by Oguntohun he only had an equitable interest to convey to the respondent. Even if the respondent and the appellant claim to be in possession, he submitted, possession would be ascribed to the one with better title, i. e. the appellant. I have carefully gone through these cases but cannot see how they alter the conclusions I have reached in this appeal. First, to hold that Chief Ayo Williams had only an equitable interest necessarily implies accepting that in 1930 there was a sale of land to him by Oguntohun albeit no conveyance was drawn. In that case Chief Ayo Williams was in possession of the land in dispute from 1930 to 1951 when the Ojomo Eyisha family unsuccessfully challenged him. Although there is no direct evidence on the matter it would have to be assumed that the sale by Oguntohun to Chief Ayo Williams may have been in accordance with customary law.

 

In that case it has been held that if a party received title to land under native law and custom and entered into possession, and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bona fide purchaser would not be upheld. See Amao v. Adebona (1962) L.L.R. 125. Further if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T. A. Orasanmi v. M. 0.Idowu (1959) 4 F.S.C. 40. More closely to the contention here is the decision in Soremekun v. Shodipo (1959) L.L.R. 30 to the effect that if land is sold to a party without execution of a formal deed of conveyance his interest was no more than equitable. Legal estate of another party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decisions of the Privy Council in Oshodi v. Balogun & Ors., 4 W.A.C. A. 1 at 6 and Suleiman &Anor. v. Johnson, 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate. In the instant appeal, Chief Ayo Williams may have obtained an equitable interest from Oguntohun but he was in undisturbed possession of the land from 1930 to 1959 when he conveyed it to the respondent. I am still of the view that what the respondent obtained was a title in fee simple.

 

In the final analysis, this appeal must fail and it is hereby dismissed. The judgments of the High Court and the Court of Appeal (though for different reasons) are hereby affirmed. Costs to the respondent are assessed at N300.00.

 

BELLO, J.S.C.: I had a preview of the lead judgment of my learned brother, Nnamani, J.S.C. I adopt the reasons stated by him for dismissing the appeal. The appeal is dismissed. The judgment of the Court of Appeal is affirmed. N300.00 costs to the respondent.

 

OBASEKI, J.S.C.: I have had the advantage of reading in advance, the draft of the judgment just delivered by my learned brother, Nnamani, J.S.C. The opinions expressed therein on the issues raised in this appeal accord with my own and I adopt them as my own. For the reasons so ably set out therein, I too will dismiss the appeal.

 

However, I am adding the following comments by way of emphasis. The main issue or question for determination in this appeal is whether the plaintiff/respondent, who, on 26th September, 1959 bought the piece or parcel of land situate, lying and being at Fagbile, Odi-Olowo, Mushin, Ikeja District referred to as the land in dispute obtained a conveyance of a fee simple title from his vendor, Chief Ayodele Williams, now deceased, who traced his title to Chief Ojomo Eyisha family and was in possession, could, in 1971 be ousted from possession by the defendant/appellant who bought at a later date, i. e. 1967 not from the Chief Ayodele Williams but from the Chief Ojomo Eyisha family and obtained conveyance from the Ojomo Eyisha family.

 

From the pleadings filed, the appellant joined issue on the question of title and possession for in paragraph 12, he pleaded that ‘the plaintiff has never been in possession of any part of the land edged red on the plan attached to the statement of claim’ and in paragraph 15 of the statement of defence he pleaded that ‘the 1st defendant will rely on the judgment in Suit No. S.C. 522/63, Wahabi Amusa v. Chief Ayodele Williams estopping the plaintiff from denying the title of the Ojomo Eyisha family.’ While the plaintiff/respondent and three witnesses testified at the instance of the plaintiff, the 1st defendant/ appellant did not testify but only called a member of Ojomo Eyisha family who testified and tendered the conveyance, Exhibit C executed in the appellant’s favour by the Ojomo Eyisha family and the certified true copy of the Supreme Court judgment in Suit No. S. C.522/1963 Wahabi Amusa v. Chief Ayo Williams, Exhibit D.

 

Oshodi, J., finding that ‘the plaintiff had possession until the defendant came on the land’ is very crucial. The absence of any evidence from the defendant to identify the land purchased by him from the Ojomo Eyisha family has, in my view, left all the submissions of the appellant’s counsel in the air. If, as proved, the respondent was continuously in possession for 12 years and before her, Chief Ayodele Williams asserting his right of ownership against the Ojomo Eyisha family, the 1st defendant’s witness’s testimony that the Ojomo Eyisha family unsuccessfully tried to obtain possession from him by legal process was fatal to the defendant’s/appellant’s case.

 

There can be no such thing as concurrent possession by two persons claiming adversely to each other, Amakar v. Obiefuna (1974) 1 All N.L.R. (Part 1) 119. A trespasser does not by the act of trespass secure possession in law, Adelakin v. Oduyebe (1972) 6 S.C. 208 at 216. The mere fact of the failure of a claim for declaration of title will have no effect on any right of possession (see Okiji v. Adejobi (Bale) 5 F.S.C. 44 at 49. A Court must give judgment according to the justice of the case.

 

For the above reasons and the reasons set out in the judgment of my learned brother, Nnamani, J.S.C., I hereby dismiss the appeal and affirm the decision of the Court of Appeal and the High Court with costs as ordered by my learned brother, Nnamani, J.S.C.

 

ESO, J.S.C.: I had the privilege of a preview of the judgment which my learned brother Nnamani, J.S.C., has read. I am in full agreement with his reasoning and conclusion and will adopt the reasoning in the judgment to dismiss the appeal. I abide by the order as to costs in the judgment of my brother Nnamani J.S.C.

 

U WAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Nnamani, J.S.C. For the reasons given by him I agree that the appeal should be dismissed with N300.00 costs to the respondent.

 

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