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21 ST JUNE, 1956

WACA 77/1955

3PLR/1956/42 (SC)




SIR JOHN VERITY, Ag. F. J. (Read the Judgment of the Court)



Jibril Martin – for the Appellant.

  1. V. Davis -for the Respondent.


CONVEYANCING – Vendor and Purchaser – Outstanding equitable interest in favour of vendor – How determined.

LAND LAW – Composite plans – How conflicting claims are indicated.

LAND LAW – Declaration of title – Claim to ownership and action for tres­pass – Nature of evidence requisite to establish each.

LAND LAW – Declaration of title – Recitals in deed twenty years old – Pre­sumption of truth – Section 129, Evidence Ordinance (Cap. 63).

LAND LAW – Registration of titles – Instruments registered under the Lands Registration Ordinance – Creates no priority and confers no title.



VERITY, AG. F.J. (Delivering the judgment of the Court):

This is an ap­peal from a judgment of Abbott, J., dismissing the appellant’s claims in con­solidated actions in which he sought as against each defendant damages for trespass to certain land situate at Ebute Metta, an injunction and a declara­tion of title thereto.

The appellant sought to trace his title to a deed of gift granted in 1896 by Simon Jacobs to Adenye Desalu. He produced two documents: a mortgage by Desalu to the Scottish Nigerian Mortgage & Trust Company Limited in 1923 (Exhibit E) and a deed of conveyance dated 25th June, 1953, from the said Company and certain other parties to the appellant (Exhibit K).

The deed of gift was not produced but its grant on the 6th August 1896 is re­cited in the Mortgage deed of 1923 and by virtue of Section 129 of the Evi­dence Ordinance (Cap.63) the truth thereof is to be presumed unless there be evidence to the contrary, of which in this case there is none. The history of the land subsequent to the mortgage of 1923 is recited in the conveyance of 1953 from which it would appear that, the mortgagor having made default in repayment of the money advanced, the mortgagees in 1931 exercised their power of sale and the land in question was purchased at auction by one Adewunmi for £25. It does not appear that any conveyance was executed in completion of this sale but in December of the same year the purchaser re­sold to one Oshire for £50. Again no conveyance appears to have been exe­cuted and in April 1951 this second purchaser died leaving three children, his heirs at law, who in May 1951 sold to the appellant for £250. In June 1953 the deed of conveyance was executed, the mortgagees, the first purchaser, and the children of the second purchaser purporting to be parties thereto. Evi­dence was given at the hearing by Adewunmi himself and by one of the chil­dren of the second purchaser in confirmation of the recitals as to these sales and the conveyance was duly executed by the attorney of the mortgagees, by the first purchaser and by two of the children of the second purchaser. It ap­pears, however, that it was not until the close of the hearing that the learned Judge upon further examination of the deed (Exhibit K) observed that it did not appear to have been in fact signed by the third of these children. Counsel for the appellant admitted at the hearing before us that in fact she had not signed the document, a fact of which he was unaware until he made enquiries after the judgment in the suit had been delivered.

The appellant gave evidence as to being put in possession and as to the respondents’ entry upon the land and adduced further evidence as to posses­sion by his predecessor in title.


In reply to this the respondents produced certain deeds of conveyance the earliest of which is dated 25th June, 1952, and purports to evidence a sale of the land in question by a previous head of the Oloto Chieftaincy Family to one Oni at some unspecified date in 1927. It is through Oni and a sub-purch­aser Imoru that the respondents claim.


The identity of the land is evidenced by certain plans prepared by a licensed surveyor for the purposes of this action.

In his judgment the learned Judge having observed, as I have said, that Exhibit K had not been executed by one of the parties thereto, proceeded: “That means that there is an outstanding


“equitable interest ……….. and it would “be impossible for the plaintiff to pass “a clean title to a purchaser from him. “The plaintiff’s title is defective and “the defect is not cured by registration.”


Having then referred to certain other matters with which I propose to deal later, he held that the plaintiff had not proved his claim to a declaration of title.


In considering this aspect of the matter and more particularly in regard to the supposed “equitable interest” of the third child of the second purch­aser it must be borne in mind that there is, quite apart from Exhibit K evi­dence of the various sales which preceded the execution or non-execution of this document, evidence upon which the court would as it stands have made the requisite orders for specific performance of the various agreements for sale coupled with the payment of purchase money and the entry into posses­sion by the purchasers thereunder. It may be open to doubt whether or not the first and second purchasers were necessary parties to the conveyance in order to pass the legal estate from the mortgagees to the appellant, although this would be the proper conveyancing practice in view of the increases in the purchase price on each of the sales subsequent to the first. But with all due deference to the learned Judge I am unable to see what equitable interest re­mains in any one of the heirs of the second purchaser, who, on the contrary having agreed to sell, having received the purchase money and having put the appellant into possession are in equity bound to give him such assurance by deed as may be required to vest in him all their interest in the land whether legal or equitable.


I am of the opinion, therefore, that unless the respondents have shown a better title the appellant should have, as against them, the declaration sought. It is clear, however, that the respondents cannot show a better title. The root of title to which they seek to trace their claim is in the Oloto Chief­taincy Family and is to be found in a bare recital in the deed of 1952 sup­ported by no evidence, while even this recital goes on further back than an averment that the land was vested in the Family in 1927, a date four years after the mortgage of 1923 and thirty one years after the deed of gift which is the root of the appellant’s claim.


Two further observations in regard to the appellant’s title were made by the learned Judge and although I remain in some uncertainty as to the weight attached by him therein I think that I should make some comment therein. In the first place he referred to the fact that the respondents’ deeds were re­gistered before the appellant’s conveyance. Registration of the instrument under the so-called Land Registration Ordinance Cap. 108 confers no title and is not concerned with the creation of priorities such as might have been the case under the Registration of Titles Ordinance Cap. 97 and I am not therefore of the opinion that any weight ought in this case to be attached to the respective dates of registration, for there is no suggestion in the evidence that the appellant’s deed and the matters recited therein were concocted ex post facto to defeat the respondents’ title.


The learned Judge also commented upon certain appearance upon the plans produced in evidence and apparently accepted a suggestion by counsel who appeared for the respondents in the court below that the plans do not disclose the dimensions of the parcels of land in dispute. It appears to me that the plans comply with the accepted method of indicating distinctive col­orations in composite plans and that no exception can reasonably be taken to them. The distinguishing coloured verges of conflicting claims must of necessity be indicated one within another for they cannot be superimposed but the effect if viewed aright cannot in my view give rise to any confusion. In this regard I would like to associate myself with the observation made by the learned Chief Justice in the course of the hearing of the appeal that the re­flections made by the learned Judge upon the competence of the surveyor who drew the plans are entirely unjustified.


In the event therefore I am of the opinion that the learned Judge erred in dis­missing the appellant’s claim for a declaration of title to which I think the ap­pellant was entitled upon evidence stretching further back and more adequately documented than is indeed frequently met with in these courts.


In regard to the claims for damages and an injunction these also were dismissed on the ground that the appellant had failed to satisfy the learned Judge that he was in possession at the time of the alleged trespass. A distinc­tion is to be drawn as to the nature of the evidence which is necessary to es­tablish a claim to ownership based upon long possession and the exercise of acts of ownership and that requisite in an action of trespass to establish pos­session by the owner under recently acquired title, and for the latter purpose I think that in this case the learned Judge should have been satisfied with the evidence of possession given by the appellant and his witnesses, even though witnesses for the respondents may not upon occasion have seen any person in actual physical occupation of the particular part of the land upon which they entered.


In my view the appellant established each of his claims and I would allow the appeal setting aside the judgment of the court below and entering judgment therein for the plaintiff in each action for the declaration and in­junction sought and for damages for trespass. Counsel on both sides at the hearing of the appeal agreed that if the appeal succeeded the appellant should be awarded nominal damages. I would fix the sum of twenty shillings in each action, the appellant to have his taxed costs in each action in the court below and his costs on this appeal fixed at £23:10:- against each respon­dent.


FOSTER-SUTTON, F.C.J.: I concur.


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


Appeal Allowed


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