Abdul Hamid Ojo V. Primate E. O. Adejobi & Ors (1978)
LawGlobal-Hub Lead Judgment Report
N. ANIAGOLU, J.S.C.
In the High Court of Lagos the plaintiff/appellant instituted an action against the defendants claiming:
“1. 200 pounds damages for trespass to all that piece or parcel of land situate lying and being at Mc Ewen Street, (otherwise known as AYINDE STREET) Yaba East, in the Lagos State.
- Injunction restraining the Defendants, their agents and or servants from continuing trespass to the said land.
DATED THIS 29TH DAY OF JANUARY, 1971.”
Pleadings were ordered and filed. The plaintiff filed a Statement of Claim dated 17th April, 1971 to which the defendants answered in their Statement of Defence dated 7th February, 1972. The defendants later got leave of court to file an amended Statement of Defence. This they did in their amended Statement of Defence dated 24th November, 1972. In the same order plaintiff was granted leave to file a reply to the amended Statement of Defence within 24 hours of the service on him of the amended Statement of Defence. He was unable to comply with the order and his later application dated 9th December, 1972 for extension of time was refused.
Each party in their pleadings claimed ownership of the land in dispute tracing, derivatively, the root of their title. Both sides did not exactly agree as to the location of the land in dispute. In the Statement of Claim the plaintiff averred it is situate at the back of Ladi-Lack School, Yaba. In both the Statement of Defence and the amended Statement of Defence the defendants stated they were not in a position to admit or deny this but specifically stated in paragraph 5 of the their amended Statement of Defence that the land in dispute is at the back of Akinwunmi Street, Yaba. The plaintiff averred that the land in dispute, situate at the back of Ladi-Lack School, Yaba, was the subject-matter of an application No. MOO339 by the defendants for the registration of title under the Registration of Titles Act and was more particularly described in a plan attached to the Statement of Claim and marked Nos. 4 and 17 and was therein verged pink.
The plaintiff claimed ownership of the land in dispute through Oloto Chieftaincy family, which family under native law and custom, had “seized” a vast area of land of which the land in dispute formed a part. The Oloto Chieftaincy family, he said, sold the land in dispute to the plaintiff under a Deed of Conveyance. Paragraphs 4 and 5 of the Statement of Claim which clearly portrayed the plaintiff’s assertions as to the origin of the title, are as follows:
“4. The land originally formed part of a vast area of land seised by the Oloto Chieftaincy family under Yoruba Native law and custom.
- Under and by virtue of a Deed of Conveyance dated the 27th November, 1943 and registered as No.49 at page 49 in Volume 635, the Oloto Chieftaincy Family sold and conveyed to the Plaintiff the totality of their interest and title to an area of land including the land in dispute and delivered possession to the Plaintiff.”
The defendants, on the other hand, have, in their amended Statement of Defence traced their title to the land to one Rufus Adekunle Wright, now deceased. Paragraphs 4, 5 and 6 of their amended Statement of Defence clearly set out the facts on which they relied:-
“4. The Defendants deny paragraphs 4, 6, 8 and 9 of the Statement of Claim.
- The land in dispute is at the back of Akinwunmi Street, Yaba and forms a portion of a large area of land which belonged to Rufus Adekunle Wright.
- The Defendants will rely on the Judgment in WACA 2886 between Rufus Adekunle Wright v. Ahmadiyya Movement-in -Islam and the Oloto Chieftaincy Family wherein the said Rufus Adekunle Wright was declared the owner of the Wrights’ Estate which include the land in dispute and accordingly the Defendants aver that the plaintiff will be bound by the said Judgment.”
The trial of the suit came before Dosunmu, J., in the High Court of Lagos. Both sides led evidence. In proof of his case, the plaintiff relied on the Deed of Conveyance to him from the Oloto Chieftaincy Family dated 27th November, 1943 registered as No. 49, page 49, Volume 635 in the Registry of Deeds, Land Registry, Lagos, which the plaintiff tendered in evidence as Exhibit A. In tendering the document, the plaintiff testified in his evidence-in-chief that:
“Sometimes in 1943, I received from the family a Deed of Conveyance dated 27/11/43 which I can not produce, because it is in the Lands Registry for registration under title. But I have a certified true copy of it. Produced, no objection, admitted as Exhibit “A”.”
As can be seen, no objection was raised to the document. The plaintiff’s root of title was the Oloto Chieftaincy family just as it was the root of title from which the appellant claimed in Mosalewa Thomas v. Preston Holder (1946) 12 WACA 78. In stressing the necessity of a plaintiff proving the root of his derivative title the West African Court of Appeal, in that case, stated at page 80 that:
“Where the Plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the Plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been so 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 and in such case the court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner. In the present case we are satisfied from the evidence that the appellant has established original ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the certificate of purchase by Samuel in 1943 and the series of conveyance by which the Appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the court would not on equitable grounds make a declaration or disturb the respondent’s possession. This in our view the respondent failed to do.”
By way of reinforcing his claim to the ownership of the land, the plaintiff pleaded in paragraph 7 of his Statement of Claim a successful objection he had raised before the Registrar of Titles when the defendants attempted to register their title to the land in dispute. He pleaded:
“7. In an objection proceedings before the Registrar of Titles in an application by the Defendants to register the title to the said land the Plaintiff established his title as against the Defendants to the entire land, including the land in dispute, vide the judgment of the said Registrar in Title No. MOO339 delivered on the 20th July, 1959. On appeal by the Defendants the High Court of Lagos on the 8th February, 1960 affirmed the judgment of the Registrar and dismissed the appeal lodged by the Defendants.”
Giving evidence in support of this portion of his Statement of Claim the plaintiff testified as set out hereunder:
“This proceedings are not the first I am having with the Defendants. In the Lands Registry, when the Defendants applied to register the land, I objected, and there was a hearing of the objection. The hearing was under Title No. MOO 339. There was a decision of the Registrar which went against the Defendants. They appealed and lost. I produce Certified true copies of the decision of the Registrar, and the Judgment of the High Court on appeal. No objection to the judgment of the High Court, admitted as Exhibit “B”.
The plaintiff had pleaded in paragraph 7 and 8 of his Statement of Claim that the defendants, by reason of the decision of the Registrar of Titles in Exhibit C and the judgment of the then Ag. C.J. Alexander Bellamy (Exhibit B), were estopped from challenging the title of the plaintiff to the land in dispute.
After reviewing the evidence adduced by both parties, the learned trial Judge, in a reserved judgment, dismissed the plaintiff’s claim. Being dissatisfied with the judgment, the plaintiff has now appealed to this court.
Counsel for the appellant, Akin Sikuade, relying on the judgment of this court in Daniel N. Adebona v. Bamgbola Amao (1965) 1 All NLR. 370, submitted that the decision of the Registrar of Titles and the judgment of Bellamy, Ag. CJ., Exhibits B and C above, constituted res judicata against the defendants in the instant case.
All this argument and the evidence of the plaintiff in support, presupposed the existence of a valid and admissible Deed of Conveyance, Exhibit A. Counsel and parties, on both sides had all assumed the validity of Exhibit A, and based their arguments on its genuiness. The case was fought for all that long period before the High Court without anyone adverting his mind to the true nature of Exhibit A.
In the course of the arguments on this appeal, however, this court had a close look at Exhibit A and discovered that it is entirely a worthless document. It is a photocopy of a supposed copy of a Deed of Conveyance. It is written in long hand and nobody signed it. It bears the names of a number of people who did not sign but whose names were inserted with the prefix “Sgd.” against their names. The entire document was written out by one person, as we have stated, in long hand. No member of the Oloto Chieftaincy family – the family which supposedly conveyed the land in dispute to the plaintiff and on the validity of whose title the plaintiff is claiming – signed the document. The Evidence Act, Cap 62, has made provisions for the admission of certified copies of documents but in none of its sections has it provided for copies of copies of documents.
Mr. Sikuade was, not unnaturally, taken completely aback when he looked at Exhibit A, and stated so in court. He conceded that Exhibit A was not an admissible document and ought not to have been admitted and that title could not be based on it. He did not take part in the proceedings in the court below.
Mr. Sikuade further submitted that this point as to the nature of Exhibit A was not raised in the court below, thereby implying that this court should not rest its decision on it. The ambit of Order 7 Rule 26 of the Supreme Court Rules which provides that:
“26. The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.,”
is wide enough to embrace a situation such as this. The court cannot, in any event, ex debito justitiae, ignore a situation in which the foundations of a claim to a proprietary legal interest are based on a worthless, unsigned, and inadmissible document. As a last resort, Mr. Sikuade urged the court, as he said, in the interest of justice, to get the original of Exhibit A. He was undoubtedly prompted into making this application when, with the permission of the court he consulted the plaintiff who was in court. He informed the court that the plaintiff said he tendered the original of Exhibit A. That, from the record, was entirely untruthful of the plaintiff who in that part of his evidence-in-chief earlier quoted had told the court he could not produce the Deed of Conveyance dated 27th November, 1943 “because it is in the Lands Registry for Registration under Title”. For plaintiff to have told his counsel that he tendered the original in the court below was false and false to his knowledge.
The simple answer to counsel’s request is that this court does not make a case for the parties. A party establishes his case or fails. The plaintiff, not having proved the base upon which he claimed the land in dispute, namely, the Deed of Conveyance dated 27th November, 1943 registered as No. 49 at Page 49 in Volume 635 of the Land Registry, Lagos, granted to him by the Oloto Chieftaincy family, this appeal must, and is hereby dismissed.
The judgment of the court below, although for a different reason, is hereby affirmed. The plaintiff must pay the costs of this appeal to the defendants which we assess at N166.00.
Other Citation: (1978) LCN/2086(SC)
