Adekunle Coker V. Albert Farhat (1952)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Real Property—Claim for possession—Defendant in possession—Plaintiff not proving any right to possession.
Evidence—Recital in conveyance—Vendor dead—No foundation laid for secondary evidence of document mentioned—Evidence Ordinance, section 90 (1), (a) (i), (6) and proviso; section 96 (1).

Facts

Section 90 (1), (a) (i) and (6) read as follows:—

” 90 (1)—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:—

“ (a) if the maker of the statement either—
“ (i) had personal knowledge of the matters dealt with by the statement; or (ii) . . and
” (b) if the maker of the statement is called as a witness in the proceedings:

” Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”

Section 96 (1) of the Evidence Ordinance provides that:—
“96 (1)—Secondary evidence may be given of the existence, condition or contents of a document in the following cases:—
“(a) when the original is shown or appears to be in the possession or
power—
“(i) of the person against whom the document is sought to be proved; or
“(ii) of any person legally bound to produce it; and when, after the notice mentioned in section 97, such person does not produce it;

“(6) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
“ (c) when the original has been destroyed or lost and in the latter case all possible search has been made for it;
” (d) when the original is of such a nature as not to be easily movable;
” (e) when the original is a public document within the meaning of
section 108;
” (i) when the original is a document of which a certified copy is permitted by this Ordinance, or by any other law in force in Nigeria, to be given in evidence;

“ (g) when the originals consist of numerous accounts or other documents
which cannot conveniently be examined in court, and the fact to
be proved is the general result of the whole collection;

“ (h) when the document is an entry in a banker’s book.”

The plaintiff’s case was that he bought the premises in dispute in 1950 with a conveyance from the vendor containing recitals proving the vendor’s title and right to convey, viz. that A. had conveyed in fee simple to B., who made a deed of settlement in 1895 settling property including the premises in dispute upon the trusts mentioned in that deed, that B.’s widow made a will containing a proviso, which was recited, and finally this, that the vendor became the beneficiary of the property comprised in the settlement.

The deed of settlement was tendered in evidence, but not the will, nor was any foundation laid for leading secondary evidence of its contents. The plaintiff claimed possession. The defendant had built the house on the land and been in possession since 1945; he disputed the vendor’s title to convey to the plaintiff.

The trial Judge gave judgment for the plaintiff on the basis of the conveyance and its recitals as being proof of the vendor’s title to convey and right to possession. The defendant appealed.

The argument turned mainly on evidence. For the plaintiff it was that his vendor had personal knowledge of the matters recited in the conveyance but as he was dead, it was not necessary to call him as a witness: Evidence Ordinance, section 90 (1), para, (a) (i), para. (6) and proviso, relied upon.

For the defendant the argument was that before a statement in a document can become evidence of a fact under section 90 (1) the requirement that direct oral evidence of the fact would be admissible had to be satisfied: (which related to the will mentioned above, as it had not been tendered in evidence, and to section 96 (1) of the Evidence Ordinance).

It was also argued for the respondent that as a plaintiff suing for possession all he had to prove was a better right to it than the defendant-appellant’s.

Held

(1) The respondent-plaintiff had a duty to establish a right to possession before his claim for possession could arise for comparison with the appellantdefendant’s.

(2) No foundation was laid of the facts to be proved as required by section 96 (1) of the Evidence Ordinance so as to make secondary evidence of the will admissible: without proof of the facts so required the vendor could not have given direct oral evidence of the contents of the will, therefore his recital in the conveyance ought not to have been accepted hs establishing any facts alleged by it.

Appeal allowed.