Alhaji Oyebanji & Ors V. Iyabo Afusat Lawanson & Ors (2003)
LawGlobal-Hub Lead Judgment Report
FRANCIS FEDODE TABAI, J.C.A.
The claim of the plaintiffs who are respondents herein against the defendants who are appellants herein was for:
“(a) N10,000.00 damages for trespass being presently committed by the defendants on the property of Bamidele Ayinla Lawanson (deceased), the father of the plaintiffs lying and being at Orita Bashorun Abas Road, Ibadan covered by deed of conveyance registered as 50/50/35 of the Lands Registry, Ibadan.
(b) Perpetual injunction restraining the defendants by themselves, their agents, servants and privies from committing further trespass on the land.”
Pleadings were filed and exchanged. The actual trial involved the testimony of witnesses for both parties. There were a number of documentary evidence as well. At the close of evidence counsel for the parties addressed the court.1
On the 14/7/99, the learned trial Judge entered judgment for the plaintiffs/respondents. Aggrieved by the decision, the appellants filed this appeal. Altogether, nine grounds of appeal were filed. And before this court, the parties through their counsel filed and exchanged their briefs of argument. The appellants’ brief was prepared by R. A. Ogunwole and same was filed on the 15/10/01. The respondents’ brief was prepared by J. O. A. Ajakaiye and it was filed on the 29/11/2001.
Five issues were raised for determination by counsel for both parties. The issues are:
“1.Whether the court has jurisdiction to entertain the action having regard to (i) section 7(2) of the Limitation Law, Cap. 64, Laws of Western Region of Nigeria, 1959 and (ii) section 4(1)(a) of the Limitation Law, Cap. 64, Laws of Oyo State of Nigeria, 1978.
2.Whether the respondents have discharged the onus of proof that they are entitled to the land in dispute by production of deed of conveyance exhibit B when they have failed to prove its due execution.
3.Whether the respondents have proved better title to the land in dispute and to entitle them to damages for trespass when the respondents’ and appellants’ plans exhibits A and E respectively showed that the appellants were in effective possession of the land in dispute.
4.Whether the learned trial Judge was right in rejecting the appellants’ evidence that they are rightful owners of the land in dispute for failure to obtain receipts/conveyance from their respective vendors when the appellants were relying on purchase under native law and custom.
5.Whether the learned trial Judge was right in relying on exhibits C – C3 when their due execution by Olugbode family has not been proved.
Arguments:
On the first issue of jurisdiction, the substance of the arguments of the appellants is that, since the reliefs in the writ of summons and the averments in paragraphs 17 and 18 of the statement of claim and paragraph 5 of the plaintiffs’ reply to the statement of defence all stated the trespass to have been committed on or about 1984 and this action was filed on the 3/4/91 more than 7 years after the cause of action arose, the action is statute-barred, it having been brought outside the limitation period of six years as stipulated in section 4(1)(a) of the Limitation Law, Cap. 64 of the Laws of Oyo State, 1978. It was contended that the provision is mandatory and since it is a matter of jurisdiction cannot, by consent of the parties, be waived.
The appellants relied on Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122. With respect to the principle of continuing trespass, it was submitted that a defence properly raised and sustained can put a bar or defeat the right of the owner of such land or to complain of the continuing trespass. For this submission, they relied on Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) 38 at 61. Appellants referred again to sections 6(2) and 7(2) of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 and contended that the action was statute barred having been filed after 12 years of the existence of the cause of action.
With respect to the 2nd and 5th issues the appellants referred to paragraph 20 of the statement of defence and the assertion to the effect that the purported conveyance to the respondents’ father Lawanson – was void, same not having been executed by the head and principal members of the 9 branches of the said family and the respondents’ reply which failed to deny the said paragraph 20 and submitted that the failure to so deny was an admission.
He regard the evidence, appellants referred to the evidence of the 1st plaintiff who did not know who was head of the Olugbode family between 1959 and 1961, the fact that no member of the said Olugbode family was called and the fact that the vendors of exhibit B did not include the head of principal members of the family and the evidence of the DW2 and DW3 from the said Olugbode family and contended that execution of exhibit B was not proved. It was submitted, therefore, that the finding of the learned trial Judge about Busari Agboade Olugbode being the Mogaji of the Olugbode family when exhibit B was made was wrong and the case ought to have been dismissed.
On issues 3 and 4, it was contended that while the appellants’ possession of the land in dispute is clearly shown in both exhibits A and E, that the respondents’ are not shown even on their own plan. It was pointed out specifically that the house built by Lawanson or its location ought to have been shown in their plan exhibit A. It was further argued that the appellants proved valid sale of the land in dispute in 1956 under native law and custom. The appellants contended that since they proved exclusive possession of the land in dispute, there was nothing like concurrent possession. It was urged that the appeal be allowed.
On behalf of the respondents, the following arguments were proffered. With respect to the 1st issue of jurisdiction, it was contended that the Limitation Law as a defence was distinct from the case of the appellants at the court below and having regard also to the fact that there were no facts pleaded by the appellant to enable the invocation of the Limitation Law. It was submitted that the limitation period in actions for recovery of land is 12 years and the action is therefore, not statute-barred.
With respect to proof of title in issues 2 and 5 the respondents referred to sections 18(1)-(5) and 31(1) and (2) of the Land Instruments Registration Law of Oyo State and submitted that the certified true copy of a conveyance duly registered thereunder, shall be received in evidence without any further or other proof in all cases. For this submission, the respondents relied on Tewogbade v. Obadina (1994) 4 SCNJ (Pt. 1) 161 at 178; (1994) 4 NWLR (Pt. 338) 326; Adelaja v. Fanoiki (1990) 3 SCNJ 31; (1990) 2 NWLR (Pt.131) 137 and Amaroti v. Agbeke (1991) 6 SCNJ 54. It was submitted that exhibit B met the aforesaid requirements of the Lands Instruments Registration Law of Oyo State and the pleading in paragraph 5 of the statement of claim. Reference was made to the evidence of the DW2 and DW3 which, it was contended, supported the due execution of exhibit B. The respondents relied on Ibeziako v. Nwagbogu (1973) 1 NMLR 113 at 114 at 123 – 124.
As respects the 3rd and 4th issues, it was pointed out that both parties traced their title to the Olugbode family. It was contended that while the plaintiffs/respondents proved their title conclusively through exhibit B, the appellants who claimed to purchase under native law and custom failed to prove the sale transaction of the land in dispute. The respondents referred to the evidence of the DW2, Adebisi Olugbode to the effect that the plot of land shown to the 1st defendant is different from the land in dispute and submitted that the evidence knocked out the bottom of the appellants’ case.
It was contended that the evidence of the appellants, was at variance with their pleadings and argued that same be ignored. It was finally contended that since the land sold under native law and custom to the 1st defendant is different from the land in dispute, any possession by the appellants of the land in dispute is an act of trespass. They relied on Fasoro v. Beyioku (1988) 4 SCNJ 23 at 31-32. It was urged finally that the appeal be dismissed.
The first issue is whether the action is statute-barred by reason of the Limitation Law of Oyo State, 1978. The submission of learned counsel for the appellants is that the statute had not been pleaded before, it can be enforced since it touches the issue of jurisdiction. He relied on Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93 at 97. He submitted in addition that if the time in the writ is beyond the period allowed by the Limitation Law, the action is statute-barred. For this he relied on Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
Learned counsel for the respondents argued on the other hand, that if the statute and the defence therein are not specifically pleaded, the defence does not avail the defendant. He also cited a number of authorities.
In my consideration, there is no conflict of legal opinion in the authorities cited by counsel for the parties. In the first place, it is settled law that the onus is on the defendant who relies on the defence of limitation to specifically plead the statute and the facts relevant to the defence and prove same. See Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1987) 1 NWLR (Pt. 49) 212 and Jimoh Adekoya Odubeko v. Victor Oladipo Fowler & Anor. (1993) 7 NWLR (Pt. 308) 637 at 660. The principle in Amata v. Omofuma (supra) is that where the date or time of accrual of action is clearly stated in the writ of summons and statement of claim and there would be need to call evidence to prove and/or dispose same, the defendant need not plead same to be able to raise the defence.
In this case, the defence was not pleaded and raised in the statement of defence and so the issue was not mentioned let alone contested at the court below. Learned counsel for the appellant argued that the defence of limitation could be raised here on appeal in view of the claim in the writ of summons and paragraph 17 of the statement of claim. Relief (a) in the writ of summon claimed for ‘trespass being presently committed by the defendants’ in the property’. The same is, in substance, repeated in paragraph 21(a) of the statement of claim. There is no date of accrual of the action and so, the defence cannot properly be founded thereon. Paragraph 17 of the statement of claim alleges the 1st defendant’s entry onto the land and destruction of farm products thereon on or about 1984.
But the claim for N10,000.00 is for ‘general damages for trespass being presently committed by the defendants’ on the property’. In the facts of matters pleaded in paragraph 17 of the statement of claim, the claim is not for the trespass allegedly committed by the 1st defendant by the destruction of farm crops on or about 1984. In these circumstances, it cannot, with respect, be contended seriously that the defendants were relieved of the duty to specifically plead the defence of limitation. I do not agree that the writ of summons and statement of claim contained such facts as entitle the appellants to raise the defence here.
There is yet another reason why the plea cannot be sustained at this appeal stage. In paragraph 4.07 of the respondents’ brief of argument, it was alleged that the plaintiffs/respondents were under some disabilities up to 1989 or thereabout. This shows that, if the appellants pleaded in their statement of defence that the defence of limitation availed them, the respondents would have pleaded its aforesaid disabilities in their reply and the issue of whether or not the defence was sustainable would have been tried. In these circumstances, allowing the defence at this stage would clearly put the respondents at some disadvantage. In addition to the foregoing section 6(2) of the Limitation Law, Cap. 64, Laws of Oyo State, 1978 says:
“(2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The writ of summons was issued on the 3/4/91. Even if the right of action were held to accrue on or about 1984, the 3/4/91 is still within the limitation period of 12 years since it is a common ground that the action is one for recovery of land or related thereto. For the foregoing reasons I hold that the protection under the Limitation Law does not avail the appellants. This issue is accordingly resolved in favour of the respondents.
Next is the burden or standard of proof. The question is whether on the state of the pleadings and evidence on record, the respondents were entitled to the judgment of the case. This is the fundamental issue which resolution effectually determines the appeal.
In their respective briefs, learned counsel for each of the parties pointed out reasons why his case should be preferred to the other. Each highlighted contradictions in the case of the other party rendering it improbable. Was the learned trial Judge right in his assessment of the evidence and conclusions drawn therefrom? There is no doubt that he appraised the evidence in considerable details. There is understandably no complaint about lack of evaluation. But evaluation of evidence is one thing. And asking the necessary inferences, the right findings and conclusions from the evidence is yet another thing.
In the cause of his evaluation, the learned trial Judge expressed his perception of the evidence of the plaintiffs’ and their witnesses (except the PW6) and said they were coherent, forthright and credible.
They impressed him as witnesses of truth, an assessment which he alone, as trial Judge, was privileged to make. My duty here is to determine the propriety or otherwise of his findings and conclusions having regard to the evidence before him.
What appears to be the strongest evidence for the respondents is the conveyance, exhibit B, dated 28/4/61. It is the pivot of their case. And the case is that the land was sold to their late father Bamidele Ayinla Lawanson under native law and custom by the Olugbode family in 1959 and that the said sale transaction was subsequently perfected into the deed of conveyance. Exhibit B on the 28/4/61 by the then head of the Olugbode family, Busari Agboade Olugbode and other principal members of the family.
The case of the defendants/appellants is that the land in dispute was sold by the self same Olugbode family to the 1st defendant in 1956 under native law and custom. According to them, the purchase price of ?150 (One hundred and fifty pounds) was paid to the then head of the family, Chief Salami Adetunji Olugbode in the presence of nine principal members from the nine branches that make up the Olugbode family. It was their case therefore, that the conveyance of 28/4/61 was void because (i) the land had earlier in 1956 been validly sold by the head and accredited representatives of the Olugbode family and (ii) Busari Agboade Olugbode and others who executed it were not the head and accredited principal members of the family.
At the trial, the parties called a number of witnesses and tendered both oral and documentary evidence. The respondents did not call any witness from the vendor, Olugbode family. The appellants called two witnesses DW2 and DW3 from the said family. The learned trial Judge preferred the evidence of the respondents which he therefore, accepted. He rejected the case of the appellants. Was he right in his findings and conclusions, particularly having regard to the fact that two witnesses from the vendor Olugbode family DW2 and DW3 testified for the appellants.
As I stated above, the learned trial Judge regarded the 1st plaintiff, PW4, PW5 and PW7 as witnesses of truth and their evidence credible. I cannot venture into the credibility of these witnesses which assessment is the exclusive preserve of the trial Judge. On the other hand, he disbelieved the appellants’ story about the 1st appellant’s purchase of the land from the Olugbode family in 1956.
One of the issues he was to determine was who was head of the family as at the 28/4/61 when exhibit B was made. It was a common ground that Busari Ayoade Olugbode was at one time the head of the family. But while the case of the respondents was that he was such head as at the 28/4/61, the case of the appellants was that he was not and that it was Chief Salami Adetunji Olugbode that was the head.
In their testimonies however, the DW2 and DW3 contradicted themselves. While the DW2 said that Salami Adetunji Olugbode was the head of the family from 1956 to 1960, the DW3 said he was head from 1934 to 25/11/61. On this issue of who was head of the vendor Olugbode family as at the 28/4/61 when exhibit B was made, the learned trial Judge rejected the evidence of the appellants because of the contradiction. In my view, he had good cause to do so. The natural consequence of such a contradiction is the rejection of the story. There are, in addition, some other pieces of evidence from the defendants/appellants which confirm the due execution of exhibit B by the head and accredited representatives of the vendor Olugbode family. At page 99 lines 31 – 34 the DW2 Adebisi Olugbode said under cross-examination:
“Agboade was our Mogaji in 1962. I confirm again that all the names of the vendors in exhibit ‘B’ are names of the members of our family Olugbode. The first name is the name of our Mogaji then.” (Italics mine)
And the first name in exhibit “B” is Busari Agboade Olugbode.
Furthermore, the said DW2 was one of the three members of the Olugbode family who, according to the appellants, took the 1st defendant/appellant to the land sold to him. Yet in his evidence-in-chief at page 98 of the record he said –
“The plots of land shown to the 1st defendant then is different from the land in dispute.”
On the whole therefore, there is overwhelming evidence from the plaintiffs/respondents supported by the evidence from the appellants that exhibit ‘B’ was duly executed in favour of the plaintiffs’ father by the head and accredited representatives of the vendor Olugbode family. Therefore, the finding by the learned trial Judge in this respect is unassailable.
The appellants also challenged the accredited representation of the Olugbode family by the vendors in exhibits C – C3. My view here is that the said exhibits further confirmed the status of Busari Agboade Olugbode and other vendors of exhibit B in the Olugbode family. In exhibits C1 and C3 in particular, Busari Agboade Olugbode was described as the Mogaji of the family. Others who executed exhibit B were S. A. Adeojo Olugbode, Sanusi Adeniyi Olugbode and Saka Adedeji Olugbode also featured in exhibits C – C3. I hold therefore, that exhibits C – C3 strengthened the case of the respondents that Busari Agboade Olugbode and other vendors/grantors in exhibit ‘B’ were the head and accredited representatives of the Olugbode family and duly conveyed the property in dispute to the father of the plaintiffs/respondents on the 28/4/61. Let me now consider the legal effect of the factual situation analysed herein above. First of all, both sides claim to be in possession. The respondents’ claim that their father built a mud house on the land where he lived with his family.
According to them, he and his agents and servants also farmed on the land. And although he later moved to the town, his agents and servants remained behind to continue the farming until the appellants broke into the land and destroyed his properties thereon. The appellants also claimed to be in possession. The evidence of their possession is positive. Their possession is not and cannot be contested. The plaintiffs’ plan exhibit A is positive on the appellants’ possession.
There are buildings and other structures of the appellants all over the land. But there cannot be concurrent possession by two parties claiming adversely against each other. In a situation where the parties in a dispute over a piece of land claim to be in possession, the law ascribes possession to the party who proves a better title to the land. See Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67-77 and Olosunde v. Oladele (1991) 4 NWLR (Pt. 188) 713 at 737. In this case therefore, although the appellants are in possession, the respondents would still be entitled to the judgment of the case if they can establish their entitlement to possession by proof of a better title to the land in dispute. The ultimate issue for determination therefore, is who has a better title.
Both parties claimed to derive their title from the Olugbode family. The trial court had a duty to consider both accounts carefully and then to decide on the balance of probabilities which of them it would accept. This principle has been stated and restated in numerous cases amongst which are Mogaji v. Odofin (1978) 4 SC 91; Woluchem v. Gudi (1981) 5 SC 291; Akintola v. Balogun (2000) 1 NWLR (Pt.642) 532 at 546 and Lion Building Ltd. v. Shadipe (1976) 12 SC 135 at 159. The learned trial Judge was conscious of this principle, and evaluated the evidence before him in considerable details and made his findings and conclusions upon which I have made some comments.
With respect to the ultimate question of who has a better title between the parties, the strongest evidence of the respondents is exhibit B the conveyance of 28/4/61 and the earlier sales transaction under native law and custom which culminated in its due execution.
Their entire case is built upon the conveyance of exhibit B and the sales transaction immediately preceding it. The defendants’/appellants’ source of title is a sale of the land in 1956 by the Olugbode family for ?150 to the 1st defendant/appellant under native law and custom. The receipt which evidenced the said transaction was reportedly lost in a flood at the 1st appellant’91s house at Oje, Ibadan.
The only documentary evidence in support of their case is exhibit ‘F’, the receipt dated 10/11/77 issued by the 1st appellant to the 6th appellant for the sale of two plots of the land in dispute. There is strong evidence of their acts of ownership and possession through the several buildings and other structures on the land.
For the ultimate question of who has better title, I would like to rely on two Supreme Court decisions which I consider apposite to the situation under consideration in this case. They are Lion Buildings Ltd. v. Shadipe (1976) 12 SC 135 and the court’s earlier unreported case of 1/7/69 in SC.363/67 between Akano Fashina Agboola v. Angelina Abimbola. In Agboola v. Abimbola, the Supreme Court, speaking of the burden and standard of proof where the contending parties claim to derive their title from a common source, had this to say –
“To start with, if it is a common ground, as indeed it was, that the land originally belonged to the Oloto chieftaincy family, then in order to establish his title to the land, a party must trace his title to the family. See Thomas v. Preston Holder (1946) 12 WACA 78. There can be no doubt whatsoever on the evidence before the Registrar that the appellant did so clearly by the conveyance exhibit D executed in his favour by the Oloto chieftaincy family. On the other hand, the respondent (as her predecessor in title) has no conveyance from the Oloto chieftaincy family and indeed except for the purchase receipt exhibit ‘B’. They had no documents whatsoever evidencing any transfer to them or her of the absolute interests of the Oloto chieftaincy family.”
This statement was adopted and applied by the court in Lion Buildings Ltd. v. Shadipe (supra) at page 159 in the following terms:
“The root of title of the defendant exhibit D8 having been destroyed, there was not a shred of evidence to support any claim by the defendant to any right or interest acquired through Matthew Adeyinka from the Onikoro chieftaincy family. The claims of the plaintiffs are founded on their deed of conveyance, exhibit P1, executed by the Onikoro chieftaincy family which conveyed to them the land in dispute. The conveyance now stands unchallenged. On the basis of the conveyance, exhibit PI, the plaintiffs were entitled to judgment of the court.” See also Adelaja v. Sonoiki (1990) 2 NWLR (Pt. 131) 137 at 155.
The above are also authorities for the proposition that a duly executed deed of conveyance is sufficient evidence to support the award of title to the land in dispute to the beneficiary of the deed of conveyance. See Idundun v. Okumagba (1976) 1 NMLR 200 and Alhaji A. Aliyu v. Dr. John Adewunmi Sodipo (1994) 5 NSLR (Pt. 342) 1 at 23.On the above authorities, I am of the view that exhibit B entitled the respondents to the judgment of the case.
In coming to this conclusion, I am not unmindful of what appears to be the appellants’ strongest defence, that is, their effective possession upon their prior equitable interest. It is well settled law that where a purchaser of land or lessee of land is in possession by virtue of a registrable instrument which has not been registered but has paid the purchase price or rent to the vendor or lessor, the purchaser or lessee has acquired an equitable interest in the land which is as good as a legal estate and the equitable interest acquired thereby, can only be defeated by a subsequent purchaser of the land for value without notice of the prior equity. See Obijuru v. Osims (1985) 2 NWLR (Pt. 6) 167, (1985) 4 SC 142; Umoffia v. Ndem (1973) 12 SC 69; Orizu v. Anyaegbunam (1978) 5 SC 21; Ikonne v. Wachukwu (1991) 2 NWLR (Pt. 172) 214 at 227; Nsiegbe v. Mgbemena (1996) 1 NWLR (Pt. 426) 607 at 622; Maclean v. lnlaks (1980) 8-11 SC 1; Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783 and Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74.
In this case, the evidence of the prior equitable interest was disbelieved by the learned trial Judge who gave his reasons for doing so. What appears to make matters worse for the defence is that the alleged receipt of purchase was reported lost. And or there is no documentary evidence of the prior equitable interest. In these circumstances, I cannot fault the learned trial Judge for disbelieving the defence in this regard. Even if the receipt of purchase was tendered and admitted in evidence, the appellant still had a duty to prove that as at the 28/4/61 when exhibit B was executed, the plaintiffs’ father Bamidele Ayoola Lawanson had notice of their purchase and possession. As I said earlier, there is strong evidence of the appellants’ possession of the land in dispute. But there is, as far as can be gleaned from the record, no strong evidence of when the 1st defendant started his acts of possession.
According to the 1st defendant, the land was a thick bush when he purchased it. He said he let in timber fellers to fell Iroko trees and that he personally farmed on the land. He also testified that he laid out the land into plots, built his personal house and block industry and sold out portions to others who have since built thereon. He said he did these well over 20 years ago. He testified on the 1/7/98 and there is no evidence that any or some of these acts of ownership had been carried out as at 28/4/61 when exhibit ‘B’ was made. I hold in conclusion therefore, that even if he purchased the land as alleged, there is no evidence that Bamidele Ayinla Lawanson had notice of the 1st appellant’s purchase and possession of the land at the time he bought it from the Olugbode family. Thus, Bamidele Ayinla Lawanson remained a purchaser for value, without notice of 1st appellant’s prior equities. In the event, I hold that the defence does not avail the appellants.
In the light of the foregoing considerations, I resolve all the issues in favour of the respondents. I have no strong reason to disturb the judgment of the learned trial Judge which is accordingly affirmed. The result is that the appeal is dismissed. I make no orders as to costs.
Other Citations: (2003)LCN/1385(CA)
