Chief M. A. Okupe v. B. O. Ifemembi (1974)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The appellant before us was the plaintiff in an action he had instituted in the High Court, Lagos, Lagos State (Suit No. LD/206/66) in which he claimed against the respondent who was the defendant as follows:
“(a) A declaration of title that the plaintiff is the owner in fee simple of that piece or parcel of land situate lying and being at Iwaya Road, Onike Village Yaba covered by a Deed of Conveyance registered at No. 41 at Page 41 in Volume 1250 of the Lands Registry at Lagos.
(b) Injunction to restrain the defendant his servants and/or agents from further acts of trespass.
(c) 100 Pounds damages for trespass.
(d) Possession of the said land.”
We observe that although the writ was issued from the Registry of the High Court on the 16th May, 1966 and an order for pleadings was made in the case on the 11th July, 1966, actual hearing of the case did not commence until the 30th November, 1971. As the records show, the rather long delay had taken place because the defendant was stated to be away in the East-Central State and did not return to Lagos until after the Civil War.
Pleadings, as we stated before, were duly ordered and both parties did file their pleadings, the plaintiff alleging his conveyance in respect of the land in question as to his title and his quiet possession thereof ever since. The plaintiff’s statement of claim also avers that some time in 1965 the defendant “unlawfully entered the land in dispute and erected a fence thereon”. The defendant’s statement of defence also alleges his conveyance, the radical title of the Oloto Chieftaincy Family in the land in dispute and a chain of assurances from that Family to himself. The statement of defence also claims that as from the time of the sale of the land in dispute to the defendant he had been in “undisturbed and uninterrupted possession” of the land. Paragraphs 13 and 15 of the statement of defence read as follows:
“13. All successive owners claiming title from Liasu Momoleso have been put in an immediate possession by prior owners and enjoyed being in undisturbed and interrupted possession at different times.
- The defendant will rely at the trial on all legal and equitable defences opened to him including long possession, laches, stale claim and acquiescence.”
When the case came up for trial, the parties were both present and duly represented. The plaintiff testified to the averments in his statement of claim and produced (and this was admitted as Exhibit A) a Deed of Conveyance which he stated he had obtained from his immediate vendor, one Lawrence Gregorio Da Costa. Exhibit A shows that Da Costa himself had purchased the land from the Oloto Chieftaincy Family and that that Family possessed the radical title to the land in dispute. The plaintiff thereafter gave evidence of acts of entry upon the land by the defendant. The plaintiff’s surveyor gave evidence that the land claimed by the plaintiff was identical to the land purported to be sold to him by Da Costa and that this land was the same as the land being claimed by the defendant. Mr. Da Costa also gave evidence in support of his conveyance from and the title of the Oloto Chieftaincy Family. Learned counsel for the plaintiff then announced the close of the plaintiff’s case.
At this stage of the proceedings when the defendant should have called evidence in support of the averments in his statement of defence, learned counsel appearing for him was recorded as saying:
“Mr. Ogunsiji: I do not intend to call any witness. I am resting my case on the evidence adduced by the plaintiff.”
Both counsel then addressed the court and in a reserved judgment, the learned trial judge dismissed the plaintiff’s case with costs. Hence this appeal by the plaintiff.
Before us it was argued that the judgment of the High Court was against the weight of evidence. In his judgment, the learned trial judge had held that inasmuch as the conveyance produced by the plaintiff (i.e. Exhibit A to himself and Exhibit D to Mr. Da Costa) were less than twenty years old, they would not enjoy the benefit of the presumption created by section 129 of the Evidence Act, cap.62. He eventually concluded his judgment thus:-
“It is evidence that there is no evidence of the execution of the deed.
Mere production of Exhibit “D” is not enough.
The onus of proving the case is on the plaintiff and he cannot expect to win the case on the weakness in the case of the defendant. In view of my observation above, the claim for declaration of title must fail and it is hereby dismissed.
There is no evidence to justify the claim for an injunction. Apart from the fact that the claim for declaration of title has failed there is nothing to warrant the granting of an injunction against the defendant. In the circumstances, this claim is also dismissed.
The claim for 100 damages for trespass has no foundation and it is hereby dismissed.
Finally, the plaintiff is claiming possession of the said land. The 2nd witness for the plaintiff admitted that he took a risk when he bought the land. This is rather unfortunate. The plaintiff speculated in the pursuance of this land he stated that he did not make any investigation in respect of this particular plot before he bought it. There is not enough evidence to justify the claim for possession. In the circumstances this claim is also dismissed. ”
As we observed earlier on in this judgment, the evidence was all one way as the defendant neither gave evidence by himself nor called any witnesses to testify concerning averments in his statement of defence. Manifestly, both parties admit the radical title of the Oloto Chieftaincy Family to the land the plaintiff had bought from Mr. Da Costa and had obtained from him a conveyance dated the 20th December, 1965. This is Exhibit A. Mr. Da Costa himself testifying for the plaintiff stated that he had bought from the Oloto Chieftaincy Family and he produced a conveyance which he had obtained from that Family dated the 24th February, 1964, Exhibit D. Thus the plaintiff at the trial established by evidence a chain of transfer from the Oloto Chieftaincy Family to himself.
On the other hand although the defendant pleaded a similar chain of assurances, he gave no evidence at the trial and the court knew only previous little about the several instruments of transfer described in his statement of defence.
In concluding that the execution of the conveyance to Mr. Da Costa (Exhibit D) by the Oloto Chieftaincy Family was not proved, the learned trial judge referred to the provisions of section 129 of the Evidence Act, cap. 62 and some decisions of the Federal Supreme Court and this Court on that section.
The section provides as follows:
“129. 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.”
In his consideration of the implications of the section, the learned trial judge overlooked the decision of this Court in the case of John Kobina Johnson & Ors. v. Irene Ayinke Lawanson & anor. S.C.44/68, decided on the 12th February, 1971 in which this Court observed concerning section 129 of the Evidence Act as follows:
“It is difficult not to feel some remorse at a situation calling for a review of a stand-point which had influenced the law of this country for some twelve years or more and the relish with which that line of decision had been followed must be considered as clear evidence of the piquancy of such feelings. 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 the 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 he has to relate his Deed or Instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute “present legal proceedings” for the word “contract”, which manifestly dominates the section, seems to us perverse. ”
We think therefore that vis-a-vis the parties to this case, section 129 of the Evidence Act has no relevance whatsoever and its invocation could have done no more than becloud the rather straight-forward issues which call for consideration and determination. The plaintiff’s witness to whom Exhibit D was given, testified as to its execution by the Oloto Chieftaincy Family. His evidence was not challenged on that point and indeed the defendant who also claimed through the Oloto Chieftaincy Family gave no evidence whatsoever in support of his own claim through that Family. The position is different if Exhibit D had been produced by the plaintiff and Mr. Da Costa to whom it was executed was not called. The result is that whilst the plaintiff pleaded and gave evidence of his claim through the Oloto Chieftaincy Family, there was no evidence to contradict whatever case the plaintiff might have made out. Civil cases are proved by a preponderance of evidence and there was such evidence from the plaintiff’s witness.
Mr. Da Costa, that it was the Oloto Chieftaincy Family which had sold to him and had put him in possession of the land in dispute.
Both parties have claimed through the Oloto Chieftaincy Family. At the close of the plaintiff’s case to the effect that he possessed a title originating from that Family, the onus clearly shifted to the defendant to demonstrate, where, as in this case, he too has accepted the radical title of the same Family, that the defendant failed to do this and by resting his case “on the evidence adduced by the plaintiff’ he impliedly accepts the evidence given by the plaintiff and which evidence he himself had not in any way contradicted. See Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 where at p. 80 the West African Court of Appeal observed on a point similar to the one at present in issue thus:
“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.”
We are in agreement with the principle as enunciated and only wish to add that although by paragraphs 13 and 15 of his statement of defence (set out supra) the defendant avers those equities he gave no evidence in support of them and indeed he impliedly relied on evidence adduced by plaintiff and/or his witnesses which negatives those equities.
We are in no doubt that the learned trial judge took a completely erroneous view of the facts of the case in coming to the conclusion that “the plaintiff has failed to prove his case”. Indeed, he had proved the case he had brought against the defendant who had proved nothing.
We observe that the learned trial judge has made no assessment in respect of the award of damages, undoubtedly in view of his findings against the plaintiff on the main claim for a declaration of title. We only wish to reiterate the directions of this Court that even if in a claim for damages the trial court or tribunal found against a plaintiff, an assessment of the relevant award should be made by the trial court or tribunal so that if such a plaintiff succeeds on appeal there will be no difficulty in settling the necessary figures of an award and the necessity of sending back the case for such an assessment would be obviated. In this case, however, the plaintiff gave no evidence of any specific damage to his property except the mere intrusion of the defendant on his land and the deposit thereon by the defendant of cement blocks. We think that in those circumstances an award of a nominal amount of N10 will meet the justice of the case.
We have on several occasions condemned the inclusion of a claim for possession with claims involving trespass and perpetual injunction. Where the defendant is a trespasser the remedy of injunction is a complete answer to his act of ouster for by his mere entry on the land the trespasser does not obtain the necessary possession on which to found a claim for recovery. It follows therefore that if the plaintiff succeeds in his claim for trespass and an injunction is ordered, the claim for possession is a negation of the very facts on which that for trespass must be founded. Such a claim ought not therefore to be joined with the other claims.
In the end, we are satisfied that the complaints of the plaintiff on appeal are justified and his appeal must and does succeed. The appeal is allowed and the judgment of the High Court, Lagos, in Suit No. LD/206/66, including the order for costs, is set aside.
We enter judgment for the plaintiff for:
(i) a declaration of title that he is the owner in fee simple of the piece or parcel of land at Iwaya Road, Onike Village in Yaba covered by his Deed of Conveyance, Exhibit A, dated the 20th December, 1965 and registered as No. 41 at page 41 in Volume 1250 of the Registry of Deeds in the Lands Registry of Lagos;
(ii) N10 as damages for trespass;
(iii) Perpetual injunction restraining the defendant, his servants
And/or agents from further trespassing on the land in question or any pan thereof;
(iv) The claim for possession is struck out.
The foregoing shall be the judgment of the Court. We also order that the defendant/respondent shall pay to the plaintiff/appellant the costs of this appeal fixed in this Court at N110 and in the court below at N150.
The foregoing shall be the judgment of the Court. We also order that the defendant/respondent shall pay to the plaintiff/appellant the costs of this appeal fixed in this Court at N110 and in the court below at N150.
Other Citation: (1974) LCN/1798(SC)
