Chief Mrs F. Akintola & Anor V. Mrs C .F. A. D. Solano (1986)
COKER, J.S.C
This appeal is by Chief (Mrs.) F. Akintola, the only surviving of three defendants at a stage of the proceedings before the High Court of Oyo State. Before the hearing, the 1st and original defendant, Samuel Odutola Latona, died and the claims against him were withdrawn and his name struck out of the suit.
After the judgment of the High Court and while the appeal of the plaintiff was pending before the (Federal) Court of appeal, the 3rd defendant, E.O. Dickson died and two of his issues, namely Mrs. A. Adetola Winjobi and John Dickson, were substituted in his place by an order of the court dated the 26th day of May, 1981. Another observation is that although the Notice of Appeal dated 7th January, 1982 described both Chief (Mrs.) F. Akintola and the deceased E.O. Dickson, as the appellants, the two affidavits of Chief (Mrs.) Akintola dated 7th January, 1982 and 7th February, 1982 indicate that she alone instructed Chief Fajemisin, learned Counsel, to file the appeal and to seek leave to appeal against the decision of the Court below. And it was only Chief (Mrs.) Akintola who filed a Bond for security for Costs on 12th March; 1982.
The position then is that the only appellant before this Court is Chief (Mrs.) F. Akintola. The appeal therefore is not by Chief Mrs. F. Akintola and (the deceased) E.O. Dickson as the papers before the Court (including the appellants’ brief) seem to indicate.
This appeal concerns a claim for declaration of title to a piece of land along Ikirun Road, Oshogbo, damages for trespass and order of injunction in respect of the land, which is described in a plan No. SEW/W/2377B prepared by M.A. Seweje, Licensed Surveyor, and marked exhibit A. The area verged blue was occupied by Chief (Mrs.) Akintola, while the area occupied by Mr. Dickson was verged “Green” thereon.
The plaintiff claimed ownership of the land by virtue of grant to D.G. Dedeke by Samuel Oyedokun, Latona II, the Ataoja of Oshogbo, on the 14th March, 1935. The grant was in exchange for another piece of land at Oshogbo which his later father, Latona I, Ataoja of Oshogbo, granted him in 1902, but which was subsequently occupied by a newly found society known as “The Oshogbo Improvement Society” of which the said Latona I, the Ataoja, was president.
Evidence was led that D.G. Dedeke took possession of the land after it had been demarcated by the two messengers of the Ataoja, Samuel Fatunbi and Mustapha Alao in the presence of witnesses. A document or memorandum made on the date of grant, 14/3/35, and in the handwriting and under the signature of the said D.G. Dedeke which was pleaded by plaintiff was tendered and received in evidence without objection and marked exhibit J. The document contained a sketch plan of the land and a short statement of the grant with the names of witnesses to the grant. The land was later demarcated by D.G. Dedeke into four portions, each with a statement under his signature and dated June 6th, 1935 purporting to devise each to his heirs named thereon. The four devises were mentioned in his last will and Testament made subsequently on the 3rd February, 1938. It was also tendered and admitted in evidence.
The sole surviving plaintiff, Mrs. Solano, a grand daughter of D.G. Dedeke, and five other witnesses testified for the plaintiff, while the 2nd defendant (i.e. the appellant) only gave evidence on her own behalf and tendered a deed of conveyance dated 22nd May, 1972. The deed which was submitted for registration on the 20th July, 1972, was executed by Samuel Oduola Latona, who was originally the only defendant in the suit; he was in the said deed of conveyance described as “seized of the hereditaments beneficially under native law and custom free from encumbrances. ” The habendum stated that “the ‘vendor was Beneficial owner, hereby grants and conveys unto the Purchaser. ” The deed did not describe him as either the head of the Latona family or as representative of members of the Latona Family. In paragraphs 6 and 7 of the Statement of Defence of 2nd defendant/appellant-Chief (Mrs.) Akintola, pleaded as follows:-
(6) “The 2nd Defendant asserts that she did not commit any trespass on the land or any part of the land in dispute and she, (2nd defendant) bought the first part of the land in dispute edged blue in the survey plan attached to the Plaintiffs statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st Defendant to the 2nd Defendant vide a Deed of Conveyance which will be tendered at the hearing.”
(7) “The 2nd defendant will also contend at the hearing that when the said part of the piece of land in dispute was sold and conveyed to her by the 1st defendant, there was no sign board found or seen on the said land and that only a thick bush was seen on the land. The 3rd defendant, E.O. Dickson, pleaded the same title of the 1st Defendant, Samuel Oduola Latona. In paragraphs 6 and 7 of his statement of defence, he averred:
“(6) The 3rd defendant asserts that he did not commit any trespass on the land or any part of the land in dispute as he, (3rd defendant) bought the part of the land in dispute marked “E” and edged green in the survey plan attached to the plaintiffs’ statement of claim from the 1st defendant and the said piece of land was properly conveyed by the 1st defendant to the 3rd defendant vide a Deed of Conveyance which will be tendered at the hearing.
(7) The 3rd defendant will also contend at the hearing that when the said part of the land in dispute was sold and conveyed to him by the 1st defendant, there was no sign board or any inscription of any of the plaintiffs found or seen on the said land and that only a thick bush was seen on the land.”
The appellant in her evidence testified that she bought the land from the Latona Family through Prince Oduola Latona. This is contrary to her pleading, and therefore her testimony in this regard went to no issue. Similarly, her evidence that Oduola Latona was the head of the family was not pleaded. If as she admitted, the land was Latona family land, her title to the land was therefore void and was not better than that of D.G. Dedeke. See Solomon v. Mogaji (1982) 11 SC.1.
In his judgment, the learned trial judge stated:
“(a) The 5th plaintiff (witness) Bishop S.C. Phillip said that he knew Canon Dedeke very well and he requested him to look after his land in Oshogbo which was passed to him by his father. The witness said that he went to see the land with one Ojo Omitoyin who was farming on the land (and) in accordance with Canon Dedeke’s request, he erected pillars at the four corners of the land. When he heard that some people were making trouble on the land, he put a signboard on it. The witness stated that he knew nothing more about the land other than that Ojo Omitoyin was put in care of the land and he was farming on it. The land was also fenced with wire. The evidence of the witness showed that he was always on the land.
(b) Exhibit ‘J’ which I am satisfied is admissible indicated that Pa D. G. Dedeke was granted a piece of land by Ataoja Latona II and the land was referred to in his Will, Exhibit ‘H’ …………………………..but this cannot be regarded as a conclusive and satisfactory proof of the grant.
(c) “On the issue of possession, the plaintiff claimed to have been in possession from 1935-1973. Her grandfather was granted the land in 1935 and he put Ojo Omitoyin on the land farming there and he remained there until he died. Plaintiff also claimed that concrete pillars were erected on the four sides of the land by the 5th plaintiff’s witness and also a signboard proclaiming that the land belonged to Daddy D.G. Dedeke. Apart from the evidence of the plaintiff and her witnesses as to the occupation of the land by Ojo Omitoyin, there is no evidence from anyone connected with Ojo Omitoyin who unfortunately died before hearing commenced in this case or from the neighbours who have lands around the land in dispute or even from any member of Latona family.
(d) It is my view that the evidence of possession or acts of ownership produced by the plaintiff is not strong enough having regard to the facts that the plaintiff failed to call any member of the family of Ojo Omitoyin or even any of the neighbours as boundary men.
(e) In a claim for declaration of title, evidence of boundary men is very important especially when the root of title is being challenged and when the plaintiff is also relying on possession as acts of ownership. Surely, of Ojo Omitoyin had been farming on this land in dispute, people around there must have seen him and one or two of them should have been called to testify in support of this important point, the failure of which must be fatal to the plaintiff’s case.”
Throughout in his judgment, the learned trial judge did not refer to the case of or the evidence of any of the defendants before dismissing the plaintiff’s claim with costs. The plaintiff’s appeal to the (Federal) Court of Appeal was allowed in a unanimous decision of the appeal court, and judgment was entered in favour of the appellant.
In the lead judgment, Uche-Ome, J.C.A., allowed all the six grounds of appeal. He held that there was sufficient proof of grant of the land before the trial judge and that he erred in holding otherwise, particularly as he did not disbelieve the evidence of any of the witnesses called by the plaintiff in proof of the grant of the land and of the various acts of effective possession exercised by D.G. Dedeke, in his lifetime, and his agents and successors after his death.
He observed that the trial judge failed to advert his mind to three other pieces of evidence apart from the evidential value of Suit No.1/205/55 which was a claim of trespass to the land in dispute against Omitoyin and Cannon Dedeke, caretaker and successor to D. G. Dedeke, respectively. He further held that on the pleadings there was no challenge to the root of title of the plaintiff and there was therefore no need for the evidence of boundary men. In the result, the Court below allowed the appeal, set aside the decision of the trial court and entered judgement in favour of plaintiff by (1) making an order of declaration of title sought in writ (2) awarding N400 damages for trespass against the defendants and (3) order of injunction. In addition, the court awarded costs against the defendants/respondents.
Against this decision, the 2nd defendant/1st respondent appealed to this court on four grounds and two additional grounds, for which leave was granted. The questions which learned, Counsel, Sofola, S.A.N., asked this Court to decide are five namely:
“(1) Whether, on the evidence of the Respondent alone, she was entitled to judgment on the claim for declaration of title, there being no evidence of title in the Ataoja Latona II when he purported to make a grant of land to the late D.G. Dedeke and no evidence of their being witnesses to the alleged grant;
(2) Whether, on the evidence, the land in dispute is the same land as the land allegedly granted to late D.G. Dedeke in 1935;
(3) Whether Exhibit ‘G’ was properly admitted at the trial and if so, what value has it on the case of the Respondent;
(4) Whether the Respondent proved possession and/or acts of ownership to the land in dispute sufficient to entitle her to judgment on her claims;
(5) Whether the Court of Appeal was right in holding that there was no challenge to the root of title of the Respondent.”The law does not require a case for declaration of title or for damages for trespass for a plaintiff to call a multitude of persons as witness are admissible and relevant to the issue before the court; it is for the trial court to evaluate their evidence and decide the case on the preponderance of evidence adduced by the parties. The trial judge is not a judge of which person should be called as witness. That is the function of counsel conducting the case.
At this juncture, I consider it necessary to keep in view the issues posed in the pleadings in so far as they are material to this appeal. The first matter is that neither the identity of the land granted to D.G. Dedeke nor the parcel which plaintiff was claiming against each of the two defendants, was ever in dispute. The description of the land which plaintiffs averred was granted to D.G. Dedeke and its relation to the parcel of land in dispute was pleaded in paragraphs 7, 8, 9, 10, 11, 12 and 13 of the statement of claim, which reads:
“(7) One Mr D.G. Dedeke now deceased was carpenter of high repute in his lifetime and was responsible for the building of many Churches in Oshun Division. By virtue of this work he won (sic) the love and affection of many people because of his dexterity in this profession. He was resident in Oshogbo for a very long time during which time and period he won the affection of the Ataoja, Chiefs and people of Oshogbo.
(8) In furtherance of this affection and to perpetuate the animation the Ataoja and his Chiefs granted the said D.G. Dedeke land to erect a building so as to settle permanently in Oshogbo. This grant was in 1902.”
(9) Later on the Ataoja Latona I requested the said D.G. Dedeke to surrender the grant to him to a society known as Oshogbo Improvement Society and promised to give the said D. G. Dedeke another parcel of land. D.G. Dedeke complied with the request of the said Latona I but was unable to give the grant before his death. Latona I informed his son Samuel Oyedokun of this promise to D.G. Dedeke the said Samuel Oyedokun later succeeded his father as. Atajoa of Oshogbo and was designated as Latona II, and he also promised to carry out the wishes of his late father in the grant of the land to D.G. Dedeke.
(10) In 1935 in furtherance of his promise to D.G. Dedeke Latona II granted a parcel of land on Ikirun Road to the said D.G. Dedeke and put him in possession of the land as the Ataoja of Oshogbo with the consent of the Chiefs and Community of Oshogbo. The grant was under Yoruba Native Law and Custom.
(11) The said D.G. Dedeke was put into possession and he exercised acts of ownership on the said land without any disturbance from anybody until his death in 1938.
(12) The said D.G. Dedeke made a note or memorandum of the land granted to him in 1935 and disposed of the said land in his Will to his Children and in the said Will the land which is the subject matter of this action was described as Plan G.
(13) The last Will and Testament of the said D.G. Dedeke was made on the 3rd day of February, 1938. The said Dedeke died on the 24th day of May, 1938 and probate of the said Will was granted on the 17th day of November, 1938 by the Supreme Court of Nigeria Probate Division to the 1st plaintiff and Caon T.O. Dedeke now deceased. ”
These averments (excepting 10 and 11) were amongst those which the defendants pleaded they could neither admit nor deny. And as the court below found, they were therefore deemed not to be in issue. See Lewis, Peat (N.R.I.) v. Akhiemen (1976) 7 S.C. 157. It follows therefore that the averments that the land was stool land of the Ataoja of Oshogbo was no Issue.
Secondly, the trial judge found that the grant to D.G. Dedeke was proved, when he said:
“Exhibit J which I am satisfied is admissible indicated that Pa D.G. Dedeke was granted a piece of land by Ataoja Latona II and the land was referred to in his Will, Exhibit H.”
Thirdly, Exhibit J, dated 14/4/35 spoke of the grant made in 1935, more than 20 years in 1971 after it was made. The document was rightly received in evidence. It was written by D.G. Dedeke himself and as he had personal knowledge of its contents, it was admissible under section 90(1) Evidence Act. See Adekunle Coker v. Albert Farlat 14 WACA. 216, p. 218. The statement in Exhibit J reads:
“A Plot of Land in Oshogbo Town. Samuel Oyedokun Latona II the Ataoja of Oshogbo give me a plot of Land in the Town of Oshogbo today. As an exchange to the Land given to me by his late father (my Good Friend) the Latona I Ataoja of Oshogbo in the year 1902 that is-33 years ago. The former Land is now in use by the inhabitant of Oshogbo. By a Society new formed, in the which Ataoja is the President. The name of the Society is ‘The Oshogbo Improvement Society.’ The new Land given this day June fourteenth one thousand nine hundred and thirty five. The names of the Ataoja’s messengers sent to given me the Land are as follows.
SANUSI FATUNBI & MUSTAFA ALAO
Witnesses are these:
John Omitoyin (Oshogbo) – Benjamin Ogunremi (Igbaraoke)
Samuel Ogunsina (Oshogbo) – Solomon Oladosu (Igbaraoke)
Ojo Omitoyin (Oshogbo)
Ezekiel Ajayi (Ikare)
Titus Adebayo March 14th 1935
(Signed)
(D.G. Dedeke) 14/3/35”
Therefore, its contents are presumed to be correct. See s.129 Evidence Act. There was no contrary given by the defendants. Apart, there was the direct and uncontradicted evidence by plaintiffs’ witnesses of the various acts of ownership and possession by D.G . Dedeke, Omitoyin, Bishop Phillips and others since 1935 before the defendants came on the land in 1971. In Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All N.L.R. 32, 34-35 it was said by Bairamian, J.S.C. that: “There is a saying that possession is nine-tenths of the law; and a great grandmother means three generations. There is also section 145 of the Evidence Act, which provides that ‘When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms, that he is not the owner.’ and ‘The rule is that the person in possession can maintain trespass against anyone who cannot show a better title’.”
It was not the case of the defendants that the land granted to D.G. Dedeke was different from the land in dispute. Indeed, there was the finding of the trial judge that he was satisfied that exhibit J was indicative of grant by Ataoja Latona II of the land referred to in the Will Exhibit ‘H’. Having so held, it is inconsistent and self contradictory to say later that plaintiff failed to call any witness who had personal knowledge about the grant or of insufficiency of the evidence of the grant. The learned trial judge was of the erroneous view that it was necessary for the plaintiffs to call witnesses who were either present at the time of the grant or who had personal knowledge of the grant to support the grant as shown in the document, exhibit J, when he had earlier found that the land was granted to D.G. Dedeke by Latona II, the Ataoja of Oshogbo.
There was no need to call any boundaryman since it was common ground that as a stool land, Latona II, the Ataoja had power to grant it. The trial judge did not find that Latona II had no power to grant D.G. Dedeke the said land. Again on the issue of possession, the trial judge accepted the evidence of the plaintiff and her witnesses as to the occupation of the land by Ojo Omitoyin, but held “there is no evidence from anyone connected with Ojo Omitoyin, who unfortunately died before hearing commenced in this case or from neighbours who have lands around the land in dispute, or even from any member of Latona family.”
With respect to the learned judge, the law does not require such additional evidence. The evidence of Bishop Phillips was that Omitoyin was caretaker and was farming on the land and that piece of evidence was not challenged or rejected. Other witnesses also gave like evidence. I agree with the Court below that the reasons given by the trial judge for refusing to grant the declaration of title sought and for not awarding the plaintiff damages for trespass to the land were not legitimate. Once plaintiff had proved possession it was for the defendants to prove some right to possession. See Lawal v. Ijale (1967) N.M.L.R. 155, 157, Coker v. Farhat 14 WACA 216, p. 219. As already observed, Chief (Mrs.) Akintola did not prove any title whatsoever. Her title was void. There was no evidence whatsoever that the land belonged to her vendor, Samuel Oduola Latona, or as alleged in the brief filed by her learned counsel in paragraph 4, page 2, to writ:
“(4) The Appellants case is rather short and simple. Each denied trespass and claimed to have bought their respective holdings from the Latona family through Oduola Latona, the then head of the family. ”
No witness was called to give evidence that Oduola Latona was head of the family. Indeed as I have shown, that was not the case on the pleadings of both Chief (Mrs.) Akintola and E.O. Dickson. Only the former produced a deed, which was registered after the commencement of the proceedings and on a date subsequent to her pleading and therefore inadmissible. Dickson did not call evidence and his deed of conveyance was not produced at the hearing. See Mrs. S.A. Kareem & Ors. v. David O. Ogunde (1972) 1 All N.L.R. (Pt. 1) 73, p. 76 and s. 16 of the Land Instruments Registration Law of Western Region Cap.56.
As Oduola Latona purported to sell the property as his own personal property and not as head of the family or on behalf of the family, the sale was void. See Solomon v. Mogaji (1982) 11 S.C.1.
There was no evidence whatsoever, that Latona as a member of the family was ever in possession of the land or has better right of possession than D.G. Dedeke who proved a grant from the Latona II, Ataoja coupled with prior possession of the land. The authorities undoubtedly weigh heavily in favour of the plaintiff and against the defendants. The Court below is right in holding that the trial judge misdirected himself in rejecting the plaintiff’s case by demanding a higher degree of proof from the plaintiff in the circumstances of the case.
There is no concept which could be described as absolute title as between the parties. Once there is a finding of possession in favour of the plaintiff the onus was on the defendants to prove better title in order to justify their subsequent entry. The duty of the trial judge was to compare the relative strength of the case of both parties and to decide the case on the preponderance of evidence or balance of probabilities. See Abdul Kareem v. Daniel Fajebe (1968) N.M.L.R. 151, Anukanti v.Ekwonweaso (1978) 1 SC.37. In this case, the evidence of grant and various acts of possession on the part of D. G. Dedeke and those claiming through him were uncontradicted or not challenged by the defendants. Consequently, they were entitled to judgment. See Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C. 135.
What the court had to decide at the end of the trial is which of the parties on the preponderance of credible evidence was entitled to judgment. See Alhaji L.A. Onibude & Ors. v. Alhaji A.W. Akibu & Ors. (1982) 7 S.C. 60, 89.
Plaintiffs pleaded and proved prior possession, the defendants cannot by merely entering the land dispossess them, excepting they proved a better title. See Alhaji Aromire & Ors. v. Awoyemi (1972) 2 SC. 1, p. 3 and Fagbemi Akano v. Moses A. Okunade (1978) SC. 129, 137. The judgment of the trial court therefore was based on wrong principles of law and the court below was right to set it aside and substitute a decision in accordance with the correct principles. See Chief Frank Ebba etc. v. Chief Warri Ogodo & Ors. (1984) 4 SC. 84, p. 90.
There was no issue raised on the pleadings and Latona II, the Ataoja of Oshogbo, had not the power to make the grant. The trial judge accepted that Ataoja made the grant. The evidence called by the plaintiff remained unchallenged throughout. Neither of the two defendants called any evidence to justify her/his entry on the land, the plaintiff was therefore entitled to judgment; See WACA No. 380 Aina Edu (as head of the Family of Adoyi (or Ajoye) & Ogunlana II Chief Obanikoro of Lagos v. Yesufu Suberu Aina Obe & Suwebatu Falohun etc; WACA Selected Judgments-February, April-May 1953, 57 at p.60 where Verity, C.J. stated the principle:- “When in such cases the plaintiff has established by evidence such facts as would justify the Court in a declaration of title. if the plaintiff’s evidence be uncontradicted, the defendant can only succeed in defeating the plaintiffs claim by establishing on his part facts which are sufficient to discredit the plaintiff’s evidence. In such circumstances, if the evidence adduced by the defendant is not strong enough to achieve this end, the plaintiff is entitled to its weakness and rely upon his own.”
See also Victoria Aduke & Nathaniel Alabi v. Solomon Aiyelabola (1942) 8 W ACA 43, at p.45; F.S.C. 205/59; Akwuele Nwabogu & Anor. v. Michael Ogo Ibeziako & 2 others, (unreported) when Brett, F.J. stated the same principle: “While it is common place that a plaintiff seeking a declaration of title must succeed on the strength of his own case, there are occasions when the weakness of defence tends to strengthen the plaintiffs case and this may well be such an occasion.”
On the question whether the land in dispute is the same as that allegedly granted to D. G. Dedeke, the answer was given by the learned trial judge when he found: “It is clear that looking at both Exhibits ‘1’ and’ A’, the land on both exhibits appears to be identical but one important point to note is that the plaintiff gave Exhibit ‘J’ to the 1st plaintiff’s witness and from it, he made out Exhibit ‘A’, although he also gave evidence that he went on the land and carried out the survey.”
As regards the admissibility of Exhibit G, I agree with the Court that the document does not fall within the class of document the admissibility of which is prohibited by any law on the authority of Alade v. Olubade (1976) 2 SC.183. The document was admitted by consent. The chiefs were not interested persons at the time it was made. In any event, the document was even not necessary for proving the plaintiffs’ case. The onus as I have already pointed out, was for the defendants to prove that the beneficiaries of D.G. Dedeke, who were proved to be in possession, had no right to remain in possession. But no iota of evidence was offered by the defendants in this regard. All the grounds of appeal seemed to overlook the overwhelming and uncontradicted evidence of the grant and of acts of possession on the part of the plaintiffs.
The only reason for declining to give judgment in their favour was the erroneous view of the trial judge on grounds of insufficiency of evidence whereas the case should have been decided on the relative strength of the evidence of both parties, bearing in mind the onus was on the defendants of proving better right to possession as against the plaintiff and his predecessors who are person in prior possession. I have come to the decision, having regard to the above considerations that this appeal is without merit and must be dismissed. The appeal is dismissed and the decision of the Court below is hereby affirmed. I award N300.00 costs to the Respondent.
KAYODE ESO, J.S.C.:-I have had the advantage of a preview of the draft of the judgment which has just been delivered by my learned brother Coker, J.S.C. and I am in complete agreement.
There was as my learned brother has carefully set out in that judgment an overwhelming evidence of the grant to the plaintiffs and of various acts of ownership. All these were uncontradicted by the admissible evidence given by the Respondent who was the only witness for the defence and the evidence of whom went to no issue on several points as they were not pleaded. All these have been highlighted in the aforesaid judgment of Coker, J.S.C. I will therefore dismiss the appeal as being without merit and abide by the order as to costs contained in the judgment of my learned brother Coker, J.S.C.
Other Citation: (1986) LCN/2292(SC)
