F. M. Alade V. Lawrence Awo (1975)

LawGlobal-Hub Lead Judgment Report

IBEKWE, J.S.C.

This appeal seems to highlight the kind of erroneous conception which seems to have built up around the time-honoured rule that was laid down in the well-known case of Ekpo v. Ita XI NLR 68. In that case Weber, J., stated the law as follows:-

“In a claim for decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – if the evidence of tradition is inconclusive the case must rest on question of fact.”

Ever since the time that Weber, J., enunciated the above principle of law, generation upon generation of judges have readily applied and followed it. Indeed, Ita’s case has now and again, been cited with approval by this court. With the passage of time, this rule has become a household word in actions for declaration of title in this country. It seems to us, however, that the rule is, sometimes misunderstood, and therefore, misapplied, as is the case in the present appeal.

Before going into the fine legal points raised by this appeal, we think that it is desirable that the facts should be set out briefly. On 16th March, 1960, the plaintiff, herein appellant, filed an action in the High Court, Ikeja against the defendant, herein respondent, claiming declaration of title and possession. Pleadings were ordered and filed. The plaintiff in his statement of claim avers that the disputed land originally formed portion of lands belonging to the Ojomo Eyisha family from time immemorial according to Yoruba customary law, and that over this land the said family had exercised maximum acts of ownership and possession. He further avers that the land was sold and conveyed to him on 17th September, 1958, under a deed of conveyance which was executed in his favour by the heads and accredited representatives of the said family, and that the deed was registered as No. 20 at page 20 in volume 277 of the Lands Registry Ibadan.

Plaintiff further avers that, immediately after the said purchase he was put into effective possession of the said land by the vendors, and that he continued in possession until later in 1959 when the defendant disturbed his possession by storing building materials on the said land; and that the defendant has continued in illegal possession of the disputed land inspite of repeated warnings issued by him. As the defendant did not heed the warning, he, the plaintiff consulted a solicitor, and as a result, this action was filed.

On his own part, the defendant traces his original root of title which, according to him, dates back to 1938, to one Emmanuel Seton. The defendant’s immediate predecessor-in-title was one Ebun Adesola who sold and conveyed the land to him on 20th February, 1948. Ebun Adesola, it is alleged by the defendant, bought the land from J. M. Adewunmi and J. A. Adebiyi, whose title, according to the defendant was grounded on a certificate of purchase dated 13th June, 1938, and registered as No. 24 at page 24 in volume 452 of the Lands Registry. The defendant further claims that the conveyance executed in favour of Ebun Adesola by the said Adewunmi and Adebiyi is registered as No. 24 at page 24 in volume 657 of the Lands Registry. Finally, the defendant claims that he enjoyed quiet possession of the said land, and that his possession was only disturbed by the plaintiff during 1958-1959. At the trial, the plaintiff called three witnesses among whom was a principal member of the Ojomo Eyisha Family, P.W.3, Raimi Apena, who gave detailed evidence of tradition. In a nutshell, his evidence supported the plaintiff’s claim that he acquired the land in dispute from the Ojomo Eyisha Family. The following portion of the evidence given by P.W.3, Raimi Apena seems to be pertinent:-

“The land sold to the plaintiff is at the centre of our family land. We, the descendants of Eyisha, have been exercising acts of ownership and possession on the family land over the years. Our family never sold the land to one Seton ………..”
Earlier on in his evidence, this same witness, Raimi Apena had stated inter alia as follows:-

“It was Eyisha who first settled on the land. This was over 300 years ago. Eyisha came from Ife; Eyisha came to settle on the land after they have been driven away from Ife due to internecine wars. Eyisha was the first to settle on the land. Eyisha land commences from Agege Motor Road to Idi-Oro across the railway line down to Igbobi town and then onward to the back of the Royal Orthopaedic Hospital, Igbobi, and from there onwards to George Village and onwards to Debari. From Debari the land crosses Ikorodu Road to Idiaraba and from there to the footpath leading to Onigbongbo and from Onigbongbo towards the left onwards to Mushin. There the land extends onward from Isolo to Itire.”

On the other hand, the defendant and one other witness gave evidence for the defence. D.W. 2, Joseph Obafemi Adewunmi testified as to how he and one J.A. Adebiyi had bought the disputed land at an auction sale, and later on, sold it to one Ebun Adesola, the defendant’s immediate predecessor-in-title. The relevant portion of his evidence is as follows:

“I saw a Notice of SALE of a plot of land on a piece of land facing the rail line at ODI-OLOWO, MUSHIN. In consequence I caused a Survey to be made by AIYEDE, Licensed Surveyor. I then applied for and obtained this “Certificate of Purchase dated 13th June, 1938. (Exhibit F identified). I later sold the land to EBUN ADESOLA in 1944. Mr. J. A. Adebiyi and I executed a Deed of Conveyance. This is the Certified True Copy of the conveyance signed by J. A. Adebiyi and I.”

At the conclusion of the hearing the learned trial Judge adjourned the matter for judgment. In a considered judgment delivered on 26th July, 1968, the learned trial Judge, Beckley, J., dismissed the plaintiff’s claim for declaration on the ground that the onus of proof which rested upon the plaintiff had not been discharged. In the words of the learned trial Judge:-

“On the whole I am not satisfied on the evidence before me that the plaintiff has established his claim for a declaration of title to the area in dispute and his claim must fail in its entirety. The claim for declaration of title having failed his claim for possession fails along with it.”
It is from this decision of Beckley, J., that the appellant has now appealed to this Court. At the hearing of this appeal, Mr. Lardner, learned counsel for the appellant, sought and obtained leave to argue the following additional grounds in substitution for the original grounds:-

“1.   The decision is wrong in law in that the learned trial Judge failed to observe;
(i)    that on the totality of the evidence before the court the plaintiff discharged the burden cast on him;
(ii)    “all the circumstances of this case” and in particular that
(a)    the evidence of the plaintiff in support of title was not challenged or shaken by cross- examination,
(b)    the defendant did not contradict the plaintiff’s evidence on title in the witness box;
(c)    the defendant admitted that the Eyisha family is a land owning family;
(d)  the evidence of Raimi Apena, a principal member of the Eyisha family is in its nature credible; the learned trial Judge did not make any adverse comment on his veracity or demeanour.

2.    The learned trial Judge misdirected himself in law on the evidence and generally on the whole case.

PARTICULARS
(a)   With reference to possession  he failed to observe:-
(i)    that on the pleading the defendant did not plead any possession in his predecessor in title before 1944 and that any evidence of such possession did not go to any live issue;
(ii)   that as far as the evidence is concerned, there is no evidence that Ebun Adesola was ever in possession: DW 2 (Adewunmi) disclaimed any knowledge of the land after he sold and the defendant did not claim any knowledge of it before he bought in 1948.
“(b) The learned trial Judge took judicial notice of the infrequency of auction sales of land “at that time” when the matter is not one of which the Court may take judicial notice.
(c)   The learned trial Judge failed to observe that the defendant did not establish that the land on his conveyance (Exhibit D) had any connection with the land in dispute and that his defence therefore went to no issue.
(d)  The learned trial Judge in his judgment failed to make findings on primary issues of fact and all his deduction on inferential facts and mixed fact and law are therefore unsupportable.

3.    The verdict is against the weight of evidence.”

In a lucid and forceful manner, Mr. Lardner, learned counsel for the appellant drew our attention to the evidence of tradition for the plaintiff and submitted that, as that evidence was neither challenged nor shaken under cross-examination, the learned trial Judge should not have ignored it. Learned counsel also submitted that, as the credibility of P.W.3, Raimi Apena, was not in doubt, and as the learned trial Judge made no adverse comments on his demeanour, the court should have accepted his traditional evidence in support of the plaintiff’s title.
In his reply, Mr. Olajide Alakija, learned counsel for the respondent, rightly emphasised the fact that this is a claim for a declaration of title to land, and as such the onus is on the plaintiff to prove his case, and not on the defendant. Learned counsel for the respondent reminded us that, although the reversal of a finding of fact of the court below is within the competence of this court, nevertheless the presumption is that the decision of the trial Judge on the facts was right and that presumption must be displaced by the appellant. The following observation made by the learned trial Judge as to the authenticity of the traditional evidence adduced by the plaintiff in the court below, seems to us to be the main ground of complaint in this appeal:-

“How did this witness himself (meaning P.W.3, Raimi Apena) know the traditional history of this vast area of land. Was the history written down or handed over by words of mouth from generation to generation Who was the source of the history given by this witness These are the very many missing links in the evidence of this witness as to the traditional history of this land in dispute. It makes it difficult for me to accept the traditional history as given in evidence by him as being true or probable.” As could be seen from the passage of the judgment quoted above, the learned trial Judge’s reason for not accepting the traditional evidence called by the plaintiff could be summarised as follows: The witness had not disclosed:-

(a)   His source of information; and
(b)   Whether the traditional history was “written down or handed over by words of mouth from generation to generation.”
At this stage, we think that it is sufficient to obverse that that very point was not material, and that even if it were, the fact still remains that no question was put to the witness to that effect, either by the court or by the defence counsel under cross-examination. It would appear that the situation was further aggravated by another observation made subsequently by the learned trial Judge as follows:-
“The Apena family have not proved sufficient acts of ownership and possession over this land in dispute as to warrant the inference that they are the true owners.”
We are satisfied that the learned trial judge’s reason for rejecting the plaintiff’s traditional evidence is tantamount to a misdirection of a very grave nature. It seems to us that it is sometimes, not fully appreciated that, in a strict sense, traditional evidence is no more than hearsay evidence. As a matter of fact, it is hearsay upon hearsay, in that it deals with events which occurred long ago, and the history of which has been handed down from father to son, or from generation to generation. In the words of Lord Cohen, in the Priviy Council case of The Stool of Abinabina v. Enyimadu, reported in Vol. XII WACA 171, at page 172, it is “evidence as to rights alleged to have existed beyond the time of living memory……”

Implicit in the above quoted definition is the truth of the matter. More often than not, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory. It is therefore, recognised that the witnesses who are called upon to give traditional evidence would not necessarily be in a position to give an eye-witness account. Such witnesses cannot speak from personal knowledge; they merely repeat the story which their ancestors had told them. Our legal system, in its wisdom, allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded.

There is no doubt that the learned trial judge’s approach to the traditional evidence adduced by the plaintiff in this case was influenced by the mistaken view which he took that PW.3, Raimi Apena, was not competent to testify as he did, and for the reasons contained in the passage of his judgment as set out earlier on in this judgment. That being so, we take the view that learned trial Judge erred in allowing his mind to be so affected by such an erroneous principle of the law of evidence which he applied in his assessment of the plaintiff’s case as based on the traditional evidence, more especially as that evidence was not challenged by the defendant at the trial.

A careful study of the record of appeal also shows that the learned trial Judge was of the view that, in order to succeed in his claim for declaration of title, the plaintiff, in the present case, must prove positive and numerous acts of ownership extending over a length of time, so numerous as to warrant the inference that he is the exclusive owner of the disputed land. We simply observe that that burden of proof will only be thrown on the plaintiff if the evidence of tradition is inconclusive, which is not the case here. We are however, mindful of the fact that because of the general terms in which the rule in Ita’s case was formulated, there is a tendency on the part of the courts to hold, as was done in the present case, that in every claim for a declaration of title the plaintiff, in order to succeed, must prove positive and numerous acts of ownership over a lenght of time. That view of the law seems to us to be fallacious. It is therefore desirable that we should endeavour, at least, to throw some light on the rule in Ita’s case, with particular reference to its limitations. The first point which we desire to make, and which, we think, is generally overlooked is that Weber J., himself, somehow, limited the scope of the rule in Ita’s case, in the concluding sentence of his judgment as follows:-
“………. if the evidence of tradition is inconclusive the case must rest on question of fact.”

In other words, Weber, J., quite rightly thought, and we agree with him, that, where the other evidence of title i.e. tradition, is inconclusive or entirely lacking – if we may say so, then, and it is only then, that the onus of proving the facts constituting acts of ownership is thrown upon the plaintiff. That being the case, we think that the correct view of the law is that the plaintiff in a claim for declaration of title could succeed solely on the basis of traditional evidence. Moreover, it seems to us that the rule in Ita’s case does not apply where the plaintiff relies upon and proves title by grant.
Now, we shall proceed to cite two authorities which in our view, have cast a good deal of light on this aspect of the law which we are now considering. The first case is The Stool of Abinabina v. Chief Kojo Enyimadu; supra. It was a case for declaration of title which was decided by Jackson, J., in the Gold Coast, as it was then known. In dismissing the plaintiff’s case, Jackson, J., summed up his conclusion in the following words:-

“In claims for declaration of title the onus lies upon the plaintiff to establish his cause upon the strenght of his own case and not upon the weakness of his opponents. In such action he must evidence such positive and numerous acts within living memory sufficiently frequent and positive to justify the inference that he is the exclusive owner. This test the plaintiff has failed signally to satisfy and I do dismiss the claim of the plaintiff both in respect of the declaration sought for and in respect of that for damages for trespass.”

Dissatisfied with the decision the appellants appealed to the West African Court of Appeal which also dismissed the appeal without expressing any view as to the nature of evidence required in a claim for declaration of title. The appellants further appealed to Her Majesty in Council, which observed that as the Court of Appeal affirmed without qualification the decision of Jackson, J., it must be taken to have agreed with his views on that point.
In their judgment, at page 174 of the Report, their Lordships of the Privy Council considered the nature of the evidence required to establish title to land and stated the law as follows:-

“Their Lordships are satisfied by reference to authorities that the opinion of Jackson, J., that frequent and positive numerous acts within living memory are essential to justify the inference of exclusive ownership is not well founded. It will be sufficient to refer to two cases. In Nchirahene Kojo Ado v. Bouyemhene Kwadwo Wusu the actual decision in the Court of Appeal was on a point of equity but it is clear from the judgment of the court that, apart from that point, the court would have accepted the plaintiff’s title solely on the basis of traditional evidence. The opinion thus expressed was not merely a dictum since the court ultimately on the facts decided the point of equity in favour of the plaintiff and gave judgment in his favour.”

That traditional evidence may be very relevant is also apparent from the decision of this Board in Kwamina Kuma v. Kofi Kuma. This case is also of importance because Sir Lancelot Sanderson delivering the judgment of the Board pointed out at page 7 that “even assuming that the defendant and his predecessors have been to some extent  in occupation of parts of the land in question without paying tribute to the plaintiff or his predecessors, such possession ……. is not conclusive evidence of the defendant’s title.”

We too agree with their Lordships’ exposition of the law on this point. We are of the opinion that in a claim for declaration of title, the plaintiff could succeed solely on his traditional evidence if it satisfies the court. We take the view that where traditional evidence is inconclusive then the court is entitled to consider whether the plaintiff has established such numerous and positive acts of ownership within living memory sufficient to establish that he is the absolute owner of the land in dispute. The second case is Mumuni Abudulai v. Ramotu Manue X WACA 172. In their illuminating judgment at page 174, their Lordships of the West African Court of Appeal stated the law as follows:

“Much was made of the fact that the Respondent had failed to prove any act of ownership over a period of 25 years and the case of Ekpo v. Chief Ita XI NLR 68 was relied upon to support the proposition that a claim for declaration of title cannot succeed unless the plaintiff proves acts of ownership extending over a length of time. In this connection we think it necessary to point out that that case seems to have been misunderstood as going further than it in fact does, owing possibly to the too general terms of the wording of the judgment.

It is clear that the dictum does not apply where, as in this case, the plaintiff relies upon and proves title by grant; the onus as to acts of ownership is only thrown upon the plaintiff where the other evidence of title is inconclusive or entirely lacking.” We are in agreement with their Lordships’ statement of the law in the above passage of their judgment. The record of appeal in this case discloses that the present plaintiff adduced in the court below, ample traditional evidence which was erroneously brushed aside by the learned trial Judge.

On the facts of the present case and in view of the particular circumstances surrounding it, we are of the view that the learned trial Judge erred in refusing to consider and accept the plaintiff’s traditional evidence. In the circumstances, we take the view that the learned trial Judge was wrong in applying the rule in Ita’s case to the present case after he had wrongly rejected the plaintiff’s traditional evidence which was clearly before him, and which, in any case, was never contradicted or challenged by the other side; nor was the witness, P.W.3, Raimi Apena who gave that evidence ever shaken under cross-examination.
On the other hand, we are of the view that the defendant’s root of title seems to hang in the air. It was not shown how and when Seton’s mother, one Dorcas Bukosi Seton, came to be on the land in dispute, and the nature of title, estate or interest she held over the disputed land which was passed on to her son Seton, the defendant’s predecessor-in-title. The question which therefore remains unanswered is what interest did Adewunmi and Adebiyi acquire when they purchased the land in dispute at the auction sale It is settled law that a certificate of purchase vests in the purchaser no more than the right, interest, estate and title of the owner.

We are therefore surprised that the learned trial judge thought it fit to prefer the defendant’s nebulous root of title to that of the plaintiff whose root of title through the Eyisha family has existed from time immemorial. We are satisfied that there has been a miscarriage of justice.

The learned trial judge acted on an erroneous proposition of law, and it is clear that if that proposition is put right the finding made by him cannot stand.

The appeal therefore succeeds and it is allowed. The judgment of the learned trial judge in Suit No. HK/35/60 delivered at the High Court, Ikeja, on 26th July,1968, together with the costs therein awarded by him  is hereby set aside. In its place we grant the plaintiff’s claim for title and possession in respect of the land in dispute shown and edged red on Plan No. CT 91/58 made by Olumide, Licensed Surveyor. This shall be the judgment of the Court. The respondent shall pay to the appellant N175.00 costs in the court below and the costs of this appeal fixed at N187.00.

Other Citation: (1975) LCN/2051(SC)