Francis Adesina Ayanwale V. Olumuyiwa Olumide Odusami (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant as plaintiff on a further amended statement of claim, claimed from the respondent as defendant the following:

1. Declaration of Statutory right of occupancy to the piece or parcel of land situate, lying and being at Adesiyan Street, Palm grove, Ilupeju off Ikorodu Road, Lagos State.
2. N500 damages for trespass;
3. An order of injunction restraining the defendant jointly and severally, their respective servants and/or agents from committing further acts of trespass on the said parcel of land.

The plaintiff gave evidence to show that he was entitled to a declaration of title to the land in dispute. The defendant and one Mr. John Ayo Adegboye gave evidence contending that it is the defendant that is the lawful owner of the land. Fourteen documents were admitted in evidence as exhibits. In a considered judgment delivered on the 24th day of November, 2000, the learned trial judge granted all the plaintiff’s reliefs. The learned trial judge reasoned as follows:

“I prefer the evidence of the plaintiff and his witnesses to that of the defendant and his witness. The 3rd defendant failed to call the proprietor of the school whom he claimed to have given a portion to testify for him. From the evidence before me it is my finding and I so hold that the plaintiff in this case has a better title. On the whole, having gone through the whole evidence and having given my most careful scrutiny, I have come to the conclusion that the plaintiffs case must succeed”.

Dissatisfied, the defendant lodged an appeal in the Court of Appeal, Lagos Division. That Court reversed the judgment of the learned trial judge. In allowing the appeal the Court of Appeal said:

“In the instant case, the plaintiff/respondent on whom lay the onus of proof failed to give evidence as to how Ojomo Eyisha family came on the land. He did not, by evidence link his Deeds of Conveyance to the established land owing family. As I said all he did was to tender bare Deeds of Conveyance…the Learned trial Judge was wrong in granting a declaration of title to the respondent…”

This appeal is against that judgment. In accordance with rules of this Court briefs were filed and exchanged. The appellants brief was duly filed on the 7th of June, 2004, while the respondents brief was duly filed on 1st of September, 2004.

From the Notice of Appeal filed on 11th December 2002, but deemed duly filed on 4/10/11 a sole issue was formulated for determination. It reads:

Whether, in view of the evidence before the court, the Court of Appeal was right in dismissing the Plaintiff’s claim for declaration of Statutory right of occupancy.

Learned Counsel for the respondent also formulated a sole issue for determination. It reads:

“Whether the Court of Appeal was right in dismissing the appellant’s claim for Declaration of title when the appellant merely tendered two Deeds of Conveyance (Exhibits B and C) in proof of his claim but failed to give traditional evidence of his root of title.

Both issues ask the same question, and so this appeal shall be heard on the issue formulated by the appellant.

At the hearing of the appeal on 4th of October, 2011 both counsel adopted their briefs and urged this court to find as per their respective conclusions. Arguments in the briefs run as follows:

Learned Counsel for the appellant observed that both parties traced their title to the Ojomo Eyisha family, the original owner of the land in dispute. He submitted that the appellant was the first to purchase the land and so had a better title than the respondent. Reference was made to Exhibits B. and C.

He further submitted that there is a presumption of regularity with Exhibits B and C since both exhibits were over twenty years old at the time of commencement of this action. Concluding, learned Counsel contended that the judgment of the Court of Appeal was erroneous and ought to be set aside.

Learned Counsel for the respondent observed that the area of land in Exhibit B is more than the area in Exhibit C contending that both deeds of conveyance are irreconcilable. In further argument he observed that the mere tendering of documents is not enough to prove title to land. Reference was made to:

Lawson v Ajibulu (1997) 6 NWLR (Pt.507) p.14

Piaro v Tenalo 12 SC p.31

Concluding he observed that the Court of Appeal was right in dismissing the case of the appellant.

In a claim for declaration of title to land, the starting point is the identity of land. The identity of the land must be clearly ascertained. The identity of land would be in issue if, and only if the defendant in his pleadings disputed either the area of the land or its location. See: Ezeudu & Ors v Obiaewu (1986) 2 NWLR (Pt. 21) p.208.

If pleadings are to be of any value the parties must be held bound by them.

In paragraph 2 of the further amended statement of claim the plaintiff/appellant pleaded the identity of the land as follows:

“2. The defendants are squatters on a piece of land situated lying and being at 2A Adeshiyan Street Palm grove, Ilupeju, off Ikorodu Road. The Plan of which is attached herewith.”

In response, the defendant averred in paragraph 2 of the defendant’s pleadings that:

“2. The defendant denies paragraph 2 of the statement of claim and avers that he is in lawful possession of the property at No.2A Adeshiyan Street ……..”

There is no doubt from the pleadings that No. 2A Adesiyan Street, Palm Grove, Ilupeju Lagos is the identity of the land in dispute.

The defendant did not dispute the area of the land or its location in his pleadings and so the identity of the land is not in issue. Arguing the issue of identity of the land in his brief without pleading it goes to no issue since counsel submissions no matter how alluring can never take the place of legal Proof. See:

Bello v NBN (1992) 8 NWLR (Pt.246) P.206;

Ishola v Ajiboye (1998) 1 NWLR (Pt. 532) p.74.

The identity of the land is not in issue.

In a claim for declaration of title the plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case and the onus lies on the plaintiff to satisfy the court on the evidence he adduced that he is entitled to a declaration of title. If the plaintiff fails to discharge the onus his claim fails and his action is dismissed. See:

Kodilinye v Odu (1935) 2 W.A.C.A. p.336;

Abisi v Ekwealor (1993) 6 N.W.L.R. (Pt.302) p.43;

Salami v Gbodoolu (1997) 4 NWLR (Pt.449) p.377.

Now, title to land or ownership of land may be proved in any of the following five ways:

1. by traditional evidence;
2. by production of documents of title which are duly authenticated;
3. by acts of Selling, Leasing, Renting out all or part of the land or farming on it or on a portion of it;
4. by acts of long possession and enjoyment of land and;
5. by proof of possession of connected or, and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

See:

Idundun v Okumagba (1976) 9/10 SC p.227

In allowing the appeal the Court of Appeal said that all that the plaintiff did was to tender bare deeds of conveyance. Reference was made to the judgment of this Court in:

Lawson & Anor v Ajibulu & Ors (1997) 6 NWLR (Pt. 507) p.14

Where Ogundare JSC said that;

“production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established”.

One of the ways to succeed in a claim for title to land is for the plaintiff to plead a continuous chain of devolution. That in effect amounts to tracing his root of title. Thereafter he must lead evidence to sustain the pleadings. Productions of documents of title are necessary as they make oral evidence more credible.

In tracing the root of his title the plaintiff/appellant pleaded in paragraphs 1, 7, 8, 9, and 10 as follows:

1. The plaintiff is the Administrator and sole surviving beneficiary of the estate of Yussuf Ayanwale who died intestate in Lagos on the 29th day of July, 1982.
2. Under and by virtue of deeds of conveyance dated the 12th day of July 1954 and registered as No.7 at page 7 in volume 1003 of the register of deeds kept in the office at Lagos and another dated the 17th day of July, 1961 and registered as No.36 at page 36, in volume 489 of the register of deeds kept in the office at Ibadan, now Lagos the said piece or parcel of land was vested in the late Yussuf Ayanwale and his predecessor in title in fee simple free from all incumbrances.
3. The plaintiff further avers that the said parcel of land forms a portion of Ojomu Eyisha family land which has been in the possession of the said family from time immemorial until in 1913 a portion including the land in dispute was sold by the said family to the predecessor in title of Yussuf Ayanwale.
4. Since 1913 the predecessor in title of the said Yussuf Ayanwale remained in possession and exercised maximum rights/acts of ownership thereon without let or hindrance until same was conveyed to the Late Ayanwale in 1961.
5. The Late Yussuf Ayanwale remained in peaceable possession and exercised maximum acts of ownership on the said parcel of land without let or hindrance until his death in 1982.

He led evidence in support of his pleadings thus:

“I know the land in dispute at No. 2A Adeshiyan Street Palm Grove. The land was originally owned by Ojomo Eyisha family, my late father bought the land from one Alimi Orishasola….this is the Deed of Transfer – Exhibit B. the document vesting title in Alimi Orishasola was passed to me. This is the document – Exhibit C.

I know late Yusuf Ayanwale. He was my father. He died on the 29th July 1982. After his death I obtained letters of Administration. This is the Letter of Administration (see Page 123 of the Record of Appeal).

To my mind the above extract from the testimony of the plaintiff/appellant shows that he traced the root of his title to Ojomo Eyisha family whose ownership of the land has been established and he linked his deed of conveyance to the established land owning family.

Furthermore all the relevant facts in the relevant exhibits which show root of title of the plaintiff were pleaded. Where the plaintiff and the defendant trace their title to an established owner, the 1st to purchase the land is regarded as the owner of the land. He who is first in time has a better claim in Law and Equity. See:

Adelaja v Faroiki (1990) 2 NWLR (Pt 131) P.137.

My Lords, the plaintiff/appellant and the defendant/respondent trace their title to an established owner, the Ojomo Eyisha family. How the Ojomo Eyisha family came on the land is not in issue as none of the parties contests that family’s ownership of the land. Exhibit B shows that the plaintiff/appellant purchased the land in 1961, while Exhibit J shows that the defendant purchased the land in 1973. The plaintiff/appellant has a better title to the land. He is the rightful owner of the land in dispute.

Section 123 of the Evidence Act states that:

“123. Where any document, purporting or proved to be twenty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested”.

Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the court will presume that they were properly signed by the person whose signature they bear.

This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.

Exhibits B and C are Conveyances which show the plaintiffs/appellants root of title. They were executed in 1954 and 1961, well over 20 years before proceedings commenced in this case. The presumption is that the documents supra are genuine. This is so as the adverse party does not dispute them, and they are over 20 years as at the time proceedings in which they were to be used commenced. Evidence led and quite rightly found by the learned trial judge is that the respondent was in trespass. Proof of ownership is prima facie proof of possession. The presumption being that the person with title to the land is in possession. Once the court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained, did the injunction pronounced is of the perpetual type that is for all time.

In the light of all that I have been saying, the appeal is allowed. The judgment of the Court of Appeal is set aside and the judgment of the High Court is restored.

The appellant is entitled to the costs of this appeal which I assess as N50,000.00.

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SC.90/2004