Hassan Rihawi & Ors V. Liadi Aromashodun (1952)
LawGlobal Hub Judgment Report – West African Court of Appeal
Practice and Procedure—Claim for declaration of title in fee simple—Judgment that property is family property.
Native Law and Custom—Prescription—Stale claim.
Registration of Titles Ordinance (Cap. 197)—Land Registration Ordinance (Cap. 108)—Distinction.
Facts
The above respondent was successful as plaintiff in the Court below and the defendants appealed.
The plaintiff, suing for the members of the Family, asked for a declaration of title alleging that certain property “ is family property and belongs to members of the family of . . . Ojo Aromashodun ”; later he amended his writ to read “title in fee simple ”, but he did not amend his statement of claim to make averments on which to found the claim as amended.
The trial was on the footing that plaintiff would prove a title in fee simple. The first defendant alleged that he had purchased the property from the other defendants and held—as was the fact—a certificate of title under the Registration of Titles Ordinance; and the other defendants justified their sale by claiming title by long possession and also by virtue of a deed of gift.
The trial Judge found that the original owner gave the property to Ojo Aromashodun (through whom plaintiff claimed for Ojo’s descendants), that Ojo permitted his brother (through whom the defendants who sold to defendant 1 claimed) to live on the premises, that nothing passed from this brother to .his wife as he was never seized of the property and therefore nothing passed from her under the gift she made to the defendants who sold to the first defendant, and that the property was family property.
In the appeal of the defendants against that judgment the points brought out
were:—
(1) That the judgment that the property was family property differed from the plaintiff’s claim for a title in fee simple; a point which led the counsel for the plaintiff—respondent in the appeal—to ask the Court of Appeal to strike out the statement of claim and order a new trial on fresh pleadings;
(2) That the defendants who sold relied on long possession in Ojo’s brother and this brother’s descendants with acts adverse to Ojo and his descendants— a point which the trial Judge seemed to dispose of by saying that a prescriptive title was not known to customary law; and
(3) That the first defendant relied not only on the other defendants’ title, by purchase from them, but also on his having a certificate of title by order of Court under the Registration of Titles Ordinance. By error the trial Judge referred to the Land Registration Ordinance, under which the registration of an instrument does not confer on it any effect or validity which it does not have, and overlooked the effect of a certificate of title under the other Ordinance.
Held
(1) According to the evidence and the finding of the trial Judge the title of the plaintiff, if any, was a title at native law and custom, but his claim was for a title in fee simple, the nature and incidents of which are very different, and the claim should have been dismissed. It was too late now to amend the claim and pleadings and undesirable to prolong the present suit.
(2) In view of the certificate of title granted to the first defendant under the Registration of Titles Ordinance and the provisions of this Ordinance, the plaintiff was bound first to secure rectification of the register, establish his adverse estate and remove the title of the first defendant from the register before he could secure any declaration of title.
Obiter: The trial Judge overlooked the rule that on grounds of equity the Courts will not allow a party to invoke the strict principle of native law that there is no prescriptive title, for the purpose of bolstering up a stale claim, and did not consider this aspect of the case—which was a flaw in the judgment.
Order: Appeal allowed with costs fixed at £48 17s. 9d. Judgment of Court below set aside and judgment entered for the defendants, with costs fixed at £23 12s. Od.
Appeal allowed.
