Jackson I. Sanya v. M.A.O. Johnson (1974)

LawGlobal-Hub Lead Judgment Report

O. IBEKWE, J.S.C.

One Madam Dorcas Folashade Agbeke seems to be the central figure around whom the web of litigation in this case is woven. The Plaintiff claims his title to the land through her. The defendant, who is one of her children, also claims through her his right to be in possession of the land in dispute.

On the 12th day of November, 1970 the plaintiff filed an action in the High Court of Lagos claiming against the defendant a declaration of title to all that piece or parcel of land together with the building thereon situate, lying and being at Abule-Ijesha and known as No. 20 Bailey Street, Abule-Ijesha. Plaintiff also claimed possession. Pleadings were ordered and filed. In view of the importance of the pleadings in this case, coupled with the fact that very serious admissions were made by the defendant in his Statement of Defence, we think it is desirable that the relevant portions of the pleadings be set out, at least for the purpose of clarity.

The plaintiff in paragraphs 2, 3,4, 5, 6, 8, 9, 10 and 11 of the Statement of Claim averred as follows:

“2. The property in dispute is a piece of land together with the buildings thereon situate, lying and being at Abule-Ijesha and known as No. 20, Bailey Street, Abule-Ijesha, Yaba.

3. The said piece of land forms part or portion of a large tract of land originally belonging to the Members of Eletu Odibo Chieftaincy Family of Lagos.
4. In or around 1951 the members of the said Eletu Odibo Chieftaincy family leased the said piece of land to Madam Dorcas Folashade Agbeke (the Defendant’s mother). There was no deed or lease at the time but the said Madam Dorcas Folashade Agbeke was immediately put into possession and thereafter she remained in continuous and uninterrupted enjoyment of the land.
5. A few months after entering into possession the said Madam Dorcas Folashade Agbeke erected some buildings on the said piece of land and the said buildings have not been altered ever since.
6. On the 17th day of April, 1957 the said Madam Dorcas Folashade Agbeke purchased for the price of ‘a380 the freehold estate of said piece of land from Councillor Amusa Gbadesere, the then Chief Eletu Odibo of Eletu Odibo Palace, Lagos. But there was no formal deed of conveyance before the death of the said Councillor Amusa Gbadesere.
7. By an Indenture dated the 28th day of February, 1964 and registered at No. 55 at page 55 in volume 1222 of the Lands Registry, Lagos, Ishmael Ishola Olatunji Bajulaiye (the new Chief Eletu Odibo of Lagos) and the other principal members of the Elutu Odibo Chieftaincy Family conveyed the said piece of land to Madam Dorcas Folashade Agbeke in consideration of the 80 pounds already paid to their predecessor, Councillor Amusa Gbadesere.
8. By a purchase receipt dated 23rd day of September, 1970 the said Madam Dorcas Folashade Agbeke sold the said piece of land together with the buildings thereon to the Plaintiff for the value of 1,500 pounds.
9. Two days later (on September 25,1970) she executed a deed of conveyance in favour of the Plaintiff. The said Deed together with some other relevant documents had been submitted to the Land Registry, Lagos for title registration under Title No. MO 9119.
10. Immediately after executing the said deed of conveyance this same Madam Dorcas Folashade Agbeke instructed the Defendant (who is her son and also the care-taker of the property) to surrender possession to the Plaintiff but surprisingly the defendant refused to do so.”

In paragraph 3 of his Statement of Defence the defendant admitted the aver

ments contained in paragraphs 2-6 of the Statement of Claim, and also proceeded under paragraphs 4, 5, 7, 8 and 10 to aver as follows:

“4. With further reference to paragraph 4 of the Statement of claim the defendant avers that it was in 1945 and NOT 1951 that the land in dispute was leased to the Defendant by the Eletu Odibo Chieftaincy Family.

5. That at the time of the lease in 1945 the Defendant was serving in Burma during World War n with the West African Frontier Force from where he made arrangements with his mother the said Madam Dorcas Folashade Agbeke to negotiate for the land for him with the Eletu Odibo Chieftaincy Family.
6. With further reference to paragraph 5 of the Statement of claim the Defendant avers that immediately after the grant to him of the land he took possession of the said land through his mother and agent the aforesaid Madam Dorcas Folashade Agbeke and caused some buildings to be erected on the said land at his own expenses.
7. With further reference to paragraph 4 of the Statement of claim the defendant avers that he was one of several tenants of the Eletu Odibo Chieftaincy Family to whom land was granted in the area and that no formal lease agreement was executed in favour of any of the leaseholders.

“10. With further reference to paragraph 10 of the Statement of claim the defendant avers that at the material times his said mother was too old to understand the nature and contents of any instrument which she was alleged to have executed if indeed that was the case.”

As could be seen from the pleadings, it is clear therefore, that the plaintiff’s case is that the land in dispute originally belonged to the Eletu Odibo Chieftaincy Family, which family, first of all leased it to the said Madam Dorcas Folashade Agbeke but, later on, sold the land to her. She in turn, sold to the plaintiff.

The defendant’s contention is that his late mother, Madam Dorcas Folashade Agbeke, took a lease of the land from the Bletu Odibo Family as his agent. It is the defendant’s case that his late mother, Madam Agbeke, did not, at any time, sell the land in dispute to the plaintiff, and that the alleged conveyance to the plaintiff was void on the following ground:

“That at the material time, his mother, Madam Agbeke was too old to understand the nature and contents of the instrument which she was alleged to have executed.”

It seems to us that the only issue in this case which calls for serious attention is the question as to whether or not the property in dispute was ever sold to the plaintiff by Madam Dorcas Folashade Agbeke or not At the trial, the plaintiff gave evidence, and called four witnesses to prove that the landed property in dispute was sold and conveyed to him by Madam Dorcas Folashade Agbeke, who issued a purchase receipt Ex. “A” in his favour, and handed over to him, her own title deed Ex. “B”. He also said that, later on, the vendor, Madam Agbeke executed a deed of conveyance Ex. “B 1” in his favour.

The defendant, on the other hand, produced evidence, mainly receipt, to show that he is in possession of the land in dispute and that he is indeed acknowledged by the Eletu Odibo Chieftaincy Family as their tenant. It is important to emphasize, at this stage, that the defendant claims no more than a leasehold interest in the land in dispute.

On the 9th of June, 1972 the learned trial judge, George J., in a reserved judgment, dismissed the plaintiff’s claim. Concluding his judgment, the trial judge stated as follows:

“This is a battle of titles and the onus lies on the Plaintiff to prove that he had a better title than the defendant The plaintiff’s claim is therefore dismissed. ”

It is from this decision of George J. in the Lagos High Court, dismissing his claim that the plaintiff has now appealed to this court. The following grounds of appeal were argued before us.

“1. That the learned Judge erred in law and on the facts in relying solely on technicality without considering the weight of evidence.

2. That learned Judge misdirected himself in holding that the execution and the recitals in Exhibit B had not been proved and that the lack of that proof was fatal to the Plaintiff’s case.
3. That learned Judge erred in law in making lack of sufficient proof of execution and of the recitals in Exhibit “B” a ground for dismissal other than non-suit.”

Before dealing with the points which were canvassed before us under the grounds of appeal, we think that it is expedient that, we should first and foremost dispose of an important point, which was raised suo motu by the court. We take the view that, on the pleadings and the evidence before the Court, title was never an issue between the parties. The parties did not and could not have joined issue on title as owners because, the defendant’s interest in the land in dispute is strictly limited to a mere claim for possession as an alleged tenant of the Elutu Odibo Family.

Throughout the trial, the Eletu Odibo Chieftaincy Family did not on their own volition apply to be joined as parties in the action, nor were they made parties by the court. What is more, the defendant, whose claim to possession rests entirely on the title of the Eletu Odibo Chieftaincy Family, did not deem it fit to bring them in as parties. We, therefore, fail to see how the defendant whose only claim is that he is a lessee, and who did not claim title, could be said to be defending the title of his overlord who, in any case, has not been made a party to the proceedings.

It is our view that, on the pleadings and bearing in mind the particular circumstances of this case, title was never in issue as between the parties. It, therefore, follows that the learned trial judge erred in holding as he did, that this case “is a battle of titles” and that the “onus lies on the plaintiff to prove that he had a better title.”

Now, we come to deal with the submissions made by learned counsel for the appellant in support of the grounds of appeal which were argued before us.

We are in agreement with the learned counsel for the appellant that the learned trial judge erred in basing his dismissal of the plaintiff’s case on irrelevant technicalities, and without considering the weight of evidence before him. We, too have carefully gone through the evidence given in the court below, and we are satisfied that, at the trial the plaintiff produced overwhelming evidence to establish his claim to ownership of the land in dispute. We are fortified in this view by the incontrovertible evidence given in favour of the plaintiff by two witnesses, namely, the defendant’s brother and his sister who testified in the court below. The 2nd plaintiff witness, David Adebeshin (Defendant’s brother) gave evidence for the plaintiff which is damaging to the defendant’s case. We think that the relevant portion of this evidence should be set out in full as follows:

“I know the Plaintiff and I know the Defendant,I also know the land in dispute. The Defendant is the last born of my mother. His is my brother. At present the plaintiff is the owner of the land in dispute.

The Plaintiff bought the land and house from my mother. My mother’s name is Dorcas Folashade Agbeke. The Plaintiff bought the house and land for the price of 1,500 pounds.I was personally present at the time of sale. My two sisters were also present.

“My mother had four children. At the time of the sale my mother sent for the Defendant but he did not come. My mother issued a purchase receipt for the sale. Exhibit A is the receipt issued, by my mother. She delivered the Conveyance made in her favour by Chief Bletu Odibo to the Plaintiff and executed a deed of Conveyance in favour of the Plaintiff. I was present when my mother executed a deed of conveyance in favour of the Plaintiff. The conveyance was executed before the Magistrate in Yaba Court. Exhibit B is the deed of conveyance executed by Eletu Odibo in favour of my mother. I was personally present when Exhibit B was executed. My mother paid 80 pounds to Eletu Odibo.”

Furthermore, the 4th plaintiff witness, Alhaja Ibitoye Ayinke (Defendant’s sister) gave equally damaging evidence against the defendant. Again, we think that it is desirable to set out the relevant portion of her evidence as follows:

“I am a housewife I know the Plaintiff. I also know the Defendant. I also know the land in dispute. We were born by the same Mother. He is my brother. My mother had four children in her life time. The Defendant is the last born of our mother. The land in dispute is at No. 20, Bailey Street, AbuleIjesha. My mother owned the land in dispute in her life time but she sold it before she died. She sold it to the Plaintiff. I was present when the land was sold to the Plaintiff. My senior brother and the second child of my mother and myself were present. The agent was also there. Three of the children of my mother were present. The land and Building were sold for 1,500 pounds. The purchase price was paid in my presence. My mother issued a receipt for the purchase of the land.”

It is sufficient to add that the forceful evidence given by the brother and the sister of the defendant already referred to by us was not seriously challenged at the trial. Moreover, their evidence was also supported by the 3rd plaintiff’s witness James Akinsanya, the estate agent On the whole, we are more than satisfied that the weight of evidence in this case is very much against the decision of the learned trial judge. We think that he was clearly in error when he dismissed the plaintiff’s claims without giving full consideration to the merit of the case before him.

We take the view that, in the present case, there is a preponderance of evidence leading to the irresistible conclusion that the plaintiff is the owner of the land in dispute. On the other side of the scale is the very slender evidence in support of the defendant’s claim to possession. But, even if there had been ample evidence in favour of the defendant’s claim to possession which is not the case here, we would still have been of the same opinion that we have taken that, on the facts of this case, the defendant’s alleged long possession of the land in dispute could not, in anyway, defeat the plaintiff’s well-founded title to the property in dispute.

It is generally said that possession raises a presumption of ownership but, in our opinion, such presumption cannot stand when another person proves a good title.

It was held in Akintolu Oloto v. Administrator General 12 W.A.C.A. 76 that, where the owner of land brings an action to recover possession thereof, the defendants being in possession, the onus of proof of their right to possession lies on the defendants.

There is one other important complaint which is contained in the grounds of appeal argued before us. In the course of his judgment, the learned trial judge relying on s. 129 of the Evidence Act, discredited Ex. “B”, the plaintiff’s root of title in the following terms:

“In this case the deed is not 20 years old even at the date of litigation much less the date of contract. As there is no evidence in support of the recital the Plaintiff cannot succeed in his claim.”

Section 129 of the Evidence Act, which was relied upon by the learned trial judge reads as follows:

“Recitals, statements and descriptions of facts, matters and patties contained in deeds, instruments………. 20 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. ”

It occurs to us that, this rule of evidence laid down in s. 129 of the Evidence Act is sometimes over-stretch- and, in consequence, sometimes mis-applied by the courts.

The first thing to note is that the instrument containing the recital must be twenty years old at the date of the contract. The second thing is that, although under section 129, the recital in a title deed is presumed to be evidence of the truth of the facts recited therein, it is nevertheless not conclusive evidence. By virtue of the said section, recitals in a document of the age specified, are presumed to be prima facie evidence of their correctness, except in so far as they may be proved to be inaccurate. In other words, the section creates only a rebuttable presumption in favour of the vendor. But, it is not conclusive evidence, and it cannot operate as an estoppel against a stranger to the contract who is able to show that he has a better title than the person named in the recital.

Having said this, we wish to add that we are however, in agreement with the learned trial judge that the recital contained in Ex. “B, the plaintiff’s root of title, does not and cannot raise any presumption under section 129 of the Evidence Act as the instrument containing it is obviously less than 20 years old. But that is another matter. For, a recital which cannot raise any presumption under s. 129, may in the long run, be shown to be more valid than the one that raises such presumption. It is not the intention of the section that a recital in a document of title, which falls outside the rule, should thereby be rendered impotent The rule is founded in commonsense.

It is good sense to presume that, twenty years after the execution of any conveyance or instrument, the makers of, and the witnesses to, the title deed or instrument might not be alive to testify as to the truth of the statements and descriptions of facts, matters, and parties contained in the deed or instrument The onus is, therefore cast upon the party who is challenging such deed or instrument to prove the contrary. Recitals, which fall outside the rule, are still governed by the usual rule of evidence as to the burden of proof. A deed to be competent for the presumption contemplated by section 129 of the Evidence Act must be 20 years old “at the date of the contract,” and not 20 years old at the date of the proceedings at which such deed is being offered in evidence. See Johnson v. Lawanson (1971) 1 All N.L.R. 56.

It should, However, be noted that the plaintiff in the present case did not seek to rely on section 129. Rather he took the only course that was open to him and called witnesses, among whom were the defendant’s brother and sister who witnessed the transaction between him and their mother, to testify in his favour. As we have pointed out, these two witnesses in particular gave eye-witness accounts, which remain uncontradict as to the execution of the conveyance (Ex. “B1”) by their mother; their evidence also proved conclusively the genuineness of the transaction which took place between the plaintiff and their late mother, Madam Dorcas Folashade Agbeke, in respect of the property in dispute. Furthermore, these two witnesses also confirmed that they were present when their late mother, Madam Agbeke handed to the plaintiff Ex. “B’, which is the conveyance executed in her favour by the Eletu Odibo Chieftaincy family. Up till now, Exhibits “B” and “B1” have not been set aside; no such claim has been made before us, and it is clear that the present defendant could never make such a claim.

As we have said earlier on in this judgment, the straightforward evidence given by those two witnesses has left us in no doubt whatsoever that the plaintiff is the rightful owner of the property in dispute, and that he is has a better right to possession than the defendant, who has not established any right to the property in dispute. It is our view, therefore, that the plaintiff’s case has merit. Accordingly, the plaintiff is entitled to the declaration sought. And as to possession, it is settled law that, all the plaintiff in an action for possession has to do is to prove a better right We have already decided that the plaintiff in the present case has clearly established that he has a better right to possession than the defendant.

In the circumstances, the appeal succeeds and it is allowed. The decision of George J., in the High Court of Lagos delivered on 9th day of June, 1972 dismissing the plaintiff’s claim, together with the order for costs awarded against the plaintiff, is hereby set aside.

In its place, we make an order in favour of the plaintiff for declaration of title to all that piece or parcel of land together with the building thereon situate, lying and being at Abule-Ijesha and known as No. 20 Bailey Street, Abule-Ijesha. We also make an order for possession of the said property in favour of the plaintiff. The respondent is to pay the appellant N86 costs in the coun below, and the costs of this appeal assessed at N135 And this shall be the judgment of the court.

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Other Citation: (1974) LCN/1861(SC)