Jimoh Adebakin V. Sabitiyu Odujebe (1972)
LawGlobal-Hub Lead Judgment Report
COKER, J.S.C
The appellant was the defendant in an action instituted against him in the High Court, Ikeja, Lagos State. The plaintiff is the present respondent and her writ was endorsed for the following claims:-
“(1) Recovery of possession of all that piece or parcel of land situate lying and being at Akinwunmi Village, Mushin in the Ikeja Division, the said land being more particularly described on a plan to be filed in this action;
(2) 100 pound General Damages for trespass to the said land.
(3) Injunction restraining the defendant his servants an agents from further acts of trespass. The annual rental value of the land is 5 pound.
Title is involved.”
The plaintiff filed a statement of claim in which she stated that one Muranoh Akanni Eniafe “became seised in fee simple absolute in possession of the said land” by virtue of a conveyance dated the 25th day of August, 1948, and that by another conveyance dated the 14th March, 1958, the plaintiff had become “seised in fee simple absolute and in possession of the said land.” The statement of claim further stated that she duly entered into possession of the land and remained peacefully in such possession until “on or about the 2nd August, 1959” when the defendant entered the said land, dispossessed her and erected a building thereon despite her protests.
The Statement of Defence denied the dispossession of the plaintiff and averred that the land always belonged to the Eyisha Family under Native Law and Custom and that this family was in full, undisturbed and effective possession of the land until by virtue of an indenture of lease dated the 14th day of June, 1958, they had leased the said land to the defendant. The statement of defence finally in paragraph 9 thereof averred that –
“The defendant pleads and relies on
- Acquiescence
- Standing by
- Laches
- The Limitation law
We observe that although pleadings in this case closed with the filing of the statement of defence on the 13th May, 1963, no evidence was taken by way of hearing of this case until the 31st March, 1966, and then only before Kester, J., (as he then was), who, after part-hearing the case until the 29th April, 1966, left the jurisdiction for other duties. The hearing which has culminated in the judgment now on appeal did not commence before Beckley, J., until the 11th September, 1967, some four years after the close of pleadings and certainly five years since the institution of the proceedings. Cases involving lands are pre-eminently those which require as witnesses persons who have had some considerably long experience of the lands concerned as well as the relevant history and the passage of time may in these circumstances bring about incalculable and unexpected vicissitudes to the character of the cases and the availability of witnesses.
Be that as it may, the plaintiff did give evidence in support of her statement of claim. She produced both the Purchase Receipt (admitted as Exhibit “A”) and her Deed of Conveyance covering the land. This conveyance was admitted in evidence as Exhibit “B. She testified that after her purchase of the land she met the defendant on the land; that he would not leave the land despite the letters written to him by her solicitors and that she eventually instituted proceedings against him. She called her vendor Muranoh Akanni Eniafe who testified that he had bought the land from one R.A. Disu and produced his own conveyance which was admitted in evidence as Exhibit “D”. The plaintiff’s surveyor, Mr. Body Lawson, also gave evidence and identified the plan in the plaintiff’s conveyance Exhibit “B” with that on the conveyance of her vendor, Exhibit “D”.
The witness also produced a plan showing the area of encroachment which is in dispute between the parties and this was admitted in evidence as Exhibit “E”. The plaintiff had done the negotiation and purchase of the land through her landlord one Abu Bakare Okewande. He also gave evidence and described the negotiation with Eniafe. He stated that the plaintiff went into possession and indeed cleared the bush on the land regularly. In the same way the defendant gave evidence that he had bought the land from the Eyisha Family because he always knew that the land belonged to that Family. In the course of his testimony he stated before the court as follows:-
“I only knew at the time that the Eyisha family were the only family dealing with land in that neighbourhood at the time. My house cost me 200 pounds to build. I roofed the building about 12 years ago. In 1960, Lawyer Ojosipe wrote a letter to me which I handed over to my lawyer. At that time I had already completed my main building and I was living there. All my aunts were there on the land granted to me by the Eyisha family. I first built on the land. There was nothing between the plaintiff and myself until I got a writ of summons from her.”
The defendant called his surveyor, Marcellino Augustin Soweje who also prepared a composite plan (produced in evidence as Exhibit “G”) and identified the land verged red on Mr. Lawson’s plan Exhibit “E’ as the same area as that which he had verged green on his own composite plan, Exhibit “G”. The defendant called one Raimi Apena a member of the Ojomo Eyisha Family as a witness. Raimi Apena gave evidence to the effect that the land in dispute was leased by his Family to the defendant by virtue of the Deed of Lease Exhibit “F”; that the land in dispute was part of his Family land in respect of which they had plans, the first of which was made for his Family by the late Herbert Macaulay, licenced surveyor, in 1912. He testified in the course of his evidence thus:-
“The family land commences from Idioro roundabout, across railway line to Igbobi then towards the back of the Orthopedic Hospital to Somolu to Debari and across the Ikorodu Road to Idi Araba, which is the old footpath to Onigbongbo then onwards back to Mushin with Ojuwoye family land on the right hand side. I know the land in dispute. It is at the centre of our family land. The land belongs to the Eyisha family. Eyisha first settled on the land over 300 years ago.
The land belongs to the Eyisha family.” This witness further testified that his family was always in possession of the land in dispute until it was leased to the defendant some time in 1947 and then proceeded to enumerate the cases which they had fought and won on several portions of the large expanse of land already described by him. He attempted to produce the relevant judgments, they were objected to by learned counsel for the plaintiff and although learned counsel appearing for the defendant referred the learned trial Judge to the provisions of Section 45 of the Evidence Act, Cap. 62 (Laws of the Federation, 1955) the judgments were rejected by he learned trial Judge. A number of these was tendered but they were rejected one after the other by the learned trial Judge. In one case learned counsel pleading for the admission in evidence of one of these judgments submitted as follows:-
“It is tendered to show dealings by Eyisha family with land within the boundaries of the family land as described by the witness with a view that when all the evidence of dealing is in evidence, the court will be asked to draw the inference that this particular land in dispute belongs to the Eyisha family. One single claim of evidence may be insufficient to enable the court to draw the inference, but the sum total of a number of acts of ownership upheld by the court with regard to different parcels of the Eyisha family land may enable the court to come to the conclusion that the land in dispute belongs to the Eyisha family.”
His plea was rejected and the judgment was also rejected. At the end of the hearing learned counsel on both sides addressed the court and in a reserved judgment the learned trial Judge upheld the claims of the plaintiff and gave judgment for her according to her The defendant has appealed to this court against that judgment complaining of misdirection of law in that the learned trial Judge wrongly concluded that the plaintiff had made out a title when she had not; that he wrongly rejected the several judgments which the defence attempted to put in evidence and that even on the facts of the case the learned trial Judge wrongly found possession in favour of the plaintiff.
We shall deal with these points seriatim. Learned counsel for the defendant has submitted before us that the learned trial Judge wrongly came to the conclusion that on the evidence before him the plaintiff had proved her title. We have set out earlier on in this judgment the plaintiff’s claims as they appear on her writ and manifestly as stated by the plaintiff herself on that writ title is involved. The claim of the plaintiff as expressed on the writ postulates that she was not in possession at the time of the institution of these proceedings for she was asking for recovery of possession since, according to her statement of claim, she had been evicted by the defendant from the land on or about the 2nd August, 1959, and the present proceedings were begun on the 28th November, 1962, after, again according to her, the defendant had “also erected a building thereon.” On those facts which she had herself put forward as the bases of her claim, it seems inconceivable that there should have been any finding of possession in her favour. She had asked in the action for recovery of possession as well as for damages for trespass. The former pre-supposes that she was out of possession at the time of the institution of the proceedings whilst the latter assumes that she was in possession. In dealing with this aspect of the case the learned trial Judge in his judgment observed as follows:-
“I think the onus is on the defendant to prove his justification for encroaching on the land possessed by the plaintiff for I am satisfied on the evidence adduced by the plaintiff that at the time she purchased and at the time she put fence round the land she purchased there was no building on the land now in dispute and there was no well dug on the land in dispute at that time. She was in possession before the defendant encroached upon the land…….. The plaintiff on her part said that at the time she bought and was shown the site there was no building on the land in question. I accept that evidence.”
Thus, it seems that the evidence accepted by the learned trial Judge was that the plaintiff was always in possession before the defendant entered on the land vi et armis. If that is so, a claim for recovery of possession is inappropriate for a trespasser does not by the act of trespass secure possession in law and if the plaintiff was always so in possession then the defendant can only be liable for damages in trespass and to an order of injunction. We must observe that the learned trial Judge made no clear findings on this point, especially when his later observation in this case to the following effect is considered:-
“Having given the whole evidence my most careful scrutiny, I have come to the conclusion that the plaintiff’s claim must succeed. I accordingly give judgment for the plaintiff against the defendant for the recovery of possession of all that piece or parcel of land edged green in Exhibit E survey plan No. L&L/C 2455 counter-signed by the Surveyor -General of Western Nigeria on the 29th day of April, 1964. I also award damages of 40 pounds for trespass against the defendant in favour of the plaintiff. I order an injunction restraining the defendant, his servants and agent from further acts of trespass on the land possessed by the plaintiff as shown in Exhibit “E”.
With respect, it is not possible from these observations to decipher which of the parties was in possession at the time of the institution of the proceedings and undoubtedly a clear finding in this respect is fundamental to the success of one or the other of the parties. We think therefore that the complaint of the defendant on this aspect of the case is justified.
Adverting now to the issue of title, the learned trial Judge at the commencement of his judgment directed himself as follows:-
“The plaintiff alleges that the area in dispute, that is the area verged green in Exhibit “E” is within the area of the land conveyed to him by Exhibit “E” and which traces her title to one Mr. J.A.O. Phillips. On the other hand the defendant stated that he is the lessee of the land shown in Exhibit “F” which includes the portion verged green in Exhibit “E”. He also traces his root of title to the Ojomo Eyisha family and to prove his title he called Raimi Apena, a member of the family of Ojomo Eyisha family. The question therefore for determination is as to which of the plaintiffs or defendant has a better title to the land in dispute. The defendant claims that by virtue of the lease granted to him he has a right to build and utilise the portion edged green in Exhibit “E” as part of his property.”
So, whilst the plaintiff had stated her root of title as that of Mr. J.A.O Phillips, the defendant had relied on the title of the Eyisha Family. The learned trial Judge then discussed at length the case of the defence on the title put forward by the defendant and criticised both the case and the efforts of the defence to prove that title. Learned counsel for the defendant has before us attacked the judgment on this point in two ways. Firstly, he submitted that the plaintiff’s title must first of all be established before a consideration of the defendant’s title could arise and, secondly, he argued that the learned trial Judge wrongly rejected the several judgments by which the defendant had sought to establish the title of his lessors. Concerning the first contention, we simply draw attention to the observation of this court in the case of Alhaji J. Aromire & Ors. v. J.J. Awoyemi, SC. 38/69 of the 11th February, 1972, to the following effect:-
“The plaintiff claimed that they were trespassers but assuming that they were, indeed the plaintiff in order to evict then must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective. (See the observations of the West Africa Court of Appeal in Alhaji Adeshoye v. Siwoniku (1952) 14 WACA 86 at p. 87). The learned trial Judge observed in a number of passages that the appellants had not proved their title or that the land in dispute fell within Exhibit “E”. On the strength of the authorities the plaintiff’s title must first be considered and decided upon before a consideration of the title of the defendants arises.”
The learned trial Judge in the instant case properly directed himself as to the necessity of examining the respective titles of the parties. In her statement of claim, the plaintiff had claimed to be “seised in fee simple absolute in possession of the said land” and it is by virtue of this title that she wanted recovery of possession from the defendant. She produced her conveyance as Exhibit “B”; it is dated the 14th March, 1958, and was made between her as the purchaser of the one hand and Muranoh Akanni Eniafe as the vendor of the other hand. There was only one recital of the title of the vendor (or vendors) of Eniafe himself in Exhibit “B” and it reads thus:-
“WHEREAS under and by virtue of a Deed of Conveyance dated the 25th August, 1948, and registered as No. 12 at page 12 in Volume 786 of the Register of Deeds kept in the Lands Registry at Ibadan all the piece or parcel of land situate lying and being at Ojuwoye Town, Mushin, Ikeja District in the Western Region of the Federation of Nigeria aforesaid and which with its dimensions and abuttals is more particularly described and delineated on the plan drawn or attached at the foot of the Deed of Conveyance aforementioned was conveyed in fee simple absolute in possession by JACOB ADEPEJU OGUNDIPE PHILLIPS of No. 6 Ashiwaju Lane, Lagos, and RAIMI ADISA DISU of No. 38 Agoshofin Street, Lagos, to the vendor.”
Muranoh Akanni Eniafe then gave evidence and produced his own conveyance (admitted as Exhibit “D”) from Phillips and Disu. Exhibit “D’ is dated the 25th August, 1946, and is expressed to be made between Jacob A.O. Phillips as vendor, Raimi Adisa Disu as purchaser and Muranoh Akanni Eniafe as sub-purchaser. The contents of Exhibits “D’ show that Raimi Adisa Disu obtained no conveyance for himself at the time he bought the land from Phillips and indeed at the time he sold same to Eniafe. In Exhibit “D” the title of Phillips was described in the relevant recital as follows:-
“WHEREAS the vendor is seised in fee simple or otherwise sufficiently entitled to the hereditaments hereinafter described and intended to be hereby granted for an estate of inheritance in fee simple in possession free from encumbrances.”
Clearly therefore, Phillips had no more to his title than the recital in Exhibit “D”. It should be noted that he was then described as having a fee simple absolute – a tenure which is only provable by writing and in this case a claim of title completely unevidenced by any writing or authority. The learned trial Judge in the course of his judgment referred to the above recitals from Exhibit “E” and Exhibit “D”. He observed thereon as follows:-
“The root of title of Mr. Jacob A.O. Phillips does not appear clear from Exhibit “D’ which is a conveyance between himself and Raimi Adisa on the one part and Mr. M.A. Eniafe on the other part.”
The learned trial Judge then quoted in extenso the recital dealing with the title of Phillips in Exhibit “D” and then observed as follows:-
“It would therefore be observed from the above quoted recital of Exhibit “D” that the root of title of Jacob A.O. Phillips is not certain but suffice it to say that Exhibit “D” confirms that he had in any way been in possession of that piece of land since 1948.”
With respect again, the inferences drawn by the learned trial Judge does not follow from the premises. If the root of title from Phillips “does not appear clear” or if that root of title “is not certain” then the obvious conclusion must be and is that the plaintiff had failed to prove the title through which she had claimed. To say then that she had proved “her root of title as far back as the year 1948” does not follow and in any case is a conclusion which is a direct antithesis of the evidence accepted by the learned trial Judge himself. That was all there was to the title of the plaintiff and her predecessors-in-title. It was contended before us by learned counsel for the plaintiff that she was already on the land exercising numerous acts of possession thereon before the advent of the defendant. As to this argument, we are unable to place any reliance on it. There was, as we observed earlier on in this judgment, no clear finding as to possession and in any case the argument could not be an answer to the issue of title. It is clear that on the material before the learned trial Judge the plaintiff had failed to prove her own title to the land and, in the circumstances of this case, that finding should have decided the case.
Again, on the issue of title, learned counsel for the defendant complained that the several judgments by which he had sought to prove the title of his lessors were wrongly rejected by the learned trial Judge. Learned counsel for the plaintiff had argued before us that the judgments were rightly rejected by the learned trial Judge inasmuch as they were not shown to be relevant to the case in hand. We are firmly of the view that the several judgments were wrongly rejected by the learned trial Judge. We have already referred to the evidence of Raimi Apena one of the defendant’s lessors and his attempts to produce the several judgments in evidence. Section 45 of the Evidence Act, Cap. 62 provides as follows:-
“45. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”
If the defendant was allowed to produce the judgments it is easy to see the application of such judgments to the case of the defence either as the evidence then stood or by the calling of further evidence to identify the judgments already in evidence with land in such proximity to the land in dispute as to strengthen the probability of the evidence of the witness.mThe documents were rejected and indeed contrary to established practice were not marked as “Tendered and Rejected,” so we have no opportunity of looking at them and ascribing to them what we think should be their probative value. The rejection of the judgments by the learned trial Judge was clearly an error of law. In dealing with the evidence of the witness Raimi Apena on this point, the learned trial Judge said in his judgment as follows:-
“He did not give evidence which I could regard as traditional evidence tracing how his family became the owner of this large piece of land including the land in dispute. Whether his family bought the land, acquired it by conquest or by being the first settlers on the land is not clear and in my view that evidence is too scanty to be able to establish that his family is the owner of the land on which the plaintiff is in possession. For the second defendant’s witness to establish that the property in dispute belongs to his family, the onus is upon him to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference that members of his family were the exclusive owners (see Ntoe Ekpo Ekpo versus Eta Ita XI Nigeria Law Reports, page 69). Attempts were made to tender several judgments in evidence but these judgments were not proved to be relevant to the present case and they were accordingly rejected.”
We have already stated that those judgments were wrongly rejected at the stage when they were so rejected. The learned trial Judge in his judgment concluded that the witness did not produce the type of evidence that would support his claim of ownership to the Eyisha family land but by his own decision and rejected of his documentary evidence, the learned trial Judge himself had made it impossible for the witness to give the type of evidence which he should have given. The learned trial Judge had laid down certain criteria for proving absolute title of ownership but lost sight of the fact that those criteria were to be proved by evidence and not necessarily by numbers of witnesses.
On the issue of title, it is sufficient for us to point out that the plaintiff had clearly failed to prove her title and as the defendant was in possession at the time of the institution of these proceedings it is inconceivable that she should have succeeded in her claim for recovery of possession on the strength of her title.
We have come to the conclusion that all the grounds of appeal argued on behalf of the defendant are justified and therefore succeed. The appeal succeeds and it is allowed. The judgment of the High Court, Ikeja, in Suit No. IK/205/62 including the order for costs is set aside and it is ordered that the plaintiff’s case be dismissed. This shall be the judgment of the court.
The appellant is entitled to his costs both in this court and in the court below and these we fix at 66 guineas and 72 guineas respectively.
SC.42/70
