John Kobina Seye Johnson Vs Irele Ayinke Lawanson & Ors (1971)
LawGlobal-Hub Lead Judgment Report
COKER JSC
During the argument of this appeal the point arose as to the proper construction to be placed on section 129 of the Evidence Act, cap.62. Learned counsel for the appellants has submitted that he would rely on the authority of decided cases on the meaning and effect of the provisions of that section of the Evidence Act in support of his appeal, whilst learned counsel appearing for the respondents indicated that he would contend that those decisions on the meaning of section 129 of the Evidence Act upon which the appellants would rely were wrongly decided. In the course of the judgment of the High Court appealed from, Kazeem, Ag. J., as he then was, commenting on the applicability of section 129 of the Evidence Act to the case in hand had observed as follows:-
“Furthermore, the deed of conveyance, exhibit ‘M’ is dated 16th June, 1933 and in my view, the date of the contract in relation to that document, could only be the date of late Ariyo’s Will and codicil on 28th December, 1923, and not the date of the plaintiffs’ inheritance of the property in 1958. If that is so, then the document is not 20 years old from the date of the contract to raise the presumption under Section 129 of the Evidence Act. Even if that presumption could be raised in favour of the plaintiffs, I am of the opinion that on the authority of Omosanya vs. Anifowose 4 FSC. 94 at page 97, it cannot operate against the defendants who are strangers to the transaction contained in exhibit ‘M’.”
The facts of the case itself are somewhat complicated and although the only point now being decided at this stage of the appeal is the meaning of section 129 of the Evidence Act, a clear understanding of the facts of the case is necessary for a proper appreciation of the points raised in argument and determined hereby.
One Salu Ariyo of Lagos died testate on the 31st December, 1923 leaving a Will dated the 13th June, 1923 and a codicil dated the 28th December, 1923. The Will contains a number of bequests of personal properties and devises of real property and undoubtedly sets out with clear particularity the various properties mentioned but significantly made no mention whatsoever of the property now in dispute. The Will also contains a residuary clause in the following terms:-
“I give devise and bequeath to my trustees all the residue of my real and personal property in trust for the benefit of the members of my family.”
Although the executors named in the Will duly obtained probate they were in the year 1929 relieved of their duties by the (then) Supreme Court of Nigeria and a receiver of the estate was appointed. The receiver, acting in pursuance of an order of court in that behalf, proceeded to sell the “residuary realities” of the estate of the late Salu Ariyo and indeed sold the piece or parcel of land situate at Kadara Street, Ebute Metta (and opening to Cemetery and Strachan Streets, Ebute Matta) to one Emmanuel Elenitoba Johnson. The receiver then executed a conveyance in favour of Emmanuel Elenitoba Johnson and it is appropriate to set out here the recital in that conveyance (produced in evidence as exhibit M dated 16th June, 1933 and registered as No. 5 at page 5 in Volume 369 of the Register of Deeds, Lagos) dealing with the title of Salu Ariyo. The recital is as follows:-
“Whereas one Salu Ariyo late of Offin Road Lagos Nigeria being at his death seised in fee simple in possession free from encumbrances of several hereditaments including the hereditaments hereinafter described and expressed to be hereby conveyed died on the 31st day of December, 1923 …”
The present appellants are the successors-in-title to Emmanuel Elenhoba Johnson. It was common ground however that the land at Kadara Street, Ebute Matta, the subject-matter of these proceedings, lies within the stool lands of the Oloto Chieftaincy Family whose radical title to the lands was in no way disputed. Now pursuant to a writ of execution in Suit No. 339/40 (Supreme Court, Lagos Division) the right title and interest of the Oloto Chieftaincy Family in that land were transferred to one Akin Edun by virtue of a certificate of purchase dated the 13th February, 1946 and on the 6th May, 1946, Akin Edun sold and conveyed the land to one Madam Enitan Edun (see conveyance dated the 6th May, 1946 and registered as No. 20 at p. 20 in Volume 718 of the Register of Deeds Lagos produced in evidence as exhibit C). On the 5th June, 1950, Madam Enitan Edun sold and conveyed the land to one Isaac Ogunwemimo Phillips and executed to him a conveyance of that date which was registered as No. 15 at p. 15 in Volume 860 of the Register of Deeds, Lagos and produced in evidence as exhibit D. Later and on the 31st May, 1960, Isaac Ogunwemimo Phillips obtained a certificate of title on the land pursuant to the Registration of Titles Act, cap. 181 registering him as the owner of the freehold estate in the land; and later still on the 21st May, 1962, by virtue of an instrument of transfer of that date, Phillips transferred the land to the present respondents and the certificate of title was duly endorsed.
This appeal is from the judgment of the High Court, Lagos in the consolidated cases which ensued. The present respondents had sued the appellants (or some of them) in Suit No. LD/389/62 for a declaration of title to the land, damages for trespass and possession; and the present appellants, as plaintiffs, had sued the respondents in Suit No. LD/548/63 for a declaration of title to the same land and for rectification of the register of titles and cancellation of their certificate of title.
The argument for the appellants before us is that section 129 of the Evidence Act applies in that the conveyance which recited that Salu Ariyo owned the land (conveyance produced as exhibit M during the trial and dated the 16th June, 1933) and executed by the receiver of the estate of Salu Ariyo in favour of Emmanuel Elenitoba Johnson was more than twenty years old at the date of the proceedings and that being so a presumption arises in accordance with the provisions of that section in favour of the title of Ariyo. Section 129 of the Evidence Act, Cap. 62, provides as follows:
“Recitals, statements, and descriptions of facts, matters and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty 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.”
We had already quoted the particular recital on which reliance was placed. Evidently the recital does not state how Salu Ariyo originally acquired the land and completely overlooks the fact, obvious as well as crucial, that in his most carefully worded Will Salu Ariyo made no mention whatsoever of the land in dispute much less describe it as part of his real estate.
In support of his argument, albeit, learned counsel for the appellants referred us to the case of Maurice Goualin Ltd. and Anor. v. Wahabi Alanda Aminu (Privy Council appeal No. 17 of 1957) decided by the Privy Council on the 24th July, 1958. In that judgment the Privy Council applied section 129 of the Evidence Act in a way suggesting that the period of time grounding the relevant presumption would be measured by the age of the document proffered at the time of the proceedings in which such a document is produced. In delivering the judgment of the Privy Council in that case, Mr. De Silva observed, inter alia, as follows:-
“In the deed of mortgage of 1923 there is a recital in the following terms:
“Whereas the borrower is seised in fee simple in possession free from encumbrances of the several freehold hereditaments hereinafter described and expressed to be hereby conveyed”
and it is necessary to consider what the effect of this recital is, Section 129 of the Evidence Ordinance (Cap. 63 Vol. III, Laws of Nigeria, p. 42) provides.
“Recitals, statements and descriptions of facts matters and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations twenty 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 will be seen that the recital is evidence that Desalu was the true owner in 1923 and there is no evidence which contradicts it. This evidence must prevail and Desalu must, as between the parties to this case, be considered to have been the true owner in 1923. Upon this finding there is no room for the assertion which appears in the appellants’ deed of 1952 that the land was “Originally seized and possessed by the Oloto Chieftaincy Family” or that it belonged to Chief Omidiji Oloto In 1927. The assertion must, in their Lordships opinion, be rejected.”
Learned counsel also submitted that this decision had been followed by the courts of this country in a number of other cases of which the following are instances:-
(i) Gabriel A. Odeneye v. Dr. R.G.A. Savage, (1964) NMLR 115;
(ii) Nuru Williams and Ors. v. Adamo Akinwunmi and Ors., (1966 1 All NLR. 115.)
And learned counsel further submitted that in as much as Omosanya v. Anifowoshe (1959) 4 FSC. 94 decided to the contrary, it was wrongly decided and had confusedly equated the presumption created by section 129 of the Evidence Act, Cap. 62 with estoppel. Learned counsel also referred us to a case recently decided in this Court Isaac Sylvanus John v. Hector O. Adebanjo, SC. 46/66 of the 6th June, 1969.
For the respondents it was submitted by learned counsel that the presumption created by section 129 of the Evidence Act is a rebuttable one based upon the age of a document “at the date of the contract” envisaged by the section and clearly not at the date of the legal proceedings at which the document is tendered. Learned counsel further submitted that neither the Will of Salu Ariyo dated the 13th June, 1923 nor the conveyance by the receiver of his estate to Johnson dated the 16th June, 1933 was being considered in the light of any contract antecedent to these proceedings and that to opine that the date of succession by the beneficiaries of Salu Ariyo to his estate is the “date of the contract” for the purposes of section 129 is to stretch the meaning of “contract” beyond all reasonable bounds. Learned counsel for the respondents also submitted that Omosanya v. Anifowoshe, supra, was rightly decided; that the case in hand was also rightly decided and that the decision in Maurice Gouafin Ltd & Anor. v. Wahabi Atanda Aminu, supra, and the decisions based on it were wrongly decided and should be overruled.
It is difficult not to feel some remorse at a situation calling for a review of a standpoint which had influenced the law of this country for some twelve years or more and the relish with which that line of decisions had been followed must be considered as clear evidence of the piquancy of such feeling. Section 129 of the Evidence Act, Cap.62 seems to have been lucidly worded and seems clearly to imply that recitals, statements etc. …………..,contained in deeds etc………..,20 years old at the date of the contract shall ……..,….be taken to be sufficient evidence of the truth of such facts, etc. We entertain no doubt whatsoever about the real meaning of the section and are equally without any doubt that the deeds, instruments, etc. postulated by the section must be 20 years old “at the date of the contract”. It may of course bewilder the lawyer that In order to secure the benefit conferred by the section he has to relate his deed or instrument to a contract, but to construe the section without advertence to a contract or, worse still, to substitute “present legal proceedings” for the word “contract’, which manifestly dominates the section, seems to us perverse.
Learned counsel for the appellants has submitted that the section could be considered in two ways, as follows:-
(i) either by way of the implications of the Vendor & Purchaser Act, 1874, in which case the contract envisaged is a present contract to which the conveyancer is enjoined to relate the age of the recital he is considering; and
(ii) by way of the Evidence Act which simply creates a presumption with respect to all types of ancient documents which are 20 years old when it is proposed to employ them in evidence.
The fallacy of the second proposition is of course inherent in the proposition itself. First of all, the section is concerned only with the contents of the documents envisaged and not with the fact of the documents concerned; and secondly, the section clothes such recitals and statements with the sanctity of a presumption only when the deeds containing them are twenty years old “at the date of the contract”. The first proposition of learned counsel for the appellant comes perhaps nearer home when the section is related to section 2 of the Vendor and Purchaser Act, 1874. Section 2 of that Act provides that in the completion of any contract for the sale of real property and subject to any stipulation to the contrary in such contract, the obligations and rights of the vendor and the purchaser shall be regulated by the following rules. Those rules are set out and the second rule is that recitals, statements and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions, it will be seen that rule is in pari materia with section 129 of the Evidence Act.
In Bolton v. London School Board (1878) 7 Ch D 766 it was held in effect that the obligation to abstract and prove a 40 years title (see section 1 of the Vendors and Purchaser Act, 1874) could be eluded by relying on the presumption created by that rule in the abstraction of a title in a deed more than 20 years old; but this view was declared erroneous and to that extent the decision was disapproved In re Wallis and Grouts contract (1906) 2 Ch. 206 see per Swinfen Eady, J. at p. 210). The plain position is that the occurrence in the course of the title of a deed more than 20 years old when the contract of sale is in hand of statements of fact or recitals material to the prior title, will be prima facie evidence in favour of that prior title and unless disputed will be sufficient evidence of those statements of fact or recitals.
The section says no more and creates no general presumption of the type envisaged by the second proposition of learned counsel for the appellants and so it is with section 129 of the Evidence Act. Learned counsel for the appellants seems to be unduly concerned with the occurrence of section 129 in that portion of the Evidence Act dealing with “Presumptions as to Documents”. We cannot see any grounds for being so finical for the possibility of applying the section to cases other than the investigation of title where the document relied upon is referrable by age to a determinate contract cannot be excluded and in any case it is the alphabet of his study to every lawyer that in the exercise of statutory construction words must first be given their ordinary and natural meaning and no words should be discarded or regarded as surplusage without sound reasons.
In Maurice Goualin Ltd. & Anor v. Wahabi Atanda Aminu, (supra), it is clear that the age of the recital relied upon was considered by the Privy Council in reference to the date of the proceedings. No reasons whatsoever were given by the Privy Council for holding, as they did, that section 129 operated with respect to the date of the proceedings apart from the short statement that that recital was evidence “that Desalu was the true owner in 1923”. It is unfortunate that we know of no reasons why the Privy Council should have arrived at such a decision for clearly the construction placed on section 129 of the Evidence Act in that decision disregarded the phrase “at the date of the contract” appearing in the section.
No contract was referred to in the argument before the Privy Council and indeed none was contemplated in the judgment of the court. It is difficult in such circumstances to resist the conclusion that the decision in that case had been arrived at per incuriam or that the court had overlooked the words of the section which undoubtedly prescribe that the age of the recital should be measured with reference to a determinate contract. In Odeneye v. Savage (supra), the Supreme Court upheld the decision of the High Court of Lagos which had held that the provisions of section 129 of the Evidence Act raised a presumption in favour of the truth of a recital appearing in a document produced in the case which was 20 years old at the date of the proceedings. The Supreme Court observed with respect to this point as follows:-
“On this point we are in full agreement with the learned trial Judge that the provisions of section 129 of the Evidence Ordinance rendered this submission devoid of merit, since the recitals and statements of facts in the exhibit, which is over 20 years old, will be regarded as sufficient evidence of the facts so stated therein, until they are disproved. In view of this, it must be accepted that the respondent has clearly traced his root of title to the land to the Oloto family and this is the crux of the argument before us.”
Clearly, the implications of section 129 were not considered or in fact adverted to and in so far as it was stated that the recital and statements in the document concerned “will be regarded as sufficient evidence of the facts so stated therein” we must take a view that there had been a complete departure from the manifest provisions of section 129 itself. The judgment proceeded on the basis that the document concerned was “over 20 years old” but certainly did not advert to the time with respect to which the age of the document is measured apart from the date of the proceedings. Here again the words of the statute- “at the date of the contract” – had been wrongly left out. In Nuru Williams v. Adamo Akinwunmi, (supra), section 129 of the Evidence Act had been applied as it the age of the document was referrabie to the date of the proceedings in hand.
The decision in Maurice Goualin Ltd. & Anor. v. Wahabi Atanda Aminu was followed and It is significant that throughout the meticulous consideration of the implications of that section by the Supreme Court not one word was mentioned concerning the real meaning and effect of the really operative words of the section – “at the date of the contract.” In the course of the judgment in that case, the following passage appears:
“The probative value of the recital in the mortgage deed of 1923 is wholly independent of the conveyance to Aminu in 1953: it was the age of the mortgage deed which gave the recital its probative value as sufficient evidence unless proved to be inaccurate.”
In that passage reference was made to the age of the mortgage deed but it is manifest that the age referred to was the date of the proceedings and not of any contract as positively required by the clear words of the section itself. In Isaac Sylvanus John v. Hector O. Adebanlo, (supra), it is stated, perhaps correctly, in the course of the judgment that section 129, where it applies, relieves the plaintiff of the burden of proving facts in the recitals and gives the recitals the character of presumptions purporting to follow the previous decision of Nuru Williams v. Ademo Akinwunmi, (supra). No reference whatsoever was made to any contract as the section requires and the judgment certainly proceeded on the basis that the age of the document relied upon at the time of the proceedings was the crucial element even though the section was quoted in the judgment immediately before the passage to which we have now referred.
In Samuel A. Omosanya v. A.G. Anifowoshe (1950) 4 FSC. 94, the Federal Supreme Court decided, on facts more or less similar to those in Nuru Williams v. Aderno Akinwunmi, (supra), that the presumption created by section 129 of the Evidence Act was not available to a party who could not refer the deed he was relying upon to a contract 20 years after the date of that deed. At p.97 of the report of that judgment, the following passage occurs:-
“Whilst a recital in a document twenty years old is some evidence of the purchaser’s title it is not conclusive evidence, and it cannot operate as an estoppel against a stranger to the contract showing that he has a better title than the person stated in the recital to be seised in fee simple. The respondent is not a party to any of the deeds relied on by the appellant and the recitals contained in them cannot operate as an estoppel against him.”
We observe that the word “estoppel” has been used in the course of that judgment but we are satisfied that no more was implied than a rebuttable presumption which obviously is all that section 129 provides where it rightly applies.
We are now faced with this situation in which the decisions to which we have referred have created a conflict of such a serious nature as to confuse practitioners and introduce a serious element of uncertainty into our law. We find that we must and we do come to the conclusion that the decisions which had equated the “date of the contract” appearing in section 129 of the Evidence Act, cap. 62 with the date of the proceedings In hand are manifestly unsupportable for even If there be no other reason they have failed not only to give the material words of the statute their ordinary and natural meaning and import but also to explain why those plain and unambiguous words of the statute should be discarded. We have already pointed out that those decisions in the fashion of Maurice Goualin Ltd. & Anor. v. Wahabi Atanda Aminu, (supra), had been followed for some twelve years or more. Within those twelve years the authority of those decisions has certainly been challenged as we have shown by at least a single decision of the Federal Supreme Court running the other way. Our system of law reporting in this country is anything but perfect and we cannot but see the unwholesome effect of a serious conflict in a most frequently used area of our law. The course open to this full Court is clear and we would in this respect refer to the observations, to the following effect, of Verity, C.J. delivering the judgment of the West African Court of Appeal In re Sarah I. Adadevoh & Ors. and in the matter of the estate of Samuel Herbert Macaulay (deceased) (1951) 13 WACA. 304 at p. 310:-
“I am fully alive to the fact that grave inconvenience may arise from a judgment of this Court in such a matter which reverses a view of the law which has been held for upwards of ten years, but when the Court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, If it be followed, inflict hardship and injustice upon generations In the future or of causing temporary disturbance of rights acquired under such a decision, I do not think we should hesitate to declare the law as we find it”
We hold therefore that 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” in which the deed is sought to be relied upon and not 20 years old at the date of the proceedings at which such a deed is being offered in evidence. We have come to the conclusion that the decision in Maurice Goualin Ltd. & Anor. v. Wahabi Atanda Aminu, (supra), and the other decisions based on it in so far as they have measured the age of the deed relied upon for securing the benefit of the presumption created by section 129 of the Evidence Act by reference to the date of the proceedings at which such deed is being offered in evidence, were wrongly decided and we overrule them. They are obviously steering a course which may be at present uneventful but which ultimately, when pursued to the logical conclusion, would be disastrous and an owner of property would find himself one day confronted with a deed of sale prepared by a stranger some twenty years back on his property and would be obliged to defend his title in the face of such a deed stored away all the time and which may well prove to be bogus.
We conclude as well that in the case in hand the recital in the document, exhibit M, vis-a-vis the proceedings, carries no presumption in favour of the appellants in as much as it is neither referred nor referrable to any contract occurring at least 20 years, posterior to the date of its execution.
We direct in the circumstances that the costs of this hearing shall be payable by the appellants to the respondents but that such costs shall abide the determination of the main appeal in this matter and that that appeal be listed for hearing in this Court for the week beginning February 22nd, 1971.
Appeal dismissed.
Other Citation: (1971) LCN/1222(SC)
