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:-
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