Layiwola M. Adekunle V Bintu Ayinke (1967)

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BRETT,J.S.C.

This is an appeal from the judgment of Kester, J., as he then was, given in the Ikeja Division of the High Court of Western Nigeria, and allowing the plaintiff’s claim for a declaration of title as owner in fee simple to a piece of land at No. 7 Mosalashi Street, Mushin. No other relief was claimed.

The plaintiff relied on documentary evidence and on acts of ownership. The documents on which she relied were clearly insufficient to prove her claim. They consisted of (a) a receipt for the purchase price of £130-0s-0d, given to the plain-tiff on the 4th November, 1957, by the children of the late Madam Alimotu Bamgbaiye (or Banwo); (b) a conveyance by the same persons to the plaintiff dated the 7th August, 1961, in which it is recited that in 1945 Alimotu Bamgbaiye bought the land (but did not receive a conveyance) from the children of Emmanuel B. Ajayi, and that Emmanuel B. Ajayi had been seized in fee simple; (c) a receipt dated 9th April, 1945 in which two of the children of Emmanuel B. Ajayi acknowledge receiving £28-0s-0d from Alimotu Bamgbaiye “being purchase money of a portion of three plots of land at Akinwunmi Village, Mushin, measuring 30 feet by 100 feet bought by our late father, Emmanuel Beyioku Ajayi, from the late OR Labinjoh as per receipt of purchase dated the 31st day of August, 1929.” The receipt of 1929 was not produced, and there was nothing to show the origin or nature of O.R. Labinjoh’s title.

Acts of possession may also be regarded as acts of ownership If the circumstances are such that the person in possession ought to be regarded as the owner. The Evidence Act s.145 provides that:

“When the question is whether any person is owner of anything of which he is shown to be In possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner”,

but more is needed than would support a claim for trespass, and the section has never been treated as modifying the well-known rule laid down in Ekpo v. lta 11 N.L.R. 68, as explained in Abudulai v. Manue (1945) 10 W.A.C.A. 172, that a person relying on circumstantial evidence in support of a claim for declaration of title to land must prove “acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference” that he is the exclusive owner. The facts proved in the case of Onyekaonwu v. Ekwubir S.C. 278/1964 – 14.1. 66 – were held to be such as to make the section applicable, but the judgment expressly accepts, Ekpo v. Ita as stating the principle of law correctly.

Judged by this test, we consider that the plaintiff failed. There was no evidence of any acts of possession by Labinjoh. The only evidence as to Emmanuel Ajayi’s possession was given by his son, Daniel Ajayi, who said that in 1934 his father took him to the land to show it to him, and told him that he had bought it from one Labinjoh. He said that vegetables and cassava were growing on the land but he said nothing more to suggest any overt act of possession by his father and he did not, for example, say that he was introduced to a caretaker.

We must take it as not proved that Emmanuel Ajayi ever exercised any overt acts of a kind that could lead to an Inference of ownership. A relative of Alimotu Bamgbaiye’s named Yesufu Bashorun gave evidence that she asked him to look after the land on her behalf when she bought it in 1945 and that he gave It to a connection by marriage called Jinadu Bale to farm, but he said that Bale died after five years and he did not profess to have put anyone else in to farm the land after Bale’s death.

The plaintiff said that Yesufu was using the land after she bought it but Yesufu did not say that he did more than look after it, and ff any farming or market gardening was in fact done on the land after about 1950 there is no evidence to show who did ff. A signboard with Alimotu Bamgbaiye’s name was put up, but her son, Abudu Iba, agreed that it was removed four times; later the plaintiff had a board put up with her name on it, and that was removed three times.

The defendant’s case was that in 1959 he agreed to buy the land from representatives of the Akinwunmi family of Mushin, the original owners of the land, after making a search in the Land Registry and finding no registered instruments affecting the land, that he found no signs of any other occupier and that he entered on the land and built a house on it in 1960 in good faith and without notice of any claim on the part of the plaintiff.

The trial judge summarised the evidence on each side briefly and said that he accepted the evidence for the plaintiff. He held that the land was being farmed, when the defendant agreed to buy it, and that the plaintiff’s signboard was there for him to see.

With respect, we do not regard the evidence on either of these points as satisfactory, and we think the judge overlooked the fact that the plaintiff’s paper title was worthless; that there was no evidence of acts of possession by her predecessors in title before 1945: that the acts of possession after 1945 were not proved to have been continuous, and were shown on the evidence of the plaintiff’s own witness to have been repeatedly challenged by the removal of signboards.

Even if all that the plaintiff and her witnesses said is true we do not consider that she substantiated her Claim to a declaration of title in fee simple or of any other kind.

The appeal is allowed, the judgment of the High Court is set aside, and judgment is entered dismissing the action with costs in the High Court assessed at 52 guineas and costs of the appeal assessed at a further 30 guineas.

Other Citation: (1967) LCN/1366(SC)