M. O. Obisanya V. Ebenezer Nwoko & Anor. (1974)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The point that arises for determination in this appeal, falls within a narrow compass. The facts, however, are very complicated and should be very carefully studied before a fair appraisal could be made of the whole evidence and a just decision concluded.
There was never any dispute about the land claimed by both parties to have been validly purchased by them and the only issue is as to which of the two parties to this appeal acquired the title validly. In the High Court, Ibadan, the plaintiff, who is now the present appellant before us, instituted proceedings against the present respondents, as defendants, for a declaration of title to land in question “situate, lying and being at Ikeku Oju-Oro, Ijebu Road, Ibadan” for possession, damages for trespass and a perpetual injunction. Both sides filed their respective pleadings and it is not disputed that the plaintiff claimed title by virtue of the original ownership of the land by one Oyaseke. Paragraph 3 of the statement of claim states this and reads as follows:-
“3. The original owner of the land in dispute was Oyaseke, who died about 30 years ago leaving Gbadamosi Adeoye, and his senior sister Oyadina Apinke. Oyaseke’s second wife Labisi had seven children all of whom died young before she divorced Oyaseke.”
The statement of claim further states that these two descendants of Oyaseke sold the land in dispute to one Julius Osibodu and gave him a conveyance which was executed as for the vendors by one Gbadamosi Adeoye and one Buraimoh Adigun (a son of Oyadina Apinke) on behalf of his mother. The statement of claim also avers that Osibodu later transferred the land to the plaintiff in 1956 since when the plaintiff had been in peaceful enjoyment of the land until the act of trespass by the defendants in 1963. The statement of defence also avers the title of the defendants. It states that the 2nd defendant had, on the 31st May, 1963, sold the land in dispute to the 1st defendant who had since erected two buildings on the land spending over 3,500 Pounds (or N7,0000). The statement of defence also states that the land originally belonged to one Awojobi the father of Oyasomi and Oyaseke and that it was sold by this family to the brother of the 2nd defendant, by name Olu Aboderin. Paragraphs 10, 11, 12, 13 and 14 of the statement of defence read as follows:-
“10. That Oyaseke was the father of Oyasiji Gbadamosi Adeoye.
- That it was after the death of Oyaseke that his son Oyasiji Gbadamosi Adeoye came home in 1944 to sell the land in dispute to one Olu Aboderin who is senior brother to the 2nd defendant.
- That other signatories to the land agreement are Jimoh Ajala Kure, Rabiatu Esu Kure, Tokun Kure, and two others.
- That the said Olu Aboderin has since been in peaceful possession of the land now in dispute.
- That the land in dispute was sold and conveyed to the 2nd defendant by Olu Aboderin by virtue of a Deed of Conveyance dated 26th March, 1963, and registered as No. 9 at page 9 in volume 643 of the Lands Registry in the office at Ibadan.”
The statement of defence finally puts in issue the sale to the plaintiff and/or his possession, as well as the title of his predecessors and contends that the plaintiff’s vendors were not competent so to sell to him or to them.
At the trial, the parties gave evidence and called witnesses as to the sale and/or purchase of the land and the possession thereof. The plaintiff produced his own conveyance (admitted as Exhibit B) and that of his predecessor-in-title, Julius Osibodu (admitted as Exhibit A) and testified that he occupied a portion of the land himself and sold the remaining portion to one Chief Shofodu and, that some time in 1963, he saw the land being cleared at the instance of the defendants and, as a result of this, he wrote the letter of warning which was admitted in evidence as Exhibit G to the defendants. He also noticed that a signboard, which he had installed on the land, had been pulled down by the second defendant and cement blocks had been stacked on the land preparatory to the erection of buildings. The plaintiff’s plan of the land in dispute was put in evidence – Exhibit H – by his surveyor. Oyadina Apinke, one of the children of the late Oyaseke, testified on behalf of the plaintiff and stated that she and her brother, Gbadamosi Adeoye, since deceased, sold the land in dispute to Osibodu from whom the plaintiff had since purchased. She testified further that as she was old she had sent her son, Buraimoh Adigun, 6th plaintiff’s witness, to execute the conveyance in her place. Concerning the family history, she testified as follows:
The land originally belonged to one Oyaseke who was my father. He is now dead. When Oyaseke was alive he cited a village on the land. He planted on the land yam, maize and food crops. He planted corn on the land, I am the only surviving child of Oyaseke today. I knew one Oyasomi. He had no farm there. He is a junior brother to Oyaseke. I know Awojobi. He is my grandfather. He begat Oyasheke and Oyasomi. Awojobi had his own land at Oke Ona. He has nothing to so with the land in dispute. I had a junior brother in Ghana. He is now dead. He went to Ghana about 25 years ago.”
She denied any suggestion that her late brother Gbadamosi Adeoye came back from Ghana about 22 years ago and sold the land in dispute to one Olu Aboderin.
The defendants also gave evidence at the trial and the 1st defendant claimed to have bought the land in dispute from the 2nd defendant in 1963 by virtue of the conveyance admitted in evidence as Exhibit L and that he completed building on the land by the end of 1964. He admitted that he continued building after and despite his receipt of the letter admitted in evidence as Exhibit Q from the plaintiff’s solicitor warning him to stop building on the land. The 2nd defendant, Michael Aboderin, testified to having bought the land from his own brother by virtue of his conveyance Exhibit K. He met people farming on the land soon after he bought – Lawani Akangbe, Alfa Jimoh, Amodu Ajao and Rabiatu Esu – and they all agreed to leave the land at his instance. He stated that whilst in possession of the land, he received from the plaintiff the letter dated the 15th July, 1963, (and admitted in evidence as Exhibit E) offering to purchase or re-purchase the land from him on conditions stated in the said letter. He would not agree that Oyaseke was the owner of the land, but he agreed that Awojobi Kure was the father of Oyasomi and Oyaseke and that Gbadamosi Adeoye, a son of Oyaseke, was one of those entitled to sell the land in dispute. In the same way, Josiah Aboderin (2nd defendant’s witness) claimed to have bought the land from the Awojobi Family before selling it to his own brother, the 2nd defendant. He testified thus;-
“I know the land in dispute. I bought the land from Awojobi family in 1944. I met the Mogaji of the family and about 7 others. They gave me an agreement. This is the agreement admitted and marked Exhibit ‘N’. I did not do anything on the land until I transferred it to the 2nd defendant.”
He had no conveyance from the family but he relied on the agreement of sale, Exhibit N. The defence then called some two or three witnesses whose evidence is to the effect that the land originally belonged to Gbadamosi Adeoye.
The learned trial Judge, in his judgment, rejected the defence and gave judgment for the plaintiff on all his claims except the claim for possession which was, at the instance of the plaintiff, dismissed. He took the view that the agreement for sale, Exhibit N, was worthless and that the title acquired subsequent to and in virtue of that document, Exhibit N, were all useless and meaningless. He found as a fact that the land in dispute belonged to Oyaseke and not to the Awojobi Family. The learned trial Judge preferred and accepted the plaintiff’s evidence as to his possession of the land and entered judgment for him accordingly.
The defendants appealed against this judgment to the Western State Court of Appeal which allowed their appeal and dismissed the plaintiff’s case setting aside the judgment of the learned trial Judge. The Court of Appeal held that the conveyance propounded by the plaintiff, Exhibit A, was defective in that one of the signatories to it, i.e. Buraimoh Adigun, was incompetent and that another of the signatories, Gbadamosi Akamu, was not at all a member of the land-owning family.
The plaintiff has now appealed to this court against the judgment of the Western State Court of Appeal complaining before us, firstly, that the Court of Appeal wrongly reversed the findings of the learned trial Judge and, secondly, that the Court of Appeal wrongly regarded Exhibit N on which the defendants founded their title as of any probative value when that document was not admissible as evidence of title. Learned counsel for the defendants contends before us that the Court of Appeal rightly dismissed the plaintiff’s case as that case was not on the evidence before the court proved as it should have been and that in any case the defendants established by Exhibit N that they were always entitled to the land because those who had sold to them were the real owners of the land in dispute and that they had indeed sold since 1944.
It is convenient at this stage to examine the document admitted in evidence as Exhibit N. That document was produced in evidence by Josiah Aboderin, the defendants’ predecessor-in-title. It was so produced without any objection whatsoever from the plaintiff and at the time of production he described it as the agreement by virtue of which he purchased the land in question from the Mogaji of Awojobi Family and “about seven others”. The document Exhibit N reads as follows:-
“This land agreement is made and entered into this 22nd day of August in the year 1944, one thousand nine hundred and forty four years in the presence of the under-mentioned and signed witnesses and parties concerned between (1) Gbadamosi Adeoye Kure (2) Jimoh Ajala Kure (3) Rasiatu Esu Kure (4) Amodu Ajao (5) Tokun Kure the Mogaji – as the seller all of Ojo – Kure – Ekerin Ajengbe, Gegelose, Ibadan, all natives of Ibadan of one Part.
Witnesses:-
(1) Salami Ojebode of Arewolaje’s house, Gegelose, Ibadan
(2) Lawani Akangbe
(3) Sanni Alabi
(4) Aderinte Adegbite
(5) Afolabi Akinlotan
(6) Adeyemi Akanbi Omooba
(7) Mosedogun Asabi
(8) Lawore Akinlotan
(9) Egbelade Akanbi Babasango of Agberin House Isale Bode, Ibadan
(10) Sunmonu Afolabi of Aba Olodo – Kudeti, Ibadan and Mr. Josiah Olufemi Aboderin of Chief Abses’s House Aboderin’s Compound, Ojaba, Ibadan, the buyer of the other part.
The land situates and lying at Orita Ikereku – Agunbelewo, Ibadan, measuring 140 feet in the front by 360 feet inwards to the Adebayo’s farm land;-
This land is known as Seke’s landed property is sold to the buyer for a consideration of 20 Pounds. The receipt of which the sellers acknowledge from the buyer before affixing their thumb prints. The land is on the opposite side of the Mango tree on Ijebu Ode Road Off Molete, Ibadan.
IN WITNESS WHEREOF the sellers and the witnesses hereto have hereunto set their hands the day and year first above written.”
Thus, Exhibit N was executed by, amount others, Gbadamosi Adeoye Kure and Tokun Kure the Mogaji of the family. It is dated the 22nd day of August, 1944. Exhibit N also states that the land described therein was indeed sold to Josiah Aboderin for the consideration of 20 Pounds and describes the land as “Seke’s landed property”.
There was of course undisputed evidence that Awojobi Kure was the father of Oyasomi and Oyaseke and that one of the children of Oyaseke was Gbadamosi Adeoye. As things turned out Gbadamosi Adeoye signed ExhibitN in 1944 for the predecessor-in-title of the defendants and well signed Exhibit A in 1956 for the predecessor-in-title of the plaintiff. In both documents the land assured was the same and there is no doubt about the identity of the same man who had joined in selling to this one man and the other. It is not shown that the document Exhibit N was registered as it should have been in order to be admissible as evidence of title pursuant to the provisions of Section 16 of the Land Instruments Registration Law (Cap. 56, Laws of Western Nigeria, 1959). It is therefore not admissible as such but it is evidence of the payment of money, i.e. 20 pounds by the payer to the payees and does clearly operate as estoppel in pais against the signatories one of whom was Gbadamosi Adeoye. In Exhibit N the land was described as Seke’s (abbreviation for Oyasekes) land and there was evidence from some of defendants’ witnesses that the land belonged to Gbadamosi Adeoye. The learned trial Judge took the view that Exhibit N conveys nothing, That may be correct, for Exhibit N does not even purport to convey and but is does express the agreement of the parties concerned to sell and to buy land under Native Law and Custom and surely it does this effectively. The learned trial Judge, commenting on Exhibit N in the course of his judgment, said as follows:-
“The 2nd defendant is relying on Ex. ‘N’ as evidence of the title passed to him by his brother, 3rd D.W. on a close examination of Exhibit ‘N’ it will be seen that the land sold is described as being at Orita Ikereku – Agunbelowo, Ibadan. There is no mention of Awojobi family, It is also strange that for almost 20 years the 3rd D.W. did nothing on the land he bought until he transferred it to the 2nd defendant.”
There was no issue throughout the case of the identity of the land in dispute and there was undisputed evidence from the defence that the land expressed to be sold in Exhibit N is the land on which the defendants now have their buildings.
The Western State Court of Appeal discussed the plaintiff’s case on the principle that he had not, as he should have, discharged the onus of proof on him. The plaintiff agreed that he was not in possession when this case was commenced. His case is that the defendant wrested possession from him and that as such he was a trespasser and could not, by the act of ouster, claim to be in rightful possession of the land, but he has the onus of establishing that the defendant is a trespasser and he cannot do so by setting against the title of the defendants a title which, in itself, was defective. (See the case of Adeshoye v. Siwoniku (1952) 14 WACA 86). Assuming that the land in fact belongs to Oyaseke, as the plaintiff contends, and as Exhibit N suggests, Gbadamosi Adeoye was admittedly one of Oyaseke’s children – in fact his only male child. In 1944 he joined in signing Exhibit N which witnessed or evidenced the sale of his father’s property. It is only at worst voidable. Again, in 1956, the same Gbadamosi Adeoye purported to join in executing Exhibit A, the conveyance to Julius Osibodu. At the time of execution of Exhibit A, it was agreed by all that his sister, Oyadina Apinke, is a compulsory signatory to the document Exhibit A. She was indeed alive. She did not join in signing Exhibit A. The title purported to be conveyed by Exhibit A is a fee simple and Exhibit A recites that the vendors thereon named are entitled to an “estate of inheritance and seised in fee simple” of the land concerned. Without any doubt therefore, the conveyance Exhibit A is defective in the extreme and could neither ground an action for declaration of title nor be usefully employed to evict another trespasser or squatter in possession. The learned trial Judge accepted the evidence that the plaintiff and his predecessor-in-title have, since 1953, been in possession of the land. That may be so, but he did not consider the nature of their possession. The land was apparently bush land until the 2nd defendant built thereon and the possession of the plaintiff and his predecessor-in-title might have been no more than that of a squatter. (See the observations of this Court in Olayioye v. Oso (1969) 1 All NLR 281, 235).
It is not part of the duty of an appeal court to disturb the findings of fact made by a trial court except in exceptional circumstances where the inferences from established facts are wrong or where the findings just do not flow or follow from the given evidence. In this case, the Court of Appeal dismissed the plaintiff’s case and allowed the defendants’ appeal on the ground that the plaintiff never proved his case. The Court of Appeal took the view that the learned trial Judge had failed to draw the proper inference from the facts and indeed the documents before him, especially the documents on which the plaintiff relied for his case.
That, if established, is an area in which a Court of Appeal is competent and entitled to intervene and disturb the findings in the interests of justice. We are satisfied that the conclusions to which the Court of Appeal had come in this case are sound and we have indeed given further reasons why the learned trial Judge should have considered the plaintiff’s case more weak than the Court of Appeal had put it. In this severe battle of titles between the parties, it is obvious that the defendants’ title was better than that of the plaintiff, for, standing on the threshold of the plaintiff’s claim is the fantasy which holds out the title of the vendors in Exhibit A as a fee simple estate. That was not proved and, on the evidence before the court, could never been proved.
We are satisfied that the decision of the Western State Court of Appeal is correct and we affirm it. The appeal fails and it is dismissed. The appellant will pay to the respondents the costs of this appeal fixed at N120.
Other Citation: (1974) LCN/1914(SC)
