Mrs. Olayide Okelola V. Adebisi Adeleke (1998)
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OKWUCHUKWU OPENE, JCA
This is an appeal against the judgment of Adeyinka J. sitting at Lagos High Court delivered on 3rd day of September 1990 whereby the learned trial judge dismissed the plaintiff’s case in its entirety having come to the conclusion that the plaintiff failed to prove her case.
Earlier the plaintiff who is now the appellant had filed an action against the Respondent as the Defendant claiming as follows:-
“(i) declaration that the Property situate, lying being and known as 12, Patey Street, Ebute-Metta, Lagos belonged in fee simple to Madam Christianah Subulade Oyeteju Ejide who was deemed to have died on 20th February 1976.
(ii) A declaration of absolute Title to the said property namely 12, Patey Street, Ebute Metta, Lagos in favour of the Plaintiff by virtue of the Last Will and Testament of the late Christianah Subulade Oyeteju Ejide which WILL was admitted to Probate on 14th August 1985.
(iii) Possession of the said Property to the plaintiff.
(iv) Damages of N10,000.00 against the Defendant for unlawful detention of and denial of the plaintiffs absolute Title and interest in the said property.
(v) Perpetual Injunction against the 1st defendant, her agents, servants or privies from further staying and/or remaining on the said property.
(vi) For such further or other reliefs as this Hon. Court may deem fit in the circumstances.
Pleadings were ordered and duly filed and served. At the end of the trial the learned trial judge dismissed the Appellant’s action. Aggrieved and dissatisfied with that decision, the appellant has now appealed to this Court.
The Appellant filed five grounds of appeal.
In accordance with the rules of this Court, both parties filed their briefs of argument. In the appellant’s brief of argument, five issues were identified for the determination of the Court and they are:-
“1. Whether the learned trial judge made it correct approach to the evidence led by the parties particularly all issues ascertained to the determination of the Case and in particular for the judge’s
failure to make an issue of the Respondent’s father’s name and all evidence adduced for such determination led by the Plaintiff before considering that of the Defence.
- Whether the learned trial judge properly directed himself as to the burden of proof having regard to the nature of the issues, pleadings and evidence before the Court and in particular whether evidence was led by the Respondent as to the number of children left by Late Dada Adegbite Deceased as contained by the Respondent as being Seliat, Christianah Ejide and Bolaji Adegbite.
- Whether it was proved that Christianah Subulade Oyeteju Ejide died on the 14th day of July 1981 and was buried at ATAN Cemetery by Mr. Bolaji Adegbite in converse to the Plaintiff’s assertion that she was lost – one of the main reasons for which the Learned Trial Judge preferred the case for the Defendant’s case to that of the Plaintiff.
- Whether the Learned Trial Judge was right in failing to resolve and consider the validity of Exhibits P5, P6, P8 and P9 which was essential issue to the determination of this case and which ought to be fully considered and resolved by the Court.
- Whether the Learned Trial Judge with respect to facts found by the Court based his findings on a dispassionate appraisal of evidence before it as inferences arising from the found facts or was based on speculations not supported by evidence before it.”
The Respondent in his brief of argument formulated two issues for the determination of the Court and they read as follows:-
“i. Whether on the pleadings and the evidence adduced the Appellant has convincingly proved her case so as to discharge the onus placed upon her to establish a better claim to possession and ownership of the property.
ii. Whether the Learned Trial Judge was not right upon the evidence led before him to have made an order dismissing the Appellant claims.”
I will now proceed to consider all the issues raised in the two briefs of argument. The appellants case is that she is entitled to possession of the property situate at No.12 Patey Street, Ebute-Metta, Lagos by virtue of the last WILL and testament of one Christianah Subulade Ejide (nee Adegbite) who was presumed dead and the Will was admitted to probate on 14th day of August 1985 as the only surviving child of Late Dada Adegbite. The appellant has been denied possession of the property by the Respondent. The name of Bolaji Adeleke, the Respondent’s father or that of the Respondent is not mentioned in the Will.
It is as a result of this that the appellant filed an action against Bolaji Adeleke who was a tenant in the premises but the case could not proceed to trial as the case before the magistrate involved issue of title.
The appellant thereupon filed the present action in the High Court against the Respondent Claiming the reliefs set out above.
The Respondent’s case is that she is the daughter of Bolaji Adegbite and not Bolaji Adeleke, that the original owner of the land in dispute was Late Dada Adegbite who had three children: Seliat Adegbite, Christianah Ejide Adegbite and Bolaji Adegbite who inherited the property after the death of Dada Adegbite, that after the death of Seliat, that Christianah Ejide and her father Bolaji Adegbite went to Lagos State Land Registry to change the name Dada Adegbite to Christanah Adegbite and Bolaji Adegbite as per Exhibits D1 & D2. That Christianah Ejide died after Exhibits D1 & D2 were made. Exhibit D3 is her death certificate. Further that her father obtained the Letters of Administration to the Estate Exhibit D4.
At the trial, the appellant testified and called one witness PW2, a legal practitioner who testified in support of her case. She also tendered Exhibit P2, the power of attorney, Exhibit P3, the Will of Christianah Ejide, Exhibit P4, the Probate and the Statutory Notices and other documents. The appellant in her evidence stated that the land in dispute was owned by Late Dada Adegbite and that when he died that his only daughter Christianah Ejide took over the administration of the property. She said that Christanah Ejide executed a power of attorney Exh.P.2 in her favour and that she made a Will Exh.P.3 in her favour. She stated that Christianah Ejide was later missing for almost seven years and that she then applied to the court and that Christianah Ejide was thereupon declared dead as per Exh.P1. She testified that after obtaining the probate that she told Bolaji Adeleke, the Respondent’s father that the property was given to her by Christianah in her Will but Bolaji Adeleke refused to pay rent and that she instructed her lawyer to write and that her lawyer wrote him as per Exhs. P.5 & P.6 and that it was after this that she instituted an action against him at the Chief Magistrate Court. She also stated that she had to go to the High Court because title to land was involved in this case and that the Respondent is the daughter of Bolaji Adeleke.
The Respondent in her evidence stated that the original owner of No.12 Patey Street, Ebute-Metta was Dada Adegbite who is now dead, that he had three children – namely (i) Seliat Adegbite, (ii) Christianah Ejide Adegbite and (iii) Bolaji Adegbite who are all now dead. She said that Bolaji Adegbite was her father and that in 1976 that Christianah and her father went to Lagos Land Registry and changed the name Dada Adegbite to Christianah Adegbite and Bolaji Adegbite. She tendered Exhs. D1 and D2 and that Christianah died after Exhs. D1 & D2 were made. She tendered the Death Certificate Exh.D.3 and that it was after this that her father Bolaji Adegbite obtained the Letters of Administration to the estate of Dada Adegbite. She also stated that it is not true that Christianah was lost and that she died at No.12, Patey Street, Ebute-Metta, that Bolaji Adegbite had been collecting the rent in respect of the property and that nobody challenged him, she then tendered the counter foil of the receipts Exh. D5.
It has been settled that in an action for declaration of title that the onus of proof is on the plaintiff establish his title on the strength of his case, the plaintiff cannot rely on the weakness of the defence which does not support his own case. See: Chief (Alhaji) K.O. Are & ors. vs. Raji Ipaye (1990) 2 NWLR (pt.332) 298; Kodilinye vs. Odu 2 WACA 336; Ogbuokwelu & ors vs Umeanafunkwa & anor. (1994) 5 SCNJ 24; Elias vs Omogkre (1972) 8-9 S.C 264.
In the instant case both sides by their pleading and evidence stated that the original owner of the property in dispute is one Dada Adegbite and each side then stated how she became entitled to the property.
It has also been well settled that where parties to the land in dispute rely on a common root of title that a party who shows a better title is entitled to succeed. See: Alhaja Adesanya vs. Obiewu (1993) 1 NWLR (pt.270) 414; Michael Romaine vs. Christopher Romaine (1992) 5 SCNJ 25. The appellant in her evidence traced her root of title from the Late Dada Adegbite the original owner of the land in dispute to his only daughter Late Mrs. Christianah Ejide (nee Adegbite) from whom she inherited the property through her Will Exhibit 3.
The Respondent in her pleading and evidence stated that: the Late’ Dada Adegbite had three children – namely: Seliat Adegbite, Christianah Ejide (nee Adegbite) and her father Bolaji Adegbite which of course contradicts the appellants evidence of, The Respondent in her statement of Defence at pp.19- 22 of the records stated:-
“Para. 5. This Defendant avers that the said Dada Adegbite was survived by three children namely (1) Madam Seliatu Adegbite who died in 1936 without an issue (2) Christianah Ejide Adegbite (now deceased) and (3) Bolaji Adegbite (now deceased) who were all living with the said Dada Adegbite at No.12, Patey Street, Ebute-Metta, Lagos.”
In support of the averment the Respondent in her evidence at p.34 of the records stated:-
“The original owner of No.12 Patey Street was Dada Adegbite. He had three children namely (1) Seliat Adegbite (2) Christianah Ejide Adegbite (3) Bolaji Adegbite. The three children are all dead. Bolaji Adegbite was my father.”
It is very relevant to observe that the appellant did not file any reply to the averment in para.5 of the Respondent’s statement of claim and she also did not cross-examine the Respondent when she testified in support of that averment and in fact it was not even suggested to her that Late Dada Adegbite had only one child and not three children or that she was telling lies.
The learned trial judge in his judgment at p.68 of the records observed as follows:-
“The evidence of the 1st Defendant that Dada Adegbite had three children was not challenged or controverted under cross-examination. The evidence of the 1st Defendant Exhibit D4 established that Dada Adegbite had more than one child.”
There is enough evidence to support this finding and it therefore cannot be faulted in any way.
The appellant in his brief of argument had argued that the Respondents did not discharge the onus of proof on them as there was no legal proof that Seliat existed and that Bolaji Adegbite equally existed.
As I had earlier observed, the appellant did not in his pleading and evidence state that these two people never existed.
Further, the Respondent in paragraphs 7 & 8 of her Statement of Defence at pages 20 & 21 of the records stated that in 1976 that Christianah and Bolaji Adegbite applied for the first registration of No. 12 Paitey Street, Ebute-Metta at the Lands Registry Lagos and that it was only one person that objected to the said registration and in her evidence she testified to this effect and in support of this, she tendered Exhibits D1 & D2. The Respondent also pleaded and testified that Christianah Ejide died after Exhibits D1 & D2 were made and she tendered Exh.D3 which is Mrs. Christianah jide’s death certificate which shows that Boliji Adegbite was the informant about Christianah Ejide’s death.
Exhibit D4 is the Letters of Administration obtained by Bolaji Adegbite in respect of the property in dispute after Christianah’s death.
It is quite obvious from the foregoing that there was somebody called Bolaji Adegbite that existed and that the appellant’s argument that he never existed is highly unattainable and further that the learned trial judge rightly found that Dada Adegbite had more than one child as the Respondent’s pleading and evidence in this regard was never challenged by the appellant and it is therefore deemed to have been admitted. See: Nzeribe vs. Dave Engineering CO. Ltd. 9 SCNJ 161; H. Tai Ajomale vs. Yaduat & Anor. (1991) 5 SCNJ 178.
The learned trial judge in his judgment at p.70 of the records found as follows:-
“Christianah Ejide Adegbite and Bolaji Adegbite became the owners of the property on the demise of Seliat Adegbite. It follows that Christianah Ejide Adegbite could not solely disposed by Will the property of herself and Bolaji Adegbite. The Plaintiff’s claim is premised on the fact that Christianah Ejide was the only daughter of the Late Dada Adegbite and in view of my finding that the Late Dada at No.12, Patey Street, Ebute-Metta. The only act of ownership that the appellant can show is only the Statutory Notices to quit and recovery of possession.
As against this, the Respondent and her father had been living in the premises all the time and the Appellant had also stated under cross-examination that the Respondent’s father built some rooms with plank in the premises. It is trite law that in order to succeed in a claim for trespass that the Plaintiff must prove that he is in actual possession or constructive possession at the time of trespass. This is so because the person who brings the action for trespass is the one whose possession has been disturbed. See: Universal Vulcanizing (Nig.) Ltd. vs. Ijesha United-Trading & Transport Company Ltd. & ors. (1992) 11-12 SCNJ 243.
In the instant case, the Appellant cannot show that she has a right to possession or that she is in actual or constructive possession of No.12, Patey Street, Ebute-Metta.
The Appellant had argued that the Respondent had claimed that her father’s name was Bolaji Adegbite and not Bolaji Adeleke and that by virtue of Exhibits P5, P6, P7 and P12 tendered by the appellant that the learned trial judge would have directed himself that there was nobody known as Bolaji Adegbite but Bolaji Adeleke. It was also argued that the Respondent should have produced some documents to show that her father’s name was Bolaji Adegbite.
I must first of all observe that there is no such burden of proof placed on the Respondent. It is he who asserts that must prove, the burden is therefore on the Appellant to prove that the Respondent’s father is Bolaji Adeleke and not Bolaji Adegbite.
In respect of Exhibits P5, P6 and P7 which are statutory notices tendered by the Appellant, they were issued by the Appellant’s solicitor on Bolaji Adeleke. It is the Appellant that called the man sought to be evicted – Bolaji Adeleke. It will be otherwise if the man had filed any paper calling himself Bolaji Adeleke.
Further, the Respondent said that her father is Bolaji Adegbite and it is her husband that is Adeleke.
As regards Exhibit P.12 which is record of proceedings at the Magistrate Court, it is argued in the Respondent’s brief of argument that the Respondent’s father was not served personally but through substituted service and that the case did not proceed to trial and that the appellant has not proved that the Respondent’s father’s name was Bolaji Adeleke and not Bolaji Adegbite.
I have examined Exhibit P.12, it shows that the Defendant in that case was served by substituted service and also that after that the service that the parties were present in the court. It also shows that no plea was taken and that the parties were not represented by counsel and that none of the parties said anything till the matter ended in the magistrate court. It can be argued that the Defendant in that case did not protest that he was not Bolaji Adeleke but there is nothing to show that he was asked anything and it is also not known whether he appeared in protest. However, if plea had been taken and he pleaded to the claim; it can be said that it has been established that he was Bolaji Adeleke if not he would not have come to the Court and plead to the claim.
In the circumstances, I am of the view that it has not been established that the Respondent’s father was Bolaji Adeleke and not Bolaji Adegbite. Further, even if the appellant has established that the Respondent’s father is Bolaji Adeleke and not Bolaji Adegbite, it would still not have improved the Appellant’s Case as it is doomed to fail in any event.
The Appellant claimed that the property in dispute was bequeathed to her by Christianah Ejide nee Adegbite by virtue of her Will Exhibit P.3, it had been shown that Dada Adegbite, the original owner of the property in dispute had three children and that when Christianah Ejide died in 1981 that she was survived by Bolaji Adegbite and that she was not the sole owner of the property in dispute and could not therefore bequeath to the appellant or anyone.
In respect of the claim for possession, it has also been shown that the Respondent and her father had been living in the house, that the Respondent was born in that house and has been living there ever since then, that she and her father had been collecting rents from the tenants in the premises
The Appellant never lived there and she had also stated that nobody ever paid any rent to her. She only relied on the statutory notices that she served on one Bolalji Adeleke and the Abatement Notice served on her.
She had failed to prove her possessory right to the property in dispute or that she is in physical or constructive possession of the said property in dispute.
On the whole, I am of the view that from all the evidence before the Court that there is no reason why the findings of the learned trial judge can be faulted. I am also of the view that there is no merit in the appeal and that it ought to be dismissed.
In the final result, I hereby dismiss the appeal.
I affirm the judgment of Adeyinka J. delivered on 3rd day of September 1990. The Respondent is entitled to costs which I assess and fix at the sum of N3,500.00.
Other Citations: (1998)LCN/0353(CA)
