Nuru Williams and Ors V Adamo Akinwunmi and Ors (1966)

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BAIRAMIAN, J.S.C.

The plaintiffs claim for the delivery of possession of an area of land and mesne profits was dismissed by Ekeruche J., sitting at lkeja on II April, 1962, and they have appealed: (High Court Ikeja Suit No. HK/84/59).

The trial judge accepted their case, that in 1927 their late father Abudu Ramonu Williams bought an area of land known as Eguru or lguru in lganmu and had a conveyance; that some of it was sold by order of court and the remainder divided among his children; and that the area now in dispute was allotted to the plaintiffs. He also accepted that between 1927 and 1953 the land was in the possession of their late father, and after his death of his children, and finally of the plaintiffs under the family division. He found that the Onitire family, to which the defendants belong, ceased to be in possession in 1927 but entered the land in 1953. He did not, however, give judgement for the plaintiffs because they had admitted that the land originally belonged to the Onitire family, which in his view raised a strong presumption that the title was in that family.

The conveyance recites that-

‘Whereas one Gboyin the eldest son of the late Onitire of Itire was during his lifetime seised in fee simple and in possession of the whole the freehold hereditaments commonly known as Iguru lands …. ‘

and the vendors convey ‘as heads and representatives for and on account of the whole members of the family of the said Gboyin deceased and as beneficial owners’. In the learned judges view there was nothing outside the conveyance which showed that Gboyin was seised of Eguru land in fee simple and the conveyance passed no title to the plaintiffs father.

The lst defendant admitted that in 1957, in a case with the estate of one Brown, he testified that the whole of Eguru land was owned by the Gboyin family, but in the judges view that earlier evidence of his did not preclude him from asserting that the land belonged to the Onitire family, nor show when the ownership passed from the Onitire family to Gboyin; and although the judge thought that the 1st defendant lied when he denied having sworn that he was the head of the Gboyin family, he nevertheless believed his evidence that the Onitire family had never sold or partitioned the land; which strikes us as an odd assessment of his evidence. The learned judge thought that the presumption that the land was still the property of the Onitire family had not been rebutted, and coupling that with the 1st defendants evidence that the family had never sold or partitioned the land, he held that the title was still in that family and they had a better title to possession.

He was sorry for the plaintiffs and, had they delivered a reply, would have given them judgement following Saidi v. Akinuwunmi (1956) I F.S.C. 107, on the ground of long possession in spite of the title being in the Onitire family; he observed as follows:

‘Although the plaintiffs rely on their long occupation of the land, the long occupation is one that ought to have been raised in a reply to the defendants statement of defence and not one that can as pleaded he relied on as a foundation for their claim.’

An order was made on 18 January, 1960 for delivery of a Statement of Claim and of a Defence, and more time was given to the parties on 9 May, 1960. Rule 16 in Order 13 of the High Court Rules (W.R.) provides that-

‘The court if it considers that the statements of claim and defence filed in any suit insufficiently disclose and fix the real issues between the parties may order such further pleadings to be filed as it may deem necessary for the purpose of bringing the parties to an issue.’

No order was made for further pleadings, and the reason for refusing judgement was due to a mistake.

The plaintiffs have two legs to their c1aim-

(1) the recital in the conveyance of 1927 that Gboyin was the owner-which brings in section 129 of the Evidence Act: and

(2) long possession, which brings in section 145.

Those sections provide as follows-

‘129. 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.’

‘145. 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.’ The effect of section 129 is explained in Privy Council Appeal No. 17 of 1957-Maurice Goualin Limited and another v. Wahahi Atanda Aminu, decided on 24th July, 1958. The facts in that case were as follows:

In 1923 one Desalu conveyed a tract of land to a company by deed of mortgage, which had this recital:

‘Whereas the borrower is seised in fee simple in possession free from incumbrances of the several freehold hereditaments hereinafter described and expressed to be hereby conveyed.’

In 1931 the mortgage company under its power of sale had the land sold at public auction to recover the debt; it was; bought by one Adewunmi, but no conveyance was executed. Later Adewunmi sold the land to one Oshire, who also did not obtain a conveyance; and after Oshires death his ‘children and heirs-at-law’ sold the land to the respondent Arninu, who obtained a deed in which the company, Adewunmi, and persons who purported to be the heirs and successors in title of Oshire joined in conveying the land to Aminu.

The earliest document on which the appellants relied was a conveyance of 1952; the recital in it had no probative value, and otherwise too they had no case.

The Privy Council quotes the recital in the mortgage deed of J 923 and the text of section 129, and says 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.’

Lower down the Privy Council refers to the deed of 1953 in favour of the respondent Arninu, and says that-

‘As Desalu has been held to have been the true owner this deed undoubtedly conveys the legal title to the respondent.’

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.

It is true, as Mr Lardner reminded us, that the provision in our section 129 comes from the Vendor and Purchaser Act, 1874, where it relates to a contract and investigation of title; but the dispute before us is not of that nature, and we refrain from discussing the provision in the context of that Act. We are concerned with the effect of the provision in the context of our Evidence Act, in which it occurs among a number of sections-e-Nos. 113 to130-under the heading of Presumptions as to Documents. They have a bearing on the burden of proof: see section 132. Some are obligatory, others discretionary. The presumption in section 129 is obligatory; it saves the party who can invoke it from proving certain facts in the first instance and puts the onus on the other side. A simple example-i-to be understood merely as an illustration-will make the point clearer. The conveyances spoken of in the example are by deed registered under the Land Registration Ordinance, as in the case in hand; the registration does not enhance the title conveyed: see s.25 of that Ordinance. Assume these events:

(a) In 1940 A conveyed certain land to X by deed reciting that A is the owner of the fee simple in possession;

(b) In 1961 X conveyed that land to Y;

(c) In 1962 Z claims the land against Y.

Y can invoke s.129 of the Evidence Act for the recital in deed (a). As the conveyance to Y does not enhance the title, it is on the title of X that Vs case must rest; and the title of X must be presumed to be good because its root is a deed twenty years old and the age of the deed creates a presumption. That being so, if X does not convey the land and Z claims it against him, X can equally invoke s.129 in vindication of his title. Otherwise we would have this unhappy result: that when Z claims against X, X must sell to V-and he will not get the proper price-to supply Y with a weapon which he himself cannot use. We do not think that by enabling Y to invoke the recital s. 129 intended to disqualify X from invoking it, and subscribe to the view of the Privy Council with due respect, that the probative value of the old deed is wholly independent of any subsequent contract or conveyance.

Having regard to that view, Mr Lardner (for the defendants) has conceded that the plaintiffs can rely on section 129 in regard to the recital in the conveyance of 1927 to the plaintiffs father, that Gboyin was the owner of the land conveyed. The learned counsel has not argued that there was evidence to contradict the truth of that recital. The plaintiffs can rely on it as making that conveyance a good and sound root of title to the land in their late father. There is also the finding that he and his children and finally the plaintiffs under the distribution of their late fathers property were in possession of the land in dispute from 1927 until the defendants in 1953 entered the land. Thus the plaintiffs had a perfect case for Judgement.

It has been argued for the defendants that the evidence of distribution among the [ate Williams children was confused, and that the plaintiffs did not prove adequately that t

Other Citation: (1966) LCN/1331(SC)