Oloyede Akingbade V. Oyeyipo Elemosho (1964)

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ADEMOLA JSC

This is yet another appeal arising out of the sale of a piece of land at Oju-Elegba, Suru-lere by the Oloto family to two different persons at different times.

The plaintiff/appellant traced his title to the Oloto Chieftaincy family, the land forming a portion of land sold to one S. H. Pearse by the family in 1911 and a receipt (Exh. 5) issued in respect of the transaction. NO deed of conveyance was executed by the family and, in or about 1926, Pearse made a plan of the land which was divided into eighteen plots with a portion left over for his own use. The eighteen plots were sold out by public auction and a deed of conveyance was executed to each purchaser; the land in dispute was one of the said eighteen plots: The appellant, by means of successive sales, became the owner of this plot in 1960, and indeed on the 25th April, 1960, a deed of conveyance was executed in his favour.

The respondent, on the other hand, claimed that in July 1960 the Oloto Chieftaincy family sold the land in dispute to one Atunrase who went into possession and obtained a deed of conveyance from the family. In September 1960, the said Atunrase sold and conveyed the property to him by a deed of conveyance (Exh. 16) dated the 21st September, 1960.

The learned trial Judge in the Court below held the view that, as there was no deed of conveyance executed in favour of Pearse by the Oloto Chieftaincy family, Pearse never at any time had the legal estate of the land he bought from the family and that by paying the purchase price and obtaining a receipt from the family he had no more than an equitable interest. He (Pearse) therefore could not at any time convey the fee simple to any purchaser who bought from him.

The second reason given by the learned Judge for dismissing the claim was that the plaintiff had failed to identify the land purchased by Pearse from the Oloto family.

Seven grounds of appeal were filed but they can be conveniently put under two heads. The first submission by Counsel for the appellant was directed to the attitude of the learned Judge in the Court below in rejecting various conveyances tendered in evidence in an attempt to prove the identity of the land purchased from the Oloto family by Pearse. The second submission is on the issue of title and possession by Pearse of the land sold to him by the Oloto family.

On these two points, the learned Judge in his judgment said as follows:-

“In my view the failure of the plaintiff to identify the plot of land purchased by Pearse from whom his claim to title originated, and the absence of any evidence of a conveyance to Pearse create an insurmountable obstacle to his claim for a declaration of title.”

It was argued on the first point, namely the alleged failure of the plaintiff to identify the plot of land purchased by Pearse, that the failure to surmount what was said to be an obstacle was created by the learned Judge himself by rejecting the various deeds of conveyance which were sought to be put in evidence in an attempt to prove the identity of the land. It was pointed out from the record of proceedings in the Court below that various attempts made to put in these various deeds of conveyance were rejected by the Judge. One such example was the evidence of the Land Registrar, Lagos, who sought to put in a few deeds of conveyance with plans which were before us and marked “rejected,” which were said to be conveyances executed by Pearse in respect of various plots of land in the allotment plan of the lay-out of the land purchased from the Oloto family by Pearse. The land in dispute, according to evidence, forms one of such plots.

The learned Judge in rejecting these conveyances made the following ruling:-

“In so far as these other people are not parties to the present suit and the conveyances do not relate to the plot in question in this case I rule that the conveyances are irrelevant and they are therefore rejected.”

We are unable to agree with the learned Judge that these conveyances are irrelevant. There was abundant evidence before him that Pearse divided the land he bought from the Oloto family into 18 plots, which he sold out to different purchasers, and that the land in dispute was one of these plots. The defence had denied that the land was laid out in plots, and in fact the identity of the land bought by Pearse was put in issue. In an attempt to prove the identity of the land in dispute and the lay-out of the plots, proof that these other plots in the lay-out are in existence are facts relevant, and the rejection of conveyances of these plots was clearly wrong. The appellant sought to put in these various conveyances and then to call the surveyor to put in a plan of the land in dispute so as to identify it with the other plots in the lay-out. The whole evidence was rejected. Mr. Benjamin, who with his father prepared the original allotment plan, sought to put in evidence a copy of the plan of the lay-out made at the time by his father (since deceased); this too was rejected by the Judge. The plaintiff/appellant’s fifth witness, one Gbadamosi, who was a clerk to Pearse and held his power of Attorney, knows the land in dispute. It was to this witness that Pearse made a gift of what was left of the land over and above the 18 plots. He sought to put in evidence the conveyance and plan of the land conveyed to him by Pearse. This too was rejected as being irrelevant.

It is clear that every means of identifying the land in dispute was wrongly rejected by the learned Judge; we are of the view therefore that the complaint of the appellant is justifiable. In this connection we refer to Secs. 7, 10 and 12(b) of the Evidence Act, Cap. 62, which are as follows:-

“7. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

“10. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.”

“12. Facts not otherwise relevant are relevant-

(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact probable or improbable.”

We are therefore clearly of the view that evidence in this case was wrongly rejected by the learned Judge.

We now come to the second point made by the learned Judge, namely, that the absence of any evidence of a conveyance to Pearse creates an insurmountable difficulty. In this respect, the Learned Judge earlier in his judgment said:-

“here is the further point that there is no evidence that the legal estate in whatever plot of land he bought was conveyed to Pearse. The most that Pearse acquired by paying the purchase price and obtaining a receipt was an equitable interest; … He therefore could not convey the fee simple to Ajavon or anyone else as he had none to convey.

The facts before the learned Judge were that the land was sold to Pearse by the Oloto family in 1911 and that he went into possession. He had only a receipt (Exh. 5) and the land was not conveyed to him by a deed. In 1926, after making an allotment plan of the land, a lay-out of the eighteen plots was made by Pearse and the land was sold by public auction. The plot in dispute was bought by Ajavon, who obtained a deed of conveyance from Pearse.

Although Pearse had not a legal estate in the land since he did not obtain a deed of conveyance, if it was established that Pearse was in possession of the land, this gives him an equitable interest in the land. It is not in dispute that he conveyed by deed to Ajavon in 1926, and after successive conveyances by deed, the present appellant bought and obtained a conveyance on the 25th April, 1960.

The learned Judge however stated that there was no satisfactory evidence of Pearse’s possession of the plot in question. This is not surprising in view of the fact that the learned Judge had rejected evidence to prove the identity of the land.

If the evidence of Benjamin about the survey is allowed in, the evidence of the lay-out, the evidence of the sale by the auctioneer, and the evidence of various purchasers from Pearse to whom he conveyed, to our mind, all these are enough evidence of possession by Pearse to constitute possession which would give rise to equitable interest in the property. Possession by Pearse dated from 1911, and a deed of conveyance executed by him in 1

Other Citation: (1964) LCN/1145(SC)