S.A. Oyefeso V. E.O. Coker (1998)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
The plaintiff’s claim against the defendant are:-
An order rectifying the register if titles kept in the Lagos Land Registry by deleting the name of the defendant as the freehold proprietor of the land registered under title No. MO2798.
(2) A declaration that the plaintiff is the fee simple owner or that portion of the above land (which will be shown on the plan to be filed by the plaintiff in this suit) that falls within the plaintiff land subject matters of his application first registration in title No. MO. 2741
(3) Annual rental value of land in dispute is 10pounds. The suit was filed when the pound sterling was the legal tender in use.
The facts of the case of the respondent who was the plaintiff in the lower court are that the land in dispute forms portion of the land originally conveyed to one Bakare Osheru by Oloto chieftaincy family by a deed of conveyance dated, 18th June 1910 and thereafter registered as No.4 at P.9 in volume 70 of the Register at Ikeja. Not long afterwards Bakare Osharu conveyed the land in dispute to one James Williams Martins under and by virtue of a deed of conveyance dated 22nd, June 1910. It was also registered. A portion of this land was sold and conveyed by the personal representatives of J.W. Martinsto one Obayomi Bajomo under an order of the court.
It was registered. Bajomo in turn conveyed the land to the plaintiff on 16/3/60 and the same was registered as No. 21 at Page 21 in volume 1154 register of deeds. The plaintiff then strove to apply to register the document under title No. 2741 acting on Registration of Titles Act hut this was opposed by Mr. Alimi Eyiowuawi and J.B. Atunrase “for himself an on behalf of Ademola Oluwole Opeodu”. After hearing the objections, the Registrar of Titles dismissed them and ordered registrations.
There was no appeal to the High Court. However in 1964 in a suit No. LD/498/64 Atunrase and J.O. Opeodu filed an action seeking a declaration of title.
They lost up to the Supreme Court in suit No. S.C./303/67. After the Supreme Court judgment the plaintiff resumed the application for registration but was Informed, by the Registrar of Titles that a portion of that land had been registered by the defendant (now appellant) who claimed through Atunrase against whom judgment had been declared earlier in the Supreme Court. The defendant’s (appellant) case is that the land he acquired and in dispute forms part and parcel of a large track of land, originally belonging from time immemorial to Oloto chieftaincy family, That by a deed of conveyance of 27/9/56 and registered as No. 27 at P. 27 in volume 1068 the land in dispute was conveyed to one; J.B. Atunrase who in turn conveyed to the defendant which conveyance was registered under title No. 2798. It is this case that the land Atunrase objected its registration under the Titles Act is different from the land in dispute.
What is discernible from the case is that both parties have common predecessor in title and there were two judgments of the Supreme Court, first one being given on December 1962 in favour of the defendant’s predecessor, and the other judgment delivered on 3/6/69 in favour of the plaintiff against the defendant’s predecessor. After hearing the case, of the parties the court entered judgment for the plaintiff. The defendant filed an omnibus ground complaining against the judgment from which he framed of 7 issues for consideration while the respondent framed. J. issues. Having examined the question distilled by the parties carefully, I am of the view that there are two issues which are inter-related and which this court will dutifully consider.
They are as follows:-
(1) Whether the land in dispute is the same as the land the plaintiff had unsuccessfully sought to register as title No.2741 after obtaining; judgment in the Registrar of Titles chambers.
(2) Whether the two judgment’s of the Supreme Court relied on by both panics respectively are the same or mutually exclusive. This case has the unenviable character and distinction that it was fully tried by three Judges before Adeyinka J. the last judge, gave a decision on it. The duty or this court is to unravel how after the respondent had obtained judgment in the Supreme Court over the piece of land which he claimed Atunrase went to court to seek declaration and for which the respondent bought from Bajomo had a portion of it registered ostensibly when the proceedings were still on thereupon making it difficult for the respondent to be registered upon the register of title”.
The appellant sought to distinguish the land in dispute from the one that the respondent obtained judgment against him i.e. the land he was supposed to have registered during the pendency of the actions in the Supreme Court, Justice Martin witness of the respondent had, in support of the claim of the respondent when he was claiming for declaration of title testified as follows; “It is not correct that the land objected to by Atunrase in title No.M02741 is different from the land registered for the defendant in title M02798”. In the composite plan Ex.p7 drawn by 3 Marcell in August in Seweje, the property in dispute is sandwitched or embedded in a parcel of land, most of which is said to belong to Coker. The portion claimed by the appellant from the composite plan is smaller in area than the portion claimed by Coker. It is a common ground that the original owners of the land which from diverse sales of some parcels went to different people. are the Oloto chieftaincy family. The muddle/puddle that characterised the sale – and the casus belli would unquestionably be that one of the vendors had been guilty of sharp practice. In other words he has sold when he had no right to sell.
The respondent had stated in his evidence that the appellant obviously had the title of the disputed land registered after the finding and the decision or the Registrar as made out in Ex. P4. In contrast or as a way to counter the argument of the respondent the appellant had a composite plan Ex. D9 made. In his judgment the court below said
“Question:- What is the evidential value of the composite survey plan Exhibit D9? The court can compare boundaries and locations of plans trendered in an attempt to arrive at a correct decision of the case”. See S. Onwujuba v. Obienu (1991) 4 NWLR (pt.183) 16; Chief A.O. Olusunde v. Oladele 1991 4 NWLR (Pt.188), 713. Exhibit D9 is the Government Intelligence Survey Sheet. The Government Intelligence sheet was not prepared by the late Surveyor Bode Lawson who changed the plan thereon to make the composite survey plan. Surveyor Dawodu testified that the survey plan of J .B. Atunrase Exhibit D13 had a triangular figure which was not in J.B. Atunrase’s plan Exhibit D14 nor in composite plan Exhibit D9.
The Oloto chieftaincy family conveyed to J.B. Atunrase the large area of land with a triangular and described and delineated in the survey plan No. L & L/B 1263 dated 8th December, 1956 or an area of 2.705 acres and attached to the deed of conveyance dated 27th September, 1956 and registered as 27/27/1069 Exhibit D13.
There was no explanation by Surveyor Dawodu on how the late Surveyor Bode Lawson came about Exhibit D14 the survey plan No. L&L/B 1725 dated 3rd April. 1959 showing property said to belong to Mr. J.B. Atunrase of an area of 2.560 acres. The said survey plan Exhibit D14 states – “Reference Plan L&L/B1263” Exhibit D14 therefore refers to Exhibit D13. The reference by Exhibit D14 to Exhibit D13 does not explain how an area of land 2.705 acres conveyed to J.B. Atunrase by the Oloto chieftaincy family in 1956 became 2.560 acres in 1959 without a corresponding change in the deed of conveyance. If the late Surveyor Bode Lawson wanted to connect the defendant’ s land to J.B. Atunrase’s land as he attempted to do in the composite plan Exhibit D9, the proper survey plan of J .B. Atunrase to have been used is the plan attached to his conveyance Exhibit D 13 not a separate and later plan Exhibit D14.
I refer to the two notes on the composite plan Exhibit D9. Note (2) of Exhibit D9 states:-
“Properly of Mr. J.B. Atunrase Referred To In The Deed known as Plan No. L&L/B 127R Area 2.560 Acres verged Blue.
(2) to state:- “PLAN NO. L&L/B 3129 pleaded by the defendant and there was no explanation by Surveyor Dawodu of the relevance of that plan to the composite plan Exhibit D9. The conclusions or the composite plan Exhibit D9 and the opinion of Surveyor Dawodu thereon that the plaintiff and defendant’s land fell within J.B. Atunrase’s land and that J.B. Atunrase’ s land was outside J.W. Martins and were baseless and false.
“It follows from my above findings that both the plaintiff and the defendant failed to establish through their composite survey plans that the land in dispute falls within either the land of J.W. Martins or that of J.B. Atunrase.”
I have looked at the plans submitted in this case rechecked them and attempted to align them with the finding made by the court below and they appear to me like a cacophony of voices that caused more confusion than meets the eye. In his brief, the learned counsel for the appellant stated that the failed to understand why the learned trial Judge did not dismiss the case of the respondent having found out that even through his composite plan, that he could not establish proof of title. He referred to the venerated case of Kodilinye v. Odu (1935)2 WACA 336 of 337.
The question may be asked on what premise was the judgment given for the respondent. It is settled that evidence of facts and circumstances on which the plaintiff relies and the inferences logically deduceable there-from should pre-ponderate in favour of the basic proposition he is seeking to establish as to exclude my equally well supported belief in any inconsistent proposition and that in the administration of justice the court must be satisfied on the proof which leads to a conclusion with the probable certainty where absolute certainty is either impossible or not necessary or essential. Indeed where the evidence of a fact in issue is equipoise, that is to say the testimonies of both parties are evenly balanced, the party having the burden of proof has failed on that issue. The learned counsel for the appellant said that the trial Judge put extraordinary burden on the appellant as though it was for him to prove his case. I wish to observe that the judgment of the court below is long and winding and if I may say a bit unwieldy as the central issue to determine is whether the land which the respondent had originally sought to register its title was the same now registered by Atunrase. After holding that the two composite plans appear useless and unhelpful in determining the question in controversy by the court, it went on to consider what he termed; priority of conflicting judgment. He said thus-
“The plaintiffs Supreme Court judgment Ex.P6 was delivered on 3/6/1969 while the defendant’s Supreme Court judgment EX.D8 was delivered on 5th December 1962. Where there are two conflicting Supreme Court decisions, the later decision prevails. See Makanjuola v. Hassan Khali (1958) 1 WRNLR 82; Chief F.S. Okpozo v. Bendel Newspaper Company & Anor (1990) 5 NWLR (Pt.153)652. The plaintiffs Supreme Court judgment Ex. P6 therefore prevails and operates as estoppel par rem judicatem between the plaintiff and the defendant.”
The appellant’s counsel debunked the idea of the two previous judgments of the Supreme Court between the parties and one of the predecessors in title as being conflicting. The respondents counsel submitted that the lower court rightly rejected Ex.D9 the composite plan of the appellant as it was based on the government intelligence plan. There was no evidence that the government intelligence plan is a true plan in the real sense of it. The learned appellant’s counsel has stated that the court below literally poured scorns on Ex.D9 and seemed to shift the burden of proof on the appellant. It must be firmly stated that this is a case in which once the respondent has shown or proved that the land of which he obtained judgment is the same as the one which Atunrase registered his title, the onus of proof shifts to the appellant. See the case of Elias v. Suleiman (1973) 1 All NLR Pt.11 p282. I have carefully looked at the plan in Exh.P1 the property said to belong to the respondent in Ex.P.9 the composite plan. I have equally carefully examined the plan as contained in the deed of conveyance made to Ademola Oluwole Opeodu and it would appear that the land in dispute is similar. I am aware that the learned trial Judge seemed to make contradictory findings. In one breath he assailed that the plans are useless and in other breath he appeared to use same them as yardstick.
The whole problems were caused by what I would describe as an indecent haste or hurried steps taken by Atunrase to register the title or the deed in the title registry.
Could it be said that the appellant who initiated the proceeding in the High Court did not know the boundary of his land. what was the need of hurry.
It is important to note Ex.D3 and D4 upon which the Title No.MO2788 was based, states clearly thus “Registered without precise survey. Subject to subsequent survey or discretion of Registrar under section 65 (2). “Indeed no plan was attached to show precisely the locus and situs of the land by the defendant/appellant.” The purpose of a plan is to show graphically the morphology of the area, and its extent and size. It seems to me that the latest confusion that seems to characterise this case was largely caused by the appellant’s predecessor in the title Atunrase. There is no evidence that the judgment of the Supreme Court which favoured Atunrasc in 1962Â Â was brought to the attention of the court in 1969 in the latter judgment between Coker and Atunrase. There must he an end lo litigation. The court below had to wage its way through the maze of documents and previous judgments to arrive at its decision. It must be stated that the decision or the court in civil matters is on the preponderance of evidence which means that a prima facie case is enough to satisfy the requirement of justice.
In my view the holding or the court below that the case preponderates favourably towards the respondent is unassailable. From the length of the judgment it must have been difficult to arrive at the decision he did. In the final result the appeal is dismissed. The judgment of the lower court is affirmed. The appellant to pay N5000.00 cost to the respondent.
Other Citations: (1998)LCN/0365(CA)
