L.A. Are V Adisa And Nigerian Housing Development Society Ltd (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant was the plaintiff and the respondents the defendants in an action tried before Ademola J. in the High Court, Ibadan, Western Nigeria. The plaintiffs writ is endorsed as follows:-

‘The plaintiff claims against the defendants-

(i) a declaration that the purported sale of the plaintiffs property situate lying and being at Yemetu opposite University College Hospital, Ibadan, by the second defendant to the first defendant, is illegal and void; and

(ii) an injunction restraining the first defendant from collecting rents from the said property or otherwise proceeding to take possession thereof.’

Pleadings were ordered and delivered. After describing the property concerned and stating that the plaintiff is the owner the Statement of Claim so far as is material to the arguments before us avers as follows:-

‘3. The plaintiff is a native in accordance with the Native Lands Acquisition Law and the second defendant is an alien under the provisions of the said law.

4 (1)-By a deed dated 28th January, 1961, and registered as No. 53 at page 53 in volume 380 of the Lands Registry in the office at Ibadan, the plaintiff purported to convey the said property to the second defendant for a term of 99 years subject to the proviso for redemption contained in the said deed.

5 (1)-In purported exercise of the power of sale conferred by the deed referred to in paragraph 4, the second defendant has sold the said property to the first defendant.

6 The plaintiff will contend at the trial of this action that the deed referred to in paragraph 4 above is void and of no effect because the transaction to which it purported to give effect was not duly approved in accordance with the provisions of the Native Lands Acquisition Law.’

The defendants delivered separate pleadings and both pleadings in substance admit that the plaintiff and the first defendant are ‘natives’ and that the second defendant is an ‘alien’ within the context of the Native Lands Acquisition Law, cap. 80; but both deny that the necessary approval was not obtained and put the plaintiff to the proof of this. At the trial the first defendant called no evidence at all. The only evidence called for the plaintiff was the production of the deed of conveyance vesting the property in him. This was admitted as exhibit A. For the second defendant the deed of mortgage of the property was produced as exhibit B and no further evidence was called. Counsel on all sides thereafter addressed the court. It was submitted on behalf of the plaintiff that the approval of the transaction in exhibit B by the Governor in accordance with section 3 (l) of the Native Lands Acquisition Law was not proved; that the transaction was invalid and that the purported sale of the property of the plaintiff by virtue thereof was also invalid. Both defendants contended that on the face of it the document exhibit B raised a presumption that the necessary approval was obtained and that this presumption was not, as it should have been, rebutted by the plaintiff. In a reserved judgement  Ademola J. dismissed the plaintiffs claim with costs holding in effect that on the pleadings and the evidence available to the court the plaintiff did not establish that the necessary approval was not obtained.

Before us on appeal two points were raised. The first was as to where the onus of proof lay and the second as to whether on the face of it the document exhibit B raised a presumption that the necessary approval had been obtained. It was conceded by learned counsel for the plaintiff that if the mortgage exhibit B was valid then the power of sale was rightly exercised.

With regard to the first point it is pertinent to refer to section 135 of the Evidence Act, cap. 62 (Laws of the Federation) which provides that ‘The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’ On the pleadings of the parties it is manifest that while the plaintiff avers that the necessary approval was not obtained the defendants aver that it was and put the plaintiff to the proof of his averment. If no evidence at all had been forthcoming from the plaintiff he would have run foul of section 135 of the Evidence Act and it would not have availed him that he produced the document exhibit A.

Counsel for the plaintiff submits that it was for the plaintiff to prove the exercise of the power of sale and that the burden shifts to the second defendant to prove that the necessary approval was obtained. The defendants resist these submissions and having regard to the pleadings and the provisions of section 135 of the Evidence Act it is obvious that the plaintiff would have to do more than had been submitted by his counsel.