Aiyedoun Jules Sule V Raimi Ajani (1980)

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My Lords, the Plaintiff/Respondent (hereinafter referred to in this judgment as Respondent) filed a writ of Summons in the High Court of Western State, Ibadan against the Defendant/Appellant (hereinafter in this judgment referred to as Appellant) claiming as follows:

“1. The Plaintiff”s claim against the Defendant is declaration of title to all that piece or parcel of land known as Plot 85, Okeremi Layout, Atanbiolu, Mokola, Ibadan and particularly described and identified on the plan attached to a deed of conveyance dated the 20th day of March,1956 and registered as No. 36 at page 36 in Volume 134 of the Lands Registry at Ibadan.

2. N500.00 being damages for trespass on the said land.
3. Injunction restraining the Defendant his servants,and agents from further trespass on the said land.”

Pleadings were ordered, filed, and delivered. As some paragraphs of the pleadings are very pertinent to this appeal, I propose to set them down.

In paragraph 3 of his Statement of Claim, the Respondent had averred as follows:

“3. By a deed of conveyance dated the 20th day of March, 1956, registered as No. 36 at page 36 in Volume 134 of the Lands Registry in the Office at Ibadan, Messrs Akinwale Ajao, Mustafa Akinode and Busari Alamu all of Okeremi House, Okunola Street, Ibadan sold plot 85 of Okeremi Layout, Atenbiolu, Oyo Road, Ibadan to Miss Obong Anwan Obong (deceased) late of Jericho Nursing Home Ibadan. The plan of the land in dispute is demarcated and delineated in Plan No. L&L/A.692 dated the 20th of December 1956 filed with this Statement of Claim”

In reply, the Appellant in paragraphs 3, 10 and 11 of his Statement of Defence had averred as follows:

“3. The Defendant denies paragraph 3 and states that

(a) the deed of conveyance dated the 20th day of March 1956, and registered as No. 36 at page 36 in Volume 134 of the Lands Registry in the office at Ibadan purported to have been executed by Akinwale Ajao, Mustafa Akinode and Busari Alamu (the last two since deceased) in favour of Miss Obong Anwan Obong, was a forgery organised by one S. O. Lajumoke, a former Attorney of the said Akinwale Ajao and two others.

(b) the said deed of conveyance referred to in paragraph 3(a) above was one of those set aside by this Honourable Court in Suit No. 1/144/57: Akinwale Ajao and two others versus S. O. Lajumoke, on the ground of fraud on the plaintiff by the defendant (S. O. Lajumoke) ……………………

10. The Defendant states that the Plaintiff is a Champertor instigating litigations on building plots in Okeremi Layout, and is at present facing many court actions individually and jointly with others in respect of Okeremi Layout.
11. The Defendant will contend at the hearing that

(a) The Plaintiff’s conduct is tainted with equitable fraud and is prohibited in law . . .”

From the pleadings, it was quite clear that both parties were tracing their root of title to a common owner, the Okeremi Family. At the trial, the respondent, who instituted the action as Attorney for one Elizabeth Okikiolu, a daughter of Miss Odong, gave evidence and tendered the deed of conveyance referred to in paragraph 3 of the Statement of Claim. It was admitted as Exhibit A. It is agreed by all the parties to these proceedings that it was properly received in evidence. He also tendered a Power of Attorney executed in his favour by Elizabeth Okikiolu and it was admitted in evidence as Exhibit F. Other than the Registrar from the Lands Registry at Ibadan, he called no other witness. Exhibit A is a Certified True Copy of the original of that deed of conveyance which the Respondent claimed was lost. The Appellant on his part also gave evidence at the trial and tendered the documents on which he relied for his title – Exhibit C, a deed of conveyance dated 12th April 1957 and executed between one Mallam Yehaya Etamesor and the same Akinwale Ajao, Mustafa Akinode and Busari Alamu. Exhibit D a deed of conveyance in respect of the same Plot 85, Okeremi Layout dated 11.10.72 and executed between him and Mallam Yahaya Etamesor, and Exhibit E the original of the deed of conveyance tendered as Exhibit C. He called as his witness Akinwale Ajao who denied ever executing Exhibit A or any deed of conveyance in favour of Miss Obong and in respect of Plot 85 Okeremi Layout, Ibadan. He admitted under cross-examination that while Lajumoke was their Attorney his family executed conveyances in respect of 21 plots and he did not know all the 21 persons in favour of whom the conveyances were executed though he insisted that the land in dispute was not one of the 21.

The learned trial Judge, Olu Ayoola, J. dismissed the Plaintiff’s claim on the ground that he had failed to prove paragraph 3 of his Statement of Claim and to trace Miss Obong’s purported title to the true and admitted owner. Portions of his judgment clearly indicate that it turned on the question of the absence of evidence of due execution of Exhibit A. On the issue he observed as follows:

“The Defence expressly denied paragraph 3 of the Statement of Claim, which is that the Defendant denied that Akinwale Ajao and two others executed any conveyance in favour of Miss Obong as alleged by the Plaintiff and described the deed upon which the Plaintiff relied as a ‘forgery’. My understanding of the pleadings is that since the Plaintiff averred and asserted that Akinwale Ajao and the two others executed the conveyance No. 36, page 36 in Volume 134 in Miss Obong’s favour, and since the Defendant denied the averment, the onus of proof lies on the Plaintiff, who asserts to prove his assertion . . . in my view the expression in the Defence that the deed relied upon by the Plaintiff was a ‘forgery’ is by way of laying emphasis on the defence’s denial that Akinwale Ajao and the two others had not executed any conveyance . . .

The main question therefore is whether the Plaintiff has proved to my satisfaction that Akinwale Ajao and the two others executed a conveyance in Miss Obong’s favour as alleged in paragraph 3 of the Statement of Claim. In the case before me Akinwale Ajao gave evidence for the Defence strongly denying that he ever executed any conveyance in Miss Obong’s favour as alleged by the Plaintiff.