Alhaji Surajudeen Kolawole Yinusa Davies V. Alhaja Wulemotu Ajibona (1994)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A. 

On 6 June, 1974 the plaintiff took out a writ of summons at the Lagos High Court against the defendant claiming the following reliefs:

“(1) Declaration of title in fee simple against the defendant to the piece or parcel of land, situate lying and being at Apesin Street, known as No. 27/29 Apesin Street, Idi-Araba, Surulere.

(2) Possession of the aforesaid piece or parcel of land.

(3) Injunction to restrain the Defendant, his heir/s, successor/s, his servants and/or assigns from further interfering with the plaintiff’s possessory rights as to the aforesaid land.”

The original plaintiff on record, Raliatu Ajibona, died and was substituted with Alhaja Wulemotu Ajibona. Similarly the original defendant, Alhaji Yinusa Davies, having died was substituted with Surajudeen Kolawole Yinusa Davies. On 24 April, 1990, A. B. Adeniji, J. gave judgment for the plaintiff.

In this appeal against that judgment, the defendant has in his brief of argument raised three issues for determination, namely:

“1. Was the defence based on Limitation Law not made out on the evidence and ought it not to have succeeded and the plaintiff’s claim to title barred and extinguished and her claims dismissed?

2. Ought the equitable defences of laches and acquiescence not to have succeeded and the reliefs claimed by the plaintiff refused and her claims dismissed?

3. Is the judgment not against the weight of evidence?”

The plaintiff in her respondent’s brief of argument set down five issues but I think they are a variant of the above-stated issues. I however reproduce them in view of some argument canvassed by learned counsel for the respondent:

“1. Was the Appellant an adverse possessor within Section 19 of the Limitation Law Cap. 70 Laws of Lagos State.

2. Was the adverse possession of the Appellant (which is denied) known to the Respondent.

3. When should time begin to run against the Respondent
(a) whether before 1970 or
(b) after 1970 when the Respondent found the Appellant on the land.

4. Whether the Respondent is caught by the doctrine of laches and acquiescence.

5. Whether the learned trial Judge correctly identifies (sic) all facts and circumstances he had to take into account in reaching a decision.”

It is plain to me that the respondent’s first three issues are covered by the appellant’s issue 1 while the respondent’s issues 4 and 5 are the same as the appellant’s issues 2 and 3 respectively.

I shall begin with the appellant’s issue 3 which concerns the facts of this case. I find it necessary to do so because of the inadequate attention paid to the pleadings and evidence by the learned trial Judge. The plaintiff’91s claim by the statement of claim is that Aboki family which originally owned a vast area of land conveyed the said vast area by an instrument dated 23 March, 1915, registered as No. 79 at page 301 in volume 92, to Lawrence Antonio Cardoso. I must remark at once that that document of conveyance was not tendered before the court. The plaintiff claims that in 1917, Lawrence Antonio Cardoso sold the said land to Abudu Salami Ajibona for which on 22 January, 1917 and 31 January, 1918, the said Lawrence Antonio Cardoso was paid a total of ?80 duly receipted as per exhibits A and B. It is important to emphasise that the alleged conveyance of 1915 was not tendered to know the extent of the land covered by it. Without it, the land owned by Cardoso would be in the imagination. So will the land he sold to Abudu Salami Ajibona because the first of the two receipts from Cardoso to Ajibona simply reads:
January 22nd 1917

Received from Abudu S. Ajibona Esq. the sum of Fifty pounds on account of land sold to him at Eweagbo as per plan. Balance to be paid four weeks.
Sgd.
?50 -0 -0
Cardoso
The second one reads:
?30
Received from Abudu Salami Ajibona Esq. the sum of (?30) Thirty pounds sterling being balance due for land sold to him at Mushin as per plan delivered to him.
Sgd.
? Cardoso
31/1/18

The two receipts were tendered and admitted as exhibits A and B respectively. The plan referred to in the two receipts is not before the court.
It is also pleaded by the plaintiff that a deed of conveyance dated August 1, 1919 and registered as No. 26 at Page 26 in Volume 131 of the Register of Deeds kept at Lagos Land Registry was executed by Cardoso in favour of Abudu Salami Ajibona. That conveyance was also not produced before the court. It will be seen that there was nothing before the court upon which the plaintiff could rest her claim to all the land over which the defendant built two houses. This becomes very crucial because although the defendant conceded that part of the original ownership of or title to the land in dispute could be traced to Abudu Salami Ajibona, he pleaded the following relevant averments in paragraphs 12, 13, 30, 31, 32, 33, 34 and 35 of the amended statement of defence:

“12. The defendant avers that only a portion of the land occupied by him falls within the Estate of Late Abudu Salami Ajibona.

13. The defendant avers that part of the land claimed by the plaintiff’s falls outside the estate of late Abudu Salami Ajibona.

30. With reference to the portion of the land in possession of the defendant that falls outside the Estate of Late Abudu Salami Ajibona, the defendant avers that he entered upon the said land with the permission and licence of the owner of the property, one Ahaji A. W. Akibu.

31. The said Alhaji A. W. Akibu derived his title to a vast area of land at Apesin Street, Idi-Araba, Mushin in the Lagos State under a Deed of Conveyance dated the 5th day of August, 1959 which is registered as No. 60 at Page 60 Volume 349 of the Deed Register kept in Lagos Land Registry.

32. The defendant avers that by an Indenture dated the 15th day of December, 1961 registered as No. 32 at Page 32 in Volume 392 Paul Cardoso and six other members of Cardoso Family further sold and conveyed the said property to Alhaji Akibu.

33. The defendant avers that Cardoso Family derived title to the land from their father Late Lawrence A. Cardoso who became owner of the land by virtue of a Deed of Conveyance dated the 23rd day of March, 1915 registered as No. 79 at Page 301 in Volume 92 of the Deeds Register kept at Lagos Land Registry.

34. The defendant pleads that in Suit No. SC/358/73 between Alhaji A. W. Akibu and Joseph Opaleye & Anr., the Supreme Court of Nigeria affirms the title of Alhaji A. W. Akibu in the said property.

35. The defendant will at the trial of this action rely on the said judgment in support of his ownership of portion of the land that falls outside the land within the estate of late Abudu Salami Ajibona.”

The conveyances mentioned in paragraphs 31 and 32 above were tendered as exhibits M and M1 respectively while the judgment mentioned in paragraph 34 was tendered as exhibit M2. The one mentioned in paragraph 33 which the plaintiff also pleaded was not tendered just as the plaintiff failed to do so.

It appears however from the available evidence that the root of title of Abudu Salami Ajibona must be centred around the receipts (exhibits A and B) given to him by Lawrence Antonio Cardoso. They do not say much in terms of the size and actual location. There is little doubt that Abudu Salami Ajibona may have exercised dominion and right of ownership over some area of land. But when he died intestate, survived by children, on 10 July, 1934, in Lagos, Letters of Administration dated 21 June, 1935 (exhibit G1) were issued to Ashimi Akinbiyi (younger brother), Jimoh Salami Ajibona (eldest son) and Arthur Akintola Mayne (cousin) over his personal property only as distinguished from his real property. This is apparent on the face of the said Letters of Administration. The unfortunate impression might be created by that fact in the Letters of Administration that he had no real property at his death.

However, persons who knew or thought he had real or landed property purchased from his said Administrators. One such person was Alhaji Mutairu Alabi Onigbanjo: see conveyance dated 19 August, 1946 and registered as NO.4 at Page 4 in volume 743 (exhibit G). The land conveyed therein was sold to the defendant’s father, Amodu Rufai David, by Onigbanjo: see conveyance dated February 1, 1954 and registered as No. 60 at Page 60 in volume 983 (exhibit H1). The two conveyances are subsisting and were not even challenged by the plaintiff. The land therein conveyed is part of the land in dispute as reflected in survey plans No. A8/1959 (exhibit C), No. SEW/L/1464 (exhibit F), No. SEW/1/1464A (exhibit F2) – exhibits F and F2 being litigation plans – No. SEW/L/1389/2 (exhibit F1), being composite plan for litigation purposes (all the said exhibits C, F, F1 and F2 having been tendered by the plaintiff); and survey plans in conveyances admitted as exhibits G and H1 (both tendered by the defendant). Therefore as far as the portion looking almost like a triangle in exhibits C, F, F2, G and H1, but more particularly verged blue in exhibit F1 is concerned, the defendant relies on the title he derived from the plaintiff’s family. The plaintiff has not in any way disproved or successfully contested that fact.
As regards the other portion in dispute, the plaintiff has not shown her root of title to it. The root of title to the said land cannot be found in or traced from exhibits A and B the only documents from Cardoso which were tendered. That is the obvious effect of her failure to tender the conveyance allegedly given to Abudu Salami Ajibona by Lawrence Antonio Cardoso as pleaded in paragraph 7(i) of their amended statement of claim as follows:

“7(i) The said Lawrence Antonio Cardoso also delivered to the said Abudu Salami Ajibona along with the purchase receipt executed Deed of Conveyance dated the 1st day of August, 1919 and registered as No. 26 at Page 26 in volume 131 of the Register of Deeds kept at Lagos Land Registry.”

The law is that a plaintiff who seeks a declaration of title must prove his root of title. If he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title, or came to have title vested in him. It was not enough for the plaintiff to lead evidence to the effect that Abudu Salami Ajibona owned the land in dispute. She must prove or show the root of title relied on by Abudu Salami Ajibona and the true extent of the land he acquired. Failure to do this is fatal to her claim for title: see Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393. A defendant who has not counterclaimed need not answer such plaintiff’s claim at that stage upon such defective evidence since the plaintiff would not have made out a prima facie case: see Aromire v. Awoyemi (1972) 2 SC 1, (1972) 1 All NLR (Pt. 1) 101.The burden of proof of title lies on a plaintiff who wants it declared in him. He must succeed on the strength of his case and not on the weakness or no evidence of the defence: see Kodilinye v. Odu (1935)2 WACA 336; Udegbe v. Nwokafor (1963) 1 All NLR 417. If he fails in toto to prove his case, it would be dismissed: see Ejiofor v. Onyekwu (1972) 12 SC 171; Green v. Green (1987) 3 NWLR (Pt. 61) 480.
It was enough that the defendant pleaded that the other portion of land was not part of land owned by Abudu Salami Ajibona and that he had the permission of some other person who asserted ownership to it to build on the land. He gave the name of that person to be Alhaji A. W. Akibu. He tendered that person’s conveyances from the children of Lawrence Antonio Cardoso (exhibits M and M1) and the judgment of the Supreme Court in Akibu’s favour (exhibit M2). He did not need to do more in the circumstances. It was for the plaintiff to disprove him. She failed completely to do so. It must be clearly remembered and taken into account that the plaintiff acknowledged Lawrence Antonio Cardoso as the person from whom her father claimed title. Nothing has been shown to establish that Cardoso gave out all the land that he had to Ajibona or even the extent of what he gave out. Therefore it cannot look improbable that Cardoso’s children still had land from which they gave to Akibu.
I will therefore conclude that the learned trial Judge did not consider the evidence before him properly. He did not appreciate the true nature of the evidence and therefore gave judgment against the weight of the evidence. All he managed to do in considering the evidence was this. He said on the plaintiff’s evidence:

“The plaintiff according to her pleadings and evidence derived her radical title to the land by traditional history traceable to late Abudu Salami Ajibona who was the owner of large area of land at Idi-Araba sold to him by one Lawrence Antonio Cardoso (now deceased) sometime in 1917 see Exhibits ‘A’ and ‘B’. The said Abdul (sic) Salami Ajibona died survived by thirteen (13) children.”
As for the defendant, he said:

“The defendant maintained that he has two houses on the plots of land in dispute. With regard to one of the plots, one Mutairu Onigbanjo bought the said land from Jimoh Salami Ajibona … one of the children and administrators of the estate of the late Abudu Salami Ajibona. Upon the death of Onigbanjo his two children later sold and conveyed the plot of land to one Amodu Rufai Davies … father of the then defendant. Amodu was in possession of the land until his death and the defendant later erected a building on it. The said plot of land devolved on him and the other issue of Amodu. As regards the other portion of land on which he also erected a building and which is outside the Ajibona’s land it was one Alhaji Akibu who put him into possession of it. The late Cardoso sold and conveyed the land in question to Alhaji Akibu. The defendant’s father died in 1953 and thereafter he prepared a building plan and later erected the building. That was between 1954 and upon completion moved into it.”

Without examining the evidence and tracing the root of title pleaded by the plaintiff to its origin, the learned trial Judge simply said:

“The evidence of traditional history led for the plaintiffs and the supporting Exhibits tendered by the witnesses were not effectively discharged by the defendant and I prefer it to that of the defendant. I accept the traditional evidence led for the plaintiffs in this case. I hold that it is enough ‘eo ipso’ for their claim for Declaration to be granted.”

I cannot pretend to understand the learned trial Judge in his reference to traditional history (when there was none, only evidence of purchase backed by unreliable or insufficient documents); what he expected the defendant to ‘discharge; and what was ‘eo ipso’ adequate evidence to support the declaration sought.
I think it ought to be pointed out with renewed emphasis that the learned trial Judge erroneously regarded the evidence led by the plaintiff as evidence of traditional history. Traditional history was not pleaded by the plaintiff and at no point did she rely on it. Traditional history is based on hearsay extending beyond human memory. It is narrated by oral evidence handed down from generation to generation. If it is in respect of ownership of land the relevant family ancestry or community heads, as the case may be, through whom the land has devolved must be pleaded and evidence clearly led in support: see Akinloye v. Eyiyola (1968) NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 424-425. But where the root of title to land is derived through purchase that is no longer an issue of traditional evidence. It is the fact of purchase that must be pleaded and proved. If the purchase is documented, the document becomes the title to be examined and how the vendor’s title was derived. The claim to title will fail or succeed upon the strength of the fact of the purchase or grant thus pleaded. If the grant is proved and a good title is thereby established, the plaintiff succeeds. But if the plaintiff produces a document in support of the grant or purchase and this is found to be inadequate, then the plaintiff fails: see Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 782-783.The learned trial Judge, with due respect, did not look at the evidence before him but rather assumed the validity of the plaintiff’s title. Hence he went further to say:

“I hold that the plaintiffs have better title to the land in dispute, and that the defendant is on the land without the permission of the plaintiffs, and the claim by the plaintiffs for a declaration of title against the defendant has been established and therefore grant the declaration.”

It is fair to say in the circumstances that this finding as the one before it is perverse and liable to be disregarded by an appellate court: see Omoregbe v. Edo (1971) 1 All NLR 282 at 289; Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35 at 41; Ozibe v. Aigbe (1977) 7 S.C. 1 at 11; Oladehin v. Continental Textile Mills Ltd. (1978) 2 SC 23 at 28; Okolo v. Uzoka (1978) 4 SC 77 at 86; Egonu v. Egonu (1978) 11-12 SC 111 at 129; Atolagbe v. Shorun (1985) 4 S.C. 250 at 285; (1985) 1 NWLR (Pt. 2) 360 at 376. In Macaulay v. Tukuru (1881-1911) 1 NLR 35, the held not as to what was held in that judgment, which I think correctly summarises the principle therein laid down, read along with the extracts of judgments of Lindley, M. R., in Coghlan v. Cumberland (1898) 1 Ch. 704 and Lord Esher, M.R., in Colonial Security Trust Co. Ltd. v. Massey (1896) 1 Q. B. D. 38 therein considered, reads:

“When a judgment is appealed from as being against the weight of evidence the Appeal Court must make up its mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, one full consideration, it comes to the conclusion that the judgment is wrong.”

I have done that in the present case and have come to the inevitable conclusion that without overruling the finding of the learned trial Judge and setting his judgment aside, I would have helped in perpetuating injustice. This is what a court of law properly approached cannot and must not allow to happen.

I shall now consider the issue of the Limitation Law and that of laches and acquiescence as they apply to the present case. A successful plea of the Limitation Law to an action by a person to recover land extinguishes the title of that person to the land. This is provided by section 21 of the Limitation Law (Cap. 70) Vol. IV, Laws of the Lagos State of Nigeria, 1973. A State authority has 20 years within which to bring such an action while other persons have 12 years: see Section 16. Section 17 provides:

“17. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

It must be clear that the person in possession has been dispossessed or has discontinued his possession before the limitation period can begin to run.
I think there is an element of knowledge or a state of mind involved in respect of the person dispossessed or who has discontinued his possession. In other words, he must be aware that he has been dispossessed by an adverse possessor: or in the case of discontinuance he must do so with the intention to discontinue, whereof the other party is able to take adverse possession. It has been held that mere non-user does not amount to discontinuance: see Littledale v. Liverpool College (1900) 1 Ch. 19 at 22. There must be an abandonment of the actual and legal possession of the land: see Norton v. London and North Western Railway Co. (1879- 80) 13 Ch. D. 268 at 273. In the case of dispossession, Lord Denning M.R. said in Wallis’s Ltd. v. Shell-Mex and BP (1974) 3 All E. R. 575 at 580 that: “There must be something in the nature of an ouster of the true owner by the wrongful possessor.” In my view, there can be no ouster of the true owner or land unless and until he becomes aware of the act of the wrongful possessor which constitutes an ouster.

In limitation action as it relates to land and in laches and acquiescence, there is thus the common element of knowledge. But there are these essential distinguishing factors: (a) In limitation of action, the plaintiff need not have encouraged the defendant to continue in his error that he was the owner of the land in dispute over which he expended money. Whereas that is the basis of acquiescence which equity will hold against the true owner? (b) The prescribed period of limitation must elapse for it to extinguish the title of the true owner whereas laches has an elastic period and acquiescence considers the attitude of the true owner, both depending on the circumstances of the case.

In the present case, there is evidence that the defendant had lived in his house on the land for over twelve years before action brought: see exhibits K. N84, N85, N92, N93 and N94. However, although it is quite amazing that the plaintiff claims not to have known of this till about 1970 (i.e. four years before this action was instituted), there is no evidence to show that she knew or ought to have known. I have also perused the printed record and cannot find that the plaintiff can be said to have discontinued possession (in the true sense) of the land in dispute at any time (assuming, or course, that she was in total possession – a situation that can hardly be conceived having regard to the evidence of title already considered in this judgment). It cannot also be said on that hypothesis that she was aware that she had been dispossessed by an adverse possessor until about 1970.

I must say here that the submission of learned counsel for the plaintiff/respondent that adverse possession can only relate to the act of a squatter is a misconception. A squatter’s possession is admittedly the most obvious of adverse possession. But every possession which is against the interest of the true owner and not with his ultimate permission is adverse. A defendant may dispossess another relying on a document of title. The document may be valid or defective. But if he remains in possession for up to twelve years before the plaintiff he dispossessed or his successor-in-title brings action, the limitation period can be pleaded by the defendant. Such a defendant is certainly not a squatter. Other situations of adverse possession of some person in whose favour the period of limitation can run are available. Occupation of land as a licensee is not adverse possession: see Hughes v. Griffin (1969) 1 All E. R. 460. But it has been held that where a purchaser in possession of the land sold pays the purchase price but no transfer is made, his possession becomes adverse to that of the vendor who becomes a bare trustee for him, and the vendor’s title will be extinguished after twelve years: see Bridges v. Mees (1957) 2 All E.R. 577.
In the circumstances, I do not think the limitation period operated against the present plaintiff. But notwithstanding that, I am satisfied that she failed to prove her claim and her action ought to have been dismissed. I therefore allow this appeal and set aside the judgment of the lower court together with the order for costs. The plaintiff’s action is dismissed. I assess costs at N600.00 in the Court below and N1, 200.00 in this Court in favour of the defendant/appellant.

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Other Citations: (1994)LCN/0218(CA)