Chief M. A. Okupe v. B. O. Ifemembi (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The appellant before us was the plaintiff in an action he had instituted in the High Court, Lagos, Lagos State (Suit No. LD/206/66) in which he claimed against the respondent who was the defendant as follows:

“(a) A declaration of title that the plaintiff is the owner in fee simple of that piece or parcel of land situate lying and being at Iwaya Road, Onike Village Yaba covered by a Deed of Conveyance registered at No. 41 at Page 41 in Volume 1250 of the Lands Registry at Lagos.

(b) Injunction to restrain the defendant his servants and/or agents from further acts of trespass.

(c) 100 Pounds damages for trespass.

(d) Possession of the said land.”

We observe that although the writ was issued from the Registry of the High Court on the 16th May, 1966 and an order for pleadings was made in the case on the 11th July, 1966, actual hearing of the case did not commence until the 30th November, 1971. As the records show, the rather long delay had taken place because the defendant was stated to be away in the East-Central State and did not return to Lagos until after the Civil War.

Pleadings, as we stated before, were duly ordered and both parties did file their pleadings, the plaintiff alleging his conveyance in respect of the land in question as to his title and his quiet possession thereof ever since. The plaintiff’s statement of claim also avers that some time in 1965 the defendant “unlawfully entered the land in dispute and erected a fence thereon”. The defendant’s statement of defence also alleges his conveyance, the radical title of the Oloto Chieftaincy Family in the land in dispute and a chain of assurances from that Family to himself. The statement of defence also claims that as from the time of the sale of the land in dispute to the defendant he had been in “undisturbed and uninterrupted possession” of the land. Paragraphs 13 and 15 of the statement of defence read as follows:

“13. All successive owners claiming title from Liasu Momoleso have been put in an immediate possession by prior owners and enjoyed being in undisturbed and interrupted possession at different times.

15. The defendant will rely at the trial on all legal and equitable defences opened to him including long possession, laches, stale claim and acquiescence.”

When the case came up for trial, the parties were both present and duly represented. The plaintiff testified to the averments in his statement of claim and produced (and this was admitted as Exhibit A) a Deed of Conveyance which he stated he had obtained from his immediate vendor, one Lawrence Gregorio Da Costa. Exhibit A shows that Da Costa himself had purchased the land from the Oloto Chieftaincy Family and that that Family possessed the radical title to the land in dispute. The plaintiff thereafter gave evidence of acts of entry upon the land by the defendant. The plaintiff’s surveyor gave evidence that the land claimed by the plaintiff was identical to the land purported to be sold to him by Da Costa and that this land was the same as the land being claimed by the defendant. Mr. Da Costa also gave evidence in support of his conveyance from and the title of the Oloto Chieftaincy Family. Learned counsel for the plaintiff then announced the close of the plaintiff’s case.

At this stage of the proceedings when the defendant should have called evidence in support of the averments in his statement of defence, learned counsel appearing for him was recorded as saying:

“Mr. Ogunsiji: I do not intend to call any witness. I am resting my case on the evidence adduced by the plaintiff.”

Both counsel then addressed the court and in a reserved judgment, the learned trial judge dismissed the plaintiff’s case with costs. Hence this appeal by the plaintiff.

Before us it was argued that the judgment of the High Court was against the weight of evidence. In his judgment, the learned trial judge had held that inasmuch as the conveyance produced by the plaintiff (i.e. Exhibit A to himself and Exhibit D to Mr. Da Costa) were less than twenty years old, they would not enjoy the benefit of the presumption created by section 129 of the Evidence Act, cap.62. He eventually concluded his judgment thus:-