Estate Of Lawrence A Cardoso V Estate Of John St. Matthew Daniel (1966) LLJR-SC

Estate Of Lawrence A Cardoso V Estate Of John St. Matthew Daniel (1966)

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BRETT, J.S.C. 

This is an appeal and cross-appeal against the decision of the High Court of Western Nigeria on an originating summons taken out by the Minister of Lagos Affairs to determine the person or persons to whom compensation is payable in respect of land and economic trees acquired by the Federal Government under the Public Lands Acquisition Act. There were originally four claimants, of whom the Daniel estate was the first and the Cardoso estate the second, but one of the others withdrew his claim and the fourth is not concerned in the present appeal.

In accordance with the usual procedure there were no pleadings but each claimant lodged a Statement of Interest. The Daniel estate alleged that the land belonged originally to the Alahun family, which sold it to the late L. A. Cardoso in 1919; that Cardoso sold and conveyed it to John Obojo Agbeyegbe in 1939, and that the late John St. Matthew Daniel bought it on the 16th October, 1940, when it was sold by public auction at the instance of the creditors of Agbeyegbe. The Cardoso estate alleged simply that the late L. A. Cardoso bought the land from the Alahun family in 1919, and the point at issue between the parties to this appeal was whether the Daniel estate could establish that the land had been conveyed to Agbeyegbe by L. A. Cardoso. It is undisputed that L. A. Cardoso died on the 17th February, 1940, and J. St. Matthew Daniel on the 25th April, 1948.

In support of their claim the Daniel estate produced a photostat copy of the registered copy of a deed purporting to be executed by L. A. Cardoso on the 22nd May, 1939, by which he conveyed the land to Agbeyegbe; this copy was certified by the Assistant Registrar of the Lands Registry in Lagos as a true copy of a deed registered in the register of deeds. At the foot of the document there appears “SGD” in typescript; then the handwritten words “L. A. Cardoso” and a circle with “L.S.” inside it.

This copy was put in evidence without objection on behalf of the Cardoso estate, but a witness was later called on behalf of the Cardoso estate, who produced various documents signed by the late L. A. Cardoso, and these satisfied the judge that the copy filed in the Lands Registry had not been signed by L. A. Cardoso. However, in delivering his judgment the judge expressed the opinion that since no objection had been taken to the production of secondary evidence of the deed he had been mistaken in allowing evidence to be given to question the validity of the secondary evidence, and that he should have given the Daniel estate leave to call rebutting evidence, though it does not appear that such leave had been asked for. For this reason, while holding that the Daniel estate had failed to prove an interest he considered that the estate ought to he given a further opportunity to do so. and what he did was to “enter a non-suit against the first and second claimants and leave it open to the Minister of Lagos Affairs to institute fresh proceedings for determining the rival claims of the two parties.”

Against this judgment both parties have appealed, and each submits that on the evidence it was entitled to judgment. As regards the judge’s reasons for ordering a non-suit, Chief Williams submits, on behalf of the Cardoso estate, that since section 29 of the Land Registration Act lays down that a certified copy of a document filed in the register of deeds &shall be received in evidence without any further or other proof in all civil cases,” it would not have been open to counsel for the Cardoso estate to object to the production of such a copy.

If that section stood alone it might be open to argument whether its effect was to supersede the ordinary rules as to the admissibility of secondary evidence, or merely to dispense with formal proof where secondary evidence was otherwise admissible, but section 96 (1) (f) of the Evidence Act, read with section 96 (2) (c) clearly supports the view that secondary evidence of a document filed under the Land Registration Act, in the form of a certified copy, is admissible in all cases. In the result we agree that counsel cannot be taken to have waived his right of submitting that it had still to be proved that the original of the deed had been executed by L. A. Cardoso. Except where the due execution of a document is admitted, or where it may be and is presumed, it is something that must always be proved before the court can treat the document as valid, and in putting the Daniel estate to the proof of due execution the Cardoso estate was not, as has been suggested, making an imputation of fraud without having pleaded it.

The question is, what, in the circumstances of this case, the certified copy proves. The evidence of a witness from the Lands Department who was called on behalf of the Daniel estate shows that a person wishing to register a deed usually produces an original and a duplicate at the land registry, and that only the original is normally executed by the parties. The original is in due course returned to the owner and it is the duplicate that is retained in the registry, after it has been verified as a correct copy of the original. Except as provided in section 8, the Land Registration Act does not make it the duty of the officers of the registry to satisfy themselves that the original was executed by the persons whose names it bears, and section 25 of the Act provides that registration shall not confer on any instrument any effect or validity which it would not otherwise have had.

This being the procedure, no adverse inference is to be drawn from the fact that L. A. Cardoso did not sign the duplicate of the deed in question. At the same time, it is clear that the Daniel estate cannot invoke section 104 (1) (b) of the Evidence Act, which deals with the case where a public officer is bound by law to procure the due execution of a document, and it does not appear to us that the copy retained in the registry can ever be conclusive proof of the due execution of the original. It can establish, as the copy now in question does, that the original bore one or more signatures or seals, but not who affixed them.

Mr Thompson, for the Daniel estate, cited Roscoe’s Nisi Prius Evidence, 19th edition, page 129, and the case of Thurle v. Madison 82 E.R. 864, as authority for submitting that proof of enrolment or registration by an examined copy will dispense with proof of execution, but the Nigerian Evidence Act does not make this a general principle of the law of evidence, and it can only apply if the statute under which the enrolment or registration took place so provides. The conclusion to which we have come accords with common sense, since the opposite conclusion would mean that a certified copy might be of greater evidential value than the original itself

There may, however, be circumstances in which a certified copy has as much evidential value as the original would have had. If the original of the deed in question had been produced from proper custody, and there had been no evidence one way or the other about its execution, it would have been open to the court to apply section 122 of the Evidence Act, which provides that-

“Where any document, purporting or proved to be twenty years old, is produced from any custody which the court in the particular case thinks proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

Section 4 of the Act explains the effect of the expression &may presume” as follows-

“(a) Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it.”

Thus even the original of the deed would not have been conclusive proof of its due execution, but assuming in favour of the Daniel estate that the presumption referred to may be made in relation to the original of a registered document of which the contents are proved by a certified copy, the question is whether it should be made in this case.

In deciding whether to make such a presumption the court must look at the case as a whole, including the question whether the actions of the parties are consistent with there having been a conveyance. The claim of the Daniel estate rests solely on the validity of the conveyance as a document. When it became clear in the court below that the execution of the conveyance was not admitted, counsel for the Daniel estate did not ask for an adjournment to consider his position, or for leave to call further evidence, and in this court Mr. Thompson did not suggest that any further evidence was available, but relied on his submission that the certified copy of the deed was proof of the due execution of the original.

The Daniel estate has made no attempt, either in its Statement of Interest or in the evidence, to invoke section 21 of the Public Lands Acquisition Act, under which the parties in possession of the land as being the owners thereof or in receipt of the rents of the lands as being entitled thereto at the time when the land is purchased or taken are to be deemed to be the owners unless the contrary is proved, indeed the only evidence as to possession or the receipt of rents was given by a member of the Cardoso family, who said that the family had a caretaker on the land at least up to 1953, and received cash from him, presumably as rents, and that he himself had gone on the land unhindered in 1956 and 1960.

While it is fair to make certain allowances for the inactivity of the administrator of an intestate estate, no explanation has been offered for what we must take to be the failure of the late John St. Matthew Daniel to enter into possession of the land between 1940 and his death in 1948. In the circumstances we do not consider that the Court ought to presume that the conveyance was executed by the late L. A. Cardoso, and we agree with the trial judge s finding that the Daniel estate failed to prove an interest in the land.

Having regard to our reasons for arriving at this conclusion, we cannot consistently hold that there is any justification for allowing the Daniel estate another opportunity of proving an interest in the land, and it is unnecessary to rule on the submission made on behalf of the Cardoso estate, that on an originating summons under the Public Lands Acquisition Act the court has no power to make an order of non-suit. We would, however, say that it is by no means self-evident that such a power exists.

Order 28 of the High Court (Civil Procedure) Rules confers the power to non-suit a plaintiff, but since neither of the parties to this appeal was a plaintiff in the proceedings in the High Court we are not at present satisfied that the High Court had power to non-suit them. As the trial judge pointed out, the absence of pleadings on an originating summons may lead to the embarrassment of one of the parties in a complicated issue as to title, and this was also pointed out by the Judicial Committee in Esin v. Abasi Privy Council Appeal No. 32 of 1963, judgment delivered 3rd June, 1964, but that fact in itself is no ground for holding that the power to order a non-suit exists.

For these reasons the appeal of the Daniel estate is dismissed. The appeal of the Cardoso estate is allowed, the judgment of non-suit is set aside as regards the claims of both the appellants and it is adjudged that the Cardoso estate is entitled to the compensation payable on the acquisition of the land in question. The Daniel estate must pay the Cardoso estate the costs of the proceedings in the High Court and in this Court which we shall now proceed to assess.


Other Citation: (1966) LCN/1352(SC)

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