F. M. Alade V. Lawrence Awo (1975)

LawGlobal-Hub Lead Judgment Report

IBEKWE, J.S.C.

This appeal seems to highlight the kind of erroneous conception which seems to have built up around the time-honoured rule that was laid down in the well-known case of Ekpo v. Ita XI NLR 68. In that case Weber, J., stated the law as follows:-

“In a claim for decree of declaration of title, the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – if the evidence of tradition is inconclusive the case must rest on question of fact.”

Ever since the time that Weber, J., enunciated the above principle of law, generation upon generation of judges have readily applied and followed it. Indeed, Ita’s case has now and again, been cited with approval by this court. With the passage of time, this rule has become a household word in actions for declaration of title in this country. It seems to us, however, that the rule is, sometimes misunderstood, and therefore, misapplied, as is the case in the present appeal.

Before going into the fine legal points raised by this appeal, we think that it is desirable that the facts should be set out briefly. On 16th March, 1960, the plaintiff, herein appellant, filed an action in the High Court, Ikeja against the defendant, herein respondent, claiming declaration of title and possession. Pleadings were ordered and filed. The plaintiff in his statement of claim avers that the disputed land originally formed portion of lands belonging to the Ojomo Eyisha family from time immemorial according to Yoruba customary law, and that over this land the said family had exercised maximum acts of ownership and possession. He further avers that the land was sold and conveyed to him on 17th September, 1958, under a deed of conveyance which was executed in his favour by the heads and accredited representatives of the said family, and that the deed was registered as No. 20 at page 20 in volume 277 of the Lands Registry Ibadan.

Plaintiff further avers that, immediately after the said purchase he was put into effective possession of the said land by the vendors, and that he continued in possession until later in 1959 when the defendant disturbed his possession by storing building materials on the said land; and that the defendant has continued in illegal possession of the disputed land inspite of repeated warnings issued by him. As the defendant did not heed the warning, he, the plaintiff consulted a solicitor, and as a result, this action was filed.

On his own part, the defendant traces his original root of title which, according to him, dates back to 1938, to one Emmanuel Seton. The defendant’s immediate predecessor-in-title was one Ebun Adesola who sold and conveyed the land to him on 20th February, 1948. Ebun Adesola, it is alleged by the defendant, bought the land from J. M. Adewunmi and J. A. Adebiyi, whose title, according to the defendant was grounded on a certificate of purchase dated 13th June, 1938, and registered as No. 24 at page 24 in volume 452 of the Lands Registry. The defendant further claims that the conveyance executed in favour of Ebun Adesola by the said Adewunmi and Adebiyi is registered as No. 24 at page 24 in volume 657 of the Lands Registry. Finally, the defendant claims that he enjoyed quiet possession of the said land, and that his possession was only disturbed by the plaintiff during 1958-1959. At the trial, the plaintiff called three witnesses among whom was a principal member of the Ojomo Eyisha Family, P.W.3, Raimi Apena, who gave detailed evidence of tradition. In a nutshell, his evidence supported the plaintiff’s claim that he acquired the land in dispute from the Ojomo Eyisha Family. The following portion of the evidence given by P.W.3, Raimi Apena seems to be pertinent:-

“The land sold to the plaintiff is at the centre of our family land. We, the descendants of Eyisha, have been exercising acts of ownership and possession on the family land over the years. Our family never sold the land to one Seton ………..”
Earlier on in his evidence, this same witness, Raimi Apena had stated inter alia as follows:-

“It was Eyisha who first settled on the land. This was over 300 years ago. Eyisha came from Ife; Eyisha came to settle on the land after they have been driven away from Ife due to internecine wars. Eyisha was the first to settle on the land. Eyisha land commences from Agege Motor Road to Idi-Oro across the railway line down to Igbobi town and then onward to the back of the Royal Orthopaedic Hospital, Igbobi, and from there onwards to George Village and onwards to Debari. From Debari the land crosses Ikorodu Road to Idiaraba and from there to the footpath leading to Onigbongbo and from Onigbongbo towards the left onwards to Mushin. There the land extends onward from Isolo to Itire.”

On the other hand, the defendant and one other witness gave evidence for the defence. D.W. 2, Joseph Obafemi Adewunmi testified as to how he and one J.A. Adebiyi had bought the disputed land at an auction sale, and later on, sold it to one Ebun Adesola, the defendant’s immediate predecessor-in-title. The relevant portion of his evidence is as follows:

“I saw a Notice of SALE of a plot of land on a piece of land facing the rail line at ODI-OLOWO, MUSHIN. In consequence I caused a Survey to be made by AIYEDE, Licensed Surveyor. I then applied for and obtained this “Certificate of Purchase dated 13th June, 1938. (Exhibit F identified). I later sold the land to EBUN ADESOLA in 1944. Mr. J. A. Adebiyi and I executed a Deed of Conveyance. This is the Certified True Copy of the conveyance signed by J. A. Adebiyi and I.”

At the conclusion of the hearing the learned trial Judge adjourned the matter for judgment. In a considered judgment delivered on 26th July, 1968, the learned trial Judge, Beckley, J., dismissed the plaintiff’s claim for declaration on the ground that the onus of proof which rested upon the plaintiff had not been discharged. In the words of the learned trial Judge:-

“On the whole I am not satisfied on the evidence before me that the plaintiff has established his claim for a declaration of title to the area in dispute and his claim must fail in its entirety. The claim for declaration of title having failed his claim for possession fails along with it.”
It is from this decision of Beckley, J., that the appellant has now appealed to this Court. At the hearing of this appeal, Mr. Lardner, learned counsel for the appellant, sought and obtained leave to argue the following additional grounds in substitution for the original grounds:-

“1.   The decision is wrong in law in that the learned trial Judge failed to observe;
(i)    that on the totality of the evidence before the court the plaintiff discharged the burden cast on him;
(ii)    “all the circumstances of this case” and in particular that
(a)    the evidence of the plaintiff in support of title was not challenged or shaken by cross- examination,
(b)    the defendant did not contradict the plaintiff’s evidence on title in the witness box;
(c)    the defendant admitted that the Eyisha family is a land owning family;
(d)  the evidence of Raimi Apena, a principal member of the Eyisha family is in its nature credible; the learned trial Judge did not make any adverse comment on his veracity or demeanour.