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Home » Nigerian Cases » Supreme Court » J. O. Osidele V. Moses O. Sokunbi (2012) LLJR-SC

J. O. Osidele V. Moses O. Sokunbi (2012) LLJR-SC

J. O. Osidele V. Moses O. Sokunbi (2012)

LAWGLOBAL HUB Lead Judgment Report

I. T. Muhammad , JSC

In the Ikeja Judicial Division of the High Court of Justice of Lagos State (trial court), the plaintiff, who is the respondent herein, as per paragraph 13 of his last Amended Statement of Claim, made his claim as follows:

’13. WHEREUPON THE plaintiff claims:

a) Special and general damages in the sum of N1,000.00

b) An injunction restraining the defendant whether by themselves or their servants or agents or otherwise whatsoever from entering forthwith and/or building on the aforesaid plaintiffs land.

c) Declaration that the plaintiff is entitled to a statutory right of occupancy of the piece or parcel of land situate, lying and being at Ohigbagbo village, Ikeja and covered by the deeds of conveyances registered as 29/29/1484, 100/100/519 and 30/30/1780 of the Lands Registry, Lagos.’

The genesis of the plaintiffs claim as per his pleadings is that by a Deed of Conveyance dated 6/10/43 and registered as No.42 at page 42 in volume 635 of the Registry of Deeds at the Lands Registry, Lagos, one Mr. Isaiah Blundell Otitoju became siesed in fee simple absolute in possession from all encumbrances of a large area of land measuring approximately 13.02 acres of which the land in dispute forms part. The said Otitoju died testate and under and by virtue of his last will of testament, he devised the said land to his three children namely: [1] Benjamin Mobolaji [2] Isaiah Omotunde and [3] Noah Olufemi. Benjamin Mobolaji and Noah Olufemi died intestate and were survived by Isaiah Omontunde in whom the property was vested and who exercised maximum acts of ownership over the same after the death of the said Benjamin Mobolaji and Noah Olufemi.

The plaintiff claimed further that under and by virtue of a Deed of Conveyance executed between the said Isaiah Omotunde Otitoju of the one part and the plaintiff of the other part., dated 10/2/75 and registered as No.29 at page 29 in volume 1484 of the Lands Registry, Lagos, the plaintiff became seised in fee simple, the parcel of land referred to above and free from all incumbrances. He averred further that he was in physical possession and occupation of a larger piece of land including the land now in dispute since 28/8/69 before the defendants trespassed. That his predecessors in title who conveyed the larger area of land including the land now in dispute to him had been in physical possession of the land and had been exercising all acts of ownership without let or hindrance since 9/3/43 up to 28/8/69 when the same was sold to him. That all the defenders trespassed on the said piece of land. He averred that the defendants started to dig building foundation on the land in 1973/74 and that he warned them in several ways against their acts of trespass immediately he discovered same but they refused to heed his warnings. That the acts of trespass of the defendants have caused damage to the plaintiff to the tune of N1,000.00 and that unless an injunction is issued against the defendants jointly and severally, they will continue their illegal act of trespass to the detriment of the plaintiff.

In their respective pleadings, the defendants, except where specifically admitted, denied each and every allegation contained in the plaintiffs Amended Statement of Claim.

After full trial, the learned trial judge in his judgment of 31/12/86, dismissed plaintiffs claims in their entireties.

Aggrieved by the trial courts decision, the plaintiff proceeded to the Lagos Division of the Court of Appeal (court below), in its well-considered judgment of 12/4/2001, the court below allowed the appeal, set aside the trial courts judgment and entered judgment for the plaintiff.

Dissatisfied, the defendants/respondents and now appellants, appealed to this court on three grounds of appeal urging that this court should allow the appeal, set aside the judgment of the court below and restore that of the trial court.

In their brief of argument, the 1st set of appellants (1st and 3rd) formulated the following lone issue for this courts determination:

‘Whether the learned Justices of the Court of Appeal were right to hold that the plaintiff/respondent is entitled to a statutory right of occupancy of the parcel of land in dispute and finding for him on his claim for trespass and injunction’

The 2nd appellant formulated three issues. They are as follows:

Whether the Court of Appeal rightly interpreted and applied the sale of the land by pw4.

Whether the Court of Appeal was right in setting aside the finding of the trial court

Whether on the evidence before the court, the appellant discharged the burden of proof on him by preponderance of evidence.

In his amended brief of argument, the respondent set out two issues:

‘Whether the learned justices of the Court of Appeal were right in treating the certificate of purchase, Exh.P5, as a good root of title beyond which the respondent is not expected to go on proving his ownership and title to the land in dispute.

Whether the plaintiff/respondent proved the title he asserted in his pleading and evidence against the defendants.

I think, the lone issue formulated by the learned counsel for the 1st and 3rd appellants, covers largely the 2nd and 3rd issues of the 2nd appellant and the 3rd issue of the respondent. I should deal with that first. The plank of the arguments on this issue is exhibit P5. Learned counsel for the 1st and 3rd appellants submits that although the court below accepted exhibit P5 as a good root of title the learned counsel argued, these exhibits did not prove anything. He submitted further that there is need to ascertain what does Exh. P5, a certificate of purchase, claim to have been sold which learned counsel submitted is the right, title and interest of Martha Otitoju in the land. Learned counsel argued that there was no evidence or anything to show what interest Martha Otitoju had in the land and Exh. P5 cannot create title. The judgment which was executed by Isaiah Blundell Otitoju against his mother Martha Otitoju and his siblings Joseph Otitoju and Adeline Kasumu, was not a judgment between the parties. It was only an execution of a judgment obtained elsewhere. The certificate of purchase, it is argued further, did not attempt to pronounce that Martha Otitoju or any of her members as the owner of the land in dispute neither did it trace the interest of Martha Otitoju to the land in dispute. It merely transferred whatever interest Martha Otitoju had to one Shittu A. Abdullahi and till now, there is no evidence of what the interest of Martha Otitoju is or what interest was acquired when S. A. Abdullai purchased the interest of Martha Otitoju at the auction sale. The certificate of purchase should have traced the ownership of the land to its original owners. He cited the case of Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1. Learned counsel for the 1st and 3rd appellants argued that the respondent has failed to fulfill the requirements as laid in Cardosos case (supra) and cannot therefore succeed in an action for declaration of title as he has not discharged the onus on him of proving his title. Learned counsel equates certificate of purchase to a certificate of occupancy which is merely a prima facie evidence of title but will give way to a better title. He cited the case of Hona v. Idakwo (2003) 11 NWLR (Pt.830) 55 at 84.

Learned counsel for the 2nd appellant in his submission on issues 2 and 3 faulted the evidence of the respondent that it never revealed from whom A. Abdullahi derived his title or how Otitoju owned the land in Ikeja. That a man purchased it from an adverse possessor. Further, it is argued, the fact that the land was sold to the vendors father by a man whose source of title is not disclosed, the Deed of Conveyance being 20 years old notwithstanding, has not established a prima facie title of the plaintiff. The respondent, he argued, does not have a better title than that of the appellants.

It is the further submission of learned counsel for the 2nd appellant that the 2nd appellant traced the origin of his title and possession of the land to the four children of IYADE: Aina Ose; Maku Dala; llo and Ogisanyi all on whom the land devolved by right of succession under Yoruba Law and custom after the demise of their father IYADE who was he only child of his father. The evidence of 1st and 3rd appellants confirmed the said traditional history. There is therefore, no discrepancy whatsoever in the appellants traditional history as found by the court below. Learned counsel relied heavily on the evidence of DW2 which he said, confirms the title of the 2nd appellant. He also cited the evidence of DW6, that the fact that 2nd appellant is in actual possession of the land has made a prima facie case against the respondent. Learned counsel cited several authorities in support including Mahiomi v. Ladejobi (1960) LLR 233; Adenle v. Ovygbade (1967) NMLR 136.

Learned counsel for the respondent made his submissions on hi two issues (1 and 2) which are considered together hereunder. Learned counsel started by Exh.P5 as a root of title. He referred to some of the provisions of Sheriffs and Civil Process Act, Cap 407, LFN, 1990, under which Exh.P5 was issued. (SS 44, 48, 50 and 131). The certificate of purchase he argued qualified as an instruments affecting the land it relates to and is registrable under the Lands Instruments Registration Law, Cap 111, Law of Lagos State. He referred to sections 2, 6 and 7 of that law. Registration of the certificate under the Registered Land Law vests in the absolute ownership of the land together with all rights and privileges belonging or appurtenant to it. Section 131 of the Evidence Act; Abiodun & Ors v. Adehin (1962) 1 All NLR 550 at 555 were cited in support. Learned counsel argued that the estate of Martha Otitoju, the judgment debtor, was described clearly in Exh.P5 as the land messuages and tenements and there is nothing to suggest a limitation to the estate described as the right title and interest of Martha Otitoju. Moreover, when Shittu Abdullahi, the grantee of the land in Exh.P5 conveyed it to Isaiah Blundell Otitoju in 1943, he conveyed it in FEE SIMPLE which could only mean that Martha Otitojus right title and interest in the land amounted to a fee simple estate which, at the time Exh.P5 was issued or Exh.P6 was executed meant the largest estate a person can have in the land. Case of Ali v. Ikusebialo (1985) 1 NWLR (Pt.4) 630 at 640 was cited in support. That where a certificate describes the estate of a judgment debtor, that will be it, there will be no need for evidence to prove it. The court below, he submitted, was perfectly in order to reverse the judgment of the High Court which called Exh.PS a worthless paper and to treat the Exhibit as a valid root of title of the respondent.

See also  A.M.Soetan & Anor. v. Z. Ade Ogunwo(1975) LLJR-SC

Respondents issue No.2 is on proof of title the plaintiff asserted. Learned counsel for the respondent submitted that the respondent based his claim on documentary evidence and possession by his predecessors in title and himself. He stated further that the respondent pleaded and tendered in evidence, exhibits P1 – P6, without objection. The respondents he argued, has established a prima facie case of his entitlement to the land in dispute. The lower court, it is argued further, was right on the basis of applying section 130 of the Evidence Act which makes recitals, statements and description of facts, matters and parties, contained in deeds and instruments twenty years old at the date of contract sufficient evidence of the truth of such facts, matters etc and the respondent was entitled to rely on Exh.P5. The appellants, he argued, failed to dislodge the evidence of title based on the documents exhibited as P1, P2, P5 and P6. Learned counsel argued as well that the respondent did not have to show how Martha Otitoju owned the land after having established his root of title and a prima facie case. And, the respondent was thus not required or duly bound to plead or prove any grant or history beyond his established root of title.

On the first issue formulated and argued by the 2nd appellant, the learned counsel for the respondent submitted that the issue or point is fresh and is being raised for the first time in this court. The 2nd appellant did not plead it, neither did he or his witness raise it in their evidence at the trial court. It was not also, raised in the Court of Appeal. The issue is incompetent and should be struck out or ignored completely. Secondly, the appellants, he said, posed as an intermeddlers or interlopers. They are complete strangers and have no concern with the Otitoju family. Thus, sale of the land by PW4 was not and could not be void.

In response to new points raised by the respondent, the 2nd appellant, in a reply-brief filed on 8/11/2006, submitted that the issue of the land in dispute being trust properly, is rather an explanation of an issue which was pleaded by the 2nd appellant in their amended Statement of Defence upon which the trial was based and judgment delivered declaring the same sale of the land in dispute as a void sale. It was pleaded by the 2nd appellant that the real issue of which Trust Property was an explanation, the respondent does not have a legal right to dislodge the 2nd appellant who was in possession of the land, considering his title on the land and considering that the trial court held Exh.P to be a worthless document. The respondents counsel, it was submitted, completely derailed and misinterpreted as a new or fresh issue the detailed analysis of already pleaded issue which was only used as trust property to explain. Learned counsel for 2nd appellant urged this court to discountenance the respondents submission that 2nd respondents brief be struck out. Learned counsel for the 2nd appellant submitted on the point of respondents title that the argument of the respondents counsel, no matter how erudite will not replace the law or validate the worthless and voidable title document of the respondent as described by the High Court and the Court of Appeal. Several cases were cited in support including Raimi Akande & Ors v. Busari Alaabe & Ors (2000) 15 NWLR (Pt.690) 353 at 362. Learned counsel argued further that the cases Alh. Sani Shaibu v. J. S. Bakare (1984) 2 SC 187 is distinguishable from the present case. The respondent proved no better title. The respondent’s counsel, it is further alleged, misconstrued the will of Blundell Otitoju that the land in dispute could be sold for other reasons. Learned counsel urged this court to allow the appeal and declare the respondents title void and restore the trial courts judgment.

The 1st and 3rd appellants issue No.1 questions the proprietress of the court bellows decision that the respondent is entitled to a statutory right of occupancy of the parcel of land in dispute. I think in attempting to answer this question to my satisfaction, I will expand my coverage to the 2nd appellants issues Nos. 2 and 3 and the respondents issues Nos. 1 and 2. It is trite that in a claim of title to land, the plaintiff can succeed if he establishes his claim through anyone of the following five (5) ways:

by traditional evidence;

by production of documents of title;

by acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that the person is the true owner;

by acts of long possession and enjoyment of land;

by proof of possession of connected and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

See: Idundun & Ors v. Okumagba & Ors (1976) NSCC 44 (1976) 9 – 10 SC 227; Omoregie & Ors v. Idugiemwanye & Ors (1985) 2 NSCC 838; Amadi v. Chinda (2009) 10 NWLR (Pt.1148) 107; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt.1150) 553.

See also  Dr. G. O. Sofekun V. Chief N. A Akinyemi & Ors (1980) LLJR-SC

The respondent traced the origin of his title to the certificate of purchase issued in favour of one Abdullai in 1943. It was admitted in evidence as Exh. P5. The purchase was said to be in execution of a judgment obtained in a suit by Isaiah Blundell Otitoju as plaintiff against his mother, Martha Otitoju and his siblings Joseph Otitoju and Adeline Kasumu. The land was then sold to Abdullai who subsequently sold it to the present respondent. It is the submission of learned counsel for the respondent that the respondent laid his claim to the title of the said piece of land through possession by his predecessors in title and by himself. The findings and holdings of the trial court on the title of the land in dispute read as follows:

‘The title of the plaintiff is grossly defective. He has failed to adduce credible evidence of how Otitoju owned land in Ikeja. The pieces of evidence of the plaintiff, pw3 and pw4 that Otitoju claimed for compensation are false. He has failed to prove ownership of the land to fall into one of the ways laid down by our Supreme Court in the case of Idundun v. Okumagba (1976) 9 -10 SC 227. I agree with the submissions of Messrs Olajolo & Adedoyin that Exhibit P1, Ps, P5 and P6 are worthless documents. Pw4 Isaiah Omotunde Otitoju lacked capacity to convey the land to the plaintiff. Nobody had vested the land in him. It is decided in the case of David Mahiomi v. Ladejobi (1960) LLR 233 Coker, JSC as he then was held that where a person in actual occupation of land traces his title to the original owners of the land the onus which lies on a rival claimant to prove his title is a very great one indeed. See also Adenle v. Ovegbade (1967) NMLR 136. Regrettably the plaintiff has failed to discharge the onus of proof.’

The court below, on the other hand, made a contrary finding and holding, it found and held, inter alia, as follows:

‘Apart from the obvious discrepancies in the traditional histories of title pleaded by the 2nd defendant on the one hand and the 1st and 3rd defendants on the other, it is clear that the evidence as to the source of title of Iyade family as given by DW2 was meagre and inclusive. There was no shred of evidence as to how title in the Iyade family had descended within the family over the years until it came to the turn of those who sold to the defendants or their predecessors-in-interest. There was no evidence as to how DW2 derived his link with the Iyade family.

It is now well settled that a person relying on traditional history as the evidence of his title must give a consistent evidence as to the devolution of such title over the years. There must also be evidence as to how the persons claiming to be the present owners of the land derived their interest and root from those who first settled on the land. On the facts of this case, that translates into [1] Evidence as to who first settled on the land [2] the genealogy of such first settler traced to the present members of Iyade family who sold the land to the defendants. All the evidence we have in this case was that the ancestors of Iyade family settled on the land. There was no evidence as to who these ancestors were and how the defendants vendors descended from the original settlers. See Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 SC. Clearly the defendants failed to trace their title to any original founder of the Iyade family.

When the lower court expressed that the land in dispute belonged to the Iyade family, the only evidence before it which it could have so accepted was the meagre evidence given by DW2 since the plaintiff did not make any admission that the land belonged to Iyade family. In Idundun v. Okumagba (supra), one of the recognized ways by which title may be proved is by production of the documents of title which was what the plaintiff did in this case. The conclusion is inecapable that the defendants woefully failed in dislodging the evidence of title based on the documents exhibits P1, P2, P5 and P6 tendering the plaintiff.’

The respondent based his claim on two of the known ways set out earlier, thus: documentary and undisturbed possession of the land in dispute by both his vendors and himself. The appellants, on the other hand, derived their title from Iyade family. This latter source of title was found to be weak, meagre and inconclusive by the court below on the basis that there was no evidence as to who the ancestors of Iyade family were and how the appellants vendors descended from the original settlers. They thus failed to trace their title to any original founder of Iyade family. In the first place, it is a well settled principle in land transactions that where the plaintiff and the defendant derived their titles from different families (sources), the family or source with a better title will give a superior root of title in support of a declaration of title in favour of a party deriving its title from that family or source. See: Akande v. Awero & Anor (1977) 1 SC 71 at 74; Arase v. Arase (1981) 5 SC 33.

Secondly, on the documents tendered in evidence, particularly Exhibits P1, P2, P5 and P6, it is the finding of the learned trial judge that those exhibits were worthless documents. But in disagreeing with the learned trial judge, the court below held that:

‘The conclusion is inescapable that the defendants woefully failed in dislodging the evidence of title based on the documents exhibits P1, P2, P5 and P6 tendered by the plaintiff.’

The court below observed that the learned trial judge, completely misconceived the case of the plaintiff and the impact of section 130 of the Evidence Act on it. If the learned trial judge had borne in mind section 130 of the Evidence Act, he would have known that the truth of the contents of exhibits P1, P2, P5 and P6 were, to be deemed established to the extent that they were not disproved by the defendants. Thus, having established a prima facie title by exhibits P1, P2, P5 and P6, the onus was on the defendants to show that the title of Iyade pre-dated that which devolved on the plaintiff through Shittu A. Abdullai vide exhibit P5. Furthermore, there was no counter claim by the defendants. Section 130 of the Evidence Act provides as follows:

‘Recitals, Statements, and descriptions of facts, matters and parties contained in deeds, instruments, Acts of the National Assembly, or Statutory, declarations, twenty years old at the date of the contract, shall unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.’

In both his pleadings and evidence, the plaintiff/respondent laid heavy reliance on the following documents as the sources of his title to the land in dispute:

a) Exhibits P1 & P2 which are the conveyances by which Isaiah Otitoju sold the land to him;

b) Exhibit P3 – letters of Administration with the WILL of Isaiah Blundell Otitoju;

c) Exhibits P5 and P6 are certificates of purchase in favour of Shittu A. Abdullai and the deed executed by Shittu Abdullai in favour of Isaiah Blundell Otitoju, respectively.

Exhibit P5 was made on 30/3/1943. Exhibit P6 was made on 6/10/43.

Exhibits P1 and P2 were made on 10/1/75 and 9/9/75 respectively, i.e. the contract by which the plaintiff acquired his interest in the land in dispute.

Both exhibits P1 and P2 recited the contents of exhibits P5 and P6 and the sale to the plaintiff of the said land was ratified by exhibit P4 made on 29/1/80. Thus, the practical application of section 130 of the Evidence Act (supra) would have resulted in the following findings:

that the land in dispute was sold to Shittu A. Abdullai in 1943

See also  Sunday Okoduwa & Ors V. The State (1988) LLJR-SC

that the said Shittu A. Abdullai sold the land to the father of plaintiffs vendor in 1943

iii. that ownership of the said land had resided in plaintiffs predecessor in title since 1943.

I am in total agreement with the court below that pursuant to section 130 of the Evidence Act the trial court would have found that the plaintiff ought to have been taken as having established a prima facie case against the defendants/appellants. See: Johnson & Ors v. Lawanson & Anor (1971) NMLR 380; Okupe v. Ifemembri (1974) 3 SC 97; Ayinde v. Sijuwola (1984) 5 SC 44.

It is to be noted that Exh. P5 is a judicial act certifying a judgment and a sale ordered by the then Supreme Court of Nigeria. There is therefore a presumption that such judicial acts are regular and valid which can only be rebutted by establishing fraud or other vitiating circumstances (section 150 of the Evidence Act). There was no attempt by the appellants at rebutting that presumption. Thirdly, I set out earlier, the provision of section 130 of the Evidence Act. This is to buttress the law and practice of the courts that where recitals, statements and descriptions of facts and parties etc are made in a document which is more than 20 years, and where not found to be inaccurate, such recitals, statements and descriptions of facts, etc shall be taken to be sufficient evidence of the truth of such facts, matters and descriptions. It is not in dispute that Exh. P5 was made in 1943. It contains recitals, statements and descriptions of facts, matters and parties which provide evidence of the facts upon which the respondent was entitled to rely while getting into Exhibit P2. The respondent ought to have been held to establish a prima facie case against the appellants. What now remained was for the appellants to dislodge the presumption of the ownership of the land arising from the Exhibits P1 – P6 as per the requirement of section 137(2) of the Evidence Act. This, the appellants failed to do. The law is certain as held by this court in several decisions that in land cases, the defendant is never called upon to proceed to defend the claim of the plaintiff until the plaintiff establishes a prima facie case, relying on his own evidence alone, at which point the defendant is then called to produce evidence in rebuttal to the presumption of the prima facie case. See: Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24; Aromire v. Awoyemi (1972) 2 SC 1 at p.3. The court below was right, in my view, to have found that the respondent had established a prima facie case in this matter. This answers 2nd appellants issues 1 and 3 and respondents issue No.2.

I now turn to the issue of whether the court below was right in treating the certificate of purchase (Exh.P5) as a good root of title (covered apparently by the sole issue of the 1st and 3rd appellants; 2nd appellants issues 1 and 2 and respondents 1sl issue). Learned counsel for the 1st and 3rd appellants submitted, inter alia; as follows:

‘Exhibit P5 is a Certificate of purchase. The purchase was said to be in execution of a judgment obtained in suit brought by one ISAIAH BLUNDELL OTITOJU as plaintiff against his mother MARTHA OTITOJU and his siblings JOSEPH OTITOJU & ADENLNE KASUMU. The land was said to have been sold to the plaintiff SHITTU A. ABDULLAI. Strangely, a few months later Abdullai sold it to the plaintiff in the action, Isaiah Blundell Otitoju. It needs to be ascertained what does exhibit P5 claim to have been sold. It is ‘the right, title and the interest of Martha Otitoju’ in the land.

There is no evidence or anything to show that what interest Martha Otitoju had in the land. Exhibit P5 has not created title. It was not a judgment between the parties. It was only an execution of a judgment obtained elsewhere. What is the judgment? What was the action about? No body has supplied the answer. It is not available. Could it then be rightly concluded that ownership has been established with Exhibit P5? The answer, to my mind, is in the negative.

This certificate also did not attempt to pronounce that Martha Otitoju or any of its(sic) members as the owner of the land in dispute neither did it trace the interest of Martha Otitoju to the land in dispute. It merely transferred whatever interest Martha Otitoju had, to one Shittu A. Abdullai. The certificate of purchase is at pages 294 – 296 of the Records. Till now there is no evidence of what the interest or Martha Otitoju is or what interest was acquired when S. A. Abdullai purchased the interest of Martha Otitoju at the auction sale.

The Certificate of Purchase should have traced the ownership of the land to its Original Owners as was done in Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1 in that case the plaintiff who bought from an auction was held to still be duty bound to trace the root of his predecessor in title before he could have a good title. The respondent in this case has failed to do so and thus cannot succeed in an action for declaration of title as he has not discharged the onus on him of proving his title.

In any event, an action is only binding on the parties to it and not certainly to the world at large. Even this fact was accepted by the court below at page 4 of its judgment which is at page 540 of the Records when his Lordship held thus.’

In its judgment, the trial court held as follows:

‘This brings (me) to the consideration of the titles of the parties. The plaintiff traced his title to Exhibit P5 and Exhibit P6 while the defendants traced their title to Iyade family.

I accept the evidence of DW2 Oba Momodu llo. I hold that his family is the traditional owner of the land in dispute from time immemorial. In fact PW3 gave evidence that Otitoju bought from Awori people. The title of the plaintiff is grossly defective. He has failed to adduce credible evidence of how Otitoju owned land in Ikeja. The pieces of evidence of the plaintiff, PW3 and PW4 that Otitoju claimed for compensation are false. He has failed to prove ownership of the land to fall into one of the ways laid down by our Supreme Court in the case of Idundun v. Okumagba (1976) 9 -10 SC. 227. I agree with the submissions of Messrs Olajolo & Adedoyin that Exhibit P1, P2, P5 and P6 are worthless documents. PW4 Isaiah Omotunde Otitoju lacked capacity to convey the land to the plaintiff. Nobody had vested the land in him. It is decided in the case of David Mahiomi v. Ladejobi (1960) LLR. 233 Coker, JSC as he then was held that where a person in actual occupation of land traces his title to the orginal owners of the land the onus which lies on a rival claimant to prove his title is a very great one indeed. See also Adenle v. Ovegbade (1967) NMLR 136. Regrettably the plaintiff has failed to discharge the onus of proof.’

But, were these exhibits (P1 – P6) worthless, as found by the trial court? The court below found otherwise. It held as follows:

‘For instance, if the lower court had borne in mind section 130 of the Evidence Act, it would have known that the truth of the contents of exhibits P1, P2, P5 and P6 were to be deemed established to the extent that they were not disproved by the defendants….The plaintiff having established a prima facie title by exhibits P1, P2, P5 and P6 (P6), the onus was on the defendants to show that the title of Iyade predated that which devoid on the plaintiff through Shittu A. Abdullai vide exhibit P5.’


SC. 26/2005

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