Mosalewa Thomas V. Preston Holder (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for declaration of title and possession—Title originating in native law and custom and proceeding through series of conveyances—Misuse of words
” in fee simple ” in such conveyances—Proof of such a title—Onus of proof.

Facts

The appellant derived title through a series of conveyances from Chief Oloto who was a previous owner by native law and custom. The respondent purchased from one Bakare who had bought from one Ajakere whose title was not disclosed, and also set up long possession and the Statute of Limitations.

The appellant’s series of conveyances purported to convey an estate in fee simple, but his claim, as amended, was clearly for a declaration of title under native law and custom.

The trial judge found that the appellant had failed to prove acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he was the exclusive owner, and that there was no evidence of interference or challenge with the respondent’s obvious occupation, and dismissed the claim.

Held

On appeal,

(i) it was unnecessary to prove the reversion of the property to Chief Oloto upon the determination of a licence to occupy for life;

(ii) in such a case as this it was not necessary for the appellant to prove acts of ownership as above stated. Such proof is necessary only where a plaintiff is claiming a declaration of ownership based upon long possession;

(iii) where a plaintiff traces his title to one whose title to ownership has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner,

(iv) the Statute of Limitations could not be applied to a claim of this nature.

Appeal allowed.