RAIMI SANNI ALIAS A. A. ADERIBIGBE (APPELLANTS)

v.

JIMOH OLAREWAJU OKI MAJOR MAJORIE OKI (RESPONDENTS)

(1971) All N.L.R. 117

Division: Federal Supreme Court

Date of Judgment: 26th March, 1971

Case Number: SUIT NO. S.C. 199/68

Before: Coker, Udoma, Sowemimo, JJ.S.C.

Appeal from the High Court (Lagos).

HELD:

(1)     In a claim for title, as in the present case, when one of the parties had established a root of title emanating from an agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain a declaration of title.

(2)     In the present case there was evidence that some time in 1965 the Oloto Chieftaincy Family sought to set aside the deed Exhibit "H" on the ground that more land had been wrongly included on the plan than was in fact sold to Gregoria Da Costa. The High Court proceedings in that case were produced in evidence as Exhibit "J". The Oloto Chieftaincy Family after giving some evidence withdrew the case and it was dismissed on the 14th April, 1965. Therefore it was not competent for Chief Oloto in the present case to testify in a manner to impugn the plan on Exhibit "H" as to the size of the land sold to Gregoria Da Costa much less to give evidence tending to derogate from his own grant in the same deed i.e. Exhibit "H".

(3)     In an action for a declaration of title the onus is on the plaintiff to establish the title which he claims and he cannot rely upon the weakness of the case of his adversary. In this case, it was for the plaintiff to show that the land originally belonged to the Oloto Chieftaincy Family and that it was validly sold to him only. All the evidence in this case pointed unequivocally to the fact that the present claims of the Oloto Chieftaincy Family over this land were at the best suspect and the evidence of such claims had no probative value.

(4)     On the evidence in this case the title of the defendant should be preferred; the plaintiff did not discharge the onus which the law placed on him and he should not have been granted a declaration of title.

(5)     The trial Judge gave judgment for possession in favour of the plaintiff but did not advert to the fact that his claim for possession presupposed that he was out of possession. This fact was of cardinal importance since a claim for damages for trespass was also on the writ. If, as indeed the action suggested, the plaintiff was not in possession then of course he could not succeed on his claim for damages for trespass. The plaintiff had failed to establish his title to the land and was therefore not entitled to an order for possession.

Appeal allowed: Judgment of High Court set aside:

Plaintiff's case dismissed.

Cases referred to:

Thomas v. Preston Holder, (1946) 12 W.A.C.A. 78.

Kodilinye v. Mbanefo Odu, (1935) 2 W.A.C.A. 336.

APPEAL FROM THE HIGH COURT (LAGOS).

SUIT NO. S.C. 199/68.

Cole for the Appellants.

Agusto (With him, Munis) for the Respondents.

Coker, J.S.C. (delivering the judgment of the court):-The appellant was the defendant, and the respondent the plaintiff, in an action in which the plaintiff's writ was endorsed as follows:-

"The plaintiffs claim against the defendant:-

(1)     A declaration of title that the plaintiffs are owners in fee simple or according to Native law and custom of all that piece or parcel of land in Block "A" Plot 15 of Approved Allotment Plan CT.29/50 situate, lying and being at Abule Ondo, Iwaya, on the mainland of Lagos and covered by a Deed of Conveyance dated the 6th day of July, 1959 and registered as No. 62 at page 62 in Volume 1140 of the Register of Deeds kept at the Land Registry, Lagos.

(2)     One hundred pounds (£100) general damages for trespass committed by the defendant, his servant; and/or agents against the plaintiffs in respect of the said land.

(3)     An injunction restraining the defendant, his servants and/or agents from committing further acts of trespass on the said land, and

(4)     Possession of the said land."

Pursuant to an Order of Court the parties filed their respective pleadings. According to the statement of claim, the plaintiff had purchased the land in dispute from one Ebenezer Babalola Bankole who himself had become owner of the land by virtue of a conveyance dated the 26th January, 1953. By his statement of defence the defendant claimed to have purchased the land from one Gregoria Da Costa who had bought from the Oloto Chieftaincy Family, the owners of the radical title to the land. At the trial both sides gave evidence and in particular there was evidence showing that the land claimed by the plaintiff and in respect of which he had sought a declaration of title fell within the land sold by the Oloto Chieftaincy Family to Gregoria Da Costa and in respect of which that family had executed a Deed of Conveyance to Gregoria Da Costa. Although there are no averments in the statement of claim to the effect, the plaintiff was allowed to call evidence through Chief Oloto to the effect that the land claimed by the plaintiff was part of the traditional lands of the Oloto Chieftaincy Family and that the land was allotted at one time by the family to one of its members for use and occupation, that it was later sold under a writ of execution to the predecessors-in-title of the plaintiff and that such land was not in fact included in the land sold to Gregoria Da Costa. In the course of his judgment, the learned trial Judge observed as follows:-

"I have gone at length to review the earlier authorities in view of the circumstances of which the plaintiffs' predecessors in title bought and obtained possession of the property. The present case is simpler and the case of the plaintiffs stronger than all the cases referred to above in that although the plaintiffs' claim is on the pleadings adverse to theirs, the original owners of the land came to give evidence to support the plaintiffs' claim against the defendant."

The learned trial Judge then considered the evidence about the execution sale of which nothing but oral evidence had been given and observed thus:-

"The plaintiffs, in my view, are entitled to judgment. They have satisfactorily proved that the land was sold to them by a person who derived his title from Madam Bintu Fatumo who bought the land by public auction with the knowledge and consent of the original owners of the land. There is no evidence before me that the land sold to the defendant is part of the land bought by Da Costa from the Oloto Chieftaincy Family. In fact there is overwhelming evidence to the contrary.

Assuming however that I am wrong, and that the sale by public auction coupled with the consent of the Oloto Chieftaincy Family did not pass any interest to Madam Bintu Fatumo and Omoleso, there still remains the fact that Madam Fatumo and Omoleso have been in long and uninterrupted possession of the land since 1921, without let or hindrance. This is sufficient to defeat the interest of the Oloto Family."

He eventually gave judgment for the plaintiff in the following terms:-

"Judgment is therefore entered for the plaintiffs for a declaration of title that they are the owners in fee simple of the piece of land claimed in the writ of summons; £50 damages for trespass, and possession of the said land with costs assessed at 100 guineas to the plaintiffs."

The appeal is against that judgment. The argument on appeal is that the learned trial Judge was wrong to award title to the plaintiffs and that on the evidence before him the plaintiff was not entitled as well to the other consequential relief's.

To start with and on the question of title, it is obvious that both parties were agreed that the original owners of the land in dispute were the Oloto Chieftaincy Family. The plaintiff did not state as much in his statement of claim but he called the titular head of the family, Chief Emmanuel Ogundimu, as a witness and he testified on behalf of the plaintiff to that effect and indeed the plaintiff strongly relied on the claim by that witness to the radical title in the land. The defendant pleaded a sale by the same family to one Gregoria Da Costa and thereafter to himself and indeed produced in evidence, apart from his own conveyance, the Deed of Conveyance by which the Oloto Chieftaincy Family sold a large piece of land, including the land in dispute in this action to Gregoria Da Costa. The document was admitted in evidence as Exhibit "H" and is dated the 24th February, 1964.

The conveyance, Exhibit "H", emanating as it does from the Oloto Chieftaincy Family, undoubtedly transferred whatever interests that family might have had in the land to Gregoria Da Costa. The plaintiff produced no evidence (other than the ipse dixit of Chief Ogundimu, the Oloto of Lagos) of the sale of the land by the family to the plaintiff or any of his predecessors-in-title. On that state of the evidence surely the learned trial Judge should have directed himself on the lines indicated in the judgment of the West African Court of Appeal in Thomas v. Preston Holder (1946) 12 W.A.C.A. 78 where it was laid down that in a claim for title, as in the present case, when one of the parties had established a root of title emanating from an agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain a declaration of title.

In the present case there was evidence that some time in 1965 the Oloto Chieftaincy Family sought to set aside the deed Exhibit "H" on the ground that more land had been wrongly included on the plan than was in fact sold to Gregoria Da Costa. The High Court proceedings in that case were produced in evidence as Exhibit "J". The Oloto Chieftaincy Family after giving some evidence withdrew the case and it was dismissed by Ikpeazu, J. (High Court, Lagos) on the 14th April, 1965. It seems clear to us therefore that it was not competent for Chief Oloto in the present case to testify in a manner to impugn the plan on Exhibit "H" as to the size of the land sold to Gregoria Da Costa much less to give evidence tending to derogate from his own grant in the same deed, i.e. Exhibit "H".

We observe that a surveyor was called by the plaintiff to give evidence concerning the identity of the land claimed by him. He had pleaded in his statement of claim that the defendant had wrongfully come on his land and the defendant in answer to that pleading had averred in his statement of defence that his own land is a part or portion of the land sold by the Oloto Chieftaincy Family to Gregoria Da Costa. Surely if the plaintiff accepted the original ownership of the Oloto Chieftaincy Family, as indeed he did, the onus is upon him to establish that the Oloto Chieftaincy Family did not by the deed Exhibit "H" convey his own land to the defendant or the defendant's predecessors-in-title. Not one question was addressed to the plaintiff's surveyor on this aspect of the case and in his judgment the learned trial Judge observed as follows concerning this point:-

"The defendant has not connected the map attached to Exhibit K, his title deed, with Exhibit L, the conveyance from the Oloto Family to da Costa. Not a single witness came forward to say that the land in Exhibit K is part of the land sold to da Costa."

This of course is a mistaken view of the law, although the learned trial Judge then went on to state as follows:-

"I appreciate that the onus is on the plaintiffs to prove their title, but where the plaintiff's witnesses consist of the defendant's vendors (or the vendors of his predecessor in title) who repeatedly asserted that the land in dispute is not part of the land sold to the defendant's predecessor in title, it behoves the defendant at least to give some evidence indicating that the land in dispute is part of the land sold to da Costa."