IN THE SUPREME COURT OF NIGERIA
ON TUESDAY, THE 3RD DAY OF MARCH 1970
MRS C.A. OGUNSANYA ................................................. PLAINTIFF
MADAM A. TAIWO ..................................................... DEFENDANT
BEFORE: Coker, Madarikan and Udoma, JJ.S.C.
Declaration-Title to land-Evidence-Burden of Proof-Plaintiff having onus of proving that her vendor included the Mogaji of the family-Evidence in document executed by Raji Akintola (deceased) that he was the Mogaji at the material time-Whether section 90 of the Evidence Act makes statement in the introductory recital admissible as evidence.
Appeal from the Court of Appeal (West).
(1) Section 90(1) of the Evidence Act proves that oral evidence is required, plus other conditions, to make admissible as evidence a statement made by a person in a document and tending to establish a fact whereof direct oral evidence would be admissible.
(2) In this case, the document exhibit A1 was executed by Raji Akintola himself and so the provisions of subsection (4) of section 90 of the Evidence Act were satisfied. Undoubtedly, if Raji Akintola were alive he would have been competent to testify that he was the Mogaji of the family in 1951 and that would have been a matter within his personal knowledge. Consequently the submission of Counsel for the plaintiff that there was direct evidence in the conveyance exhibit A1, concerning the headship of Raji Akintola was correct. The trial Judge did not direct his mind to this point at all and understandably the Western Court of Appeal did not consider it either as it was not raised before that Court.
(3) If the trial Judge had realised that there was some direct evidence in exhibit A1 that Raji Akintola was head of family, what probative value he would have given that piece of evidence and to what conclusion he would have come on a consideration of such evidence vis-a-vis the other circumstances of the case the Supreme Court was not in a position to know. Consequently the case must go back to the High Court for rehearing with the necessary directions.
Appeal allowed: judgments of High Court and Western Court of Appeal set aside: case remitted to High Court for hearing de novo before another judge.
Cases referred to:
Ekpendu v. Erika (1959) 4 F.S.C. 79.
Adewoyin and ors. v. Adeyeye (1963) 1 All N.L.R. 52.
Alhaji Etiko v. Aroyewun (1959) 4 F.S.C. 120.
Act referred to:
Evidence Act Cap. 52, sections 90:91.
Appeal from the Court of Appeal (West).
Cole (with him, Onalaja) for the appellant.
Chief Okusaga for the respondent.
Coker J.S.C. (delivering the judgment of the court):-The appellant, who was the plaintiff in the Ibadan High Court (Suit No. 1/177/66) has appealed to this Court against the judgment of the Western State Court of Appeal which has reversed the judgment of the High Court, Ibadan, given in her favour. She had sued the defendant, now respondent, for declaration of title to land described on her writ as "plot 51 of Ajengbe Layout, Oke-Ado, Ibadan", damages for trespass and an injunction to restrain the defendant from committing "further trespass on the land." The pleadings filed by and on behalf of the parties show conclusively that both sides agreed that the original owners of the land in dispute were the Ajengbe family of Ibadan but each strove to show that she it was who had validly purchased the interest of the family in the land.
The plaintiff claimed title through one Adebiyi to whom she alleged that one Raji Akintola, as the Mogaji or head of the Ajengbe family, and two other members of that family had sold two plots of land in the Layout one of which is the subject-matter of the present proceedings. At the trial she produced the conveyance executed in favour of her vendor Adebiyi by Raji Akintola and the two other members of the family. The conveyance is dated the 8th October, 1951 and was admitted in evidence as exhibit A1. The defendant on the other hand claimed to have purchased the same plot of land from one Gbadamosi Olawale, the Mogaji of Ajengbe family and other members of the family in 1966. At the trial she produced a deed of conveyance made in her favour by her vendors and dated the 28th January, 1966. Her conveyance was admitted in evidence as exhibit 28. There was apparently no dispute as to the entry of the defendant on the land and indeed it was part of the defendant's case that she had entered upon the land in dispute and commenced building operations thereon by virtue of her conveyance and the title vested in her thereby.
On this state of the pleadings it is obvious that the only issue to be decided was whether the conveyance, exhibit A1, dated the 8th October, 1951, legally and effectively divested the family of their interests in the land and transferred such interests to the plaintiff's vendor, for if it did the family had nothing which they could validly sell to the defendant on the 28th January, 1966 when they executed exhibit 28. The logical consequent of a finding in the positive is that whilst the plaintiff would then be entitled to her claim through Adebiyi, the claim of the defendant to the land must fail. The learned trial Judge clearly adverted his mind to this issue for in his judgment he observed that-
"It is not in dispute that the land in dispute originally belonged to the Ajengbe family, and that the persons who conveyed the land to the parties were members of the family. The point therefore that comes to be decided first is the validity of the two conveyances exhibit A1 from which plaintiff derived her title and exhibit 18 on which the defendant relies.
It is the contention of the defendant that Raji Akintola was not the Magaji of the Ajengbe family in 1951 but Bgadamosi Olawale and that since he did not consent and participate in the sale to Adebiyi the conveyance to the latter is void ab initio and consequently the plaintiff has no title on which to rely."
Finally, on this point the learned trial Judge found as follows-
"On the evidence of Adebiyi 3rd W.P. which I believe, I hold that in 1951 when his conveyance exhibit A1 was executed, Raji Akintola was the head or Mogaji of the family. If after that date there was a change in the headship of the family it would not affect exhibit A1. In fact there is no evidence to that effect."
He therefore held on the authority of Ekpendu v. Erika (1959) 4 F.S.C. 79 that the sale purportedly made with the concurrence of the head of the family was valid and that the title of the plaintiff through Adebiyi was valid as well. The learned trial Judge then gave judgment for the plaintiff for the declaration sought, £50 damages for trespass and an injunction in the terms of the writ.
The defendant appealed against the judgment to be Western State Court or Appeal where her appeal was allowed and the judgment of the learned trial Judge was set aside and plaintiff's case ordered to be dismissed with costs. One of the grounds of appeal argued before the Western State Court of Appeal (and indeed the only one with which we are here concerned) was that there was no evidence given by or on behalf of the plaintiff, as here should have been, to establish that Raji Akintola at the time he sold the land to Adebiyi was the Mogaji of the Ajengbe family. We have already quoted the judge's own statement as to how he came to find that when the conveyance, exhibit A1, was executed in 1951, Raji Akintola was the Mogaji of the family. Dealing with this passage of the judgment of the learned trial Judge, the Western State Court of Appeal, not without justification, observed as follows-
"In our opinion, the burden of proving whether Raji Akintola was the Mogaji at the time Adebiyi bought the land in dispute rested squarely on the plaintiff. The question is, how, if at all, has he sought to discharge this burden? From the evidence adduced, he sought to discharge it-
(a) by producing the conveyance (exhibit A1), the particulars of which, on Adebiyi's admission, were given by Ogunrinde (DW3);
(b) by getting Adebiyi to relate what the vendors, who are all now dead, told him;
(c) by getting Adebiyi to relate what Ogunrinde told him to incorporate in the conveyance (exhibit A1);
(d) by getting Adebiyi to repeat what some people who claimed to be the representative of the family told him.
In our view, all these bits and pieces of evidence are hearsay and could not, in the absence of any proof that the Ajengbe family is now extinct, be considered adequate for discharging this crucial burden."
The Western State Court of Appeal thereafter set aside the judgment given in favour of the plaintiff and dismissed her case. She has now appealed to this Court.
The only ground of substance argued before us relates to the burden of proof. The argument has assumed that the plaintiff had the onus of proving that her vendors including the Mogaji of the family and in any case we consider that it would have been invidious to take a contrary view. See per Ademola, C.J.F. in Adewoyin and ors. v. Adeyeye  1 All N.L.R. 52 at p.60.
It was however contended that there was the direct evidence of Raji Akintola that he was the Mogaji of the family at the material time in the conveyance, exhibit A1 and that section 90 of the Evidence Act, Cap. 62, makes the statement in the introductory recital admissible as such evidence. Section 90 of the Evidence Act, so far as it is material, reads as follows-
"90. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish the fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied-
(a) if the maker of the statement either-
(i) had personal knowledge of the matters dealt with by the statement...
(b) if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead,...
(2) In any civil proceedings, the court may at any state of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without such order having been made, admit such a statement in evidence-
(a) notwithstanding that the maker of the statement is available but is not called as a witness;
The document exhibit A1 was executed by Raji Akintola himself and so the provisions of subsection (4) of section 90 of the Evidence Act are satisfied. The introductory recital in the conveyance exhibit A1 describes the vendors as follows-
"This indenture is made this 8th day of October, 1951, between Raji Akintola, Mogaji Ajenigbe Momodu Ayinla and Salami Adegoke Farmers of Agenigbe's Compound, Isale Osi Ibadan Protectorate of Nigeria for themselves and on behalf of the other members of their family (hereinafter called the Vendors) of the first part...."
Undoubtedly, if Raji Akintola himself were alive he would have been competent to testify that he was the Mogaji of the family in 1951 and that would have been a matter within his personal knowledge. In Alhaji Etiko v. Aroyewun (1959) 4 F.S.C. 120, the Federal Supreme Court discussed the-meaning and effect of section 90 of the Evidence Act, Cap. 62 and at p. 130 of the report the following observations occur:-
"It is quite obvious, in my opinion, that section 90(1) deals with one set of circumstances and section 129 with another, totally different. By virtue of the latter section, the facts stated in, for example, a recital in a document of the age specified, are presumed to be true, except insofar as they may be proved to be inaccurate. In other words, a recital in such a document is prima facie evidence of the facts averred therein. The former section provides that oral evidence is required, plus other conditions, to make admissible as evidence a statement made by a person in a document and tending to establish a fact whereof direct oral evidence would be admissible. To put the distinction another way, section 129 raises a presumption as to the correctness of a recital in a document 20 years old, while section 90(1) provides for the admissibility, on certain conditions being fulfilled, of a statement in a recital no matter what the age of the document containing it."
We are in agreement with learned Counsel for the plaintiff that there was direct evidence in the conveyance, exhibit 1A, concerning the headship of Raji Akintola. The learned trial Judge did not direct his mind to this point at all and understandably the Western State Court of Appeal did not consider it either as it was not raised before that Court. The appeal to the Western State Court of Appeal was however by the defendant and not the plaintiff.
Having then decided that there is such evidence, we are concerned with the nature of the order to make in the circumstance. Section 90 of the Evidence Act does not create a new type of category of evidence and for the avoidance of doubt section 91(1) prescribes as follows:-
"91 (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Ordinance, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts."
The question therefore is-if the learned trial Judge had realised that there was some direct evidence in exhibit 1A that Raji Akintola was head of the family, what probative value would he have given that piece of evidence, not only intrinsically by itself but also in the context of the entire case including the contents of the several documents produced in evidence in this case? We are clearly not in a position to know to what conclusion the learned trial Judge would have come on a consideration of such evidence vis-a-vis the other circumstances of this case and we are of the view therefore that this case must go back to the High Court for re-hearing with the necessary directions.
In the end the appeal succeeds and it is allowed. The judgment of the High Court, Ibadan, in Suit No. 1/177/66, including the order for costs and the judgment of the Western State Court of Appeal in Appeal No. CAW/6/67 including the order for costs are hereby set aside. We order that-
(i) the case be remitted back to the High Court, Ibadan for hearing de novo before another judge subject to the direction that the statement in the introductory recital in exhibit 1A, concerning the headship of Raji Akintola is admissible evidence as to that fact;
(ii) all costs ordered to be paid under the judgments now set aside should, if already paid, be refunded to the party who had paid them;
(iii) the appellant should have her costs in this Court fixed at 83 guineas;
(iv) costs in the court below shall abide the re-hearing.
Appeal allowed: judgment of High Court and Western Court of Appeal set aside: case remitted to High Court for hearing de novo before another judge.