ALHAJI SURAJUDEEN KOLAWOLE YINUSA DAVIES v. ALHAJA WULEMOTU AJIBONA
(1994)LCN/0218(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of March, 1994
CA/L/161/91
RATIO
LAND LAW:WHAT NEEDS TO BE DONE BY A PLAINTIFF WHO SEEKS DECLARATION OF TITLE
The law is that a plaintiff who seeks a declaration of title must prove his root of title. If he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title, or came to have title vested in him. PER UWAIFO, J.C.A.
EVIDENCE: WHETHER A DEFENDANT WHO HAS NOT COUNTERCLAIMED NEEDS TO ANSWER THE PLAINTIFF’S CLAIM WHERE A PRIMA FACIE CASE HAS NOT BEEN MADE
A defendant who has not counterclaimed need not answer such plaintiff’s claim at that stage upon such defective evidence since the plaintiff would not have made out a prima facie case: see Aromire v. Awoyemi (1972) 2 SC 1, (1972) 1 All NLR (Pt. 1) 101. PER UWAIFO, J.C.A.
EVIDENCE: ON WHOM LIES THE PROOF OF TITLE
The burden of proof of title lies on a plaintiff who wants it declared in him. He must succeed on the strength of his case and not on the weakness or no evidence of the defence: see Kodilinye v. Odu (1935)2 WACA 336; Udegbe v. Nwokafor (1963) 1 All NLR 417. If he fails in toto to prove his case, it would be dismissed: see Ejiofor v. Onyekwu (1972) 12 SC 171; Green v. Green (1987) 3 NWLR (Pt. 61) 480. PER UWAIFO, J.C.A.
JUSTICES:
SAMSON ODEMWINGIE UWAIFO Justice of The Court of Appeal of Nigeria
EMMANUEL OLAYINKA AYOOLA Justice of The Court of Appeal of Nigeria
IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
Between
ALHAJI SURAJUDEEN KOLAWOLE YINUSA DAVIES- Appellant
AND
ALHAJA WULEMOTU AJIBONA- Respondent
UWAIFO, J.C.A. (Delivering the Leading Judgment): On 6 June, 1974 the plaintiff took out a writ of summons at the Lagos High Court against the defendant claiming the following reliefs:
“(1) Declaration of title in fee simple against the defendant to the piece or parcel of land, situate lying and being at Apesin Street, known as No. 27/29 Apesin Street, Idi-Araba, Surulere.
(2) Possession of the aforesaid piece or parcel of land.
(3) Injunction to restrain the Defendant, his heir/s, successor/s, his servants and/or assigns from further interfering with the plaintiff’s possessory rights as to the aforesaid land.”
The original plaintiff on record, Raliatu Ajibona, died and was substituted with Alhaja Wulemotu Ajibona. Similarly the original defendant, Alhaji Yinusa Davies, having died was substituted with Surajudeen Kolawole Yinusa Davies. On 24 April, 1990, A. B. Adeniji, J. gave judgment for the plaintiff.
In this appeal against that judgment, the defendant has in his brief of argument raised three issues for determination, namely:
“1. Was the defence based on Limitation Law not made out on the evidence and ought it not to have succeeded and the plaintiff’s claim to title barred and extinguished and her claims dismissed?
2. Ought the equitable defences of laches and acquiescence not to have succeeded and the reliefs claimed by the plaintiff refused and her claims dismissed?
3. Is the judgment not against the weight of evidence?”
The plaintiff in her respondent’s brief of argument set down five issues but I think they are a variant of the above-stated issues. I however reproduce them in view of some argument canvassed by learned counsel for the respondent:
“1. Was the Appellant an adverse possessor within Section 19 of the Limitation Law Cap. 70 Laws of Lagos State.
2. Was the adverse possession of the Appellant (which is denied) known to the Respondent.
3. When should time begin to run against the Respondent
(a) whether before 1970 or
(b) after 1970 when the Respondent found the Appellant on the land.
4. Whether the Respondent is caught by the doctrine of laches and acquiescence.
5. Whether the learned trial Judge correctly identifies (sic) all facts and circumstances he had to take into account in reaching a decision.”
It is plain to me that the respondent’s first three issues are covered by the appellant’s issue 1 while the respondent’s issues 4 and 5 are the same as the appellant’s issues 2 and 3 respectively.
I shall begin with the appellant’s issue 3 which concerns the facts of this case. I find it necessary to do so because of the inadequate attention paid to the pleadings and evidence by the learned trial Judge. The plaintiff’91s claim by the statement of claim is that Aboki family which originally owned a vast area of land conveyed the said vast area by an instrument dated 23 March, 1915, registered as No. 79 at page 301 in volume 92, to Lawrence Antonio Cardoso. I must remark at once that that document of conveyance was not tendered before the court. The plaintiff claims that in 1917, Lawrence Antonio Cardoso sold the said land to Abudu Salami Ajibona for which on 22 January, 1917 and 31 January, 1918, the said Lawrence Antonio Cardoso was paid a total of ?80 duly receipted as per exhibits A and B. It is important to emphasise that the alleged conveyance of 1915 was not tendered to know the extent of the land covered by it. Without it, the land owned by Cardoso would be in the imagination. So will the land he sold to Abudu Salami Ajibona because the first of the two receipts from Cardoso to Ajibona simply reads:
January 22nd 1917
Received from Abudu S. Ajibona Esq. the sum of Fifty pounds on account of land sold to him at Eweagbo as per plan. Balance to be paid four weeks.
Sgd.
?50 -0 -0
Cardoso
The second one reads:
?30
Received from Abudu Salami Ajibona Esq. the sum of (?30) Thirty pounds sterling being balance due for land sold to him at Mushin as per plan delivered to him.
Sgd.
? Cardoso
31/1/18
The two receipts were tendered and admitted as exhibits A and B respectively. The plan referred to in the two receipts is not before the court.
It is also pleaded by the plaintiff that a deed of conveyance dated August 1, 1919 and registered as No. 26 at Page 26 in Volume 131 of the Register of Deeds kept at Lagos Land Registry was executed by Cardoso in favour of Abudu Salami Ajibona. That conveyance was also not produced before the court. It will be seen that there was nothing before the court upon which the plaintiff could rest her claim to all the land over which the defendant built two houses. This becomes very crucial because although the defendant conceded that part of the original ownership of or title to the land in dispute could be traced to Abudu Salami Ajibona, he pleaded the following relevant averments in paragraphs 12, 13, 30, 31, 32, 33, 34 and 35 of the amended statement of defence:
“12. The defendant avers that only a portion of the land occupied by him falls within the Estate of Late Abudu Salami Ajibona.
13. The defendant avers that part of the land claimed by the plaintiff’s falls outside the estate of late Abudu Salami Ajibona.
30. With reference to the portion of the land in possession of the defendant that falls outside the Estate of Late Abudu Salami Ajibona, the defendant avers that he entered upon the said land with the permission and licence of the owner of the property, one Ahaji A. W. Akibu.
31. The said Alhaji A. W. Akibu derived his title to a vast area of land at Apesin Street, Idi-Araba, Mushin in the Lagos State under a Deed of Conveyance dated the 5th day of August, 1959 which is registered as No. 60 at Page 60 Volume 349 of the Deed Register kept in Lagos Land Registry.
32. The defendant avers that by an Indenture dated the 15th day of December, 1961 registered as No. 32 at Page 32 in Volume 392 Paul Cardoso and six other members of Cardoso Family further sold and conveyed the said property to Alhaji Akibu.
33. The defendant avers that Cardoso Family derived title to the land from their father Late Lawrence A. Cardoso who became owner of the land by virtue of a Deed of Conveyance dated the 23rd day of March, 1915 registered as No. 79 at Page 301 in Volume 92 of the Deeds Register kept at Lagos Land Registry.
34. The defendant pleads that in Suit No. SC/358/73 between Alhaji A. W. Akibu and Joseph Opaleye & Anr., the Supreme Court of Nigeria affirms the title of Alhaji A. W. Akibu in the said property.
35. The defendant will at the trial of this action rely on the said judgment in support of his ownership of portion of the land that falls outside the land within the estate of late Abudu Salami Ajibona.”
The conveyances mentioned in paragraphs 31 and 32 above were tendered as exhibits M and M1 respectively while the judgment mentioned in paragraph 34 was tendered as exhibit M2. The one mentioned in paragraph 33 which the plaintiff also pleaded was not tendered just as the plaintiff failed to do so.
It appears however from the available evidence that the root of title of Abudu Salami Ajibona must be centred around the receipts (exhibits A and B) given to him by Lawrence Antonio Cardoso. They do not say much in terms of the size and actual location. There is little doubt that Abudu Salami Ajibona may have exercised dominion and right of ownership over some area of land. But when he died intestate, survived by children, on 10 July, 1934, in Lagos, Letters of Administration dated 21 June, 1935 (exhibit G1) were issued to Ashimi Akinbiyi (younger brother), Jimoh Salami Ajibona (eldest son) and Arthur Akintola Mayne (cousin) over his personal property only as distinguished from his real property. This is apparent on the face of the said Letters of Administration. The unfortunate impression might be created by that fact in the Letters of Administration that he had no real property at his death.
However, persons who knew or thought he had real or landed property purchased from his said Administrators. One such person was Alhaji Mutairu Alabi Onigbanjo: see conveyance dated 19 August, 1946 and registered as NO.4 at Page 4 in volume 743 (exhibit G). The land conveyed therein was sold to the defendant’s father, Amodu Rufai David, by Onigbanjo: see conveyance dated February 1, 1954 and registered as No. 60 at Page 60 in volume 983 (exhibit H1). The two conveyances are subsisting and were not even challenged by the plaintiff. The land therein conveyed is part of the land in dispute as reflected in survey plans No. A8/1959 (exhibit C), No. SEW/L/1464 (exhibit F), No. SEW/1/1464A (exhibit F2) – exhibits F and F2 being litigation plans – No. SEW/L/1389/2 (exhibit F1), being composite plan for litigation purposes (all the said exhibits C, F, F1 and F2 having been tendered by the plaintiff); and survey plans in conveyances admitted as exhibits G and H1 (both tendered by the defendant). Therefore as far as the portion looking almost like a triangle in exhibits C, F, F2, G and H1, but more particularly verged blue in exhibit F1 is concerned, the defendant relies on the title he derived from the plaintiff’s family. The plaintiff has not in any way disproved or successfully contested that fact.
As regards the other portion in dispute, the plaintiff has not shown her root of title to it. The root of title to the said land cannot be found in or traced from exhibits A and B the only documents from Cardoso which were tendered. That is the obvious effect of her failure to tender the conveyance allegedly given to Abudu Salami Ajibona by Lawrence Antonio Cardoso as pleaded in paragraph 7(i) of their amended statement of claim as follows:
“7(i) The said Lawrence Antonio Cardoso also delivered to the said Abudu Salami Ajibona along with the purchase receipt executed Deed of Conveyance dated the 1st day of August, 1919 and registered as No. 26 at Page 26 in volume 131 of the Register of Deeds kept at Lagos Land Registry.”
The law is that a plaintiff who seeks a declaration of title must prove his root of title. If he traces his title to a particular person, it is not enough to stop there. He must go further to prove how that person got his own title, or came to have title vested in him. It was not enough for the plaintiff to lead evidence to the effect that Abudu Salami Ajibona owned the land in dispute. She must prove or show the root of title relied on by Abudu Salami Ajibona and the true extent of the land he acquired. Failure to do this is fatal to her claim for title: see Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393. A defendant who has not counterclaimed need not answer such plaintiff’s claim at that stage upon such defective evidence since the plaintiff would not have made out a prima facie case: see Aromire v. Awoyemi (1972) 2 SC 1, (1972) 1 All NLR (Pt. 1) 101.The burden of proof of title lies on a plaintiff who wants it declared in him. He must succeed on the strength of his case and not on the weakness or no evidence of the defence: see Kodilinye v. Odu (1935)2 WACA 336; Udegbe v. Nwokafor (1963) 1 All NLR 417. If he fails in toto to prove his case, it would be dismissed: see Ejiofor v. Onyekwu (1972) 12 SC 171; Green v. Green (1987) 3 NWLR (Pt. 61) 480.
It was enough that the defendant pleaded that the other portion of land was not part of land owned by Abudu Salami Ajibona and that he had the permission of some other person who asserted ownership to it to build on the land. He gave the name of that person to be Alhaji A. W. Akibu. He tendered that person’s conveyances from the children of Lawrence Antonio Cardoso (exhibits M and M1) and the judgment of the Supreme Court in Akibu’s favour (exhibit M2). He did not need to do more in the circumstances. It was for the plaintiff to disprove him. She failed completely to do so. It must be clearly remembered and taken into account that the plaintiff acknowledged Lawrence Antonio Cardoso as the person from whom her father claimed title. Nothing has been shown to establish that Cardoso gave out all the land that he had to Ajibona or even the extent of what he gave out. Therefore it cannot look improbable that Cardoso’s children still had land from which they gave to Akibu.
I will therefore conclude that the learned trial Judge did not consider the evidence before him properly. He did not appreciate the true nature of the evidence and therefore gave judgment against the weight of the evidence. All he managed to do in considering the evidence was this. He said on the plaintiff’s evidence:
“The plaintiff according to her pleadings and evidence derived her radical title to the land by traditional history traceable to late Abudu Salami Ajibona who was the owner of large area of land at Idi-Araba sold to him by one Lawrence Antonio Cardoso (now deceased) sometime in 1917 see Exhibits ‘A’ and ‘B’. The said Abdul (sic) Salami Ajibona died survived by thirteen (13) children.”
As for the defendant, he said:
“The defendant maintained that he has two houses on the plots of land in dispute. With regard to one of the plots, one Mutairu Onigbanjo bought the said land from Jimoh Salami Ajibona … one of the children and administrators of the estate of the late Abudu Salami Ajibona. Upon the death of Onigbanjo his two children later sold and conveyed the plot of land to one Amodu Rufai Davies … father of the then defendant. Amodu was in possession of the land until his death and the defendant later erected a building on it. The said plot of land devolved on him and the other issue of Amodu. As regards the other portion of land on which he also erected a building and which is outside the Ajibona’s land it was one Alhaji Akibu who put him into possession of it. The late Cardoso sold and conveyed the land in question to Alhaji Akibu. The defendant’s father died in 1953 and thereafter he prepared a building plan and later erected the building. That was between 1954 and upon completion moved into it.”
Without examining the evidence and tracing the root of title pleaded by the plaintiff to its origin, the learned trial Judge simply said:
“The evidence of traditional history led for the plaintiffs and the supporting Exhibits tendered by the witnesses were not effectively discharged by the defendant and I prefer it to that of the defendant. I accept the traditional evidence led for the plaintiffs in this case. I hold that it is enough ‘eo ipso’ for their claim for Declaration to be granted.”
I cannot pretend to understand the learned trial Judge in his reference to traditional history (when there was none, only evidence of purchase backed by unreliable or insufficient documents); what he expected the defendant to ‘discharge; and what was ‘eo ipso’ adequate evidence to support the declaration sought.
I think it ought to be pointed out with renewed emphasis that the learned trial Judge erroneously regarded the evidence led by the plaintiff as evidence of traditional history. Traditional history was not pleaded by the plaintiff and at no point did she rely on it. Traditional history is based on hearsay extending beyond human memory. It is narrated by oral evidence handed down from generation to generation. If it is in respect of ownership of land the relevant family ancestry or community heads, as the case may be, through whom the land has devolved must be pleaded and evidence clearly led in support: see Akinloye v. Eyiyola (1968) NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 424-425. But where the root of title to land is derived through purchase that is no longer an issue of traditional evidence. It is the fact of purchase that must be pleaded and proved. If the purchase is documented, the document becomes the title to be examined and how the vendor’s title was derived. The claim to title will fail or succeed upon the strength of the fact of the purchase or grant thus pleaded. If the grant is proved and a good title is thereby established, the plaintiff succeeds. But if the plaintiff produces a document in support of the grant or purchase and this is found to be inadequate, then the plaintiff fails: see Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 782-783.The learned trial Judge, with due respect, did not look at the evidence before him but rather assumed the validity of the plaintiff’s title. Hence he went further to say:
“I hold that the plaintiffs have better title to the land in dispute, and that the defendant is on the land without the permission of the plaintiffs, and the claim by the plaintiffs for a declaration of title against the defendant has been established and therefore grant the declaration.”
It is fair to say in the circumstances that this finding as the one before it is perverse and liable to be disregarded by an appellate court: see Omoregbe v. Edo (1971) 1 All NLR 282 at 289; Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35 at 41; Ozibe v. Aigbe (1977) 7 S.C. 1 at 11; Oladehin v. Continental Textile Mills Ltd. (1978) 2 SC 23 at 28; Okolo v. Uzoka (1978) 4 SC 77 at 86; Egonu v. Egonu (1978) 11-12 SC 111 at 129; Atolagbe v. Shorun (1985) 4 S.C. 250 at 285; (1985) 1 NWLR (Pt. 2) 360 at 376. In Macaulay v. Tukuru (1881-1911) 1 NLR 35, the held not as to what was held in that judgment, which I think correctly summarises the principle therein laid down, read along with the extracts of judgments of Lindley, M. R., in Coghlan v. Cumberland (1898) 1 Ch. 704 and Lord Esher, M.R., in Colonial Security Trust Co. Ltd. v. Massey (1896) 1 Q. B. D. 38 therein considered, reads:
“When a judgment is appealed from as being against the weight of evidence the Appeal Court must make up its mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it, if, one full consideration, it comes to the conclusion that the judgment is wrong.”
I have done that in the present case and have come to the inevitable conclusion that without overruling the finding of the learned trial Judge and setting his judgment aside, I would have helped in perpetuating injustice. This is what a court of law properly approached cannot and must not allow to happen.
I shall now consider the issue of the Limitation Law and that of laches and acquiescence as they apply to the present case. A successful plea of the Limitation Law to an action by a person to recover land extinguishes the title of that person to the land. This is provided by section 21 of the Limitation Law (Cap. 70) Vol. IV, Laws of the Lagos State of Nigeria, 1973. A State authority has 20 years within which to bring such an action while other persons have 12 years: see Section 16. Section 17 provides:
“17. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
It must be clear that the person in possession has been dispossessed or has discontinued his possession before the limitation period can begin to run.
I think there is an element of knowledge or a state of mind involved in respect of the person dispossessed or who has discontinued his possession. In other words, he must be aware that he has been dispossessed by an adverse possessor: or in the case of discontinuance he must do so with the intention to discontinue, whereof the other party is able to take adverse possession. It has been held that mere non-user does not amount to discontinuance: see Littledale v. Liverpool College (1900) 1 Ch. 19 at 22. There must be an abandonment of the actual and legal possession of the land: see Norton v. London and North Western Railway Co. (1879- 80) 13 Ch. D. 268 at 273. In the case of dispossession, Lord Denning M.R. said in Wallis’s Ltd. v. Shell-Mex and BP (1974) 3 All E. R. 575 at 580 that: “There must be something in the nature of an ouster of the true owner by the wrongful possessor.” In my view, there can be no ouster of the true owner or land unless and until he becomes aware of the act of the wrongful possessor which constitutes an ouster.
In limitation action as it relates to land and in laches and acquiescence, there is thus the common element of knowledge. But there are these essential distinguishing factors: (a) In limitation of action, the plaintiff need not have encouraged the defendant to continue in his error that he was the owner of the land in dispute over which he expended money. Whereas that is the basis of acquiescence which equity will hold against the true owner? (b) The prescribed period of limitation must elapse for it to extinguish the title of the true owner whereas laches has an elastic period and acquiescence considers the attitude of the true owner, both depending on the circumstances of the case.
In the present case, there is evidence that the defendant had lived in his house on the land for over twelve years before action brought: see exhibits K. N84, N85, N92, N93 and N94. However, although it is quite amazing that the plaintiff claims not to have known of this till about 1970 (i.e. four years before this action was instituted), there is no evidence to show that she knew or ought to have known. I have also perused the printed record and cannot find that the plaintiff can be said to have discontinued possession (in the true sense) of the land in dispute at any time (assuming, or course, that she was in total possession – a situation that can hardly be conceived having regard to the evidence of title already considered in this judgment). It cannot also be said on that hypothesis that she was aware that she had been dispossessed by an adverse possessor until about 1970.
I must say here that the submission of learned counsel for the plaintiff/respondent that adverse possession can only relate to the act of a squatter is a misconception. A squatter’s possession is admittedly the most obvious of adverse possession. But every possession which is against the interest of the true owner and not with his ultimate permission is adverse. A defendant may dispossess another relying on a document of title. The document may be valid or defective. But if he remains in possession for up to twelve years before the plaintiff he dispossessed or his successor-in-title brings action, the limitation period can be pleaded by the defendant. Such a defendant is certainly not a squatter. Other situations of adverse possession of some person in whose favour the period of limitation can run are available. Occupation of land as a licensee is not adverse possession: see Hughes v. Griffin (1969) 1 All E. R. 460. But it has been held that where a purchaser in possession of the land sold pays the purchase price but no transfer is made, his possession becomes adverse to that of the vendor who becomes a bare trustee for him, and the vendor’s title will be extinguished after twelve years: see Bridges v. Mees (1957) 2 All E.R. 577.
In the circumstances, I do not think the limitation period operated against the present plaintiff. But notwithstanding that, I am satisfied that she failed to prove her claim and her action ought to have been dismissed. I therefore allow this appeal and set aside the judgment of the lower court together with the order for costs. The plaintiff’s action is dismissed. I assess costs at N600.00 in the Court below and N1, 200.00 in this Court in favour of the defendant/appellant.
AYOOLA, J.C.A: I have had the privilege of reading in advance the judgment delivered by my learned brother Uwaifo, J.C.A. I agree that this appeal should be allowed.
Although the appellant had formulated as one of the issues for determination the question whether the judgment was not against the weight of evidence, he has dealt quite scantily with that issue in his brief of argument, arguing vaguely that the defendant gave relevant and cogent evidence supporting every paragraph of his defence and that the evidence supported by documentary evidence of unchallenged authenticity ought in the circumstances to have been accepted in toto. He had ignored the plaintiff’s case and whatever deficiencies and gaps there might be in the plaintiff’s case. When an issue is raised on an appeal on the question whether or not the decision is against the weight of evidence, that issue is not properly argued in the brief by the appellant merely stating that the defendant gave evidence supporting his defence and merely repeating that the decisions is against the weight of evidence as has been done in this case, without particularising in what regard it is contended that the decision is against the weight of evidence. Merely to argue the issue in such vague terms is to lure the court into arguing the appellant’s appeal for him. In our system of justice, that is not the role of the court. It is not surprising that in this case, the plaintiff who should have raised an objection contended herself to making a reply also in general and vague terms as the defendant had done. Be that as it may, as has been amply demonstrated in the judgment of Uwaifo, J.C.A. the plaintiff’s claim should have been dismissed on the ground that she has not established her title to the land in dispute.
However, as the issue which was well articulated in the briefs of argument is whether or not the action is statute-barred. I shall consider whether on the facts such plea ought not to have succeeded. The defence pleaded the limitation Law of Lagos State as barring the plaintiff’s claim.
On the facts of this case, I am of the opinion that the plea should succeed. By virtue of the Limitation Law (Cap. 70) Laws of the Lagos State of Nigeria 1973 no action shall be brought by a person to recover any land after the expiration of twelve years from the date on which the right of action accrued to the plaintiff or to the person through whom he claims. (See Section 16). To make the position clearer, it was enacted in Section 17 the point in time at which the right of action shall be deemed to have accrued in the following terms:
“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has “while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
What is needed for the limitation period to commence is absence of possession by the plaintiff and possession by the defendant. Right of action accrues once possession has been lost to the other party.
In this case there cannot be any doubt on the evidence but that the defendant had been in possession of the land in dispute for over twelve years, before this action was brought. There is overwhelming evidence oral and documentary in support of that conclusion. The evidence, as I apprehend it, points to a discontinuance of possession by the plaintiff albeit because it was thought the land had been compulsorily acquired by the Government. However that may be, there can be no gainsaying the fact that earlier than 1957 when the defendant’s father commenced a building on the land and since 1957 when two buildings had been erected on the land in dispute by the defendant’s rather, the plaintiff had lost possession on the land. The learned trial Judge believed the evidence that the plaintiff was not aware of the presence of the defendant on the land and the building on it until sometime after 1972. Apparently he considered the question of the plaintiff’s knowledge in the context of the equitably defences of laches and acquiescence and not in regard to a plea that the action is statute – barred.
On this appeal, the plaintiff has endeavoured to show that knowledge by the plaintiff of the defendant’s adverse possession of the land is essential to the success of a plea of limitation. He relied heavily on the note on adverse possession in Black’s Law Dictionary (5th Edn), where at page 39 this passage occurs:-
“Adverse possession depends on intent of occupant to claim and hold real property in opposition to all the world, Sertie v. Roberts, 171 or 121, 136 p. 29 248”
To that passage no exception can be taken but it went on to state that adverse possession also embodies the idea
“that owner of or persons interested in property have knowledge of the assertion of ownership by the occupant, Field v. Sosby. Tex. Civ. App. 226 SW 2d 484, 486”
It is this latter passage that cannot be accepted as stating a general principle. However, the note stated further:-
“Adverse possession consists of actual possession with intent to hold solely for possessor to exclusion of others and is denoted by exercise of acts of dominion over law including making ordinary use and taking ordinary profits of which land is susceptible in its present state. U.S. v. Chatham, D.C.N.C. 208 F. supp. 220, 226.”
The last statement represents more clearly the law. If the former statement in Black’s Law Dictionary that adverse possession “also embodies the idea that owner of or persons interested in property have knowledge of the assertion of ownership by the occupant” is meant as a statement of general principle, then I am of the opinion that such wide proposition whatever view it represents of American law, does not represent the law applicable in this jurisdiction.
The law in this jurisdiction which follows the English law on the topic is that adverse possession is established when the defendant interferes with the plaintiff’s land and proves some act which is inconsistent with the possession of the plaintiff or his enjoyment of it. An obvious case is where the defendant, a stranger, has occupied the land of the plaintiff and built on it without the permission or licence of the plaintiff. By doing so the defendant would have put the plaintiff out of possession and the actual knowledge of the plaintiff that he has been so put out of possession is immaterial to the adverse nature of the defendant’s possession. The immateriality of knowledge is well illustrated by the case of Rains v. Buxton (1880) 14Ch D 537) where it was held that under the English Statute of Limitation, the right to land is extinguished, in the absence of fraud, after a discontinuance of possession for the period enacted in the statute, although the owner so discontinuing possession was unaware that adverse possession had been taken, In that case Fry J said at p. 539:
“It appears to me that when actual possession by the plaintiff’s predecessors in title commenced, the Defendants’ predecessor in title must be deemed either to have been dispossessed or to have discontinued the possession. In my view, the difference between dispossession and the discontinuance of possession might be expressed in this way – the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed into possession by other persons. Whichever he true view in the case, there being an actual possession for upwards of sixty years, it appears to me the statute clearly applies”. (Emphasis mine).
As to the contention that no possession operates under the statute to give a title unless that possession by the person claiming title has been in consequence of the negligence or default of the other, he said:-
“But to come to such a conclusion as that would be to import a new and very onerous condition into the statute.”
In my view:
It must be borne in mind that the plea of limitation is founded on statute which itself has clearly prescribed the circumstances in which the statutory period is extended in Part 3 of the law, Apart from acknowledgment, there are three such, namely:
(i) Where the person entitled to recover land is under disability (S 36);
(ii) where the cause of action has been fraudulently concealed (S. 58); and
(iii) where a person seeks relief from the consequence of mistake (S 59),
Of these three only in cases of fraudulent concealment of right of action can knowledge be said to be relevant. Knowledge or absence of knowledge only becomes a material issue if the plaintiff alleges fraudulent concealment of a right of action. As to what would constitute fraudulent concealment, the law has been succinctly stated in Halsbury’s Laws of England (3rd Edn) para, 631 as follows:”
In order to constitute such fraudulent concealment as would; in equity; take a case out of the statutes of limitation, it was not enough that there should be merely a tortious act unknown to the injured party, or enjoyment of property without title, while the rightful owner was ignorant of his right: there had to be some abuse of a confidential position, some intention at imposition, or some deliberate concealment of facts.”
(Emphasis mine).
More directly, it has been held that to enter land without the knowledge of the owner does not constitute concealed fraud (see Rains v. Buxton (supra).
Care must be taken not to confuse the question whether the acts of the defendant on the land is mere user of the land not inconsistent with a continuing possession of the plaintiff thereof. Where the user by the defendant of the land is equivocal, the question whether it is sufficient to amount to a dispossession of the plaintiff depends neither on the knowledge of the plaintiff nor even on his subjective opinion but on an objective assessment of the facts by the court. Even though judicial policy tends to interprete the word ‘possession’ narrowly to make it difficult for an incroacher or squatter to acquire title through this operation of a limitation enactment. (See per Ormrodl J in Wallis’s Caytor Bay Holiday Camp Ltd. v. Shell-Mex und B.P. Ltd. (1974) 3 All E.R. 575, 589 once, however, the overt acts of the incroacher or squatter are clearly inconsistent with the title of the owner, it matters not in determining whether he has been dispossessed, or whether time has begun to run, that the owner, in the absence of a fraudulent concealment of a right of action, is ignorant of those acts. All that the defendant need show is that she was in possession of the land for the statutory period for the Limitation Law to take effect.
In this case no question of fraudulent concealment arises. The acts of the defendant on the land are open and unequivocal in its inconsistency with the title of the plaintiff or possession of the land by the plaintiff. They constitute adverse possession. For my part, I feel no hesitation in rejecting the plaintiff’s contention that the defendant must prove plaintiff’s knowledge of such adverse possession for time to start running or that the ignorance of the plaintiff of the defendant’s presence on the land makes any difference to the success of the plea.
If the law makers had thought it fit to include knowledge as a condition of accrual of right of action or as circumstance for postponing the running of time, they would have so stated. As the law stands, I am unable to find anything in the statute or in general law to support the respondent’s contention. I hold that the plaintiffs claim is statute-barred and should have been dismissed on that score as well.
In the result, I too would allow this appeal and set aside the judgment of the court below together with the order for costs. I too would dismiss the plaintiff’s action. I abide by the order for costs made by Uwaifo, J.C.A.
PATS-ACHOLONU, J.C.A: I have had the priviledge of reading in draft the leading judgment of my learned brother Uwaifo J.C.A. and I agree with him, I would however wish to revisit and emphasise on one or two points in this case.
An interesting feature of this case which is really galling is that while the plaintiff in his pleadings made mention of two earlier conveyances said to have been made on 25/3/12 and registered as No. 79 of Page 301 Volume 92 in the land’s Registry and the other made in 1/8/19 and registered as No. 76 page 26 on Vol. 131 of the lands Registry Lagos, none of these documents to which she relied on to establish her claim was tendered. The defendant whose duty it is to really defend the action and who should not be expected to carry the same standard of proof as the plaintiff tendered two documents which were averred in the statement of defence. The plaintiff instead tendered 2 receipts the worth of which is in doubt.
There are three factors latent in this state of affair in so far as it concerns the plaintiff
(a) Having relied on some conveyances executed by his predecessors in title, and not tendering them, the substance of the case he is trying to establish inevitably takes a plunge and is dipped.
(b) It raises a foreboding scepter of not only incongruity but abysmal ignorance of what she has to establish to prove her case.
(c) The bedrock of her case becomes automatically porous. By tendering exhibits A & B the plaintiff is understood to send a message that in actual fact she based the root of her title to those exhibits-bare receipts unaccompanied by survey plan clearly showing the area of land affected by those conveyance. It would have been otherwise if the plaintiff had not only exhibited the two receipts for whatever they are worth but tendered the two deeds of conveyances she mentioned in her pleadings. It is a trite law that it is incumbent on the plaintiff to show by a survey plan the area of land over which he is asking the court to exercise its powers of discretion where the identity of the land is in issue and she must restate the history of the devolution of title or show by documentary evidence how she came to the land, for it as was stated in Elias v. Chief Omo-Bare (1982) 5 S.C. 25 at 47 by the Supreme Court in restating the law as regards to proof of title to land in a declaration action that –
“Civil cases as is well known are decided on a preponderance of evidence. This is even more so in a case where a plaintiff seeks to be awarded a discretionary relief of a declaration of title to land. The burden in such a case which rests squarely on the plaintiff is a heavy one. For it has as far back as 1955 been laid down as a matter of law that a plaintiff seeking a declaration of title to land must establish to the satisfaction of the court by the evidence brought by him that he is entitled to such a declaration. The plaintiff must rely on the strength of his own case and not on the weakness of the case of the defendant whose duty is merely to defend. If the onus of proof is not discharged the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”
Of course there are exceptions to this principle of law as stated in Akinola v. Oluwo (1962) 1 A.N.L.R. (Pt. 11) 224 at 225, (1962) 1 SCNLR 352, Nwagbogu v. Ibeziako (1972) 2 (Pt. 1) ECSLR 335 at 338.
In Madam Arase v. Peter U. Arase (1981) 5 S.C. 33 at 35 Idigbe J.S.C., said:
“It ought to be borne in mind always that at common law where questions of titles to land arise in litigation the court is concerned with the relative strength of the title proved by the rival claimants. If party A can prove a better title than party B, then party A is entitled to succeed.” See also the judgment of Lord Diplock in Ocean Estates Ltd. v. Norman Pinder (1969) 2 A. C. 19 at 24-25.
It is therefore difficult to understand the rationale for the holding of the Judge to this effect, “evidence of traditional history led for the plaintiffs and the supporting Exhibits tendered by the witnesses were not effectively discharged by the defendant and I prefer it to that of the defendant. I accept the traditional evidence led for the plaintiffs in this case.” The court below has by this stance made the defendant to carry the burden of proof, and has not assiduously appraised the evidence led; a state of affair which leads me to conclude that the decision arrived at by this method of analysis is otiose and perverse. In such circumstances this court would inevitably have to intervene. In Fashanu v. Adekoya (1974) 6 S.C. p. 83 Coker J.S.C. said as follows:
“The appraisal of oral evidence and the ascription of probative value, to such evidence is the primary duty of a tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court has made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts … or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”
In ordinary civil action, the fact in contention is usually as always proved on preponderance of evidence: i.e. – such preponderance possessing qualities of both credibility and competence. In giving judgment after a full trial, on the merits of the case a court has greater freedom to choose between conflicting versions as to facts and between varying degrees of inferences from controverted or unchallenged facts and it ought not usually concern itself with theoretical concepts of the burden of proof but is governed and should be guided at all times only by preponderance rule. That is to say that within the garbled and the twining maze of evidence placed before it, the court should be able to wade through the labyrinth of these facts to find out how the balance of evidence tilts.
The plaintiff’s case here has been shoddy as every foot she steps forward is in wrong direction. My learned brother Lord Uwaifo J.C.A. has covered all the necessary grounds in this case, and I have not much to add. I too will allow the appeal and I abide by the order made thereunder in that leading judgment.
Appeal allowed
Appearances
H.A. Lardner, Esq. SAN (with him, P.O. Jimoh-Lasisi, Esq.) For Appellant
