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In The Supreme Court of Nigeria

On Friday, the 23rd day of March, 1990  

SC 166/1986

 

Before Their Lordships  

 

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

    

 

Between

 

Abiodun Adelaja

.......

Applicant

 

And

 

Olatunde Fanoiki & Anor.

.......

Respondent

   

 

Judgement of the Court

Delivered by

Adolphus Godwin Karibi-Whyte. J.S.C.

 

 

This is an appeal to this Court from the judgment of the Court of Appeal Division, Ibadan, against the dismissal of the appeal of the Appellants against the judgment of Olowofeyeku, J., of the High Court of Oyo State, sitting at Ibadan. Appellants were the Plaintiffs in the Court of trial.

 

Plaintiff, Abiodun Adelaja, had brought this action as Attorney for Victor Oludemi, against Olatunde Fanoiki, as the Defendant. The facts of the case are quite simple and not complicated. The action as endorsed on the writ of summons is for

 

(1)    Declaration of title to all that piece or parcel of land, lying and being and situate at Tabontabon Village, Oke-Ado, Ibadan, Oyo State of Nigeria and shown on the plan attached to the Deed of conveyance dated the 16th day of June, 1958 and registered as No.19 at page 19 in Volume 254 of the Lands Registry in the Office at Ibadan.

 

(2)    N500.00 (Five Hundred Naira) damages for trespass committed in 1972 by the Defendants their Agents and/or servants on the said land belonging to and in possession of the Plaintiffs situate lying and being at Tabontabon Village, Oke-Ado, Ibadan Oyo State of Nigeria and as described in the said Deed of Conveyance recited above.

 

(3)    Injunction restraining the Defendants agents and/or servants from further trespassing on the said land or any portion thereof.

 

On the application of the Defendant, the second and third defendants were joined by Order of Court. After pleadings had been settled the 3rd Defendant was reported to have died and Plaintiff withdrew the action against the 3rd Defendant who was accordingly struck out of the action. After due trial of the action, Plaintiffs claim against the first Defendant was dismissed. He was non-suited against the second Defendant.

 

As against the 1st Defendant, the learned trial Judge held that Plaintiff having failed to prove due execution of the conveyance (Exhibit "A") to him by the grantors, has failed to discharge the onus on him that  "Exhibit A" has divested the Alade family of the interest alleged conveyed. He therefore cannot be entitled to a declaration of title as claimed or other interest which by section 40 of the Land Use Decree No.6 of 1978 he is entitled to have if the claim in declaration of title were to be established. Accordingly the claims for damages for trespass and injunction sought failed.

 

As against the second Defendant the trial Judge heard submissions whether there should be an order for a non-suit. After observing that second Defendant was joined by Order of Court at the instance of the first Defendant and relying on Craig v. Craig (1966)1 All N.L.R. 173, held.

 

If the plaintiff is given a second chance to prove his case and succeeds the 2nd defendant would certainly not be wronged because such would establish that he had already divested himself to the plaintiff of right or title to the balance of the land, being 77% of the subject matter of plaintiff's claim, and that would prevent him from taking an unfair advantage due to the lapse of the plaintiff in this case - See p.65 lines 27-35).

 

Plaintiff appealed to the Court of Appeal against the decision as a whole Eighteen grounds of appeal were filed. However only eleven were argued before the court. Their Lordships in the Court of Appeal in dismissing the appeal agreed with the learned trial judge and held that Appellant had failed to prove due execution of the Deed of Conveyance, Exhibit A on which he relied. Accordingly the Alade family was in a position to sell the area in dispute to the 1st Defendant ti respondent-since its alleged divestiture to the Plaintiff/Appellant over a decade earlier had not been established.

 

On the issue whether the pleadings were in a confused state, the Court of Appeal held that issues were properly joined at the close of pleadings and judgment was delivered on the issues as joined. It was held that since the amendment of the statement of claim did not raise any new issues requiring amendment of the statement of defence, amendment of the statement of defence was not necessary.

 

The second Respondent did not appeal against the Order of non-suit against him.

 

Appellant has further appealed the adverse decision against him

 

Appellant filed only one ground of appeal within time. With leave of the Court, extension of time to file four additional grounds of appeal was granted. The grounds of appeal excluding the particulars are as follows

 

Original

 

(1)    The Court erred in law when it held:

 

To qualify for the presumption the document containing the recitals etc. in which is sought to be relied upon must be twenty years old, calculated from the ''date of contract.

 

When all that is required to qualify the presumption contemplated by section 129 of the Evidence Act, the Deed must be 20 years old "at" the date of contract calculated on the face of the deed without any reference to the date of the proceedings .......

 

Additional Grounds of Appeal, 

 

Ground  1.

 

The learned Justices of Appeal erred in law and on fact when they failed to discharge their judicial duty of considering and pronouncing on issues raised on pleadings, evidence and law before them and thus upholding the findings of facts and judgment of the Lower Court to the detriment of the Appellant.

 

Ground 2.

 

The learned Justices of Appeal erred in Law when they said no evidence was in fact led in proof of execution besides the ipse dixit of the Plaintiff (appellant) when they failed to evaluate at all the issue of execution and registration of appeallant's conveyance admitted as Exhibit "A" and thereby making no finding on that issue to the detriment of the Appellant

 

Ground 3.

 

The learned Justices of Appeal erred in law when they failed to consider and evaluate the claim of appellant or the defence of the respondents and thereby coming to the wrong decision

 

Ground 4.

 

The learned Justices of Court of Appeal, erred in law and on facts to have, as the lower court had done, dismissed the Appellants case against the First Respondent but non-suiting the Appellant against the Second Respondent where there is sufficient evidence entitling the Appellant to the judgment of the Lower Court as well as to the Court of Appeal

Counsel filed their briefs of argument which they relied upon at the hearing of the Appeal. Counsel have framed issues for determination differently, although whilst appellant is challenging respondent is defending the judgment of the Court of Appeal.

 

It is now fairly well settled that the issues for determination in the appeal formulated must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal filed. Since they arise from the grounds of appeal, the issues ought to take account of the grounds of appeal and cannot raise issues outside their contemplation. It is therefore not usually envisaged that the issues for determination will be more in number than the grounds of appeal on which they are based. Since the issues for determination are highlights of the grounds of appeal, they usually are framed in terms of related grounds of appeal supporting the same issue. Hence the issues for determination are usually less but never more than the number of the grounds of appeal filed.

 

Mr. Odeleye, counsel to the appellants has indicated seven issues for determination as arising from the five grounds of appeal filed on behalf of the Appellant. For the sake of clarity I reproduce here below the issues for determination as formulated by Counsel to the Appellant. I have already set out in this judgment the grounds of appeal relied upon.

 

Issues for determination -

 

(3.01)       Whether the Appellant can maintain action against the first Respondent, and if so, whether the Appellant has proved his case to entitle him to judgment and not to the dismissal of his suit against the First Respondent and Non-Suiting him against the Second Respondent.

 

(3.02)       Whether failure on the part of the Appellant to prove that Exhibit "A" is 20 years old, coupled with Appellant's inadvertent omission to comply with Section 99 of the Evidence Act would be absolutely fatal to Plaintiff's case when documents executed by illiterate grantor/grantors and intended to be and was being relied on by the Appellant had complied strictly with Section 8 of the Land Instruments Registration Law of Oyo State.

 

(3.03)       Whether having regards to Section 151 of the Property and Conveyancing Law Cap. 99 of Oyo State, the Court of Appeal had examined at all issues of priority among competing registered instruments, proper attestation and presumption of due executants raised by Pleadings, Evidence and Exhibits and had sufficiently scrutinised such issues, evidence and exhibits before them before affirming the judgment of the lower court.

 

(3.04)       Whether having regards to Section 193 of the Property and Conveyancing Law Cap. 99 of Oyo State, Pleadings and the totality of evidence given by the First Respondent the first Respondent was/is not deemed to have sufficient and actual Notice of previous dealing with the Plaintiff with the land in dispute.

 

(3.05)       Whether the Appellant and the First Respondent can be concurrently in possession of the same land in dispute when they were neither joint tenants nor tenants in common.

 

(3.06)       Whether in view of Paragraphs 9, 10, 11 and 12 respectively of the Plaintiff's Amended Statement of Claim, paragraphs 5, 6, and 10 respectively of the First Defendant's Statement of Defence and paragraph 1of the Second and Third Defendant's Statement of Defence, the Commission of Crime which requires strict proof is or is not directly in issue in the Appeal.

 

(3.07)        Whether the failure of the Second Respondent, even though served with appellant's Brief or being represented on Appeal is not a clear evidence from which collusion between the first and the Second Respondents, could be reasonably inferred.

 

It seems to me fairly easy on examination of the grounds of appeal to come to the conclusion that the issues formulated in 3.03, 3.04, 3.05, 3.06, 3.07 are not issues which arise from the grounds of appeal filed. No ground of appeal calls for their determination, and indeed the judgment of the court below was not concerned with any of the issues and many pronouncements on them. It may be necessary in the determination of the issues on the grounds of appeal to consider any of the issues raised as a subsidiary issue relevant to the determination of the substantive issue raised in the ground of appeal. This by itself does not elevate a subsidiary issue to a substantive issue.

 

All the grounds of appeal filed by Appellant were based on the judgment of the court below dismissing the appeal of the Plaintiffs/Appellant for failing to prove due execution of the Conveyance (Exhibit "A") on which they relied for their claim to title. A fortiori, the issues for determination should be formulated around the errors of the court below in coming to their conclusion.

 

I think I will accept the formulation of the issues for determination as in 1st Respondent's brief where it was stated as follows-

 

(i)     Did Exhibit A that is deed of Conveyance dated 16th June, 1958 and registered as 19/19/254, Ibadan pass any property of 2nd Respondent family that is Alade Family to Victor Oludemi represented by the appellant?

 

(ii)    Was the Appellant entitled to the presumption arising from Sec. 122 of the Evidence Act?

 

(iii)   Was Sec. 129 of the Evidence Act properly interpreted by the Court of Appeal as contemplated by the section?"

 

These three issues accurately accentuate the issues involved in the determination of the question of the position of the Conveyance, Exhibit "A", and the title of Victor Oludemi, in the claims of the Plaintiff/Appellant. They cover a substantial part of the grounds of appeal filed by the Appellant. I must however point out that ground 4 of the additional grounds of appeal which complained about error in non-suiting the 2nd Respondent is not included in the above three issues. I will therefore accordingly add the fourth issue, this is

 

(iv)   Whether the Plaintiff/Appellant is not entitled to judgment as claimed against the 2nd Respondent against who there was an order for non-suit, and against the 1st Respondent in respect of who Plaintiff's claim was dismissed.

 

I shall in my judgment in this appeal rely on these four issues, which I think represent the issues relevant to the determination of the errors alleged in the grounds of appeal. It seems to me that the trial Judge as well as the Court below relied entirely on proof of due execution of Exhibit A, the conveyance to Victor Oludemi, in the determination of the claims before them. This is expressed by the Court below in their judgment when they said:

 

The only question that is left to be decided, as posed earlier, is whether the appellant has succeeded in discharging the onus on him to prove due execution of the document Exhibit A. As correctly found by the trial Judge, in view of the denial by at least two of the signatories thereto by the pleadings, and to confirmation of such denial in evidence on oath by one of them-the second defendant/respondent, of the contention of the plaintiff that they executed Exhibit A; in order to prove execution the plaintiff/appellant must fall back on the provisions of section 99 of the Evidence Act.........

 

After setting out the provisions of Section 99 of the Evidence Act the Court below went on to observe that plaintiff merely relied on his ipse dixit for proof of due execution and called no evidence, and laid the blame for such a lapse on Counsel. The Court then concluded at p.121

 

I agree with the trial Judge as to the consequence of this failure as postulated by him, to wit, that the plaintiff's claim must fail because the Alade family was in a position to sell the area of the land in dispute to the 1st defendant/respondent, its alleged divestiture thereof to the plaintiff over a decade earlier not having been established.

 

The substance of this contention is that if Plaintiff/Appellant had proved due execution of Exhibit A such proof would have been sufficient to divest the entire interest of the Alade Family, represented by the 2nd D)efendant/ Respondent in the land in dispute. Accordingly, having not proved due execution of Exhibit "A" there was still interest of the Alade Family in the land in dispute which they could transfer and did transfer to the 1st Respondent.

 

The contention is predicated on the following findings - First, that both Victor Oludemi, who Plaintiff represents, and Olatunde Fanoiki, the 1st Defendant/respondent, trace their title to the Alade Family. Secondly, both of them rely on conveyances, i.e. Exhibit "A" for Victor Olundemi, and Exhibits E and F for Olatunde Fanoiki, executed on behalf of the Alade Family by their representatives in the persons of the 2nd and 3rd defendants/respondents. Thirdly, that Exhibits "A", "E' '2 are registered under the Lands Instruments Registration Law. Fourthly, that Plaintiff established that he was at all times after the execution of the deed in possession of the land in dispute. Fifthly, the first Defendant/Respondent started and completed his building on the land in dispute with actual knowledge that Plaintiff was claiming to be the owner. Finally, the 2nd and 3rd defendants denied selling any land to Victor Oludemi, or the execution of any conveyance in his favour. In fact 2nd DefendantRespondent confirmed on oath and denied knowing Victor Oludemi.

 

Mr. Odeleye for the Appellant has submitted relying on Kodilinye V. Mbanefo Odu (1935) 2 W.A.C.A. 336, that where two contesting parties claim to derive title from a common grantor, there will be judgment for the party, who successfully traces his title to that common grantor. Whilst I accept this proposition, the better formulation is as follows. Where both parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the principle has long been established that the later in time of the two or more persons to obtain a grant cannot maintain an action against the person who first obtained a grant. This is because the grantor having divested himself of his title in respect of the disputed piece of land has nothing left to convey to a subsequent purchaser. A grantor can only convey what he has -The principle is Nemo dat quod no habet - See Boulos v. Odunsi (1959) S.C.N.L.R. 591; Coker v. Animashawun (1960) L.L.R. 71; Adamo Akeju, Chief Obanikoro v. Chief Suenu, Alimi Kuti & Chief Oluwa (1925) 6 N.L.R. 87. Mr. Odeleye submitted that Victor Oludemi has traced his title to the Alade family by virtue of the Conveyance Exhibit "A" made on the 18th June, 1958 and registered as No.19 at page 19 in Volume 254 of the Register of Deeds, Ibadan. The first respondent has also traced his title to the same grantor, i.e. Alade Family in Exhibit "E" and "F", i.e. Conveyance made on the 4th February, 1972, and registered as No.17 at page 17 in Volume 1350 and No.21 at page 21 in Volume 1350 in the Land Registry at Ibadan. Counsel relying on the provisions of Sections 18(1) - (5) and 81 of the Land Instruments Registration Law (Cap. 56) of Oyo State and Aiyedun T. Jules v. Raimi Ajani (1980) 5-7 S.C. 96 at p. 113 submitted that where a party to a case enters a certified copy of a Deed kept at the Land Registry, as in the instant case, there is a presumption of due execution of the documents in his favour by the executants.

 

Counsel to the Appellant referred to the fact of the prior registration of Exhibit "A" on 16th June, 1958 on which Appellant relies before the registration of Exhibits "E" and "F" on 4th February, 1972 on which the 1st Respondent relies and submitted that both lower courts ignored this fact and concentrated on the question whether Exhibit "A" was not 20 years old at that time of the supporting contract. It was submitted that if the conveyances were examined in their proper context, the Courts would have discovered that their execution was in accordance with Sections 18 and 31 of the Land Instruments Registration Law, and that the 1st Respondent had actual notice of the previous dealing with the land in dispute.

 

These submissions are in support of the issue whether Exhibit 'A" passed any property of 2nd respondent family, i.e. the Alade family, to Victor Oludemi, represented by the Appellant. Chief Sokan, Counsel to the I st Respondent both in his brief of argument, which he adopted, and in his oral argument before us submitted, in support of the judgment of the two Courts below, that the respondents having denied executing the Conveyance to Victor Oludemi, although they admitted selling to and executing a conveyance Exhibit "8" to his attorney, the Appellant, 2nd respondents admitted selling to and executing Exhibits "E" and "F" to the 1st Respondent. Counsel submitted that although Exhibit "A" was tendered in evidence, in the face of the evidence of the Respondents it can only satisfy the proof of due execution by satisfying the provisions of Section 99 of the Evidence Act. It was submitted that Exhibit ''A" was not yet 20 years old. Appellant has failed to call the requisite evidence of execution and not entitled to the presumption of due execution has failed to show that the Alade family has divested itself of its interest in the land in dispute and passed any property in respect of the land in dispute to Victor Oludemi.

 

It is obvious from this submission that counsel to the 1st respondent is relying entirely on the argument that plaintiff has failed to discharge the onus on him that the Alade family passed any property in dispute to Victor Oludemi. It is important to appreciate the nature of the 1st respondent's argument. The contention is that since the Alade family did not sell any land to Victor Oludemi, it is preposterous to conceive of the execution of a conveyance in his favour. Thus Exhibit "A" is not their Deed. This is not merely that they are denying their signatures, but they are denying the document "Exhibit "A" in its entirety. The Court of Appeal agreed with the trial Judge that the question is whether appellant has succeeded in discharging the onus on him to prove due execution of the document Exhibit "A". Both the court below and trial Judge took the view that 2nd respondent having denied executing any conveyance in favour of Victor Oludemi, the onus is on the appellant to prove due execution. The question therefore is

whether the Alade family sold the land in dispute, and executed Exhibit ''A'' in consequence or that Exhibit ''A''  is a forgery. If it is the former. then appellant would have established his claim to a declaration of title. If it is the latter, the claim fails and will stand dismissed.

 

There was evidence before the court that Exhibit ''A''  was registered and in compliance with S.1 8 of the Land Instruments Registration Law of Oyo State. It has not been contended by respondent that there is no finding that Section 18 was not complied with. Exhibit ''A''  is a certified copy of the original and was received in evidence by virtue of section 3 1(1 ) of the Lands Instruments Registration Law which provides-

 

Every such certified copy shall be received in evidence, without any further or other proof in all civil cases.

 

I shall now refer to the denial of the second respondent that the Alade family sold the disputed land or any land. to Victor Oludemi. which is the crux of their defence to the claim, I agree entirely with counsel to the appellant that respondents are not complaining about any defect in Exhibit ''A''  and section 27 of the Land Instruments Registration Law, is therefore irrelevant. The contention tantamount to a denial of the existence of Exhibit ''A'' .  In my opinion where the complaint is that no such document exists, the proof of the existence of the document will be conclusive as to its validity. except where the person challenging the existence of the document is able to show further that the document so proved to exist is a forgery. It is in such a circumstance well settled that the onus of such a proof rests on who alleges. - See S.1 37(2) Evidence Act. In such a case since a crime is alleged, the burden is on him who alleges to prove it beyond reasonable doubt. 1st Respondent. having not led evidence to show that Exhibit ''A''  is a forgery has not discharged the burden of proof to show that Exhibit ''A''  is a forgery - See Ikoku v. Oli (1962)1 All N.L.R. (Vol. 1 ) Part 1. 1994 of p. 199.

 

Exhibit ''A''  is a certified true copy, of the original and registered in accordance with  S.18 of the Land Instruments Registration Law of Oyo State. The main plank on which the court below  rested its decision is the contention that there was no due execution of Exhibit ''A''. This is also the ground relied upon by counsel to the 1st respondent. The contention was that 2nd respondent having denied executing any conveyance in favour of Victor Oludemi. and Exhibit ''A''  being  less than twenty years old does not come

within the presumptions for due execution in sections 122 or 129 of the Evidence Act.

 

It seems to me that this is an entirely erroneous view of the law and a disregard to the requirements of the provisions of sections 18(1) and 31(2) of the Land Instruments Registration Law. I have already reproduced the provisions of section 31(2) in this judgment.

 

Section 18(l) - (5) provides -

18(1)Any person desiring that any instruments shall be registered shall deliver the same together with a copy thereof and the prescribed fee to the registrar at the office.

 

(2)    The registrar shall, immediately after such delivery, place upon the instrument and upon the copy thereof a certificate, as in Form B in the First Schedule.

 

(3)    Unless the instrument is one which is declared by this Law to be void or the registration of which is prohibited by this Law, the registrar shall compare the copy of the instrument with the original and if he shall find such copy to be a true copy and to comply with any regulations made under this Law and for the time being in force he shall certify the same by writing thereon the words "certified true copy" and appending his signature thereto.

 

(4)    The registrar shall thereupon register the instrument by causing the copy so certified to be pasted or bound in one of the registrar books and by endorsing upon the original instrument a certificate as in Form C in the First Schedule; and upon such registration the year, month, day and hour specified in the certificate indorsed on the instrument in pursuance of subsection (2) shall be taken to be the year, month, day and hour at which the instrument was registered.

 

(5)    The original instrument shall thereafter, upon application, be returned to the person who shall have delivered it for registration:

 

Provided that if application for the return of the instrument is not made within twelve months after the date of registration the registrar may destroy the instrument.

 

Section 31(1) provides -

 

The registrar shall upon request give a certified copy of any entry in any such register book or register, or of any filed document.

 

The effect of a combined reading of section 18(l)-(5), 31(1) and (2) of the Land Instruments Registration Law is that the certified copy of a conveyance registered in accordance with sections 18(3) & (4) will be admitted in evidence in accordance with section 30(1), and in accordance with section 31(2) "shall be received in evidence without any further or other proof  in all civil cases." This construction of the provisions is supported by the recent decision of this court in Aiyedoun T. Jules v. Raimi Ajani (1 980) 5-7 S.C. 96.

 

The facts of Jules v. Ajani (supra) are in all material respects identical with the facts of the case before us. In both cases the Deed of Conveyance involved relied upon for title is a certified true copy of the original. In each case proof of due execution was in issue. In each case the parties who sold the land in dispute denied the sale and the fact that they executed any conveyance in favour of the party relying on it. The instant case is stronger because Exhibit "A" contains the signatures of the parties, the Magistrate and the interpreter, which are absent in Jules. v. Ajani (supra).

 

I consider it proper to postulate and Jules v. Ajani (supra) is authority for the proposition that where a certified true copy of a registered Deed of Conveyance is properly received in evidence, this will be sufficient for the proof of due execution of such Deed of Conveyance-See Cardoso v. Daniel (1966)1 All N.L.R. 25. The question whether the deed of conveyance admitted in evidence is proof of its execution does not come within the presumption of due execution prescribed under secton 122 or 129 of the Evidence Act. It falls clearly within the statutory provision of section 31(2) of the Land Instruments Registration Law Cap. 56 Laws of Oyo State, Vol. III. I do not think it was necessary to consider the presumptions in sections 122 and 129 of the Evidence Act. These provisions are clearly irrelevant to the facts of this case. It was therefore not necessary for the Court of Appeal to consider the applicability of those sections of the Evidence Act.

 

I now turn to the first issue whether Exhibit "A" passed any property of 2nd respondent family to Victor Oludemi, represented by the appellant. I have already held that appellant has established due execution of Exhibit "A". There was thus a valid conveyance, Exhibit "A", between appellant and the 2nd respondent family. 1st respondent also established due execution of Exhibit "E" and "F". It follows therefore that both appellant and 1st respondent have proved due execution and prima facie established their title each tracing it to the Alade family.

 

There is evidence that Exhibit "A" was executed on the 16th June, 1958, and Exhibits "E" and "F" on the 3rd February, 1972. Counsel to the appellant has submitted that the land in Exhibits "E" and "F" purported to have been sold to the 1st respondent, by the 2nd respondent had earlier been sold to Victor Oludemi by the Alade family. Counsel to the appellant has contended that the Alade family having divested itself of their title to the appellant are incapable of validly conveying the same piece of land or any part thereof to the first respondent thereafter in 1972.1 agree. It is well settled that a person can only convey to another that which he has. Nemo dat quod non habet. Since the Alade family had divested itself of its property in the land in dispute, it had nothing left to convey to any other person. The conveyance to the first respondent of the same piece of land by the Alade family in Exh. E & F is therefore void. - See Coker v. Animashaun (1960) L.L.R. 71 at p.73. Boulos v. Odunsi [l959] S.C.N.L.R. 591; (1959) 4 F.S.C. 234.

Both the court below and the trial Judge were therefore in error in holding that the Adlade family was in a position to sell the area of land in dispute to the 1St respondent. Appellant as plaintiff claiming declaration of title must succeed or fail on the strength of his own case which rests entirely on Exhibit "A", - Kodilinye v. Odu 2 W.A.C.A. 336. Appellant has proved that there was due execution of Exhibit "A" which vests in Victor Oludemi all the property of the Alade family in the land in dispute, has established the title of appellant to the land in dispute. The appellant has satisfied the second of the five methods stated for establishing in a claim for declaration of title to land in Idundun v. Okumagba (1976)1 N.M.L.R. 200. This is because appellant has produced documents of title, Exhibit "A", which is duly authenticated and registered, requiring no further proof of due execution.

 

Appellant's claims for trespass and damages was dismissed in both courts below on the ground that he did not prove title to the land in dispute. First respondent is not denying entry into the land in dispute. He in fact has laid claim to the land relying on Exhibit "E" and "F", as deriving title from the Alade family similarly with the appellant. First respondent has also completed his building on the land. There was evidence that he started the building with knowledge that appellant was disputing his title, he continued and completed the building despite warnings to him by the appellant and notice of the prior right of the appellant. Appellant has given evidence of his possession of the land in dispute and first respondent in his evidence confirmed that appellant disturbed him while he was digging the foundation of the building in 1973. Appellant gave uncontradicted evidence of how he used to clear the property of weeds; at least twice a year. He exercised various acts of possession including filling up the foundation dug by the first respondent for his proposed building.

 

I think the law is now well settled that every person in exclusive possession of land can bring an action for trespass against any person other than the true owner, or a person with a better title in respect of any interference with his possession. This is because exclusive possession gives the person in possession the right to remain in possession and to undisturbed enjoyment of it against every other person except a person who can establish a better title. It is nonetheless a trespass and not a defence that the person in possession appears to have acquired title from the wrong person - See Solanke v. Abed (1962) N.N.L.R. 92; Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67.

 

Appellant has succeeded in establishing that Victor Oludemi was in exclusive possession of the land in dispute. It has also been shown that the Alade family divested all their interest in the land in dispute to Victor Oludemi. It has also been shown that members of Alade family purported to convey interest in the disputed land to 1st respondent subsequent to the conveyance to Victor Oludemi. In the circumstances, the courts below ought to have found for the appellant in his claim for trespass and granted the order for injunction. The judgment of the Court of Appeal affirming the decision of the High Court is accordingly set aside. The appellant is accordingly entitled to the declaration of title claimed in his writ of summons.

 

The Court of Appeal affirmed the judgment of the trial court which non-suited the plaintiff in respect of his claim against the 2nd defendant. The trial Judge held that since plaintiff failed to prove due execution of Exhibit "A", he had failed to prove his title. But he entered a non-suit because as he observed,

 

If the plaintiff is given a second chance to prove his case and succeeds the 2nd defendant would certainly not be wronged because such would only establish that he had already divested himself to the plaintiff of right or title to the balance of the land, being 77% of the subject-matter of plaintiff's claim and that would prevent him from taking an unfair advantage due to the lapse of the plaintiff in this case. - (See p.65, lines 27-35).

 

The learned Judge concluded as follows,

 

I am of the view that it is the plaintiff who would be wronged if his claim against the 2nd defendant is dismissed in circumstance.

 

There is no doubt that the learned Judge was of the opinion that plaintiff/ appellant did not prove his case against the 2nd defendant. What then is the case against the 2nd defendant? I have already set out the claim as on the writ of summons. It is a claim against all the defendants. It is pertinent to observe that 2nd defendant, seems to have been satisfied with the order for non-suit of the claims against him because he was neither represented in the appeal, nor was a brief of argument filed on his behalf.

 

The case against the 2nd defendant is that as a representative of the Alade family he and another conveyed the land in dispute to Victor Oludemi. The relevant paragraphs of the statement of claim read,

 

(6)    The 2nd and 3rd defendants and one Adebayo Alade are all members of Alade family of Alade Compound, Tabontabon Village, OkeAdo, Ibadan..........

 

(8)    The plaintiff avers that the said Victor Oludemi through the plaintiff purchased in March, 1958, a large piece or parcel of Alade family land inclusive of the portion of the land which the defendants trespassed upon, from Adebayo Alade, Adetohun Alade and Yesufu Alade (the 2nd and 3rd defendants respectively) all members of Alade family of Alade Compound, Tabontabon Village, Oke-Ado, Ibadan, under Native Law and Custom.

 

(11)  The plaintiff avers that on 16th day of June, 1958, one Adebayo Alade, Adetohun Alade and Yesufu Alade, (2nd and 3rd defendants respectively) for themselves also on behalf and with the consent of the entire members of Alade family of Tabontabon Village, Ode-Ado, Ibadan, executed a Deed of Conveyance of the said large piece or parcel of land referred to in paragraphs 8 and 9 supra in favour of Victor Oludemi. The said deed of conveyance with a copy of the plan referred to in paragraph 9 supra is registered as No.19 at page 19 in Volume 254 of the Lands Registry in the Office at Ibadan.

 

In his amendment to his statement of claim the plaintiff in a new paragraph 22A pleaded as follows-

 

22(A)    The plaintiff will at the trial of this case rely on and raise the following legal issues;

 

(1)    That 2nd and 3rd defendants joined by Adebayo Alade) acting for themselves and with the consent of the entire members of the Alade family having divested themselves of the area verged Blue by selling and conveying to Victor Oludemi in 1958, have nothing to sell or convey to the 1st defendant in 1971 or 1972 or at any other time thereafter being already encumbered, Nemo dat quod no habet."

 

The 2nd and 3rd defendants in paragraph I of their statement of defence specifically denied selling to or executing any conveyance of any land by Alade family to the plaintiff; but they in paragraph 2 admitted that they are members of Alade family. In paragraph 5 they admitted selling two plots to Abiodun Adelaja, Attorney to Victor Oludemi. Whilst admitting in paragraph 4 that they sold the land in dispute to the 1st defendant, they denied selling any land to Victor Oludemi. In paragraph 6, they pleaded that;

 

(6)    In the Criminal case at the Magistrate Court, it was Abiodun Adelaja who claimed ownership of the land now claimed to have been sold to Victor Oludemi.

 

Thus the ground on which issue was joined was whether the 2nd and 3rd defendants sold the land in dispute to Victor Oludemi. If the trial Judge had not taken the erroneous view as to the onus of proof of due execution of Exhibit "A" which he did, and had appreciated the correct interpretation of sections 18 and 31(2) of the Land Instruments Registration Law, and the recent decision of this court in Jules v. Ajani (supra), he would have come to the correct conclusion that there was due execution of Exhibit "A", i.e. the conveyance by the defendants to Victor Oludemi of the land in dispute by the Alade family and that the 2nd and 3rd defendants conveyed the land to Victor Oludemi. Accordingly he ought to have held that plaintiff had proved the case against the 2nd defendant. The question of a non-suit therefore did not arise.

 

The correct decision should have been that the appellant proved his claim against the defendants and was therefore entitled to the declaration of title, trespass and injunction as claimed.

 

Accordingly I allow the appeal of the appellants and set aside the judgment of the courts below and that of the trial Judge of the High Court of Oyo State at Ibadan.

 

The title in respect of all that piece or parcel of land at Tabontabon Village, Oke-Ado, Ibadan, and registered as No.19 at page 19 in Volume 254 of the Land Registry, Ibadan, is hereby declared to be vested in Victor Oludemi.

 

Respondents shall pay N500 as damages in respect of trespass committed to the said land. Respondents, their servants and or agents are restrained from further trespassing on the said land.

 

Respondents shall pay to the appellants costs of this appeal assessed at N500 in this court, N300 in the court below, and N300 in the High Court.

Judgement Delivered

 by

Nnamani. J.S.C.

I had a preview of the judgment just delivered by my learned brother, Karibi-Whyte. J.S.C., and I entirely agree with his reasoning and conclusions.

 

The issue in contention between the parties is fairly straightforward. While the plaintiff contended that the 2nd and 3rd defendants at the High Court (the 3rd defendant is deceased and the 2nd defendant never appealed against the decision of the High Court) on behalf of the Alade family executed a conveyance of the land in dispute in favour of Victor Oludemi and so had no property left to transfer to the 1St defendant/respondent, the 2nd and 3rd defendants not only denied ever selling any land to Victor Oludemi, but denied their signatures on Victor Oludemi's conveyance which was tendered in these proceedings as Exhibit A. They admitted selling 2 plots in the same land to the plaintiff/appellant and the conveyance was tendered as Exhibit B. They also admitted executing conveyances Exhibit E and F of the same land in favour of 1st respondent herein.

 

These contentions are perhaps better brought out in paragraphs 11 of the amended Statement of Claim and I and 2 of the Statement of Defence of the 2nd and 3rd defendants. In the said paragraph 11, the plaintiff/appellant averred as follows:-

 

(11) The plaintiff avers that on 16th day of June, 1958, one Adebayo Alade, Adetohun Alade and Yesufu Alade (2nd and 3rd defendants respectively) for themselves also on behalf and with the consent of the entire members of Al ade family of Tabontabon village, Ode-Ado, Ibadan, executed a Deed of Conveyance of the said large piece or parcel of land referred to in paragraphs 8 and 9 supra in favour of Victor Oludemi. The said Deed of Conveyance with a copy of the plan referred to in paragraph 9 supra is registered as No.19 at page 19 in Volume 254 of the Lands Registry in the office at Ibadan.

 

In the said paragraphs 1 and 2 of the Statement of Defence, the 2nd and 3rd defendants averred as follows:-

(1)    The 2nd and 3rd defendants did not sell or execute any conveyance of any land by Alade family to the plaintiff

(2)    The 2nd and 3rd defendants admit that they are members of Alade family.

 

At the end of the trial, the learned trial Judge dismissed the case against the 1st respondent, and non-suited the plaintiff in respect of the case against the 2nd defendant. He held that the plaintiff had failed to prove due execution of Exhibit A, and so there was property to be conveyed to the 1st respondent. The Court of Appeal affirmed this decision holding not only that the plaintiff failed to prove due execution of Exhibit A, but that the document cannot enjoy the presumption of due execution contained in sections 122 and 129 of the Evidence Act.

 

The appellant has appealed on grounds of appeal which have been set down in the lead judgment. Like my learned brother, I am of the view that the issues for determination as set out by learned counsel to the 1st respondent bring out clearly the matter before this court. The issues were:

 

(i)    Did Exhibit A that is Deed of Conveyance dated 16th June, 1958 and registered as 19/19/254 Ibadan pass any property of 2nd respondent family that is Alade family to Victor Oludemi represented by the appellant?

 

(ii)   Was the appellant entitled to the presumption arising from section 122 of the Evidence Act?

 

(iii)  Was section 129 of the Evidence act properly interpreted by the Court of Appeal as contemplated by the section?

 

One of the issues as stated by learned counsel to the appellant is also relevant to the question of the execution of Exhibit A. The issue according to him is:

 

(3.02) Whether failure on the part of the appellant to prove that Exhibit A is 20 years old, coupled with appellant's inadvertent omission to comply with section 99 of the Evidence Act would be absolutely fatal to plaintiff's case when documents executed by illiterate grantor/grantors and intended to be and was being relied on by the appellant had complied strictly with section 8 of the Land Instruments Registration Law of Oyo State.

 

In his brief of argument, learned counsel to the appellant submitted that if a party tenders a Certified True Copy of a Deed kept at the Land Registry, there is a presumption of due execution of the said document in his favour by the executants. He relied on sections l8(1)-(5) and 31 of the Land Instruments Registration Law (Cap. 56) of Oyo State which is in pari materia with section 18(1 )-(5) and 30 of the Land Instruments Registration Law of Western Region of Nigeria which was considered by this court in Aiyedoun T. Jules v. Raimi Ajani (1980) 5-7 S.C. 96, 113. Although the Jules case was raised in appellant's brief, learned counsel to the 1st respondent did not advert to it in his brief of argument. In his oral argument, however, he submitted that that case is not applicable.

 

I have examined the decision of this court in Jules and I am also satisfied that it is applicable to this case. There as in this case, the issue was one of due execution. Unlike in this case where the signatures of the "alleged" executants are on Exhibit A and the jurat administered by a Chief Magistrate to the illiterate grantors is also present, in the Jules case the document in question was blank. Still this court, after construing sections 18(1 )-(5) and 30 of the Land Instruments Registration Law of Western Region which are in pari materia with sections 18(1 )-(5) and 31 of Cap. 56 of Oyo State, held that there was a presumption of due execution.

 

Paragraphs 18(l)(3) and (5), and 31(1) and (2) of Cap. 56 are in these terms:-

 

18(1)    Any person desiring that any instrument shall be registered shall deliver the same together with a true copy thereof and the prescribed fee to the registrar at the office ......

 

(3)    Unless the instrument is one which is declared by the law to be void or the registration of which is prohibited by this Law, the registrar shall compare the copy of the instrument with the original and if he shall find such a copy to be a true copy and to comply with any regulations made under this law and for the time being in force he shall certify the same by writing thereon "certified true copy" and appending his signature thereto

 

(5)    The original instrument shall thereafter upon application be returned to the person who shall have delivered it for signature

 

31(1)    The registrar shall upon request give a certified copy of any entry in any such register book or register, or of any filed document,

 

(2)    Every such certified copy shall be received in evidence, without any further or other proof in all civil cases.

 

It is pertinent to mention that as was the case in Jules, neither the High court nor the Court of Appeal in the instant case was addressed on the sections of the Land Instruments Registration Law referred to above nor was the Jules case cited to those two courts. Sections 99 and 129 of the Evidence Act were however canvassed in Jules as here.

 

This court after considering the submissions in Jules held, as mentioned earlier, that there was a presumption of due execution. At page 110 of the judgment of the court, I referred to section 99 of the Evidence Act and stated,

 

It is my considered view, however, that in the peculiar circumstances of this case, section 18 subsections 1-5 and section 30 subsection 2 of the Land Instruments Registration Law of Western Region of Nigeria. . is a complete answer to the submissions of the appellant.

 

Adverting to the subsections of section 18, the court at page 111 said,

 

Having regard to section 18, particularly subsection 3 supra, it must be presumed that the copy of the Deed 36/36/134 pasted in the Registry of Deeds (which we saw) and from which a certified true copy (Exhibit A) was made was duly compared with the original of the Deed before registration and was found to be a true copy in the sense that the names of the executants therein are the same as those who actually executed (in terms of signature or thumb impressions) the original taken away in accordance with subsection 5.

 

Then after adverting to section 30(i) and (ii) i.e. section 31 of Oyo State Law I stated at page 113 of the judgment-

 

Exhibit A was issued pursuant to subsection (1) above (i.e. section 30(1). The whole section must be read together with section 18 and it is my view that once subsection I of section 30 and subsections 3 and 4 of section 18 are complied with, the Deed will be admitted in evidence without any further proof or other proof of such matters as execution of the parties named therein. Section 26 of the Law (section 27 of the Oyo State Law) to which learned counsel for the appellant made reference is irrelevant in the present proceedings. Though it provides that Registration shall not cure any defect in any instrument or confer upon it any effect or validity which it would not otherwise have had, it (i.e. section 26) is made subject to the provisions of this law and cannot operate to make Exhibit A a worthwhile (sic) (worthless) document unless there is evidence that section 18 of the law was not complied with by the Registrar of Deeds. There is no such evidence.

 

In the instant case, there is no evidence that section 18 and section 31(1) were not complied with. Exhibit A was a certified true copy of a Deed duly registered in the lands Registry. In my view, it covers the situation here completely. In that event, I am also of the view that sections 99, 122 and 129 of the Evidence Act are irrelevant. The result is that Exhibit A must be taken to have been executed by the executants named therein, 2nd and 3rd defendants. Having thus conveyed the land in dispute to Victor Oludemi on 16th June, 1958 as per Exhibit A, there was no further estate that could be transferred to the 1St respondent in Exhibits E and F. I do agree with my learned brother that for the reasons he stated in the lead judgment, the remedies of damages for trespass and injunction should also have been given to the plaintif{ Not only was plaintiff in possession, but he attempted to close up the foundation dug by the 1 St respondent when he first started building. The 1st respondent must of course, take full responsibility for his decision to continue his building to completion in spite of the early notice of dispute over the land.

 

I wish only to say that the decision I have reached appears to me to accord with the justice of this cause. The 2nd and 3rd defendants by hiding behind their denial of sale of land to Victor Oludemi and such fine legal defences as the inapplicability of sections 99 and 122 (out by under I month) of the Evidence Act were about to get away with fraud-selling land to Victor Oludemi and selling the same land to 1st respondent. It is certainly significant that the 2nd respondent admitted under cross examination that he received 200 (N400) from appellant when he sold land to him 20 years ago. When one looks at Exhibits A and B it is seen that the consideration for these conveyances were 80 and 120 respectively. It is also significant that Exhibit B which 2nd and 3rd respondents admitted executing in favour of appellant was executed on the same 16/6/58 as Exhibit A which they denied executing.

 

In all these circumstances, I also allow the appeal and set aside the judgments of the High Court and the Court of Appeal. I enter judgment for the plaintiff/appellant and endorse all the orders made in the lead judgment.

 

Judgement Delivered 

by

Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother Karibi-Whyte, J.S.C. For the reasons given in the judgment, with which I entirely agree, I too will allow the appeal and set aside the decisions of the High Court and the Court of Appeal. I adopt all the orders contains in the said judgment.

 

Judgement Delivered 

by

Kawu. J.S.C.

I have had a preview of the judgment which has just been given by my learned brother Karibi-Whyte, J.S.C. I agree entirely with the reasons and conclusion therein. I too will allow the appeal and subscribe to all the consequential orders made in the lead judgment including the order as to costs.

 

Judgement Delivered 

by

Agbaje. J.S.C.

 

 I have had the opportunity of reading in draft the lead judgment of my learned brother, Karibi-Whyte, J.S.C. I agree with him that because of the decision of this court in Jules v. Ajani (1980) 5-7 S.C. 96 the appellant's appeal has to succeed.

 

The plaintiff Abiodun Adelaja sued, as Attorney for Victor Oludemi, the defendants Olatunde Fanoiki & others claiming the following reliefs:-

 

(1)    Declaration of title to all that piece or parcel of land lying, being and situate at Tabontabon Village, Oke-Ado, Ibadan, Oyo State of Nigeria and as shown on the Plan attached to the Deed of Conveyance dated the 16th day of June, 1958 and registered as No. 19 in volume 254 of the Lands Registry in the office at Ibadan.

 

(2)    N500.00 (Five hundred Naira) damages for trespass committed in 1972 by the defendants their agents and or servants on the said land belonging to and in possession of the plaintiff situate, lying and being at Tabontabon village, Oke-Ado, Ibadan, Oyo State of Nigeria and as described in the said Deed of Conveyance recited above.

 

(3)    INJUNCTION restraining the defendants, agents and or servants from further trespassing on the said piece or parcel of land or any portion thereof.

 

The material averments in the plaintiff's amended Statement of Claim in support of his claim for title to the land in dispute would be found at paragraphs 8 and 11 thereof:-

 

(8)    The plaintiff avers that the said Victor Oludemi through the plaintiff purchases in March, 1958 a large piece or parcel of Alade family land inclusive of the portion of the land which the defendants trespassed upon, from Adebayo Alade, Adetohun Alade and Yesufu Alade (the 2nd and 3rd defendants respectively) all members of Alade family of Alade compound, Tabontabon village, Oke-Ado, Ibadan under Native Law and Custom

 

(11)   The plaintiff avers that on 16th day of June, 1958, one Adebayo Alade, Adetohun Alade and Yesufu Alade (2nd and 3rd defendants respectively) for themselves also on behalf and with the consent of the entire members of Alade family of Tabontabon Village, Oke-Ado, Ibadan, executed a Deed of Conveyance of the said large piece or parcel of land referred to in paragraphs 8 and 9 supra in favour of Victor Oludemi. The said Deed of Conveyance with a copy of the plan referred to in paragraph 9 supra is registered as No. 19 at page 19 in volume 254 of the Lands Registry in the office at Ibadan.

 

In replying to these averments the 1st defendant in his Statement of Defence pleaded as follows:-

(2) The 1st Defendant denies paragraphs 2, 3, 4, 7, 8, 9, 10, II, 12, 13, 14, 15, 16, 17, 19,21,22, and 23 of the Statement of Claim and puts the Plaintiff to the strictest proof thereof.

 

(4) The 1st defendant bought the land in dispute sometime in 1971, but the Deed of Conveyance registered as No. 17 at page 17 in Volume 1350 of the Lands Registry, Ibadan and the Deed of Conveyance registered as No.21 at page 21 in Volume 1350 of the Lands Registry in the office at Ibadan were both executed in his favour on the 4th February, 1972 by his Vendors Adetohun Alade and Yesufu Alade who are the 2nd and 3rd defendants respectively in this action.

 

As regards the plaintiff's averments in his Statement of Claim as to title to the land in dispute the 2nd and 3rd defendants pleaded as follows in their Statement of Defence:-Save and except as in hereinafter expressly admitted, the 2nd & 3rd defendants deny each and every allegation of fact contained in each paragraph of the statement of claim and further states as follows:-

 

(1) The 2nd & 3rd defendants did not sell or execute any conveyance of any land by Alade family to the plaintiff.

 

(2) The 2nd & 3rd defendants admit that they are members of Alade family.

 

The case proceeded to trial before Olowofoyeku, J. on 11th May, 1978. The 1st plaintiff's witness, Joshua Oladejo Agboola, a Clerical Officer in the Ministry of Lands and Housing attached to the Deeds Registry of that Department gave evidence inter alia as follows:-

.......... I am on subpoena to tender certain document. I tender Deed of C.T.C. conveyance registered as No.19 page 19 in Volume 254 between Victor Oludemi and Alade family. No objection. Admitted and marked

Exhibit 'A' ...........

 

The other evidence for the plaintiff concerning Exh. A will be found in the following passages from the printed evidence of the plaintiff himself.

 

Evidence in Chief: ". . . I know the land in dispute. I know the defendants. I know Victor Oludemi. He executed power of attorney Exhibit 'C' in my favour for the purpose of this action. I helped Victor Oludemi to purchase the land in dispute in March, 1958.1 bought the land off Yesufu Alade Adetonu Alade and Adebayo Alade. Victor Oludemi knows the land. I identified it to him. Plaintiff identified Exhibit A as the conveyance in favour of Victor Oludemi. I also bought 6 plots of land for myself from the vendors. I bought on behalf of other people as well. Exhibit 'B' is the conveyance executed in my favour in respect of the 6 plots I bought off the vendors for myself..............

 

The 3rd defendant denied executing any conveyance for Oludemi at the police station. I have the original of the conveyance to Mr. Oludemi..................

 

Three members of Alade family executed a conveyance in favour of Victor Oludemi only Adetoun out of those three in (sic) dead . .

 

Having regard to the state of the pleadings as I have shown it above, the learned trial Judge held as follows as regards the evidence led by the plaintiff in proof of title to the land in dispute which evidence I have also reproduced above:-

 

It was his submission that the plaintiff relies on the conveyance to Victor Oludemi, exhibit 'A' in support of his claim to title to the land in dispute. He argued that since exhibit 'A' was executed on the 16th of June, 1958 it is still not 20 years old and so cannot take the benefit of the presumption of due execution under section 122 of the Evidence Act by , those whom it purports to be executed and so the plaintiff still has to comply with section 99 of the Evidence Act which requires proof of the execution of exhibit 'A' by the plaintiff who relies on it. This was the view of Agbaje, J. in Yesufu  Akanji v. Subuola Osarinde (1977)1 OY. SHC PART II 161 pp. l64-165 relying on the Supreme Court judgment in Gbamgbela v. Alade S.C. 327/1964 delivered on 11th March, 1966. I am in entire agreement with this view.

 

The plaintiff therefore has to prove that exhibit 'A' was executed by the three grantors. This cannot be done by mere tender of the exhibit in evidence. No evidence was led about the execution of exhibit 'A' by the plaintiff. The 2nd defendant admitted under cross-examination that Adetoun Alade and himself executed a deed of conveyance in favour of the plaintiff himself at the Magistrate's court. Exhibit 'A' is not conveyance in favour of the plaintiff, but in favour of Victor Oludemi whom 2nd defendant stoutly denied he sold land to or executed any conveyance for. The plaintiff has therefore failed to prove due execution of exhibit 'A' by the grantors.

 

On appeal by the plaintiff against the judgment of the trial court dismissing his claims, the Court of Appeal, Ibadan Division as per the lead judgment of Uche-Omo, J.C.A., in which Omololu and Onu, JJ.C.A. concurred, held as follows confirming the finding of the trial court as regards exhibit A as proof of plaintiff's title to the land in dispute:-

 

First:    As appellant's counsel has himself admitted, the age of the document is therefore one month short of 20 years. Consequently the presumption provided for under section 122 of the Evidence Act cannot apply. The plaintiff, who produced Exhibit A is therefore bound to prove the due execution thereof. Whether or not he had discharged this onus will be considered later.

 

        In answer to the latter question which the learned Justice of the Court of Appeal asked himself as to whether the plaintiff has proved due execution of Exhibit A he held:-

 

Second:    In order to prove execution, the plaintiff/appellant must fall back on the provisions of section 99 of the Evidence Act. This provides that:-

 

(99)    If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

 

No evidence was in fact led in proof of execution besides the ipse dixit of the plaintiff. The fact that no effort was made at all must be the fault of counsel who probably failed to appreciate the need to call such evidence, some of which (at least) must have been available. I agree with the trial Judge as to the consequence of this failure as postulated by him, to wit, that the plaintiff's claim must fail because the Alade family was in a position to sell the area of land in dispute to the 1st defendant/respondent, its alleged divestiture thereof to the plaintiff over a decade earlier, not having been established.

 

It will be recalled that the learned trial Judge in holding that the plaintiff had not proved due execution of Exh. A by the mere production of a certified true copy of that document and nothing more followed my decision as a Judge of the High Court of Oyo State in Yesufu Akanji V. Subuola Osarinde (1977)1 OY.S.H.C. (Part 11)161 at 164 to 165. In that case, in coming to my decision I relied on the judgment of this court in Gbamgbala v. Alade S.C 327/1964 delivered on 11th March, 1966 yet unreported. The passages from that decision relating to the case in hand are as follows:-

 

............. The respondents are the personal representatives of the late B .J. Alade, who brought an action for a declaration of title to a piece of land at Idi-Araba, Ikeja District, and for possession of the land. The portions of the Statement of Claim which are relevant in this appeal are as follows:-

 

(4)    The Plaintiff bought a large area of land from the Alashe family and the land the subject-matter of this action falls within the said area. Plaintiff's deed of Conveyance is dated the 19th May, 147 and registered as No.22 at page 22 in Volume 797 of the Register of Deeds and Plaintiff has thereby become the owner in fee simple from encumbrances and has been in undisturbed possession ever since and exercising overt acts of ownership.

 

(5)    The land the subject-matter of this action falls within the area known and called Idi-Araba Village area and was granted many years ago by the Alashe Family to one Bamgbala deceased who settled and farmed on it as a customary tenant of Alashe family under Native Law and Custom paying tribute yearly to the said Family.

 

In their Statement of Defence the defendants denied paragraph 4 of the Statement of Claim, and put the plaintiff to the strictest proof of it.

 

The plaintiff also failed to establish his own claim to have bought the land from the Alashe family, even if there had been satisfactory evidence that the family had still any interest in the land to convey. He gave evidence himself, and produced the conveyance which he had referred to in his Statement of Claim, but he called no attesting witness and no witness to prove the right of the executing parties to convey the land belonging to the Alashe family. The conveyance is dated 1947 and no presumption of due execution can be invoked. On the pleadings the burden of proof was clearly on the plaintiff and it is equally clear that he failed to discharge it.

The appeal is allowed, the judgment of the High Court, with the order for costs, is set aside, and judgment is entered dismissing the action (italics ours).

 

When Brett, J.S.C., delivering the judgment of the court in the above case, said that the plaintiff in the case called no attesting witness he was no doubt saying that the plaintiff had not proved that the signatures on the document in question in that case were those of the persons said to have executed the document. Although he did not say so expressly he no doubt had in mind the provisions of Section 99 of the Evidence Act to which the Court of Appeal referred to in its judgment relating to proof of signature or writing of person alleged to have signed or written a document produced in evidence. When the learned Justice of the Supreme Court, having said that the plaintiff called no attesting witness, added that no witness was called to prove the right of the executing parties to convey the land belonging to Alashe family he was saying, no doubt again, that the plaintiff had not only not proved the execution of the document, but had also not proved its due execution. For proof of due execution means that it has to be established that the person alleged to have signed the document has in fact signed it and furthermore his right to sign the document in the capacity in which he does so much be established.

 

Having regard to what I have said above I would have unhesitatingly reached the conclusion that both the trial court and the Court of Appeal were right in coming to the conclusion that on the pleadings the burden of proof was evidently on the plaintiff to prove due execution of the document Exh. A relied upon by him as evidence of his title to the land in dispute. Equally I would have held that clearly on the evidence adduced by the plaintiff he has not discharged this burden. But then counsel for the plaintiff has submitted to us relying on the decision of this court in Jules v. Ajani (supra) that there is a presumption of due execution in favour of Exh. A, a certified true copy of the conveyance relied upon by the plaintiff in proof of his title to the land in dispute having regard to Section 18 sub-section 1 to 5 and Section 31 of The Land Instruments Registration Law of Oyo State.

 

The following passages in the lead judgment of Nnamani.  J.S.C. in that case clearly support the submissions of counsel for the appellant. The first passage I have in mind is as follows at pages 1l0-1 of the report:-

 

Now to Cap. 56, Section 18 sub-section 1-5 provide as follows:-

 

18(1) Any person desiring that any instrument shall be registered shall deliver the same together with a true copy thereof and the prescribed fee to the registrar at the office.

 

(2)    The registrar shall immediately after such delivery, place upon the instrument and upon the copy thereof a certificate, as in Form 8 in the First Schedule.

 

(3)    Unless the instrument is one which is declared by the Law to be void or the registration of which is prohibited by this Law, the registrar shall compare the copy of the instrument with the original and if he shall find such a copy to be a true copy and to comply with any regulations made under this Law and for the time being in force he shall certify the same by writing thereon "certified true copy" and appending his signature thereto

 

(4)    The registrar shall thereupon register the instrument by causing a copy so certified to be pasted or bound in one of the register books and by endorsing upon the original instrument a certificate as in Form C in the First Schedule; and upon such registration the year, month, day and hour specified in the certificate endorsed on the instrument in pursuance of sub-section (2) shall be taken to be the year, month, day and hour at which the instrument was registered.

 

(5)    The original instrument shall thereafter, upon application, be returned to the person who shall have delivered it for registration.

 

Provided that if application for the return of the instrument is not made within twelve months after the date of registration the registrar may destroy the instrument (italics ours).

 

The second passage is as follows at pages 112-3:-

 

Section 30 (sic) Subsections 1 and 2 of the same Law provide as follows:

 

30(1)    The registrar shall upon request give a certified copy of any entry in any such register book or register, or of any field (sic) document,

 

(2)    Every such certified copy shall be received in evidence, without any further or other proof in all civil cases (italics ours).

 

Exh. A was issued pursuant to Subsection (1) above. The whole section must be read together with Section 18 and it is my view that once sub-section 1 of Section 30 and Subsections 3 and 4 of Section 18 are complied with, the Deed will be admitted in evidence without any further proof or other proof of such matters as execution by the parties named therein. Sections 26 of the Law to which learned counsel for the Appellant made reference is irrelevant in the present proceedings. Though it provides that Registration shall not cure any defect in any instrument or confer upon it any effect or validity which it would not otherwise have had, it (i.e. Section 26) is made subject to the provisions of this Law and cannot operate to make Exhibit A a worthwhile (sic) document unless there is evidence that Section 18 of the Law was not complied with by the Registrar of Deeds. There is no such evidence.

 

and the final passage is at page 115:-

 

Finally, In  re Halifax Commercial Banking Co Ltd (Supra) is authority for the proposition that the Registration of a deed is not evidence of its due execution or that it was executed at all. As I have indicated in this judgment, I think that sub-sections 3 and 4 of Section 18 of the Land Instruments Registration Law of Western Region of Nigeria disposes of this point in the instant case.

 

Sections 18(3) and 31 of the Land Instruments Registration Law of Oyo State relate only to certified true copies of a Deed of Conveyance duly registered at the Lands Office in the registry at Ibadan. They have no application to the original document whose admissibility is governed by Section 16 of that Law which says:-

 

(16) No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3:

 

Provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.

 

It is evident that the provisions of Section 99 of the Evidence Act will apply to the original document. In other words except in cases where the provisions of Section 122 of the Evidence Act apply, there is no presumption of execution or for that matter due execution in favour of any original document which has been duly registered in the Lands Registry. But the decision in Jules v. Ajani (supra) implies that there is a presumption of execution and due execution in favour of a certified true copy of a registered Conveyance. So the decision appears to have conferred a greater validity on a certified true copy of a conveyance produced in evidence than the original document if produced would have had. The decision in Jules V. Ajani (supra) will also appear to have rendered redundant the provisions of Section 27 of that law which says:-

 

(27) Registration shall not cure any defect in any instrument or, subject to the provisions of this Law, confer upon it any effect or validity which it would not otherwise have had.

 

And in fact there are decisions of the highest court of this country in such cases like (Rihawi v. Ajomashodun 14 W.A.C.A. 204) which laid down the scope of the Land Instruments Registration Law in contra distinction to Land Titles Registration Law. In the latter case, Varity, C.J. delivering the judgment of the Old West African Court of Appeal, said inter alia as follows:-

 

One (the Land Instruments Registration Law) is merely to record instruments of title and the other (Land Titles Registration Law) to provide for issue to persons who can establish their claim of a certificate which secures to them an indefeasible title to the land claimed. In the former case it is provided by the section referred to by the learned Judge that registration of the instrument does not confer upon it any effect or validity which it would not otherwise have had, but this provision has, of course, no reference to a certificate of title under the latter Ordinance. (Words in brackets mine).

 

May be the decision in Jules v. Ajani (supra) overlooks the fact that Section 27 of the Law applies not only to certified true copies of conveyance issued under Section 31(1) of the Law but also to the original conveyance which has been duly registered under the Law and returned to its owner. But as I have said the provisions of Section 31 do not apply to the original conveyance. And it is hardly conceivable to say that Section 27 has no application to the original conveyance.

 

Perhaps Section 18 read along with Section 31 of the Land Instruments Registration Law is designed to bring the provisions of that law in line with Section 95 of the Evidence Act which says:-

 

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

 

The cases therein excepted are contained in Section 96(1) of the Act dealing with admissibility of secondary evidence of the original documents. It will be seen that there are there mentioned certain conditions precedent to the admissibility of secondary evidence.

 

With particular reference to the provisions of Section 31 of the Land Instruments Registration Law which provide for the admissibility of a  true copy of a registered deed of conveyance in evidence mention be made of Section 96(1 )(f) of the Evidence Act which permits such secondary evidence.

 

(f)    when the original is a document of which a certified copy is permitted by this Ordinance, or by any other law in force in Nigeria, to be given in evidence.

 

So because of Section 31 of the Land Instruments Law a certified true copy of a conveyance registered under that law will be admissible in evidence under Section 96(1) of the Evidence Act

 

Now at least under the Constitution of the Federal Republic of Nigeria 1979 evidence is on the exclusive Legislative List. So, the only enactment governing admissibility of evidence is the Evidence Act of which Section 99 thereof dealing with proof of execution of a document is an integral part. It will be nigh impossible to construe a state law relating to admissibility of evidence in such a way as to derogate from its provision.

 

Clearly a certified true copy of a document is secondary evidence of the primary document, the original document. May be this court went too far when it said in Jules v. Ajani (supra) that a certified true copy of a document issued under sub-section 1 of Section 31 of the Land Instruments Registration Law will be admitted in evidence without any further proof or other proof of such matters as execution by the parties named therein. Perhaps it would have been sufficient to say that such a document will be admitted in evidence without any further proof or other proof of the conditions to which admissibility of secondary evidence is subject, like for instance, loss of the original.

 

However, the facts remain that in the case in hand the respondents have not in compliance with Order 6 Rule 5 subsection 4 of the Rules of this court which says as follows:-

 

        If the parties intend to invite the court to depart from one of its own decisions, this shall be clearly stated in a separate paragraph of the Brief, to which special attention shall be drawn. The intention shall also be restated as one of the reasons.

 

indicated in their Brief of Argument that he will invite this court to depart from one of its previous decisions. So I must remind myself of what Idigbe, J.S.C. said in Arase v. Arase (1981) 5 S.C. 33 at 55:-

 

        The issue, however, is not ,res integra and in the words of Lawton, L.J. in Lin v. Camden Health Authority (1979)1 Q.B. 196 at 221. I have to remind myself that like the centurion at Capernaum, I am a man under authority-that of decided cases' which, although not binding on this court at all event (as they were in the situation with which Lawton, Li., found himself in the case of Camden Health Authority (supra), certainly ought not to be so easily and readily departed from.

 

It is for the above reasons, in spite of my views as to the correctness of the decisions of the trial court and the Court of Appeal and having regard especially to the fact that the respondent has not asked this court to depart from the decision in Jules v. Ajani (supra), that I apply the decision in that case to the case in hand and arrive at the conclusion that the appellant's appeal has to be allowed.

 

For the above reasons, I too agree to the conclusion reached in the lead judgment of my learned brother, Karibi-Whyte. J.S.C., which I have had the privilege of reading in draft.

 

In the result, I too allow the appellant's appeal, set aside the decision of the trial court and that of the Court of Appeal and enter judgment in favour of the plaintiff in terms of his claim as per the lead judgment. I abide by the order as to costs in the lead judgment.

 

Perhaps the decision we have just given will also meet the moral justice of case having regard to the following evidence of the plaintiff:- 

 

Plaintiff identified Exhibit A as the conveyance in favour of Victor Oludemi. I also bought 6 plots of land for myself from the vendors. I bought on behalf of other people as well. Exhibit 'B' is the conveyance executed in my favour in respect of the 6 plots I bought off the vendors myself.

 

The  3rd defendant Yusufu Alade giving evidence in court admitted that the proper representatives of Alade family executed Exhibit B in favour of the Plaintiff.  It appears to me most unlikely that the same plaintiff would not as regards Exhibit A get the same proper representatives of Alade family to execute it.

 

Counsel

Funso Odeleye

 

For the Appellant

Chief A. T. Sokan

 

For the 1st Respondent

Yemi Adefuye Esq.

 

For the 2nd Respondent