ABIODUN ADELAJA (APPELLANT)
v.
OLATUNDE FANOIKI & ANOR (RESPONDENT)
(1990) All N.L.R. 217
Division: Supreme court of Nigeria
Date of Judgment: 23rd March, 1990
Case Number: (S.C. 166/1986)
Before: Nnamani, Uwais Karibi-Whyte, Kawu, Agbaje JJ S.C.
The appellant, as attorney for one Victor Oludemi, who purchased the land in dispute from the Alade family of Ibadan in 1958 by virtue of a deed of conveyance executed and registered as No. 19 Page 19 in volume 254 in the Lands Registry, Ibadan sued the respondent at the High court for a declaration of title to the land in dispute, damages for trespass and an injunction restraining further trespass.
The first respondent had asserted ownership of the land in dispute claiming to have bought same from the Alade family on the 4th of February 1972 by two conveyances registered as No. 17, page 17 in volume 1350 and No. 21, page 21 in volume 1350 in the Land Registry in Ibadan. The second respondent was a representative of the Alade family.
The trial Judge held that the appellant (as plaintiff failed to prove the due execution of the conveyance (marked Exhibit "A") and therefore to discharge the onus on him to prove that it (the conveyance) had divested the Alade family of the interest they allegedly conveyed to the first respondent. He therefore dismissed the appellants claim against the first respondent and non-suited him against the second appellant.
The appellant appealed to the Court of Appeal against the entire decision of the trial court. The Court of Appeal dismissed the appeal, agreeing with the decision of the trial court whereupon the appellant further appealed to the Supreme Court.
HELD:
(1) Exhibit "A" is a certified true copy of the conveyance of 1958 between Victor Oludemi and the Alade Family registered as No. 19 at page 19 in Volume 254 in the Land Registry, Ibadan and registered in accordance with section 18 of the Land Instruments Registration Law of Oyo State.
(2) The effect of a combined reading of section 18(1)-(5) and 31(1) and (2) of the Land Instruments Registration Law is that the certified copy of a conveyance registered in accordance with section 18(3) and (4) will be admitted in evidence in accordance with section 31(1) and, in accordance with section 31(2) shall be received in evidence without any further or other proof in all civil cases. Therefore sections 122 and 129 of the Evidence Act dealing with the presumption of due execution are irrelevant.
(3) Where a certified true copy of a registered deed of conveyance is properly received in evidence, this will be sufficient as proof of the due execution of such Deed of Conveyance.
(4) The appellant had proved the due execution of Exhibit "A" which vested in Victor Oludemi all the property of the Alade family in the land in dispute.
(5) Where both parties claim and succeed in tracing their title in respect of the same piece of land to the same grantor, the rule is 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 the title in respect of the disputed piece of land has nothing left to convey to a subsequent purchaser-Nemo dat quod non habet.
(6) A 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.
(7) Since the appellant had established that Victor Oludemi obtained his title to the land in dispute before the first respondent and was in exclusive possession thereof before the later appeared on the scene the Lower Courts should have found for him (the appellant) in his claim for trespass and granted the order for injunction.
(8) Since the appellant had established by proving the due execution of exhibit A, that the Alade family, represented by the second respondent said the land in dispute to Victor Oludemi, he was entitled to judgement against the second respondent, the question of a non-suit therefore did not arise.
Funso Odelye for the Appellant.
Chief A.T. Sokan for the 1st Respondent.
Yemi Adefuye Esq. for the 2nd Respondent.
Appeal allowed.
Cases referred to:
1. Akanji v. Osarinde, (1977) 1 O.Y.S.H.C. (Pt.11) 161.
2. Akeju v. Suenu, (1925) 6 N.L.R. 87.
3. Amakar v. Obiefuna, (1974) 3 S.C. 67.
4. Arase v. Arase, (1981) 5 S.C. 33.
5. Boulos v. Odunsi, (1959) 4 F.S.C. 236.
6. Cardoso v. Daniel, (1966) All N.L.R. 25.
7. Coker v. Animashaun, (1960) L.L.R. 71.
8. Craig v. Craig, (1966) 1 All N.L.R. 173.
9. Gbamgbela v. Alade (Unreported) S.C. 327/1944 of 11/3/66.
10. Idundun v. Okumagba, (1976) N.M.L.R. 200.
11. Ikoko v. Oli, (1962) 1 All N.L.R. (Pt. 1) 194.
12. Jules v. Ajani, (1980) 5-7 S.C. 96.
13. Kodinliye v. Odu, (1935) 2 W.A.C.A. 336.
14. Rihwani v. Aromashodun, 14 W.A.C.A. 204.
15. Solanke v. Abed, (1962) N.W.L.R. 92.
Statutes referred to:
Evidence Act.
Land Instrument Registration Law Cap. 56 Laws of Oyo State.
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/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 appellant'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 1 of 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 and 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?"
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 are 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 Defendant/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 Defendant/Respondent 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 1st 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 "B" 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 section 18 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 31(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