An insight into the Court of appeal landmark decision
CITATION:  2 NWLR PT.1707 AT 27.
Courtesy: Moruff O. Balogun, Esq.
Summary of Facts
The appellants claimed statutory title to a parcel of land measuring 12.97 acres located at Ikeja, Lagos State. In response, the respondents counter-claimed for a declaration of statutory right of occupancy over the land.
The appellants case was that their grandmother, Mrs. Flora Augusta Holloway, purchased the disputed parcel of land (the land) from one Mr. Ashade in 1918 and registered the conveyance at the Lands Registry of the colony of Lagos, now Lagos State, evidenced by an indenture dated 11th May 1926 (exhibit A); that the land devolved on her children upon her death in 1935 and to her grandchildren, the present appellants; and that acts of ownership like farming and leasing the land were exercised by their grandmother, her children, and the appellants.
They asserted that Lagos State government acquired the land in 1972, but on their plea, returned it to them; that thereafter, they leased portions of the land to sundry tenants; and that the respondents trespassed on the parcel of land in March, 2004 hence the appellants sued them.
On the other hand, the respondents asserted that their progenitor, one Akinole, founded the land and was later joined on the land by his brother, one Oshiun who had two slaves named Oroli or Owoeni and Kuleni or Huleni; and that the respondents inherited the land in the course of time.
The respondents alleged that because Akinole, the first Baale (Village Head) of Ogba died without a male offspring, his female children made Ashade, a descendant of Owoeni, one of the slaves of Oshiun the Baale of Ogba; that by Yoruba custom a slave could not own and transfer land; and that in a 1896 land case between Ashade and other parties, the then Colonial Court (Rayner, C.J.) gave judgment in favor of Ashade for trespass, but Ashade admitted in the records (exhibit 7) of the case that his grandfather from whom he later got the land, was a slave to Oshiun, the respondents’ ancestor. The respondent also pleaded that in the judgment (exhibit 2) of a subsequent suit, Desalu J. of the High Court of Lagos State found Ashade’s grandfather was a slave in Ogba.
In sum, the respondents case was that the appellants and their grandmother from whom they inherited the land got nothing as Ashade had nothing to give to them; and that the appellants and their grandmother have been trespassers on the parcel of land since 1918 and title thereto should be decreed in favour of the respondents.
The appellants filed a reply. They stated that slavery had been abolished at the time Ashade sold the land to their grandmother and the fact that Ashade’s grandfather was a slave could not have affected the right of Ashade to alienate the land. The appellants asserted that the respondents counter-claim was statute barred. They based their assertion on the footing that the land is in an urban area and that the relief sought in the counter-claim was for declaration of statutory right of occupancy. They also pleaded laches and acquiescence by the respondents.
The trial court accepted the respondents’ case, dismissed the Appellants’ suit, and granted the counter-claim of the respondents. The appellants appealed to the Court of Appeal (Lagos division).
Whether the trial court was correct in holding that it was unnecessary for it to determine the issue of the constitutionality or legality of slavery at the time of the execution of exhibit A in May 1926 in the light of the claims of the parties before it.
Whether the trial court was correct in holding that exhibit A; a duly registered Indenture of Conveyance cannot be a credible, genuine, and valid document upon which the court can grant a declaration of title because:
(a) exhibit A was issued by Ashade who was of slave parentage and therefore lacked the legal capacity to convey any title in the land in dispute to the appellants ancestor; and
(b) the appellants allegedly failed to lead any rebuttal evidence to establish their root of title in support of their pleadings.
Whether on the basis of the pleadings and evidence before it the trial court was correct in holding that the land in dispute was held under customary land tenure such that the Limitation Laws of Lagos State was inapplicable to extinguish any title or bar any right of action that the respondents may have to the land in dispute.
Whether upon the evidence adduced before it by the appellants, the trial court was correct in finding and holding that the appellants had failed to establish the creation of a new root of title by acquisition and release to warrant the invocation of the principle espoused in Yusuf v. Oyetunde (1998) 12 NWLR (Pt. 579) 483.
Whether in decreeing a declaration of title in favour of the respondents upon their counter claim, the trial court rightly considered the equitable defences of stale claim, laches and acquiescence and the repugnancy rule.
Held: (Unanimously allowing the appeal in part)
The following issues were raised and determined by the Court of Appeal:
On Duty on claimant to establish root of title to land where defendant challenges root of title pleaded by claimant –
Where a defendant challenges the source of title of the claimant’s vendor in a suit for title to land, the claimant has the onus to establish by credible evidence the source of his vendor’s title to the disputed parcel of land. In this case, the appellants pleaded a deed of conveyance (exhibit A) as source of their title to the land. The respondents disputed exhibit A on the ground that Ashade, the vendor, had no title to pass to the appellants’ grandmother, and that on the principle of nemo dat quod non habet (you cannot give what you do not have) exhibit A conveyed nothing to the appellants’ grandmother for her to pass to the appellants as an inheritance.
Therefore, the onus was on the appellant to establish by credible evidence the source of title of their grandmother’s vendor to the land. But the appellants were unable to prove the root of title of Ashade, and since their interest in the land is rooted in Ashade, who they said, conveyed the property to their grandmother, their claim failed.
On Effect of abolition of Slavery under Slavery Abolition Act or Ordinance, 1883 –
The Slavery Abolition Act or Ordinance of 1883, a statute of general application applicable to Nigeria, abolished slavery in Britain and the British colonies including Nigeria. In this case, the trial court erred when it held that Ashade, the son of a slave, lacked the legal capacity to make the transaction in exhibit A transferring the land to the grandmother of the appellants by purchase or deed of conveyance in 1918, when slavery had been long abolished at that time.
Per IKYEGH, J.C.A. :
The Slavery Abolition Act or Ordinance of 1883 cited by the appellants, a statute of general application applicable to Nigeria, abolished slavery in Britain and the British colonics including Nigeria. Thus in In Re Effiong Okon Ata (deceased) Abassi Okon Ekpan v Chief
Elijah Henshaw andAnor. (1930 – 1931) 10 NLR 65-66 a Nigerian case cited by the appellants:
“it was held aptly by Bufler-L.loyd, J., that the effect of the abolition of slavery was to make all persons equal before the law; that personal property acquired by slaves is in their absolute disposition subject to the ordinary rules of law as to dealings with it; that to hold that the mere fact of the slave continuing to reside on the communal property confers any rights on the head of the house in respect to personal property would stultify the provisions of the Slavery Abolition Ordinance; and that to import a native custom to that effect would be contrary to Justice and would therefore be improper to apply such naive law and custom. Then in In Re: Kweku Damptey (Deceased)-Kweku Kodieh v. Nana Kwami Afram (1930) 1 W.A.C.A. 12 at 13 – 14 (a Gold Coast, now Ghana, case then a British colony) cited by the appellants, Howes, J, delivering the judgment of the Court (concurred in by Dean, C.J., and Michelin, J.) held inter alia that by section 12 of the Slavery Abolition Act 1883, slavery was abolished and declared unlawful throughout the British Colonies, plantations and possessions abroad and that any native law and custom to the contrary was repugnant to justice equity and good conscience and could not be recognized or enforced by the court.”
Per Obaseki- Adejumo, J.C.A.:
“It is common historical fact that as it concerns the territory of Nigeria, the buying and selling of human beings, to wit slave trade was abolished by the Slavery Abolition Act, 1833, a Statute of General Application applicable to this country. The Act was enacted by the parliament of the United Kingdom to abolish slavery throughout the British Empire including the colony that was later named and now known as “Nigeria”. The precursor to this Act was the Abolition of Slave Trade Act, 1807, which had outlawed slave trading but not slavery itself. Therefore, in as much as I agree with the position that at the relevant time before the abolition of Slavery, a slave lacks the capacity to alienate proprietary interest in a land, this position is inapplicable in the instant case.”
On When reply to statement of defence is proper –
A reply to a statement of defence that answers an issue raised by a statement of defence for the purpose of rendering the matter raised in the statement of defence not maintainable and to avoid taking the defence by surprise on the issue is well laid. In this case, the respondents raised, in their pleadings, the issue of the status of Ashade as a slave incapable of selling the disputed parcel of land to the appellants’ grandmother. And the appellants raised the issue of the abolition of slavery in their amended reply to the statement of defence and defence to the respondents’ counter-claim. In the circumstance, the appellants’ averment that slavery was abolished at the material time and could not have affected the right of Ashade to alienate land was thus properly raised on the pleadings by the appellants to meet the respondents’ averment.
On Binding effect of admission-
An admission binds its maker. In this case, in the proceedings of the 1896 case (exhibit 7), Ashade admitted under-cross examination that his grandfather called Oroli was a slave brought by one “Oshiwin” and brought to Ogba. That was a solemn admission binding on Ashade and person(s) who derived title to land through him. The solemn admission in exhibit 7 established that the father of Ashade was the slave of one Oshiun.
On Effect of reliance on registered deed of conveyance-
Where a claimant for title to land relies on a registered deed of conveyance or indenture as his radical title to the disputed parcel of land, the claimant predicates his case on English law, not customary law. In this case, the appellants relied on exhibit A as the root of their title to the land. So, they based their case on English law, not on customary law.
On Import of claimant’s reliance on possession as root of title-
A party relying on possession as his source of title to land is merely saying he does not know how he got the parcel of land but knows he has been in possession of the land for long without disturbance, which differs from relying on a known and traceable source of title to land.
On Whether evidence admissible to alter contents of document-
By section 128(1) of the Evidence Act no evidence may be given to contradict, alter, add to, or vary the contents of a document. In this case both exhibits 2 and 7 stated that Ashade was from Ogba. Further, the contents of exhibit A do not state that the land is in urban area contrary to the appellants’ assertion.
On Subsistence of decision of court until set aside-
The decision of court stands until set aside on appeal. In this case, there was no appeal against the decision of the court in exhibit 2. Further, there was no evidence that the decision in exhibit 2 had been set aside. So the decision in exhibit 2 that the father of Ashade was the slave of one Oshiun stands.
On What claimant of title relying on possession must plead and prove to succeed –
A party relying on possession as title to land must plead and prove the nature of the possession as the radical title. If the claimant ties the radical title to a deed of conveyance as in this case where the appellants relied on exhibit A, the deed of conveyance, as their radical title to the land, the claimant swims or sinks with the fortunes of the deed of conveyance.
On Duty on claimant relying on deed of conveyance to prove title to land-
Where a claimant relies on a disputed conveyance in a suit for title to land, in addition to tendering the deed of conveyance in evidence, the claimant is obliged to call those who conveyed the land to him to testify to that effect. However, other credible evidence establishing the authenticity of the conveyance such as a witness to the grant or sale or the names of the vendor and claimant in the deed of conveyance attesting to the transaction embodied in the registered deed of conveyance without complaint from the adverse party may suffice. Tendering of the receipt of purchase may be dispensed with where there is other credible evidence like purchase price embodied in the registered deed of conveyance establishing the purchase of the land in question is put in evidence.
On Duty on claimant relying on document of title to prove title to land – A claimant for title to land, who relies on a grant of title, must prove inter alia that the grantor had in fact what he purported to grant, as well as the fact that the grantor had the authority to grant or sell the disputed parcel of land. In this case, the appellants failed to prove the root of title of Ashade to the parcel of land he conveyed in exhibit A to their grandmother. So the presumption that the registration of the deed of conveyance evidenced good title of the disputed parcel of land in favour of the appellants was displaced by the successful challenge of the source of title to the land, which Ashade conveyed the appellants’ grandmother. In the circumstance, the registration of exhibit A (the deed of conveyance) did not validate the vendor’s title to the disputed parcel of land. Therefore, the trial court rightly held that the appellants did not establish the source or root of title of Ashade, the vendor who sold the land to their grandmother by exhibit A and therefore did not satisfy the essential requirement of valid title to land by document of title or deed of conveyance. The trial court also rightly dismissed the appellants’ suit for lack of proof.
On Purpose of limitation law and effect where applicable –
A statute of limitation of action is intended to avoid the situation where a plaintiff rises from his slumber to commence action any time he desires and its effect is that a plaintiff who might otherwise have a cause of action loses the right to enforce it by judicial process and thus removes the right of action which is considered extinguished by effluxion of time. Therefore, a plaintiff cannot rely on limitation enactment to extinguish the action filed by him.
On Whether Limitation Law applies to land governed by customary tenure –
By section 68(1) of the Limitation Law of Lagos State, the Law does not apply to a parcel of land governed by customary tenure. In this case, the appellants did not prove that the land is in an urban area, and by the traditional history of the land pleaded by the respondents, the land is governed by customary tenure. So the respondents rightly argued that the Limitation Law of Lagos State does not apply to the land.
On When defences of laches and acquiescence are applicable-
Laches and acquiescence apply where either the plaintiff has, by his conduct done that which might fairly be regarded as a waiver of the remedy, or where by his conduct and neglect, he has, perhaps not waiving that remedy, yet put the defendant in a situation in which it will not be reasonable to place him if the remedies were afterwards to be asserted. In these cases, lapse of time and delay are most material, And upon these conditions rest the doctrine of laches. In effect, a plaintiff will only be barred from claiming any relief if he has not been reasonably diligent in seeking such relief from the court since it will be most inequitable to deprive a defendant of property of which he has held undisputed possession with the knowledge and acquiescence of those disputing his title.
The maxim is vigiantibus et non dormientibus jus Subvenuint- the law aids those who are vigilant, not those who sleep upon their rights. In other words, equity aids the vigilant and not the indolent. And so, a plaintiff in equity is bound to prosecute his claim without undue delay. However, the defenee of laches is only allowed where there is no statutory bar. Thus, if there is a statutory bar operating either expressly or by way of analogy, the plaintiff is entitled to the full statutory period before his claim becomes unenforceable. In this case, the respondents’ counter-claim being caught by laches and acquiescence was barred.
On What is a “gazette” –
A gazette is usually the official newspaper in which acts of a government, notices, appointments, and other legal or official matters are reported.
NOTE: The court of appeal stated as follows:
“In the final analysis, the appeal is allowed in part on the ground that the counter-claim was barred by the doctrine of laches and acquiescence and deserved to be refused by the court below; while the appeal dismissing the appellants’ action has no merit and is accordingly dismissed. Parties to bear their costs.”
Moruff O. Balogun Esq.
IJEBU ODE, OGUN STATE.