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MUMUNI ABUDULAI
V.
RAMOTU MANUE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
24TH DAY OF APRIL, 1945
2PLR/1944/68 (WACA)
OTHER CITATION(S)
2PLR/1944/68 (WACA)
(1945) X WACA PP. 172 – 175
LEX (1945) – X WACA PP. 172 – 175
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BROOKE, J.
FRANCIS, J.
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BETWEEN:
MUMUNI ABUDULAI – Defendant-Appellant
AND
RAMOTU MANUE – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal from the judgment of the Supreme Court.
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REPRESENTATION
I. F. Cameron — for Appellant
L. Odunsi — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Action for declaration of title to land — Long occupation by defendant-Conflicting evidence of title — Trial Judge’s findings
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CASE SUMMARY
Respondent (Plaintiff in the action) sued for a declaration of title to certain land occupied by Appellant, claiming that it had been sold to her father, who later let it to Appellant’s father, after whose death it remained in Appellant’s occupation. Respondent went away but on her return Appellant claimed that the land had been sold to his father; he also pleaded long possession, laches and estoppel. The evidence was conflicting but the trial Judge found in Respondent’s favour, and the Appellant (Defendant in the action) appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. the trial Judge’s finding of fact would not be disturbed as it could be supported by the evidence.
2. in a claim solely for declaration of title the onus to prove acts of ownership is only thrown upon the plaintiff where the other evidence of title is inconclusive or lacking, and does not arise where the plaintiff relies upon and proves title by grant.
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MAIN JUDGMENT
The judgment of the Court was delivered by Brooke, J.:
The Plaintiff by her writ, seeks a declaration of title to “all that piece of land situated at Makoko Village, Yaba, now in the occupation of the defendant,” and she sues on behalf of herself and other descendants of Adamu Manue (deceased) who are averred to have given their consent to this action being brought (paragraph 6 of Statement of Claim): in evidence she stated that she claimed as the only surviving descendant of Adamu Manue. It is not disputed that the land originally formed part of the chieftaincy land of the Oloto family and the plaintiff claims that it was sold by Eshugbayi Chief Oloto to her father Adamu Manue some years ago: he lived there himself but later let it out to one Abudulai Gambari. After the latter’s death one of his children, the defendant remained in occupation and the plaintiff went away-or as she describes it “went abroad” though she appears to have gone no further than Itori — to trade and when she returned the defendant claimed that the land had been sold to his father and had descended to him as next-of-kin: he refused to continue the payment of rent or to give up possession. The defendant denies that the land was ever sold to the plaintiff’s father or that plaintiff’s father lived there, as well as that the plaintiff is entitled to possession: he also pleaded long possession, laches, estoppel and standing-by.
The plaintiff gave evidence herself and called two witnesses who are members of the Oloto family. For the defence there was one witness besides the defendant himself: he said he knew the defendant’s father was burning bricks there in 1892 but he had not been near the land since then. The Court accepted the testimony of the former and gave judgment for the plaintiff in the following terms:-
“I am satisfied that she has proved her title to the land and there will be judgment for the plaintiff with twenty five guineas costs.”
There was a plan put in by the plaintiff (Ex. AC. 1) the result of a recent survey and one put in by the defendant (Ex. AC. 2) dated 1891 and there is also a land certificate of measurement of the 28th January, 1891 (Ex. EF.I) put in by defendant. The defendant’s father and the defendant have been in undisturbed occupation for over forty years. Counsel for the defendant rightly emphasised the fact that this is a claim for a declaration of title to land and not a mere question of which of the parties can prove the better title on the balance of proof. There is no mention in the writ of any claim for recovery of possession of land.
There were four grounds of appeal:
1. The learned trial Judge was wrong in attaching any weight to the declaration of 20-2-1943 of the present Chief Oloto in the face of the conflicting evidence given by the representatives of the Oloto family on behalf of the Plaintiff-Respondent and the fact that such declaration was obtained by Plaintiff-Respondent for the purpose of the action.
2. The learned trial Judge was wrong in finding that on the strength of the evidence of the representatives of the Oloto family alone, the Plaintiff-Respondent had proved her title to the land, but should have found that the Plaintiff-Respondent having failed to prove a single act of ownership over a period of 25 years, she had failed to discharge the onus which rested on her as laid down in the case of Ekpo Eta Ekpo v. Chief Ita Eta Ita (XI N.L.R. 68).
3. The learned trial Judge was wrong in not finding that the Plaintiff-Respondent was estopped by the Defendant-Appellant’s long and undisturbed possession and the Plaintiff-Respondent’s laches and standing-by.
4. The judgment is against the weight of evidence.”
Each of these argued at length by Counsel for the Appellant and he attacked in lucid and forceful manner the evidence for the plaintiff which had been accepted by the learned trial Judge. A series of cases was referred to in this connection and it is fully appreciated that although the reversal of a finding of fact of Judge who sat without the assistance of a jury is within the competence of a Court of Appeal the presumption is that the decision of the trial Judge on the facts was right and that presumption must be displaced by the Appellant. The plaintiff who is about 74 years of age gave evidence that the land was originally given to her father by the Oloto and that he subsequently bought it: she had formerly been in possession of receipts for the payment made but lost them; that her father put the defendant’s father on a portion of the land but the defendant’s father predeceased him and one Imoru took possession and paid rent but that her father died and the defendant occupied the land and had been in occupation ever since. She returned in 1918 and knew the defendant was on the land but again left for Abeokuta and could not bring this action before because she had no money to do so. The 3rd and 4th witnesses are members of the Oloto family: their testimony is seen to have been unsatisfactory and contradictory in parts but this was mentioned in the judgment and the 4th witness was described as “not an impressive one and prone to prevaricate” but in the main corroborated “plaintiff’s story” and “was in a difficult position in that he had filed a statement of interest in another case claiming title to a portion of the land the subject matter of this action”.
The plaintiff also placed reliance upon Ex. YF.1 which is in the following terms:-
“20/2/43.
‘To whomsoever it may concern
“I Akinlolu Akodu Chief, Oloto of Oto, an Idejo Chief of Lagos with the consent of the family council hereby confirm that the land described in Plan No. C9/43 prepared by Mr. Adekunle Coker, Licensed Surveyor, is a portion of the land sold to Adamu Manue by late Chief Eshugbayi Oloto, my predecessor.
Chief Akinlolu Oloto His left thumb impression
Witnesses:
(Sgd.) Yesufu Fadairo
(Sgd.) Ashafa B. Tijani
(Sgd.) E. Jas Ogundimu
(Sgd.) Sanusi S. Oba”.
It is dated the 20th of February, 1943 and refers to a plan which is not before the Court. Much was made of the fact that the Respondent had failed to prove any act of ownership over a period of 25 years and the case of Ekpo v. Chief Ita 11 N.L.R. 68 was relied upon to support the proposition that a claim for declaration of title cannot succeed unless the plaintiff proves acts of ownership extending over a length of time. In this connection we think it necessary to point out that that case seems to have been misunderstood as going further than it in fact does, owing possibly to the too general terms of the wording of the judgment. It is clear that the dictum does not apply whereas in this case, the plaintiff relies upon and proves title by grant; the onus as to acts of ownership is only thrown upon the plaintiff where the other evidence of title is inconclusive or entirely lacking. Both from record of the proceedings and the judgement it is seen that the learned trial Judge was fully aware of the nature of the evidence before him and that in spite of the unsatisfactory elements he found for the plaintiff it must not be overlooked that the Ex. YF.1 was a declaration against interest and that this aspect of it is not affected by any subsequent action by the Oloto family. It cannot be said that any incorrect principle in considering the matter was applied in the Court below or that the finding was unsupported by evidence; we are not satisfied that the finding was wrong or such that the verdict cannot be supported on the evidence.
As regards acquiescence the Court below held that in the circumstances there had not been anything which would justify it in finding that the plaintiff was now debarred from bringing this action which is for a declaration of title and we agree with this in the special circumstances: there is no claim for possession and we are not called upon to express any opinion as to what the position would be if the plaintiff sought to pursue her remedy and recover possession of land from the defendant who claims that he and his father have been in the undisturbed possession for over forty years.
The appeal cannot succeed on any of the grounds of appeal, but we think that the judgment of the Court below — merely judgment for the plaintiff, presumably in terms of the writ — is not sufficiently definite and that the plan Ex. AC. I should be incorporated as part of the judgment. It is accordingly ordered that the judgment of the Court below be amended to read—
“Judgment for the plaintiff for a declaration of title to all that piece of land situated at Makoko Village, Yaba, shown and edged crimson on the plan marked as Ex. AC. 1 in this suit, with twenty five guineas costs”.
subject to this amendment the appeal is dismissed with costs assessed at 20 guineas.
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