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HASSAN RIHAWI AND OTHERS
V.
LIADI AROMASHODUN
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1952
W.A.C.A. NO. 3603
2PLR/1952/94 (WACA)
OTHER CITATION(S)
2PLR/1952/94 (WACA)
(1952) XIV WACA PP. 204-208
LEX (1952) – XIV WACA 204-208
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J. A.
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BETWEEN:
1. HASSAN RIHAWI
2. RAMOTU ALIAS LAYEBI
3. SARATA ASHABI
4. MOJIDI ALABI
5. SABITIYU AYOLA
6. OLABOPO ALAKE – Appellants
AND
LIADI AROMASHODUN, ON BEHALF OF HIMSELF AND ALL OTHER DESCENDANTS AND MEMBERS OF THE FAMILY OF OJO AROMASHODUN—DECEASED – Respondent
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ORIGINATING COURT(S)
Appeal by the defendants against the judgment of the Supreme Court
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REPRESENTATION
J. I. C. Taylor — for the Appellants
A. O. Lawson — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for declaration of title in fee simple—Judgment that property is family property – Native Law and Custom — Prescription — Stale claim – How treated
REAL ESTATE AND PROPERTY LAW:- Registration of Titles Ordinance (Cap. 197) — Land Registration Ordinance (Cap. 108)— Distinction
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CASE SUMMARY
The above respondent was successful as plaintiff in the Court below and the defendants appealed.
The plaintiff, suing for the members of the Family, asked for a declaration of title alleging that certain property “is family property and belongs to members of the family of … Ojo Aromashodun”; later he amended his writ to read “title in fee simple”, but he did not amend his statement of claim to make averments on which to found the claim as amended. The trial was on the footing that plaintiff would prove a title in fee simple.
The first defendant alleged that he had purchased the property from the other defendants and held-as was the fact-a certificate of title under the Registration of Titles Ordinance; and the other defendants justified their sale by claiming title by long possession and also by virtue of a deed of gift. The trial Judge found that the original owner gave the property to Ojo Aromashodun (through whom plaintiff claimed for Ojo’s descendants), that Ojo permitted his brother (through whom the defendants who sold to defendant 1 claimed) to live on the premises, that nothing passed from this brother to his wife as he was never seized of the property and therefore nothing passed from her under the gift she made to the defendants who sold to the first defendant, and that the property was family property.
In the appeal of the defendants against that judgment the points brought out were:-
(1) That the judgment that the property was family property differed from the plaintiff’s claim for a title in fee simple; a point which led the counsel for the plaintiff-respondent in the appeal-to ask the Court of Appeal to strike out the statement of claim and order a new trial on fresh pleadings;
(2) That the defendants who sold relied on long possession in Ojo’s brother and this brother’s descendants with acts adverse to Ojo and his descendants a point which the trial Judge seemed to dispose of by saying that a prescriptive title was not known to customary law; and
(3) That the first defendant relied not only on the other defendants’ title, by purchase from them, but also on his having a certificate of title by order of Court under the Registration of Titles Ordinance. By error the trial Judge referred to the Land Registration Ordinance, under which the registration of an instrument does not confer on it any effect or validity which it does not have, and overlooked the effect of a certificate of title under the other Ordinance.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
(1) According to the evidence and the finding of the trial Judge the title of the plaintiff, if any, was a title at native law and custom, but his claim was for a title in fee simple, the nature and incidents of which are very different, and the claim should have been dismissed. It was too late now to amend the claim and pleadings and undesirable to prolong the present suit.
(2) In view of the certificate of title granted to the first defendant under the Registration of Titles Ordinance and the provisions of this Ordinance, the plaintiff was bound first to secure rectification of the register, establish his adverse estate and remove the title of the first defendant from the register before he could secure any declaration of title.
(3) Obiter: The trial Judge overlooked the rule that on grounds of equity the Courts will not allow a party to invoke the strict principle of native law that there is no prescriptive title, for the purpose of bolstering up a stale claim, and did not consider this aspect of the case-which was a flaw in the judgment.
Case cited:-
(1) Akpan Awo v. Cookey Gam, 2 N.L.R. 97.
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MAIN JUDGMENT
The following judgment was delivered:
VERITY, C.J., NIGERIA.
In this case by his writ the plaintiff on behalf of himself and the other descendants of the family of Ojo Aromashodun claimed against the defendants a declaration of title to and recovery of possession of certain premises situate in Lagos. By his statement of claim in which was set out the particulars of his claim to title and possession he claimed “as per writ of summons” and asked for a declaration that the property “is family property and belongs to members of the family of … Ojo Aromashodun”. From the writ and the statement of claim it would appear that what was then sought was a declaration of title by native law and custom, but during the trial the plaintiff sought leave to amend and did amend the writ by adding the words “in fee simple” after the word “title” therein.
In view of the nature of the allegations in the statement of claim and of the words in the concluding paragraph thereof to which I have referred one would have thought that the plaintiff would have sought also to amend the statement of claim or that in the absence of amendment the defendant would have moved for judgment or to have had the statement of claim struck out for it contained no averments upon which the claim set out in the amended writ could be founded. No such course was pursued, however, and the hearing proceeded upon the footing that the plaintiff sought and was prepared to establish a title in fee simple. To this position it is now in my view too late for either party to take exception and I am not prepared to accede to the submission made by counsel who appeared on behalf of the respondent-plaintiff at the hearing of the appeal (who had not, I would make clear, appeared at the trial) that this Court should now strike out the statement of claim and order fresh pleadings and a new trial. The parties must in these circumstances be bound for good or ill by the course adopted or assented to by them at the trial in this regard. With the effect of all this I shall deal at a later stage.
The defence of the first defendant was that he had purchased the property from the other defendants and that he held a certificate of title under the Registration of Titles Ordinance (Cap. 197), while the remaining defendants justified their sale to the first defendant by claiming title by long possession and also by virtue of a deed of gift.
The learned trial Judge made the following findings: firstly that the land was given to Ojo Aromashodun through whom the plaintiff claims by the original owner; secondly that Ojo Aromashodun permitted his brother, through whom the second to the sixth defendants claim, to live on the premises, thirdly that as this brother was never seized of the property nothing passed from him to his wife the donor of the deed of gift and therefore nothing passed to these defendants thereunder, fourthly that these defendants had no title to convey to the first defendant, and fifthly that the property is family property.
It is apparent from the findings of the learned Judge as from allegations of fact put in the statement of claim and from the evidence that by “family property” is meant the property of the family, that is to say the descendants, of Ojo Aromashodun in accordance with native law and custom.
On the facts as found by the learned Judge and without consideration of the special defence of the first defendant, this would I think be a very proper finding but it is a very different thing from that claimed by the plaintiff which was an English title in fee simple. The nature and incidence (? incidents) of such a title are very different from those of a title at native law and custom and it is well established that the evidence sufficient to support one will not support the other. As the plaintiff’s claim was to a title in fee simple and the evidence showed, as the learned Judge found, that the title of the plaintiff, if any, was a title at native law and custom, I should have thought that the plaintiff’s claim would have been dismissed. The learned trial Judge, however, granted a declaration that the property in question “is the property of the members of the family of Ojo Arornashodun” which was not the declaration prayed.
This might be considered enough to dispose of the matter and indeed for this reason alone I think this appeal should be allowed and the judgment of the Court below reversed, but I think that it is desirable in the interests of both parties that further aspects of the matter should be considered.
In the first place it should be observed that the second to sixth defendants relied upon long possession, their case being that the brother of Ojo Aromashodun was in possession of his own right and not by licence and that he and his descendants for some seventy years have retained possession as owners and have from time to time by lease, mortgage and offers for sale dealt with the property as owners. I cannot find that the learned Judge came to any conclusion on this point other than what I may describe as the preliminary point that Ojo Aromashodun originally permitted his brother to live on the premises. I do not think that this finally disposed of the defendants’ claim for there can be little doubt surely that even if this were the origin of the possession of the defendants’ predecessor in title if he and they over a long period of years exercised acts of ownership in regard to the property inconsistent with the title of the original grantor of the licence their possession would be adverse to that of the grantor and further that if the grantor were aware of such acts certain consequences would arise.
It is true that the learned Judge stated in the course of his judgment that it was not established that certain of their acts (his Lordship referred specifically to the granting of two mortgages) were done with the knowledge and consent of the plaintiff’s family; at the same time he appears to have felt it necessary upon the whole of the evidence to rely upon the well established principle laid down in a number of cases, to two of which he refers, that “there is no such thing in native customary law as a prescriptive title”. This leaves me in some doubt as to whether he was satisfied upon the facts that there had been no long possession by the defendants adverse to the title of the plaintiff and his predecessors, for if not then no such question of law would arise. If upon the facts it did arise then the learned Judge does not appear to have directed his mind to the modification of the strict rule that there is no prescriptive title known to native law and custom to be found in such cases as the oft-cited Akpan Awo v. Cookey Gam (1) to the effect that the Courts on the grounds of equity will not allow a party to call in aid strict principles of native law for the purpose of bolstering up a stale claim. What effect a consideration of this modification would have had upon the learned Judge’s conclusion that “the claim of the defendants to have acquired a title by long adverse possession must fail” I am unable from a perusal of his judgment to determine, but it is certainly a question whether the learned Judge’s failure to consider this aspect of the matter was not a non-direction by reason of which his judgment could not be upheld. I incline to the view that on this ground also the appeal should succeed.
When one comes to consider the defence of the first defendant, however, it appears to me that the learned Judge fell into an error which goes to the root of the matter and which precluded him from arriving at a right decision not only upon the question as to whether the plaintiff was entitled to the relief claimed but as to the very nature of the action.
The first defendant claimed not only upon purchase from the other defendants in which case he would rely solely upon their title but also upon a certificate of title granted to him by order of the Supreme Court under the Registration of Titles Ordinance (Cap. 197). By a strange, but not it would appear peculiar lapse, the learned Judge sought to apply to such a title a provision from an Ordinance entirely inapplicable: the Land Registration Ordinance (Cap. 108). I say that this lapse is not peculiar for in a recent case at the present sittings of this Court another learned Judge erred similarly though conversely by applying to a document registered under the latter Ordinance provisions from the former. The possibility of confusion between these two Ordinances is only too apparent and may arise from the somewhat unfortunate short title of Cap. 108 – the Land Registration Ordinance. The long title is sufficiently clear, “An Ordinance to consolidate and amend the law relating to the registration of instruments affecting land in Nigeria.” It relates therefore to the registration of deeds and other instruments rather than the registration of lands and the short title is a misnomer.
Be that as it may there is of course no question that the substance of the enactments and their effect is entirely different. One is merely to record instruments of title and the other 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 the effect of which can only be invalidated, if it be a first registration by proof of an estate adverse to or in derogation of the title subsisting or capable of arising at the time of such registration or as regards any other registrations in any of the circumstances set out in section 61. In any case however it is implicit in legislation of this nature that the register shall be rectified, provision for which is made by the section to which I have just referred. It would defeat the whole purpose of the enactment if the register purported to confer an absolute title while in point of fact the title were subject to an estate adverse thereto or in derogation thereof and therefore if such estate be proved it is essential that the register be rectified.
In the present case were the judgment in the Court below to be of any effect the position would be that while the first defendant held a certificate evidencing the registration of an indefeasible title to the property in his name there would be a declaration of the Court that the title is vested in the family of the plaintiff. It is in my view clear that the plaintiff could not secure in the present action the relief he sought, for before he could secure a declaration of his title whether in fee simple or in accordance with native law and custom it would be essential that he should secure a rectification of the register, establish his adverse estate and remove from the register the title of the first defendant. This was neither sought nor obtained and for this reason also I think the appeal must be allowed, the judgment of the Court below in favour of the plaintiff be set aside and his claim be dismissed.
I would follow this course because I do not think it would be possible for this Court to order a new trial, which upon the present pleadings and evidence and with the present prayer for relief could not terminate otherwise than in another dismissal. It would be contrary to all rules and indeed render nugatory all rules of practice were the plaintiff at this stage to be allowed to amend the nature of his claim, the relief sought and his pleadings in order to enable him to proceed with greater chances of success.
There must be some limits to the length the Courts will go in allowing amendments, to use the words of Order XXXIII of the Supreme Court (Civil Procedure) Rules, “for the purpose of determining in the existing suit the real questions … in controversy”. If the length suggested in the present case is not beyond such limit then I fear pleadings will serve no purpose and new trials on fresh pleadings in respect of relief not originally claimed would tend to prolong litigation rather than the reverse. Whether the plaintiff has yet an opportunity in a fresh action in which to establish his real claim to an adverse estate whatever that may be and seek the relief requisite in that event is a question upon which no doubt he will seek advice but upon which I would in this judgment express no opinion. If I were to do so it would perhaps be disregarded in like manner as was that of Hallinan, J., in the suit in which the title of the first defendant was ordered to be registered. There are I fear those whom it is impossible for the Courts to protect from their own actions or those of their advisers.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Order: Appeal allowed with costs fixed at £48 17s. 9d. Judgment of Court below set aside and judgment entered for the defendants, with costs fixed at £23 12s. 0d.
Appeal allowed.