⦿ CASE SUMMARY OF:
Gabriel Adewole Tewogbade v. Mrs. V.A. Obadina (1994) – SC
– Execution of deed;
– Land instrument;
– Title to land;
Gabriel Adewole Tewogbade
Mrs. V.A. Obadina
(1994) 4 NWLR (Pt.338)326;
(1994) 4 SCNJ 161;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
It is common ground that the land in dispute to which both parties claim ownership was originally the property of the Ikolaba family of Ibadan. Both the plaintiff and the defendant claimed their root of title through the said Ikolaba family. The plaintiff traced her title to the land from the Ikolaba family through a power of attorney, Exhibit B’, which was given by the family to some of their members. It is the plaintiff’s case as pleaded in paragraph 2 of her statement of claim that by virtue of the conveyance, Exhibit C’, the Ikolaba family sold to P.W.7. Alhaji Alimi Akinpelu, a large piece or parcel of their family land of which the land now in dispute “was claimed” to form a part. Following this claim on the part of Akinpelu, the plaintiff was obliged to purchase the land in dispute which comprised of two plots from him. This was by Exhibit G’ and the consideration was N3,200.00. It however transpired that the land conveyed to Akinpelu by Exhibit C’ did not as a matter of fact include the land in dispute which he purportedly sold to the plaintiff. This is clearly indicated in the plaintiff’s composite plan Exhibit D’ as well as in the evidence of her witness, Williams Gascoyne who is P.W.2 in this case. Akinpelu and no right therefore to deal with the said land in dispute as the same was patently outside the piece or parcel of land conveyed to him by the Ikolaba family in Exhibit C. The plaintiff was in the process of developing the land in dispute when P.W.3 Joseph Olaoluwa Ayoola stopped her and claimed ownership of a large piece or parcel of land including the land in dispute by virtue of the power of attorney, Exhibit B, and the conveyance, Exhibit A’. Exhibit’A’ is dated the 16th September, 1968 and is duly registered. In the face of this development, the plaintiff had no option than to repurchase the land in dispute from P.W.3. This is by Exhibit E’ dated the 21st March, 1978 and the consideration therein in N6000.00. Thinking that all was then well the plaintiff commenced building constructions on one of the two plots of land but was this time challenged by the Ikolaba family. Once again, the plaintiff by Exhibit H’, settled with them by payment of N2000.00 to ratify her previous purchase of the land in dispute. When the plaintiff settled down to the final development of the land, the defendant again surfaced and chased her with her workers out of the land by force of arms. It was this act of the defendant that precipitated this action.
The defendant, for his own part, claimed also to have derived title to the disputed land from the Ikolaba family by virtue of the conveyance, Exhibit O’ which is dated the 7th day of November, 1975. He denied that the land in dispute was at any time sold by the Ikolaba family to P.W.3, Ayools, under or by virtue of Exhibit A. He further denied that the land in dispute was sold by the Ikolaba family to Akinpelu. He averred in paragraphs 9 and 35 of his statement of defence that the conveyances relied on by the plaintiff are forgeries. Indeed it is his case as testified to by his witness, Alhaji Lamidi Lawal, that Exhibit A’ is also a forgery.
By a writ of summons filed in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiff, who is now respondent, instituted an action against the defendant, now appellant, claiming as follows: “(a) Declaration that the plaintiff is entitled to Statutory Right of Occupancy to all that piece and parcel of land known as Plots 1 and 2, Alafia Layout, Ikolaba village, Ibadan, particularly shown on Plan No. MAY 95AD/76 dated 9th November, 1976, made by M.A. Laoye Esq., Licensed Surveyor, thereon edged red and all the right of way and easements attached thereto. (b) N20,000.00 (TWENTY THOUSAND NAIRA) general and special damages for trespass and for the destruction of the wall fence made round the Plots of land by the plaintiff and also all other materials deposited thereon. (c) Perpetual Injunction restraining the Defendant, his agents, servants, workers, privies and all persons whatsoever claiming through him.” Pleadings were ordered in the suit and were duly settled, filed and exchanged. The defendant, in his Statement of Defence counter-claimed against the plaintiff for the following reliefs: “(a) N1,000.00 damages for trespass committed by the plaintiff sometime in 1980 on the parcel of land edged green which is within area the edged red in plan No.AD234/81: (b) Injunction restraining the plaintiff, her servants, agents et cetera from entering the land in dispute.”
The plaintiff duly filed a reply to the defendant’s Statement of Defence and counterclaim. Issues were joined by the parties in their pleadings and the case proceeded to trial before Ibidapo Obe, J. sitting at the Ibadan High Court.
At the conclusion of hearing, the learned trial Judge, after a careful review of the evidence on the 30th November, 1981, entered judgment for the plaintiff as the rightful owner of the disputed land and therefore entitled to a certificate of occupancy in respect thereof in accordance with the provisions of the Land Use Act. An order of perpetual injunction was also issued restraining the defendant, his servants and/or agents from any further acts of trespass on the said land. The defendant, being dissatisfied with the said judgment, lodged an appeal against the same to the Court of Appeal, Ibadan Division on the 2nd February, 1982. The plaintiff on the 10th February, 1982 also cross-appealed against that part of the judgment of the trial court which dismissed her claim for damages for trespass. The Court of Appeal in a unanimous decision dismissed both the appeal and the crossappeal. Aggrieved, by this decision of the Court of Appeal, the defendant has further appealed to this court on a six ground notice of appeal.
1. Whether there was proof of due execution of Exhibit A.
2. Whether the decision of the Supreme Court in Jules v. Ajani (1980) 5-7 SC 96 on presumption of due execution ought not to be overruled in view of the earlier decision in Cardozo v. Daniel (1966) 1 All NLR 25.
3. Whether the plaintiff/respondent established her title to the land in dispute.
4. Whether there was proof that Exhibit A was a forgery.
⦿ ARGUMENTS OF PARTIES
* FOR THE APPELLANT
1 & 2. i. Learned counsel submitted that the burden of proving due execution of Exhibit’ A’ is on the respondent who affirms due execution. In this regard, he referred to section 99 of the Evidence Act. Exhibit’ A’ which is a certified true copy of the deed of conveyance between the donees of the power of attorney, Exhibit B’, and P.W.3 Joseph Olaoluwa Ayoola, was attacked on the ground that it is a forgery.
ii. Learned counsel criticised the finding of the Court of Appeal per Ogwuegbu, J.C.A. as he then was, to the effect that Exhibit’ A’ was properly admitted in evidence without further or other proof of such matter as due execution. He argued that in the face of the evidence of D.W.6 who denied that he thumbimpressed Exhibit A’, a case of forgery of the document was made out which should have led to the conclusion that the due execution of the document was not proved.
3. The main argument of the appellant on this issue is that the respondent’s title documents, particularly Exhibits A, C & E were defective and conveyed nothing to the respondent. He argued that since the respondent’s case is that the land she purchased from P.W.7 was subsequently repurchased from P.W.3 and was covered by Exhibit C, the said respondent’s case ought to have collapsed in the face of the finding by the trial court that the land covered by Exhibit C did not fall within the land in dispute. The appellant finally contended that Exhibit E being an unregistered instrument is inadmissible in evidence and that the respondent at all events did not rely on any equitable title to the land in dispute as part of her case.
*FOR THE RESPONDENT
1 & 2. i. Learned counsel for the respondent, on the other hand, contended on the issue of the due execution of Exhibit A that the learned trial Judge, reviewed the evidence and found that Exhibit A’, having been produced from lawful custody by the Registrar of Deeds, was a genuine document. The trial Judge further held that from the pleadings and evidence adduced before the court, he was bound by the decision in Jules v. Ajani as the facts in both cases are similar.
ii. He pointed out that Exhibit’ A’ was executed in the presence of a Magistrate and that there s the presumption of regularity of due execution thereof under Section 149(1) of the Evidence Act. He conceded that the appellant was entitled to challenge the validity of Exhibit’ A’ as he did in the present case but submitted that he failed to establish that the deed is a forgery.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N1,000 COST]
1 & 2. ISSUE 1 & 2 WAS CONSIDERED TOGETHER AND DECIDED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANT.
i. The appellant claims his title to the land in dispute through Exhibit O’ which is dated the 7th November, 1975 but registered on the 27th day of November, 1975. This conveyance is between the Ikolaba family as vendors and the appellant as the purchaser.
The respondent, for her own part, claims her title to the same piece of land through Exhibits’ A’, E’ and ‘H’. Exhibit’ A’ is the deed of convenyance between the Ikolaba family as the vendors and Joseph Olaoluwa Ayoola as the purchaser. It is dated the 16th day of September 1968 but registered on the 8th day of May 1969.
In the circumstance. Exhibit’ A’ which was executed and registered well over six years before Exhibit O’ came into being is in law superior to and must enjoy definite priority in terms of validity of purchase over Exhibit O’. I will now consider whether the trial court and the court below were both in error when they held that there was proof of due execution of Exhibit’ A’.
ii. It seems to me indisputable that Exhibit A was issued pursuant to Section 31(1) of the Land Instruments Registration Law of Oyo State, Cap. 56, Laws of Oyo State 1978. No issue was joined at the hearing as to whether or not the original copy of the deed of conveyance in question was regularly registered as required by Section 18 of the Law. As a matter or fact, Exhibit A exfacie was executed by the illiterate vendors before a Magistrate as required by law. Thus, in accordance with the maxim omnia praesumuntur rite esse acta there is the presumption that the execution by the illiterates was rightly and regularly done in the absence of any evidence to the contrary.
iii. I entertain no doubt that Exhibit A was lawfully, regularly and properly registered as required by law and that it is admissible in evidence pursuant to the provisions of Section 96(1)(f), 108, 110 and 111 of the Evidence Act. It is also my firm view that once the provisions of Sections 18(3) and (4) and Section 31(1) of the Land Instruments Registration Law are complied with, a duly certified copy of an instrument such as Exhibit A shall be admitted in evidence without any further or other proof of such matters such as execution by the parties in accordance with the provisions of Section 31(2) of the Law.
iv. This however does not mean that a party who claims that the original or, indeed, a certified true copy of such an original instrument is a forgery is disqualified or estopped from advancing such a defence. All it means is that such claimant in order to dislodge the presumption of regularity provided under Section 31(2) of the Land Instruments Registration Law must be prepared to establish which forgery without any shadow of doubt as required by law.
3. ISSUE 3 WAS JUDGED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the first place, Exhibit A by which the Ikolaba family conveyed a piece or parcel of land of which the land in dispute forms a part is dated the 16th September, 1968 but was registered on the 8th May, 1969. Exhibit O by which the said Ikolaba family apparently conveyed the same piece or parcel of land to the appellant is dated the 7th November, 1975 but registered on the 27th November, 1975. It is therefore clear that the conveyance, Exhibit A, is first in time and must enjoy definite superiority in terms of validity than Exhibit O. P.W.3 as the lawful owner thereof was entitled, in the words of the trial court, to do whatever he pleased with it. Pursuant thereof, he sold the said piece or parcel of land to the respondent and surrendered all his interest in the land to her. In this regard P.W.3 issued Exhibit E to the respondent who accordingly went into possession of the land in dispute.
4. ISSUE 4 WAS ANSWERED IN THE NEGATIVE IN FAVOUR OF THE RESPONDENT.
⦿ SOME PROVISIONS
Section 18 of the Land Instruments Registration Law of Oyo State, Cap 56, Volume III, Laws of Oyo State, 1978 provides 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 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”.
Sections 31(1) and (2) of the Land Instruments Registration Law of Oyo State which provide as follows – “31(1) The registrar shall upon request give a certified copy of any entry in any such register, or of any filed document. (2). Every such certified copy shall be received in evidence, without any further or other proof in civil cases”
⦿ RELEVANT CASES
In the case of Oduye v. Nigeria Airways Ltd. (1987) 2 NWLR (Pt.55) 126 at page 129 this Court held as guiding principles on whether or not to overrule previous decisions:
“1. That the Court is bound to adhere loyally to former decisions unless clearly satisfied that they are wrong. 2. It is necessary that there is some appreciable and reliable amount of certainty in the law including the case law; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 followed. 3. What is important in any decision is the principle it decided and that is what one has to look for in every decision and not the manner in which the Judge argued. 4. The law grows and though the principles of law remain unchanged their application is to be changed with the changing circumstances of the time. 5. Where a rule of common law has been enacted with words intended as a departure from the common law it loses its meaning from the statute”.
⦿ NOTABLE DICTA
The underlining considerations for departing from a previous decision by the Supreme Court are, inter alia. that the decision is impeding the proper development of the law or has led to results which are unjust or undesirable or which are contrary to public policy. This court may also depart from its previous decision if such previous decision is inconsistent with the Constitution or is erroneous on point of law or that it was given per incuriam or that it is occasioning miscarriage of justice or perpetrating injustice. – Iguh, JSC. Tewogbade v. Obadina (1994)
With regard to the challenge to the validity of Exhibit A, while the appellant is by law perfectly entitled to do so his challenge being that the document was forged, forgery being a criminal offence, the appellant indeed has a burden of proving his case beyond reasonable doubt. – Onu, JSC. Tewogbade v. Obadina (1994)
The law is clear and this court has stated times without number that where forgery of a document, as in the instant case, is alleged there is no initial burden on the plaintiff to prove due execution but the primary burden is on the defendant who alleged forgery to prove the forgery alleged by him. – Onu, JSC. Tewogbade v. Obadina (1994)
Where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor. The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him. – Iguh, JSC. Tewogbade v. Obadina (1994)