Supreme Court 17th April. 1940Lagos, 17th April, 1940

Claim for declaration of ownership to land--prima facie case of title made out and no cross-examination on-failure to produce original document of title-misdirection--retrial de novo.

The facts are set out in the judgment.

Held: That the failure to produce the original document of title did not in the circumstances justify the dismissal of the action at the close of the Plaintiff's case; and that the fact that Appellant had not proved her title to the land in previous proceedings was of no evidential value.

Judgment of Court below set aside and case remitted to be retried de novo by another Judge.

The facts of the case are sufficiently set out in the judgment.

O .. AIakija (with him E. E. McCarthy) for Appellant.

O. Caxton Martins for Respondents.

The following joint judgment-as delivered:-

KINGDON. C.]., NIGERIA, PETRIDES, C.]., GOLD COAST AND GRAHAM PAUL, C.] SIERRA LEONE.

The Plaintiff-Appellant claimed in the Court below a declaration against all the Respondents that she is the owner of a piece or parcel of land situate at lbadan Street Oko Baba, ,Ebute Metta. Her case was that the land in question belonged to the OIoto family and that she had purchased it from the Oloto family under a conveyance dated 9th February, 1924· and duly registered in the Lands Registry.

The Plaintiff-Appellant herself gave evidence that after there had been some litigation about the land subsequent to her purchase she went with OIoto to the land and with him put up boundary marks. She had brought an action against Oloto which she withdrew because Oloto in his pleadings said he had conveyed the land to her and put her in possessiot1. There was, according to the evidence for the Appellant, an action by an auctioneer against her, and on the judgment in that action execution was done by Writ of Fi. Fa. against this land in question. One Oshodi, now deceased, went to the auctioneer, paid him what was due, and in exchange received from the auctioneer the Plaintiff's original document of title to tl:1is land ,which had been handed to the auctioneer, by the Appellant with her instructions to sell a portion of the land. The auctioneer had retained the document in his possession as security, for the payment of his charges in connection with the sale which had proved abortive. The auctioneer himself gave evidence to this effect in support of the Appellant's case.

Oshodi dyed. The Appellant apparently never paid either to Oshodi in his lifetime or to his representatives on his death the amount which Oshodi had expended on her behalf, so she never got back the original document of title which ,vas for that reason not produced in evidence by the Appellant. This explanation was apparently accepted as satisfactory by the Respondents' Counsel in the Court below, and by the Court below, for when the Appellant tendered in evidence a certified copy from. the Lands Registry no: objection was taken by the Respondents' Counsel to its admissibility) and it was duly received in evidence by the Court below.

The Appellant called two witnesses to the fact that the lane \\-as originally the property of the Oloto Family. One was the auctioneer, himself a member of the Oloto Family and the other; was Fadayiro of Oto Town, who had witnessed the conveyance 0 this land by " the representatives and Heads of the Oloto Family~ for themselves and on behalf of the Oloto Family" to the Appellant The latter witness was not cross-examined by the Respondents Counsel and that fact may quite possibly have induced the Appellant's Counsel not to call further evidence as to the land having originally belonged to the Oloto Family.

Having heard that evidence the Court below on the submission by the respondents' Counsel that there was no case for the Respondents· to answer proceeded to give judgment dismissing the action without calling on the Respondents to lead any evidence.

In our opinion the Court below was wrong in so dismissing the action. On the evidence to which we have referred it is clear that there was a prima facie case of title made out inter partes. The learned Judge never suggested in his judgment that he did not accept the uncross-examined evidence as to 010to Family ownership, an having heard the explanation as to the non-production of the origin; document of title and received in evidence the officially certified copy the~ learned Judge was in our opinion wrong to base his judgment, as in fact he expressly did, on the Plaintiff being  unable to produce the document of title to the land."

It is most important to note that the Respondents' statement of defence was before the Court below, and that from it and fro: the evidence it appeared that the Respondents were actually claiming title to this land through the late Oshodi or his representatives that is to say through the very man who on the uncontradicted evidence before the Court had got possession of the Appellan1 original document of title in a way which at the highest gave hi no more than possibly an equitable mortgage over the land for repayment of what was due to him by the Appellant in respect his having paid her debt to the auctioneer.

Suppose for the sake of argument a Plaintiff in a suit for declaration of title alleged and proved that his original document of title had been fraudulently obtained by the person from whom the Defendant in his pleadings traced his title to the land. the Court obviously could not at the close of the Plaintiff's case dismiss the action on the ground that the Plaintiff could not produce his original document of title. That is we think the reductio ad absurdum of what was done by the Court below in this case.

The learned Judge further gave as a reason for his judgment that the Appellant deposed in evidence" that a Court of Record has already decided in favour of a would-be purchaser that she had not a good title to support a contract of sale." We are unable to find in the Appellant's somewhat vague evidence as to her unsuccessful attempt to sell portions of this land anything which comes up to the statement quoted from the judgment. Upon that point we think the learned Judge materially misdirected himself.

We regard the fact that the Appellant had not proved her title to the land in previous proceedings as of no evidential value, and we think that the learned Judge gave undue weight to that fact in his judgment.

For these reasons the judgment of the Court below includll1g the Order as to costs, is set aside, and the case is remitted to the Court below to be retried de novo by another Judge. The Appellant is awarded costs in this Court assessed at 35 guineas.

As regards costs of the proceedings already concluded in the Court below the Plaintiff is to have these costs if she succeeds in the new trial but the Defendants are not to have these costs in any event. The trial Judge at the new trial will of course separately deal with the costs of the new trial in the ordinary way.