ADELAJA V. FANOIKI & ANOR.

• Pages: 343-367

ADELAJA V. FANOIKI & ANOR.

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343

ADELAJA V. FANOIKI & ANOR.

5

ABIODUN ADELAJA

(Attorney for Victor Oludemi)

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V

OLATUNDE FANOIKI & ANOR.

SUPREME COURT OF NIGERIA

NNAMANI,

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J.S.C.

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UWAIS,

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J.S.C.

KARIBI-WHYTE,

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J.S.C.

KAWU,

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J.S.C.

AGBAJE,

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J.S.C.

23rd March, 1990.

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APPELLANT

RESPONDENTS

SUIT NO. SC.166/1986.

Land Law - Declaration of title - Onus of proof - How discharged - Conveyance - Due

execution - How proved - Ss. 18( 1) - (5) and 31, Land Instruments Registration Law,

(Cap.56) of Oyo State - Scope of - Decision in Jules v. Ajani - Scope of

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Evidence - Presumptions of Due execution - ss.99, 122 & 129, Evidence Act - When availing

- Admissibility of Secondary evidence - Conditions precedent.

Courts - Supreme Court - Departure from earlier decision - Need for Counsel to expressly

urge so.

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Practice and Procedure - Order 6 rule 5(4), Rules of the Supreme Court - Scope of -Appeals

- Issues for determination - Formulation of - How done.

ISSUES:

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1. What is proof of due execution?

2.

Whether a certified true copy of a deed of conveyance is admissible in evidence

under the Land Instruments Registration Law, cap.56 of Oyo State?

3.

How are issues for determination formulated?

4.

How is title to land established where two parties claimed and succeeded in

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tracing their title to a common grantor?

5.

On whom lies the onus of proof of the non-existence or forgery of a document?

6.

Whether certified true copy of a registered deed of conveyance properly received

in evidence is sufficient to prove due execution?

7.

Who can bring an action for trespass to land?

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FACTS:

The plaintiff sued, as Attorney for one Victor Oludemi, the defendants claiming,

inter alia,

declaration of title to a piece of land situate at Tabontabon Village, Oke-Ado,

I badan in Oyo State, and injunction restraining the defendants from further trespass-

ing on the said piece or parcel of land or any portion thereof. He contended that ,

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as Attorney of the said Victor Oludemi, he purchased a large parcel of the defendants'

family land, inclusive of the portion of the land which the defendants trespassed

upon, from the 2nd and 3rd defendants who were members of Alade family of

Tabontabon Village (original owners of the land) in March, 1958 under native law and

custom. The purchase was on behalf of Victor Oludemi. He further asserts that the

defendants executed a deed of conveyance of the land on the 16th of June, 1958 in

favour of the said Victor Oludemi.

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NIGERIAN SUPREME COURT CASES

11990] 1 N.S.C.C.

On his own part, the 1st defendant claimed he bought the land in dispute in 1971

from the 2nd and 3rd defendants who executed a deed of conveyance in his favour

on the 14th of February, 1972. The 2nd and 3rd defendants denied ever selling or

executing any conveyance of the family land to the plaintiff.

The learned trial Judge held that the plaintiff had failed to prove due execution of 5

the deed of conveyance (marked Exhibit 'A') by the defendants/grantors. On appeal

by the plaintiff to the Court of Appeal, Ibadan Division, that Court affirmed the

decision of the trial court, holding, not only that the plaintiff failed to prove due

execution of Exhibit 'A' (the deed of conveyance), but that that document cannot

enjoy the presumption of due execution contained in ss. 122 & 129 of the Evidence 10

Act.

The plaintiff appealed further to the Supreme Court contending,

inter a/ia,

that

the Court of Appeal erred in Law when it held that no evidence was infact led in proof

of execution besides the

IPSE DIXIT

of the plaintiff when it failed to evaluate, at all,

the issue of execution and registration of the plaintiff's conveyance admitted as 15

Exhibit 'A' and thereby making no finding on that issue.

HELD:

1.

Proof of due execution means that it has to be established that the person alleged

to have signed the document has infact signed it and furthermore, his right to

sign the document in the capacity in which he does so must be established. In 20

the instant case, plaintiff clearly showed proof of due execution of the Deed of

Conveyance marked Exhibit 'A' since it (Exh. 'A') is a certified true copy of the

conveyance relied upon by him as required by s. 18(1)-(5) and s. 31 of the Land

Instruments Registration Law of Oyo State, cap.56.

2.

Clearly, a certified true copy of a document is secondary evidence of the primary 25

document, the original document. Thus, a certified true copy of a deed of

conveyance registered under the Land Instruments Registration Law, cap.56 of

Oyo State will be admissible in evidence under s. 96(1) of the Evidence Act by

virtue of s.31 of the Land Instruments Registration Law. Such a document as in

the instant case , will be admitted in evidence without any further proof or other 30

proof of the conditions to which admissibility of secondary evidence is subject,

like, for instance, loss of the original.

3.

It is now fairly well settled that the issues for determination in the appeal

formulated must of necessity be limited and be circumscribed, and fall within the

scope of the grounds of appeal filed. Since they arise from the grounds of appeal, 35

the issues ought to take account of the grounds of appeal and cannot raise issues

outside their contemplation. It is, therefore, not usually envisaged that the issues

for determination will be more in number than the grounds of appeal on which

they are based. Since the issues for determination are highlights of the grounds

of appeal, they are usually framed in terms of related grounds of appeal 40

supporting the same issues. Hence, the issues for determination are usually less

but never more than the number of the grounds of appeal filed. It may be

necessary in the determination of the issues on the grounds of appeal to consider

any of the issues raised as a subsidiary issue relevant to the determination of the

substantive issue raised in the ground of appeal. This, by itself, does not elevate 45

a subsidiary issue to a substantive one. In the instant case, counsel to the

plaintiff/appellant was wrong to have formulated so many issues which no ground

of appeal calls for their determination.

4.

Where both parties claim and succeed in tracing their title in respect of the same

piece of land to the same grantor, the principle has long been established that 50

the later in time of the two or more persons to obtain a grant cannot maintain an

action against the person who first obtained a grant. This is because the grantor

having divested himself of his title in respect of the disputed piece of land has

nothing left to convey to a subsequent purchaser. A grantor can only convey

what he has as the principle is,

Nemo dat quod non habet.

In the instant case,

since the Alade family had divested itself of its property in the Land in dispute, it