OGUNSANYA V. TAIWO

• Pages: 45-49

OGUNSANYA V. TAIWO

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OGUNSANYA V. TAIWO

5

MRS C.A. OGUNSANYA

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APPELLANT

V

10 MADAM A. TAIWO

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RESPONDENT

SUIT NO. SC 59/1968

SUPREME

COURT OF NIGERIA

COKER,

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J.S.C.

MADARIKAN,

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J.S.C.

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UDO-UDOMA,

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J.S.C.

3rd March, 1970.

Land Law - Declaration of title to land - Evidence - Burden of proof - Plaintiff

having onus of proving that her vendor included the Mogaji of the faniiiy

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- Evidence in document executed by Raji Akintola (deceased) that he was

the Mogaji at the material time

ISSUE:

1.

Does s.90 of the Evidence Act make a statement in the introductory recital

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admissible as evidence of a Deed of Conveyance.

FACTS:

The plaintiff claimed title through one 'A' to whom she alleged one Raji Akinto-

la as Mogaji of the Ajengbe family had sold two plots of land. Her conveyance

was dated 1951 and tendered Exhibit Al. The Defendant on the other hand,

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claimed title through another Mogaji of the Ajengbe family and her conveyance

was dated 1966. The trial Judge found for the plaintiff. The Defendant appealed

to the Western State Court of appeal on the ground that there was no evidence

given by or on behalf of the plaintiff as there should have been to establish that

Raji Akintola at the time he sold the land to 'A' was Mogaji. The Western State

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Court of appeal thereafter set aside the judgment given in favour of the plaintiff

and dismissed her case.

On appeal to the Supreme Court, it was contended for the appellant that there

was direct evidence of Raji Akinlola that he was the Mogaji of the Ajengbe family

at the material time in the conveyance, Al, and that such evidence was admissible

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under the Provisions of s.90 of the Evidence Act.

HELD:

1 S.90(1) of the Evidence Act provides that oral evidence is required, plus other

conditions, to make admissible as evidence a statement made by a person in

a document and tending to e:;tablish a fact whereof direct oral evidence would

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be admissible.

2.

In this Case, the document E:xhibit Al was executed by Raji Akintola himself

and so the provisions of s.;(4) of s.90 of the Evidence Act were satisfied

undoubted, if Raji Akintola were alive he would have been competent to testify

that he was the Mogaji of the family in 1951 and that would have been a matter

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within his personal knowledge. Consequently the submission of counsel for

the plaintiff that there was direct evidence in the Conveyance Exhibit Al,

concerning the headship of Raji Akintola was correct.