VERITY, Ag. P.
This is an appeal from a judgment of Reece, J., in favour of the plaintiff in an action for damages for trespass to land.
Although the action is in trespass the issue of title was raised. The evidence as to the possession of the land is by no means free from dispute-and upon this issue the learned judge made no very clear-cut finding. There can be little doubt, however, from the terms of his judgment, that he accepted the evidence of the plaintiff, who is the respondent to this appeal, and found in his favour on this issue of fact. This being so, it fell to the appellant, who was defendant in the Court below to justify his entry by establishing that he had a better title to the land than the person in possession. The onus of proving this lay upon him and unless he succeeded in discharging this onus the respondent was entitled to judgment. In this, an action in trespass differs from one for recovery of possession or for a declaration of title in which the burden is on the plaintiff to establish his title irrespective of the defendant's claim.
Both parties in the present case trace back their claims to title to the Oloto family as the original owners of the land of which that in dispute formed part. The respondent claimed by virtue of a direct purchase from the Oloto family in 1927 by his immediate predecessor in title. The appellant pleaded an earlier allotment under the Glover settlement and subsequent sales, but there was no evidence adduced as to the allotment and his final title is based upon a conveyance from the Oloto family in February, 1948. The case is indeed in this respect like many which come before this Court: one in which the Oloto family either by inadvertance or design sell or purport to sell the same piece of land at different times to different persons. It passes my comprehension how in these days, when such disputes have come before this Court over and over again, any person will purchase land from this family without the most careful investigation, for more often than not they purchase a law suit, and very often that is all they get. Be that as it may, it is what happened in the present case, for the Oloto family are alleged to have agreed to sell their land to the respondent's predecessor in title, to have received the purchase money and let the purchaser into possession and then, in 1948, they cheerfully accepted a further sum of money from and executed a conveyance in favour of another purchaser.
In the course of this appeal Counsel for the appellant in the .first place attacked the evidence of possession adduced by the respondent, but in my view, did so without success. There was evidence which justified the finding of the trial judge that the respondent is in possession and has been in undisturbed possession for many years. The evidence adduced by the appellant as to his own alleged possession was in my opinion unsatisfactory, and in parts contradictory, and I do not consider that this finding, of fact, can be disturbed.
For the rest, Counsel confined himself almost exclusively to attacking the respondent's title and apart from his submission that the appellant was a purchaser of the legal estate for value without notice said very little about his own title.
When in an action in trespass the plaintiff has obtained a conveyance from a predecessor who has been in possession under a claim of right for many years and has himself been in possession from the date of purchase the burden cast upon the defendant of showing a better title is not lightly to be passed over, and it does not help him that his own claim is as inconsistent as that of the appellant in the present case. Originally founded on an allotment in the Glover settlement, allegedly in 1864 or three years before any such allotments appear from the preamble to the Glover Settlement Ordinance (Cap. 80) to have been made, leaving then a gap of some thirty-seven years between 1870 and 1907, proceeding then upon a so-called “purchase” receipt, of a kind which Counsel for the appellant submits is inadmissible in evidence unless registered (which it is not), the appellant's claim finally comes to rest upon a direct conveyance to him by the Oloto family, the recitals to which completely ignore the history of the land which the appellant has been at pains to plead.
Nevertheless, the appellant does rest upon this final conveyance and proceeds to contend that this is a better title than that of the respondent and it is necessary, therefore, to examine the latter.
In the first place the respondent avers that his predecessor in title bought the land from the Oloto family in 1927 and he produces a document purporting to be a “purchase receipt”. The nature of the document is in my opinion an agreement for sale. It is practically identical with a document held to be such by this Court in Gyiffin v. Talabi 12 W.A.C.A. 371. I see no reason to differ from the view I then expressed, that such a document is an agreement for sale coupled with a receipt for purchase money and a covenant to execute a conveyance on demand. No objection was taken to the admission in evidence of this document and indeed it is conceded that it is admissible as an acknowledgment of the payment of the money therein mentioned. At the hearing of the appeal, however, it is submitted that it is an instrument within the meaning of the Land Registration Ordinance (Cap. 108), and having been executed after the commencement of that Ordinance and not having been registered thereunder, it cannot, by reason of section 15, either be pleaded or given in evidence as affecting the land.
“Instrument” is defined by section 2 as meaning “a document ... whereby one party ... confers ... in favour of another party ... any right or title to or interest in land in Nigeria”.
In view of this definition I think the submission that the document in this case is an instrument within the meaning of the Ordinance is well founded and that it could not be either pleaded or given in evidence as affecting this land.
It is evidence, however, of the payment of moneys and the question remains whether the proof of such payment coupled with the possession of the purchaser is evidence of such part performance that equities arise which, as is said by the learned author of Seaborne's Vendors and Purchasers (8th Edition, page 22), “cannot be administered unless the contract is regarded”. It is true that the purchaser (in this case the respondent) cannot rely upon the written document, for it is not registered and he is therefore debarred by statute from pleading it or giving it in evidence, save in the limited sense to which I have referred. It is true that the mere payment of money is not sufficient part performance for it is not unequivocal in the absence of the contract. But when this is coupled by his being let into possession of the property, it is to be presumed that he entered into the property not as a stranger and therefore prima facie a trespasser but under a contract for sale, and from this arises an equitable interest which may be converted into a legal estate by specific performance. I consider, therefore, that the respondent had prior to the subsequent conveyance purporting to convey the land to the appellant acquired an equitable interest in the property, and unless the appellant can establish that he is a purchaser of the legal estate for value without notice of the respondent's prior equity he has not succeeded in proving that he has a better right to possession than the respondent.
It is submitted that the appellant had no notice of the respondent's equitable interest, but in the face of the evidence which the learned Judge accepted I have great difficulty in seeing how this can be so. Prior to his purchase from the Oloto family he sought to purchase from the respondent's vendor, the party in whom was vested the equitable interest as long ago as 1927, and who had been in possession ever since. Authority was cited by Counsel to show that when a party has knowledge of facts which may or may not disclose a prior equity, this cannot be held to be notice of the equity. While this may be true as a general principle, I think its application must be confined to cases in which the facts are in themselves equivocal. In the present case the appellant was plainly aware that the respondent's vendor had some interest in the land, for he sought to purchase it. Upon his offer being refused he sought and obtained a conveyance from another party, whom he knew to be out of possession, without making any enquiry or investigation which would have disclosed to him the nature of the interest which he had himself believed to be vested in the party from whom he had sought to purchase. It is not enough for the appellant to show that he had no actual notice. If, as was said by Lord Cranworth in Ware v. Lord Egmount 4 D.M.E., 470, the evidence discloses that he had knowledge of facts which “would enable the Court to say that he ought to have acquired the notice with which it is sought to affect him-that he could have acquired it but for his gross or culpable negligence”, then he will be presumed to have had notice. Of such negligence I am satisfied the appellant was plainly guilty.
For the reasons I have given I have reached the conclusion that viewing the matter from the standpoint of English Law, which has been Invoked by the appellant, he has failed to show a better right to possession than that of the respondent, who is therefore as the person in possession, entitled to succeed in this action.
There is, however, another aspect of the question which has not been argued, but which would, I think, be equally fatal to the appellant's case. The land was held by the Oloto family under native law and custom. There can be no doubt that by such law and custom no such things as written contracts or conveyances are necessary to effect a valid sale. The payment of purchase money and the delivery of possession are enough. If, therefore, the transaction between the respondent's vendor and the Oloto family in 1927 were to be viewed from, the standpoint of native law and custom, then, long prior to the conveyance under which the respondent claims, the Oloto family had divested themselves of their interest in the land.
Although I would not say that the learned judge in the Court below was right in his conclusion that the respondent had acquired title to the land mainly by reason of long possession, for the period of possession is shorter than has yet been recognised by these Courts as sufficient to extinguish the rights of the original owner absolutely, at the same time I consider that the respondent was entitled to succeed in his action and that the appeal should therefore be dismissed with costs.