Foster-Sutton, P. This is an appeal from a judgment of Robinson, J., in favour of the respondent, who was the plaintiff in the Court below, by which he ordered the appellant to deliver up possession of premises at 32A Clifford Street, Ebute Metta, to the respondent.
It was not disputed that the appellant was in possession of the premises and that he has been in possession since the year 1945, or that he built the house which now stands upon the land, as alleged by him.
The respondent’s case was that he purchased the premises in dispute from one Rufus Adekunle Wright in the year 1950 for the sum of £500. An Indenture bearing date the 21st day of April, 1950, was tendered in evidence, Exhibit “A” and he relied upon the recitals in that document as proof of Rufus Adekunle Wright’s title and right to convey the premises in question.
The only recitals in Exhibit “A” to which I think reference is necessary is that which refers to a conveyance in fee simple by one Zachariah Archibald Williams to one Rufus Alexander Wright of an area of land in which the land in dispute in this case is said to be included, a deed of settlement executed by Rufus Alexander Wright bearing date the 31st day of January, 1895, under which property including the land in dispute was settled upon the trusts therein mentioned, the will of Felicia Anitta Wright, widow of Rufus Alexander Wright, said to contain a proviso which is recited, and finally the recital which claims that he vendor became the beneficiary of the property comprised in the settlement which reads as follows:-
“AND WHEREAS by virtue of divers mesne assurances and acts and not operations of law and concerning the relevant construction to the said recited proviso contained in the said will and ultimately the said hereditaments became the property of and vested in the said vendor”.
The Deed of Settlement was tendered m evidence by the respondent and marked Exhibit “B”, but the will of Felicia Anitta Wright was not put in evidence and no foundation for leading secondary evidence of its content was laid. Although the claim was for possession and not for a declaration of title the issue of title was clearly raised by the appellant m paragraph 2 of his statement of defence where he disputes the right of Rufus Adekunle Wright to sell the property in dispute and puts the respondent to strict proof thereof.
Before us and m the Court below respondent’s counsel contended that the respondent had established a better right to possession than the appellant by virtue of his having tendered in evidence the conveyance, Exhibit “A” ,and that the recitals the that document were admissible in evidence as proof of Rufus Adekunle Wright’s title to convey and right to possession. This contention to was accepted by the learned trial Judge.
In support of his submission that the recitals were admissible as evidence of the facts they allege, respondent’s counsel relied upon the provisions of sub- section (1) of section 90 of the Evidence Ordinance, submitting that Rufus Adekunle Wright had personal knowledge of the matters dealt with by the recitals, as required by paragraph (a) (i) of the sub-section and that as he died in December, 1950, the proviso to paragraph (b) applied and it was not, therefore, necessary to satisfy the condition contained in paragraph (b) that the maker of the statement must be called as a witness.
The appellant’s counsel submitted that the respondent failed to establish by evidence how the property in dispute became vested in Rufus Adekunle Wright in fee simple, as alleged, or how any legal or equitable estate whatever became vested in him in respect of the land conveyed by him to the respondent. He also argued that before a statement contained in a document can become evidence of a fact, tinder section 90 (1) of the Evidence Ordinance, the requirement that direct oral evidence of the fact would be admissible has to be satisfied, and, he submitted, that could not be said to be the case here.
Apart from the fact that a recital that “by virtue of divers mesne assurances and acts and operations of law of and concerning the relevant construction to the said recited proviso contained in the said will and ultimately the said hereditaments became the property of and vested in the said vendor” can hardly be said to be satisfactory evidence of the fact that the property in question had become vested in the vendor, the argument put forward on behalf of the respondent seems to me to ignore the provisions of section 96 (1) of the Evidence Ordinance which sets out the facts to be proved before secondary evidence of the contents of a document becomes admissible.
Unless the requirements of section 96 (1) of the Evidence Ordinance had been , met Rufus Adekunle Wright could not have given direct oral evidence of the contents of the will of Felicia Anitta Ayodele Wright, and it necessarily follows that as no foundation was laid in this case making secondary evidence of the will admissible, the recital ought not to have been accepted by the learned trial Judge as establishing any facts alleged by it.
The learned trial Judge in his judgment dealt at some length with the question whether the appellant had established his claim to possession, but, as I have already said, it was not disputed that he has been in possession of the premises since the year 1945, upwards of five years before the respondent made his purchase from Rufus Adekunle Wright. In my view the appellant’s claim did not arise for comparison with the respondent’s until the latter had established some right in him to possession.
While it is true, as submitted by respondent’s counsel, that all the plaintiff in an action for possession has to do is to prove a better right in him to possession than the defendant has, the plaintiff must, in the first instance, establish a right to possession, and, for the reasons I have already given, I am of the opinion that he failed to do so.
A number of other arguments were adduced at the hearing of this appeal, but in view of the conclusion I have reached that the respondent failed to discharge the onus which was upon him establishing a right to possession of the premises in dispute, a discussion of them here would serve no useful purpose.
In the circumstances I would allow this appeal with costs, set aside the judgment of the Court below and enter judgment for the defendant with £37 15s. 0d. costs.
Verity, C.J. I concur. Coussey, J .A .I concur.
Appeal allowed.