MADAM ALICE ORIDO v. THEOPHILUS AKINLOLU
(2012)LCN/5271(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/B/253/2004
RATIO
LAND LAW: BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE
The age long principle in land matters is that the onus is on a plaintiff who claims declaration of title to land to satisfy the court that he is entitled on the evidence adduced by him to the declaration claimed; except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts. To discharge the onus the plaintiff must rely on the strength of his own case and not on the weakness of the defence except where the defendant’s case supports his cases: Onwusbufor v. Okoye (1996) 1 NWLR (424) 252: Eze v. Atasie (2000) 9 WRN 73 @ 88: Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If the onus is not discharged the weakness of the defendant’s case will not help the plaintiff and the proper judgment is for the defendant. Kodilinye v. Odu (1935) 2 WACA 336: Atuanya v. Onyejekwe (1975) 3 SC 161 @ 168: Onibude v. Akibu (1982) 7 SC 60 @ 84-85: Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu [1997] 6 NWLR (Pt.507) 14 @ 41 F-H. PER CHINWE E. IYIZOBA, J.C.A.
LAND LAW: METHODS OF ESTABLISHING TITLE TO LAND
The methods by which a claimant may establish title to land were settled by the Supreme Court in Idundun v. Okumagba. (1976) 9-10 SC 227. They are:-
(a) By traditional evidence
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.
The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish any one of the five methods. PER CHINWE E. IYIZOBA, J.C.A.
LAND LAW: REQUIREMENT FOR A PLAINTIFF TO BE SUCCEED IN A CLAIM FOR DECLARATION OF TITLE
It is again trite law that before a plaintiff can succeed in a claim for declaration of title to land, the court must be satisfied as to the precise nature of the title he claims, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and there must be evidence establishing the title of the nature claimed. See Adesanya v. Aderonmu (2009) 9 NWLR (Pt.672) 370. PER CHINWE E. IYIZOBA, J.C.A.
APPEAL: DUTY OF AN APPELLATE COURT IN THE DETERMINATION OF AN APPEAL
The duty of an appellate court in the determination of an appeal before it was clearly spelt out in the case of:-
WILBAHI INVESTMENTS LTD & ANOR VS. ARCHSPAN CONSULT LTD. (2009) LPELR – CA/99/M/07
Where it was held per ABBA AJI, JCA @ pages 20 – 21 F – D thus:
“…The duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere. The findings of fact made by a trial court are entitled to respect by an appellate court where it is clear that the trial court had adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it. In such circumstances such findings are to be approached by an appellate court with due caution and not on the basis that it would or might itself (have) found otherwise. The essential consideration is that there is enough evidence on record from which the trial courts’ finding can be supported.”
See also: ENANG VS. ADU (1981) 11 – 12 SC 25; WOLUCHEM VS. GUDI (1981) 5 SC 291; MAIYAKI VS. STATE (2008) ALL FWLR (419) 500 @ 518 F. PER KUDIRAT MOTONMORI OLATOKUNBO KERERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MADAM ALICE ORIDO Appellant(s)
AND
THEOPHILUS AKINLOLU
(For himself and on behalf of Julius Akinlolu’s Family) Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This land case originated from the customary court of Ondo State, Ore. In that court, the plaintiffs claim as amended reads
as follows:
(1) A declaration that the plaintiff is entitled to the grant of customary right of occupancy over the piece or parcel of land situated and being at Kajola in Odigbo Local government Area of Ondo State.
The land is bounded as follows:-
(1) On the right, by Mr. Gabriel Osuntuyi’s land
(2) On the left, by Jimoh’s building
(3) At the top, by express Road
(4) At the bottom, by Agbeda and Owi Streams.
(2) One thousand naira (N1,000.00k) damages for trespass
(3) Injunction restraining the defendant her agents, servants or privies from entering or trespassing and/or doing anything on the land.
(4) An order setting aside any purported instrument or certificate of occupancy purportedly obtained by the defendant.
At the trial, both parties testified, tendered documents and called witnesses. The Plaintiffs case is that the land in dispute and adjoining land belonged to one Gabriel Akinyemi Osuntuyi who sold the land to his father Julius Akinlolu. He tendered exhibit as evidence of the sale. Exhibits A1 – A6 were tendered as evidence of sale of adjoining parcels of land by Gabrielle Osuntuyi to other purchasers. It is common ground between the parties that the land originally belonged to Benjamin Osuntuyi, Gabriel’s father who acquired the land by settlement. The plaintiff alleged that when Gabriel got married, his father Benjamin gave him the land to farm. This, the plaintiff construed as gift inter vivos from Benjamin to his son Gabriel, giving Gabriel title to the land. It is the plaintiffs case that after the sale of the land by Gabriel to his father, his father took possession and put tenants on the land. On his father’s death, the plaintiff continued to manage the land until the defendant trespassed on the land driving away the plaintiff s tenant on the land. The defendant, on the other hand, claimed that the land did not belong to Gabrielle Osuntuyi personally but to Benjamin Osuntuyi and that on the death of Benjamin the land devolved on all his children as family land and that she bought the land for her son from the surviving members of Benjamin Osuntuyi family.
In the course of the proceedings, the customary court conducted an inspection of the locus in quo. At the conclusion of hearing, the court after a review of the evidence placed before it found that Exhibit B the agreement of sale of the land in dispute was altered; that Gabriel Osuntuyi who sold the land to the plaintiffs father did not prove his title to the land by gift or inheritance, and that consequently the plaintiff failed to prove his title to the land in dispute and dismissed his case.
Dissatisfied with the said judgment of the customary court of Ondo State, Ore, the plaintiff lodged an appeal against same to the appellate division of the High court of Justice Ondo State Ore judicial division. The court allowed the appeal, set aside the judgment of the customary court and granted all the plaintiffs claims.
Aggrieved by this decision, the defendant/appellant appealed to this court. Out of his eight grounds of appeal in the amended notice of appeal, the appellant identified five issues for the determination of this appeal. The issues are as follows:-
“Issue No. 1: Did the lower appellate court’s shift of the onus of proof in this case (sic) wrongful and occasioned grave miscarriage of justice.
Issue No. 2: Were the defendant and his witnesses under any obligation in law to establish an alleged customary gift of land under Yoruba Customary Law which the plaintiff did not claim and prove.
Issue No.3: In the circumstances of this case, was the holding of the lower court that the Trial Court ought to have held that the property in litigation was not part of the estate of the deceased Benjamin Osuntuyi because he made a gift of it inter vivos to Gabriel Osuntuyi right?
Issue No.4: Were the re-appraisal of the evidence by the lower court and its conclusions justified in the circumstances of this case.
Issue No.5: Did the lower court not misapply the cases of Basil v. Fajebe (2001) 11 NWLR (Pt. 725) 592 @ 612-613; Egwu v. Egwu [1995] 5 NWLR (Pt.396) 493; and Adesanyan v. Aderonmu [2000] 9 NWLR (Pt. 672) 370 @ 384 to the facts of this case and occasioned grave miscarriage of justice?
Mr. Awosunle for the respondent in his brief of argument identified from the eight grounds of appeal two issues for determination. They are:
(i) Whether the lower court shifted the onus of proof on the appellant in this case.
(ii) Whether the land in dispute is family property of late Benjamin Osuntuyi’s family so as to divest the sale of same by Gabriel Osuntuyi to the family of respondent of validity.
The issues formulated by the appellant are repetitive and not quite elegantly framed while those of the respondent though more concise overlap. I have carefully considered the appellants grounds of appeal and the issues formulated by both sides and I am of the view that this appeal can be disposed of under a single issue namely:
Whether, on the evidence adduced by the plaintiff/respondent, there was any or sufficient proof of his title to the land in dispute.
In his brief of argument, Chief Ogefere for the appellant reviewed the respondent’s claims as amended and submitted that the respondent claimed title to the land in dispute and that of the five acknowledged ways of proving title to land as laid down in Idundun v. Okumagba, he claimed title by purchase. Counsel submitted that the respondent in his oral evidence in court claimed to have acquired title through his father Julius Akinlolu who bought the land in dispute from one Gabriel Osuntuyi based on an agreement admitted in evidence as Exhibit B. To succeed in his claim, counsel argued, the respondent must prove the validity of the sale, the validity of Exhibit B and that his father’s vendor Gabriel had a valid title. Counsel submitted that the respondent did not claim sale under customary law but under English law but the agreement of sale Exhibit B stated therein that the sale was in accordance with customary law contrary to the oral evidence of the respondent. The trial court evaluated the evidence and found that Exhibit B was altered in such material particulars that no reasonable court can act on it. There was also no evidence of customary sale of the land as there was no evidence of actual handing over of the land in the presence of witnesses. There was no evidence of gift intervivos of the land in dispute to Gabriel by his father Benjamin as the evidence of the witnesses was to the effect that Benjamin gave land to Gabriel to farm when he got married. On these grounds, the trial court disbelieved the evidence of the respondent and his witnesses that the land was sold to Julius Akinlolu in 1977. Counsel further submitted that despite the failure of the respondent to prove these vital points and the proper dismissal of his case by the customary court, the lower appellate court reversed the judgment granting all the reliefs claimed by the respondent. Counsel submitted that in doing this the lower court wrongfully shifted the onus of proving that no gift inter vivos of the land in dispute was made to the defendant/appellant, contrary to the well known principle that the burden of proving title to land rests squarely on the claimant and never shifts save in certain well defined instances. Counsel submitted that the respondent having failed to prove valid sale, there was no onus on the appellant at the trial court to rebut what was not proved. Counsel relied on the case of Edosomwan v. Ogbeyfun (1996) 36 LRCN 432.
Mr. Awosunle for the respondent in his brief of argument denied any wrongful shift of burden to the appellant. He set out the evidence of PW1 the son of Gabriel Osuntuyi and submitted that PW1 having testified that the land in dispute was given to Gabriel by his father Benjamin during his life time, the onus to disprove this assertion shifted to the appellant. Counsel argued that this was mere shift of evidential burden of introducing evidence which if believed or accepted would defeat the respondent’s claim but the appellant was unable to discharge the burden. Counsel further pointed out that the lower court considered the evidence of the respondent on the partitioning of Benjamin Osuntuyi’s land at Bolorunduro and the implication of the failure of the appellant to adduce any evidence as to why the land in dispute was not included in the partitioning exercise and the evidence of exclusive enjoyment of land adjoining the land in dispute by Gabriel Osuntuyi in his life time as evidenced by exhibits A – A6 without any challenge by the appellant. Counsel submitted that the lower appellate court based its conclusion that the title of Gabriel Osuntuyi to the land in dispute was established on these pieces of uncontroverted and unchallenged evidence. On whether the respondent proved valid sale of the land to his father. learned counsel submitted that the trial customary court was wrong in holding that exhibit B was the kernel of the respondent’s case. Counsel argued that the lower court was right in dismissing exhibit B as of limited value as the land as shown by the reliefs claimed and the records was used for agricultural purposes and therefore subject to customary law; and that writing is unknown to customary law. Counsel submitted relying on several authorities that the finding of the lower court that the respondent adduced evidence that his father bought the land and paid for it in the presence of PW2 and the respondent himself; and that the respondent’s father was let into possession satisfied the requirements of sale under customary law.
I have considered carefully the submissions of the parties. The age long principle in land matters is that the onus is on a plaintiff who claims declaration of title to land to satisfy the court that he is entitled on the evidence adduced by him to the declaration claimed; except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts. To discharge the onus the plaintiff must rely on the strength of his own case and not on the weakness of the defence except where the defendant’s case supports his cases: Onwusbufor v. Okoye (1996) 1 NWLR (424) 252: Eze v. Atasie (2000) 9 WRN 73 @ 88: Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If the onus is not discharged the weakness of the defendant’s case will not help the plaintiff and the proper judgment is for the defendant. Kodilinye v. Odu (1935) 2 WACA 336: Atuanya v. Onyejekwe (1975) 3 SC 161 @ 168: Onibude v. Akibu (1982) 7 SC 60 @ 84-85: Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu [1997] 6 NWLR (Pt.507) 14 @ 41 F-H. The methods by which a claimant may establish title to land were settled by the Supreme Court in Idundun v. Okumagba. (1976) 9-10 SC 227. They are:-
(a) By traditional evidence
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.
The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish any one of the five methods.
The contention of the appellant is that the respondent as plaintiff in the trial customary court did not prove his title to the land by any of the five ways of proving title to land. He relied on Exhibit B, agreement of sale but failed to prove the title of his vendor who it was claimed obtained title by gift from his father, Benjamin. The Customary court Judges had held that the gift of land was not established as no evidence was tendered to prove the gift inter vivos. The lower appellate court disagreed with the customary court. The learned appellate High Court Judge was of the view that the evidence of PW1 was enough to discharge the burden on the plaintiff to prove the gift inter vivos and that the evidential burden to disprove it shifted to the defendant and that she failed to discharge the burden. His words:-
“…..the trial court concluded in its judgment that the land in dispute was the property of the Osuntuyi family at the time the appellant’s father purportedly purchased it from Gabriel Osuntuyi. It consequently held the transaction to be invalid. To my mind the question of the status of the land in dispute was a fundamental factor in the decision of the trial court. The evidence of PWI is very useful in this regard. PW1 is the grandson of the original owner of the land in dispute. It was his father Gabriel Osuntuyi who purportedly sold the land in dispute to the appellant’s father. He testified as follows:
“I have told the Court that my father was the original owner of the land in dispute and other adjoining land. My grandfather Benjamin carried my father on his shoulder from Ondo to Kajola. When my grandfather got to Kajola he settled there. When my father got married, his father gave him a land to farm in Kajola on Lagos express road. It was the land in dispute.”
The DW1 was one of the respondent’s vendors. She is the eldest child of Benjamin Osuntuyi, the original owner of the land in dispute. Throughout her testimony in court, the witness did not deny the fact that her father Benjamin Osuntuyi made a gift inter vivos of the land to Gabriel Osuntuyi. She did not say anything about that assertion. It was not rebutted. All the witness said under cross-examination was in the following fashion:
“The land in dispute was not originally owned by Gabriel Osuntuyi. It is the property of Ben Osuntuyi.”
The issue of the original owner of the land in dispute was agreed upon by both sides to the suit. Both parties agreed that the land was originally owned by Benjamin Osuntuyi. At the stage at which the PW1 testified that the land in dispute had been given to Gabriel Osuntuyi by Benjamin Osuntuyi in the life time of the latter, the onus to disprove the assertion shifted on the defendant (now respondent) to disprove the assertion. That was not done in the lower court. None of the respondent’s witnessess testified on the issue of gift. The fact was not denied. The trial court ought in consequence to have held that the fact was proved. Rather than do this, the trial court stated as follows:
“Nobody gave evidence that he was present when Benjamin Osuntuyi gave the land in dispute to Gabriel Osuntuyi.”
From the records the persons involved in this transaction were reported dead. Benjamin Osuntuyi was reported dead. Gabriel Osuntuyi, his son was said to have died ten years before the land in dispute was sold to the respondent. Where did the trial court expect witnesses to come from? The court room will probably be hurriedly vacated if such witnesses should appeal in court. PW1 told the trial court that he knew “the history of the land in dispute”. The witness went on to relate stories told to him by his late father. This was clearly a case of traditional history being related to the court. There is no limit to the kind of oral evidence that can be given in this circumstance, once the witness has a sound source of information. The trial court was therefore wrong to have ignored the evidence of PW1 relating to gift of the land to his father. There was no basis for the court to be treating case of such of land from father to son as if it is a sale. It is in the case of a sale or grant that evidence of witnessess is germane to the proof of such a transaction. And then, that is if they are alive to testify.
My observation as stated above has legal implications. I am referring to the gift inter vivos made of the land in dispute By Benjamin Osuntuyi to his son Gabriel Osuntuyi. The implication is that at the time of his death, the land in dispute did not constitute part of the estate of Benjamin Osuntuyi. Property can only become family property upon the death of its original owner. It devolves from father to children, under native law and custom. See Ezekwe v. Onyeama (1993) 8 NWLR (Pt.309) 76 @ 85. From the state of the evidence before the trial court, that court ought to have held that at the death of Benjamin Osuntuyi, the land in dispute did not form part of his Estate because some had been made a gift to Gabriel Osuntuyi when he got married. ”
I have set out the views of the learned judge of the lower court in extensio in order to show that he either had grave misconceptions on the incidence of burden of proof in claims for declaration of title to land and the law relating to gifts inter vivos under customary law or that his Lordship with respect misinterpreted the law. As I stated earlier, the burden rests on a claimant for declaration of title to land to prove his case on a balance of probabilities using one or more of the five methods in Idundun v. Okumagba (supra). The burden does not shift. The respondent herein at the trial customary court traced his title to Gabriel Osuntuyi as his father’s vendor. In order to establish the vendor’s title, evidence was given by PW1 that the land in dispute was given to his father Gabriel to farm by his grandfather Benjamin when Gabriel got married. In other words his evidence is that the plaintiff’s vendor acquired title to the property by gift inter vivos. The question therefore is whether this evidence is sufficient to establish gift of land inter vivos under native law and custom as held by the lower appellate court. The issue was dealt with by Professor Nwabueze in his book “Nigerian Land Law” (1992) Nwamife Publishers Ltd, Enugu PP 367-369 referred to by learned counsel for the appellant at page 13 of his brief of argument. The learned author observed:-
“Customary law requires no writing for the transfer of land whether upon sale or by way of gift. In lieu of writing, however there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift. Acceptance is as much as customary lay as the delivery of possession in the presence of witnesses; without it the gift is invalid, such acceptance must be made with as much publicity as possible…Actual delivery is not mere evidence of the gift but is part of the gift itself.”
It is clear therefore that to prove gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. See also Ayinke v. Ibidunni (1959) 4 FSC 280 @ 282 where Ademola CJF observed:-
“I also find myself in agreement with the learned trial judge that there are means whereby a man may dispose of certain properties before his death in accordance with native law and custom. It is my view that disposition of properties could be made under native law and custom by a gift followed by a transfer of the property, or a declaration by a man on his death bed in the presence of witnesses.” (Underlining mine).
The absence of writing in these transactions under native law and custom make the presence of witnesses to the transactions a necessity. The customary court judges were therefore correct in their observation that “Nobody gave evidence that he was present when Benjamin Osuntuyi gave the land in dispute to Gabriel Osuntuyi.” By this the customary court meant that there should have been evidence that named persons witnessed the gift inter vivos. Even if all the witnesses were dead, PW1, the grandson of Benjamin who gave evidence should have been able to tell the court that his father told him that the gift was made and accepted in the presence of named persons. This is important for the validity of the gift. To confound the situation, the siblings of the plaintiff’s father’s vendor Gabriel were still alive. In fact they were the ones that sold the land to the appellant’s son claiming that the land belonged to their father Benjamin and not to Gabriel. DW1, Madam Sabinah Ejiola Akinwotu is the half sister of Gabriel and the eldest child of Benjamin. She testified that she and other members of the family executed the sale agreement in favour of Oposio, the appellant’s son. The other members of the family who participated in the sale to the appellant are Olanireti, Beatrice, Clement Osuntuyi and Julianah. DW1 testified that Olanireti and
Beatrice are sisters of the full blood to Gabriel. She further testified that their father Benjamin had two wives and six children. The fact that five out of the six children of Benjamin were not alleged to have known of the gift inter vivos to Gabriel negates the whole idea of gift inter vivos because under customary law such a gift of land inter vivos cannot be made secretly. In view of the fact that all these siblings of Gabriel were still alive including their uncle Ebenezer Ogumakinwa who testified as PW2 and yet none of them was said to have witnessed the gift inter vivos cast serious doubt on the authenticity of the claim. The customary court judges were in my view correct to disbelieve the evidence of gift inter vivos because no evidence was led that anybody, particularly any member of the family witnessed the gift. I think that Mr. Ogefere for the appellant is right in his submission that the long stay on the land by Gabriel farming as given in evidence by PW1 should have put the lower appellate court on notice about any claim to exclusive ownership of the land. It should have driven home to the lower court the need to look for clear evidence of outright gift of the land to Gabriel by Benjamin. On the contrary, the lower court improperly used the long stay on the land given to Gabriel by his father for farming purposes as evidence of gift inter vivos. PW2 in his evidence confirmed that the land was given to Gabriel by his father Benjamin to farm. He was not present when it happened. With all due respect to learned lower appellate judge, there is a mighty difference between making an outright gift of land inter vivos and giving a member of the family land to farm. The clear evidence of PW1 and PW2 who gave evidence of the so called gift is that the land was given to Gabriel to farm. This evidence, taken together with the failure to name anyone who witnessed the gift inter vivos leaves Gabriel’s root of title to the land unproven. The lower court was clearly in error to have held that the respondent proved through the evidence of PW1 that the land in dispute had been given to Gabriel by his father Benjamin in his life time and that the onus shifted on the appellant to disprove the assertion and that she failed to disprove same. The action of the appellant’s vendors, as given in evidence by DW1 is a clear rebuttal of the claim of the respondent that an outright gift of the land was made to Gabriel Osuntuyi by their father Benjamin. In fact the evidence of DW1 amounts to a denial of the alleged gift inter vivos. She said:
“The land in dispute is not originally owned by Gabriel Osuntuyi. It is the property of Ben Osuntuyi. My father had six children. My father had a farm in Kajola as well as Bolorunduro. Late Gabriel Osuntuyi had no right to have sold any land in Kajola and in particular land ground the land in dispute. If he did we should have taken over the land…….We are of the same father. When Gabriel Osuntuyi was alive, we used to go to the hand… Ben Osuntuyi was my father… The land in dispute was not the property of Gabriel Osuntuyi”
DW1 and her siblings came together as a family and sold the land to the appellant’s son because they believed the land became family land on the death of their father by devolution to all the children of Benjamin. At any rate there was no burden on them legal or evidential to prove that there was no gift inter vivos of the land in dispute. The burden remained throughout on the respondent. In Lawson v. Ajibulu (supra) @ P.41 Belgore JSC observed:-
“It is too late in our law to disregard onus probandi. The person that asserts must prove and the fact that the defendant never proves or even remains silent will not discharge the burden on the plaintiff…” I have no difficulty whatever in holding that the lower court erred in shifting the burden of disproving the gift inter vivos to the appellant; and that it resulted in grave misc arriage of justice.
The respondent was clearly unable to prove the title of his father’s vendor. He was unable to prove that the land in dispute was given to Gabriel Osuntuyi as an outright gift by his father Benjamin. What this means is that on the death of Benjamin, the land became the family property of all the children of Benjamin. The fact that Gabriel was farming on the land as testified to by PW1 and PW2 even after their father’s death does not make him the owner of the land and does not give him the right to dispose of the land as his personal property. The fact also that the respondent adduced evidence of sale of other adjoining land by Gabriel Osuntuyi through the tendering of exhibits A1 – A6 cannot by that alone give him title as he has not been able to show valid title by gift inter vivos. Mr. Awosunle for the respondent in his brief of argument had submitted that the respondent led evidence that the land of Benjamin Osuntuyi in Bolorundure had been partitioned and that Gabriel at all material times remained in exclusive possession of the land in dispute and the adjoining land; and that this evidence was not challenged by cross-examination. It was therefore open to the court to act on same and the lower court acted on it. With respect to learned counsel, that again amounts to shifting the burden of proof to the appellant. It has been said and it is the law that the burden of proof in a claim for title to land rests on the claimant and does not shift. The evidence before the court is that the land was given to Gabriel by his father to farm. Since it was given to him to farm, it is not surprising that he is in exclusive possession. Being in possession of land for farming does not give a son under customary law right to claim outright gift of the land nor right to dispose of the land as his personal property. Again the evidence before the court is that Benjamin Osuntuyi’s land in Bolorundure was partitioned by Gabriel after the death of their father Benjamin. The fact that the Kajola land including the land in dispute was not partitioned does not confirm Gabriel’s title to the land. Having conceded that the land originally belonged to Benjamin, the only factor that will give Gabriel exclusive right and title to the property is proof that Benjamin made an outright gift of the land to him in his lifetime. The appellant was not under any obligation or burden evidential or otherwise as argued by respondent’s counsel to explain why the land in dispute was not partitioned or to prove that the land in dispute was actually family properly. As learned counsel for the appellant contended, the trial customary court weighed the evidence adduced by both sides and ascribed probative value to the version against the gift. The lower court, rather than take the proper perspective of an appellate court on the matter which is whether there is evidence on the record that supports the finding of fact by the trial customary court veered off to search for his own evidence on which to make his own findings of facts as though he was the trial court and no longer an appellate court. The lower court wrongfully substituted its view for that of the trial court. See Arowolo v. Ifabiyi. [2002] 4 NWLR (Pt 757) 356 @ 372, D-G
“It is trite law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the Court of Appeal ought to do in such circumstances is to find out whether there is any evidence on which the trial court could have acted and once there is such evidence on record before the trial court from which it arrived at its findings of fact, the appellate court cannot interfere. See Akpagbue v. Ogu (1976) 6 SC 63, Odofin v. Ayoola (1984) 11 SC 72, Amadi v. Nwosu (1992) 5 NWLR (Pt.241) 273 @ 280, Woluchem v. Gudi (1981) 5 SC 291 @ 320 etc.”
Again as pointed out by appellant’s counsel, the lower court in making its own, with respect, unwarranted findings and conclusions did not ask whether the evidence of the respondent as given covered all the elements of customary gift of land inter vivos. Here I need to point out that the reference by learned counsel for the appellant to the land as family land at the point of the alleged gift inter vivos is erroneous. At that point the land was not family land but the personal property of Benjamin Osuntuyi who acquired the land by settlement. The land became family land of the children of Benjamin by devolution on his death because the claim that Benjamin made a gift inter vivos of the land to Gabriel was unsubstantiated. From the records, there is no justification for the lower appellate court to prefer the evidence of PW1, a grandchild to the acclaimed owner of the land Benjamin to the evidence of five of his six children who by selling the land to the appellant’s son as family property debunked the claim of gift inter vivos of the land to Gabriel.
There was ample evidence in support of the findings of facts of the trial customary court when it rejected the claim of personal ownership of the land in dispute.
The view that Gabriel had no title to the land in dispute because the respondent was unable to prove outright gift of the land to him would have been adequate to dispose of this appeal but just in case I am wrong I will go on to determine the issue of the validity of the sale of the disputed properly.
It is again trite law that before a plaintiff can succeed in a claim for declaration of title to land, the court must be satisfied as to the precise nature of the title he claims, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and there must be evidence establishing the title of the nature claimed. See Adesanya v. Aderonmu (2009) 9 NWLR (Pt.672) 370.
The appellant contends that the respondent at the trial customary court was unable to establish the nature of title claimed. While in his evidence the respondent based his claim of title on the purchase agreement Exhibit B; the agreement itself said the sale was according to customary law. Appellant’s counsel contended that the trial customary court rightly found Exhibit B to be of no probative value having been altered while the oral evidence of customary sale failed to establish the essentials of a valid sale under customary law. The lower appellate judge had a different view of the matter. His view very briefly is that the transaction was a sale under customary law and that Exhibit B was unnecessary as the sale was concluded without documentation. The lower court held that PW2 provided the necessary proof of the sale in his oral testimony when “he told the court that he was aware of the sale”. The learned judge of the lower court quoted accurately Ayoola JSC in Bassil v. Fajebe (2001) 11 NWLR (Pt.725) 592 @ 612 H- 613A:
“Payment of purchase price and delivery of land sold to the purchaser by the seller in the presence of witnesses are essential to the validity of sale of land under the Yoruba customary law.”
I have read carefully the evidence of PW2 and his cross-examination at page 6 line 28 – page 9 line 4 of the record of appeal. He did not give evidence of the payment of the purchase price and delivery of the land in his presence or in the presence of any other witness. His entire evidence is on Exhibit B and his evidence is that Gabriel brought the agreement and the purchaser to Ondo where he lived. He did not even mention the amount of the purchase price. With all due respect to the learned lower appellate judge the evidence of PW2 does not satisfy the requirement of sale under customary law. I think His Lordship knew so; hence his statement that PW2 told the court that he was aware of the sale. That is all. He may have been aware of the alleged sale but he did not witness it. PW1 and PW3 did not also witness the payment of the purchase price and the delivery of the land. There is evidence in the record of appeal to support the view of the customary court judges “that the genuineness of exhibit B and the transaction itself are in doubt.” They did not believe the evidence of the respondent’s witnesses that the land was sold to his father Julius Akinlolu in 1977. The respondent in his evidence at page 12 of the record of proceedings said:
“In 1977, late Pa Julius Akinlolu, my father went to Gabriel Osuntuyi and informed him that he wanted to buy the land in dispute. When my father and Gabriel Osuntuyi were making the arrangement I was present. There were other two men and women with Gabriel Osuntuyi during negotiation. My father bought the land and paid for it.”
The respondent’s evidence is that he was there. The names of the other two men and women were not disclosed. The purchase price was not disclosed. Elsewhere in his evidence, the respondent said:
“I have been informed that my father bought the land in dispute from Gabriel Osuntuyi. There is a document to back up the purchase of the land. I was present when the document was made. When my father died we saw the agreement among others.”
If the respondent was present during the negotiation for the purchase of the land by his father as testified to earlier, how can he now turn round and say he was informed that his father bought the land in dispute. PW2 who witnessed the purchase agreement which he said was brought to him in Ondo did not say that the respondent was present when the agreement was executed. It is intriguing that the respondent who testified that he was present when the document was made said he saw the document amongst others when his father died; exactly how PW1, Gabriel’s son also saw the agreements of sale of the disputed land and other surrounding land amongst his father’s documents after his father’s death. The evidence of the respondent and his witnesses were unconvincing and inchoate. It is therefore not surprising that the customary court judges did not believe their evidence. The learned judge of the lower court was clearly in error to have held that the sale was conducted under customary law as all the incidents of a valid sale under customary law were lacking in the transaction. No evidence of the amount of the purchase price or payment thereof in the presence of witnesses. No evidence of date of sale and the delivery of the land to the respondent’s father in the presence of witnesses.
As contended by the appellant in their brief of argument, the court below instead of assessing the findings of fact by the trial customary court, set about making a case for the respondent different from the case he made before the court. The respondent in his evidence relied on Exhibit B, the alleged purchase agreement which was discredited by the trial customary court. The lower appeal court on its own decided that Exhibit B is unknown to customary law and should be ignored. It chose instead to place reliance on the oral evidence of the respondent that the sale of land was under customary law; proof of which was totally lacking according to the correct findings of the trial customary court. There was no appeal against these findings of facts by the customary court. The approach of the lower court as a High court sitting in its appellate jurisdiction was not in compliance with the law. The lower court misapplied the cases of Basil v. Fajebe (supra). Egwu v. Egwu (supra) and Adesanya v. Aderonmu (Supra) as the facts of those cases were inapposite. The principles of law regarding the onus of proof on a claimant for declaration of title to land are trite. The respondent herein as plaintiff in the customary court sought declaration of title to the land in dispute. The appellant as defendant did not make any counterclaim for title. The lower court consequently erred in shifting the onus of proof on the appellant in order as appellant’s counsel rightly put it, “to fill the yawning lacunae” in the respondent’s case. This appeal is meritorious. It is hereby allowed. The judgment of Ondo State High Court, Ore Judicial Division sitting in its appellate jurisdiction in suit No HOD/7A/2003 delivered on 30/4/04 is hereby set aside. In its place, the judgment of the Customary Court of Ondo State in suit No ORCC/90/99 delivered on 26/3/02 dismissing the claims of the plaintiff/respondent is restored and upheld. The cost of this appeal is assessed at N25,000.00 in favour of the appellant against the respondent.
KUDIRAT MOTONMORI OLATOKUNBO KERERE-EKUN, J.C.A.: I have had the benefit of reading before now, the judgment of my learned brother, CHINWE EUGENIA IYIZOBA, J.C.A just delivered. His Lordship has thoroughly examined and ably resolved the issues in contention in this appeal. I agree with the reasoning and conclusion that there is merit in this appeal. I agree with my learned brother that the lower court, sitting in its appellate jurisdiction was in error to have interfered with the well reasoned findings and conclusions of the trial customary court fully supported by the evidence before it.
The duty of an appellate court in the determination of an appeal before it was clearly spelt out in the case of:-
WILBAHI INVESTMENTS LTD & ANOR VS. ARCHSPAN CONSULT LTD. (2009) LPELR – CA/99/M/07
Where it was held per ABBA AJI, JCA @ pages 20 – 21 F – D thus:
“…The duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere. The findings of fact made by a trial court are entitled to respect by an appellate court where it is clear that the trial court had adequately performed its primary duty of evaluating and ascribing probative value to the evidence before it. In such circumstances such findings are to be approached by an appellate court with due caution and not on the basis that it would or might itself (have) found otherwise. The essential consideration is that there is enough evidence on record from which the trial courts’ finding can be supported.”
See also: ENANG VS. ADU (1981) 11 – 12 SC 25; WOLUCHEM VS. GUDI (1981) 5 SC 291; MAIYAKI VS. STATE (2008) ALL FWLR (419) 500 @ 518 F.
The trial customary court in the instant case took full advantage of seeing and hearing the witnesses first hand and even visiting the locus in quo before arriving at a sound decision based on the evidence before it. Having competently discharged its judicial function the lower court sitting in its appellate jurisdiction ought not to have interfered with its decision.
For the more comprehensive reasons well set out in the lead judgment, I also allow the appeal. I abide by the consequential orders contained therein, including the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA. I completely agree with His Lordship’s reasoning and conclusion.
The trial customary court properly acted on the evidence before it and rightly dismissed the respondents’ claim. The lower court had no basis to have disturbed the decision of the trial court.
I agree with my learned brother that this appeal has merit and I also allow this appeal.
I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
Chief A. P. A. Ogefere with Irene Ominike (Miss)For Appellant
AND
Bade Awosunle Esq.For Respondent
