ADELANI ADEWUYI & ORS v. CHIEF (MRS.) OLAGBENKE IPAYE
(2014)LCN/7107(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
CA/I/224/2008
RATIO
WHETHER THE PLAINTIFF CAN RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE IN SUPPORT OF HIS CASE
It is the law that in a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendant’s case even though where the facts permit, a Plaintiff can take advantage of evidence by the defence which supports his case.
See: Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393, Tukuru v. Sabi (2005) 3 NWLR (Pt. 913) 544, Onisaodu v. Eleweju (2006) 13 NWIR (Pt. 998) 517, Nze v. Unakalamba (1998) 2 NWLR (Pt. 537) 308, Ibe v. Auta (1998) 2 NWLR (Pt. 538) 497, Nwosu v. Okoli (1991) 2 NWLR (Pt. 592) 598, Ojo v. Anibire (1999) 11 NWLR (Pt. 628) 530, Orubo v. Gbondu (1999) 11 NWLR (Pt. 628) 661, Madubuonwu v. Nnnalue (1999) 11 NWLR (Pt. 628) 673, Eze v. Atasie (2000) 6 SC (Pt. 1) 214, Elema v. Akenzua (2000) 6 SC (Pt. III) 26 at 29 – 30, Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) at 30 – 31, Gbadamosi v. Dairo (2001) II WLN 129. Per MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. ADELANI ADEWUYI
2. ADEBOLU OBISANYA
3. SUNDAY OLAFARE
4. KAFARU AKANNI – Appellant(s)
AND
CHIEF (MRS.) OLAGBENKE IPAYE
(For Omilabu and Odunewu section of Akintilo family) – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the High Court of Justice Osun State delivered by the Hon. Justice A.A.G. Onibokun at the Ile-Ife High Court on 9th day of November 2006.
By paragraph 18 of their statement of claim, the Respondent as plaintiff in the Court below claimed as follows:
“1. Declaration that the farmland situate, lying and being at Agbonkuta village, via Ile-Ife is the joint property of both the plaintiff and the Defendants as offspring of Late Akintilo.
2. Partition of the said farmland in four section (SIC) of the family as opposed to the claim of the Defendants to exclusive ownership.
3. Injunction restraining the Defendants and or their privies or agents from further receipt of tribute and or Isakole from the tenants on the said farmland”.
Pleadings were filed and exchanged by an amended statement of Defence filed on the 7th day of July, 2006 the Defendants/Appellants denied the statement of claim in material terms and issues were thus joined.
It is the contention of the Plaintiff/Respondent that the farmland in dispute at Agbonkuta village via Ile-Ife belonged to Akintilo, the ancestor of the contending parties. That upon Akintilo’s demise, the Agbonkuta farmland devolved on all the parties including the Defendants.
That Jacob Obisanya, father of 2nd to 4th Defendants, succeeded Akintilo. That Emmanuel Adewuyi, father of the 1st Defendant, succeeded Jacob Obisanya. That Emmanuel Adewuyi was succeeded by Madam Abigael Odunewu Esukemi. Madam Abigael Esukemi was succeeded by Chief Badiru Adegbaju now suing for Omilabu Odunewu sections of Akintilo family. And upon above, the Respondent as Plaintiff wants a declaration that the farmland at Agbonkuta is the joint property of all the plaintiff family including the Defendants Appellants.
The Appellants, on the other hand contend that the farmland at Agbonkuta personally jointly belong to Jacob Obisanya and Emmanuel Adewuyi and not to Akintilo, who had his own farm in Agboje, far away from Agbonkuta.
Jacob Obisanya was a hunter at the Agbonkuta farm where he settled down and planted economic crops and later took in Isakole paying tenants. That his junior brother Emmanuel Adewuyi was at Osi Village. And, he would sometimes come to his brother at Agbonkuta staying two-three days.
Upon the demise of his brother Jacob Obisanya, Adewuyi took over the farmland, planted more economic crops and took in more fee paying tenants. That, by the time Jacob Obisanya died, the tenants crops had not started yielding; so no tribute or Isakole was paid until Emmanuel Adewuyi came on board. When Emmanuel Adewuyi died, the children of Jacob Obisanya and those of Emmanuel Adewuyi were too young to manage the farm; hence, the emergence of Madam Abigael Odunewu Esukemi who took over in TRUST for the children of Obisanya and Adewuyi, that is, the Appellants and other direct children. Upon maturity, the children of Obisanya and Adewuyi demanded from Madam Esukemi the return to them of the Tenancy Agreements in her possession concerning the Agbonkuta farm. She refused to give them and in fact, she attempted to change the name of Jacob Obisanya to read Akintilo, which the Defendants Appellants resisted.
Meanwhile, Esukemi, up till her death, did not release the Tenancy Agreements. The Appellants maintained that even though Jacob Obisanya and Emmanuel Adewuyi were also the children of Akintilo, the Agbonkuta farm belong personally to Jacob Obisanya and Emanuel Adewuyi and the farm is distinct from the Akintilo family property, one of which is at Apoje farm. They contend that Madam Esukemi and Badiru Adegbaju (Plaintiff) are mere siblings or relations holding the Agbonkuta farm in TRUST for the children of Obisanya and Adewuyi, Defendants Appellants.
At the hearing, the Respondent as Plaintiff gave evidence as PW1 and called two other witnesses. Six (6) witnesses testified for the Defendants Appellants. After the filing and adoption of written Addresses, the learned trial Judge delivered the court’s judgment and found in favour of plaintiff’s Reliefs (1) and (3). Relief (2) for partition was not granted.
Dissatisfied with the judgment, the Defendants filed a Notice of Appeal (containing five grounds of appeal) before this court on 19/12/2006.
Appellant’s brief of argument dated 14/8/2009 was filed on 17/8/2009. Respondent’s brief of argument dated 4/2/2010 was filed on 8/2/2010.
Learned Counsel for the Appellants nominated three (3) issues for determination. They are:
1. Having regards to the totality of evidence adduced before the lower court, whether onus of proof shifted in the course of trial to the Defendants/Appellants such that the Plaintiff/Respondent eventually proved his case on the preponderance of evidence. If the answer is in the positive, then, whether the Defendants discharged the evidential burden of proof in this matter. (Ground 1, 4 and 5)
2. Whether the parameters used by the learned trial judge were right in coming to the decision that the land in dispute belonged to Akintilo and not Jacob Obisanya and Emmanuel Adewuyi (Ground 2 and 3)
3. Whether the Agbonkuta farm and the House there were held in TRUST by late Madam Abigael Esukemi and Chief Badiru Adegbaju (Plaintiff) in that order, for the children of Jacob Obisanya and Emmanuel Adewuyi OR whether they were holding the said farm in their capacity as the children of Akintilo such that they were entitled to share in the proceeds from the farm with the Defendants/Appellants, the direct children of Obisanya and Adewuyi. (Grounds 3 and 4)
Learned counsel for the Respondent on the other hand formulated two issues for determination; they are:
(a) Whether the Plaintiff gave evidence which entitled them to the grant of the Declaration.
(b) Whether in the light of evidence given, injunction as sought by the Plaintiff be given.
On issue 1, Learned Counsel for the Appellants submitted that the issue raises the question of whether the Respondent discharged the initial onus of proof on him thus shifting the evidential burden to the Appellants and thus eventually proved his case on the preponderance of evidence. In other words, having regards to the combined effect of sections 135, 136 and 137 of the Evidence Act, together with decided authorities along that line, was the Plaintiff/Respondents entitled to any or all of his claims in the lower court?
On this, Learned Counsel referred to paragraph 5 of the statement of claim as well as the testimony of the Plaintiff and his two witnesses as follows:
(a) Statement of claim at paragraph 5 states:
“Late Akintilo had extensive farmland at Agbonkuta and Abanla Osi both at Ile-Ife”
(b) (i) PW1, Badiru Adegbaju Fayenuwo, testified thus:
“Before Akintilo died, he owned the farm at Agbonkuta. I don’t know him but I heard of him”
(ii) Akintilo is the founder of (Agbonkuta) and not Jacob Obisanya as claimed by the defendants”
(iii) PW2, Chief Mrs. Olagbenke Ipaye, testified thus:
“Akintito owned farm at Agbonkuta. We used to collect rents on it”
(iv) PW3, Durojaiye Ademiluyi, testified thus:
“Akintilo had farmland at Agbonkuta”.
That, upon cross-examination, PW3 had this to say:
“I don’t know Akintilo face to face.
I know he had farm at Agbonkuta because, as boundary sharers, I used to visit them and play with them. One is my friend”
Q: Because you play with one of them, Akintilo owned land?
A: I know because if an elderly man dies, family uses the land”.
Counsel referred to the cases Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393 at 429 and Kodilinye v. Odu (1936) 2 WACA 336 at 337 and submitted that the evidence led on the ownership did not show:
(a) How Akintilo came to own the land in dispute – by settlement? By grant? By inheritance? etc.
(B) The particulars of intervening owners through whom they claim is very weak particularly when compared with the case of the Appellant, that Jacob Obisanya was the original settler through hunting and farming. They were not interveners or claimants through Akintilo.
He argued that the combined effects of sections 135, 136 and 137 of the Evidence Act squarely puts on the Respondent the initial burden of proof. That the Appellants had no evidential burden of proof, that in fact, with the state of evidence led by the Respondent, the Appellants had nothing to disprove.
He referred to the cases of Agbe v. Ogbeh (2006) 5 SCNJ 314 at 332, Nwabuoku v. Onwordi (2006) 5 SCNJ 359 at 368.
He submitted that considering the evidence led by the Respondent, the Respondent failed to discharge the initial burden of proof and that the learned trial judge was wrong when he held that the Defendants (Appellants) failed to prove that Jacob Obisanya was the original owner/founder of Agbonkuta farm.
That the learned trial judge said DW5 and DW6 testified “Jacob Obisanya who was supposed to be the first settler was a hunter”. He then went on to question. “How he became seized of the land as a hunter was not in evidence, and was not borne out of cross-examination”.
Counsel submitted that to the contrary, these witnesses did not simply stop at saying that Obisanya, the first settler was a hunter. That, they went further thus:
DW5 ____ I know the farmland at Agbonkuta from my youth. Akintilo is not the owner of the farm. I know Jacob Obisanya. He is my father. I know Emmanuel Adewuyi ___ Jacob Obisanya, my father, was a hunter ___ he used to go to Agbonkuta as a hunter Jacob Obisanya had visitors who come to farm. He also farmed at Agbonkuta. He planted palm trees, cocoa and kola-nuts. At this period, Emmanuel Adewuyi would come to Agbonkuta for 2 – 3 days and went back to Osi. Jacob Obisanya made agreements with his tenants ___ Jacob Obisanya died on 22nd February, 1954. “Because they had known him, Emmanuel Adewuyi moved there and brought in more tenants Before Emmanuel Adewuyi died, he planted more crops and had more tenants Emmanuel Adewuyi built a house there”.
DW6, among other things, said Counsel testified: “I know Jacob Obisanya. I know Emmanuel Adewuyi. He was my father. Jacob is a hunter. Visitors asked him for land. Jacob agreed ____ They agreed to be paying tributes. My father also gave out land. They planted cocoa, kola-nuts and oranges. The farmland was not reaped ___ by the time Obisanya died ___ Adewuyi went there, they were paying tributes to him___”.
Appellants Counsel submitted that all these pieces of evidence were corroborated by DW1 James Jekayinfa, a.k.a. Owonikoko, a foundation or first generation tenant to Jacob Obisanya.
He submitted further that in the unlikely event that he is overruled on the submission that the pleadings and the evidence of the Respondent did not disclose a prima facie case to warrant any rebuttal evidence by the Appellants, that the effect of the evidence of DW1, DW5 and DW6, especially DW1 whose evidence was not in any way evaluated by the learned trial Judge is that Jacob Obisanya was the original settler at Agbonkuta who not only hunted there but also farmed on the land.
Starting from DW1, Counsel said his Evidence-in-Chief runs thus:
“My names are James Jekayinfa. I am also called Owonikoko. I cannot be exact about my age, but around 110 years old ___ I know Emmanuel Adewuyi ___ I know Jacob Obisanya. They are (were) hunters. He (Obisanya) had a friend whom he told he had a land which he would give out. We followed the friend to Jacob Obisanya to get land. The land is at Agbonkuta ___ We were given the farmland. I was not the only one given farmland. Others are dead, but I can mention their names: Aborisade was the head, the first Baale, Elerin from Edunabon, Baba Ola from Moro.
I am the only one alive. We agreed we will be paying Ishakole to Jacob Obisanya we did not pay to him because the seedlings were very young when Jacob Obisanya died. We were helping Jacob Obisanya to weed his farms. We gave him 2 kola-nuts, 2 Schnapps in consideration of the farmland granted to us. Emmanuel Adewuyi replaced Jacob Obisanya when the latter died. Emmanuel Adewuyi is dead too. Emmanuel was the one who really enjoyed us. We served him till his death; all the Isakole was paid to Emmanuel Adewuyi till his death i.e. the witness and the other tenants.
I don’t know Akintilo or anyone by that time. I am still a tenant on the farm up till now. I have retired home but my people are still there. There was an agreement to borrow land from Jacob Obisanya and to be paying him his Isakole. It’s a long time now; those in whose possession it was are dead. As I am now, I don’t have a copy.
I know Abigael Esukemi. When Emmanuel (Adewuyi) died, she used to come with Emmanuel’s children to collect tribute or Ifo. I know Badiru Adegbalu. He used to come with them to collect. He used to lead the children of Jacob Obisanya and Emmanuel Adewuyi to collect the tributes”.
Appellant’s Counsel submitted that he had to quote the evidence of DW1 extensively because in his judgment the learned trial judge did not review this vital evidence, let alone evaluate it, talk less of ascribing any probative value to it.
Yet, said counsel, DW1 was corroborated by DW5 – Obisanya Adegboyega who testified in-Chief that:
“Akintilo is not the owner of the farm (farm in dispute).
He knew the place from his youth.
Jacob Obisanya, a hunter was his father. He also farmed at Agbonkuta.
On the land, he planted palm trees, cocoa and kola-nuts.
Obisanya had visitors who came to the farm.
Jacob Obisanya made agreements with his tenants. We were young then”.
DW6, Adelani Adewuyi said Counsel, also testified corroborating the evidence of DW5 relating to ownership and tenancy agreement.
He furthered, that there was evidence that the children of Obisanya and Adewuyi were too young to manage their father’s farm. That, there was the evidence of DW5 and DW6, that when they were of age they demanded the Tenancy Agreement in the custody of Madam Abigael Esukemi. She did not return it to them. Rather, she took them to a Lawyer to change the name Obisanya to Akintilo. But, they (DW5 and DW6) refused to sign. Upon the death of Esukemi, the Tenancy Agreement reverted to the plaintiff (Respondent) who also refused to hand over or refused to produce in court in spite of Notice to produce.
Learned Counsel submitted that all the above issues were left hanging and unresolved. But, that, yet the learned trial judge said:
“In the final analysis, it is my view, and I so hold that the Plaintiffs have established their claim that their common ancestor Akintilo, founded the land ___”
He went on to say that the Defendants denied the Plaintiff’s claim, yet, he went to say that the Defendants did not convince him that Jacob Obisanya was the original owner.
Learned Counsel submitted that another pointer to the ownership of the Agbonkuta farm is the house built there. The Plaintiff (Respondent) contended that the House or cottage was built with the proceeds of Isakole collected on the Agbonkuta farm. This was denied by the Defendants (Appellants) that it was built by Emmanuel Adewuyi as his personal property. That, on this point the learned trial Judge had this to say:
“Another deciding pointer to ownership of the farmland is to find out from the facts whether it is true that Emmanuel Adewuyi built the house at Agbonkuta. Whilst the Plaintiffs who claimed that the house was built with the proceeds of the farmland did not lead convincing evidence about the time and who built same from the tributes for and on behalf of the family. I find it difficult to believe and to hold that the house was built by Emmanuel Adewuyi for himself as canvassed by the Defendants. The Defendants through DW4, a photographer, tendered two sets of negatives and printed photographs with some inscription purportedly made in 1962 by Emmanuel Adewuyi. On a close and sober look, the said inscription looked to me fresher and newer than an inscription of 1962, some 44 years ago”.
Learned Counsel invites this court to examine Exhibits D3 to D18 with special attention to Exhibits D8 to D15 containing the inscription the learned trial Judge referred to as “looked to me fresher and newer than the inscription of 1962, some 44 years ago” for us to see that the inscription could not be recent. That, in any event, the DW4, photographer Awoyemiju Sunday had this to say:
Q. By the time you took the pictures, did you ascertain the freshness of the writing?
A. Looks like it was when they built the house.
Q. Was the house painted or not?
A. No
Q. It looks like an old building.
A. It’s an old building.
DW5, said Counsel, testified thus: “Emmanuel Adewuyi built a house there (Agbonkuta) it was not built with rents from Akintilo family. He inscribed his name on the building. Even the back is about to fall down. Looked at Exhibits D15 – D18. This is how it was written on Exhibit D15”. That, on cross-examination, he still denied the insinuation that the house was built with tribute, further asserting that Adewuyi inscribed his name.
Also that, in Examination-in-chief, Omilani Adewuyi DW6 also confirmed that her father (Adewuyi) built a house at Agbonkuta; he inscribed his name on it. It’s not built from general money. She also identified Exhibits D15 – D18. She was not cross-examined on her evidence that her father (Adewuyi) built the house at Agbonkuta.
Counsel submitted that a dispassionate look at the unchallenged or unshaken evidence of DW4, DW5 and DW6 on the issue of the Agbonkuta house shows clearly that the house was built with the personal money of Emmanuel Adewuyi. Also, that from the credible evidence of the photographer DW4, the inscription containing the name of Emmanuel Adewuyi must have been put when the cement plaster was fresh, there is evidence that it was built in 1962.
He submitted that it was erroneous for the trial Court to hold that the inscription was newer and fresher than that of 1962. It was not borne out of the evidence led in court.
Interestingly, said Counsel, the learned trial Judge had earlier said that “___ the Plaintiffs who claimed that the house was built with the proceeds of the farmland did not lead convincing evidence___”. He submitted that the Plaintiff should lead sufficient evidence in order to discharge the initial onus of proof that the house was built with the proceeds from the farm. The unchallenged and undiscredited evidence of the Defendants should weigh heavily in determining ownership of the house in favour of the Defendants that it was built personally by Emmanuel Adewuyi, DW6’s father. The learned trial Judge’s holding became more perverse when he said it was “Another deciding pointer of ownership of the farmland”.
He submitted that even if the Plaintiff Respondent had made a prima facie case in the lower court that Akintilo was the original owner or founder of Agbonkuta farms (which is not conceded) this has been sufficiently and overwhelmingly disproved by the Defendant/Appellants. He urged that issue 1 be resolved in favour of the Appellants.
On issue 2, learned counsel submitted that none of the parameters of ownership of the farmland claimed to have been used by the learned trial Judge in favour of the Respondent that is “sharing of Tributes” and “the House at Agbonkuta” was rightly used to come to a decision that Akintilo was the original owner of Agbonkuta farm. Rather, he said that the evidence before the lower court is more consistent with the conclusion that Jacob Obisanya is the Original settler and founder of Agbonkuta farm.
On issue 3, Learned Counsel submitted that the learned trial judge held at page 95 of the records that:
“Drawing analogy from the above, the Plaintiffs can inherit properties through their maternal line. It is therefore my conclusion that the Plaintiffs are entitled to inherit from the property of their maternal grandfather, Akintilo, under the custom of Ife Land”.
Learned Counsel submitted that in the first instance the above conclusion was reached without reference to the Evidence-in-chief of DW2 and other defence witnesses.
Counsel conceded that one cannot lose sight of the fact that Akintilo was an ancestor of all the parties to the case. But, that there is a clear distinction between the property of Akintilo and the PERSONAL property of his descendants – the parties in this case. That while the property belonging to Akintilo can be shared among all the contending parties in this case, as his descendants, the joint PERSONAL property of Jacob Obisanya and Emmanuel Adewuyi (i.e. Agbonkuta farm) can only be shared by their surviving children, i.e. the Appellants.
A dispassionate study of the evidence of DW1, DW5 and DW6 will show that Madam Abigael Esukemi and Badiru Adegbaju, in succession, held the Agbonkuta farm in TRUST for the Appellants who were the direct children of Jacob Obisanya and Emmanuel Adewuyi.
He argued that our Law Reports are replete with the position in fact and in law that siblings or relations cannot inherit a deceased’s property especially real property when such a deceased person is survived by direct children. He referred to the cases of Rabiu v. Abasi (1996) 7 SCNJ 53 at 60, Adeseye v. Taiwo (1956) 1 FSC 84 at 85, Yusuf v. Dada (1990) 4 NWLR (Pt. 146) 657 at 669.
He urged us to hold that the decision of the learned trial judge on the above issue is also perverse and that if the learned trial judge had put the totality of the evidence adduced by the contending parties on that imaginary scale, the scale would have tilled in favour of the Appellants.
He concluded that the appeal be allowed and that the Plaintiff’s claim be dismissed.
Learned Counsel for the Respondents in treating his two (2) issues and in answer to the three (3) issues nominated by the Appellants said the Plaintiffs (Respondents) gave direct convincing and compelling evidence on which the lower, court had found for the Declaration sought. That the Defendants (Appellants) never denied the fact that Akintilo had four wives as demonstrated by the Respondents.
The Appellants said “It is conceded my Lords that one cannot lose sight of the fact that Akintilo was an ancestor of all the parties in this case” (page 29 of their brief). But, that they went further to show that ‘sharing tributes’ is not evidence of ownership of the Agbonkuta farm being in Akintilo. Also, that the Appellants have not in any way show and or demonstrated that the injunction granted was perverse or unjustified. He urged us to dismiss the appeal.
The three (3) issues raised by the Learned Counsel for the Appellants in this appeal are not just connected or interrelated but are indeed dependent one upon the other. The contention of the Appellants in relation to issue 1 is in the alternative. But, then, the learned Counsel for the Appellants was indeed right to have said that the pleadings and evidence of the Respondents were such that they did not discharge the initial burden of proof of their entitlement to a declaration of title of the land in dispute in favour of Akintilo as against Jacob Obisanya and Emmanuel Adewuyi.
In other words, that the Respondent as Plaintiffs in fact did not establish a prima facie case as to warrant the consideration of the Appellant’s defence. This is because a Plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, (as in the instant case) he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. This burden of proof on the plaintiff is not discharged even where the scales are evenly weighed between the parties.
See: Archibong v. Edak (2006) 7 NWLR (Pt. 980) 485, Dike v. Okoloedo (1999) 10 (2005) 7 NWLR (Pt. 623) 356, Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) 337.
In the instant case, I believe the Respondent’s claim for declaration of title was in fact dead from the beginning having regards to their pleadings and evidence. All that could be gathered from paragraph 5 of the statement of claim is that “Late Akintilo had extensive farmland at Agbonkuta and Abanla Osi both at Ile-Ife”
Thus if by chance, any of the Plaintiffs Respondents witnesses have said that Akintilo was the founder and/or settler of the land at Agbonkuta that piece and or type of evidence would have been at variance with the scanty pleadings offered by the Respondents.
It is the law that in a claim for declaration of title to land, a plaintiff has the burden of proving his case upon his own evidence and cannot rely on the weakness of the defendant’s case even though where the facts permit, a Plaintiff can take advantage of evidence by the defence which supports his case.
See: Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393, Tukuru v. Sabi (2005) 3 NWLR (Pt. 913) 544, Onisaodu v. Eleweju (2006) 13 NWIR (Pt. 998) 517, Nze v. Unakalamba (1998) 2 NWLR (Pt. 537) 308, Ibe v. Auta (1998) 2 NWLR (Pt. 538) 497, Nwosu v. Okoli (1991) 2 NWLR (Pt. 592) 598, Ojo v. Anibire (1999) 11 NWLR (Pt. 628) 530, Orubo v. Gbondu (1999) 11 NWLR (Pt. 628) 661, Madubuonwu v. Nnnalue (1999) 11 NWLR (Pt. 628) 673, Eze v. Atasie (2000) 6 SC (Pt. 1) 214, Elema v. Akenzua (2000) 6 SC (Pt. III) 26 at 29 – 30, Itauma v. Akpe-Ime (2000) 7 SC (Pt. II) at 30 – 31, Gbadamosi v. Dairo (2001) II WLN 129.
Again, as the learned counsel for the Appellants pointed out even if we assume here without holding that the Respondents ever traced or proved their title to the land at Agbonkuta, if the cases of the contesting parties are properly weighed on the imaginary scale, the totality of the evidence adduced by the Appellants as to the ownership of the land in dispute by Jacob Obisanya and Emmanuel Adewuyi clearly outweighs and is preferable to the evidence offered by the Respondents. This is first, because, where the Plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial court, is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier.
See: Ibikunle v. Lawani (2007) 3 NWLR (Pt. 1022) 580, Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) 401.
And where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, as the Respondents in this case, he cannot turn around to rely on acts of ownership and possession to prove his title to the land. Indeed, there would be nothing on which to found acts of ownership. In such a case, the court is obliged to dismiss the claimant’s claim.
See Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571.
From the foregoing, issue 1 is resolved in favour of the Appellants.
It is only pertinent to observe that having regards to my earlier observation of the dependence of issues 2 and 3 in this appeal on issue No. 1, the two other issues are indeed in favour of the Appellants.
However, by way of additional justification, the learned trial judge applied two parameters namely “Sharing of Tributes” and the “Ownership of the House at Agbonkuta” for the determination of the ownership of the disputed farmland in favour of the Respondents. The first criteria was patently wrong because the Appellant not only denied sharing of tributes but categorically alleged at least that the land in dispute was held in TRUST for the children of Jacob Obisanya and Emmanuel Adewuyi by the Respondents. The idea of the TRUST coupled with the undisputed fact that all the parties are descendants of Akintilo makes the criterion of “sharing of tributes” to be irrelevant if not unjust in the circumstances of the case. As for the house at Agbonkuta, if anything, every relevant evidence on record points to the fact that the house belongs personally to Emmanuel Adewuyi as even the learned trial Judge held rightly that the Respondents evidence on the issue was not convincing. The unchallenged evidence of DW4, DW5 and DW6 is to the effect that the house at Agbonkuta belongs personally to Emmanuel Adewuyi.
I cannot resist the temptation here to say that the finding of the learned trial judge in this respect indeed in many other respects in this case are grossly perverse.
In the case of Gabriel Iwuoha v. Nigerian Postal Services Ltd. (2003) 4 S.C.N.J. 258 at 284, a perverse finding was held by the Supreme Court to be:
“____ a finding of facts which is merely speculative and not based on any evidence before the court. A perverse findings is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Judge”.
See also. Overseas Construction Co. Ltd. v. Creek Enterprises (Nig) Ltd. (1985) 3 NWLR (Pt. 13) 407.
And, white this court has not the ear and eyes of the lower court, the law has vested in it with the findings of a trial court where such findings are perverse and do not bear out the fact that the court really heard and saw the witnesses in court.
Per. Tobi, J.C.A. in UBA Ltd & 1 or v. Rose Francis Louis (1994) 4 NWLR (Pt. 336) 110 at 128.
In other words, an appellate court will very rarely, if at all interfere with the findings of facts made by the trial court.
However, the findings are not sacrosanct. Where the conclusions made from the findings are not supported by the evidence relied upon, or the proper conclusions or inferences are not drawn from the evidence, or where the trial court failed to evaluate the evidence, the appellate court as in the instant case, will, in the interest of justice, be free to do so. The appellate Court is entitled to evaluate the evidence and come to the right decision supported by evidence.
See: Anthony Ibhafidon v. Sunday Igbinosun (2001) 4 SC (Pt. 1) 95 at 104, Per Kabiri-White, JSC. Daniel Bassil & Anor v. Chief Lasisi Fajebe & Anor (2001) 4 SC (Pt. 11) 119 at 125, Chief Kalada Nteoewuile v. Chief Isreal Otuo (2001) 6 S.C 200 at 211.
Issue 2 is also resolved in favour of the Appellants.
It goes without saying that the findings of the learned trial judge which brought about issue 3 was based on the fundamental but wrong misconception by the learned trial Judge that the Respondents proved their title to the disputed land and thereby led to the legally erroneous conclusion that even the female descendants of Akintilo as Plaintiffs could inherit the land in dispute. In this respect, the learned trial judge treated a case involving proof of title to land as if it were a case of succession or inheritance rights of family property. Having found in respect of issue 1 that the Plaintiff Respondents did not in fact prove their title to land through Akintilo and in issue 2 that the parameters of ‘sharing of tributes’ and ‘Ownership of the cottage of the house at Agbonkuta’ were wrongly applied by the learned trial judge in issue 2. It follows that the Plaintiff Respondents descendants of Akintilo be they males or females could not be the proper heirs to the joint property of Jacob Obisanya and Emmanuel Adewuyi as contended by the Appellants.
In consequence, the three (3) issues in this appeal are decided in favour of the Appellants, the appeal is meritorious and it is accordingly allowed.
The Judgment of A. A. G. Onibokun J. in Suit No. HIF/15/2005 delivered on 9/11/2006 is hereby set aside.
The claims of the Plaintiffs/Respondents in Suit No. HIF/15/2006 are accordingly dismissed.
There shall be costs of N30,000 in favour of the Appellants.
SOTONYE DENTON WEST, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, MOJEED ADEKKUNLE OWOADE, JCA, and I agree with the conclusions reached therein.
I wish to state by way of emphasis that it is trite that a plaintiff praying for declaration of title to land by traditional evidence is obligated to prove his root of title to the land in dispute. Where he traces his root of title to a particular person, he must further prove that person’s root of title and how that person got his or her title i.e. by grant, original settlement, gift e.t.c. See the cases: Chukwu vs. Biala (1999) 6 NWLR (Pt. 608) @ 674; Ishie v. Howaso (2001) FWLR (Pt. 43) 378.
It is fatal to the respondents’ case that there is nowhere in the entire gamut of their pleadings or in all their evidence led that they traced and/or prove how Akintilo, their common ancestor, got his title to the farmland in dispute.
For this and the more detailed reasons contained in the lead judgment, I also allow this appeal as being meritorious. I abide by the order as to cost assessed at N30,000 in favour of the appellants.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read in draft the lead judgment just delivered by my learned brother OWOADE, JCA and I do agree with his reasoning and conclusion therein that the appeal has merit and is accordingly allowed., I abide by the consequential order regarding costs.
Appearances
Layi Ayinde For Appellant
AND
Dele Oyedokun holding brief for Chief B.O. Omirefa For Respondent
