MR. ADEREMI SUNDAY WILLIAMS v. PRINCE SAMUEL ADETUNJI HAASTRUP (2019)

MR. ADEREMI SUNDAY WILLIAMS v. PRINCE SAMUEL ADETUNJI HAASTRUP

(2019)LCN/12982(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/EK/33/2017

RATIO

CIVIL MATTERS: STANDARD OF PROOF IN CIVIL MATTERS

In civil cases, proof of a matter is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

EVIDENCE: HE WHO ASSERTS MUST PROVE

The Claimant who asserts has the burden to prove or establish his case with cogent and credible evidence otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

BURDEN OF PROOF IN DECLARATION OF TITLE TO LAND

In a case for declaration of title to land such as the instant appeal, the onus was on the Respondent to establish his claim by preponderance of evidence, credible and cogent. As Claimant he therefore, had to satisfy the Court below that, upon the pleadings and evidence adduced, they were entitled to the declaration sought. See further, the cases of ADEWUYI V. ODUKWE 2005 ALL FWLR PT. 278 1100, IRAGUNIMA V. RSHPD 2003 FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC and SOLOMON ECHANOM V. MRS PHILOMENA OKOTIE & ORS 2011 LPELR-CA/B/247/2009.PER ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.

DECLARATION OF TITLE TO LAND: IDENTITY OF THE LAND IS IMPORTANT UNDER DECLARATION OF TITLE TO LAND

JUSTICES

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

MR. ADEREMI SUNDAY WILLIAMS – Appellant(s)

AND

PRINCE SAMUEL ADETUNJI HAASTRUP

(HEAD OF HAASTRUP FAMILY)

(FOR HIMSELF AND ON BEHALF OF THE GRANDCHILDREN

OF LATE PA WILLIAMS ADEWALE HAASTRUP)

(EXCEPT THE DEFENDANT) – Respondent(s)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated as a result of the Judgment of the Ekiti State High Court, Ado-Ekiti, delivered by Hon. Justice A. L. Ogunmoye on November 1st, 2016, wherein, in the main, the property in issue, the bungalow at 21 Barracks Road, opposite Area Commander?s Office, Okesa, Ado-Ekiti was declared to be jointly owned by the family and the inheritance of all the grandchildren of late Pa Adewale Williams Adedeji Haastrup. Thereby, the Court found in favour of the Respondent (Claimant at the Court below) and dismissed the Counter-claim of the Appellant (the Defendant at the Court below).

The claims at the Court below by the Respondent were as follows:

a. A declaration that the bungalow known and called 21 Barracks Road which is lying and situate at Area Commander?s Office, Okesa, Ado-Ekiti is a joint family property by inheritance of all the grandchildren of late Pa Adewale Williams Adedeji Haastrup.

b. A declaration that the defendant cannot rightly and or validly exercise an exclusive ownership right over the aforesaid property to the

exclusion of other grandchildren of late Pa Adewale Williams Adedeji Haastrup.

c. An order directing compelling and or mandating the defendant to forthwith vacate the property known and called 21 Barracks Road which is lying and situate at Area Commander?s Office, Okesa Ado-Ekiti.

d. An order of perpetual injunction restraining the defendant, his agents, assigns, servants, privies and or any person whosoever acting on his instructions, directive, order or claiming through him from further exercising any possessory and or ownership right over the property in dispute in this suit.

The Appellant in reaction to the Respondent?s claims filed Counter-claim thus:

a. A declaration that the defendant/counter claimant and his siblings mentioned herein in paragraph 10 of the statement of defence are lawful, rightful, bonafide and beneficial owners of the six rooms bungalow and a (sic) four rooms (uncompleted) built in front of the six rooms bungalow situate at 21 Barracks Road, Okesa Ado-Ekiti State on the parcel of land belonging to the Asa family of Okesa Quarters, Ado-Ekiti.

?b. A. declaration that the defendant/counter claimant

and is siblings mentioned herein in paragraph 10 of the statement of defence are lawful, rightful, bonafide and beneficial owners of the seven rooms bungalow erected by late Sunday Williams behind the six room bungalow situate at 21 Barracks Road, Okesa Ado-Ekiti, Ekiti State.

c. An order of perpetual injunction restraining the claimant, his agents, assigns, servants, privies and or any person whosoever acting on his instructions, directive, order or claiming through him from trespassing and laying claim to ownership of the property in dispute in this suit.

The matter went to trial and six witnesses in all were taken, three from each side.

Briefly, the facts that culminated into the suit at the Court below:

The Appellant?s story is that, he has no affinity with the Respondent nor are they biologically related. That, his grandmother was late Omolara Williams from Olotin family lineage of Okesa Quarters, Ado-Ekiti, who got married to late Pa Adewale Williams who was a polygamist and the District Officer in Ekiti land at the time. That one Sunday Williams, deceased was the only child of the marriage who had 10 children. That, the

Olotin family gave the parcel of land upon which Mrs Omolara Williams built a six room bungalow, the property in dispute. That, his father, after the death of his grandmother requested for the land behind the bungalow from the Olotin family, which he was given upon payment of customary price and he erected a seven room bungalow thereupon. That, upon his grandmother?s death, the six room bungalow devolved on his father, Sunday Wiiliams senior, the only surviving child and upon his father?s death, both the six and seven room bungalows devolved on him and the other children of his father.

?According to the Respondent, the property in issue belonged to late Pa Adewale Williams Haastrup, who was from Ilesa, Osun State, acquired it from Olotin family of Okesa, Ado-Ekiti. That, he came to Ado-Ekiti as Secretary to the District Officer of Ekiti, with his two (2) wives, Madam Omowunmi and Madam Oshuntola and lived with them in the six room apartment built by him from 1907 till his demise. He remarried three other wives as his two wives pre-deceased him, they were Madam Omolara Williams who was the mother of the Appellant, Madam Abejide Haastrup and

Madam Atinuke Haastrup. Pa Haastrup had four children, Richard Haastrup, Respondent?s father, Sunday Haastrup, Appellant?s father, Christopher Haastrup and Beatrice William nee Haastrup, all deceased. That, it is only the Appellant out of all the grandchildren who is based in Ado-Ekiti and therefore was exercising right of possession on the property which was built 20 years before the Appellant?s grandmother got married to late Pa Haastrup as the 3rd wife. That, the Appellant?s claim through his grandmother would not stand.

The Court in its wisdom, found for the Respondent, which decision was unacceptable to the Appellant who has approached this Court being dissatisfied. His Notice of Appeal with four grounds dated December 21st, 2016 was filed on same date.

RELIEF BEING SOUGHT

The Appellant seeks that this appeal be allowed, the judgment of the Court below be set aside and the Counter-claim be dismissed.

In compliance with the Rules of this Court, parties have filed and exchanged their briefs of argument. The Appellant?s as amended dated October 2nd, 2018 filed October 4th, 2018, was settled by Hon. Bayo

Idowu Esq., the Respondent?s dated September 25th, 2017 was filed October 9th, 2017, was settled by Dr. E. K. Adetifa Esq., to which the appellant?s Reply, was filed on November 26th 2018.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION

APPELLANTS ISSUES

1. Whether or not the Appellant adduced credible evidence with supporting document to establish his title to the land upon which the property was built at No. 21 Barracks Road which is lying and situate at Area Commander?s Office, Okesa, Ado-Ekiti (Ground 1).

2. Whether given the circumstances of this suit, the Respondent who is not one of the grand children of late Mrs Omolara Williams can be allowed to share from the property of Late Mrs Omomlara Williams (Ground 2).

3. Whether the lower Court was right to have given judgment in favour of the respondent despite the overwhelming evidence and document that favoured the appellant (Ground 3).

4. Whether the lower court was right to have imported evidence not adduced during trial as background for his judgment (Ground 4).

RESPONDENT?S ISSUES

1. Whether the lower Court was right to have

held that the bungalow known and called 21 Barracks Road which is lying and situate at Area Commander?s Office, Okesa Ado Ekiti is a joint family property by inheritance of all the grandchildren of late Pa Adewale Williams Adedeji Haastrup.

2. Whether the lower Court properly evaluated the evidence adduced before it in arriving at its verdict.

?The Appellant?s Issues shall be adopted for the determination of this appeal.

APPELLANT?S SUBMISSION

It was submitted for the Appellant by learned Counsel, Hon. Bayo Idowu Esq., that the High and Appeal Courts had sometime in Judgments, Suit No. HAD/37/06 of April 3rd 2014, Exhibit 4, Suit No. HAD/149/2008 of February 5th 2014, Exhibit 5 and Appeal No. CA/AE/3/2010 of May 24th 2012, Exhibit 6, held that the Asa family owns the land at Okesa particularly No. 21 Barracks Road and its environs and corroborated the grant to the Appellant?s grandmother and father. That, the Appellant established ownership of the property in dispute through documentary evidence being one of the methods of proof of ownership known in law. He cited in support the case of IDUNDUN V. OKUMAGBA (1976) 1

NMLR 200. That, the said proof excluded the Respondent who is not a child of late Sunday Williams or late Mrs Omolara Williams and cited the case of OVIBOR ANEKWE & ANOR. V. MRS MARIAM NWEKE 2014 LPELR 22697 SC. Therefore, he contended that, the claim by the Respondent that the land was given by the Olotin family cannot be correct and ought to fail and cited in support the cases of SANYAOLU V. COKER 1983 3 SC 124, AKEJU & ANR V. CHF (sic) SUENU & ORS 1925 6 NMLR 87, OKAFOR EGBCHE V. CHF IDIGO 1934 11 NLR 140 ANTA V. WILLYBE 2003 11 NJSC 1 and OBIOHA V. DURU 1994 10 NSNJ 48. He submitted that, the Court was wrong to have relied on its belief in arriving at its decision regarding the possible source of revenue of late Mrs Omolara Williams and therefore improper evaluation of the evidence before it. He cited in support the cases of OGUDO V. STATE 2011 202 LRCN 13, RAUF ADESOJI AREGBESOLA V. OLAGUNSOYE OYINLOLA CA/EPT/GOV/02/2010 and DARAMOLA V. AG ONDO STATE 2000 7 NWLR PT. 665 440. He urged that, this Court should reevaluate the evidence and allow this appeal in conclusion, citing the case of,EBBA V. OGODO 1984 1 SCNLR 372.

RESPONDENT?S SUBMISSION

Before proceeding hereunder, it is pertinent to note that, the learned Counsel in paragraphs 3.3 to 5.01 made submissions he referred to as preliminary issues. From the record before this Court, the Respondent did not file any preliminary objection and so none was considered at the hearing of this appeal, one therefore wonders, given the Rules of this Court, what are meant or regarded as preliminary issues. The answer is in the negative. I therefore, proceed to consider the substantive matter in the brief which is the submission on the issues for determination.

Dr. E. K. Adetifa Esq., learned Respondent?s Counsel submitted that, the Court was right in its decision in favour of the Respondent. He argued that, Exhibit 4, certified true copy of the judgment in Suit No. HAD/37/06 delivered on 3rd of April 2014, Exhibit 5, certified true copy of the judgment in Suit No. HAD/149/2008 delivered on 5th February, 2014 and Exhibit 6, certified true copy of the Court of Appeal judgment, Appeal No. CA/AE/3/2010, delivered on 24th May 2012, through which the Appellant sought to prove his root of title have no nexus or

connection with the property in issue. That, cases are decided on their peculiar facts and circumstances and cited the case of SKYE BANK PLC. V. AKINPELU 2010 ALL FWLR PT. 526 P. 460, B.U. NIG. LTD. V. S.P.D.C. LTD. 2016 ALL FWLR PT. 826 P. 398 and BUDE V. STATE 2016 ALL FWLR PT. 839 P. 1126. Further that, the Appellant failed to prove his counter-claim and did not relate the documents tendered to his cases and cited in support the cases of AKINBISADE V. STATE 2006 17 NWLR PT. 1007 184, LADOJA V. AJIMOBI 2016 ALL FWLR PT. 843 P. 1846 and AUGUSTINE V. YUSUF 2016 ALL FWLR PT. 2099 2135. He submitted that, even from the Appellant?s evidence under cross-examination it showed that, the Olotin family also has land at Okesa Ado-Ekiti. He submitted that, the belief of the Court after evaluating the evidence before it that the Appellant?s Counter-claim was not proved is unassailable. In conclusion, he urged that, this appeal be dismissed and affirm the judgment of the Court below.

THE POSITION OF THE COURT

In determining this appeal, I shall consider Issues 1, 3 and 4 together and conclude with Issue 2. For ease of reference they are hereunder

reproduced:

3. Whether the lower Court was right to have given judgment in favour of the respondent despite the overwhelming evidence and document that favoured the appellant (Ground 3).

4. Whether the lower Court was right to have imported evidence not adduced during trial as background for his judgment (Ground 4).

In civil cases, proof of a matter is determined by the preponderance of evidence or the balance of probabilities. See the cases of IMANA V. ROBINSON 1979 3-4 SC, DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1. The Claimant who asserts has the burden to prove or establish his case with cogent and credible evidence

otherwise his case would fail and it does not matter whether or not the defence of the Defendant is weak. He must rely on the strength of his case and not the weakness of the defence. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. It is after such proof or establishment of his case that the burden shifts to the opposing party. See the cases of DAODU V. NNPC supra, KALA V. POTISKUM supra, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and a host of others.

LPELR-CA/B/247/2009.

ISSUES 1, 3, AND 4

I have very carefully read the printed Record and the briefs by the parties and having so done, I shall commence determination of Issues 1, 3 and 4 as one considers the findings of the Court below in its evaluation of the evidence before it.

It is important and for any Claimant in a case for declaration of title to land to ascertain and prove the identity of the property in issue where there could be confusion or lack of certainty of same. See the cases of KYARI V. ALKALI & ORS 2001 LPELR-SC 224/1993, LABABEDI & ANOR. V. LAGOS METAL INDUSTRIES LTD. & ANR. 1973 8 NSCC 1, ROMAINE V. ROMAINE 1992 4 NWLR PT. 238 650, CHIEF DANIEL IBULUYA V. DIKIBO 1976 6 SC 97 and ATOLAGBE V. SHORUN 1985 1 NWLR PT. 2 360. In the instant, the Respondent, claimed that, their grandfather built a six room and kitchen bungalow at 21 Barracks Road, opposite Area Commander?s Office, Okesa, Ado-Ekiti, whilst on the other hand, the Appellant claimed that, it was his paternal grandmother, Madam Omolara Williams who built a six room bungalow at the said address. The Respondent testified that, there was another six

room bungalow at the back of their grandfather?s which belonged to the Oguntula family of Ile Ife. The Appellant?s claim went further that, apart from the six room bungalow, there were other two bungalows of seven rooms and uncompleted four rooms. Having counter-claimed in respect of the same property, the Court rightly held that, the identity of the property in dispute was established by the Court as the six room bungalow at the 21 Barracks Road, opposite Area Commander?s Office, Okesa, Ado-Ekiti. See page 394 of the Record.

?The Appellant from the Record adamantly denied any affinity with the Respondents and that the property therefore has never been that of the alleged Pa Haastrup family. He claimed not to know the Respondent or any one of whom the latter represented and consistently stated his name as Aderemi Sunday Williams, the name Haastrup not added. The Court used the evidence, both oral and documentary, the burial invitation of the Appellant?s father, Exhibit 3, to found affinity between the parties which one agrees with. The three siblings of the Appellant who allegedly attended a family meeting in respect of the

burial of the Appellants father, who was also their father, in the house of the CW2, the photograph of the Appellants father in Exhibit 3, the burial invitation card, was referred to as Prince Adewale Haastrup Sunday Williams. It was in evidence that both parties agreed that, their grandfather was from Ilesha in Osun State. The testimony of CW3 was not discredited on his knowledge of the father of the parties, their grandfather, Pa Haastrup and the Appellants paternal grandmother, Madam Omolara Williams. The conclusion of the Court in that regard is as follows on page 397 of the Record:

“The defendant failed to convince the Court that his own father?s Haastrup was different from that of the claimant. It was therefore clear that both parties were referring to one and the same person as their grandfather.”

On page 399 of the Record, it stated further thus on the issue of affinity between the parties:

“In denying any affinity with the claimant the defendant was denying the obvious.”

The Court found and one agrees as it stated thus on page

397 of the Record on the evidence of the Appellant, DW1, on the issue that their grandfather, Pa Haastrup had many wives:

“The testimony of the DW1 under cross examination that his evidence that Pa Williams had more than two wives could have been a typographical error was a story better told to the marines. I do not believe it. I therefore do not find it difficult in holding that Pa Haastrup married five wives namely Madams Omowumi, Oshuntola, Omolara Abejide and Atinuke and that Madam Osuntola who was barren was also known as Iya Alaro.”

From the Record as correctly found by the Court, that the Appellant would appear to be economical with the truth. He failed to state that, his grandfather had more than one child, his father as he insisted was the only child of his grandfather and Madam Omolara Williams. The Court opined thus in that regard on page 398 of the Record:

“The defendant?s story was full of improbabilities. It is trite that when evidence is improbable, it can easily be dismissed as untrue as probability has always been the surest road to the shrine of truth and justice.”

Having found and correctly in my view, humbly, that the parties were related, of the same Haastrup, had the same grandfather who had many wives, the Court further found as follows on page 401 on the question of who actually built the house in dispute:

“It is elementary law that the best way to contest the testimony of a witness is either by way of cross-examination or by leading contrary evidence. The DW1 did not succeed in doing either and I believe the CW1 and CW2 that Pa Haastrup built the house in 1907 which was 23 years before his marriage to Madam Omolara ?.”

The Appellant did not know when the house was built. The Judgments produced in support of his case, Exhibits 4, 5 and 6 were found and one agrees as not relevant for the purpose of the Appellant and of assistance to the proof of his claim. Exhibit 4, involved the claim in respect of the land of the Plaintiff therein which was situate opposite Okesa market, Ado-Ekiti, Exhibit 5, was on the disputed land measuring approximately 1.650.99 hectares situate at off Iyin Road, Ado-Ekiti, which was declared as that of the Asa family

and Exhibit 6, was on the open space on which the Defendant therein was erecting a building at Asa compound, Okesa, Ado-Ekiti and was declared that of the Asa family. One, as afore said finds that, the said Exhibits did not add to or enhance the Appellant?s claim of ownership in respect of the specific property in dispute, 21 Barracks Road, Okesa, Ado-Ekiti. See pages 399-402 of the Record. As already stated the production of Exhibits 4, 5 and 6 would not guarantee success of his case except where he was able to show with credible evidence from the facts of the said Exhibit and Judgments reached therein that they assisted his case which one was unable to see therein. The fact of ownership of land in the area of the property in question by both Asa and Olotin families was proved particularly by the testimony of the CW3 which was not discredited. Indeed that both families share boundary, within the same area. Houses around the property in dispute were found to be owned by grantees of the Olotin family and one or two houses by grantees of the Asa family. The question to be answered is how did the Judgments establish the claim or position of the Appellant in

the circumstance of this appeal.

The Court stated further in its evaluation on page 402 of the Record thus:

“There was ample evidence before me to support the claim of the claimant that the house in dispute was indeed built by Pa Haastrup. The house therefore belonged to the children of Pa Haastrup and in the absence of any evidence that same had been shared among the children of Pa Haastrup, same devolves on their children as family property.”

The Court found and one agrees that, the evidence of the Respondent would appear more consistent, credible and reliable than that of the Appellant, and therefore the Respondent?s case was established.

On the Appellants Counter-claim, the Court, having found that the six room bungalow was built by Pa Haastrup and not Madam Omolara Williams ousted the claim of the Appellant, that facts on the uncompleted four room bungalow were not pleaded therefore no relief could ensue there from, as well as the seven room bungalow with no evidence in proof of its ownership by the Appellant. Consequently found that, the Appellant failed to prove

his Counter-claim by preponderance of evidence.

In the light of the foregoing, one finds in respect of Issues 1, 3 and 4 against the Appellant. Through the whole gamut of the Record, one was unable to find imported evidence not adduced during the trial.

ISSUE NO. 2

From the evidence before the Court as contained in the Record, the Court rightly found that the property in issue was not the property of Madam Omolara Williams, but that of Pa Haastrup which upon his death devolved on his children and through them to the grandchildren as the property of the family which had not been partitioned. Therefore, Issue no. 2 is resolved against the Appellant.

Flowing from the foregoing, this appeal cannot be allowed, therefore fails and is hereby accordingly dismissed. The Ekiti State High Court judgment delivered on November 1st, 2016 by Hon. Justice A. L. Ogunmoye is hereby affirmed in terms of the decision on the Respondent?s case as well as the decision on the Appellant?s Counter-claim.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Hon. Bayo Idowu,Esq.For Appellant(s)

Dr. E.K. Adetifa, Esq.For Respondent(s)

Appearances

Hon. Bayo Idowu,Esq.For Appellant

AND

Dr. E.K. Adetifa, Esq.For Respondent

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