GODDY EDOSA & ANOR v. MRS. EKOMWENRIENRIEN OGIEMWANRE (2018)

GODDY EDOSA & ANOR v. MRS. EKOMWENRIENRIEN OGIEMWANRE

(2018) LCN/4567(SC)

In The Supreme Court of Nigeria

On Friday, the 14th day of December, 2018

SC.56/2011

RATIO

POSITION OF THE LAW ON THE VARIOUS METHODS BY WHICH OWNERSHIP OF PROPERTY MAY BE ESTABLISHED

The various methods by which ownership of property may be established have been firmly settled in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. They are: 1. By traditional evidence; 2. By production of documents of title duly authenticated and executed. 3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. 4. By acts of long possession and enjoyment. 5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute. See also: Nkado Vs Obano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 – 11 SCNJ 1 @ 6. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

BURDEN OF PROOF ON THE CLAIMANT IN A CLAIM FOR DECLARATORY RELIEF

It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the strength of his own case and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello Vs Eweka (1981) 1 SC (Reprint) 63; Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556; Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief. See: Bello Vs Eweka (1981) 1 SC 101 @ 102 per Obaseki, JSC, to wit: “It is true as was contended before us by the appellant’s counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant that he is entitled to the declaration.” (Underlining mine). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHETHER THERE IS A BURDEN ON THE DEFENDANT TO PROVE HIS TITLE TO THE DISPUTED LAND

There is no burden on the defendant to prove his own title to the disputed land where he does not file a counter claim. See: Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR-23035 (SC) @ 73 B – D; Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220; Kodilinye Vs Odu 2 WACA 336 @ 337-338. It is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHAT IS TRADITIONAL EVIDENCE

His Lordship, Oputa, JSC provided an explanation in:Dike & Ors. Vs Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144 @ 158 F- H, as follows: “Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria. This section provides: – “S.44: When title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.” (Underlining mine). It should be noted that the provisions of Section 44 of the Evidence Act referred to above and Section 45 of the Evidence Act 1990 referred to by the learned trial Judge can now be found in Section 66 of the Evidence Act 2011. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

EFFECT OF PLEADINGS ON THEIR PARTIES

Parties are bound by their pleadings. See: Abaye Vs Ofili (1986) 1 NWLR (Pt.15) 413; Adeyeri II & Ors. Vs Atanda (1995) LPELR-174 (SC) @ 28 – 29 G – A; Abeke Vs Odunsi (2013) 13 NWLR (Pt. 1370) 1. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHEN WILL CONTRADICTION IN THE TESTIMONY OF WITNESSES LEAD TO THE REJECTION OF SUCH EVIDENCE

APPLICATION OF THE PRINCIPLE IN KOJO VS BONSIE

In the case of Okonkwo Vs Okonkwo (2010) SC (Pt. 1) 116 @ 143, relied upon by learned counsel for the appellants, the application of the principle in Kojo Vs Bonsie (supra) was elucidated by this court thus: “The principle in Kojo Vs Bonsie (1957) 1 WLR 1223, relates to facts which the Court should advert to in coming to a conclusion on the probability of evidence of tradition. Where as in this case the plaintiffs/respondents rely on acquisition by inheritance, proof of such grant by traditional history arises only where the fact of inheritance was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act.” (Underlining mine for emphasis) PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

GODDY EDOSA
2. UHUNAMURE AGHO Appellant(s)

AND

MRS. EKOMWENRIENRIEN OGIEMWANRE Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The respondent herein was the plaintiff in a suit she instituted before the High Court of Edo State sitting in the Benin Judicial Division on 3/6/2003 against the 2nd appellant, her brother of full blood and one Goddy Edosa, the 1st appellant, as defendants. It was her contention that during his lifetime, precisely two years before his death in 1947, her father, Omwenke Agho, divided his property, which consisted of houses, undeveloped land as well as farmlands, between his children, male and female. According to her, the eldest son, Mr. Ehirnwenma Agho was given land and house no. 16/20 Dawson Lane, Benin City. He was also given a large rubber plantation at Ugbowo Village. After Ehimwenma’s death, the property shared to him was inherited by his children.

It was her contention that in recognition of her loving and meritorious service to her father, he gave her two rooms in the house situate at 48 Dawson Road, Benin City in addition to a piece of land on one side of the house. She claimed that this was done in the presence of

witnesses, some still living and some now deceased. Her older brother, the 2nd appellant, was given two rooms and a parlour within the same house. Their mother lived in the two rooms shared to her during her lifetime. Upon her demise, the rooms were occupied by two relations until they left to get married. It was the respondent’s contention that after they left, her brother (2nd appellant) pleaded to be allowed to use the two rooms because the two rooms and a parlour shared to him could not accommodate his family. She agreed. She also gave the vacant land to a carpenter who built a workshop on it and was paying her rent. She also rented part of it to someone who operated a car wash thereon. She lived in Ibadan with her husband for many years. She discovered at a stage that the 2nd appellant was laying claim to the property. She instructed her lawyer to write to him to quit. Soon afterwards she discovered that he had sold the property to the 1st appellant and absconded. She therefore instituted an action at the trial Court seeking the following reliefs by her Further Amended Statement of Claim dated 23/9/2005:

“That she is entitled to a Statutory Right of Occupancy in respect of that piece or parcel of land measuring more than 50 feet by 100 feet including two rooms of the main house known as No. 48 Dawson Road, Benin City, being part of the property she received from her father Omwenke Agho as gift inter vivos and later formed part of the inheritance from her father Onwenke Agho (deceased) as at 1947 or thereabout.
2. N8,000,000.00 (Eight Million Naira) damages for trespass in that on or about the 17th day of April, 2003, the second defendant, without the consent of the plaintiff, purportedly sold and or leased the plaintiff’s land to the 1st defendant who pulled down the two rooms and also fenced round the empty land (sic) property of the plaintiff, lying and situate at No.48 Dawson Road.
3. Perpetual injunction to restrain the defendants or their agents from developing the two rooms apartment and empty land property of the plaintiff
4. In the alternative, N25,000,000.00 (Twenty-five Million Naira) compensation for the two rooms apartment and measuring more than 50 feet by 100 feet lying at 48 Dawson Road, Benin City, belonging to the plaintiff. Shown on the survey plan pleaded.”

In their Amended Joint Statement of Defence, the appellants pleaded that after the 2nd appellant’s father’s death and burial in 1948, his property was shared among his six children by the Okaegbe in the presence of witnesses. That the larger house (the Idiogbe) was shared to Ehimwenmwen, the eldest son, while the 2nd appellant, as the second son, was given the smaller house at 48 Dawson Road along with the undeveloped land beside it and a rubber plantation.

According to the appellants, the respondent was given a rubber plantation and a coconut tree. It was their contention that they had remained in undisturbed possession of the property and land shared to the 2nd appellant and denied the respondent’s claim that the property was shared during their father’s lifetime. They maintained that the respondent had never exercised any right of ownership over any part of the house and premises at 48 Dawson Road and contended that the carpenters who were once on the land were the 2nd appellant’s tenants. They also denied damaging any part of the land.

At the trial, the respondent called six witnesses and testified on her own behalf as PW7.

The appellants testified on their own behalf and called two other witnesses. The 1st appellant testified as DW4 while the 2nd appellant testified as DW1. At the conclusion of the trial and after considering the addresses of learned counsel, the learned trial Judge entered judgment in favour of the respondent as follows:
1. “I declare that the Plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq. metres situate at No 48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 of 30/8/2005 admitted as Exhibit P2 in this (sic) proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the defendants, their agents from further trespass to the land.
In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration.
Costs in favour of the Plaintiff is fixed at N10,000.00.”

Not surprisingly, the appellants were dissatisfied with the judgment and filed an appeal

before the Court of Appeal, Benin Division containing 10 grounds of appeal. They raised two issues for determination from grounds 1-9, thereby abandoning ground 10. The two issues were:
1. “Having regard to the pleadings and evidence on record, is the Respondent entitled to the grant of statutory right of occupancy
2. Whether the trial Court was right in granting the Respondent’s claim for trespass and injunction.”

In a considered judgment delivered on 9th July, 2010, the lower Court resolved both issues against the appellants and dismissed the appeal as lacking in merit. The appellants are still dissatisfied and have further appealed to this Court by their notice of appeal filed on 19/7/2010.

At the hearing of the appeal on 25/9/2018, OLAYIWOLA AFOLABI ESQ., leading Ehinon Okoh Esq., adopted and relied on the appellant’s brief settled by Ehinon Okoh Esq., filed on 23/3/2011 in urging the Court to allow the appeal. ELDER EDDY OSIFO ESQ., settled the respondent’s brief which was filed on 20/5/2011. He adopted and relied on the brief in urging the Court to dismiss the appeal.

The sole issue distilled by learned counsel for the appellant and adopted by the respondent for the determination of this appeal is:
Whether the Court of Appeal was right in affirming the decision of the learned trial Judge in spite of the lacuna in the traditional evidence and the contradictions in the Respondent’s case.

Learned counsel for the appellants submitted that the respondent failed to discharge the burden of proof placed on her by law to establish her entitlement to declaratory reliefs on the strength of her case. He argued that there were many contradictions in the evidence led, which were beyond mere honest mistakes in traditional history, as described in the case of Kojo Vs Bonsie (1957) 1 WLR 1223, which authority the lower Court relied on. Some of the contradictions he pointed out are as follows:
a. While PW1 testified that she operated her car wash on the land in 2002, PW2 testified that the 1st plaintiff bulldozed the land in April 2001, including the car wash.
b. Although the respondent pleaded that there were eye witnesses to the alleged sharing of the property in 1947, both living and dead, none was called. The evidence of PW2 that he was informed of the sharing was hearsay.

PW3 testified that she was three years old when his grandfather, Onwenke Agho died and that all that he knows about the sharing of the property is what he was told by his father.
d. The respondent pleaded that two rooms and a parlour were shared to the 2nd appellant while PW6 stated that he was given a room and a parlour. PW3 on the other hand testified that four rooms to the right of the road were given to the 2nd appellant while the large room to the left and the undeveloped plot were given to the respondent.Relying on the authority of Onwubuariri Vs Igboasoiyi (2011) 3 NWLR (Pt.1234) 457 @ 484, he submitted that where the claimant fails to discharge the onus of proof, the weakness of the defence would not avail him. He submitted that not only was the respondent’s evidence bedevilled with contradictions, it was at variance with her pleadings. He submitted that the Court ought not to place probative value on such evidence. He posited further that it is not the duty of the Court to provide explanations for the conflict in the evidence of a party’s witnesses.

He referred to: Onubogu Vs The State (1974) 1 ALL NWLR (Pt. 11) 5; Ohabaka Vs Ochugo (1998) 9 NWLR (Pt. 564) 37.

He submitted that the lower Court erred in placing reliance on Kojo Vs Bonsie’s case (supra), as the authority relates to traditional evidence of what transpired over a hundred years ago, whereas the respondent’s case was predicated on sharing, which allegedly took place in 1947, a period of about 60 years at the time the respondent testified. He referred to the case of: Okonkwo Vs Okonkwo (2010) SC (Pt. 1) 116 @ 143. He submitted that in the absence of any eye witness testimony regarding the sharing of the property, the finding that the respondent proved her claims is perverse. He submitted that this is one of the exceptions where this Court would interfere with the concurrent findings of the lower Courts. He referred to: Ogbu Vs Wokoma (2005) 14 NWLR (Pt. 944) 118 @ 140; Ibenye Vs Agwu (1998) 11 NWLR (Pt. 74) 372; Alakija Vs Abdullai (1998) 6 NWLR (Pt. 552) 14; Okeke Vs Agbodike (1999) 14 NWLR (Pt. 638) 213.

In response, learned counsel for the respondent argued that the lower Court was perfectly right in placing reliance on the decision in Kojo Vs Bonsie (supra) in arriving at

its decision. He submitted that the Court relied on the guide provided in that case to the effect that “the best way to test traditional history is by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.”

He submitted that the evidence of PW1 and the carpenter who took her to the respondent in 2001 whereby both became her tenants proved that she was the owner of the property and exercised control over it up to 2003. He contended that the 2nd appellant was never in control of the property at any time. He contended further that the 2nd appellant did not call any witness to corroborate his evidence. He submitted that the decision of the lower Court is justified in view of Section 45 of the Evidence Act, which renders oral evidence of family or communal tradition concerning title or interest in land admissible. He also relied on:
Lajide Omamogbe Akuru Vs Olubadan-in-Council (1954) 14 WACA 523 and Commissioner of Lands Vs Kadiri Adagun (1937) 3 WACA 206.

He submitted that much of the evidence adduced with regard to the sharing of the property at No. 48 Dawson Road,

is the history of the property built over 100 years ago and the sharing which took place over 66 years ago and therefore the authority of Kojo Vs Bonsie (supra) and Section 45 of the Evidence Act can be called in aid to resolve any conflicts or contradictions in the traditional evidence. He referred to the evidence of PW3, PW6 and PW7 as eye witnesses to the sharing of the property and particularly PW6 and PW7, whose evidence was accepted by the lower Court as credible. He referred to the case of Durosaro Vs Ayorinde (2005) 8 NWLR (Pt. 927) 407.

He submitted that once the concurrent findings of the two lower Courts are reasonably justified by the evidence and no error in law, procedural or substantive that leads to a miscarriage of justice, has been made, this Court ought not to interfere. He submitted that the appellants have not shown any special circumstances to warrant the interference of this Court. He referred to: Jolayemi Vs Alaoye (2004) Vol. 9 MJSC 93 @ 97; Madu Vs Madu (2008) AFWLR (Pt. 414) 1604 @ 1610; Ojo Vs Anibire (2004) Vol. 7 MJSC 57 61. He submitted that the authorities relied on by learned counsel for the

appellants to persuade this Court to interfere with the concurrent findings do not apply in this case.

As observed at the beginning of this judgment, the respondent’s claim before the trial Court was for a declaration of title, injunction and damages for trespass. The various methods by which ownership of property may be established have been firmly settled in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227.
They are:
1. By traditional evidence;
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See also: Nkado Vs Obano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 – 11 SCNJ 1 @ 6.

It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the

strength of his own case and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello Vs Eweka (1981) 1 SC (Reprint) 63; Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556; Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief. See: Bello Vs Eweka (1981) 1 SC 101 @ 102 per Obaseki, JSC, to wit:
“It is true as was contended before us by the appellant’s counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant that he is entitled to the declaration.” (Underlining mine).
There is no burden on the defendant to prove his own title to the disputed land where he does not file a counter claim. See: Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR-23035 (SC) @ 73 B – D;

Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220; Kodilinye Vs Odu 2 WACA 336 @ 337-338. It is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal.

It was argued on behalf of the respondent that she relied on evidence of traditional history to prove her claim. The learned trial Judge seemed to be of the same view when, in reviewing the evidence of PW3 at page 67 of the record, he observed:
“He stated in his evidence that the property known as 48 Dawson Road was built about one hundred years ago by Onwenke Agho who shared same between the 29d defendant and the plaintiff before his death. While the 2nd defendant was given two rooms, the plaintiff was given a large parlour and a vacant plot. Although this witness admitted in cross-examination that it was his father who was the senior son of Onwenke Agho, who told him so, that is not unexpected in matters of family history which are usually passed along from father to son. See Section 45 of the Evidence Act which renders such evidence admissible.”
The lower Court was of a similar persuasion when it observed at page 120 of the record:<br< p=””

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“Member (sic) of the family gave evidence for the respondent. Family history are passed from generation to generation. The appellant also submitted that there are contradictions in the evidence as produced by the Respondent. The principle in Kojo Bonso (sic) (1957) 1 WLR 1223 as enunciated therein is as follows:
“Witness of the utmost veracity may speak honestly but erroneously as to what took place hundred years or more ago where there is a conflict of traditional history one side or the other must be mistaken, yet both will be honest in their belief. In such a case, demeanour is little guide to the truth.”
The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing witnesses is the more probable
In effect, it is when the trial Judge cannot find any of the two history (sic) probable or conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.”

What then is traditional history or traditional evidence His Lordship, Oputa, JSC provided an explanation in:Dike & Ors. Vs Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144 @ 158 F- H, as follows:
“Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria. This section provides: – “S.44: When title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.” (Underlining mine).
It should be noted that the provisions of Section 44 of the Evidence Act referred to above and Section 45 of the Evidence Act 1990 referred to by the learned trial Judge can now be found in Section 66 of the Evidence Act 2011.
My Lords, while it may be correct, as stated by PW3 at page 36 of the record, that the house at No. 48 Dawson Road was built over one hundred years

ago, the parties are ad idem that the property belonged to their late father, Omwenke Agho who died in 1947. There was thus no dispute as to the ownership of the property during his lifetime. The property was also never alleged to be communal property. The sharing of the property, according to the respondent, took place two years before their father died, i.e. in 1945. 1945 can hardly be described as a period “beyond living memory”. Indeed, the respondent in paragraphs 8 and 9 of her Further Amended Statement of Claim pleaded as follows:
8. To his daughter, the plaintiff, specifically, for her loving and meritorious service to her father, the late Omwenke Agho in the presence of witnesses some living while others are dead, he gave two rooms of the house he built as No. 48 Dawson Road, Benin City, using the passage in the house together with the unbuilt portion of the piece or parcel of land which he acquired and reflected on the survey plan No.ISO/ED/D38/2005 now pleaded.
9. The late Omwenke Agho gave to the 2nd defendant, the plaintiff’s elder brother, the two rooms and a parlour and no more remaining of the house known as No. 48 Dawson Road.” (Underlining mine)

Therefore, even by her own showing, there were witnesses to the sharing who were still alive. I am therefore of the considered view that the learned Justices of the lower Court erred in concurring with the learned trial Judge that the principles relating to evidence of traditional history applied in this case.
Parties are bound by their pleadings. See: Abaye Vs Ofili (1986) 1 NWLR (Pt.15) 413; Adeyeri II & Ors. Vs Atanda (1995) LPELR-174 (SC) @ 28 – 29 G – A; Abeke Vs Odunsi (2013) 13 NWLR (Pt. 1370) 1. Having pleaded that there were witnesses to the sharing, the respondent was bound to lead evidence in that regard. The respondent’s witnesses who testified regarding the sharing of the property were PW2, PW3 and PW6.
PW2, Idahosa Ogiemwanre is the respondent’s daughter. Under cross-examination at page 34 of the record, she stated inter alia:
“I am aware that my mother inherited the land and partly built it up. I was told that the properties were shared by my late grandfather about the year 1947, two years before he died. It is true that what I know about the sharing is what I was told.”
(Underlining mine)

PW3, Ehimwenma Uyimwen, is the grandson of Omwenke Agho. His father (deceased) was the first son of Omwenke Agho. He testified, inter alia, thus:
“I know the plaintiff. She has the same parents with my late father, Ehimwenma… I know the 2nd defendant. He is my late father’s immediate younger brother of the same parents. I know the land in dispute. The land has a relationship with where I live now. My father died September 4, 1978. I am his first son. Before my father’s death, he had two wives. Before his death he called the family and drew up a document for sharing his properties…. Before my father’s death he had two buildings known as No. 20A and 20B Dawson Lane, which houses had a boundary with No.48 Dawson, which has an undeveloped plot now in dispute in this case. The house at No. 48 Dawson Road was built about 100 years ago by Omwenke Agho. The plaintiff and the 2nd defendant had got properties which were shared to them about 1947 before their father died. This was part of 48 Dawson Road. The house was of 4 rooms, to the right of the house at 48 Dawson Road where (sic: were) given to the 2nd defendant

and the large room to the left with an undeveloped plot was given to the plaintiff, Pa Irabor was the Okaegben during the burial of Omwenke Agho in 1948 I was about three years old when my said grandfather Omwenke Agho died.”
Under cross-examination at page 36 of the record, he stated:
“I know Omofoma Agho. She was the eldest daughter of Omwenke Agho. She was given a rubber plantation. All this (sic) things I have told the Court is what my father told me.”
It is worthy of note that the personal knowledge of the sharing referred to by PW3, which I have underlined, is in relation to his father’s properties at No. 20A and 20B Dawson Lane and not No. 48 Dawson Road, which is in dispute.
PW6, Afekhokhian Omoghoman, is also a granddaughter of Omwenke Agho. Her mother was the eldest daughter of the deceased. She stated at page 40 of the record, inter alia, as follows:
“Omwenke Agho is my grandfather in whose house I was born and brought up…. I was in the house when he died. I was living with my grandmother Akpifanye when he died. Two years to the death of my grandfather he shared his properties.

These were two houses and one was given to the senior son called Ehimwenma and in the other one a room and a parlour was also shared to the defendant.”
Under cross-examination, she stated:
“After the burial, the Okaegbe called the children of the family to come and share the property and the children told the Okaegbe that their father had already shared the properties.” (See page 41 of the record)
At no point did she state that she witnessed the sharing. It is evident from the portions of the testimonies of these three witnesses, that none of them actually witnessed the sharing of the property. The learned trial Judge, acknowledged that the evidence of PW3 was what he was told by his father and therefore ordinarily ought to be regarded as hearsay. He however opined:
“it is not unexpected in matters of family history which are usually passed from father to son. See Section 45 of the Evidence Act which renders such evidence admissible.”
I have held earlier in this judgment that the issue of evidence of traditional history does not arise in this case. The respondent pleaded that there were witnesses to the sharing who were still alive but she failed to call any of them.

The respondent therefore failed to lead evidence to establish a material aspect of her pleadings.
In paragraph 10 of her Further Amended Statement of Claim, she pleaded that her late father reduced the sharing of the property to her into writing but she lost the document during the civil war. There was therefore neither an eye witness account nor documentary evidence of the sharing of the property to the respondent. It must be restated here that the respondent seeking declaratory reliefs had the burden of proving her entitlement to those reliefs on the strength of her case.
The lower Court, in the course of its judgment at page 115 of the record, affirmed the following finding of the learned trial Judge, which can be found at page 69 of the record. His Lordship after observing that there was no burden on the defence to prove anything, held:
“However, the evidence of PW3 shows that his title to the house at No. 20A and 20B Dawson Lane, which he inherited from his father is founded on the same sharing of the properties of Omwenke Agho by him before his death and that his father, the 1st son of Omwenke Agho, told him so.

I believe that what is true of the one must be true of the other. Moreover, the unchallenged evidence of PW6 is that of any eye witness which supports the plaintiff’s claim and the Court is obliged to accept and act on same.”
The ownership of No. 20A and 20B Dawson Lane by the first son of the deceased is not in dispute. However, while the respondent contends that it was given to him when Omwenke Agho shared his property two years before he died, it was the case of the appellants that the said property was given to him when it was shared by the Okaegben after Omwenke Agho’s death. The burden of proof therefore remained on the respondent who asserted that the sharing was done inter vivos. Also, contrary to the finding of the learned trial Judge, PW6 was not an eye witness to the sharing. With the greatest respect to their Lordships, their affirmation of the finding of the learned trial Judge in this regard was misconceived.
Learned counsel for the appellants noted some contradictions in the evidence of the respondent’s witnesses, which I shall examine to determine whether they are material enough to adversely affect the respondent’s claim.

In support of her pleadings in paragraphs 8 and 9 of her Further Amended Statement of Claim, which have been reproduced earlier, she testified thus:
“My father shared the house two years before he died… My father gave me two rooms and a land on one side of the house and he gave two rooms and a parlour to the 2nd defendant. The house opposite Dawson lane was given to Ehimwenma Agho and his son has inherited it.”
Now, according to PW3, the respondent was given one large room on the left side of the house and a piece of land beside it while the 2nd appellant was given four rooms on the right (see page 36 lines 18 – 21 of the record). The respondent who testified as PW7 however stated that she was given two rooms as well as the piece of land beside the house. PW6 on the other hand stated that the respondent was given a room and a parlour and that the 2nd appellant was given two rooms and a parlour. These are clearly material contradictions, which further buttress the fact that none of them was present when the sharing allegedly took place. I also agree with learned counsel for the appellants that the evidence of PW3 is at variance with the respondent’s pleading. It ought not to have been relied upon.

The law is settled that it is not all contradictions that would lead to the rejection of the evidence of a witness. However, a contradiction is material and would result in the rejection of such evidence if it relates to or affects the live issue or issues in the matter. See: Egesimba Vs Onuzuruike (2002) 9 SCNJ 46; Nsirim Vs Nsirim (2002) 2 SCNJ 46; Ezemba Vs Ibeneme & Anor. (2004) 7 SCNJ 136; Wachukwu & Anor. Vs Owunwanne & Anor. (2011) LPELR- 3466 (SC) @ 33-34 F – A. The sharing of the property of the deceased inter vivos is the entire foundation of the respondent’s claim. Contradictions in the evidence relating thereto are therefore material. As observed earlier, the principle in Kojo Vs Bonsie (supra) cannot be relied upon to justify the inconsistencies. In the case of Okonkwo Vs Okonkwo (2010) SC (Pt. 1) 116 @ 143, relied upon by learned counsel for the appellants, the application of the principle in Kojo Vs Bonsie (supra) was elucidated by this court thus:

“The principle in Kojo Vs Bonsie (1957) 1 WLR 1223, relates to facts which the Court should advert to in coming to a conclusion on the probability of evidence of tradition. Where as in this case the plaintiffs/respondents rely on acquisition by inheritance, proof of such grant by traditional history arises only where the fact of inheritance was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act.” (Underlining mine for emphasis)
I am fully guided by this authority in this case. The respondent failed to call evidence of any living witness to the alleged sharing of the property despite pleading that such witnesses exist.
Still on the issue of contradictions, I come to the evidence of PW1 and PW2. At page 33 of the record, PW1 testified that in 2001, she was looking for a piece of land upon which to operate a car wash. She secured the services of an agent who found the land at No. 48 Dawson Road. She stated further:
“I went with the agent to the said No. 48 Dawson Road, Benin City where we met a

carpenter. The carpenter directed us to the plaintiff in this case who is the owner. The plaintiff told me the amount I will pay and I agreed…. I paid my rents to the plaintiff.
While I was working on the land nobody disturbed me at all. I operated my car wash on the land in 2002.”
PW2, the daughter of the respondent, testified at page 34 of the record inter alias
“I know Goddy Edosa [1st appellant]. He is a transporter. The 2nd defendant is my uncle. I know the PW1. She owns the car wash on my mother’s land. The land in dispute is No. 48 Dawson Road, Benin City. In 2001, I went to the land in dispute to do some work and one of the 1st defendant’s workers said to me that the 1st defendant had approached my mother to sell or lease the land to him but my mother refused. He then requested me to sell the land to the 1st defendant and I refused… In the month of March 2001, the 1st defendant called me and requested me to sell the land to him. He made an offer of N1,000,000.00 which I rejected. [In] April 2001, I went to the land and met that the 1st defendant had bulldozed the whole land, including the car wash, which he destroyed. He also told the carpenter on the land to quit.”

It is apparent from the testimony of these two witnesses that while PW2 said the land was bulldozed in 2001 and the car wash destroyed, PW1 testified that she continued to operate the car wash without disturbance in 2002. One of them is clearly mistaken. The contradiction was never explained. This contradiction is also material, as it goes to the substance of the respondent’s claim. It is not for the Court to pick and choose which witness to believe. The evidence of both should have been considered unreliable and rejected. See:Kayili Vs Yilbuk (2015) 7 NWLR (Pt. 1457) 26 @ 77 B – D; Zakirai Vs Muhammad (2017) LPELR-42349 (SC) @ 70-71 F-A; Mogaji Vs Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393.
The position of learned counsel for the respondent in this appeal is based on the principle in Kojo Vs Bonsie (supra), to the effect that where there are inconsistencies in the evidence of traditional history relied upon by both parties, the best way to test it is by reference to facts in recent years, which would assist the Court in determining which of the competing traditional

histories is more probable. He also contends that PW3, PW6 and PW7 were eye witnesses to the sharing of the property. I have debunked both assertions in the course of this judgment. In the absence of a counter claim by the appellants, there was no burden on them to prove their title. The burden was on the respondent to succeed on the strength of her case. Her case was weak and did not meet the required standard to require a rebuttal from the defence.
I therefore resolve the sole issue in this appeal in the appellants’ favour. The concurrent findings of the two lower Courts were based on a faulty premise and have occasioned a miscarriage of justice. I am persuaded that this is a proper situation which justifies the interference of this Court. The appeal is meritorious and it is hereby allowed. The judgment of the lower Court delivered on 9/7/2010 which affirmed the judgment of the trial Court delivered on 10/4/2008 is hereby set aside. The respondent’s claim as per her Further Amended Statement of Claim dated 23/9/2005 is accordingly dismissed. Costs of N250,000.00 are awarded against the respondent and in favour of the appellants.

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MUSA DATTIJO MUHAMMAD, J.S.C.: On perusing the draft of the lead judgment of my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC just delivered and entirely agreeing with the reasoning and conclusion therein that the appeal being meritorious succeeds, I also allow the appeal.

I take the privilege of saying it in a few words purely for the sake of emphasis.
The two Courts below have concurrently found respondent’s claim for declaration of title in respect of the piece of land known as No. 48 Dawson Road Benin City made out and granted her same. She contends receiving the land sometime around 1947 with same subsequently becoming her share of inheritance from her deceased father Onwenke Agho. The respondent also sought damages and injunction against the appellants for their trespass on the land in dispute. Alternatively, she claimed a twenty five million naira compensation for the said land.

The appellants by their amended joint statement of defence denied respondent’s claim. They assert that on the demise of their father in 1948 his estate was shared among his six children.

The 2nd appellant, their father’s second son, inherited the land in dispute which the respondent falsely claims. The larger house, the ldiogbe, the appellants further aver, was allocated to Ehimwenmwen, the eldest of their deceased father’s six children.

The respondent as plaintiff relied on seven witnesses including herself to establish her case. The appellants testified and relied on two other witnesses in rebuttal. At the end of proceedings, the trial Court gave judgment in respondent’s favour. The affirmation of the trial Court’s judgment by the lower Court informs appellants’ instant appeal to this Court.

The lone issue distilled as arising for the determination of the appeal in the appellants’ brief, which issue has also been adopted by the respondent, reads: –
“Whether the Court of Appeal was right in affirming the decision of the learned trial judge inspite of the lacuna in the traditional evidence and the contradictions in the Respondent’s case.”

Appellants’ real grouse is that the respondent who had pleaded traditional history as her source of title and failed to lead evidence in proof thereto is not entitled to the concurrent finding of the two Courts granting her

title to the land in dispute. To rely on the principle enunciated in Kojo V. Bonsie (1957) 1 WLR 1223, it is argued, the respondent ought to have led cogent traditional evidence in support of her case for same to be considered against similar evidence advanced in rebuttal.

The evidence proffered by the respondent, it is submitted is not only hearsay but riddled with material contradictions as well making reliance on it unlawful. Fundamentally, it is further argued, any evidence that is at variance with the claimant’s pleadings must be discountenanced. In sum, learned appellants’ counsel concludes, the perverse concurrent findings of the two Courts below do not avail the respondent and this Court is duty bound to interfere with the unlawful findings. Learned counsel relies inter-alia on Onwubuariri V. igboasoiyi (2011) 3 NWLR (Pt. 1234) 457, Ohabaka V. Ochugo (1998) 9 NWLR (Pt. 564) 37, Okonkwo V. Okonkwo (2010) SC (Pt. 17) 116 at 143, Alakija V. Abdullai (1998) 6 NWLR (Pt. 552) 14 and Ogbu V. Wokoma (2005) 14 NWLR (Pt. 944) 118 in urging the Court to set-aside the concurrent decisions of the two Courts below that are in favour of the respondent.

Learned respondent’s counsel contends that the lower Court cannot be faulted in its reliance on the evidence of facts in recent years established by the two sides in preferring whose traditional history is more probable. Three of respondent’s witnesses, PW3, PW6 and PW7 are witnesses to the fact of the sharing of the land in dispute to the respondent by her father. The principle in Kojo V. Bonsie supra as restated in Durosaro V. Ayorinde (2005) 8 NWLR (Pt. 927) 407 codified Section 45 of the Evidence Act justifies the acceptance of the evidence by the two Courts below as credible. Concurrent finding of the two Courts based on such evidence, it is contended cannot be said to be perverse. Referring to the decision in Jolayemi V. Alaoye (2004) Vol. 9 MJSC 93 at 97, learned counsel submits that the appellants who have failed to demonstrate why the concurrent findings are to be set aside must have their appeal dismissed.

Now, respondent’s case as particularly asserted in paragraphs 8 and 9 of her further amended statement of claim is hereinunder reproduced for ease of reference
“8. To his daughter, the plaintiff, specifically, for her loving and meritorious

service to her father, the late Omwenke Agho in the presence of witnesses some living while others are dead, he gave two rooms of the house he built as No. 48 Dawson Road, Benin City, using the passage in the house together with the unbuilt portion of the piece or parcel of land which he acquired and reflected on the survey plan No. ISO/ED/D38/2005 now pleaded.
9. The late Omwenke Agho gave to the 2nd defendant, the plaintiff’s elder brother, the two rooms and a parlour and no more remaining of the house known as No. 48 Dawson Road.” (Underlining mine for emphasis).
The appellants deny the foregoing and proceed to assert the land in dispute as being their share of inheritance of their deceased father’s estate. Both parties in this matter trace title to a common root. The respondent as plaintiff has the duty to establish by credible evidence, contrary to what the appellants aver, that the land she claims was indeed shared by their father before his death and had devolved to her by virtue of the fact of that sharing. It is incumbent that she called eye witnesses to the sharing whom she pleads are still alive.

It is also the law that the respondent succeeds only on the strength of her case and not on the weakness of the case of the appellants. Thus, where she fails to prove better title to that of her adversary, her case collapses and is dismissed. See Alhaja Adesanya V. Obiewu (1993) 1 NWLR (Pt. 270) 414, Romaine V. Romaine (1992) 5 SCRJ 25 and Mrs Olayide Okelola V. Adebisi Adeleke (2004) LPELR-2438 (SC).
My Lords, both sides have unnecessarily gone outside the real question the appeal poses by dwelling on the principle enunciated in Kojo V. Bonsie (supra) they perceive the two Courts below wrongly applied to the instant case. The very narrow issue in the appeal remains whether the respondent has indeed proved its case on the preponderance of evidence to warrant the concurrent decisions of the two Courts in her favour.
I entirely agree with learned appellants’ counsel that the answer is a resounding no. Though concurrent, being findings not reasonably justified by the evidence on record and thereby occasioning miscarriage of justice, the law require that they are interfered with. Learned appellants’ counsel reliance on, inter-alia,

Ogbu V. Wokoma (2005) 14 NWLR (Pt. 944) 118 at 140, Ibenye V. Agwu (1998) 11 NWLR (Pt. 74) 372 and Okeke V. Agbodike (1999) 14 NWLR (Pt. 638) 213 in support of his submissions in this regard are very apposite.
In joining issue with the respondent, the appellants in paragraphs 8 and 9 of their 2nd amended joint statement of defence aver thus:-
“8. The 2nd Defendant says that their father’s property was shared about 53 years ago and ever since the plaintiff has not challenged the 2nd Defendant’s title to No 48, Dawson Road, Benin City. The Plaintiff claim is statute barred.
PARTICULARS
a) The property now in dispute became the 2nd Defendant’s property in 1948.
b) 2nd Defendant has ever since lived in the house and premises till recently when he built another house and leased the property now in dispute to the 1st Defendant who has taken possession of same and has erected a modern office building on same in line with the lease agreement.
c) The Plaintiffs claim is stale.
9. The 2nd Defendant says that Plaintiff has never exercised right of ownership over any part of

the said house and premises at No. 48 Dawson Road, Benin City, and that the carpenters who once occupied a part of the piece of land were his tenants.”
It is intriguing to say the least, that notwithstanding the state of pleadings,the record is bereft of any evidence from any surviving eye witness to the fact of the devolution of the property to the respondent from their deceased father.
The trial Court at page 67 of the record of appeal had found in relation to particularly PW3, that the evidence is hearsay.
The lower Court pretending to also apply the principle in Kojo V. Bonsie at page 120 of the record proceeded thus:-
“It is the submission of the learned counsel to the Appellant that evidence of sharing of the property by the deceased was not proved. He who assert must proof no doubt the argument that the witness gave hearsay evidence cannot be true. Member of the family gave evidence for the Respondent. Family history are passed from generation to generation.
The Appellant also submitted that there are contractions (sic) in the evidence as produced by the Respondent. The principle in KOJO v. BONSIE (1957) 1 WLR 1223 as enunciated therein is as follows:

`Witness of the utmost veracity may speak honestly but erroneously as to what took place hundred years or more ago where there is a conflict of traditional history one side or other must be mistaken, yet both will be honest in their belief.’
In such a case demeanor is, little guide to the truth.
The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing witnesses is the more probable
In effect, it is when the trial Judge cannot find any of the two history (sic) probable or conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.”
The contradictions and or illegalities in the evidence proffered by the respondent in proof of her claim have been instructively captured in the lead judgment. I abide by the findings therein.
It is also my considered opinion that in the instant case where respondent’s entitlement to the land in dispute hinges on the fact of inheritance that is not

so ancient and for that reason outside the memory of living witnesses, the application of the principle in Kojo V. Bonsie does not arise. It is in the pleadings of the respondent that some of her witnesses were eye witnesses to the fact of the sharing or devolution of the land to her. The facts as averred being within the living memories of these surviving witnesses to the event must be proved by the evidence of the witnesses. The principle in Kojo V. Bonsie as codified presently in Section 66 of the Evidence Act 2011 does not allow for an otherwise procedure. See Dike & Ors V. Nzeka II & Ors (1986) 4 NWLR (Pt. 34) 144 at 158 and particularly Okonkwo V. Okonkwo supra where at page 143 of the report this Court held inter-alia as follow:-
Where as in this case the plaintiff/respondents rely on acquisition by inheritance, proof of such grant by traditional history arises only where the fact of inheritance was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act.”

It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I am also resolving the lone issue in the appeal against the respondent and further allow the appeal. I abide by the consequential orders made in the lead judgment.

KUMAI BAYANG AKA’AHS, J.S.C.: I read before now the judgement of my learned brother, Kekere-Ekun JSC in which he found merit in the appeal and allowed same by overturning the judgments of the trial Court and the Court of Appeal.

The trial Court had found for the plaintiff/respondent and declared that she was entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq, metres situate at No. 48 Dawson Road, Benin City and verged red in litigation survey plan No. 150/ED/D38/2005 of 30/8/2005. The plaintiff was also awarded N200,000.00 damages for trespass and a perpetual injunction restraining the defendants, their agents from further trespass to the land. The defendants/appellants’ appeal to the Court of Appeal, Benin City was dismissed and the appellants further appealed to this Court.

Since the two lower Courts made concurrent findings of fact, this Court would be slow to interfere unless such findings are either perverse or are bedeviled by error in substantive or procedural law which if not corrected will lead to a miscarriage of justice. See Lokoyi v. Olojo (1983) 8 SC 61. Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Nyesom v. Peterisde (2016) 7 NWLR (Pt. 1512) 452; Nwokocha v. A-G Imo State (2016) 8 NWLR (Pt. 1513) 141; Mainstreet Bank Ltd v. Binna (2016) 12 NWLR (Pt. 1526) 316.

It is long established that in an action for declaration of title to land, the burden is on the claimant to prove by credible evidence that he is entitled to the declaration he seeks. He must succeed on the strength his case and not on the weakness of the defence. See Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517; Faleye v. Dada (2016) 15 NWLR (Pt. 1534) 80; Bello v. Eweka (1981) 1 SC 63; Dumez (Nig) Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361.

The plaintiff/respondent pleaded in paragraphs 7, 8 and 9 of the Amended Statement of Claim as follows:-
“7. Pa. Omwenke Agho died in 1947 or thereabout but two years before he died i.e. about 1945, he divided his property to his children both male and female. The property shared comprised houses and farm lands and unbuilt lands. Necessary burial ceremonies were performed although properties had been shared by Pa. Agho inter vivos.
7a. The first son of late Mr. Ehimwenma Agho was given land and house No. 16/20 Dawson Lane and a large rubber plantation at Ugbowo village. The house pleaded herein has been inherited by Uyimwen the first son of Ehimwenma Agho (deceased) after performing the necessary burial ceremonies according to Bini Native Law and Custom. Erhabor (Deceased) was Okaegbe at Omwenke Agho death
7b. Uyamwen, Matthew and Eguagie had inherited Ehinwenma s property.
8. To his daughter, the plaintiff, specifically, for her loving and meritorious service to her father, the late Omwenke Agho in the presence of witnesses some living while others are dead, he gave two rooms of the house he built known as No. 48, Dawson Road, Benin City using the unbuilt portion of

the piece or parcel of land which he acquired and reflected on the survey plan No. 150/ED/D38/2005 now pleaded.
9. The late Omwenke Agho gave the 2nd defendant, the plaintiffs elder brother, the two rooms and a parlour and no more remaining of the house known as No. 48, Dawson Road.”

The defendants/appellants joined issue with the plaintiff in paragraphs 7 (b), (c), (d), (h) 8, 9 and 10 in their 2nd Amended Statement of Defence as follows:-
“7. In answer to paragraphs 8, 9, 11 and 12 of the statement of claim the 2nd defendant states as follows:-
(b) The Okaegbe called Erhabor lgiebor, with the co-operation of the 1st son called Ehimenmwan Agho shared late Pa. Omwenke Agho’s property to all the surviving children after the final burial rights, in the presence of family members.
(c) The bigger house was shared to the 1st son Ehimenmwen Agho, while the smaller house of mud and bamboo sticks at No. 48 Dawson Road, along with the undeveloped portion to the 2nd defendant who is the second son. In addition, the 2nd defendant was given a rubber plantation.
(d) The plaintiff was given a rubber plantation and a coconut tree.<br< p=””

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(h) No room or land was shared to the plaintiff at No. 48, Dawson Road, Benin City.
8. The 2nd defendant says that their father’s property was shared about 53 years ago and ever since the plaintiff has not challenged the 2nd defendant’s title to No. 48, Dawson Road, Benin City.
9. The 2nd defendant says that plaintiff has never exercised right of ownership over any part of the said house and premises at No. 48 Dawson Road Benin City and that the carpenters who once occupied a part of the piece of land were his tenants.
10. The 2nd defendant says that the sharing of their late fathers property was not put into writing.”

While the plaintiff claimed that their father distributed his estate while still alive which makes the distribution of the estate of the deceased as gift inter vivos, the 2nd defendant denied this claim and asserted that the estate was shared after the death of their father which invariably would be in accordance with the Bini native law and custom. It was incumbent on the plaintiff to produce the living witnesses who were present when Pa. Omwenke Agho gave the rooms and vacant land to the

respondent before his demise. Anything outside this will be treated as hearsay. PW2 said she was told that the properties were shared by her grandfather. She therefore did not witness the event. Also PW3 who is a nephew to the plaintiff as well as 2nd defendant/appellant stated he was 3 years old when his grandfather died and his knowledge about the distribution of his grandfather’s estate was what his father told him. PW6 did not specifically state that he witnessed the gift inter vivos. The learned trial Judge acknowledged this fact but resorted to applying Section 45 of the Evidence Act to render the evidence adduced by PW2, PW3 and PW6 as admissible. The plaintiff failed to prove the case she put forward and it was wrong for the learned trial Judge to enter judgement in favour of the plaintiff which was affirmed on appeal. The decision reached by the two lower Courts is perverse and this Court must interfere to set it aside.

There is therefore merit in the appeal. It is on account of this and the elaborate reasons set out in the judgement of my learned brother, Kekere-Ekun JSC that I find merit in the appeal which is hereby allowed and the judgement of the

lower Court set aside. If the N200,000.00 awarded by the learned trial Judge have been paid to the respondent, same should be refunded to the appellants. I abide by the order made on costs.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my Learned brother Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. I adopt the facts as established in the Lead judgment. In an action for declaration of title to land, the burden is on the claimant to prove with credible and unadulterated evidence that he is entitled to the declaration which he seeks. In doing so, he must succeed on the strength of his own case and not on the weakness of the defendant’s case. See Auta v Ibe (2003) 13 NWLR (Pt. 837) 247 at 268 paras A – C; Onisaodu v Elewuju (2006)13 NWLR (Pt. 998) 517; Ajiboye v Ishola (2006)13 NWLR (Pt. 998) 628, Ashiru v Olukoya (2006)11 NWLR (Pt. 990) 1; Mbani v Bosi (2006)11 NWLR (Pt.991)400.

From the facts of this case and the evidence before the trial Court, it is very clear that the judgment of the trial Court was based on hearsay and contradictory evidence. PW2 Idahosa Ogiemwanre, a son to the Respondent herein who was the plaintiff at the trial Court, under cross-examination admitted that he was told that the properties were shared by his late grandfather about the year 1947, two years before his death. PW3 Ehimwenma Uyinwen, a son to the late brother of the Respondent and the second Appellant admitted under cross examination that all the things he said was what his late father told him. PW4 and PW5 are surveyor and Estate surveyor respectively who did not witness the sharing of the properties by the father of the Respondent and the second Appellant. The PW6, Afekhokian Omoghoman who is a son to the sister of both the Respondent and the 2nd Appellant gave evidence that he was born and brought up in the home of Omwenke Agho, the father of the Respondent and the 2nd Appellant. He did not state that he witnessed the sharing of the properties of his grandfather. What he said was that two years to the death of his grandfather, he shared two houses each to his senior son called

Ehimwenma and the 2nd Appellant herein. He did not state that the Respondent herein was given any house. PW1 was said to have rented the disputed parcel of land from which he carried out the business of car wash.

Section 37 of the Evidence Act 2011 defines hearsay as follows:-
“37. Hearsay means a statement.
(a) Oral or written made otherwise than by a witness in a proceeding, or
(b) contained or recorded in a book, document or any record whatever proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of providing the truth of the matter stated in it.”
Relevant to this judgment is Section 37 (a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”

Finally Section 38 of the Evidence Act 2011 outrighly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words:-
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore, hearsay testimony is inadmissible in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist. In the instant case, the testimony of DW2, DW3, in which the two lower Courts placed reliance on are hearsay and inadmissible. The evidence of PW6 did not state that one of the two houses that were shared was given to the Respondent and again he did not state that he actually witnessed the sharing of the property of Omwenke Agho. His evidence is therefore not very helpful to the Respondent.
See A.G. Rivers State v A.G. Akwa-Ibom State (2011) 8 NWLR (Pt. 1248) 31.

The testimonies of the claimant’s witnesses before the trial Court are so contradictory that no reasonable Court will rely on them in its judgment. PW1 in his evidence said in 2001 he rented the disputed

land from the Respondent for three years. He cleared the place of refuse and leveled it and worked on the land undisturbed. According to this witness, he operated his car wash on the lad up to 2002.
PW2 in his evidence stated that the 1st Appellant bulldozed the same piece of land and destroyed carpenters workshop that was erected on the same piece of land in 2001. Which land was then bulldozed in 2001 when PW1 said he operated his car wash business on the same land undisturbed up to 2002. Again, paragraphs 9 of the amended statement of claim at page 20 of the record of this appeal clearly stated that the 2nd Appellant was given two rooms and a palour when Omwenke Agho shared his property.
However PW3 in his evidence stated that the house given to the 2nd Appellant was of 4 rooms to the right of road and the large room at the left with an undeveloped plot was given to the Respondent. Apart from these contradictions, at paragraphs 8 and 9 of the further amended statement of claim, the Respondent averred that some of the witnesses who witnessed the sharing of the properties by their father were still alive, yet none was called to give

evidence. What then is the effect of these contradictions in the claimant’s evidence In Wachukwu v Owunwanne (2011)14 NWLR (Pt. 1266) 1 at 27 paras E – H, this Court stated in very clear terms the nature of contradiction that will result in rejection of evidence of witnesses as follows: –
“Now it is pertinent to reiterate the general principles of the Law on matters of contradiction in evidence of parties before a Court. That it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence.”
I have taken the pains of going through the evidence laid before the trial Court, and I am of the firm view that the contradictions inherent in the evidence of the claimant are so material that ignoring them will occasion a miscarriage of justice. I do agree with Learned Counsel for the Appellant that the lower Court was wrong when it upheld the hearsay evidence and ignored the material contradictions highlighted in this judgment.

With these few remarks and the more detailed reasoning in the lead judgment of my Learned brother which I adopt as mine, this appeal shall be and it is hereby allowed. I endorse all the consequential orders made in the lead judgment, including order as to costs.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Kudirat M.O Kekere-Ekun, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The Appeal has merit and it is accordingly allowed. The judgment of the lower Court delivered on 9th July, 2010 which affirmed the Judgment of the Trial Court is hereby set aside.

Appearances:

Olayiwola Afolabi, Esq. with him, Ehinon Okoh, Esq. For Appellant(s)

Elder Eddy Osifo, Esq. For Respondent(s)

Appearances

Olayiwola Afolabi, Esq. with him, Ehinon Okoh, Esq. For Appellant

AND

Elder Eddy Osifo, Esq. For Respondent

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