MR. GABRIEL ONI v. MRS. JULIANAH OLAJIGA & ORS
(2018)LCN/11856(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/EK/54/2016
RATIO
EVIDENCE: WHERE EVIDENCE IS NOT CHALLENGED
“When an evidence is not challenged, the Court ought to accept same as proof of the issue in contest. See OKUPE V. IFEMEMBI (1974) 3 SC 97 AT 103, ALAGBE V. ABIMBOLA (1978) 2 SC 39 AT 40, ODULAJA V. HADDAD (1973) 1 SC 35. Evidence elicited during cross-examination, if it relates to the fact in issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination in Chief. See GAJI V. PAYE (2003) 8 NWLR (PT. 823) 583, DAGGASH V. BULAMA (2004) 14 NWL (PT. 892) 114.” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“See KODILINYE V. ODU (1935) 2 WACA 336 AT 337. With respect to land, the law stipulates any of the five methods of proof as correctly identified by the learned trial judge thus by (1) Traditional evidence;
(2) By production of documents of title;
(3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner;
(4) Acts of long possession and enjoyment of the land;
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable, that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. Proof of any one of the five ways is sufficient as each of them stands or fails on its merit…In this connection, a party who seeks title to land and relied on Traditional history must succeed, plead and prove facts as to;
(a) Who founded the land.
(B) How the land was founded.
(c) Particulars of ancestors through whom he claims.
See CHRISTIAN EWO V. OGBODO ANI (2004) 10 WRN 1, MOGAJI V. CADBURY NIG. LTD (2004) 23 WRN 54. The plaintiff must give satisfactory evidence of intervening owners and there should be no gap in his evidence.” PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
MR. GABRIEL ONI Appellant(s)
AND
1. MRS. JULIANAH OLAJIGA
2. MRS. FUNMILAYO FAPOHUNDA
3. EMERGING MARKETS TELECOM SERVICES LTD
4. MR. OMONIYI OTELE
5. MR. GBENGA DARAMOLA Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ekiti State sitting in Ekiti delivered by Hon. Justice L.O. Ogundana on the 17th day of November, 2014 while sitting as a Court of first instance, the Appellant having been dissatisfied with judgment appealed this court vide the Notice of Appeal.
The claim of the 1st & 2nd respondents against the Appellant and the 3rd, 4th & 5th respondents as contained in the Writ of summons and statement of claim filed on 25th July 2013 is as follows:
(a) A declaration that the Late Pa. Michael Oni?s property at No. 3, Iro, Odose Street, Ise – Ekiti upon his death intestate can only be succeeded unto by his three Children viz: the Claimants and the defendant who are survivors to the estate of Late Pa. Michael Oni.
(b) A declaration that the lease of the said land to the 1st defendant by the 2nd defendant to 4th defendants in the year 2009 without the consent and knowledge of the claimants is null, void and of no effect whatsoever.
(c) A declaration that it is illegal for the 2nd defendant to unilaterally insert the names of the 3rd to 5th defendant in the said lease agreement with the 1st defendant for the purpose of erecting a mast on the said land without the joint consent of the claimants who are beneficial owners of the land.
(d) An order of Court setting aside the lease agreement dated 29th day of January, 2009 entered into with the 1st defendant by the 2nd defendant to 4th defendant in respect of the land of the family of Late Pa. Michael Oni of No. 3 Iro, Odose Street, Ise-Ekiti.
(e) An order of Court directing the 1st defendant to enter into fresh lease agreement with the claimants and the 2nd defendant over the lease of the family land of late Michael Oni at No. 3 Iro, Odose Street, Ise-Ekiti.
FACTS OF THE CASE.
The Appellant was the 2nd defendant at the Court below while the 1st and 2nd respondents were the claimant. The 4th and 5th respondent were the 3rd and defendants in the Court below while the 3rd respondent was the 1st defendant in Court below.
The 1st and 2nd respondents as claimants in the Court below initiated the action against the Appellant the 3rd, 4th and 5th respondents in respect of a lease of land at Iro Odose Street, ISE Ekiti which was executed in favour of the 3rd respondent without consent and concurrence of the 1st and 2nd respondents who are joint owners of land with the Appellant.
The case of the 1st and 2nd respondents is that they are joint owners of the land at No. 3 Iro Odose Street, Ise Ekiti with the Appellant. The 1st and 2nd respondents and Appellant are siblings from the same Mother and Father, Late Michael Oni who originally owned the land which is now on lease to the 3rd respondent without the knowledge and consent of the 1st and 2nd respondents who are joint owners and who are the eldest and elder sisters to the Appellant.
The case of the 1st and 2nd respondents at the Court below is that the land at No. 3 Iro, Odose Street, Ise Ekiti was granted on lease to the 3rd respondent by the appellant having deceived the 4th and 5th defendants/respondents as witnesses to the transaction for the lease of the land. The lease agreement executed in favour of the 3rd respondent which was tendered and admitted as exhibit ‘A’ even when the 4th and 5th defendants have no interest or right to the land in dispute, except for the fact that they are members of extended family of the Appellant as well as the 1st and 2nd respondents.
The 1st and 2nd respondents having got wind of the execution of Exhibit ‘A’ now protested and execution of the Agreement and the 4th and 5th respondents having realized that they were cajoled/deceived by the Appellant in witnessing Exhibit ‘A’ now resolved on the need to redress same, consequent upon which Exhibit ‘F’ which is tagged settlement agreement was duly prepared by the respondent but which the Appellant failed to execute.
The Appellant in his defence to the suit against him, filed the statement of defence and his defence is to the effect that the land on lease is his personal property and not part of the Estate of late Michael Oni who happened to be the father of the Appellant as well as the 1st and 2nd respondents, even when the Exhibits ‘B’ and ‘E’ confirmed that the land was originally owned by Michael Oni who happened to be the father of the Appellant and the 1st and 2nd respondents.
To argue the Appellant, the Appellant formulated the following issues for determination;
ISSUES FOR DETERMINATION
(1) Whether evidence elicited during cross-examination on facts not pleaded is admissible and can be rebutted under the front loading system (Ground a)
(2) Whether the evidence of inheritance by the 1st & 2nd respondents is credible despite the contradictions and their failure to discharge the evidential burden on the issue joined over the temporary structure on the land. (Ground b)
(3) Whether admission by a party to the content of a document is binding on other party who is not a party to the document. (Ground c)
(4) Whether it is just and fair to order the Appellant alone to render account for a transaction in which the 5th & 6th respondents with Appellant acted as owners and lessors. (Grounds d)
(5) Whether the conclusion by the Court that the Appellant unilaterally inserted the names of the 4th and 5th respondents in the lease agreement is supported by evidence on record. (Ground e)
ARGUMENT OF ISSUES
ISSUE NO. 1
(1) Whether evidence elicited during cross-examination on facts not pleaded is admissible and can be rebutted under the front loading system.?
Learned Appellant counsel contended that P.W 1 under cross-examination by counsel to the 4th & 5th respondents (i.e. 3rd & 4th defendants at the lower Court) stated that in 2009, the 1st defendant wanted to erect its mast on the disputed land. Its representatives came to him and he sent his son to call my brother 2nd defendant from the farm. That was the last saw of them.
The lower Court accepted this piece of evidence and concluded that the Appellant skimmed the 1st & 2nd respondents out of the transaction.
At the material time, counsel to the Appellant had already cross-examined Pw1 before counsel to the 5th & 6th defendants/Respondents (i.e 3rd & 4th defendants) took up PW1 in cross-examination during which time the piece of evidence was given. At that stage, Appellant counsel could not embark upon another round of cross examination to shake or rebut the piece of evidence.
It is therefore submitted that the evidence was given on facts not pleaded by PW1 and as a result, it is not admissible. See longe v. FBN PLC (2010) 36 WRN1 Otanma v. Youdubagha (2006) 10 WRN I at 29. Ngige v. Obi (2006) 18 WRN 18 at 33, Asiru v. Asiru (2014) 18 WRN 113 at 135, Ajiboye v. Onigbinde (2014) 39 WRN 102 at 131.
It is further submitted that the lower trial judge placed heavy reliance on inadmissible evidence erred in law. As a result, he urged the Court to resolve this issue in their favour.
ISSUE NO. 2
(1) Whether the evidence of inheritance by the 1st & 2nd respondents is credible despite the contradictions and their failure to discharge the evidential burden on the issue joined over the temporary structure on the land.
It is contended by Appellant’s counsel that the 1st and 2nd Respondents failed to discharge the evidential burden placed upon them on the issue of the temporary structure on the land which was demolished. There is a heavy burden imposed upon the 1st and 2nd respondents by the combined provisions of Section 131, 132, 133 and 136 of the Evidence Act. The 1st and 2nd respondents pleaded at paragraph 10 of their statement of claim to the effect that the temporary structure erected on the land was demolished by them.
The Appellant in his statement of defence at paragraphs 9, 10 & 11 pleaded that one Onileowo Otele was the one who erected a temporary structure on the land during the life time of their father and that after the death of the woman, her son was the one who removed the structure with the aim of erecting a permanent structure on the land but which the Odopetu family opposed.
The 1st and 2nd respondents at paragraph 14 of their written statement on oath gave evidence that the wife of one Ogunrinde built a food canteen on the land which they demolished.
The 1st and 2nd respondents by their reply to the statement of defence and the additional written statement on oath of PW1 did not make further reference to the issue of who demolished the structure on which the Appellant had joined issue.
The Appellant as D.W4 paragraphs 7, 8 and 9 of his written statement on oath gave evidence that the land was in possession of Onileowo otele and that after her death in year 2000, her son wanted to erect a permanent structure on the land which step the Odopetu family opposed. DW1, Chief Ayo Akintola at paragraphs 7, 8, and 9 of his written statement on oath and DW2 Alhaji Musa Ogunniyi at paragraphs 7, 8, and 9 of his statement on oath both gave evidence consistent with the pleadings to the effect that the land in possession of one Omoniyi Otele and that it was Odopetu family who actually prevented the erection of permanent structure on the land.
Having joined issue on the material fact in this case, it is submitted that it is incumbent on the 1st and 2nd Respondents to call additional evidence particularly the wife of Ogunrinde alleged to have erected a structure on the land.
It is contended that since the parties differ in their pleadings and oral evidence on this vital issue, the Court is required to make a concrete finding and pronouncement the Court failed to do same and yet went on to hold that the evidence of 1st & 2nd respondents evidence was more credible. This failure of the Court to do the needful has occasioned a miscarriage of justice. See LAWAL V. MOGAJI (2010) 8 WRN 102. As well, the trial Court needed to make a finding on a material and important issue as to who demolished the temporary structure and on the allegation of the partitioning of the cocoa farm. See OGUNLEKE V. OGUNLEKE (2003) 27 WRN 127 AT 141.
The Appellant did not file a counter claim and it is trite that the claimants cannot rely on the weakness of the case of the Appellant. The evidence of DW1 and DW2 who testified respectively as the head and secretary of the family to which both parties belong are cogent and were not contradicted during cross-examination.
The trial Court did not attach weight to the evidence of the Appellant witnesses but rather the Court went the whole hog by closing its eyes to be patent contradictions in the claimants? case.
It is submitted that the evidence of both parties pointed to the fact that the late Michael Oni in his life time was not in exclusive possession of the land in dispute. The evidence of the parties shows that in the life time of the late Michael Oni, he was not in possession.
The appellant in his written statement on oath deposed to the effect that in the life time of his father, one Onileowo Otele was the one in possession up till year 2000, and that even after the death of the woman, her son attempted to erect a permanent structure on the land.
The claimants did not say that it was their father who gave the land to the person in possession. They equally did not mention who gave the land to the person in possession.
The conclusion that the claimants gave evidence of their inheritance would at best be speculative.
The Court is urged to resolve this issue in favour of the Appellant to the effect that the evidence of inheritance by the claimants is not credible.
ISSUE NO. 3
Whether admission by a party to the content of a document is binding on other party who was not a party to the document.?
Exhibit ‘F’ was the agreement prepared as settlement prepared as settlement agreement by the 1st defendant now the 3rd respondent. Exhibit ‘F’ was tendered through DW5 who with DW6 has demonstrated their support for the case of the claimants DW5 & DW6 (i.e 4th and 5th respondents) should have been called as witnesses for the claimants instead of being joined as defendants. They were intimidated by the suit; hence they turned around to settle their score against the appellant.
Exhibit ‘F’ which the Court relied on and attached heavy weight to does not confer any title. The Court failed to take recognizance of the fact that the settlers by the format were expected to sign before the Magistrate.
PW1 & PW2 i.e. the claimants (Funmilayo Fapohunda and Julianah olajiga) are witnesses and by that they were not to sign until the document has been interpreted to them before the Magistrate. On the face of Exhibit ‘F’ the document was not interpreted to the illiterate parties. Omoniyi Otele (DW6) is also an illiterate and this is confirmed by his written statement on oath.
It is submitted that the parties mentioned in Exhibit ‘F’ are not ad idem as to the content of Exhibit ‘F’, hence the document was not signed by all of them. Exhibit ‘F’ in the face of its patent defect ought not to have been relied upon by the Court as corroborative of the evidence that the disputed land was owned by late Michael Oni.
Exhibit ‘A’ and ‘F’ should not have been given and weight as they are equivocal and inchoate. Exhibit ‘A’ was purported to be signed before a Magistrate whereas it bears the stamp of the High Court. Apart from that, the document was not duly executed by the lessee.
The Court is urged to resolve this issue in their favour.
ISSUE NO. 4
Whether it is just and fair to order the Appellant alone to render account for a transaction in which the 5th & 6th respondents with Appellant acted as owners and lessors.?
It is submitted that Exhibit ‘A’ was executed by two parties namely the lessors and the lessee. The lessors are: Gabriel oni, Mr. Omoniyi Otele, Ajayi Victoria and Daramola Gbenga while the lessee is Emerging Markets Telecommunication Services Ltd (the 3rd Respondent).
Exhibit ‘A’ was executed before the Court and by the tenor of the document; the lessors are jointly liable for the act or omission arising from the execution of the Deed. The lessors jointly acknowledge the receipt of the consideration which is the sum of One Million, Six Hundred and Sixty six Thousand, Six Hundred and Sixty Six Naira, Sixty Six Kobo (N1, 666,666.66).
The Appellant, 4th and 5th respondents jointly benefitted from the lease notwithstanding the compromise the 4th and 5th respondents had with the 1st and 2nd Respondents which resulted into the turn round leaving the Appellant around.
A further confirmation of the need to make all the lessors liable is Exhibit ‘F’ where the 4th and 5th respondents presented themselves as ‘settlors’ in the document. The settlers with the Appellant represented themselves as the beneficial owners to the lessee. The interest of justice demands that the 4th and 5th respondents should equally be made answerable for the purpose of rendering accounts to the claimants.
The appellant gave evidence to the effect that the claimants benefitted from the transaction to the tune of N200, 000 which facts was not denied. The law is that consideration needed not be adequate. The claimants having accepted the sum from the Appellant, they are no longer entitled to have an account rendered to them and if it imperative to render an account, the 4th and 5th respondents who played active role should be made to render account. This is so because without the role of the 4th and 5th respondents, Exhibit ‘A’ would not have been executed.
The Court is urged to resolve this issue in their favour.
ISSUE NO. 5
Whether the conclusion by the court that the Appellant unilaterally inserted the names of the 4th and 5th respondents in the lease agreement is supported by evidence on record.?
It is submitted that the lower Court has no jurisdiction to arrive at the conclusion that the 2nd defendant unilaterally inserted the names of the 3rd and 4th defendants in the lease agreement i.e. Exhibit ‘A’.
Exhibit ‘A’ was prepared by the solicitor of the lessee, the 3rd respondent and it was executed before the Court with a jurat meaning that they understand the transaction. See IDOGHOR V. IDOGHOR (2014) 41 WRN 164 AT 173.
The statement of defence of the 3rd and 4th defendants dated 7th March 2014 narrated the sequence of events leading to the participation of their involvement in the transaction. If the names of the 3rd & 4th defendants were inserted, it presupposes that they were not the one that signed the document. However, paragraph 8 of their written statement on oath stated that they were deceived into signing Exhibit A in Court and before the Magistrate.
The claimants by their pleadings and evidence did not use the word insert, the claimants used word ‘deceived’. Invariably the evidence of the claimants did not establish the word ‘inserted’ used in relied 29 (c ) of the statement of claim.
The evidence that the 2nd defendant manipulated the signatures of the 3rd and 4th defendants is a criminal allegation in a civil proceedings which must be proved beyond reasonable doubt. See Ezeanwa v. Onyena (2011) 10 WRN 21 at 60 R. 4 see also Doma v. Inec (2014) 12 WRN 47 at 66. Court cannot pick and choose which one to believe and which to disbelieve.
The findings of the Court that the Appellant unilaterally inserted the names of the 3rd and 4th defendants into Exhibit ‘A’ (the lease agreement) is not supported by evidence and therefore perverse. It has consequently occasioned a miscarriage of justice. See ADEYEYE V. ODUOYE (2011) 3 WRN 68 AT 103 R. 12.
Both the claimants and the 3rd and 4th defendants did not use the word ‘inserted’ in their evidence. it is strange therefore, how the Court came to the conclusion that the Appellant unilaterally inserted the names of the 3rd and 4th defendants. What the Court did is nothing more than speculation. See A.C.B. PLC V. EMOSTRADE LTD (2006) 10 WRN 42 AT 59. See also JOSEPH v. KWARA STATE POLY (2003) 52 WRN 106.
The learned counsel contended that the ‘insertion’ is a mere allegation. See UKEJE V. UKEJE (2014) 39 WRN 1 AT 33, AJIBOYE V. ONIGBINDE (Supra). A party he contended is expected to give evidence within the scope or limit of his pleadings.
He then urged the Court to resolve this issue in their favour, and to allow the Appeal, set aside the judgment of the lower Court and dismiss the claim of the 1st & 2nd Respondents.
On his own part, the 1st & 2nd Respondents formulated the following issues for determination of this appeal viz;
ISSUE FOR DETERMINATION
(1) Whether the 1st and 2nd Respondents are not entitled to the relief sought in their claim before given the facts and the evidence adduced in proof of same?
(2) Whether the Appellant can be approbating and reprobating on the same issue relating to his root of title to the land in dispute and be expected to benefit from such contradictory pieces of evidence in respect of his root of title to the land in dispute?
(3) Whether the Appellant is not duty bound to give account of the money he unilaterally obtained or collected from the 3rd respondent in respect of the lease of the joint family property of the 1st and 2nd respondents at No. 3 Iro Odose Street Ise Ekiti?
ISSUE NO. 1
Whether the 1st and 2nd Respondents are not entitled to the relief sought in their claim before given the facts and the evidence adduced in proof of same?
To argue this issue, learned for 1st & 2nd Respondents stated that the case of the claimant is that the land at No. 3 Iro odose Street is the joint property of the 1st and 2nd respondents as well as the appellant being the children of late Michael Oni who happened to be the father of the 1st respondents and the Appellant.
The 1st and 2nd Respondents gave evidence of how the land in dispute devolved unto them as descendants of Michael Oni and various acts of ownership on the land exercise by them as beneficial owners.
The 1st and 2nd respondents relied on traditional root of title in proof of their joint ownership of this land with the Appellant. The 1st and 2nd respondents were able to establish their claim to the land jointly with the Appellant through credible and reliable evidence as enunciated in the case of IDUNDUN VS. OKUMAGBA (1976) 10 NSCC 445.
The case of the 1st and 2nd respondents as claimants in the Court below was reinforced by the contents of Exhibits ?B? and ?E? which were affidavits deposed to by the Appellant to the effect that the property in dispute was originally owned by the late Michael Oni who happened to be the father of the 1st and 2nd respondents as well as the Appellant. The 1st and 2nd respondents as claimants can rely on this piece of evidence which tend to support their case. See the case of KAMALU VS. UMUNNA (1997) 5 NWLR (PT. 505) 312 @ 377.
The fact remains that the land in dispute in this case was unilaterally leased by the Appellant to the 3rd respondent even when the Appellant had deceived the 4th and 5th respondents into executing Exhibit ‘A’ in favour of the 3rd respondent but when the 4th and 5th respondents realized that they were deceived by the appellant they realized out of Exhibit ‘A’ and consequently made Exhibit ‘F’, the Exhibit ‘F’ which the Appellant failed to execute.
The Appellant in an attempt to lay exclusive claim to the land in dispute against the 1st and 2nd respondents who happened to be his eldest and elder sisters respectively vide his pleadings at pages 122 to 125 record of Appeal more particularly in paragraph 12 of the statement of defence and his written statement on oath at pages 126-128 at paragraph 10 of the written statement on oath of the record of Appeal stated that the land is his personal property, same having been given to him by Odopetu family, even when the contents of Exhibits ‘B’ and ‘E’ which were his documents confirmed the fact that the land was originally the property of his father late Michael Oni.
The case of the 1st and 2nd respondents is therefore established through cogent and credible evidence and same having been reinforced by the evidence of the Appellant as contained in Exhibits ‘B’ and ‘E’ all go to confirm the land is a joint family property of the 1st and 2nd respondents as well as the Appellant.
It is therefore submitted that the 1st and 2nd Respondents are entitled to the reliefs sought and accordingly urged the Court to resolve this issue in their favour.
ISSUE TWO
Whether the Appellant can be approbating and reprobating on the same issue relating to his root of title to the land in dispute and be expected to benefit from such contradictory pieces of evidence in respect of his root of title to the land in dispute?
The Appellant in his written pleadings at paragraph 12 of the statement of defence which is contained at pages 122 to 125 of the record of Appeal and paragraph 10 of the written statement on oath which is contained at pages 126 to 128 of the record of Appeal says that the land in dispute devolved unto him through a granted of same to him by Odopetu Family even when in Exhibits ‘B’ and ‘E’ he had deposed to the fact that he inherited the land in dispute from his late father late Michael Oni.
The Court will not allow the Appellant to aprobate and reprobate on the same issue before the Court. See the case of FIRST BANK LTD VS. SONGONUGA (2005) VL. 3 FWLR 271 PG 315 @ 318 SC.
The Exhibits ‘B’ and ‘E’ were the documents used by the Appellant to lease the land in dispute to the 3rd respondent. The documents were voluntarily made by him in the years 2008 and 2009 respectively, yet in an attempt to defraud and deny the 1st and 2nd respondents of their own share of their fathers’ estate the appellant now vide his evidence in Court stated that the land was a grant to him from Odopetu famly even when he had made the depositions Exhibits ‘B’ and ‘E’.
The position of the Appellant in using oral evidence to deny the content of Exhibits ‘B’ and ‘E’ which were made at different times or at interval, even when there is no evidence of duress in making Exhibits ‘B’ and ‘E’ cannot stand and the Court is urged to discountenance with such argument. This, is in violation of the provision of Section 129 of the Evidence Act 2011, to the effect that oral evidence cannot be used to vary the content of a written document. See the case of LARMIE VS. D.P.M. & SERVICES LTD (2005) 18 NWLR, (PT 958) PG. 88 SC @ PG. 469.
The Court is urged to resolve this issue in their favour.
ISSUE THREE
Whether the Appellant is not duty bound to give account of the money he unilaterally obtained or collected from the 3rd respondent in respect of the lease of the joint family property of the 1st and 2nd respondents at No. 3 Iro Odose Street Ise Ekiti?
The Appellant in leasing out the land in dispute gave evidence vide his written statement at paragraph 13 at page 127 of the record of Appeal to the effect that he leased the land unilaterally to the 3rd respondent who was the 1st defendant in the Court below and that the 4th and 5th defendants/respondents were witnesses to the transaction granting the land on lease to the 3rd respondent.
The fact remains that the lease in this case was unilaterally executed by the Appellant in favour of the 3rd respondent without the concurrence of the 1st and 2nd respondents who are joint owners of the land with the Appellant.
The Appellant having admitted that he executed the agreement in favour of the 3rd respondent without the knowledge and consent of the 1st and 2nd respondents is liable to give account of the money collected in respect of the lease, since he is not the sole owner of the land. An admitted fact needs no further proof. See the case of BIEZAN EXCLUSIVE GUEST HOUSE LTD VS. UNION HOMMES SAVINGS AND LOAN LTD 2011 V. 7 NWLR PT. 1246 246 AT 285.
It is contended that the fact the 4th and 5th respondents witnesses the transaction leading to Exhibit ‘A’ will not make them give account of the money they did not collect.
CONCLUSION
In conclusion, the Court is urged to affirm the judgment of the trial Court and dismiss this Appeal with cost against the Appellant.
On the part of the 4th & 5th Respondents, two issues were formulated for determination:
ISSUES FOR DETERMINATION
1. Whether the 1st and 2nd respondents are not entitled to their own share of their father’s estate?
2. Whether the 4th and 5th Respondents are not by right entitled to defend themselves and present the facts of the case before the trial Court?
ISSUE ONE
Whether the 1st and 2nd respondents are not entitled to their own share of their father’s estate?
According to learned counsel, the fact remains that both the Appellant as well as 1st and 2nd Respondents are siblings of a mother and father, while the land in dispute was originally owned by the late Michael Oni who happened to be their father in his life time. This position is confirmed by the deposition of the Appellant in Exhibit ‘B’ and ‘E’ to the effect that the land belongs to Late Michael Oni.
Given the evidence adduced by parties to this case and the facts produced in evidence, it is submitted that the land in dispute remains the joint property of the Appellant, and that of the 1st and 2nd Respondents, therefore the exclusive claims of ownership being canvassed by the Appellant is without any foundation as there was never a time the land in dispute was shared in his favour; (That is the Appellant). What is more is that, the Appellant is now claiming ownership of the disputed land vide a grant of same to him exclusively by Odopetu family, even when he; himself was the one that deposed to the facts contained in Exhibits ‘B’ and ‘E’ that the land was originally that of his father; late Michael Oni.
In conclusion, since it is no longer in dispute that the disputed land which is the subject matter of this action jointly belongs to the appellant, 1st and 2nd respondents, then the proceeds of the lease jointly belong to the three of them and since the Appellant was the one that collected same, he ought to give an account of the proceeds collected by him to his elder sisters, since the land has not been partitioned in favour of the Appellant. It is settled that if a member of the family claims ownership of family land, he must show how he came to own family land to the exclusion of other family members. See the case of EWO V. ANI (2004) 3 NWLR (PT. 861) PG. 610 @ PG. 629.
In view of the foregoing, the Court is urged to affirm the decision of the trial Court and dismiss this appeal against the appellant in its entirety.
ISSUE TWO
Whether the 4th and 5th Respondents are not by right entitled to defend themselves and present the facts of the case before the trial Court?
The 4th and 5th defendants were sued in this action severally and having realized that they could not be defendants jointly with the appellant as their were not in tandem with that of the appellant, they had to retain the services of their own counsel to defend them in the action who had been sued in an action.
As a citizen of Nigeria, they have the right to the counsel of their own choice. See Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
The 4th and 5th defendants going by their evidence before the Court, did not share the proceeds of the lease with the Appellant and therefore, it is the appellant that should give an account of the money to the lease transaction which he unilaterally collected.
It is upon the foregoing, we urge the Court to affirm the decision of the trial Court and dismiss this appeal against the Appellants in its entirety.
CONCLUSION
In conclusion, the Court is urged to affirm the judgment of the trial Court and dismiss this Appeal with cost against the Appellant.
Appellant counsel filed reply brief of argument and also to the 4th and 5th Respondents brief of argument. I have gone through both reply briefs and they do not meet up with the standard required pursuant to Order Rule of the Court of Appeal Rules 2016.
Accordingly, I hereby discountenance same in considering the merit of this appeal.
RESOLUTION OF ISSUES
In considering the merit of this Appeal, I shall adopt the issues as formulated by the Appellant thus:
ISSUES FOR DETERMINATION
(1) Whether evidence elicited during cross-examination on facts not pleaded is admissible and can be rebutted under the front loading system (Ground a)
(2) Whether the evidence of inheritance by the 1st & 2nd respondents is credible despite the contradictions and their failure to discharge the evidential burden on the issue joined over the temporary structure on the land. (Ground b)
(3) Whether admission by a party to the content of a document is binding on other party who is not a party to the document. (Ground c)
(4) Whether it is just and fair to order the Appellant alone to render account for a transaction in which the 5th & 6th respondents with Appellant acted as owners and lessors. (Grounds d)
(5) Whether the conclusion by the Court that the Appellant unilaterally inserted the names of the 4th and 5th respondents in the lease agreement is supported by evidence on record. (Ground e)
ISSUE NO. 1
Whether evidence elicited during cross-examination on facts not pleaded is admissible and can be rebutted under the front loading system?. This issue is taken from ground (a) of the ground of Appeal.
When an evidence is not challenged, the Court ought to accept same as proof of the issue in contest. See OKUPE V. IFEMEMBI (1974) 3 SC 97 AT 103, ALAGBE V. ABIMBOLA (1978) 2 SC 39 AT 40, ODULAJA V. HADDAD (1973) 1 SC 35. Evidence elicited during cross-examination, if it relates to the fact in issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination in Chief. See GAJI V. PAYE (2003) 8 NWLR (PT. 823) 583, DAGGASH V. BULAMA (2004) 14 NWL (PT. 892) 114.
It is therefore follows that the evidence of PW1 under cross – examination by counsel to the 4th ad 5th respondents (i.e. 3rd and 4th defendants at the lower Court) stated that;
”In 2009 that the 1st defendant wanted to erect its mask on the disputed land, its representative came to him and he sent his son to his brother 2nd defendant from the farm that was the last I saw of him.”
This piece of evidence has an much probative value as the evidence PW1 gave in chief more so as it relates to the material fact in issue.
In the recent case of Akomolafe v. Guardian Press Ltd (2010) 3 NWLR (Pt. 1181) 338 AT 351 at 353-354, the Supreme Court stated the position of the law thus:
”Evidence elicited from a party or his witness under cross-examination, which goes to support the case of the party cross-examining, constitutes evidence in support of the case or defence of the party. If at the end of the day, the party cross-examining decides not to call any witness, he can rely on the evidence elicited from the cross-examination in establishing his case or defence.
In such a case, it can not be said that the party called no evidence in support of his case or defence. However, it can be said that the party called no witness in support of his case or defence, not evidence.
This issue is resolved in favour of the Respondent.
On a future argument on issue No. 1
It is trite that an issue for determination must have boundaries in that it must be predicated upon the ratio decidendi of the judgment or the Ruling appealed against. See ISAAC V. IMASUEN (2016) ALL FWLR (PT. 823) SC, 1894 AT 1906, YADIS NIG. LTD V. GREAT NIGERIA INSURANCE CO. LTD (2007) ALL FWLR (PT. 370) 1348.
An issue which is not raised, argued and pronounced upon by a trial Court, can not be validly raised as an issue for determination before the Appellate Court, as such an issue or arguments made therein are not competent and therefore goes to no issue. See IDUFUEKO V. PTIZER PRODUCTS LTD. (2014) ALL FWLR (PT. 745) SC 269 AT 287.
In the instant appeal, a careful examination of the records reveals that there was no decision of the Court below on the issue of whether or not.
”Evidence elicited during cross-examination on facts not pleaded is admissible and can be rebutted under the frontloading system.”
There was no pronouncement by the lower Court on the issue of front loading system in the judgment of the lower Court on the 17th November, 2014. Therefore, issue No. 1 could not rightly be the subject of a ground of Appeal or an issue for determination in this Appeal. As a result, it is hereby discountenanced with all the argument and submission. It is an incompetent issue and it is struck-out accordingly.
Also on issue No. 3 i.e
”Whether admission by a party to the content of a document is binding on other party who is not a party to the document.”
This issue was not before the lower Court nor did the Court make any pronouncement upon it. It is trite law that an issue not raised, argued and pronounced upon the trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court, as such issue or argument made, there on are not competent and therefore goes to no issue. See ADAMS O. IDUFUEKO V. PFIZER PRODUCTS LTD & ANOR (Supra).
In view of the above, issue No. 3 as per the Appellants issues for determination is hereby struck-out for being an incompetent issue for determination.
ISSUE NO. 2
”Whether the evidence of inheritance by the 1st & 2nd Respondents is credible despite the contradictions and their failure to discharge the evidential burden on the issue joined over the temporary structure on the land.?
In this matter, the case of the Appellant is that the land at No. 3 Iro Odose Street is the joint property of the 1st and 2nd Respondents as well as the Appellant being the Children of late Michael Oni who happened to be the father of the 1st and 2nd Respondents and the Appellants. The 1st and 2nd Respondents gave evidence of how the land in dispute devolved unto them as descendants of Michael Oni and various acts of ownership on the land exercised by them.
The defence is to the effect that the land on lease is personal property and not part of the estate of late Michael Oni who happened to be the father of the Appellant as well as the 1st and 2nd respondents even when Exhibits ‘B’ & ‘E’, confirmed that the land was originally owned by Michael Oni, father of both the Appellant and 1st & 2nd Respondents.
In this appeal, it is the duty of the Appellant to prove their case on the balance of probabilities and in doing so must rely on the strength of their own case and not on the weakness of the defendants. See KODILINYE V. ODU (1935) 2 WACA 336 AT 337. With respect to land, the law stipulates any of the five methods of proof as correctly identified by the learned trial judge thus by
(1) Traditional evidence;
(2) By production of documents of title;
(3) Acts of ownership such as selling, leasing, renting or farming extending over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner;
(4) Acts of long possession and enjoyment of the land;
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable, that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute. Proof of any one of the five ways is sufficient as each of them stands or fails on its merit.
The Appellant claimed that the land or lease is his personal property and not part of the estate of Late Michael Oni. As title of the Appellant is now in issue, the burden rests squarely on him to adduce evidence which must satisfy the lower Court of the land in dispute. However, if it happens that he is unable to prove his title to the land, his claim will fail.
The Appellant relied on Traditional evidence in proof of his title to the land in dispute. Traditional evidence has been described as evidence beyond human memory.
In this connection, a party who seeks title to land and relied on Traditional history must succeed, plead and prove facts as to;
(a) Who founded the land.
(B) How the land was founded.
(c) Particulars of ancestors through whom he claims.
See CHRISTIAN EWO V. OGBODO ANI (2004) 10 WRN 1, MOGAJI V. CADBURY NIG. LTD (2004) 23 WRN 54. The plaintiff must give satisfactory evidence of intervening owners and there should be no gap in his evidence.
Applying the above principles to the facts of this case on appeal, the learned trial judge after evaluating the evidence led held on page 48-49 of the printed record
the pleadings of 3rd & 4th defendants admit the claim of the claimants in all material particulars while their oral and documentary evidence also corroborates the evidence of the claimants. There is therefore nothing amiss between the claimants and the 3rd& 4th defendants.”
The corollary effect of all fact in the foregoing is that 2nd defendant has not put up any credible evidence on the other side of the imaginary scale of justice in rebuttal of the claimants evidence such that will tilt same to make the burden of proof shift back to the side of the claimants pursuant to Section 133 of the Evidence Act 2011 (as Amended). It is therefore trite law that where a claimant adduces oral evidence which establishes his claim against the defendant in terms of the writ and the evidence is not rebutted by the defendant, the claimant is entitled to judgment. See MUSA V. YERIMA (1997) 7 NWLR (PT. 511) 27 AT 41 PARAS H-A Per Onu JSC.
In the absence of the rebuttal of the satisfactory evidence led by the claimants in support of their claim as highlighted in the foregoing. Issue number one is resolved in favour of the claimants against the defendants. For the avoidance of doubt, it is my respectful view, on the basis of my reasoning in the foregoing, that from the state of the pleadings and evidence led on record, the claimants have proved upon the preponderance of evidence that the land in dispute belonged to late Pa Michael Oni Odopetu in his lifetime and that same devolved onto the trio of the two claimants and the 2nd defendant as a joint family property under Yoruba Customary law upon the demise of Pa Michael Oni Odopetu intestate.
I agree with the learned trial judge on the reasoning and conclusion reached in this matter and I have nothing more to add. Evaluation of evidence is the primary function of a trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an appellate Court can intervene and re-evaluate such evidence, otherwise the appellate Court has no business interfering with the finding of the trial Court on such evidence.
See Adebayo v. Adusei (2004) 4 NWLR (PT. 862) 44. I have not seen any reason for this for Court to re-evaluate the evidence already evaluated by the trial Court as it has not been seen to be perverse.
ISSUE NO. 4
Whether it is just and fair to Order the Appellant alone to render account for a transaction in which the 5th & 6th respondents with Appellants acted as owners and lessors.”
This issue arose out of the concluding decision of the trial judge when he said at page 51 of the records thus
”As for the 5th relief, Exhibit ‘A’ shows that the purported lease of the disputed property is for 15 years commencing from 29th January, 2009 at the rental value of N333, 333,33k per annum and that the rent for the first years i.e N666, 666.66K has been paid by the 1st defendant to the 2nd defendant without any credible evidence on record that he gave the claimants their fair share of the rent. It will be apposite granting an order direct the 2nd defendant to render an account of the sum of N1, 66,666, 66K paid to him on the disputed land to the claimants as co-owners of same. This relief also succeeds.”
The above decision of the trial judge is not out of place or from a wrong apprehension of the facts before the Court. There is evidence in Court that the Appellant admitted that he executed the agreement in favour of the 3rd Respondent without the knowledge and consent of the 1st& 2nd Respondents. He is therefore liable to give account of the money collected in respect of the lease.
It is in the interest of justice in this case that the learned trial judge made the Order for the Appellant to render account to other co-owners of the land in dispute. I do not see anything wrong or perverse in this order and I therefore agree with the trial judge in this respect. This issue is resolved in favour of the Respondents.
ISSUE NO. 5
Whether the conclusion by the Court that the Appellant unilaterally inserted the names of the 4th & 5th Respondents in the lease agreement is supported by evidence on record.”
This issue is really of no moment. It is on record that the 4th and 5th Respondents gave evidence that they were deceived to come into the lease agreement and quickly opted out upon realizing the deceit they were thrown into.
The trial judge took this into account when he evaluated the evidence before him. This was indeed part of the evaluation of the evidence at the lower Court which the said Court took pains to evaluate as already highlighted herein before in this judgment. So, I do not see anything perverse or wrong in law when the learned trial judge arrived at the conclusion being made an issue for determination, the Appellant admitted that he executed the Agreement in favour of the 3rd Respondent without their knowledge and consent. The 4th and 5th Respondents only executed the lease agreement as witnesses after being coerced into the transaction. This issue is resolved in favour of the Respondent.
All the issues formulated in this Appeal are all resolved in favour of the Respondents. The Appeal is not meritoriousand it is hereby dismissed. The judgment of the lower Court in suit No. HIS/8/2013 delivered on the 17th November, 2014 by Honourable Justice L.O. Ogundana is hereby affirmed. A cost of N50, 000.00 is hereby awarded to the Respondents.
Appeal Dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of a preview of the judgement just delivered by my learned brother PAUL OBI ELECHI, JCA and I agree that this appeal fails and that the same be dismissed.
I dismiss this appeal, the decision of the High Court of Ekiti State delivered by Honourable Justice L.O Ogundana on the 17th day of November, 2014 in Suit No. HIS/8/2013 is hereby affirmed. A cost of N50,000.00 is awarded to the Respondents.
Appeal dismissed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
A.O. Adebayo Esq.For Appellant(s)
Basuyi Bankole with him, Jide Agboola and Kike OwolabiFor Respondent(s)
