MR. SURAJUDEEN JAJI & ORS v. ALHAJA IDIAT OLOWORA & ANOR (2015)

MR. SURAJUDEEN JAJI & ORS v. ALHAJA IDIAT OLOWORA & ANOR

(2015)LCN/7958(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of July, 2015

CA/L/103/2013

RATIO

COURT: THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE; THE PRINCIPLES THAT GUIDES THE TRIAL COURT IN THE EVALUATION OF EVIDENCE

In the evaluation of evidence, the trial Courts are guided by the following principles; namely:-
a. whether the evidence is admissible;
b. whether the evidence is relevant;
c. whether the evidence is credible;
d. whether the evidence is conclusive and
e. whether the evidence is more probable than that given by the other party Mogaji vs. Odofin (1978) 4 SC pg. 91, Akard Industries Ltd. vs. Olubode (2004) 4 NWLR Pt.862 pg. 1. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: HOW THE COURT DECIDE CIVIL CASES

In Civil cases, the Court decides the case on the balance of probabilities or preponderance of evidence. This is done when a trial Court puts on an imaginary scale the totality of the evidence adduced by the parties before it, before coming to a decision as to which evidence it accepts and which it rejects. The Court must put the evidence adduced by the plaintiff on one side of the scale and that by the defendant on the other side of the scale and weight them together. The Court will then see which is heavier, not by the number of witnesses called by each party; but by the quality of probative value of the testimony of those witnesses. Adebayo vs. Adusei (2004) 4 NWLR pt. 862 pg. 44, Olusile vs. Maiduguri Metre Council (2004) 4 NWLR pt. 863 pg. 290, Fagbenro vs. Arobadi (2006) 7 NWLR pt. 978 pg. 174. per. UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN CIVIL CASES

The burden of proof is on the party who asserts a fact to prove same; for he who asserts must prove. The standard of proof required is on a preponderance of evidence and balance of probabilities. See Longe vs. First Bank Nig. Plc. (2006) 3 NWLR Pt.967 pg. 228, Daodu vs. NNPC (1998) 2 NWLR Pt. 538 pg. 355, Kalu vs. Potiskum (1998) 3 NWLR Pt 540 pg, 1, Hauma vs. Akpe-Ime (2000) 7 SC Pt. II pg. 24, Braimah vs. Abasi (1998) 13 NWLR Pt.581 pg. 167. See also Section 137 Evidence Act. In Civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden, then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in Law to make a case or rely on the weakness of its opposite party in order to succeed. Iman vs. Sheriff (2005) 4 NWLR Pt.914 Pg. 80, Elias vs. Omo-Bare (1982) 5 SC Pg. 25, Agbi vs. Ogbeh (2006) 11 NWLR Pt.990 Pg. 65. per. UZO I. NDUKWE-ANYANWU, J.C.A.

COURT: INTERFERENCE; WHETHER IT IS THE BUSINESS OF THE APPELLATE COURT TO SUBSTITUTE IT OWN VIEWS FOR THE VIEWS OF THE TRIAL COURT OR TO INTERVENE AND RE-EVALUATE EVIDENCE

Where the trial Court unquestionably evaluates the evidence and justifiably appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. See Agbi vs. Agbeh (2006) 11 NWLR Pt. 990 pg. 65, Bashaya vs. State (1998) 5 NWLR Pt. 550 Pg. 351, Ojokolobo vs. Alamu (1998) 9 NWLR Pt. 565 Pg.226, Sha vs. Kwan (2000) 5 SC Pg. 178. It is trite that evaluation of evidence is primarily the function of the 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. Adebayo vs. Adusei (2004) 4 NWLR Pt.862 pg. 44. per. UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. MR. SURAJUDEEN JAJI
2. MRS. IYABO YUSSUF
3. MRS. GANIYAT TAIRU Appellant(s)

AND

1. ALHAJA IDIAT OLOWORA
2. MR. WASIU ODUTAYO Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State delivered on 12th of September, 2012 by Hon. Justice Dada.

By a Writ of Summons, together with a 2nd further Amended Statement of claim dated 4th of June, 2008, the Claimants now Appellants claimed as follows:-
1. A declaration that the claimants are the only persons entitled under the Yoruba Native Law and Custom and other applicable laws to the building and landed property lying, being and situate at No. 2 Smith Street, Lagos Nigeria which forms part of the Estate of Late Jinadu Owunmisola Balogun (otherwise known and called Jinadu Owunmisola).
2. On the death of Late Jinadu Owunmisola Balogun and subsequent death of his two children namely- Abake (otherwise known and called Labake) and Yekini the ownership, rights, interest and privileges of the said Late Jinadu Owunmisola Balogun and later of Abake and Yekini on the building and landed property situate at No. 2 Smith Street, Lagos devolve on the claimants under the Yoruba Native Law and Custom of the Yorubas and all other applicable laws in Ogun State and Lagos State of Nigeria.

The Defendants, now Respondents, also filed a further Amended Statement of Defence dated 14th of March, 2011 thereby joining issues with the Appellants. The Appellants further filed a reply to the Respondents further Amended Statement of Defence. Evidence was led, after which the trial judge in its considered judgment dismissed the claim of the Claimants/Appellants. Dissatisfied with the said judgment, the Appellant filed a Notice of Appeal on 4th of December, 2012 consisting of three (3) grounds of appeal.

The facts briefly stated are as follows:-
The property at No. 2 Smith Street, Lagos which is the property in dispute in this case, forms part of the Estate of Jinadu Balogun. Jinadu Balogun was survived by two children Abake/Labake and Yekini to whom he bequeathed the property but who subsequently died without any issue. Jinadu Balogun had other siblings namely: –
(i) Raliatu Abebi, who without dispute was a full sister of Jinadu Balogun and
(ii) Madame Ademuyiwa Eruwon. It is the case of the Appellants that Madam Ademuyiwa Eruwon was only a paternal half-sister (i.e. same father but different mother with Jinadu Balogun). On the other hand, it is the case of the Respondents that Madam Ademuyiwa was also a full sister to Jinadu Balogun.

The Appellants, who were also Claimants at the lower court, are the descendants of Abebi whilst the Respondents as Defendants claimed to be descendants of Madam Ademuyiwa though their status as such is being contested by the Appellants.

It is the case of the Appellant that Madam Ademuyiwa had only two children namely:-
1. Rufai Eruwon and
2. Shittu Eruwon.

The two children, they said, died without any issue. This is contrary to the case of the Respondents who alleged that Madam Ademuyiwa had three children namely:-
1. Shittu,
2. Yusuf, and
3. Aminu.

They claim to be descendants of Shittu and Yusuf. It is also part of the case of the Respondent that Jinadu Balogun, during his lifetime, accommodated the three children of madam Ademuyiwa in the property in dispute.

The case of the Appellant before the Court is that they are the ones entitled to the estate of Jinadu Balogun including the property in this case and that the Respondents have no relationship with the estate.

According to the rules of Court, the Appellant filed his brief of argument on 1st of May, 2013. No brief was filed by the Respondents. Upon the expiration of time, within which the Respondents were to file their brief, the Appellant filed an application for this appeal to be heard on the Appellant’s brief alone. The application was granted on 22nd of October, 2014.

In his brief, the Appellant formulated two issues for determination viz:-
1. Whether the learned trial judge properly evaluated ail the evidence adduced by the parties before arriving at the decision that the evidence and pleadings of the Respondents are more likely to be believed.
2. Whether the judgment of the learned trial judge was against the weight of evidence adduced by the parties before the lower Court.

ISSUE 1
The Appellant submitted that the learned trial judge did not properly evaluate the evidence before the Court. He, therefore, urged this Court to intervene and re-evaluate the evidence. He cited the case of Nwokidu vs. Okanu (2010) 3 NWLR (Pt 1181) 362 SC; Saka vs. Ijuh (2010) 4 NWLR (Pt 1184) 405 CA; Igbeke vs. Emordi (2010) 11 NWLR (Pt 1204) 1 CA; Anyakora vs. Obiakor (2005) 5 NWLR (Pt.919) 507.

The Appellant highlighted some of the facts in respect of which the learned trial judge wrongly evaluated the evidence before the Court.

First of all, evidence relating to the identity and status of Yesufu and whether he was one of the children of Madam Ademuyiwa. According to the Appellant in paragraph 4 of their further Amended Statement of claim, it was averred that “there was one Yusuf Aminu (otherwise known and called Yesufu) who was referred to as a relation in the last Will and Testament of the deceased (Jinadu Balogun) as Yesufu. He referred to Exhibit 7 (Will and testament of Jinadu Balogun) and the testimony of CW1 (1st Appellant). The above pleadings and evidence is in support of the case of the Appellant to the effect that the Yesufu referred to in the Will of Jinadu Balogun is the same person as Yusuf Aminu (one person and not two different persons) who was the father to the 2nd Defendant/Respondent in this case. However, contrary to the pleadings and evidence of the Appellant, the trial judge went ahead to find that the Yesufu referred to in Exhibit 7 is not the same person as Yusuf Aminu, the father of the 2nd Defendant/Respondent, and that Yusuf and Aminu are two different people.

It is the case of the Appellant that their case is even supported by the evidence of the 1st defendant/Respondent under cross examination, who admitted that Aminu is the same person called Yusuf Aminu. However, the trial judge held that, that piece of evidence cannot support the case of the Appellant. It is the submission of the Appellant that the weakness in the Respondents’ case which supports that of the Appellant can be relied upon by the Appellant. He referred to the cases of Otunla vs. Ogunowo (2004) 6 NWLR (Pt 868) 184; Mogaji vs. Cadbury Nigeria Ltd (1985) 2 NWLR (Pt. 7) 393.

He further contended that the learned trial judge was wrong in holding that Yesufu Aminu was one of the Children of Madam Ademuyiwa as the pleading and evidence of the Appellant show that Madam Ademuyiwa had only two Children both of whom died without any issue. He pointed out that Exhibit 7 specifically referred to Rufai Eruwon and Shittu Eruwon as children of Madam Ademuyiwa and Yesufu as a relation to Jinadu Balogun (the deceased/testator). He also contended that the learned trial judge was in error in holding that the Appellant did not discharge the burden of proving that Aminu Yusuf is the same person as Yesufu referred to as a relation in Exhibit 7. He refers to Andem vs. Etim (2010) 4 NWLR (Pt 1185) 489 CA; Section 133(2) of the Evidence Act.

Another aspect of evidence wrongly evaluated by the trial judge is the relationship of Madam Ademuyiwa to Jinadu Balogun and the relationship between Shittu Balogun and Madam Ademuyiwa. According to the Appellant’s counsel, paragraphs 13 and 14 of the 2nd further Amended Statement of Claim supported by evidence of CW1, and Exhibit 7 proved that Madam Ademuyiwa was only a paternal half-sister to Jinadu Balogun and that Shittu Balogun was only a relation and tenant to Jinadu Balogun. That the pleadings also show Shittu Balogun is different from Shittu Eruwon, one of the children of Madam Ademuyiwa. It is the case of the Appellant that Madam Ademuyiwa had only two children and the two of them had died without any issue and that the Respondents in this case cannot be the descendant of Shittu Eruwon. The Respondents in this case are descendants of Shittu Balogun and not Shittu Eruwon.

According to counsel, the Appellant’s case is further buttressed by Exhibit 7 of particularly paragraph 8, wherein Jinadu Balogun refers to “Shittu Eruwon, the son of my elder sister Ademuyiwa”, whom he gave his farmland and appointed as executor to his will. Also counsel noted that Shittu Eruwon referred to in Exhibit 7 was a farmer whereas Shittu Balogun who lived and died on the property in dispute was a shoe maker. In other words, he could not have been the same person referred to in Exhibit 7 as Shittu Eruwon.

It is the conclusion of the Appellant’s counsel that the Defendant/Respondent are not descendant of Shittu Eruwon and are not related to Madam Ademuyiwa, that the evidence of the Appellant remains uncontradicted. However, the trial judge went ahead to hold that the Defendants are descendants of Madam Ademuyiwa. According to counsel, the learned trial judge findings were based on sentiment and not evidence and that sentiment has no place in law. He relies on the case of Willoughby vs. International Merchant Bank (Nig) Ltd (1987) 1 NWLR (Pt 48) 132.

He submitted that the judgment of the trial Court is against the weight of evidence and urged this Court to set same aside. He refers to the cases of Anyaoke vs. Adi (1986) 3 NWLR (Pt.31) 731; Khawam vs. Akinkugbe (2001) 13 NWLR (Pt.729) 70.

According to counsel the following facts are not in dispute:-
1. That Ademuyiwa, Jinadu Balogun and Raliatu Abebi were all brother and sisters.
2. That the property situates at 2 Smith Street, Lagos, the subject property belonged to Jinadu Balogun in his life time.
3. That Jinadu Balogun had two children namely;
i) Abake or Labake
ii) Yekini.
4. That Jinadu Balogun who died testate sometime in 1932 devised the subject property to his two children. Yekini and Abake who survived him.
5. That the said Yekini and Abake died intestate without issues.

However, the following facts are in dispute:-
1. While the Appellants herein claim and led evidence to show that while Jinadu Balogun and Raliatu Abebi were uterine brother and sister, that is, full blood siblings, Jinadu Balogun and Ademuyiwa were paternal siblings, that is brother and sister of the same father. The Respondents contended at the lower Court that the Jinadu Balogun, Ademuyiwa and Raliatu Abebi are all full blood brother and sisters.
2. Also while the Appellants contended and led evidence to show that Ademuyiwa had two children namely Rufai and Shittu, the Respondents contended that Ademuyiwa’s children were three namely Rufai, Shittu and Aminu.

He submitted that credible evidence was led at the lower Court to show that Shittu Eruwon and Rufai died intestate without issues and that Shittu Ishola, Yusuf and Aminu were not children of Ademuyiwa but tenants at will on the subject property. He relied on the testimonies of Chief Abdul Ganiu Ajiboye Jaiyesinmi and Alhaji Surajudeen Jaji, whose evidence were not contradicted nor challenged. He cited American Cyramid vs. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt.171) 15. According to the Appellant, evidence of the Respondent through their witness Alhaja Idiat Olowora was contradictory to their pleading. That the evidence including the cross examination of the 1st respondent shows that the Shittu and Yusuf referred to by the Respondent is different from that referred to by the Appellant. He relied on Exhibit 7 where the deceased (Jinadu Balogun) alluded only to Shittu and Rufai Eruwon as children of Ademuyiwa. He thus urged the Court to intervene and set aside the decision of the trial Court.

Both issues articulated by the Appellant are both on the evaluation of evidence by the trial Judge. Therefore I will deal with both issues together.

The parties have placed their respective claims and defence before the Court. They have also fielded their witnesses and proffered evidence for and against their case. The claimants in the Court below had claimed that they were the only persons entitled to the property being and situate in No. 2 Smith Street, Lagos.

In Civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party fails to discharge this burden, then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case.

A party must prove its case on credible evidence of its witnesses and is not at liberty in Law to make a case or rely on the weakness of its opposite party in order to succeed. Iman vs. Sheriff (2005) 4 NWLR Pt.914 Pg. 80, Elias vs. Omo-Bare (1982) 5 SC Pg. 25, Agbi vs. Ogbeh (2006) 11 NWLR Pt.990 Pg. 65.

The Appellant had in his brief stated that the trial Judge did not evaluate the evidence adduced properly. However, I think the issue in this appeal is whether the defendants are the descendants of Ademuyiwa Eruwon who was a paternal sibling of Jinadu Balogun.

The claimants had the burden of proving that they were the rightful people to enjoy No. 2 Smith Street, Lagos to the exclusion of the Respondents who were supposedly descendants of a half sister of Jinadu Balogun.

The Appellants tried to prove that the Respondents were not entitled to the property. The Appellants claimed that the Respondents were tenants in the house and have no blood relationship with them.

The Appellants had the burden of proving that they had exclusive right to the property in issue. The Appellant could not prove their claim from the evidence of their claim through the evidence of their witnesses.

The Appellants claimed that Madam Ademuyiwa’s children died without issues of their own. Also that Ademuyiwa could not inherit from Jinadu Balogun since she was only of the same father with him. The Appellants claimed that Raliatu Abebi whom the Appellant’s claim under was a full blood sister of Jinadu Balogun.

The Appellants also claimed that in Yoruba Custom, only sibling of full blood could claim.

This assertion was very vehemenently countered by the Respondents. The Respondents claimed that both Raliatu Abebi and Ademuyiwa Eruwon were siblings of Jinadu Balogun. These two sisters had descendants that culminated in the Claimants/Appellants and the Defendants/Respondents.

The Respondents in proof of their case referred the Court to the Yoruba Customary Law of Inheritance.
“If the property of the deceased was inherited from his own father’s estate, and he died without issue, the maternal relations cannot inherit but his other paternal brothers or his uncles and other paternal relations. If from his mother’s estate his paternal relations cannot inherit”.
Suberu and Others vs. Sunmonu and Others (1957) NSCC pg.4 where the Supreme Court held as above.

The Respondents also submitted that:
“i. According to Yoruba custom when a man dies intestate without issue, leaving property which he himself inherited, the property devolves on members of the family from whom it came. If the deceased inherited it from a maternal ancestor it goes to his maternal relations, and if he inherited it from a paternal ancestor it goes back to his paternal relations.
ii. Property is thus traced to its original source.
Accordingly, upon the death without issue of Yekini and Abeke, the properties which they inherited from their father Jinadu Balogun reverted to Jinadu Balogun’s relations (i.e. Yekini and Abeke’s paternal relations), without discrimination as to how those relations were related to Jinadu Balogun”.

Learned counsel to the Respondent urged the Court to hold that the Respondents proved their own case whilst the Appellants were unable to discharge the burden placed on them by Section 131, 132 and 133 of the Evidence Act 2011. The Appellants’ assertion as regards succession does not align with the Supreme Court’s position in Suberu vs. Sunmonu (supra).

The Respondent’s counsel finally submitted that:
“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 pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of a Claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence”.

Learned counsel urged the Court to hold that the Appellant did not prove their claim in the Lower Court. Also to hold that Jinadu Balogun, Ademuyiwa Eruwon and Rabiatu Abebi were all children of the same parents. Therefore, the Appellants and Respondents are jointly entitled to the property.

The Appellant in proving their case against the Respondent could not shift the burden placed on them to prove their exclusive entitlement to the house at No. 2 Smiths Street, Lagos.

The learned trial Judge was thorough in his evaluation of the evidence placed before him having properly evaluated the evidence of the two witnesses put forward by the Appellant side by side with the one witness of the Respondents.

It is trite that evaluation of evidence is primarily the function of the 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. Adebayo vs. Adusei (2004) 4 NWLR Pt.862 pg. 44.

Having held that the trial Judge evaluated the evidence placed before it properly, I will not hesitate to hold that this issue is resolved against the Appellants.

This Appeal is lacking in merit. It is dismissed. I affirm the Judgment of the trial Court.

TIJJANI ABUBAKAR, J.C.A.: My learned brother UZO I. NDUKWE ANYANWU, JCA granted me the privilege of reading in draft the lead Judgment just delivered. I am in complete agreement with the entire judgment and adopt it as my own, I also hold the view that the appeal is bereft of merit and deserves to be dismissed, I therefore join my learned brother in dismissing the appeal.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the privilege of reading in draft the judgment of my Learned Brother, HON. JUSTICE UZO I. NDUKWE-ANYANWU and I agree with the reasoning made therein.

I just wish to emphasize that evaluation of evidence and the ascription of probative value to evidence are the primary functions of a Court of trial, which heard, saw and duly assessed the witnesses. The duty of the Court of Appeal is to find out whether there is evidence on record on which the trial Court could have acted upon. In the case of GBEMISOLA V. BOLARINWA NSCQR 57 (2014) 510, the Apex Court held as follows:
“In other words, the appellate court will not interfere with the finding of fact made by the trial court unless it is shown that such finding does not derive from the evidence before that court or is not related thereto.”

The Appellants have not shown sufficient reason why the Judgment of the trial Court be upturned. The trial Court properly evaluated the evidence before it and gave its findings.

For this and other reasons in the lead judgment, I too affirm the judgment of the trial Court and abide by the consequential orders made in the lead judgment.

Appearances

L.O. Kareem, U. EzeFor Appellant

AND

Respondent (Absent)For Respondent