PHILIP ADEBOMI ADEOSUN v. ADEKUNLE ADEOSUN & ORS
(2014) LCN/6982(CA)
RATIO
LAND LAW: ONUS OF PROOF ON A DECLARATION OF TITLE TO LAND
I have not found any evidence placed before the court conclusively proving the Plaintiff’s root of title and ownership of the land in dispute. This was not done in this case. It is however settled that in a suit for a declaration of title the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of Defendants case (see KODILINYE v. ODU (1935) 2 WACA 336: WOLUCHEM v. GUDI (1981) 5 SC 291 (SUPRA).
It is noted that from the argument proffered by Appellant’s learned counsel he is of the right view that the law has been long settled that the quality of evidence has nothing to do with the number of witnesses called. But rather the assessment of evidence is about the quality of evidence which deals with the quality of the testimonies of witnesses.
He cited in aid of his contention the decision of the Apex Court Per Nnemeka Agu, JSC in the case of EKWUNIFE V. WAYNE (WA) LTD (1989) 5 NWLR (PT.122) 422: “All that he could testify to was based on the file copies of these documents and speculation as to what his company should usually do. As a matter of law, when we talk about putting evidence called by either side on a balance, what ought to be compared is credible evidence usually of the same quality. Direct evidence cannot be compared with hearsay and speculative guess work. I am bound to hold therefore, that on the state of the facts before the court, the evidence called by the Appellants went one way, as un-contradicted”.
Also dealing with this issue in ODOFIN V. MOGAJI (1978) NSCC 275 Fatai Williams JSC (as he then was) stated thus: “in short, before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the Appellant on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities.
Therefore, in determining which is heavier, the Judge will naturally have regard to the following:
a. (a)Whether the evidence is admissible
b. (b) Whether it is relevant
c. (c) Whether it is credible
d. (d) Whether it is conclusive
e. (e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted” Per FATIMA OMORO AKINBAMI, J.C.A.
PRACTICE AND PROCEDURE: POWER OF THE COURT TO MAKE CONSEQUENTIAL ORDER
The power of the Court to make consequential orders as the justice of a case demands on its own motion though to be exercised with circumspection also exists. One of the inherent powers of the Court is to make consequential orders. Now a consequential order is one which flows directly and naturally from the decision or order of Court made on the issues in litigation and inevitably consequent upon it.
A consequential order is one giving effect to a judgment or order to which it is consequential. See OBAYAGBONA V. OBAZEE (1972) 5 SC 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made.
Every Appellate Court has the right and in fact the duty and obligation to make any consequential order in the interest of justice and it is irrelevant that that particular order was not specifically asked for by either party to the appeal. PRINCE YAHAYA ADIGUN & ORS V. AG OF OYO STATE & ORS (1987) 1 NWLR (PT.53) 678. CHIEF EBENEZER ANOLE & ORS V. S. K. OWODUNNI & ANOR (NO 2) (1981) 2 NWLR (PT.57) 367. Per FATIMA OMORO AKINBAMI, J.C.A.
