YUSUF & ORS v. YUSUF
(2020)LCN/15826(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/K/555/2017
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
- MARY YUSUF 2. HARUNA YUSUF 3. SA’ADU YUSUF APPELANT(S)
And
ISIYAKU DANLAMI YUSUF (For Himself and On Behalf of Late Mal. Paul Amfani Yusufu Family) RESPONDENT(S)
RATIO:
POSITION OF LAW ON THE CREDIBILITY OF WITNESSES
It is indeed, the law, as submitted by the learned Counsel to the Respondent that the assessment and credibility of witnesses is the primary function of the trial Court, which heard and watched the demeanour of the witnesses. Where the evidence is properly evaluated, an appellate Court will be loath to disturb such findings. Where the decision is perverse, however, such as where the Court did not draw from evidence before it or the exclusion of relevant facts, the Appellate Court will readily interfere. See Gbemisola v Bolarinwa (2014) 9 NWLR Part 1411 Page 1 at 41-42 Para G-C per Ogunbiyi JSC; Abegunde v Ondo State House of Assembly (2015) 8 NLR Part 1461 Page 314 at 343-344 Para H-D per M.D. Muhammad JSC; Oleksandr v Lonestar Drilling Co Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B-C per Kekere-Ekun JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
WHEN AN APPELLATE COURT WILL DEAL WITH A CASE AS IF IT WAS A COURT OF FIRST INSTANCE AND MAKE ORDERS AS THE COURT BELOW OUGHT TO HAVE MADE
This procedure is resorted to by appellate Courts to avoid unnecessary delays in the settlement of disputes and has been held to be a potent and progressive means of quick dispensation of justice. See Ado Ibrahim & Co Ltd v Bendel Cement Co. Ltd (2007) 15 NWLR Part 1058 Page 538 at 560 Para B-C and 564 Para F-G per I.T. Muhammad JSC (as he then was), Esuwoye v Bosere (2017) 1 NWLR Part 1546 Page 256 at 313-314 Para D-C per Onnoghen JSC (as he then was), Salihu v Wasiu (2016) 5 NWLR Part 1506 Page 423 at 440 Para D-E per Ariwoola JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
WHEN WITNESS EVIDENCE IS NOT CROSS EXAMINED
This evidence is thus deemed to be true and established, the principle being that evidence which is not cross examined upon is deemed established and the Court is bound to act on it and it constitutes sufficient proof of a party’s claim. See Zubairu v. State (2015) 16 NWLR Part 1486 Page 504 at 527 Para C per Ngwuta JSC; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR Part 1182 Page 618 at 663, Para C-D per Muhammad JSC, Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at 22-23 Para A-C per Uwaifo JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State delivered on 8/2/17 by M.M . Ladan J in which judgment was given against the Defendants, the Appellants herein and in favour of the Respondent.
The suit at the lower Court by the Respondent, as Plaintiff, was instituted for himself and on behalf of the family of Late Paul Amfani Yusufu, against the Appellants, as Defendants, seeking, by their Statement of Claim filed on 2/6/14, injunctive reliefs against the Appellants and an order of ejectment.
Filed along with the Claim were depositions of witnesses.
The Respondents, by their Amended Statement of Defence, filed on 16/7/15, counter-claimed for declarations that as members of the family of the Deceased they are entitled to benefit from his estate and cannot be evicted therefrom.
While two witnesses testified for the Respondent, three witnesses testified for the Appellants. On conclusion of the trial, while the Appellants’ Counsel filed a Written Address, the Respondent’s Counsel informed the Court that he does not intend to address the Court and that he “stands by the evidence adduced”.
The Court, upon a consideration of the case before it, held the case of the Respondents proved and entered judgment in their favour, dismissing the Counter-claim of the Appellants.
Aggrieved, the Appellants filed a Notice of Appeal on 20/2/17, seeking the setting aside of the lower Court’s judgment and the grant of their claim.
In prosecution of the appeal, the Appellants’ Counsel, Dr. S.A. Apinega filed an Appellants’ Brief on 9/7/18.
The Respondent’s Counsel, A.Y. Mohammed Esq filed, on 11/2/19, a process termed “Preliminary Objection/Respondent’s Brief of Argument” encompassing a Preliminary Objection and arguments on the substantive appeal
I shall dispense summarily with the Preliminary Objection filed by the Appellant.
The Respondents’ Counsel submits that no leave of either the lower Court or this Court was sought for Grounds Nos 2 and 3 of the Notice of Appeal which contain facts or mixed law and facts. Issues Nos. 2 and 4 of the Appellants’ Brief which were distilled therefrom are thus incompetent and both the grounds and the said issues should be struck out. The Brief response to this and as contained in the Reply of the Appellant, filed on 4/3/19 is to refer the Respondents’ Counsel to Section 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), submitting that no leave is required to file an appeal to this Court, the judgment being the final judgment of the Court below sitting as a Court of 1st instance.
Sections 241 (1) and 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), provide as follows:
SECTION 241
[APPEALS AS OF RIGHT FROM THE FEDERAL HIGH COURT OR A HIGH COURT.]
1. An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
SECTION 242
[APPEALS WITH LEAVE.]
1. Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
The instant appeal emanated from the lower Court sitting as a Court of 1st instance, its final judgment of which is the subject of this appeal. From the statutes above, there is no requirement for leave to appeal. The grounds of appeal, I hold, are competent and so also are the issues distilled therefrom. I accordingly dismiss the Preliminary Objection of the Respondents as lacking in merit.
The issues for determination distilled in the Appellants’ Brief of Arguments are the following:
ISSUES FOR DETERMINATION
2.1 Whether the trial Court was right to grant the claim of perpetual injunction against the Appellants without first and foremost determining the title/right of the parties over the family land and flat occupied by the Appellants.
2.2 Whether the trial Court properly evaluated the evidence on record by limiting the areas of contention in the entire case to the issue of gift of late Mal. Paul Amfani Yusuf’s house to the female children and the meeting where the right of collecting GALLA (tribute) was taken away from the 1st Defendant/Appellant.
2.3 Whether the dismissal of the Appellants/Defendants Counter-Claim by the trial Court without determining its merit was right in the circumstance of the suit.
2.4 Whether in view of the entirety of the matter the finding of the trial Court that late Mal. Paul Amfani Yusuf made a gift of his house to his seven female children reflected the true position of the Defendants/Appellants evidence.
The Respondent adopted the Appellants’ issues for determination.
I shall accordingly, adopt these issues but shall take them all together as they are all linked.
The case of the Respondents, as Plaintiffs before the lower Court is that the Respondent and the late Joseph Stanley Yusufu, the husband of the 1st Appellant, are brothers and are children of the late Paul Anfani Yusufu (hereafter referred to as “the Deceased”). The 2nd and 3rd Appellants are the sons of the 1st Appellant and children of late Joseph Stanley Yusufu, (hereafter referred to as “Joseph Stanley”). The Deceased (Paul Anfani Yusuf) apart from the two male children, Joseph Stanley and the Respondent, also had seven female children. Sometime in 1980, before his death in 1981, the Deceased gave to the two male children, a piece of land lying at Wusasa, Zaria, while he gave the house he resided in, also at Wusasa, to the seven female children. The Deceased also had four farm lands which remain as family property and have not yet been distributed.
It was also the Respondent’s case that the 1st Appellant’s husband, before his decease in 2006, pleaded with one of their sisters, Halima Dorothy Yusuf, to give him part of their Estate, the family house to live in with his family. After his death, the Appellants continue to live in the property, “as licensees”. It was also agreed by all the family members that Joseph Stanley, being the most senior of them all, should be collecting rent (galla) of all the farm lands held as family property and which he was collecting and distributing until he died in March 2006. Following his death, all the family members agreed that his wife, the 1st Appellant, should continue collecting the rent for the purpose of the upbringing of her children, which children are now grown up and a number of them married.
In April 2014, at a meeting held, the family members rescinded their decision for the 1st Appellant to be collecting the “galla” (rent) and appointed the Respondent to collect the rent. He complained that the Appellants are disturbing the peaceful possession of the tenants occupying the farm lands, threatening to remove all the crops planted. The 1st Appellant is also proposing to make amendments to the flat they occupy as licensees and had even brought blocks and other building material. If the building is touched in any way, the old building would be damaged. All entreaties to them to desist from amending the structure has failed. They thereupon seek the following reliefs:
(a) An order of perpetual injunction restraining the Defendants either by themselves, Agents, Servants, Assigns, Privies and whosoever acting in their behalf from interfering in any way with the family farm lands and to amend the flat they occupied as licensees.
(b) Another (sic) ejecting the Defendants from the flat they occupied as licensees lying and situate at Wusasa, Zaria, Opposite Cemetery, Adjacent Cathedral St. Bartholomew Church Wusasa, Zaria.
(c) Cost of filing this suit. The Appellants in their Amended Statement of Defence filed on 16/7/15 admitted that the Deceased, Malam Paul Amfani Yusufu, gave a piece of land to his two male children, opposite ECWA Church, Wusasa Zaria. They however denied that a gift of the house was made to the female children. They also denied that they are licensees in the house, alleging that the late Paul Amfani Yusuf had insisted that the deceased husband of the 1st Appellant move back to the family house to live, so that the family can remain together, in consequence of which the Appellants have been living in the house as of right, being family members. They denied that there was any family meeting rescinding the decision on the collection of rent by the 1st Appellant. They also denied threatening any tenants on the farmland.
With regard to the intended renovation, they alleged that it was so proposed, that in view of the age of the 1st Appellant and the difficulties experienced in using the toilet facilities outside the house and which facilities were general to all, that a bathroom and toilet be built as an extension to her own flat. The 3rd Appellant informed their aunties and was advised by the eldest aunt “Goggo Halima” that an architect be brought to assess the strength of the building. This was done and the architect confirmed that the structural adjustment could be done without damaging the building. They were however later told by another aunt to desist from making any structural adjustments to the building, following which they stopped and had the building blocks, which had been bought in preparation, removed. They denied that they had carried out any construction, which construction, in any event would have been for the benefit of all.
They contended that under Fulani culture, to which they all belong, female children are not entitled to family property, especially landed property. Also, under this culture, female children can only reside and use family property when they are not married. They further contended that the property of the deceased, Paul Amfani Yusufu, remains indivisible family property up till the present. They accused the Respondents of attempting to deprive them of their rights and interest in the family property. In furtherance of their aim, the Respondent, they said, had usurped the collection of rents from the tenants on the family property and also other income from the farmlands, without giving the Appellants their share nor accounting for any of the collections.
They thus counter-claimed as follows:
(a) A declaration that the plaintiffs being bonafide members of late Mal. Paul Amfani Yusufu have inherent rights and interest in all the family property of the said late Mal. Paul Amfani Yusufu.
(b) A declaration that the Plaintiffs being bonafide family members of Mal. Paul Amfani Yusufu cannot be ejected from or deprived of any of the family property including the flat they co-occupy with the other female family members.
(c) A declaration that unless and until the family property of late Mal. Paul Amfani Yusufu ceases to be family property by whatever means, the defendants have the right to use same and share in the accrued proceed from the family property.
(d) An order of perpetual injunction restraining the Plaintiff either by themselves, or agents, servants, assigns, privies and whoever acting on their behalf from interfering in any way with the family farmlands in a way that is detrimental to the rights and interest of the Defendants, and the Defendants’ quiet use, occupation and enjoyment of the family house situate opposite the cemetery and adjacent to St. Bartholomew church, Wusasa.
(e) The cost of prosecuting this suit.
The Appellant’s Counsel drew the attention of the Court to an affidavit filed on behalf of the Appellants challenging the correctness of the Record of Proceedings with regard to some excerpts of the evidence of the 1st Appellant, who testified as DW3, and the evidence of DW1, the 2nd Appellant, wherein DW3 allegedly admitted that she is aware her father-in-law “gifted” the house to the female children or that they alleged that they inherited any farmland.
The Appellant’s Counsel has argued that the claim of the Respondents for an order restraining the Appellants from amending the flat they occupy cannot validly warrant or lead to an order of ejectment. This can also not be done without first determining the rights of the parties over the family property. By the grant of the order for perpetual injunction against the Appellants, they have been totally deprived of the enjoyment of their rights over the family property. A claim for injunction, he contended automatically puts the title of the parties in issue. He cited the cases of Adeyefa v Bamgboye (2014) 11 NWLR Part 1419 Page 520, Chukwu v Akpelu (2014) 13 NWLR Part 1424 Page 359 at 381 Para A-C, Anekwe v Nweke (2014) 9 NWLR Part 1412 Page 393.
Appellants’ Counsel pointed out that the Respondent did not file a defence to the Appellants’ Counterclaim. He accused the lower Court of failing to consider the issues raised in the Counterclaim, limiting itself instead to the issue of purported gift of the flat occupied by the Appellants to the female children and which of the parties is entitled to collect “galla” over the family land and merely dismissing the Counter-Claim, without a determination of the rights of the Appellants in the property.
The Respondent’s Counsel submitted, in response, that the lower Court was right to make the order of ejectment. He denied that the lower Court did not determine the issue of title and the rights of the parties, alleging that the Court took into consideration the evidence of the Respondent’s witnesses that the property belonged exclusively to the female children and that the Appellants were licensees. The Appellants’ were therefore in error to contend that exclusive title in the children was not proved.
Counsel contended further, that the Court did not take away from them the fact that they are members of the family of Paul Amfani Yusufu, neither was there any claim by the Respondent that they are not members of the family but that the grievance was their right to collect galla in respect of the family land on behalf of the entire family, the Court coming to the conclusion that it is the Respondent as the eldest surviving male that is best placed to collect the tribute on behalf of the family. The Court thus held that the meeting of April 2014 where the Respondent was appointed to collect the tribute on behalf of the family was valid, notwithstanding the absence of the Appellants at the meeting.
It was Counsel’s further submission that evaluation of evidence is the sole responsibility of a trial Court and where the trial Court evaluates evidence and arrives at a decision, the Appellate Court does not normally interfere unless it is shown to be perverse.
He cited Ayan v State (2016) EJSC Vol 33 Page 117, Zaccala v Edosa (2018) All FWLR Part 926 Page 123, submitting that an Appellant who appeals on the basis of improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. This, they have failed to do. The Court, he further argued, is not bound to adopt the issues formulated by Counsel but can formulate his own.
On the contention of the Appellants that their Counter Claim was not determined on its merits, referred to the judgment of the lower Court and submitted that the Counter Claim of the Appellants was centered on their claim that the properties are jointly owned by the Respondent and the Appellants. DW3 (1st Appellant), under cross examination, however, admitted under cross examination, thus contradicting herself, by admitting that her father-in-law “gifted” his house to his seven female children thus destroying the foundation of their counter claim in respect of the house.
The burden of proof which was on the preponderance of evidence, rendered the Respondent’s case preferable and it was rightly preferred by the lower Court.
On the alleged error of record as alleged by the Appellants, the Appellants, Counsel submitted, needs to produce fresh evidence. Having sought no leave before raising this fresh issue, the issue is incompetent, he argued.
To recap, the claim of the Respondent before the lower Court, in summary, was for an order of interlocutory injunction restraining the Appellants from interfering with the family farm lands and amendment of the flat they occupy “as licensees”. Also sought was an order to eject them from the flat, being licensees.
The Appellants, by their Counter-claim sought declarations that they are bona fide members of the deceased’s family with rights in the family property and that as members of the deceased’s family, they cannot be ejected from the flat they occupy or deprived of any of the family property. They further sought a declaration that they have the right to share from the accrued proceeds from the family property and an order of injunction restraining the Respondent from interfering with the farmlands in a way detrimental to their (Appellants) interest.
The lower Court, in its judgment, following a review of the evidence of the witnesses and the written address of Counsel to the Appellants, the Respondent’s Counsel having informed the Court that he did not intend to address the Court, held the areas of contention from the evidence adduced by the parties to be:
“1. The gift of late Mal. Paul Amfani Yusufu’s house situated at Wusasa opposite Cemetery and adjacent Cathedral St. Bartholomew Wusasa to his seven female children.
2. The meeting of the Plaintiff and his sister in April, 2014 where the right of collecting GALLA ‘tribute’ was taken away from the 1st Defendant, who was not part of that meeting so her children (sic).”
It thereupon distilled as the issues for determination, the following:
1. Whether or not the gift made by Mal. Paul Amfani of his House to the female children can stand.
2. Whether or not the meeting of the family members of late Mal. Paul Amfani Yusufu without the Defendants where it was decided that the Plaintiff should now be responsible for collecting GALLA from the farmland, was valid. If the meeting is declared by the Court at the end of the day who then should be responsible for collecting the GALLA “TRIBUTES”.
The Court, resolving the 1st issue for determination in favour of the Respondent, held it proved from the evidence before him that the Deceased made a gift of the family house to the female children, holding consequently that this gift to his seven female children of the house at Wusasa, stands.
With respect to the 2nd issue, it held it agreed by all parties that the farmlands belong to the entire family consisting of the Respondent, the female children and the Appellants, all being descendants of the deceased. The Court held it proved that, after the death of the Deceased, the 1st Appellant’s husband, being the eldest male child, by agreement of the parties, collected “Galla” and shared it among the entire family.
It thereupon held at Pages 141-143 of its judgment, as follows:
“Now that Mal. Stanley Joseph Yusufu is no more, naturally the person who should be responsible for collecting “GALLA” is the Plaintiff, being the eldest male child of the family. It’s my humble view that it will be against the natural Justice, equity and good conscience if the Court decides that the 1st defendant, wife of late Stanley Joseph Yusufu to be collecting GALLA while the Plaintiff is still alive. It’s my view that the 1st defendant cannot take precedence over the plaintiff, the other female children of late Mal. Paul Amfani Yusufu.
I therefore hold that meeting of the family members held in April, 2014 wherein the plaintiff was appointed to now collect the GALLA is valid and stands. Notwithstanding the presence of the 1st defendant and her children the 2nd & 3rd defendants.
In the event that the plaintiff dies, it’s natural that late Mal. Paul Amfani Yusufu will have no any other male child. In that situation common sense dictates that the eldest male grandchild of late Mal. Paul Amfani Yusufu should now be responsible for collecting GALLA to be shared amongst the family members of late Mal. Paul Amfani Yusufu. I believe that if that sequence is followed judiciously and judicially, there would be justice at the end of the day.
I accordingly resolve issue No.2 in favour of the Plaintiff and against the defendants.
On the whole, I hold that the plaintiff has proved his case on the preponderance of evidence. Accordingly Judgment is entered for the plaintiff against the defendants in the following terms:-
1. An order of perpetual injunction is made restraining the defendants either by themselves, Agents, Servants, Assign, Privies and whosoever acting on their behalf from interfering in any way with the family farmland and to amend the flat they occupied as licensee.
2. An order is made ejecting the defendants from the flat that they occupied as licensee lying and situated Wusasa Zaria, Opposite Cemetery adjacent Cathedral St. Bartholomew Church, Wusasa Zaria.
3. The defendants shall pay the cost of this suit.
In the same vein, the counter claims of the defendants fail and it’s hereby dismissed.”
It is indeed, the law, as submitted by the learned Counsel to the Respondent that the assessment and credibility of witnesses is the primary function of the trial Court, which heard and watched the demeanour of the witnesses. Where the evidence is properly evaluated, an appellate Court will be loath to disturb such findings. Where the decision is perverse, however, such as where the Court did not draw from evidence before it or the exclusion of relevant facts, the Appellate Court will readily interfere. See Gbemisola v Bolarinwa (2014) 9 NWLR Part 1411 Page 1 at 41-42 Para G-C per Ogunbiyi JSC; Abegunde v Ondo State House of Assembly (2015) 8 NLR Part 1461 Page 314 at 343-344 Para H-D per M.D. Muhammad JSC; Oleksandr v Lonestar Drilling Co Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B-C per Kekere-Ekun JSC.
I have no reason to question the grant by the lower Court of its order or perpetual injunction restraining the Appellants from interfering with the family land and the alteration of the flat they occupy.
This is because, the evidence accepted by the lower Court is that further to the death of the 1st Appellant’s husband, who had been collecting galla from the land and distributing the proceeds to all members, on his death the 1st Appellant was allowed to continue this role for the purpose of the upkeep of her children. At a later meeting held of the family members, however, albeit without the presence of the Appellants, it was decided that the Respondent should take over this role, being the only male.
The lower Court’s acceptance of the decision at this meeting, in particular as the Respondent was the eldest male child, following the death of his brother when it was clear that the 1st Appellant had been collecting the galla and dealing with the tenants, can also not be faulted by me.
The grant of an order of perpetual injunction restraining the Appellants from interfering with the family land, in order to protect the right of the Respondent to collect the galla on behalf of the family, which right was being disputed by the 1st Appellant, is accordingly in order and upheld.
The order of restraint of amendment or alteration of the flat occupied by the Appellants, is a mere surplusage, the Appellants having conceded that they had ceased all moves at modification, upon opposition from one of the sisters but is not also faulted.
I however, agree with the learned Counsel to the Appellants that the lower Court did not take the Appellants’ Counter-claim into consideration. The issues raised in the Counter-claim are with regard to the rights of the Appellants in the family property and their entitlement to benefit from the property of the Deceased. Also not considered was the question of their entitlement to live in the family house.
The preoccupation of the lower Court was the right of the Respondent to collect galla and that the gift of the family house was to the female members of the family. No mention was made of the status of the Appellants in the house, whether they were licensees or had proprietary rights in the family property entitling them to not only occupy the property but to share in the proceeds together with the rest of the family. Without resolving this issue in favour of the Respondents, the order evicting them from the flat they occupy in the property cannot stand, I hold.
Not only did the lower Court not deliberate on this issue of whether they were licensees, the Court also failed to deliberate on the Appellants’ claim that they were entitled to share from the proceeds of the other property, being beneficiaries of the estate. This, I hold, was an error, the failure of which consideration may possibly effect the order of ejectment made by the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The judgment, as regard the non treatment of the Counter Claim of the Appellants was indeed perverse, for which this Court can intervene, I hold.
In a situation as this, this Court, rather than send the case back to the lower Court for a retrial, may, considering the age of the case which was commenced before the lower Court in 2014, may, by Section 15 of the Court of Appeal Act 2004, deal with the case as if it was a Court of first instance and make orders as the Court below ought to have made.
This procedure is resorted to by appellate Courts to avoid unnecessary delays in the settlement of disputes and has been held to be a potent and progressive means of quick dispensation of justice. See Ado Ibrahim & Co Ltd v Bendel Cement Co. Ltd (2007) 15 NWLR Part 1058 Page 538 at 560 Para B-C and 564 Para F-G per I.T. Muhammad JSC (as he then was), Esuwoye v Bosere (2017) 1 NWLR Part 1546 Page 256 at 313-314 Para D-C per Onnoghen JSC (as he then was), Salihu v Wasiu (2016) 5 NWLR Part 1506 Page 423 at 440 Para D-E per Ariwoola JSC.
The issue is thus whether the Appellants are licensees on the property and whether they are entitled to share in the proceeds from the farmland.
With regard to whether the Appellants are licensees, the evidence before the lower Court and which the lower Court accepted as true, is that the family house was given to the female children of the family by the Deceased. Notwithstanding, the errors in the Record of the Court, as alleged by the Appellants’ Counsel, as indicated earlier, I have no reason to fault this decision of the lower Court.
In Paragraph 9 of the Respondent’s Statement of Claim, at Page 4 of the Records, it was averred as follows:
“The said late Mal Joseph Stanley Yusufu some years ago pleaded with their sister by name Halima Dorothy Yusuf, after the demise of their late father, to give him part of their estate, the said family house to live in with his family i.e. the Defendants as a licensees (sic) and even after the demise of the said late Mal Joseph Stanley Yusuf the descendants are still staying as licensees in the said house”
The Appellants, in Paragraph 8 of their Statement of Defence, however denied this, averring as follows:
“The Defendants deny paragraph 9 of the Plaintiffs Statement of Claim and further states that Malam Paul Amfani insisted that the Late Mal. Joseph Stanley Yusufu moved back to the family house so that the family can remain together and the Defendants have been residing in the same house for over 20 years as of right being family members.”
The witness deposition of the 1st Appellant (DW3), at Page 50 of the Record, at Paragraphs 6, 7 and 8 is as follows:
“6. That the late Paul Amfani Yusuf during his life time and reign as Sarki Wusasa persuaded my husband to come back to Zaria.
7. That after much pressure, we moved back to Wusasa and settled in the house in dispute together with the Plaintiff and his family and my sisters in law but the Plaintiff however left the house and moved to this present residence at Hanwa Road GRA Zaria.
8. That sometime in 1987, we had to leave the house because it got burnt during the religious crisis and moved back into the house after the Federal Government paid compensation to victims of the crisis, the money was paid to my husband who reconstructed the burnt house, we then moved in with my sisters-in-law and we have been staying in the said house till date.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The witness was not cross examined on these averments. This evidence is thus deemed to be true and established, the principle being that evidence which is not cross examined upon is deemed established and the Court is bound to act on it and it constitutes sufficient proof of a party’s claim. See Zubairu v. State (2015) 16 NWLR Part 1486 Page 504 at 527 Para C per Ngwuta JSC; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR Part 1182 Page 618 at 663, Para C-D per Muhammad JSC, Adeleke v. Iyanda (2001) 13 NWLR Part 729 Page 1 at 22-23 Para A-C per Uwaifo JSC.
From this unchallenged evidence, the Appellants have proved that they have proprietary interest in the property and cannot be termed licensees. This, I hold, is irrespective of whether the property was “gifted” to the female members or not. This gift, I hold, was subject to the occupation and possession of the flat by the Appellants. Indeed, whatever gift of the property was made by the deceased, by the unchallenged evidence of the 1st Appellant, the property was destroyed and rebuilt by her husband whereupon they and her sisters-in-law have been living therein since then.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The Respondent under cross examination agreed that it was the 1st Appellant’s husband that collected compensation when the property was destroyed during the crisis.
It is thus clear that the Appellants were living in the property as of right and were not licensees. The lower Court was thus in grave error to have ejected them from the property.
With regard to their right to benefit from the property, it has not been disputed that the Appellants are beneficiaries of the farmlands.
The lower Court held:
“On issue No.2 which I formulated, the issue is simple. Parties in their various evidence have agreed that those farmlands belong to the entire family. There’s no doubt that the entire family are:-
1. The Plaintiff
2. The female children
3. The defendants.
Now that Mal Stanley Joseph Yusufu is no more, naturally the person who should be responsible for collecting “GALLA” is the Plaintiff, being the eldest male child of the family. It’s my humble view that it will be against the natural justice, equity and good conscience, if the Court decides that the 1st Defendant, wife of late Stanley Joseph Yusufu to be collecting GALLA while the Plaintiff is still alive. It’s my view the 1st Defendant cannot take precedence over the Plaintiff, the other female children of late Mal. Paul Amfani Yusufu.
I therefore hold that the meeting of the family members held in April, 2014 wherein the plaintiff was appointed to now collect the GALLA is valid and stands. Notwithstanding, the presence of the 1st Defendant and her children, the 2nd & 3rd Defendants.
In the event that the plaintiff dies, it’s natural that late Mal. Paul Amfani Yusufu will have no any other male child. In that situation, common sense dictates that the eldest male grandchild of late Mal. Paul Amfani Yusufu should now be responsible for collecting GALLA to be shared amongst the family members of late Mal. Paul Amfani Yusufu. I believe that if that sequence is followed judiciously and judicially, there would be justice at the end of the day.
I accordingly resolve issue No. 2 in favour of the plaintiff and against the defendants.
On the whole, I hold that the plaintiff has proved his case on the preponderance of evidence. Accordingly judgment is entered for the plaintiff against the defendants in the following terms:-
1. An Order of perpetual injunction is made restraining the defendants either by themselves, Agents, Servants, Assigns, Privies and whosoever acting on their behalf from interfering in any way with the family farmland and to amend the flat they occupied as licensee.
2. An Order is made ejecting the defendants from the flat that they occupied as licensee lying and situated Wusasa Zaria, Opposite Cemetery adjacent Cathedral St. Bartholomew Church, Wusasa Zaria.
3. The defendants shall pay the cost of this suit.
In the same vein, the counter claims of the defendants fail and it’s hereby dismissed”.
As testified to by the Appellants and not challenged or controverted by the Respondent, the proceeds from the property are not being distributed to them. This, I hold, is grossly inequitable.
Indeed, I find it strange that members of the same family can treat the wife and children of their eldest brother in such a manner and would be content to throw them out of the family house which they have occupied for about 14 years and also deprive them of their share of income from the family estate.
I hold the Counterclaim proved and grant same, with a variation to the 4th prayer for injunction, which I shall set out hereunder.
Before concluding, I must comment on the language used by the Appellant’s Counsel in referring to the trial Judge. At pages 4 and 6 of his Brief, he accused the trial Judge of being “so naive to understand that the claims for injunction and ejectment had no basis…” and of “ridiculously” making orders of injunctions against the Appellant. This manner of referring to an honourable Judge is severely deprecated.
Counsel can complain of a judgment without descending to abuse of the judge. This must never happen again.
Having so said, this appeal succeeds in part.
With respect to the Respondent’s claim, while the 1st order of the lower Court is affirmed, the 2nd order ejecting the Appellants from the flat they occupy is set aside.
The Counter claim succeeds in part, as follows:
(a) A declaration is granted that the Appellants, being bonafide members of late Mal. Paul Amfani Yusufu have inherent rights and interest in all the family property of the said late Mal. Paul Amfani Yusufu.
(b) A declaration is granted that the Appellants being bonafide family members of Mal. Paul Amfani Yusufu cannot be ejected from or deprived of any of the family property including the flat they co-occupy with the other female family members.
(c) A declaration is granted that unless and until the family property of late Mal. Paul Amfani Yusufu ceases to be family property by whatever means, the Appellants have the right to use same and share in the accrued proceeds from the family property.
(d) An order of perpetual injunction is granted restraining the Respondents either by himself, their agents, servants, assigns, privies and whoever acting on their behalf from interfering in any way detrimental to the rights and interest of the Appellants, and their quiet use, occupation and enjoyment of the family house situate opposite the cemetery and adjacent to St. Bartholomew Church, Wusasa.
The parties shall bear their respective costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the privilege of reading in draft the lead judgment by my lord Oludotun Adebola Adefope-Okojie JCA. I agree with the reasoning and conclusions contained in that lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA.
I agree with reasoning and conclusion reached in the judgment.
The appeal is therefore allowed. I abide by the consequential orders made in the judgment.
Appearances:
Dr. S. A. Apinega Esq. For Appellant(s)
A. Add’au Esq. holding brief of A. Y. Mohammed Esq. For Respondent(s)