ODIEDI v. ONORIKUTA & ORS (2020)

ODIEDI v. ONORIKUTA & ORS

(2020)LCN/15347(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/AS/161/2015

RATIO

LAND LAW: POSITION OF THE COURT WHERE PARTIES MAKE OPPOSING CLAIMS TO LAND AND A WITNESS GIVES EVIDENCE PARTICULARLY WHEN THE WITNESS IS CALLED BY A PARTY GIVES EVIDENCE AGAINST THAT PARTIES’ INTEREST

Where parties make opposing claims to land and a witness gives evidence particularly when the witness is called by a party gives evidence against that parties’ interest, the evidence will be regarded as one against interest. SeeChief Maxwell Dajpiri Odi & Ors Vs. Iyala(supra). See also Akomolafe Vs. Guardian Press Ltd (Printers) (2010) ALL FWLR (pt 517) 773 at 784. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

LAND LAW:: CONDITIONS TO PROVE A GIFT OF LAND INTERVIVOS

To prove a gift of land intervivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses which was not the case in the matter at hand. The gift of land under customary law is the gratuitous transfer and handing over of land by the owner (donor) to the donee in the presence of witnesses and acceptance in the presence of witnesses with much publicity. See Bankole V. Tapo (1961) ALL NLR Page 140, Hammod V. UAC Ltd (1935) 2 WACA, page 385- Kwakuwah V. Nayenna (1938) 4 WACA 165. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. COCOA ODIEDI (For Himself And On Behalf Of ODOKO Family Of Ozoro) APPELANT(S)

And

1. VOTE ONORIKUTA MR. KENNEDY ONORIKUTA EGUARE STEPHEN MRS. JOSEPHINE AREH MR. AKENI SOLOMON MR. IJERUKEWE SIR. J. D. OKOH RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): These appeals are the expression of the dissatisfaction of the Appellant herein and the Cross-Appellant with the Judgments of Honourable Justice M. Umokoro, J. as he then was of the Delta State High Court, Asaba Division, (now the Chief Judge, Delta State) delivered on the 23rd day of February 2015 dismissing the claims and counterclaim. The Appellant was the plaintiff while the Respondents were the Defendants. The plaintiff called 6 witnesses while the Defendants called 10 witnesses and counterclaimed. Documents were also tendered, and written addresses filed and exchanged and adopted at the hearing.

Thereafter, judgment, was entered dismissing both the claim and the counterclaim.

The Appellant had at the trial Court sued for himself and on behalf of the Odoko family of Ozoro claiming as the rightful owners of the piece or parcel of land known and called Oviedegbe or Okpaka lying and situate at Ozoro.

The Appellants also prayed the Court to set aside as null and void, any transaction or lease in respect of any part of the disputed land by the 1st and 2nd Respondents to the 3rd – 7th Respondent or any person yet unknown to the Appellant. Appellant filed a statement of claim and an amended consequential reply to the further amended statement of Defence and Defence to Courter claim, whilst the Respondent also filed a further Amended statement of Defence and counter claim. Appellant also filed a Reply Brief on 29-3-2019 which was deemed filed and served on 16-3-2020 by motion granted on that date.

The gravamen of the Appellants’ claims is hinged on inheritance of the land from Isiokpo who was said to be a female and daughter of Abrata who had founded the land and given out same as a bridal or marriage gift to his daughter Isiokpo who farmed on the land with her children and thence a devolution of same to the descendants who also have continued to exercise acts of ownership over the land by cultivation until the 1st and 2nd Respondents started selling portions of the land to persons including the 3rd – 7th Respondents.

The Respondents’ case is that the Appellant’s great grandfather, Odoko who was married to Isiokpo, was originally from Oleh and not Ozoro and as such the Appellants who are maternally linked to Ozoro cannot have any share in the land in dispute. The Respondents stated that the land was founded by king Oyovie Adovie and devolved on his descendants and they, the 1st and 2nd Respondents are great grandchildren of King Oyoview and in exercise of their ownership right of Oyovie family land they sold portions of the land to the 3rd and 4th Respondents who have built on the land.

For clarity, the respective claims are reproduced herein under as follows:
“1. A declaration that the Plaintiff is the owner in possession of a piece or parcel of land known and called OVIEDEGBE OR OKPAKPA lying, being and situate at Ozoro, a place within the jurisdiction of this Honourable Court; and therefore entitled to statutory right of occupancy over the aforementioned piece of land.
2. An order of any Court setting aside as null and void any sale, lease and/or any transaction(s) in respect of any part(s) of the aforementioned piece of land by the 1st and 2ndDefendants, their agents, servants and/or privies to the 3rd– 7thDefendants and any other person yet unknown to the Plaintiff.
3. An order of perpetual injunction restraining the Defendants, their servants, agents and/or privies from further trespassing on the said piece or parcel of land.
4. The sum of N2,000,000.00 (Two Million Naira) as damages for trespass.
5. Any legal or equitable relief(s) that this Honourable Court may deem fit to make in the circumstances”

The Respondents/Cross-Appellants counter claim are as follows:
(a) A declaration that the 1st and 2nd Defendants who are the descendants of Oyovie family of Ozoro are beneficial owners in title and in possession and also entitled to Certificate of Statutory Right of Occupancy in respect of all that piece or parcel of land known and called Oyovie family land lying at Egbe-Ogbo bush in Erovie quarters, Ozora.
(b) An order of perpetual injunction restraining the Claimant their agents, servants, privies etc. for trespassing on the Defendants’ Oyovie family land and or laying claim to same.

Dissatisfied with the judgment the Notice of Appeal was filed on 8th May, 2015 and amended and filed on 23-9-2015 but deemed filed on 22-3-2016.

GROUNDS OF APPEAL:
The learned trial judge erred in the law in dismissing the Plaintiffs claim that
Plaintiff failed to prove his title to the dispsuted land by way of traditional evidence.
PARTICULARS OF ERRORS
a) The learned trial judge erred in law by failing to realize that the Plaintiff who had proved (i) the founder of the land in dispute, (ii) how it was founded and the names and particulars of successive owners through whom he lay claim with credible evidence he established title by traditional evidence
b) The learned trial judge erred in law by failing to consider the admission of the Defendants witness (DW) that the land in dispute is armed by Plaintiff Plaintiff’s land.
c) The Appellant was able to establish that a betrothal gift exist in Isoko,
2. The judgment is against the weight of evidence.
3. The learned trial judge erred in law when he failed to evaluate the evidence adduced by the Appellant and his witnesses at the trial before reaching his decision.
PARTICULARS OF ERROR
a) The judge has a duty to place the evidence abduced by both parties on an imaginary scale to weigh them and see which is heavier
b) The trial judge without evaluating the evidence on record reached a conclusion on the matter without considering the evidence duly led by the parties.
c) That the cogent evidence led by the Appellant in support of his case where not given due appraisal by the judge who misapprehended the case of the Appellant.
4. The learned trial judge erred in law when he held that there was no evidence as to what constitutes betrothal gift.
PARTICULARS OF ERROR
a) Neither the Appellant nor the Respondents raised the issue in their pleading on the constituents of a betrothal gift.
b) The trial Court is only bound by the pleadings and evidence before the Court.
c) The parties adduced evidence based on their pleaded facts.
RELIEF SOUGHT FROM THE COURT OF APPEAL:
AN ORDER of this Honourable Court allowing this appeal and setting aside part of the order of the trial Court dismissing the Appellant’s case.
A Notice of cross-appeal was also filed on 4-4-2016
GROUND I
The Learned trial judge erred in law by holding that the Defendants counter-claim was vague and that it (ailed to show how the land devolved upon the Defendants through successive owners.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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PARTICULARS
(a) The Learned Judge failed to consider and evaluate all the testimonies of the Defendants witnesses before reaching his conclusion.
(b) The Learned Judge showed some bias in his handling of the Defendants’ case; seepage 10 at paragraph 2 of the Judgment where His Lordship said “True to type,…..”
(C) The Learned trial Judge inaccurately recorded or misinterpreted the evidence of DW1 during cross-examination. The correct position is that, “The DW1 admitted that:
The land on which my house is built belongs to me but one in dispute belongs to them.
(d) The evidence of DW1 was essentially to establish that the Defendants’ family sold his part of the land in dispute to him.
GROUND II
The Judgment is against the weight of evidence.
PARTICULARS
a) The learned trial Judge totally ignored the pleadings and contents of the Exhibits
(4) RELIEF SOUGHT FROM THE COURT OF APPEAL
An order setting aside the judgment of the lower Court as it concerns the dismissal of the Defendants’ Counter claims on all grounds, and an order awarding the Defendants/Counter-claimants as per their counter-claim as per their amended Statement of Defence and Counter-claim dated 27th July, 2010.

Upon these processes the record of Appeal was duly compiled and transmitted on 30-6-2015 and the Appellants’ Brief, Respondents’ Brief and the Appellants’ Reply Brief along the cross Appellants’ Brief and the cross-Respondents’ Briefs of Argument were respectively filed and served.

I shall proceed to take the substantive Appeal first.

MAIN APPEAL
By the Appellant’s Brief of Argument deemed filed on 22-3-2016 which was settled by Olayiwola Afolabi Esq, of Olayiwola Afolabi & Co. the Appellant articulated three (3) Issues for our determination. They are:
1. Whether having regards to the entire proceedings the learned trial judge demonstrated a dispassionate and impartial consideration and evaluation of the case presented by the Appellant (Ground 3).
2. Whether the Appellant had successfully discharged the onus pleaded on him by proving that he is entitled to the land in dispute and whether the learned trial judge was right in rejecting the case presented by the Appellant as been weak and unsustainable (Ground).
3. Whether having regard to the state of pleadings and evidence adduced in establishing the matter, the trial Court was right in upon an inquiry into the constituents of the betrayal gift from Ground four.

The Respondents by their Respondents’ Amended Brief of Argument adopted the Appellant’s Brief of Argument, but with slight variation and as follows:
i) Whether or not the trial Judge fully and adequately evaluated the totality of the evidence – adduced by the plaintiff before he dismissed the plaintiff’s claim.
ii) Whether or not the learned trial Judge rightly rejected the case of the plaintiff being weak and unstable to successfully discharge the onus placed on him.
iii) Whether the learned trial Judge was right to inquiry (sic) into the constituents of the bethrothal gift being the root of plaintiff’s title.

The Issues being the same, I shall be content to determine the appeal on the Appellant’s Issues bearing in mind that the Issues are surely more clearly expressed in the Respondent’s Brief of Argument as relating the phraseology thereof but without altering the meaning and intendment or purport.

Arguing the Issue No. 1 the Appellant’s Learned Counsel submitted that before arriving at a decision the trial Judge should appraise the totality of the evidence adduced by parties before reaching a conclusion and thus forming a decision that a balance must be maintained, as a referee would do in the game of soccer. Relies on Odutola & Ors Vs. Mabogunje & Anor (2013) vol. 219 LRCN Pt 1 133 Mogaji V. Odofin (1978) 4 Section 91 at 94 where the Supreme Court speaking on evaluation of evidence said:
“In short before a Judge before whose evidence is adduced by parties 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 imaginary scale; he would put the evidence adduced by the plaintiff on one side of the scale and that of the Defendant on the other side of the scale and weighed them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of the probative on the testimony of those witnesses.”

The decisions in Mini Lodge Lodge Ltd V. Ngei (2010) vol. 182 LRCN 172 at 200-201; per Adekeye JSC; Mkpinang & Ors V. NDEM & Ors (2013) Vol. 215 LRCN 130 at 143 per Fabiyi JSC and Owoade V. Omitola (1988) 2 NWLR (pt 177) andAromire Vs. Awoyemi (1972) 1 ALL NLR (pt 1) 101 to the same effect as the locus classicus in Mogaji V. Odofin, supra were also referred and the findings of the trial Judge upon his appraisal of the case and as found on pages 163-167 of the Record of Appeal was reproduced wholesale; wherefore, the learned counsel submits that there was no evaluation of evidence made in accordance with the principle enunciated in the cases he had referred us to above.

That the trial Court did not place the evidence of both sides on the imaginary scale to weigh and to ascertain which weight more through the application of relevant laws.

That all the Court did was to give a summary of the Appellant’s evidence which he juxtaposed with the evidence of the 2nd Respondent (DW10) and quickly made his findings which he based his decision on.

That the evidence of both the Appellants witnesses and Respondents’ witnesses which constituted the proof of the claim and counterclaim were wilfully glossed over, by the Court.

That if a ‘proper’ evaluation of the evidence was made, the Court would have arrived at a different decision and in favour of the Appellant. Counsel relies on the evidence of PW2 – One Edafetamu Otorhaha, and the Appellant’s evidence also referred to in this regard to contend that bridal gift was a recognized custom in Isoko and had been established in favour of the Appellants herein by the gift of the said land in dispute to Isiokpo through whom they claimed title as members of the family.

The Respondents in response had submitted that the trial Judge was right in his evaluation of evidence as he did and the conclusion he arrived at in holding that the Plaintiffs/Appellants had not proved how the gift of land was made under Isoko customary law as averred and testified to; that gift of land under customary law was a solemn action that had to be done in the presence of witnesses and the property handed over or possession given; that the defined area of the land given out had to be ascertained and the usage in which the property is put testified to. It was also submitted that the plaintiff asserting a gift of land intervivos and title through same had to show how the said land devolved to him ie who the children of the said beneficiary of the gift of land were and what they used the property for and how it devolved onto them, the claimant/Appellant who said they were grandchildren of Isiokpo.

It was also contended that, the Plaintiffs/Appellants admitting that they were maternal relations to their female matriarch Isiokpo, being descendants of her husband, a non-native or member, they having agreed that their progenitor was from Oleh they could not claim to be properly entitled to the property they claimed by devolution under Customary Law. It was also their case that the Isiokpo referred to was not the daughter of Avrata as claimed but of one of the later scions in the genealogy of Avrata.

The trial Judge, after evaluating the pleadings and evidence of the parties had no difficulty in coming to the conclusion that the Plaintiffs/Appellants had not proved their title as they had not established how the land in dispute and claimed devolved to them even if Isiokpo was the owner of the land upon a grant inter vivos as a bridal gift by her alleged father.

The plaintiff in a civil claim has the onus of proof of his case and on a preponderance of evidence. In this case, the plaintiffs asserted that they were entitled to the land they claimed by fact of inheritance as members of a family who inherited Isiokpo’s land-acquired as a bridal gift by one Avrata her alleged father.

The Defendant/Respondent had disputed that the said Asiokpo was Avrata’s daughter and there was no rebuttal of that evidence whatsoever. The Respondents had testified that they were also grand off-springs of the sister of Isiokpo and whose other sisters were not given any gift of land as it was not part of the Isoko Custom or tradition for the females or daughters to be given land at the expense of their paternal family and that there was no exclusive inheritance by the maternal relations through their mothers, of the family property which devolved for the paternal inheritance and for the common use of all. That Isiokpo was a granddaughter to Avrata while Anoke the grandmother of one of the Respondents was the direct daughter of Avrata and yet was not given any portion of the land.

It was the responsibility of the trial Court to put the pieces of evidence from both sides on the imaginary scale to see which side weighs more and to find accordingly. It should be borne in mind that the “imaginary scale” as the name depicts is indeed ‘imaginary’.

It is an “unseen” and “non-physical” scale that operates in the mind of the Judge taking into consideration the evidence led from both sides. It must not necessarily be expressly stated or the facts reproduced or regurgitated on the record, before it can be said that the Judge has evaluated the evidence by placing it first on a scale or that he had in fact taken cognizance of the competing evidence before he makes his findings. Judgment writing is a style and varies.

The plaintiffs/appellants claimed title by reliance on traditional title through traditional history; they did not prove how their predecessor acquired the land, other than by bethrothal or bridal gift; who was the founder of the land which they said was given to Isiokpo? It was said to be Avrata, as Isiokpo’s father.

It was disputed that Avrata was Isiokpo’s father rather that it was one other person named; and that she was Avrata’s granddaughter, rather.

In that instance, was it Avrata, her grandfather who founded the land or her father Oyovie.

How was the land founded, particularly there was no particulars of intervening owners through who the Appellants claim.

The Appellants as plaintiffs had claimed inheritance as members of the Odoko family and admit having migrated from Oleh to Ozoroa long time ago laying claim through Isiokpo when Anoke the direct daughter of Avrata, and mother of some of the Defendants/respondents was not given such land to warrant either party to lay claim to exclusive possession and ownership.
In Awodi Vs. Ajagbe (2009) ALL FWLR (pt 454) 1413 at 1438. It was held that “It is not sufficient for a party who relies on traditional history to merely prove that he and before him his predecessors in title had owned and possessed the land from time immemorial. He must prove:
1) Who founded the land
2) How the land was founded
3) The particulars of the intervening persons through whom he claims.
In the case aforesaid this Court per Stanley stated
“the law is settled that once a party placed and traces his root of title in a dispute over land to a particular source and this averment as in this case is challenge that party to succeed as a plaintiff in the action must not only establish his title to such land, he must also satisfy the Court as to the title of the source from whom he claimed to derive his title to the land. Where the line of succession is not satisfactorily traced the leaves yawning gaps or nexus which are not established then such a line of succession would be rejected. Mogaji Vs. Cadbury Export Ltd (1985) 2 NWLR (pt 7) 393. Adesanya Vs. Aderonmu (2000) FWLR (pt 15) 2492.”

The Plaintiffs had averred that their progenitor, Isiokpor (f) had 3 sons and who had their own children also; that the sons and their descendants settled and cultivated the land – the subject of the dispute. There was no evidence led as to the children and descendants of Odiete and Udioyibo, the other 2 brothers of Obaro, through whom the plaintiff traced his direct title. Plaintiff sues for himself and the entire Odoko family, who was said to have come from Oleh.

Contradictorily, it was testified that the land was founded by Odoko who came from Oleh.

How could the land have been founded by Avrata or Oyieve and at the same time be an exclusive inheritance of the Odoko family? It can only be, if through succession through their mother and grandmother Iriokpo as asserted.

It should be noted that the said custom was challenged. No independent evidence of the custom by a person proved to be knowledgeable in the custom was called. It was neither shown that the custom had been judicially noticed by be notorious.

In this matter the testifiers to the said custom were the plaintiffs and members of their family. They were not independent witnesses.
Section 136 of the Evidence Act provides thus:
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence.
…

The Defendants who were of the paternal side deny the existence of the custom alleged. The trial Court had no proof of the custom of inheritance alleged. It was entitled to come to the conclusion that it had not been proved. Evaluation exfacie the facts and the law applicable was deemed, even by operation of law.

The inconsistency in the narration of genealogy by the PW1 and PW2 relating to the number of children Abrata had. PW1 said Abrata had 5 children but PW2 said he had 4. PW1 said Abrata disvirgined or deforested the land and did not plant any crops on the land. However, he somersaulted as at page 60 of the record to state that … Abrata planted crops on the land.

This clearly shows by this contradiction, that the evidence of these witnesses of any knowledge of Abrata and the land, its usage, stage or even transmission in the manner of bridal gift alleged was suspect. Not being coherent, consistent and convincing, what evaluation can be more than as stated that “as to how the land belongs to him and on behalf of Odoko family, who he admitted is from Oleh; However can an OlehOdoko family become a founder of land in Ozoro allegedly given to Odoko’s wife Isiokpo which fact the plaintiff failed to establish.”

Since the PW1 – Plaintiff did not show which distinct and different land he was referring to as having been founded by Odoko, his father or grandfather, it left as suspect which land and who actually was the owner of the land the Plaintiff/Appellants were claiming. They did not claim through Ariokpo. There is no doubt that the PW1 and PW2 testified on bethrothal gift of land as pleaded.

The trial Judge who has the ultimate discretion to evaluate the evidence led vis-à-vis the witnesses of the plaintiff interse and the other side and to ascribe probative value to them in deciding on what weight to attach to same cannot be said not to have evaluated the totality of the evidence in this matter. I do not see any special circumstance to warrant any interference.

The Issue one is resolved in favour of the Respondents and against the Appellants.

ISSUE TWO
Whether the Appellant had successfully discharged the onus placed on him by proving that he is entitled to the land in dispute and whether the trial judge was right in rejecting the case presented by the Appellant as being weak and unstable.

The Plaintiff/Appellants had consistently traced their title claim to the land to Oriokpo.

There is no doubt that Appellants had testified to their being in possession of the land. DW2 and DW5 also confirmed this fact when they said they were co-owners with the Appellants in respect of the land.

DW1 and DW2 had stated that the land in dispute belonged to the Appellant’s family. The DW2 and DW5 testified contradictorily that the land was founded by Abrata. DW5 admitted that Appellant farmed on the land in dispute DW2 said plaintiff has nothing on the land apart from farms thereon”.

Appellants counsel, referring to the evidence of the 2nd respondent at pages 113 – 114 of the record where he stated as follows:
“I want this Court to give me judgment and tell the plaintiff being a female descendant to cool down, go to his father place to find land. I do not need any money from the plaintiff’.”

Referring and relying onUnipetrol (Nig) Plc Vs. Adireje (WTA) (2004) ALL FWLR (pt 231) 1238 at 1271 where it was held:
“Where witnesses of a party give inconsistent and or contradictory evidence on material facts, their evidence on the point must be regarded as unreliable and also must be rejected”

That the Appellants had established the founder of the land, maybe so, but as to, how it devolved on their family had not been established by unshaken evidence. There is however no doubt that the Appellants have proved that they have been in possession of the land in dispute as confirmed by DW2 and DW5.

The Area and boundaries of the land was apparently known to the parties, but as DW1 and DW2 indicated, both parties were in occupation by enjoying the land as family property, though the Respondents would rather wish that the Appellants do not claim exclusivity of use of the land being of the maternal side and who should go to their paternal side for inheritance of title to land.

The DW1 and DW2 got permission from the Defendants/Respondents to build and to farm on the land in dispute and that even some Descendants of Osiokpo had had permission to farm on the land.

This was not contradicted.

On the preponderance of evidence, therefore, none of the parties had established an exclusive right to have a declaration of title ordered in his favour or even an order for a declaration, of trespass, one against the other to be made.

The trial Court was not wrong when it held that the evidence of title was conflicting, contradictory and uncertain such that it could not safely grant an order for declaration of title to the plaintiff now Appellant.

Issue 2 is resolved against the Appellant.

ISSUE THREE
Whether the learned trial Judge was right to inquire into the constituents of the bethrothal gift, being the root of plaintiff’s title.

It is argued that the Court just like the parties is bound by the pleadings. That the Court had no business embarking upon any inquiry outside what the parties had raised by their pleadings and issues as to do so would be wrong.

Chabasaya Vs. Anwasi (2010) vol. 184 LRCN 1 at 19 per Mukhtar, JSC relied upon. Victino fixed odds V. Ojo & Ors (2010) Vol. 185 LRCN 166 at 184, per Tabai, JSC refers.

Appellant’s counsel contends that the trial Judge was wrong to have raised the question “where is the evidence as to what are the constituents of the bethrothal gift?”

That the above Issue was neither raised by the parties in adducing evidence nor was it contemplated in the pleadings duly settled at the trial. That the parties only adduced evidence on facts they pleaded before the Court. That the Court went out of its way to dabble on an Issue not before it. Osadim Vs. Tawo (2010) ALL FWLR (pt 534) 146 at 167 relied upon for the contention.

The Respondents, in answer by its Issue 3 submitted that where traditional evidence of the parties in a claim, for declaration of title is conflicting or inconclusive the Court should not go by credibility of witnesses, but by evidence in recent times in relation to the land in dispute.

That is to say, acts of recent possession. It was argued that there was no proof of the alleged gift of land to the maternal predecessors of the Appellant through whom they claimed title and exclusive possession.

The Judge did not go on a frolic but acted within the law as the pleadings and the bare assertions of the claimants alone did not amount to credible evidence or proof and the supply of the Legal ingredient of the proof of a purported gift of land was lacking.

There was no error in inquiring into the constituents of the “Bethrodal Gift” as the root of title of the Plaintiff’s/Appellants. This issue is resolved against the Appellants.

On the whole, the Appellants, as plaintiffs, have not established their entitlement to the claims made and their case was rightly dismissed for lack of proof.

THE CROSS-APPEAL
The cross-appeal stems from the decision rendered in favour of the Appellant/Cross Respondent herein, by the dismissal of this cross appellant’s counterclaim at the trial Court.

DW1 at the trial had stated at page 80 lines 8-9 that “the land on which my house is built belongs to me but the one in dispute belongs to the plaintiff”.

This piece of evidence is an admission against interest and weakens the Respondents/Cross-Appellants claim to title also.

DW2 at Pg 81 of the record stated that he and the plaintiff are both from the maternal side of the Oyovie family, who are also of Ozoro and says his own land for farming in the land was resisted until he had the permission of the fathers of the Defendants.

On account of these evidence of the Defendants DW1 and DW2 alone, the counterclaim of the Cross-Appellants could not have succeeded either.

It is on the basis of this, even alone, that the counter-claim could and was rightly dismissed as not having been proved.

Although the Cross-Appellant seeks refuge in recent acts and dealings in respect of the land such as sale to other persons and cultivation thereon, it is clear that both parties are engaged in the acts of possession and recent dealings on the land, such that the presumption of joint ownership only is raised rather than exclusive possession or title on either party. The Appellant testified contrary to its pleadings that the land is in Erovie quarters. This is because DW9 tendered Exhibit, E – as a surveyor showing that the land was in Uruto quarters.

Exhibit E and F are both survey maps and are conflicting as to the location of the land. Both are the Cross-Appellant’s documents. The learned trial Judge was right to hold that the traditional evidence led was uncertain, weak and unstable to be relied upon to give the plaintiff Judgment.

The specific evidence of the plaintiffs as analyzed in the Appellant’s Reply Brief of Argument did not confer any credibility on the Plaintiff witnesses. The plaintiffs, now Appellants/Cross-Respondents’ pleadings that the land in dispute was “founded by Abraka long time ago beyond human memory” could not be said to have proved its devolution simply in the manner they did.

There was no proof or evidence of devolution and usage down to them. Their source of information as to Isiokpo being the daughter of Abraka who founded the land beyond living memory is not stated. The proof of “Betrothal gift of land” and the said custom in Isoko land was not forthcoming. Notwithstanding the dismissal of the plaintiff/cross respondents claims, the Cross Appellant’s claim would not succeed automatically without proof as declaratory reliefs are not granted as a matter of cause.

It can only be upon evidence.

The Court rightly dismissed the counterclaim notwithstanding that the cross-appellants had shown sufficient acts of possession and sundry dealings such as sale of portions of the land unchallenged to third parties. See the Evidence of DW6 at page 95 of the record, Exhibit ‘C’ Evidence of DW7 and Exhibit ‘D’ being survey plan, Exhibit ‘E’ showing the Cross-Appellants’ family land adjacent or connected with the land in dispute.

It should be noted that the presumption of law created by Section 35 of the Evidence Act and as decided (1997) FWLR (pt 514) 535, Adeagbo V. Williams (1998) 2 NWLR (pt 536) 120; Oyediran Vs. Oke (1997) 11 NWLR pt 530 at 606 cannot operate in favour of either of the parties in the circumstances of this case where members of both maternal and paternal sides of the family are in occupation, with houses therein and farming and selling portions and in some instances with the consent of the male side represented by the Cross-Appellants.

This is a case where a joint family meeting ought to be held and a clear out of Court settlement be made as the proof of the customary law as relating to the root of title of Oriokpo through whom the Appellant claims exclusive title and ownership, hinged as it were on a grant by a gift of the land as a bethrodal gift, had not been established by credible independent evidence of competent witnesses.

By Section 16 (1) of the Evidence Act, 2011 –
“A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence. (2) The burden of proving a custom shall lie upon the person alleging its existence (17). A custom may be judicially notice when it has been adjudicated upon once by a superior Court of record.”
In this case at the trial, there was no evidence of any adjudication involving the custom of “betrothal gift to a daughter” of a piece of otherwise family land and its exclusive devolution to the children and descendants of the said woman to the exclusion of the male line of the alleged donor of the land.
By Section 18 (1) of the Evidence Act, 2011, “where a custom cannot be established as one judicially noticed, it shall be proved as a fact.
18 (2) – where the existence or the nature of a custom applicable to a given case is in issue, it may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73.
Section 73 of the Evidence Act, 2011 provides thus:
“when the Court has to form an opinion as the existence of any general custom or right, the opinions, as to the existence of such custom or right or persons, who would be likely to know of its existence if it existed is admissible.”
In this state of the law relating to proof of custom, the learned trial Judge, having found that both the Appellants and Cross-Appellants traced the founding of the land and their ancestry being to a common root Abrata or Avrata, was justified in not believing the evidence of either side on the claim to the exclusive title, when there was no partition or severance of the common usage of the land as variously testified to and particularly where there was no credible independent evidence of the custom by persons shown to be seized of the knowledge thereof if, any. See Sokwo Vs. Kpongbo (2008) ALL FWLR (pt 410) 680 at 706.

The duty of appraising evidence given at a trial is pre-eminently that of the trial Court which had the advantage of hearing and watching the demenour of witnesses. It is the right of the Court to ascribe probative value before coming to a decision on the matter.

The learned trial Judge had in the course of his Judgment asked the question, “where is the evidence as to what are the constituents of the bethrodal gift?”

The Appellant’s Learned Counsel in his Brief of Argument at page 19 retorts thus “we submit that the above issue was neither raised by the parties in adducing evidence nor was same contemplated in the pleadings duly settled at the trial. However, the trial Judge went out of its way and limitation to dabble on an issue not before it. The parties only adduced evidence on facts they pleaded before the Court.”

It is trite that pleadings do not constitute proof of the facts alleged. There must be evidence – admissible and credible evidence in proof thereof to ground the establishment of the facts alleged.

There is no doubt that the trial Judge had evaluated the evidence led and considered the position of the law as relating the proof of title to land by gift and in particular customary gift vis-à-vis the proof of a custom of a people.

The words of the trial Judge as found at pages 163-167 of the Record and as reproduced at page 4 of the Appellant’s Brief of Argument are unassailable. Therein, the trial Judge stated. Indeed the Learned Counsel conceded that the trial Judge had appraised the case. Hear, the learned counsel: “The findings of the learned trial Judge based on his appraisal of the case can be found at pages 163-167 of the records to with:…”

Parties, nay counsel must be consistent in the handling of their cases, both at the trial and on appeals, see Ajide Vs. Kelani (1985) S.C.1. It does not serve the cause or ends of justice to be inconsistent or flippant; cases must not be won at all costs. In approximating justice, ministers in the temple of justice should assist the Court honestly and fairly; It is the duty of counsel to, where it is obvious, bring the parties to understand that there must be an end to litigation and therefore the amicable settlement even by concessions and win-win mechanism do more good than intractable insistence that breed and widen the chasm between otherwise knitted people of the same root.
The conservation of time and resources for peaceful advancement will be a better prism to focus, in settled situations that require the gallant throwing in of the litigating towel. Indeed there was infact nothing, to put on the imaginary scale if the root of title claimed by the “fact” of a bethrothal gift as an Isoko custom and the specific bethrothal gift of land” it self were not prima facie proved.

The reliance on the testimonies of the PW2 in particular and all assertions relating to the custom and fact of having been practiced in the purported bethrothal gift were well considered as the ip xi dix and bare without proof in accordance to the Evidence Act in the proof of customary law and of a fact asserted.
Section 35 of the Evidence Act provides thus:
“Acts in relation to Land
35. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupying not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.”
The Respondent/Cross-Appellants’ counsel had argued that where the evidence of root of title was inconclusive, the question of credibility of witnesses should not be gone into; that rather resort should be had to the presumption that exists by virtue of the Section 35 of the Evidence Act reproduced, supra. It should be noted that it is a presumption of law that applies only where the both parties were not on equal footing. Here they were both shown to be in possession and exercising acts of ownership. Title cannot be decreed for only one party for the reason of his possession when no trespass has been shown against the other. What is more, none had asked for a decree of joint ownership or title and the trial Court, not being a Father Christmas did not go on any voyage to grant.
The Court rightly, limited itself to the declaration of the lack of proof of the respective claims as made before it.

In the circumstances, I resolve all the issues formulated in favour of the Respondent in the Appeal.

On the counterclaim; having shown in the Judgment that the counter-claimant Cross-Appellant did not establish how the land claimed devolved unto them and in exclusivity; more so that their witnesses had testified to their related ancestral root. Linkage and usage or cultivation in common with the Plaintiffs/Appellants, as their maternal relations. See DW3 at page 85 of record. That the land is not exclusive to the plaintiffs.

The counterclaim was also not proved.
The case ofChief Maxwell Dajpiri Odi & Ors Vs. Iyala (2004) ALL FWLR (pt 207) 570; (2004) 4 SCNJ 35 at 53 per Niki Tobi so lavishly quoted by the Appellant at page 16 of his Brief of Argument supports the Cross-Respondent’s stand that the Cross-Appeal should also fail. This is because the Cross-Appellant had destroyed its claim by the evidence of the Defence witnesses.

DW1 at page 80 of the record said “…the land in-dispute belongs to the plaintiff”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<> DW2 at page 84 of the record says the land belongs to the Plaintiff’s grandfather”.

It is the law that these evidence obtained through cross-examination have similar weight in relation to the facts in contention and cannot be brushed aside or ignored see Ogbeide V. Osula (2004) ALL FWLR (pt 191) 1609, (2004) 12 ALL NWLR (pt 886) 86 at 118, and, therefore, the evidence of DW1 and DW2 as given in cross-examination though against the Cross-Appellant’s interest cannot be brushed aside.

Even for the above alone, the Cross-Appeal has no merit. All the Issues resolved against the Cross-Appellant.

DW2 in Cross-Examination had stated that the DW1 is of the same family with the plaintiff. The DW1 is related to the plaintiff. The land belongs to the plaintiff’s grandfather. All through, therefore, is a claim to a grandfather’s land by the parties.

A family or communal land must first be shown to have been partitioned and apportioned or bought or allocated or given out as a gift and any of these, must be proved if asserted, as a root of title. Failing which a claim of title will fail and the tenure and usage(s) of the land will subsist until changed as appropriate. Lawyers, being the guiding light of society, should endeavor in such cases where there may be a dearth or sketchy evidence, to advise their clients for partition and allotment or the creation of a scheme or joint device for communal benefit(s) rather than litigation. I note that a lot of industry and articulation of the correct legal theories have been meticulously argued by the respective learned counsel for their clients, but the justice of the case is based on the facts as led or omitted in evidence at the trial and not necessarily dependent upon legal sophistry and expertise.

Having said this, I agree that both the appeal and the Cross-Appeal were rightly dismissed by the trial Judge in the face of the evidence led by both sides in the two (2) appeals.

The both appeals were erroneously assigned a singular Appeal Number, ie CA/B/161/2015.

I, as the trial Judge did, shall not award any costs as these related families /parties are encouraged to thrive in peace in this “neither victory nor vanquished” Exploration.

The Appeal and Cross-Appeal are both dismissed for want of merit and the Decisions in Suit No. HCO/39/2004 delivered on 23rd February 2015 per M. Umukoro, J (as he then was, now CJ Delta State) are affirmed.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, M. A DANJUMA, JCA in this appeal.

I too join my learned brother in dismissing this appeal and cross-appeal for lacking in merit.

I also abide by the order as to costs in the lead judgment.

Appearances:

Kelita Urowayinor (Miss) For Appellant(s)

Olayiwola Afolabi, Esq. For Respondent(s)