Chief Falade Onisaodu & Anor V. Chief Asunmo Elewuju & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin Division given on 22 November 1999. The appellants herein were the defendants while the respondents were the plaintiffs respectively in the case. In the writ of summons before the High Court the respondents as plaintiffs claimed against the appellants as follows:

“(1) Declaration that the plaintiffs are entitled to the certificate of customary right of occupancy in respect of a piece or parcel of land situate lying and being at Ofigba Street, Akinluaduse Sawmill Ise-Ekiti;

(2) N1,000.00 being general damages for trespass which the defendants committed on the said land sometime during the year 1987 and which trespass still continues.

(3) A perpetual injunction restraining the defendants, their servants or agents from committing further acts of trespass on the said land.”

At the trial the plaintiffs called eleven witnesses and the defendants called seven witnesses in support of their respective claims. Counsel for the parties addressed the court and the learned trial Judge in a reserved judgment delivered on 19th September 1994, dismissed the claims of the plaintiffs. The plaintiffs’ appeal to the Court of Appeal was allowed. The present appeal to this court by the defendants is against that decision of the Court of Appeal.

In their brief of argument, the defendants as appellants submitted three issues for determination which read as follows:

“(1) Whether, in view of the evidence given by a witness to the appellants (DW2) under examination in chief, the seeming contradictory evidence given by him under cross-examination destroys the case of appellants especially with the evidence given by appellants and their other witnesses and bearing in mind that appellants have no counter-claim before the court.

(2) Whether it could be held that the trial court failed to evaluate properly the evidence led by it, and even if this is conceded, though not admitted, whether this is enough to destroy the defence of the appellants.

(3) Whether the decision of the lower court is reasonable and accords with the evidence led.”

For their part, the plaintiffs as respondents raised two issues for determination in this appeal. These are:

“1. Whether the Court of Appeal was right in holding that the admissions and contradictions in the appellant evidence in the court of first instance have reduced the weight of appellant’s evidence before the court and have knocked out the bottom out of the case for the appellants.

2. Whether having examined the evidence before the trial court and found that the trial court had failed to appraise the evidence properly, the Court of Appeal was right, and it was its duty to give the proper appraisal to the evidence.”

Both sets of issues are similar. I shall however determine this appeal in line with the issues raised by the respondents which I find more germane. I shall deal with the two issues together.

The claim before the trial court was for title to the piece of land in dispute, trespass and injunction. The plaintiffs in this case are members of Ofigba family in Ode Ise quarters in Ise Ekiti while the defendants are from Onisaodu family in Ise Ekiti. At the trial both sides gave traditional evidence as to how their ancestors migrated from other parts of the country to Ise Ekiti and how the families of both parties acquired land for building and farming. The issues revolve around the piece of evidence given by DW2 Chief Jacob Abiodun called by the defendants. This witness, in cross examination testified as follows:

“I know the land in dispute, Eleigba is the owner of the land in dispute.”

This piece of evidence would appear to be evidence of admission against the interest of the defendants-appellants. This is because D.W.2 was called by the defendants.

Although the learned trial Judge reviewed the evidence called by the plaintiffs, he failed to review the evidence led by the defendants. At the end of the review of the plaintiffs’ evidence, the learned trial Judge started and ended thus:

“It was said in Idundun & Ors. v. Okumagba & Ors. (1976) 10 SC 247 that there are five ways of proving ownership of land as follows:

1. By traditional evidence.
2. By production of documents of title which of course must be duly authenticated in the sense that their due execution must be proved.
3. Acts of person claiming the land e. g. selling, leasing etc.
4. Acts of long possession of the land may be prima facie evidence of ownership.
5. Proof of possession of connecting or adjacent land.

There is historical evidence on both sides but evidence of recent acts of ownership in support of historical evidence will go to establish the true owner of the land in dispute.

The plaintiffs have the following as recent acts of ownership.

1. Alleged allocation of land to owners of Akinluaduse’s sawmill by PW4 although this was disputed by DW4.

The grant of land by 2nd plaintiff to PW8 although he later said under cross examination that he was begged to come and give evidence.

2. The grant of land to PW9.
3. The purported grant of land to PW10.
4. The allocation of land to PW 11.

On the side of the defendants are the following recent acts of ownership.

1. Allocation of building plot to DW4.
2. Allocation of building plot to DW6.
3. Building on the site by the 1st defendant.
4. Defendants successful objection to the grant of Certificate of Occupancy to PW10.
5. Exhibit C and C1 which were addressed to the 2nd defendant and others by Ministry of Communications, from these exhibits it is obvious that these were applications for the acquisition of the present site for NITEL which is situated on the land in dispute.
6. Exhibit D addressed to the 1st defendants towards acquisition of the present site for use by NITEL on the land in dispute.

Thus the acts of ownership make the historical evidence given by the defendants more probable than the evidence of the plaintiffs.

Furthermore I have considered all the evidence in this suit although DW2 later contradicted himself by saying that the land in dispute belonged to Eleigba family i.e. the plaintiff’s family, in all the weight of evidence goes more in favour of the defendants than the plaintiffs. In these circumstances the plaintiffs have not adduced sufficient evidence to support their claim to the land in dispute.”

The Court of Appeal, for their part reviewed the evidence of both the plaintiffs and the defendants. That is how it should be. It is the totality of the evidence that has to be evaluated and assessed together. The trial court cannot pick and choose the evidence to be assessed. See Mogaji & Ors. v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393. At the end of the review, the Court of Appeal held as follows:

“In this case, the appellants called evidence of traditional history to how their ancestors came from Ile-Ife and with the permission of the Oba of Ise-Ekiti settled on a piece or parcel of land a portion of which is the land in dispute. They called evidence of how their ancestors were farming on the land in dispute and how they, the appellants have been in possession of the land exercising all rights of ownership.

The respondents also led evidence in support of their pleadings. A close look at the totality of the evidence led by the respondents seem to show a big crack, contradiction and discrepancy in the case of the respondents when the D.W2 positively stated that the land in dispute belongs to the appellants and not to the respondents who called him to give evidence. The learned counsel for the respondents conceded in his brief of argument the fundamentality of the conflict in the evidence of the respondents, when he stated:

There is no doubt that D.W.2 said the land in dispute belonged to the appellants, everybody was taken aback; the respondents counsel wanted to re-examine on it but the court disallowed and while the piece of evidence is conflicting, the court held it was its duty to reconcile the conflicts.

I have considered most carefully the pleadings, the evidence led by the parties and the findings of the trial court, as well as the briefs and arguments of counsel on either side of this appeal in relation to the issues thereof. It is trite law that a declaration is a discretionary remedy, but a plaintiff seeking it has the same legal burden of proof as well as evidential burden under sections 135 to 137 of the Evidence Act, as in any other civil case, namely, proof on the balance of probabilities, sometimes styled preponderance of evidence.

How then does a trial court decide that evidence is propondering

In Mogaji & Ors. v. Odofin & Ors. (1978) 3-4 SC 91 at 94-95, the Supreme Court per Fatayi- Williams J.S.C. (as he then was) gave the following guidelines:

“In short, before a Judge before 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 plaintiff 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 numbers 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.”

Applying the above principle to the present case, when the totality of the evidence led by the appellants is put on one side of that imaginary scale and the totality of the contradictory, conflicting and riotious evidence adduced by the respondents is put on the other side of the scale, it seems to me the evidence led by the appellants is heavier and weight of the evidence ought to go in favour of the appellants. The PW.6 is from Erinwa family and was called by the respondents. They both know the land of the appellants and the land of the respondents family and both of them said the land in dispute belong to the appellants family. There can be no doubt that the evidence of the D.W.2 supports and strengthens the case of the appellants.”

I cannot agree more. D.W.2 is from Erinwa family. Now P.W.6 is also from the Erinwa family. In his evidence he testified thus:

“I know the plaintiffs in this suit, I also know the first defendant … I know the land in dispute. I have a boundary with the land in dispute … Ofigba family has the land in dispute. I am from Erinwa family. I represent Erinwa family. Erinwa family have a common boundary.”

Both witnesses PW6 and DW2 are from Erinwa family. Both gave evidence that the land in dispute belongs to the respondent’s family. The testimony of PW6 clearly strengthens the admission made by D.W.2 against the interest of defendants-appellants who called him as a witness.

It is now settled law that in a suit for a declaration of title to land the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defendant’s case: See Kodilinye v. Odu 2 WACA 336; Woluchem v. Gudi (1981) 5 SC 291.The plaintiff can however rely on the evidence of the defendant which supports his case.

It is plain from the record of this case that the learned trial Judge did not evaluate the admission of DW 2. He casually mentioned it in his judgment. He said:

“Furthermore I have considered all the evidence in this suit although DW2 later contradicted himself by saying that the land in dispute belonged to Eleigba family i.e. the plaintiff’s family, in all, the weight of evidence goes more in favour of the defendants than the plaintiffs.”

I have indicated earlier on in the course of this judgment that the learned trial Judge did not review the evidence of the defendants. And without evaluating the evidence of admission he proceeded to give judgment for the defendants-appellants. What the learned trial Judge did was tantamount to saying that the plaintiffs had not made out a case for the defendants to answer even though he took their evidence at the trial.

The plaintiffs led evidence in line with their pleadings and so established a prima facie case. As I have already pointed out, the evidence of D.W. 2, called by the defendants, to the effect that the land in question was owned by the plaintiffs’ family strengthened the plaintiffs’ case. This was an admission against the interest of the defendants. The said admission against interest is relevant and admissible evidence: See Ojiegbe & Ors. v. Okwaranyia & Ors. (l962) All NLR 605; (1962) 2 SCNLR 358. I think it is pertinent to state here that the defendants did not treat their witness (DW2) as a hostile witness. In such a situation the evidence must be treated as an admission upon which the plaintiffs are entitled to rely as further reinforcement of his claim. The effect of the admission is that the learned trial Judge was wrong in giving judgment for the defendants. The admission in my judgment was fatal to the case of the defendants-appellants.

In the circumstance, the Court of Appeal was right when it allowed the appeal brought by the plaintiffs. In the result, I dismiss this appeal and affirm the judgment of the Court of Appeal. There shall be costs of N10,000.00 in favour of the plaintiffs-respondents against defendants-appellants.

---

SC.223/2000