Goddy Edosa & Anor V. Mrs. Ekomwenrienrien Ogiemwanre (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The respondent herein was the plaintiff in a suit she instituted before the High Court of Edo State sitting in the Benin Judicial Division on 3/6/2003 against the 2nd appellant, her brother of full blood and one Goddy Edosa, the 1st appellant, as defendants. It was her contention that during his lifetime, precisely two years before his death in 1947, her father, Omwenke Agho, divided his property, which consisted of houses, undeveloped land as well as farmlands, between his children, male and female. According to her, the eldest son, Mr. Ehirnwenma Agho was given land and house no. 16/20 Dawson Lane, Benin City. He was also given a large rubber plantation at Ugbowo Village. After Ehimwenma’s death, the property shared to him was inherited by his children.

It was her contention that in recognition of her loving and meritorious service to her father, he gave her two rooms in the house situate at 48 Dawson Road, Benin City in addition to a piece of land on one side of the house. She claimed that this was done in the presence of

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witnesses, some still living and some now deceased. Her older brother, the 2nd appellant, was given two rooms and a parlour within the same house. Their mother lived in the two rooms shared to her during her lifetime. Upon her demise, the rooms were occupied by two relations until they left to get married. It was the respondent’s contention that after they left, her brother (2nd appellant) pleaded to be allowed to use the two rooms because the two rooms and a parlour shared to him could not accommodate his family. She agreed. She also gave the vacant land to a carpenter who built a workshop on it and was paying her rent. She also rented part of it to someone who operated a car wash thereon. She lived in Ibadan with her husband for many years. She discovered at a stage that the 2nd appellant was laying claim to the property. She instructed her lawyer to write to him to quit. Soon afterwards she discovered that he had sold the property to the 1st appellant and absconded. She therefore instituted an action at the trial Court seeking the following reliefs by her Further Amended Statement of Claim dated 23/9/2005:

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“That she is entitled to a Statutory Right of Occupancy in respect of that piece or parcel of land measuring more than 50 feet by 100 feet including two rooms of the main house known as No. 48 Dawson Road, Benin City, being part of the property she received from her father Omwenke Agho as gift inter vivos and later formed part of the inheritance from her father Onwenke Agho (deceased) as at 1947 or thereabout.

2. N8,000,000.00 (Eight Million Naira) damages for trespass in that on or about the 17th day of April, 2003, the second defendant, without the consent of the plaintiff, purportedly sold and or leased the plaintiff’s land to the 1st defendant who pulled down the two rooms and also fenced round the empty land (sic) property of the plaintiff, lying and situate at No.48 Dawson Road.
3. Perpetual injunction to restrain the defendants or their agents from developing the two rooms apartment and empty land property of the plaintiff
4. In the alternative, N25,000,000.00 (Twenty-five Million Naira) compensation for the two rooms apartment and measuring more than 50 feet by 100 feet lying at 48 Dawson Road, Benin City, belonging to the plaintiff. Shown on the survey plan pleaded.”

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In their Amended Joint Statement of Defence, the appellants pleaded that after the 2nd appellant’s father’s death and burial in 1948, his property was shared among his six children by the Okaegbe in the presence of witnesses. That the larger house (the Idiogbe) was shared to Ehimwenmwen, the eldest son, while the 2nd appellant, as the second son, was given the smaller house at 48 Dawson Road along with the undeveloped land beside it and a rubber plantation.

According to the appellants, the respondent was given a rubber plantation and a coconut tree. It was their contention that they had remained in undisturbed possession of the property and land shared to the 2nd appellant and denied the respondent’s claim that the property was shared during their father’s lifetime. They maintained that the respondent had never exercised any right of ownership over any part of the house and premises at 48 Dawson Road and contended that the carpenters who were once on the land were the 2nd appellant’s tenants. They also denied damaging any part of the land.

At the trial, the respondent called six witnesses and testified on her own behalf as PW7.

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The appellants testified on their own behalf and called two other witnesses. The 1st appellant testified as DW4 while the 2nd appellant testified as DW1. At the conclusion of the trial and after considering the addresses of learned counsel, the learned trial Judge entered judgment in favour of the respondent as follows:

1. “I declare that the Plaintiff is the person entitled to a statutory right of occupancy in respect of that piece or parcel of land with an area of 474 sq. metres situate at No 48 Dawson Road, Benin City and verged red in litigation survey plan No. ISO/ED/D38/2005 of 30/8/2005 admitted as Exhibit P2 in this (sic) proceedings.
2. The sum of N200,000.00 damages for trespass.
3. A perpetual injunction restraining the defendants, their agents from further trespass to the land.

In view of the success of the main claim, the alternative claim for N25,000,000.00 compensation for the property no longer calls for consideration.

Costs in favour of the Plaintiff is fixed at N10,000.00.”

Not surprisingly, the appellants were dissatisfied with the judgment and filed an appeal

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before the Court of Appeal, Benin Division containing 10 grounds of appeal. They raised two issues for determination from grounds 1-9, thereby abandoning ground 10. The two issues were:

1. “Having regard to the pleadings and evidence on record, is the Respondent entitled to the grant of statutory right of occupancy
2. Whether the trial Court was right in granting the Respondent’s claim for trespass and injunction.”

In a considered judgment delivered on 9th July, 2010, the lower Court resolved both issues against the appellants and dismissed the appeal as lacking in merit. The appellants are still dissatisfied and have further appealed to this Court by their notice of appeal filed on 19/7/2010.

At the hearing of the appeal on 25/9/2018, OLAYIWOLA AFOLABI ESQ., leading Ehinon Okoh Esq., adopted and relied on the appellant’s brief settled by Ehinon Okoh Esq., filed on 23/3/2011 in urging the Court to allow the appeal. ELDER EDDY OSIFO ESQ., settled the respondent’s brief which was filed on 20/5/2011. He adopted and relied on the brief in urging the Court to dismiss the appeal.

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The sole issue distilled by learned counsel for the appellant and adopted by the respondent for the determination of this appeal is:

Whether the Court of Appeal was right in affirming the decision of the learned trial Judge in spite of the lacuna in the traditional evidence and the contradictions in the Respondent’s case.

Learned counsel for the appellants submitted that the respondent failed to discharge the burden of proof placed on her by law to establish her entitlement to declaratory reliefs on the strength of her case. He argued that there were many contradictions in the evidence led, which were beyond mere honest mistakes in traditional history, as described in the case of Kojo Vs Bonsie (1957) 1 WLR 1223, which authority the lower Court relied on. Some of the contradictions he pointed out are as follows:

a. While PW1 testified that she operated her car wash on the land in 2002, PW2 testified that the 1st plaintiff bulldozed the land in April 2001, including the car wash.

b. Although the respondent pleaded that there were eye witnesses to the alleged sharing of the property in 1947, both living and dead, none was called. The evidence of PW2 that he was informed of the sharing was hearsay.

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PW3 testified that she was three years old when his grandfather, Onwenke Agho died and that all that he knows about the sharing of the property is what he was told by his father.

d. The respondent pleaded that two rooms and a parlour were shared to the 2nd appellant while PW6 stated that he was given a room and a parlour. PW3 on the other hand testified that four rooms to the right of the road were given to the 2nd appellant while the large room to the left and the undeveloped plot were given to the respondent.Relying on the authority of Onwubuariri Vs Igboasoiyi (2011) 3 NWLR (Pt.1234) 457 @ 484, he submitted that where the claimant fails to discharge the onus of proof, the weakness of the defence would not avail him. He submitted that not only was the respondent’s evidence bedevilled with contradictions, it was at variance with her pleadings. He submitted that the Court ought not to place probative value on such evidence. He posited further that it is not the duty of the Court to provide explanations for the conflict in the evidence of a party’s witnesses.

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He referred to: Onubogu Vs The State (1974) 1 ALL NWLR (Pt. 11) 5; Ohabaka Vs Ochugo (1998) 9 NWLR (Pt. 564) 37.

He submitted that the lower Court erred in placing reliance on Kojo Vs Bonsie’s case (supra), as the authority relates to traditional evidence of what transpired over a hundred years ago, whereas the respondent’s case was predicated on sharing, which allegedly took place in 1947, a period of about 60 years at the time the respondent testified. He referred to the case of: Okonkwo Vs Okonkwo (2010) SC (Pt. 1) 116 @ 143. He submitted that in the absence of any eye witness testimony regarding the sharing of the property, the finding that the respondent proved her claims is perverse. He submitted that this is one of the exceptions where this Court would interfere with the concurrent findings of the lower Courts. He referred to: Ogbu Vs Wokoma (2005) 14 NWLR (Pt. 944) 118 @ 140; Ibenye Vs Agwu (1998) 11 NWLR (Pt. 74) 372; Alakija Vs Abdullai (1998) 6 NWLR (Pt. 552) 14; Okeke Vs Agbodike (1999) 14 NWLR (Pt. 638) 213.

In response, learned counsel for the respondent argued that the lower Court was perfectly right in placing reliance on the decision in Kojo Vs Bonsie (supra) in arriving at

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its decision. He submitted that the Court relied on the guide provided in that case to the effect that “the best way to test traditional history is by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.”

He submitted that the evidence of PW1 and the carpenter who took her to the respondent in 2001 whereby both became her tenants proved that she was the owner of the property and exercised control over it up to 2003. He contended that the 2nd appellant was never in control of the property at any time. He contended further that the 2nd appellant did not call any witness to corroborate his evidence. He submitted that the decision of the lower Court is justified in view of Section 45 of the Evidence Act, which renders oral evidence of family or communal tradition concerning title or interest in land admissible. He also relied on:

Lajide Omamogbe Akuru Vs Olubadan-in-Council (1954) 14 WACA 523 and Commissioner of Lands Vs Kadiri Adagun (1937) 3 WACA 206.

He submitted that much of the evidence adduced with regard to the sharing of the property at No. 48 Dawson Road,

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is the history of the property built over 100 years ago and the sharing which took place over 66 years ago and therefore the authority of Kojo Vs Bonsie (supra) and Section 45 of the Evidence Act can be called in aid to resolve any conflicts or contradictions in the traditional evidence. He referred to the evidence of PW3, PW6 and PW7 as eye witnesses to the sharing of the property and particularly PW6 and PW7, whose evidence was accepted by the lower Court as credible. He referred to the case of Durosaro Vs Ayorinde (2005) 8 NWLR (Pt. 927) 407.

He submitted that once the concurrent findings of the two lower Courts are reasonably justified by the evidence and no error in law, procedural or substantive that leads to a miscarriage of justice, has been made, this Court ought not to interfere. He submitted that the appellants have not shown any special circumstances to warrant the interference of this Court. He referred to: Jolayemi Vs Alaoye (2004) Vol. 9 MJSC 93 @ 97; Madu Vs Madu (2008) AFWLR (Pt. 414) 1604 @ 1610; Ojo Vs Anibire (2004) Vol. 7 MJSC 57 61. He submitted that the authorities relied on by learned counsel for the

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appellants to persuade this Court to interfere with the concurrent findings do not apply in this case.

As observed at the beginning of this judgment, the respondent’s claim before the trial Court was for a declaration of title, injunction and damages for trespass. The various methods by which ownership of property may be established have been firmly settled in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227.

They are:

1. By traditional evidence;
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

See also: Nkado Vs Obano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 – 11 SCNJ 1 @ 6.

It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the

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strength of his own case and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello Vs Eweka (1981) 1 SC (Reprint) 63; Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556; Ilori Vs Ishola (2018) LPELR-44063 (SC). A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief. See: Bello Vs Eweka (1981) 1 SC 101 @ 102 per Obaseki, JSC, to wit:

“It is true as was contended before us by the appellant’s counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant that he is entitled to the declaration.” (Underlining mine).

There is no burden on the defendant to prove his own title to the disputed land where he does not file a counter claim. See: Onovo Vs Mba & Ors. (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR-23035 (SC) @ 73 B – D;

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Elias Vs Disu (1962) ALL NLR (Pt.1) 214 @ 220; Kodilinye Vs Odu 2 WACA 336 @ 337-338. It is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal.

It was argued on behalf of the respondent that she relied on evidence of traditional history to prove her claim. The learned trial Judge seemed to be of the same view when, in reviewing the evidence of PW3 at page 67 of the record, he observed:

“He stated in his evidence that the property known as 48 Dawson Road was built about one hundred years ago by Onwenke Agho who shared same between the 29d defendant and the plaintiff before his death. While the 2nd defendant was given two rooms, the plaintiff was given a large parlour and a vacant plot. Although this witness admitted in cross-examination that it was his father who was the senior son of Onwenke Agho, who told him so, that is not unexpected in matters of family history which are usually passed along from father to son. See Section 45 of the Evidence Act which renders such evidence admissible.”

The lower Court was of a similar persuasion when it observed at page 120 of the record:<br< p=””

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“Member (sic) of the family gave evidence for the respondent. Family history are passed from generation to generation. The appellant also submitted that there are contradictions in the evidence as produced by the Respondent. The principle in Kojo Bonso (sic) (1957) 1 WLR 1223 as enunciated therein is as follows:

“Witness of the utmost veracity may speak honestly but erroneously as to what took place hundred years or more ago where there is a conflict of traditional history one side or the other must be mistaken, yet both will be honest in their belief. In such a case, demeanour is little guide to the truth.”

The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing witnesses is the more probable

In effect, it is when the trial Judge cannot find any of the two history (sic) probable or conclusive that he will declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.”

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What then is traditional history or traditional evidence His Lordship, Oputa, JSC provided an explanation in:Dike & Ors. Vs Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144 @ 158 F- H, as follows:

“Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the statutory provision of Section 44 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria. This section provides: – “S.44: When title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.” (Underlining mine).

It should be noted that the provisions of Section 44 of the Evidence Act referred to above and Section 45 of the Evidence Act 1990 referred to by the learned trial Judge can now be found in Section 66 of the Evidence Act 2011.

My Lords, while it may be correct, as stated by PW3 at page 36 of the record, that the house at No. 48 Dawson Road was built over one hundred years

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ago, the parties are ad idem that the property belonged to their late father, Omwenke Agho who died in 1947. There was thus no dispute as to the ownership of the property during his lifetime. The property was also never alleged to be communal property. The sharing of the property, according to the respondent, took place two years before their father died, i.e. in 1945. 1945 can hardly be described as a period “beyond living memory”. Indeed, the respondent in paragraphs 8 and 9 of her Further Amended Statement of Claim pleaded as follows:

8. To his daughter, the plaintiff, specifically, for her loving and meritorious service to her father, the late Omwenke Agho in the presence of witnesses some living while others are dead, he gave two rooms of the house he built as No. 48 Dawson Road, Benin City, using the passage in the house together with the unbuilt portion of the piece or parcel of land which he acquired and reflected on the survey plan No.ISO/ED/D38/2005 now pleaded.
9. The late Omwenke Agho gave to the 2nd defendant, the plaintiff’s elder brother, the two rooms and a parlour and no more remaining of the house known as No. 48 Dawson Road.” (Underlining mine)

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Therefore, even by her own showing, there were witnesses to the sharing who were still alive. I am therefore of the considered view that the learned Justices of the lower Court erred in concurring with the learned trial Judge that the principles relating to evidence of traditional history applied in this case.

Parties are bound by their pleadings. See: Abaye Vs Ofili (1986) 1 NWLR (Pt.15) 413; Adeyeri II & Ors. Vs Atanda (1995) LPELR-174 (SC) @ 28 – 29 G – A; Abeke Vs Odunsi (2013) 13 NWLR (Pt. 1370) 1. Having pleaded that there were witnesses to the sharing, the respondent was bound to lead evidence in that regard. The respondent’s witnesses who testified regarding the sharing of the property were PW2, PW3 and PW6.

PW2, Idahosa Ogiemwanre is the respondent’s daughter. Under cross-examination at page 34 of the record, she stated inter alia:

“I am aware that my mother inherited the land and partly built it up. I was told that the properties were shared by my late grandfather about the year 1947, two years before he died. It is true that what I know about the sharing is what I was told.”

(Underlining mine)

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PW3, Ehimwenma Uyimwen, is the grandson of Omwenke Agho. His father (deceased) was the first son of Omwenke Agho. He testified, inter alia, thus:

“I know the plaintiff. She has the same parents with my late father, Ehimwenma… I know the 2nd defendant. He is my late father’s immediate younger brother of the same parents. I know the land in dispute. The land has a relationship with where I live now. My father died September 4, 1978. I am his first son. Before my father’s death, he had two wives. Before his death he called the family and drew up a document for sharing his properties…. Before my father’s death he had two buildings known as No. 20A and 20B Dawson Lane, which houses had a boundary with No.48 Dawson, which has an undeveloped plot now in dispute in this case. The house at No. 48 Dawson Road was built about 100 years ago by Omwenke Agho. The plaintiff and the 2nd defendant had got properties which were shared to them about 1947 before their father died. This was part of 48 Dawson Road. The house was of 4 rooms, to the right of the house at 48 Dawson Road where (sic: were) given to the 2nd defendant

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and the large room to the left with an undeveloped plot was given to the plaintiff, Pa Irabor was the Okaegben during the burial of Omwenke Agho in 1948 I was about three years old when my said grandfather Omwenke Agho died.”

Under cross-examination at page 36 of the record, he stated:

“I know Omofoma Agho. She was the eldest daughter of Omwenke Agho. She was given a rubber plantation. All this (sic) things I have told the Court is what my father told me.”

It is worthy of note that the personal knowledge of the sharing referred to by PW3, which I have underlined, is in relation to his father’s properties at No. 20A and 20B Dawson Lane and not No. 48 Dawson Road, which is in dispute.

PW6, Afekhokhian Omoghoman, is also a granddaughter of Omwenke Agho. Her mother was the eldest daughter of the deceased. She stated at page 40 of the record, inter alia, as follows:

“Omwenke Agho is my grandfather in whose house I was born and brought up…. I was in the house when he died. I was living with my grandmother Akpifanye when he died. Two years to the death of my grandfather he shared his properties.

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These were two houses and one was given to the senior son called Ehimwenma and in the other one a room and a parlour was also shared to the defendant.”

Under cross-examination, she stated:

“After the burial, the Okaegbe called the children of the family to come and share the property and the children told the Okaegbe that their father had already shared the properties.” (See page 41 of the record)

At no point did she state that she witnessed the sharing. It is evident from the portions of the testimonies of these three witnesses, that none of them actually witnessed the sharing of the property. The learned trial Judge, acknowledged that the evidence of PW3 was what he was told by his father and therefore ordinarily ought to be regarded as hearsay. He however opined:

“it is not unexpected in matters of family history which are usually passed from father to son. See Section 45 of the Evidence Act which renders such evidence admissible.”

I have held earlier in this judgment that the issue of evidence of traditional history does not arise in this case. The respondent pleaded that there were witnesses to the sharing who were still alive but she failed to call any of them.

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The respondent therefore failed to lead evidence to establish a material aspect of her pleadings.

In paragraph 10 of her Further Amended Statement of Claim, she pleaded that her late father reduced the sharing of the property to her into writing but she lost the document during the civil war. There was therefore neither an eye witness account nor documentary evidence of the sharing of the property to the respondent. It must be restated here that the respondent seeking declaratory reliefs had the burden of proving her entitlement to those reliefs on the strength of her case.

The lower Court, in the course of its judgment at page 115 of the record, affirmed the following finding of the learned trial Judge, which can be found at page 69 of the record. His Lordship after observing that there was no burden on the defence to prove anything, held:

“However, the evidence of PW3 shows that his title to the house at No. 20A and 20B Dawson Lane, which he inherited from his father is founded on the same sharing of the properties of Omwenke Agho by him before his death and that his father, the 1st son of Omwenke Agho, told him so.

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I believe that what is true of the one must be true of the other. Moreover, the unchallenged evidence of PW6 is that of any eye witness which supports the plaintiff’s claim and the Court is obliged to accept and act on same.”

The ownership of No. 20A and 20B Dawson Lane by the first son of the deceased is not in dispute. However, while the respondent contends that it was given to him when Omwenke Agho shared his property two years before he died, it was the case of the appellants that the said property was given to him when it was shared by the Okaegben after Omwenke Agho’s death. The burden of proof therefore remained on the respondent who asserted that the sharing was done inter vivos. Also, contrary to the finding of the learned trial Judge, PW6 was not an eye witness to the sharing. With the greatest respect to their Lordships, their affirmation of the finding of the learned trial Judge in this regard was misconceived.

Learned counsel for the appellants noted some contradictions in the evidence of the respondent’s witnesses, which I shall examine to determine whether they are material enough to adversely affect the respondent’s claim.

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In support of her pleadings in paragraphs 8 and 9 of her Further Amended Statement of Claim, which have been reproduced earlier, she testified thus:

“My father shared the house two years before he died… My father gave me two rooms and a land on one side of the house and he gave two rooms and a parlour to the 2nd defendant. The house opposite Dawson lane was given to Ehimwenma Agho and his son has inherited it.”

Now, according to PW3, the respondent was given one large room on the left side of the house and a piece of land beside it while the 2nd appellant was given four rooms on the right (see page 36 lines 18 – 21 of the record). The respondent who testified as PW7 however stated that she was given two rooms as well as the piece of land beside the house. PW6 on the other hand stated that the respondent was given a room and a parlour and that the 2nd appellant was given two rooms and a parlour. These are clearly material contradictions, which further buttress the fact that none of them was present when the sharing allegedly took place. I also agree with learned counsel for the appellants that the evidence of PW3 is at variance with the respondent’s pleading. It ought not to have been relied upon.

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The law is settled that it is not all contradictions that would lead to the rejection of the evidence of a witness. However, a contradiction is material and would result in the rejection of such evidence if it relates to or affects the live issue or issues in the matter. See: Egesimba Vs Onuzuruike (2002) 9 SCNJ 46; Nsirim Vs Nsirim (2002) 2 SCNJ 46; Ezemba Vs Ibeneme & Anor. (2004) 7 SCNJ 136; Wachukwu & Anor. Vs Owunwanne & Anor. (2011) LPELR- 3466 (SC) @ 33-34 F – A. The sharing of the property of the deceased inter vivos is the entire foundation of the respondent’s claim. Contradictions in the evidence relating thereto are therefore material. As observed earlier, the principle in Kojo Vs Bonsie (supra) cannot be relied upon to justify the inconsistencies. In the case of Okonkwo Vs Okonkwo (2010) SC (Pt. 1) 116 @ 143, relied upon by learned counsel for the appellants, the application of the principle in Kojo Vs Bonsie (supra) was elucidated by this court thus:

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“The principle in Kojo Vs Bonsie (1957) 1 WLR 1223, relates to facts which the Court should advert to in coming to a conclusion on the probability of evidence of tradition. Where as in this case the plaintiffs/respondents rely on acquisition by inheritance, proof of such grant by traditional history arises only where the fact of inheritance was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act.” (Underlining mine for emphasis)

I am fully guided by this authority in this case. The respondent failed to call evidence of any living witness to the alleged sharing of the property despite pleading that such witnesses exist.

Still on the issue of contradictions, I come to the evidence of PW1 and PW2. At page 33 of the record, PW1 testified that in 2001, she was looking for a piece of land upon which to operate a car wash. She secured the services of an agent who found the land at No. 48 Dawson Road. She stated further:

“I went with the agent to the said No. 48 Dawson Road, Benin City where we met a

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carpenter. The carpenter directed us to the plaintiff in this case who is the owner. The plaintiff told me the amount I will pay and I agreed…. I paid my rents to the plaintiff.

While I was working on the land nobody disturbed me at all. I operated my car wash on the land in 2002.”

PW2, the daughter of the respondent, testified at page 34 of the record inter alias

“I know Goddy Edosa [1st appellant]. He is a transporter. The 2nd defendant is my uncle. I know the PW1. She owns the car wash on my mother’s land. The land in dispute is No. 48 Dawson Road, Benin City. In 2001, I went to the land in dispute to do some work and one of the 1st defendant’s workers said to me that the 1st defendant had approached my mother to sell or lease the land to him but my mother refused. He then requested me to sell the land to the 1st defendant and I refused… In the month of March 2001, the 1st defendant called me and requested me to sell the land to him. He made an offer of N1,000,000.00 which I rejected. [In] April 2001, I went to the land and met that the 1st defendant had bulldozed the whole land, including the car wash, which he destroyed. He also told the carpenter on the land to quit.”

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It is apparent from the testimony of these two witnesses that while PW2 said the land was bulldozed in 2001 and the car wash destroyed, PW1 testified that she continued to operate the car wash without disturbance in 2002. One of them is clearly mistaken. The contradiction was never explained. This contradiction is also material, as it goes to the substance of the respondent’s claim. It is not for the Court to pick and choose which witness to believe. The evidence of both should have been considered unreliable and rejected. See:Kayili Vs Yilbuk (2015) 7 NWLR (Pt. 1457) 26 @ 77 B – D; Zakirai Vs Muhammad (2017) LPELR-42349 (SC) @ 70-71 F-A; Mogaji Vs Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393.

The position of learned counsel for the respondent in this appeal is based on the principle in Kojo Vs Bonsie (supra), to the effect that where there are inconsistencies in the evidence of traditional history relied upon by both parties, the best way to test it is by reference to facts in recent years, which would assist the Court in determining which of the competing traditional

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histories is more probable. He also contends that PW3, PW6 and PW7 were eye witnesses to the sharing of the property. I have debunked both assertions in the course of this judgment. In the absence of a counter claim by the appellants, there was no burden on them to prove their title. The burden was on the respondent to succeed on the strength of her case. Her case was weak and did not meet the required standard to require a rebuttal from the defence.

I therefore resolve the sole issue in this appeal in the appellants’ favour. The concurrent findings of the two lower Courts were based on a faulty premise and have occasioned a miscarriage of justice. I am persuaded that this is a proper situation which justifies the interference of this Court. The appeal is meritorious and it is hereby allowed. The judgment of the lower Court delivered on 9/7/2010 which affirmed the judgment of the trial Court delivered on 10/4/2008 is hereby set aside. The respondent’s claim as per her Further Amended Statement of Claim dated 23/9/2005 is accordingly dismissed. Costs of N250,000.00 are awarded against the respondent and in favour of the appellants.

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SC.56/2011