Masade Esene V. Cecilia Isikhuemen (1978)

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IRIKEFE, J.S.C. 

In this matter, the appellant Masade Esene having died before the hearing of this appeal, was substituted by his son, Andrew Masade. The claim before the Ubiaja Judicial Division of the High Court of Bendel State reads:-

“(A) A declaration of title to the land and house situate at or being between the house of the plaintiff, that is, 21, Unity Road, Uromi and that of one Ogeaga Oko-Oniha, known or generally referred to as 25, Unity Road, Uromi, a place within the jurisdiction of this court, which property shall be more properly described and delineated on a survey plan to be filed later in these proceedings.

(B) Possession of the said land and house.

(C) Perpetual Injunction restraining the defendant, his servants or agents from further interference with the plaintiff’s rights and quiet enjoyment over the said property.”

Put briefly, the appellant’s case was that he had invited the respondent, his lover, to live rent-free in a house he had built on the disputed land. Before this, he had been paying the respondent’s rent where she had hitherto lived in the house of the Ejele Udo. The appellant’s house on the disputed land had become vacant when one Owobu, servant of the appellant died. The dispute culminating in this action came about when the respondent, soon after taking up residence in the house, decided to transfer her affection to another man. When the appellant became aware of this development, he thought it was about time the respondent paid some rent and made demand for same. The respondent refused to pay rent and began to lay claim to both the land and house as owner thereof. For her part, the respondent based her claim to the land on purchase after which she built the house thereon in which she now resides. She denies ever having been in love with the appellant.

The parties themselves gave evidence on oath in support of the averments made in their pleadings and called witnesses.The learned trial Judge after hearing all the evidence, dismissed the appellant’s claims.

This appeal is against the said judgment.

Although several grounds of appeal were filed, learned counsel appearing for the appellant rested his case on grounds 1a, 1b and 1c which he argued together. These grounds read thus:-

1 “The Honourable learned trial Judge was wrong in law:

(a) When having found that the defendant/respondent had not established before him the “fact of purchase” of the land in dispute from the plaintiff/appellant, a defence which she heavily relied upon, proceeded to hold, that “he accepted the evidence that the defendant/respondent bought the land in dispute.”

(b) When he imported the evidence of the price paid on the land in dispute from Exhibit “B” to establish the fact of purchase in the case before him.

(c) When in fact, at best, the evidence of purchase led by the defendant/respondent, if accepted, could only create equitable interest and therefore not capable of overriding or competing with the plaintiff/appellant’s evidence of legal title to the land in dispute.”

Learned counsel argued that it was an error for the trial court to have used evidence given in an earlier proceeding between the parties over the disputed land to establish the fact of purchase, this being an issue in the matter before it.

Counsel further argued that, although evidence in previous proceedings could be used in cross-examination as to credit, it would be an error to treat such evidence as being evidence in the case being tried.The case of Alade v. Aborishade 5 FSC p. 167 was cited as authority in support of the submissions.

Learned counsel appearing on behalf of the respondent agreed that the lower court had indeed relied on evidence given in other proceedings in coming to a decision in this matter, and added that, in his submission, the court had no right to do so.

The learned trial Judge appeared to have had no difficulty in accepting the appellant’s case on title to the disputed land under customary law.

He said so in the following words:-

“I accept the facts deposed by the plaintiff that he deforested the large area shown on the plan he filed and by the custom of the place he had become the owner and was therefore in a position to make grants of the land to other people as he has done.

Where he makes a grant for a consideration or by way of a gift, such land area passes to the grantee.”

Having found, as above, that title to the disputed land was in the appellant, it is our view that the onus is clearly on the respondent to establish that the appellant had divested himself of such title by a sale transaction in which such title would pass.

The learned trial Judge was no doubt conscious of this burden when he stated as follows in the judgment:-

“The defendant has by her pleadings based her right to the land on purchase. This averment was not fully borne out by the evidence. She did not give full evidence of purchase as she did not say what the consideration was or who was present. One thing is however left in no doubt that she has been in possession for a long time and the amount paid is to be found in the proceedings from the customary court Exhibit “B”.

The judgment then went on to quote the actual testimony on oath by the appellant before the Customary Court in Exhibit “B” and it was from this testimony that the learned trial Judge, erroneously in our view, collected evidence of sale of the disputed land to the respondent and the consideration therefor. See Alade v. Aborishade

5 FSC p. 167 and particularly at p. 178 where the Federal Supreme Court stated as follows:-

“True it is that, in the last instance in particular, the learned Judge, in accepting as evidence before him the evidence given in the 1951 case used that evidence in a manner adverse to the respondent, in whose favour he ultimately gave judgment, but that does not alter the legal position which this court has stated on numerous occasions which is that evidence given in a previous case can never be accepted as evidence by the court trying a latter case except where Section 34(1) of the Evidence Ordinance applied.

The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that. The pleadings in an earlier case may, however, be referred to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other to the later case. The judgment in an earlier case frequently is used perfectly properly in a later case, the classic instance being, of course, on a plea of res judicata, but it can only be used there provided the incidents necessary to support such a plea are fully observed.”

As we are in no position to speculate on what the decision of the lower court would have been if the evidence in the earlier proceedings between the parties in the Customary Court (Exhibit “B”) had not been used in the manner revealed in the judgment now on appeal, we have decided that this appeal should be allowed.

We accordingly set aside the decision of the lower court as well as the order of costs in this matter dated 6th February, 1975 and remit the case to the Ubiaja Judicial Division of the High Court of Bendel State for a hearing de-novo before another Judge. The appellant is awarded costs assessed at N180 against the respondent.

Other Citation: (1978) LCN/2109(SC)