CORAM
SYLVESTER UMARU ONU
DENNIS ONYEJIFE EDOZIE
PARTIES
ALFRED USIOBAIFO & ANOR. APPELLANTS
CHRISTOPHER USIOBAIFO & ANOR. RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents instituted an action at the High Court of Justice, Benin praying the court for an order declaring that the property situate at No. 107 Forestry Road, Benin City a family property and that the 1st Defendant/Appellant has no right to sell same without the consent of the other principal members of the family as well as setting aside the purported sale of the said property to the 2nd Defendant/Appellant. The case of the Defendants/Appellants was that according to Ishan Customary Law of inheritance, the property in dispute which is the ‘Igiogbe’ belongs exclusively to the 1st Defendant/Appellant being the eldest son of the deceased. But the Plaintiffs/Respondents on the other hand contended that the 1st Defendant/Appellant did not perform the burial rites of their late father which would entitle him to the ‘Igiogbe’ because all the children of the deceased were asked to contribute money towards the burial of their father and when their father’s properties were to be distributed, the property subject matter of the dispute was shared to the 1st Defendant/Appellant to “take care of the house and to use the property in rotation”. At the end of the trial, the learned trial judge held in favour of the Plaintiffs/Respondents and thus being highly displeased by the judgment, the Defendants/Appellants lodged the instant appeal.
HELD
Appeal Dismissed
ISSUES
Whether the plaintiffs (respondents) proved their case and were entitled to judgment? Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the Court. Whether the learned trial judge was right when he suo motu raised issues and resolved them without giving the parties thereto opportunity of being heard. Whether the learned trial judge was right in giving to the plaintiffs (respondents) what they did not ask for.
RATIONES DECIDENDI
BURDEN OF PROOF – BURDEN OF PROOF IN CIVIL CASES
“It is settled in civil cases that he who asserts bears the burden to prove to the satisfaction of the Court and once that burden is discharged the burden to dislodge the ascertion shifts to the other party.See Section 136 and 137 of the Evidence Act 1990 and Duru V. Nwosu (1989) 4 N.W.L.R. (PART 113) 24 at 39 and Awomuti V. Salami (1978) 3 S.C. 105 at 115.”
FAMILY PROPERTY – METHODS OF CREATING FAMILY PROPERTY
“It is settled law that the concept of family property is original to our indigenous society and the bedrock of our law of inheritance. The most common circumstance of creating family property is death intestate of a land owner whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land. Another method of creating family land is by a conveyance inter vivos where land purchased with money belonging to the family. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See the cases of Olowosago & Ors. V. Adebanjo & Ors. (1988) 4 N.W.L.R. 35 (PART 88) 275 at 287, Lewis V. Bankole 1 N.L.R. 81 and Shaw V. Kehinde (1947) 18 N.L.R. 129.”
FAMILY LAND – WHEN DOES FAMILY LAND CEASE TO BE FAMILY LAND?
“Family land ceases to be family land when it is partitioned among beneficiaries. See Olowosago &Ors. V. Adebanjo & Ors. (supra) at page 287 and Balogun V. Balogun (1943)9 WACA 78.”
CONTRADICTION IN EVIDENCE – WHEN WILL EVIDENCE BE REGARDED AS CONTRADICTORY?
“It is settled law that piece of evidence will be regarded as contradiction when it affirms the opposite of what the other evidence has stated not when there is a minor discrepancy between them. See Gabriel V.The State (Supra) at page 468.”
FAMILY LAND – WHETHER FAMILY LAND CAN BE ACQUIRED ABSOLUTELY BY A MEMBER OF THE FAMILY
“Family land, it is settled, cannot be acquired absolutely by any member of that family until it is demarcated. Demarcation in this sense is synonymous to partition.”
FORMULATION OF ISSUES FOR DETERMINATION – WHETHER A JUDGE CAN FORMULATE ISSUES FOR DETERMINATION
“It is trite to say that the formulation of issues in any litigation is ordinarily the prerogative of learned counsel in the case. But this general statement does not shut out the learned trial Judge from formulating issues from available evidence in the absence of any such formulation by learned counsel.”
ISSUES FOR DETERMINATION – ESSENCE OF FORMULATION OF ISSUES FOR DETERMINATION
“The essence of issues formulated is to identify areas of consideration for the just disposal of the case before the trial court. Issues formulated by learned counsel at the court of first instance are invariably reflected in their addresses.”
EVALUATION OF EVIDENCE – DUTY OF THE COURT TO EVALUATE ALL EVIDENCE ADDUCED BEFORE A DECISION IS REACHED.
“It is sacred or bounden duty of the trial court to consider by way of evaluation all the items evidence by whomsoever given before it could arrive at a just decision.”
CASES CITED
Not Available
STATUTES REFERRED TO
Evidence Act Cap. 112 of the Federation of Nigeria.|