CORAM
PARTIES
1. GODDY EDOSA
2. UHUNAMURE AGHO
MRS. EKOMWENRIENRIEN OGIEMWANRE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent instituted an action before the High Court against her brother, the 2nd Appellant, and 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. Ehimwenma 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. She further contended that her father, 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 and same was done in the presence of 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 and 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 however discovered at a stage that the 2nd Appellant was laying claim to the property hence, she instructed her lawyer to issue a quit notice. 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 claiming that she is entitled to a Statutory Right of Occupancy in respect of the piece of land, the sum of N8,000,000.00 being damages for trespass, perpetual injunction to restrain the Defendants or their agents from developing the two rooms apartment. At the conclusion of the trial, the learned trial Judge entered judgment in favour of the Plaintiff/ Respondent. On appeal, the lower Court resolved both issues against the Defendants/Appellants and dismissed the appeal as lacking in merit. The Defendants/Appellants are still dissatisfied and have further appealed to this Court.
HELD
Appeal Allowed
ISSUES
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.
RATIONES DECIDENDI
LAND LAW,
OWNERSHIP OF PROPERTY – METHODS OF ESTABLISHING OWNERSHIP OF PROPERTY
‘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”.
ACTION, LAW OF EVIDENCE
DECLARATORY RELIEFS – WHETHER A CLAIMANT MAY RELY ON THE WEAKNESS OF THE DEFENCE IN A CLAIM FOR DECLARATORY RELIEFS
“It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the 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; 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” –
LAND LAW, WORDS AND PHRASES
TRADITIONAL HISTORY -MEANING OF TRADITIONAL HISTORY
“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.”
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PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS
“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.” –
CONTRADICTION IN EVIDENCE OF A WITNESS – WHETHER ALL CONTRADICTIONS LEADS TO THE REJECTION OF THE EVIDENCE OF A WITNESS
“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” –
PRINCIPLE IN KOJO VS BONSIE (SUPRA) – WHETHER THE PRINCIPLE IN KOJO VS BONSIE (SUPRA) CAN BE RELIED UPON TO JUSTIFY 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:
“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)
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EVALUATION OF EVIDENCE-DUTY OF COURT NOT TO PICK AND CHOOSE WHICH WITNESS TO BELIEVE
“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.” –
PLEADINGS -WHETHER A PARTY MAY SUCCEED ON THE WEAKNESS OF THE OPPONENT’S CASE
“It is also the law that the respondent succeeds only on the strength of her case and not on the weakness of the case of the appellants. Thus, where she fails to prove better title to that of her adversary, her case collapses and is dismissed. See Alhaja Adesanya V. Obiewu (1993) 1 NWLR (Pt. 270) 414, Romaine V. Romaine (1992) 5 SCRJ25 and Mrs. Olayide Okelola V. Adebisi Adeleke (2004) LPELR-2438 (SC).” –
COURT,
CONCURRENT FINDINGS OF FACT BY LOWER COURTS – INSTANCES WHERE THE SUPREME COURT WILL INTERFERE WITH CONCURRENT FINDINGS OF FACTS OF LOWER COURTS
“Since the two lower Courts made concurrent findings of fact, this Court would be slow to interfere unless such findings are either perverse or are bedeviled by error in substantive or procedural law which if not corrected will lead to a miscarriage of justice. See Lokoyi v. Olojo (1983) 8 SC 61. Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Nyesom v. Peterisde (2016) 7 NWLR (Pt. 1512) 452; Nwokocha v. A-G Imo State (2016) 8 NWLR (Pt. 1513) 141; Mainstreet Bank Ltd v. Binna (2016) 12 NWLR (Pt. 1526) 316.” –
DECLARATION OF TITLE TO LAND – ON WHO LIES THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
“It is long established that in an action for declaration of title to land, the burden is on the claimant to prove by credible evidence that he is entitled to the declaration he seeks. He must succeed on the strength his case and not on the weakness of the defence. See Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517; Faleye v. Dada (2016) 15 NWLR (Pt. 1534) 80; Bello v. Eweka (1981) 1 SC 63; Dumez (Nig) Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361.” –
DECLARATION OF TITLE TO LAND-DUTY ON A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND
“In an action for declaration of title to land, the burden is on the claimant to prove with credible and unadulterated evidence that he is entitled to the declaration which he seeks. In doing so, he must succeed on the strength of his own case and not on the weakness of the defendant’s case. See Auta v Ibe (2003) 13 NWLR (Pt. 837) 247 at 268 paras A – C; Onisaodu v Elewuju (2006)13 NWLR (Pt. 998) 517; Ajiboye v Ishola (2006)13 NWLR (Pt. 998) 628, Ashiru v Olukoya (2006)11 NWLR (Pt. 990) 1; Mbani v Bosi (2006)11 NWLR (Pt.991)400.” –
WORDS AND PHRASES
HEARSAY- DEFINITION OF HEARSAY
Section 37 of the Evidence Act 2011 defines hearsay as follows:-
“37. Hearsay means a statement.
(a) Oral or written made otherwise than by a witness in a proceeding, or
(b) contained or recorded in a book, document or any record whatever proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of providing the truth of the matter stated in it.”
Relevant to this judgment is Section 37 (a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
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HEARSAY EVIDENCE – WHETHER HEARSAY EVIDENCE IS ADMISSIBLE
“Finally Section 38 of the Evidence Act 2011 outrightly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words:-
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore, hearsay testimony is inadmissible in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist.”
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CONTRADICTIONS IN EVIDENCE OF A WITNESS – EFFECT OF CONTRADICTIONS IN THE EVIDENCE OF A WITNESS
“What then is the effect of these contradictions in the claimant’s evidence? In Wachukwu v Owunwanne (2011)14 NWLR (Pt. 1266) 1 at 27 paras E – H, this Court stated in very clear terms the nature of contradiction that will result in rejection of evidence of witnesses as follows: –
“Now it is pertinent to reiterate the general principles of the Law on matters of contradiction in evidence of parties before a Court. That it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence.”
CASES CITED