CORAM

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Not Available

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PARTIES

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APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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APPEAL, COURT, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE,

 

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SUMMARY OF FACTS

A summary of facts of the case that led to this appeal is that, the Respondents who were the claimants at the lower Court instituted this action by a writ of summons filed on 10/6/2013, claiming for themselves and on behalf of the entire children of Osagade of Late Pa Jejelola against the Defendant/Appellant the reliefs as contained in Paragraph 33 of their Statement of claim. At the close of the pleadings, parties called witnesses to prove their case. The 1st claimant gave evidence in support of their case and called one witness, while the defendant gave evidence in support of his case and also called one witness Adewale Ogunjimi. At the end, judgment was entered partly in favour of the Claimants/Respondents against the Appellant. The lower Court granted reliefs (a), (b), (c) only, while relief (d) was dismissed.

It is against the above decision that the Appellant’s notice of appeal dated 7th day of March, 2017 was filed containing eleven (11) grounds of appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether having regard to the Pleadings and there being no legally admissible evidence in support of the Claimant’s relief before the Court the trial Court was wrong in granting the Claimants’ Claim.

Whether the trial learned Judge was wrong when it granted the Claimants’ Claim based on supposed evidence of partition by the Claimant, when the Claimant’s evidence were contradictory and no legally admissible evidence of partitioning was led by the Claimant.

Whether the learned trial judge was wrong in his finding that the Claimant/Respondents are members of Jeje family considering the totality of the content of Exhibit “G” on the descendants of Jeje.

Whether considering the pleading and the evidence before the trial Court, the trial Judge was wrong in awarding the sum of N50,000:00 as general damages against the Defendants/Appellant in favour of the Respondents.

Whether the learned trial judge was wrong in applying Section 167 (d) of the Evidence Act 2011 to the case of the Appellant to find that the Respondents are members of Jeje family.

Whether having regard to the evidence led by the counter claimant, the trial judge ought to have granted the counter-claim of the counter-claimant.

 

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RATIONES DECIDENDI

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EVIDENCE OF WITNESS(ES) – REQUIREMENT OF THE LAW REGARDING DEPOSITION MADE BY A WITNESS IN OTHER LANGUAGE BUT WHICH WAS TRANSLATED INTO ENGLISH LANGUAGE

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As rightly contended by the Appellant’s counsel the law requires that the witnesses’ deposition made in English language must be tendered in evidence along with the version in the Yoruba language. In GUNDIRI’S CASE (SUPRA) the apex Court did not take kindly to the fact that the depositions adopted were not those made in Hausa with the deposition adopted being English, the Court had posed the question “Whether those depositions adopted were the same as those made by the witnesses?”. The Court had remarked that from indications, the witnesses had adopted depositions which were not in fact made by them since English was foreign to their understanding and that the Appellants owed a duty to the Court to have presented the very depositions made by the witnesses.” – Per AKEJU, JCA

 

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EVIDENCE OF WITNESS(ES) – WHETHER EVIDENCE ELICITED FROM A WITNESS ON OATH OR DURING CROSS-EXAMINATION CONSTITUTES EVIDENCE OF A PARTY

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“It is settled law that deposition on oath of a witness in support of his pleadings constitutes his evidence in the proceedings. Likewise, evidence elicited from a party or his witness under cross examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case. In such a case, you cannot say that the party calls no evidence in support of his case, as the evidence elicited from his opponent under cross examination which are in support of his case constitute his evidence in the case. See AKOMOLAFE VS. GUARDIAN PRESS LTD 2010 3 NWLR PT. 1181 338 AT 351. …

I have earlier said that evidence elicited from a party or his witness under cross examination, which goes to support of the case of the party cross-examining, constitute evidence in support the case of that party. Therefore, in this case all the evidence elicited by the Respondents/Claimants under cross examination from the Defendant/Appellant’s witnesses on facts pleaded by the Respondents, which are relevant to the determination of the issue in controversy between the parties, constitute the Respondents’ evidence in the case.” – Per AKEJU, JCA

 

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WAIVER OF RIGHT – CARDINAL PRINCIPLE OF WAIVER OF RIGHT

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“It is settled law that if a person with full knowledge of the rights, interest, profit or benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has suffered by his not having exercised his rights. See ARIORI VS. ELEMO (1983) 14 NSO PG 8. In the circumstances, just like ARIORI’S case, it is my view that the Appellant waived its rights to complain about the defective witnesses’ statements and consequently estopped from raising the issue on appeal.” – Per AKEJU, JCA

 

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TECHNICALITIES – NEED FOR COURT NOT TO ALLOW TECHNICALITIES OVERRIDE SUBSTANTIAL JUSTICE IN THE DETERMINATION OF A CASE

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“This Court should not allow technicalities raised by the Appellant in his Brief of Argument to defeat the cause of Substantial justice in the hearing and determination of this Appeal. See the cases of: AKPAN VS. BOB (2010) ALL FWLR (Pt. 501) Pg. 896.

AJUWA VS. S.P.D.C (NIG) LTD (2010) ALL FWLR (Pt. 536) Pg.437.”- Per AKEJU, JCA

 

 

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PARTITIONED LAND – EFFECT OF A PARTITIONED LAND TO THE BENEFICIARY

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“It is the law that once family land has been properly partitioned to members of the family, the same confers a permanent personal right on the beneficiary.” – Per AKEJU, JCA

 

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BURDEN OF PROOF – WHETHER HE WHO ASSERTS MUST PROVE

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“In this case, the claimants/Respondents have asserted that Jeje’s properties were partitioned/shared. It is settled law that he who assert must proof. See OKOYE VS. NWANKWO 2014 LPELR-23172 SC. I need to further point out that the claimants can only succeed on the strength of their case.”- Per AKEJU, JCA

 

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PLEADINGS – WHETHER PLEADING ALONE CONSTITUTES EVIDENCE

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“The Appellant’s/defendant’s written deposition does not amount to sufficient evidence or in deed any evidence before the Court to prove that there was no partition. All the Appellant did were to refer to the pleadings. That means that the written deposition is standing on the pleadings as it is. The law is trite; the pleadings alone does not amount to evidence. See ABUE VS. EGBELO & ORS 2017 LPELR 43483 CA.” – Per AKEJU, JCA

 

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PARTITIONED LAND – WHETHER A PRTY CLAIMING PARTITIONING OF FAMILY LAND HAS THE BURDEN OF PROVING SUCH PARTITIONING

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“As rightly contended by the Appellant’s counsel, in law, there is always a presumption against partitioning of family property and the party claiming partitioning of family property has the burden of proving that such partitioning took place. In the instant case, it is my view that there is evidence on record to support the alleged partitioning pleaded by the claimants.”- Per AKEJU, JCA

 

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WITHHOLDING EVIDENCE – STATUTORY PROVISION WITH RESPECT TO PRESUMPTION OF THE LAW ON A PARTY WHO WITHHOLDS EVIDENCE

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“By the said Section 167, the Court may presume the existence of any fact which it thinks likely to have happened, regard been had to common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:

(d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.

It must be pointed out that this Section deals with failure to call evidence and not failure to call a particular witness. See BELLO VS KASSIM (1969) NMLR 148, 152. Therefore, the rule in Section 167 (d) applies where a party fails to adduce evidence by withholding evidence which could have been but was not produced.

In SHODIYA VS. THE STATE (2013) 14 NWLR (PT. 1373) 147 where Alagoa JSC quoted the provisions of Section 167 (d) of the Evidence Act, that the Court may presume evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.

While it is the law that the a party is not bound to call a particular witness where his case can otherwise be proved, its failure to adduce evidence at its disposal which it is supposed to adduce amount to withholding of evidence and calls for invocation of Section 167 (d). See EMEKA VS. CHUBA IKPEAZU & ORS (2017) LPELR – 41920 (SC) where Ogunbiyi JSC, referring to BUHARI VS. OBASANJO per Belgore JSC as he then was held that failure to produce the letter in question meant either that the letter did not exist or if existed, and not produced, it could be presumed that if produced, its contents would not have supported the Appellant’s case.

The purport of the Rule in Section 167 (d) of the Evidence Act is to permit the Court to presume that a Party who withholds evidence which could be but was not produced, would if produced, be unfavourable to or against him. Such a Party withholds the evidence at his peril. A party in civil action in possession of material evidence in support of pleaded facts, and in criminal trials, the prosecution in possession of material evidence, who withholds that evidence which could be but was not produced, does so at his peril.

Failure to adduce vital evidence at a Party’s disposal which he is supposed to adduce amounts to withholding evidence and would raise a presumption that if produced, the evidence would be unfavourable to him.” – Per AKEJU, JCA

 

 

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WITHHOLDING EVIDENCE – CONDITIONS TO BE SATISFIED BEFORE A COURT WILL PRESUME WITHHOLDING OF EVIDENCE

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“It is pertinent to note that, before the presumption under the Section 167 (d) can operate, it must be shown and established that:

(a) Such evidence exists;

(b) That it could be produced;

(c) That it has not been produced and;

(d) That it has been withheld by the person who could produce it,

As held in MUSA VS. YERIMA (1997) 7 NWLR (PT. 511) 27 per Ogundare JSC. In the case at hand, it is my view that all the listed conditions are present, the “Family record of Orisarayi and Egbere’s entry to Jeje Compound” which according to the Appellant led to the application of Section 167 (d) of the Evidence Act exists and was in the Appellant’s custody; it could be produced; but was not produced; the Appellant who could have produced it withheld it. Thus, the Appellant’s failure to produce the said “Family record of Orisarayi and Egbere’s entry to Jeje Compound” squarely amounts to withholding of evidence.” – Per AKEJU, JCA

 

 

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COUNTER CLAIM – ON NATURE OF A COUNTER CLAIM

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“As rightly said by the learned counsel for the Respondents a Counter-Claim is a separate and independent suit before the Court, which the Counter Claimant has the burden to prove to establish same with cogent and credible evidence. Even where the main Suit fails that does not mean the Counter-Claim automatically succeeds. The Counter-Claimant must also prove his case based on balance of probability or preponderance of evidence before same can succeed or fails. See the cases of; AFOLAYAN VS. ARIYO (SUPRA);

GOWON VS. IKE-OKONGWU (SUPRA).” – Per AKEJU, JCA

 

 

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EVIDENCE OF TRADITIONAL HISTORY – ELEMENTS NECESSARY TO PROVE EVIDENCE OF TRADITIONAL HISTORY

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“The Appellant/Counter claimant in this case relied on traditional history. The party who is relying on evidence of traditional history must plead his root of title.  He must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail also, where a person traces the root of his title to a person OR family he must establish how that person or family also came to have title vested in him OR it. See: ODI VS. IYALA (2004) 8 NWLR PT 875 PG 283; EWO VS. ANI (Supra).

I have earlier in this judgment held that the claimants/Respondents are members of Jeje family. In this appeal both the Appellant and the Respondents relied on traditional history and trace their title to Jeje family.

The Appellant/Counter claimant admitted in his pleadings that he is the son of ABIONA who was the daughter of ADEDIDU the child of Jeje. The Counter claimant also admitted that he is not a member of the claimant/Respondents’ family but his mother was born in the claimants’ family.

The Appellant in this appeal, who relied on traditional history in proof of his case, is expected to plead his root of title.  He must show in his pleadings how he came to own and possess the land.  See IBIKUNLE VS LAWANI (Supra); OKOKO VS DAKOLO (2006) 14 NWLR PT 1000 PG 401.” – Per AKEJU, JCA

 

 

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EVIDENCE OF TRADITIONAL HISTORY – DUTY OF THE COURT WHERE BOTH PARTIES PLEAD TRADITIONAL HISTORY

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“Where the Appellant and Respondents in this appeal anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. IBIKUNLE VS. LAWANI (Supra); OKOKO VS DAKOLO (Supra). In this case the contention of the Appellant that there was nothing on other side of the scale of justice to tilt the case in favour of the Respondents rather it tilts to the side of the Appellant, in my view is grossly misconceived.” – Per AKEJU, JCA

 

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EVIDENCE OF TRADITIONAL HISTORY – ELEMENTS NECESSARY TO PROVE TRADITIONAL HISTORY – EFFECT OF FAILURE TO SUFFICIENTLY PROVE THE TRADITIONAL HISTORY

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“It is trite that a party seeking for declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleadings the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. When a party has not given sufficient information in his pleadings as regards the origin OR ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HOJACINTH ANYANWU VS. ROBERT ACHILIKE MBARA (1992) 5 SCNJ PG. 90; IDUNDUN VS. OKUNMAGBA (1976) 9-10 SC PG. 224; ATANDA VS. AJANI (1989) 3 NWLR (Pt. III) PG 511 Per Okoko JSC in ANYAFULU VS. MADUEGBARA MEKE (2014) LPELR 22336.” – Per AKEJU, JCA

 

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BURDEN OF PROOF – ONUS ON A PLAINTIFF TO WIN ON THE STRENGTH OF HIS OWN CASE AND NOT THE WEAKNESS OF THE DEFENDANT’S CASE

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“Clearly, it is settled that a Plaintiff wins with the strength of his case and not on the weakness of the Defendant’s case. A party is only entitled to judgment if the Court believes and accepts his evidence and if such evidence supports his case.  See BELLO VS. ARUWA (1999) 8 NWLR PT 615 PG 454.” – Per AKEJU, JCA

 

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TRESPASS TO LAND – WHETHER ACTS OF OWNERSHIP AND POSSESSION WITHOUT RIGHT TO THE LAND AMOUNTS TO TRESPASS

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“It is settled law that where a person exercising acts of ownership, possession and enjoyment of land does not have any right to the land, such possessory act remain acts of trespass; the said possessory acts would not rise to become acts of possession and enjoyment of the land on the basis of which it can be said that title to land has been established or entitling the person to the award of damages for trespass and/or injunction. See ALLI V. ALESINLOYE 2000 4 SC PT.1 111.” – Per AKEJU, JCA

 

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GENERAL DAMAGES – WHETHER A PLAINTIFF NEEDS TO PROVE ANY QUANTUM OF LOSS BEFORE GENERAL DAMAGES CAN BE AWARDED IN HIS FAVOUR

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“A successful plaintiff/claimant needs not plead or prove any loss or quantum of loss before general damages can be awarded in his favour. The main consideration in the award of this head of relief is whether the claimant has successfully established a particular wrong done to him as in this case. Once this is established, general damage will be awarded in his favour. See SEVEN-UP BOTTLING CO. PLC VS. NKANGA & ORS 2008 LPELR 8462. I have earlier in this judgment held that the Respondents have succeeded in adducing credible evidence to justify their Claims for declaration of title to the property in dispute in this case.

Therefore, the contention of the Appellant that the trial judge erred when he awarded general damage to the Respondents despite the fact that they failed to plead and prove special damage is highly misconceived, misplaced and does not represent the position of the law.” – Per AKEJU, JCA

 

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Evidence Act, 2011

 

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