Legalpedia Citation: (2023-08) Legalpedia 59175 (CA)

In the Court of Appeal

Holden At Ado-Ekiti

Thu Aug 31, 2023

Suit Number: CA/EK/34/2021

CORAM

Isaiah Olufemi Akeju JCA

Abubakar Muazu Lamido JCA

Olabode Abimbola Adegbehingbe JCA

PARTIES

OMONIYI ADAMEJI

APPELLANTS

1. MRS IYABO ADEGUN
2. MR. JAMES APANISILE (A.K.A. Walk Alone)
3. MR. TUNDE APANISILE

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

There is a parcel of land located at Ekoro farm, behind the General Hospital, Oye-Ekiti, Ekiti State which the Appellant claimed to belong to him. He approached the High Court of Ekiti State, sitting at its Ikole-Ekiti Judicial Division, in Suit No. HCL/6/2016 to claim the land.

The claimant states that in the year 1980, he bought half an hectare of land from this Ekoro farmland for N200.00 (Two hundred naira, only) from the Chiefs and Elders of Iluji Ijagemo Family, namely Chief Dada Oloja, Chief Elemoyin Ojo and Late Chief Ayeni, the ranking Chief of Ijagemo Family. He states further that in the year 2005, he bought from their chief Olufemi Ayeni, the son of Late chief Ayeni, 7 hectares belonging to his father, Late chief Ayeni, for N3,500, 000.00 (Three Million, Five-Hundred Thousand Naira Only) in this farm land.

The defendants, on the other hand, claimed that the land in dispute is the unpartitioned family land owned by the Ijagemo family of Oye-Ekiti The lower Court dismissed the Appellant’s suit. This appeal is the Appellant’s show of understandable displeasure with the judgment of the lower Court.

HELD

Appeal dismissed

ISSUES

Whether the rejection by the lower Court of the written statement on oath made on 21/06/2018 for being inadmissible has not occasioned miscarriage of justice?

Whether from the facts, circumstances pleadings and evidence on record, the Appellant has not proved his case as to entitle him to judgment?

RATIONES DECIDENDI

STATEMENT ON OATH – WHERE A WITNESS FAILS TO FORMALLY CONFIRM OR ADOPT HIS/HER STATEMENT ON OATH

Order 32 Rule 2(3) of the Ekiti State High Court (Civil Procedure) Rules, 2020, which provides that the oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition. The clear provision of the Rules, mentioned above, is to the effect that a witness’ statement on oath must be validated by the prospective witness, at the hearing of the suit, in order to give the statement on oath the requisite stature and effect of admissible evidence for the use of the Court at a trial.

Where a witness fails to formally confirm or adopt the statement on oath ascribed to his or her name, at a trial, such a statement on oath becomes lame and a cobweb in the record of the Court, which a Court has the duty to point out. A witness’ statement on oath which is not formally adopted at the trial will be treated as having been abandoned. See Nwalutu v. NBA & Anor. (2019) LPELR-46916(SC); Majekodunmi v. Ogunseye [2017] LPELR – 42547(SC); and Splinters (Nig.) Ltd & Anor v. Oasis Finance Ltd. (2013) 18 NWLR (Pt. 1385) 188 at 227. – Per I. O. Akeju, JCA

STATEMENT ON OATH – WHERE A COURT TREATS THE QUESTION OF ABANDONMENT OF A STATEMENT ON OATH IN ITS JUDGMENT

The fact that the lower Court treated the question of the abandonment of the statement on oath in issue in its judgment did not amount to denial of fair hearing to the appellant, who had the opportunity to address the Court on the issue but failed or abstained from doing so. It was the duty of the lower Court to simply identify abandoned processes already filed in its record and put them in the waste bin, as the lower Court did. Commenting on what already exists in a case is not raising an issue suo motu. See Akeredolu v. Abraham [2018] 10 NWLR (Pt. 1628) 510 at 532-533 and the case of Ikenta Best (Nigeria) Ltd. v. A.-G., Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 642 where the Court stated:

“A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct”. – Per I. O. Akeju, JCA

PROCESS – THE FATE OF AN INCOMPETENT PROCESS

The lower Court merely, appropriately, conducted a housekeeping exercise and noted an apparently helpless and hopeless process in its record. An incompetent process remains without legal value no matter how long it takes. See Manson v. Halliburton Energy Services Ltd. [2007] 2 NWLR (Pt. 1018) 211 at 245. Parties cannot by conduct or consent alter the Constitution or a statute. Where parties, through their counsel, request the Court to adopt a procedure or course of action not authorized by law or specifically prohibited by it, the Court is under a duty to turn down such a request. See Ogundare J. S. C. Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) 203 at 252 and Oviasu v. Oviasu [1973] 11 SC 315. – Per I. O. Akeju, JCA

PROOF – BURDEN AND STANDARD OF PROOF IN LAND MATTERS

…to succeed in a claim for a declaration of title to land, the claimant (here, the appellant) has the onus of proving his case. This statement conforms to the statutory prescription in Sections 131, 132- 133(1) of the Evidence Act, 2011. In that regard, the Court must be satisfied as to:

(a) the precise nature of title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and

(b) evidence establishing the title of the nature claimed. See Adesanya v. Aderonmu [2000] 9 NWLR (Pt. 672) 370 at 382 and Emegwara v. Nwaimo [1953] 14 WACA 347.– Per I. O. Akeju, JCA

LAND – WAYS OF PROVING TITLE TO LAND

The five ways by which title to land may be proved are as follows:

1. by traditional evidence;

1. by production of documents of title;

1. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it;

1. by acts of long possession and enjoyment of the land; and

277. by proof of possession of connected or adjacent land. See Piero v. Tenalo [1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277. –Per I. O. Akeju, JCA

WITNESS – WHEN EVIDENCE OF WITNESS SUPPORTS THE CASE OF THE OPPONENT IN THE CASE

When the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent is entitled to take advantage of the evidence to strengthen his case. That will be an admission against the interest of the party that called the witness and the admission is relevant and admissible evidence. See Onisaodu v Elewuju [2006] 13 NWLR (Pt. 998) 517 at 529-530. – Per I. O. Akeju, JCA

ROOT OF TITLE – DUTY OF CLAIMANT TO PROVE ROOT OF TITLE HE BASES HIS CLAIM ON

Where, in an action for declaration of title to land, a party bases his title on a purchase or grant according to custom from a particular individual, that party must go further to plead and prove the origin of the title of that particular person. Consequently, mere production of a purchase receipt is not enough. Where a claimant fails to plead and prove the root of title, he cannot fall back and rely on acts of possession. See Otanma v. Youdubagha [2006] 2 NWLR (Pt. 964) 337 at 359. – Per I. O. Akeju, JCA

COURTS – CONDUCT OF APPELLATE COURTS IN EVALUATING TRIAL COURT JUDGMENTS

Where the trial Court gave reasons for making the findings it made, an appellate Court will be fully in order if it proceeds to look at those reasons and if the reasons are not satisfactory, the appellate Court will come to the conclusion that any advantage enjoyed by the trial Court by reason of having seen and heard the witnesses was not and could not be sufficient to explain or/and justify the trial Court’s conclusions. An appellate Court has jurisdiction to look at the evidence on record to see whether they justify the conclusions of the learned trial judge. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at page 319 (per Oputa, JSC.) and Lawal Buraimoh Fatoyinbo v. S. A. Williams (1956) 1 F.S.C. 87 at 89. – Per I. O. Akeju, JCA

LAND – WHERE A CLAIMANT PLEADS A PARTICULAR ROOT OF TITLE

In Okhuarobo v. Aigbe [2002] 9 NWLR (Pt. 771) 29 at 57 Kutigi J.S.C. (as he then was) stated that:

“It is settled law that when a party pleads purchase or gift as his root of title as in this case, he either succeeds in proving the purchase or gift or he fails. Having failed to prove the title pleaded, it will be wrong to turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. See Balogun v. Akanji [1988] 1 NWLR (Pt. 70) 301.” – Per I. O. Akeju, JCA

TITLE – WHEN A PARTY FAILS TO PROVE ROOT OF TITLE HE/SHE CLAIMED

The appellant was not entitled to rely on acts of possession having failed to prove the title he claimed. It is the law that where the claimant relies on evidence of acquisition of title by grant, he is under a duty to prove that grant to the satisfaction of the trial Court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where the proof of the grant is inconclusive, the bottom is knocked out of the plaintiff’s case. When his root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession. It is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that root. See Odofin v. Ayoola [1984] NSCC 711 at 731. – Per I. O. Akeju, JCA

POSSESSION – BURDEN OF PROOVING TITLE AGAINST A PERSON IN POSSESSION

Section 143 of the Evidence Act, 2011 which provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner, creates a presumption of ownership. But its operation will be dislodged when another person proves a better title to the property in dispute. Where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish that he has a better title to the land than the person in possession. See Kyari v. Alkali [2001] 11 NWLR (Pt.724) 412 at 439. – Per I. O. Akeju, JCA

LAND – WHEN FAMILY LAND IS SOLD WITHOUT CONSENT OF FAMILY HEAD

It is settled that a sale of family land by a family member without the consent of the family head and the principal members of the family is void ab initio. The head of the family must consent thereto otherwise such purported transfer of title will be void ab initio. See Odukwe v. Ogunbiyi [1998] 8 NWLR (Pt 561) 339 at 351. – Per I. O. Akeju, JCA

JUDGMENT – EFFECTS OF ERROR IN JUDGMENT

It should be noted that it is not every slip or error that is found in a judgment that will attract success to such an appeal. It is only when such slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate Court will interfere and the appeal allowed. See Ipinlaiye II v. Olukotun [1999] 6 NWLR (Pt. 453) 148 at 174 and Oladele v. Aromolaran II [1996] 6 NWLR (Pt. 453) 180. – Per I. O. Akeju, JCA

POSSESSION – WHEN A PARTY IS IN EXCLUSIVE POSSESSION OF LAND IN DISPUTE

The law is settled that possession, the admission of which is capable of raising the presumption of ownership, stipulated in Section 143 of the Evidence Act must be that which amounts to dejure exclusive possession of land in dispute and not mere occupation with no colour of right whatsoever. See Ekennia v Nkpakara [1997] 5 NWLR (Pt. 504) 152 at 166.  – Per I. O. Akeju, JCA

CASES CITED

STATUTES REFERRED TO

1. Ekiti State High Court (Civil Procedure) Rules, 2020
2. Evidence Act, 2011

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