CORAM

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MUSA DATTIJO MUHAMMAD, JUSTICE SUPREME COURT

Kudirat Motonmori Olatokunbo Kekere-Ekun, Justice of the Supreme Court of Nigeria

JOHN INYANG OKORO JUSTICE, COURT OF APEAL

CHIMA CENTUS NWEZE JUSTICE, COURT OF APEAL

EJEMBI EKO JUSTICE, COURT OF APEAL

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PARTIES

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1. OSUADE ADEYINKA AKINBADE

2. DAUDA ADEYINKA AKINBADE

(Substituted by Order of Supreme Court dated 7th July, 2008)

(For themselves and on behalf of other descendants of Akinbade Family)

APPELLANTS 

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1. AYOADE BABATUNDE

2. LANIYI OKUNOLA

3. OYEDIRAN IGE

(For themselves and on behalf of Ogunsile & Ige)

4. DR. Y. O. ASHAMU

5. DR. M. F. PETERS

6. MISS J. O. ASHAMU

7. MISS T. E. ASHAMU

(Substituted in place of Chief E. O. Ashamu deceased)

8. DR. MAJEKODUNMI

9. GANIYU BELLO

10. OYENIKE OGUNSOLA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CIVIL LAW AND PROCEDURE, LAND LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant as Plaintiffs at the trial High Court of Oyo State claimed against the Respondents as Defendants for the following reliefs among other reliefs:-

(a) A declaration that the Plaintiffs who are the descendants of Akinbade are the only persons entitled to the issue of Certificate of Occupancy to all that piece or parcel of farmland situate, lying and being at Akinbade farm, Idi Mango along Idi Iroko Road, Ibadan which is more particularly delineated on Plan No. EFUN/12/OY/88 drawn by Debo Adedeji Licensed Surveyor and is thereon edged RED.

(b) Declaration that the 1st, 2nd and 3rd Defendants as tenants of the Plaintiff have forfeited their rights to remain on the land as a result of purported sale of the land to 4th to 7th Defendants and other Purchasers without the knowledge and consent of the Plaintiffs who are their overlords.

The Respondents on the other hand, as Defendants, counter-claimed against the Plaintiffs/Appellants for the following reliefs among other reliefs:-

(a) A declaration that the 1st, 2nd and 3rd Defendants are true and natural descendants of Akinbade and are therefore entitled to Certificate of Statutory Right of Occupancy in respect of all that land lying and situate at Idi Mango, Idi Iroko Road, Ibadan which is more particularly delineated on Plan Number AD/58/59 drawn by A. Adeoti Licensed Surveyor on 19/5/89 and is thereon edged “RED” excluding the portion already sold.

(b) Declaration that the sale of portion of land verged “YELLOW” on Plan Number AD/58/59 dated 19/5/89 by the 1st, 2nd and 3rd Defendants to the Late E. O. Ashamu is legal, valid and lawful and he is therefore the only person entitled to the issue of Certificate of Statutory Right of Occupancy in respect of the said portion of land. Pleadings were ordered, filed and exchanged. Both sides assert their entitlement to the land in dispute from a common owner, Akinbade, by settlement. Both sides claim ownership through inheritance from Akinbade whose direct descendants the two contend to be. The trial Court found the Appellants entitled to the statutory right of occupancy in respect of the land in dispute granted same and dismissed the Defendants/Respondents counter-claim. Aggrieved by the trial Court’s decision, the Defendants/Respondents appealed to the lower Court. On allowing the appeal, the Court of appeal reversed the trial Court’s decision, found the Defendant’s counter claim made out and granted same. Dissatisfied with the lower Court’s decision, the Appellants have appealed to this Court on a Notice of Appeal containing eight grounds.

 

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HELD

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Appeal dismissed.

 

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ISSUES

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Whether the lower Court is right in setting aside the trial Court’s finding in favour of the Appellants and, instead, finding for the Respondents.

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION- WHEN CAN A PRELIMINARY OBJECTION BE RAISED

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“A preliminary objection, it is settled, is only raised against the competence of the appeal rather than some grounds in the appeal. See Odunukwe v. Ofomata & Anor (2010) 12 SCM 117 at 127 and Yaro v. Arewa Construction Ltd (2008) ALL FWLR (Pt. 400) 603.”-Per MUHAMMAD, J.S.C.

 

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GROUNDS OF APPEAL-WHETHER A GROUND OF APPEAL MUST CONFORM TO A PARTICULAR FORM

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“The rules of our appellate procedure relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality; whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and the Court of Appeal that the appellant shall file a Notice of Appeal, which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable Ground of Appeal, is to give sufficient notice and information, to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to raise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.” (Underlining supplied for emphasis). See also Oloruntoba-Oju v. Abdulraheem (2009) 13 NWLR (Pt. 1157) 83 .”-Per MUHAMMAD, J.S.C.

 

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EVALUATION OF EVIDENCE- WHETHER EVALUATION OF EVIDENCE IS THE PRIMARY DUTY OF A TRIAL COURT

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“Counsel have alluded to a number of legal principles in urging that they are necessary guide in the determination of the appeal. In this wise one agrees more particularly with learned respondents counsel that the task of evaluation of evidence and the ascription of value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing, hearing and assessing the witnesses who testified in proof or contest of the matter. See Adeniji v. Adeniji (1972) 4 SC 10, Woluchem v. Gudi (1981) 5 SC 291 and Congress for Progressive Change v. I.N.E.C. & Ors (2011) LPELR-8257 (SC).”-Per MUHAMMAD, J.S.C.

 

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UNPLEADED FACTS- EFFECT OF EVIDENCE PROFFERED IN RESPECT OF UNPLEADED FACTS

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“It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech. (1990) NWLR (Pt. 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308.” ).”-Per MUHAMMAD, J.S.C.

 

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EVALUATION OF EVIDENCE-INSTANCES WHEN AN APPELLATE COURT WOULD INTERVENE TO EVALUATE EVIDENCE

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“The law is settled, it must be further conceded, that where the trial Court that had the advantage of seeing, hearing and assessing the witnesses failed and or refused to draw the benefit of the advantage and wrongly evaluated and/or entirely declined to evaluate the evidence, the appellate Court must intervene to correctly evaluate the evidence and arrive at the just decision, the evidence as properly evaluated, warrants. Thus in its primary role of reviewing a judgment on appeal in a civil case, where the trial Court’s finding or non-finding of facts is questioned, such as is done in the case at hand, the appellate Court must: avail itself the evidence before the trial Court; know whether the evidence was accepted or rejected legally; know whether the evidence of each side was properly assessed and given its appropriate value and put on an imaginary scale side by side with the evidence of the other side before preferring on the basis of its weight, the evidence of the particular side. See Abisi v. Ekwealor (1993) NWLR (Pt. 302) 643, Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 170) 325 at 339 and Mogaji v. Odofin (1978) 4 SC 1.”-Per MUHAMMAD, J.S.C.

 

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DECLARATORY RELIEFS-WHETHER DECLARATORY RELIEFS ARE GRANTED AS A MATTER OF COURSE

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“Both the appellants and the respondents as plaintiffs and defendants respectively, by virtue of their claim and counter-claim at the trial Court, asserted entitlement to the declaration of the Court as being the rightful owners of the land in dispute. The declaratory reliefs they sought are never granted as a matter of course. The reliefs are obtained on the basis of very strong and cogent case contained in the claimants pleadings and evidence led in support. It is for the plaintiff to satisfy the Court that under all the circumstances of the case he is fully entitled to the discretionary reliefs he urges in his favour. The claimant succeeds on the strength of his case alone and never by virtue of the weakness of the defendants’ case. See Egbunike & Anor v. Muonweoku (1961) NSCC 40, Antra Industry Nigeria Ltd v. Nigerian Bank for Commerce and Industries (1983) 4 NWLR (Pt. 545) 381 and Senator Iyiola Omisore & Anor v. Ogheni Rauf Adesoji Aregbesola & Ors (2015) LPELR-2480 (SC).”-Per MUHAMMAD, J.S.C.

“It is also settled law that a claim for a declaratory relief is a discretionary remedy which is never granted as a matter of course, on the admission of the adverse party or in default of pleadings by the defendant. The claimant must lead evidence to establish his entitlement to the declaration he seeks and may not rely on the weakness of the defence, if any. See: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello v. Eweka (1981) 1 SC 101; Emenike v. P.D.P. (2012) LPELR-7802 (SC) @ 27 D-G.” -Per KEKERE-EKUN, J.S.C.

 

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COUNTERCLAIM –WHETHER A DEFENDANT’S COUNTERCLAIM MAY SUCCEED UPON PROVING SAME WHERE THE PLAINTIFF’S CLAIM FAILS

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“Lastly, the principle must not be forgotten too that a counter-claim is a cross action and where the plaintiff fails in proving his claim the defendant, on proving his counter-claim, may succeed. Whether in respect of the claim or the counter-claim, therefore, the plaintiff or the defendant as the case may be, must discharge the burden of establishing his entitlement to the reliefs he claims. See Alhaji Goni Kyari v. Alhaji Chiroma Alkali & Ors (2001) LPELR-1728 (SC) and Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.”-Per MUHAMMAD, J.S.C.

 

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BURDEN OF PROOF –BURDEN OF PROOF IN CIVIL CASES

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“It is a settled principle of law that in a civil case, the burden of proof lies on the person who desires the Court to give judgment as to any legal right or liability which depends on facts which he asserts to prove that those facts exist.”-Per KEKERE-EKUN, J.S.C.

 

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BURDEN OF PROOF –BURDEN OF PROOF IN A PARTICULAR PROCEEDING

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It is also settled that the burden of proof in a particular proceeding lies on the person who would fail if no further evidence is given on either side. See Sections 131 and 132 of the Evidence Act, 2011. The burden of first proving the existence or non-existence of a particular fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” -Per KEKERE-EKUN, J.S.C.

 

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BURDEN OF PROOF –WHEN WOULD BURDEN OF PROOF SHIFT TO THE OTHER PARTY

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Where a party adduces sufficient evidence to satisfy the Court that the fact sought to be proved is established, the burden shifts to the person against whom judgment would be given if no further evidence were adduced. The burden of proof would then continue to shift until all the issues in the pleadings have been dealt with.

See Section 133 of the Evidence Act. The standard of proof in civil cases is on the balance of probabilities. See: Woluchem v. Gudi (1981) 5 SC 291; A.G. Bayelsa State v. A.G. Rivers State (2006) 18 NWLR (Pt. 1012) 596; Agbakoba v. I.N.E.C. & Ors (2008) 18 NWLR (Pt. 1119) 489.” -Per KEKERE-EKUN, J.S.C.

 

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CUSTOMARY TENANCY – MAIN FEATURE OF CUSTOMARY TENANCY

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“The main feature of customary tenancy is the payment of tribute to the overlord, which entitles the customary tenant to enjoy his holding in perpetuity, subject to good behaviour. There can also be a customary tenancy without the payment of tributes but this must be proved by evidence. See: Makinde v. Akinwale (2000) 1 SC 89; Lawani v. Adeniyi (1964) NSCC (Vol. 3) 231 @ 233. This recognition of the rights of the overlord is paramount in a customary tenancy. See: Okpala v. Okpu (2003) 5 NWLR (Pt. 812) 183; Dashi v. Satlong (2009) 1-2 SC 5; Lasisi v. Tubi (1974) 12 SC (Reprint) 62.” -Per KEKERE-EKUN, J.S.C.

 

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EVALUATION OF EVIDENCE – WHAT IT ENTAILS

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“Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of Nasarawa State & Ors (2012) LPELR-20602 (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) LPELR-279 (SC) (2011) 17 NWLR (Pt. 1276) 422. -Per OKORO, J.S.C.

 

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EVALUATION OF EVIDENCE –WHETHER AN APPELLATE COURT CAN DISTURB FINDINGS OF FACTS AND EVALUATION OF EVIDENCE

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I need to emphasize that it is the duty of a trial Court to evaluate evidence generated before him. Where a trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is not to disturb the findings of facts and evaluation of evidence by the trial Court simply because it could have done it differently so long as the judgment of the trial Court can be supported by the evidence. See Eze v. Okoloagu (2010) 3 NWLR (Pt. 1150) 182.” -Per OKORO, J.S.C.

 

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CUSTOMARY TENANCY –NATURE OF CUSTOMARY TENANCY

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“Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281. -Per OKORO, J.S.C.

“It has indeed, long been pointed out that the theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitled to continue in peaceable enjoyment until they forfeit their rights on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantors; or by putting the land to uses other than those originally agreed upon; or by failure to pay the customary tribute; or by denying the title of the overlord.” -Per NWEZE, J.S.C.

 

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CUSTOMARY TENANCY –CIRCUMSTANCES A CUSTOMARY TENANT MAY SUFFER FORFEITURE

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ADVERSE POSSESSION – WHEN COULD ADVERSE POSSESSION RIPEN TO OWNERSHIP

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“The fact of this case seems to bring it within the principle established by this Court in ONI. v. ARIMORO (1973) 3 SC1 63 at 179; (1973) 8 NSCC 108 at 114 that an adverse and exclusive possession of land for several years could ripen to ownership, particularly when there is no evidence that the plaintiffs who assert the ownership of the land, though aware of the adverse possession; of the defendants, never in those years either took steps to quit them from the land or demand payment from them of any sort of rents. The Court of Appeal (per Adio, JCA, as he then was) applied the principle, established in ONI v. ARIMORO (supra), in IGIEHON v. OMOREGIE (1993) 2 NWLR (Pt. 276) 398 at 408.” -Per EKO, J.S.C.

 

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COMPETING TRADITIONAL HISTORIES – HOW TO DETERMINE WHICH OF THE TRADITIONAL HISTORIES IS MORE PROBABLE

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The trial Court relied on the evidence of traditional history on which the Appellants predicate their claim to the title they assert against the 1st-3rd Respondents, who also situate their title on inheritance and devolution from the original founder of the Akinbade. The case therefore rests on competing traditional histories. The principle of law developed as regards competing traditional histories is: the best way to determine which of the traditional histories is more probable is to test them by reference to the facts and/or events in the recent years established by evidence. MORENIKEJI v. ADEGBOSIN (2003) 4 SC (Pt. 1) 107; (2009) 8 NWLR (Pt. 823) 612; KOJO II v. BONSIE & ANOR. (1957) l WLR 1223 at 1227; ADENLE v. OYEGBADE (1967) NMLR 136.” .” -Per EKO, J.S.C.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Evidence Act, 1990

Evidence Act, 2011https://legalpediaresources.com/admin/laws-of-federation/692

 

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