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Alhaji Saratu Adeleke & Ors. V. Sanusi Iyanda & Ors. (SC.56/1996, 1 Jun 2001)

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➥ CASE SUMMARY OF:
Alhaji Saratu Adeleke & Ors. V. Sanusi Iyanda & Ors. (SC.56/1996, 1 Jun 2001)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Statutory right of occupancy;
Minimal evidence;
Burden is of proof.

➥ CASE FACT/HISTORY
The plaintiffs (now appellants) sued at the High Court, Ibadan claiming against the defendants a declaration that they are entitled to statutory rights of occupancy in respect of three parcels of land verged red and marked A2, B and C respectively in plaintiffs’ survey plan No. LL 9282, damages for trespass and perpetual injunction.

The plaintiffs pleaded that Laamo in his life time granted portions of his land at Isebo to each of his seven sons absolutely for farming. He also granted land to his war lieutenants who included Efunwole Okesina and Areja, and also his domestics who included Fuleso. The area covered by the parcels marked and in the survey plan was part of the land granted to Ariwoola absolutely. He farmed it and when he died his son Akinleye inherited the land. When Akinleye was Mogaji he sold the areas marked and to one Madam Osuntola to defend a case he was involved in. Madam Osuntola’s son called Lawani sold the land back to Chief Yesufu Itanola Laamo who took possession thereof some 50 years back from the time pleadings were settled in 1985. In 1977, Chief Itanola Laamo sold the land to the 1st plaintiff. The 1st plaintiff later granted portions to 2nd and 3rd plaintiffs, her children. The 4th and 5th plaintiffs are concerned with the parcel marked A2 which, as I said, does not appear to have been put in issue. The learned trial Judge himself (Olowofoyeku, J.) said so as follows:- “In regard to area (A2) of Exhibit ‘A’ I have no evidence from the plaintiffs’ side complaining of any trespass or claim to the same by any of the defendants. Also the defence case as presented before the court did not lay any claim by any of the defendants (to) that area.”

On the other hand, the defendants aver that there was no absolute grant by Laamo to his children but that he merely permitted some of his children to farm on his land at Isebo and that after his death, the land became family property. But they admitted, as pleaded by the plaintiffs, that Laamo made absolute grant to his war lieutenants and domestics. As regards the area covered by parcels B and C, the defendants pleaded that Omokebe and Ariwoola (children of Laamo) merely farmed on them and that after they died, Akinleye and another farmed on the land. Their pleading is that while that land was family property, it was sold by Yesufu Itanola Laamo and his children to 4th defendant in 1977 and that sometime later 4th defendant sold a portion to 3rd defendant. It is also pleaded that Laamo granted a portion of the area of parcels and to one Dada, the grandfather of 1st defendant absolutely. When Dada died, his children who included the 1st defendant’s father inherited his land;the 1st defendant and his brother later inherited the land. The 1st defendant built on part of the land and sold part to 2nd defendant who has also erected a building thereon. At the hearing of the case, Yesufu Itanola Laamo whom the defendants pleaded sold part of the land in dispute testified as PW2. He said he was the Mogaji of Laamo family. He gave evidence in support of the absolute grant made by Laamo to his seven sons and his war lieutenants and domestics.

➥ ISSUE(S)
I. Whether the failure of the Court below to consider and pronounce upon the second issue validly raised and argued by the appellants in their brief of argument before that Court did not occasion a miscarriage of justice?

II. Whether the Court of Appeal was right to have held that there was a lacuna in the case of the appellants on the ground that there was no corroboration of the testimony of PW2 on the sale of the disputed land to him by Lawani when that Court failed to advert to the adequate submissions made in the appellants’ brief on the issue in the court below?

Available:  Michael Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. (2015) - SC

➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]

↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.

[THE LOWER COURT CONSIDERED ABD PRONOUNCED ON THE SECOND ISSUE
‘Going through the judgment of the lower court, it is clear that it considered the above issue at length. After quoting in extenso the relevant passage from the judgment of the trial Judge, the lower court observed inter alia: “The trial Judge again erroneously brought the personal knowledge he had acquired some 20 years earlier into the affair to determine whether the price at which 2nd P.W. had claimed he bought the land from Lawani was a reasonable one. This was most uncalled for, and irrelevant…I have no doubt that the learned trial Judge was wrong to have relied on his private knowledge of what lands sold for some 20 years earlier to determine whether or not the evidence of 2nd P.W. in the current case was credible. I regret to say that the lower court had by so stating unnecessarily descended into the arena and taken up the fight of one of the contestants. The defendants had not pleaded or sought to show that £55 was not a fair price to pay for the land in dispute at the time 2nd P.W. claimed he bought the land. No questions had been asked of 2nd P.W. as to why he bought for such high price. It could well be that the land at the time contained Iroko trees or other valuable crops. The trial Judge had through the mistake which was clearly avoidable exposed his judgment to a deserved criticism.” I think this was an appropriate consideration of and pronouncement on that issue. I find no merit in issue 2.’]
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.

[THE LAND WAS NOT FAMILY PROPERTY, AND THE DEFENDANT/RESPONDENT CORROBORATES THE APPELLANT IN THIS RESPECT
‘In para. 19 of the amended statement of claim, it is averred as follows:- “Sometime in 1977, the said Chief Yesufu Itanola Laamo sold the area marked ‘B’ and ‘C’ to the 1st plaintiff under the Native Law and Custom and later executed documents of sale in 1977 with his children in favour of the 1st plaintiff to confirm the sale.” This evidently is a claim that the said Yesufu Itanola Laamo sold the land as his personal property (merely joining his own children as vendors and not the principal members of Laamo family were it family property beit noted). In the same manner, the defendants averred in para. 12A of the amended statement of defence as follows: “Sometimes (sic) in 1977, Yesufu Itanola Laamo and his children sold a portion (measuring approximately 3 acres) of the area marked ‘B’ and ‘C’ in survey plan No. LL 9282 to the 4th defendant who was also given a purchase receipt.” It seems obvious here too that the same Yesufu Itanola Laamo was alleged to have sold the land as his personal property in conjunction with his children. Having regard to the above, it would not have presented any difficulty for the two courts below to hold that the said P.W.2 sold the land in dispute as his personal property either by virtue of the consequences of the inter vivos grant by Laamo to his male children or in any case by virtue of the repurchase made by P.W.2 as presented by the plaintiffs. It is reasonable to accept that any of those two alternative sources of power to sell would certainly support the sale of the land in question as personal property by Yesufu Itanola Laamo. In further support of the inter vivos grant, there is some evidence coming from the defendants from which this can at least be inferred. First, is the evidence of D.W.2, Karimu Adegoke Taiwo, as follows:- “I have heard of my grandfather and Laamo are brothers. I know Ajayi, Omokebe and Ariwoola, Taiwo Osuntala, Fabiyi-Olusingbin. They are children of Laamo…I know land at Isebo. At the time of Bale of Maya, Laamo acquired land at Isebo. I know the parcel of land in dispute. They are at Isebo. They were part of Laamo’s land, Laamo farmed on the land in dispute. During his (sic) reign of Iba Oluyola, Laamo gave Ariwoola part of the land. Ariwoola and Omokebe farmed on the land in dispute. Laojo was Omokebe’s son. Akinleye was the son of Ariwoola. After the time of Omokebe and Ariwoola, the children succeeded to the land in dispute farming the same.” (Italics mine for emphasis) Second, D.W.4, Jimoh Bolarinwa Laamo, testified thus:- “I know the land in dispute at Isebo Area Ibadan…Ariwoola and Omokebe were Laamo’s children. They farmed the bigger parcel of the land in dispute planting food crops. Laamo granted them the land.” I think this is enough evidence coming from witnesses presented by the defendants which goes to strengthen the case of the plaintiffs on the very point that Laamo shared or granted land to his male children. That then contradicts the case of the defendants that Laamo’s land (including the land in dispute) remained unshared family property. If the land in dispute was family property of Laamo, it could only be sold by the Mogaji with the concurrence of the principal members of the family: see Coker v. Oguntola (1985) 2 NWLR (Pt. 5) 87; Folami v. Cole (1990) 2 NWLR (Pt. 133) 445; Ayanbode v. Balogun (1990) 5 NWLR (Pt. 151) 392. The real issue in this case, therefore, must be to whom did P.W.2 sell the property and in what capacity.’

Available:  Archibong Ekpanya v. Grace S. Akpan & Ors. (1988)

⦿ THE ONLY EVIDENCE OF VALUE IS THAT OF THE PLAINTIFF AND THE TRIAL COURT WAS BOUND TO ACT ON IT
‘The only evidence of value before the trial court as to the sale of this land in dispute was that of P.W.2 and the 1st plaintiff. In his evidence, P.W.2 said he sold the land to the 1st plaintiff and that it was his personal land. The evidence of the 1st plaintiff can be aligned with that. I do not think it is difficult to accept that P.W.2 is the vital witness who can say to whom he sold his land having regard to the relevant averments of the parties. He has accordingly given that evidence which has not in fact been contradicted by any other admissible evidence. The trial judge was bound to accept and act on that evidence, even if it had been minimal evidence, that P.W.2 sold the land in dispute to the appellant: see Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1 at 12; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 at 363-364. It is a principle of law that civil cases generally are decided on the balance of probabilities. This principle applies even where a declaration of title to land is involved. As said by this court per Ibekwe JSC in Kaiyaoja v. Egunla (1974) NSCC (Vol.9) 606 at 609:- “This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo v. Cookey Gam, 2 NLR 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title, and that it never shifts to the defendant throughout the trial. The difference therefore, lies, not in the standard of proof, but on the burden of proof.”’

Available:  Senator Abraham Ade Adesanya v. President Of The Federal Republic of Nigeria & Anor. (1981)

‘This burden of proof takes cognizance, of course, of the imaginary scale to determine to what side the evidence tilts the scale. Where the plaintiff has adduced admissible evidence which is satisfactory in the context of the case, and none is available from the defendant, the case will be decided upon a minimum of proof. This makes the burden lighter. In the present case there is no admissible evidence adduced by the defendants to compete with that of the plaintiffs as to the party entitled to the land in dispute. Therefore the scale naturally tilts in favour of the plaintiffs.’]
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✓ DECISION:
‘The lower court failed to appreciate this and to correct the situation by doing what the trial judge ought to have done. This court is entitled , and indeed bound, to accept that evidence. In the result, it must be held that the 1st, 2nd and 3rd plaintiffs proved their claim to the land in dispute, namely, the parcels of land verged red and marked B and C on survey plan No. LL 9282. I therefore allow the appeal and set aside the judgments of the lower courts. I make a declaration that the plaintiffs concerned are entitled to a statutory right of occupancy in respect of the said parcels of land. I award damages of ₦1,000.00 against each of the defendants in favour of the said plaintiffs. I order perpetual injunction against all the defendants whether by themselves, their privies, agents and servants, or howsoever described from further trespassing or remaining on the parcels of land in question. I award costs as follows: ₦2,500.00 as costs at the trial court, ₦5,000.00 as costs at the lower court and ₦10,000.00 as costs in this appeal against the defendants jointly and severally.’

➥ FURTHER DICTA:
⦿ A TRIAL JUDGE SHOULD RESTRICT HIMSELF TO THE EVIDENCE PRESENTED BY THE PARTIES ONLY AND SHOULD NOT RELY ON HIS PERSONAL KNOWLEDGE
A trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law: see Bornu Holdings Ltd. v. Bogoco (1971) 1 All NLR 324 at 330; Adeniyi v. Adeniyi (1972) 4 SC 10 at 17; Shodeinde v. Ahmadiyya Movement-in-Islam (1983) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate court to intervene and if the appellate court can make its own findings from the evidence available, it will interfere with the findings of the trial judge since it is in as good a position as the trial court on that score: see Fatoyinbo v. Williams alias Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972) 1 ALL NLR (Pt. 2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (vol. 10) 519 at 533. — Uwaifo JSC.

⦿ EVIDENCE AT VARIANCE WITH PLEADED FACTS GOES TO NO ISSUE
The evidence of these two witnesses for the defence is at variance with para. 12A of the amended statement of defence which says P.W.2 and his children sold the land to 4th defendant. Whereas these witnesses indicate by their evidence that it was the family of Laamo that sold the land. The evidence therefore goes to no issue and ought to be discountenanced. — Uwaifo JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Uwaifo, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Olaseeni Okunloye

⦿ FOR THE RESPONDENT(S)
Alhaji A. Isoke-Gbenga

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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