➥ CASE SUMMARY OF:
Chife Amodu Tijani Dada v. Mr Jacob Bankole (2008) – SC
by B.C. “PipAr” Chima
➥ COURT:
Supreme Court – S.C. 40/2003
➥ JUDGEMENT DELIVERED ON:
Friday, the 18th day of January 2008
➥ AREA(S) OF LAW
Using evidence from previous proceedings;
Customary tenancy.
➥ NOTABLE DICTA
⦿ WITNESS EVIDENCE IN PREVIOUS PROCEEDINGS
It is wrong and improper to treat the evidence given by a witness in a previous proceeding as one of truth in a subsequent or later proceeding, in which he has not given evidence. See Obawole & Anor. v. Coker (1994) 5 NWLR 416, Alade v. Aborishade (supra); Enang & Anor. V. Ukanem & Ors. (1962) 1 All.N.LR. 530, and Ariku v. Ajiwogbo (1962) 2 S.C.N.L.R 369. — G.A. Oguntade, JSC.
⦿ APPEAL COURT MUST DECIDE ALL RELEVANT ISSUES WITHIN THE RECORD
It is good law that an appellate court must examine and decide on all relevant issues in the appeal. That is what the Court of Appeal did and I cannot fault the court. This court cannot gag the Court of Appeal in the re-evaluation of evidence, as long as the court does that within the precinct or purview of the Record, and that is exactly what the court did; and so, a full stop. — Niki Tobi JSC.
⦿ EVIDENCE BY WITNESS IN PREVIOUS PROCEEDINGS CANNOT BE USED IN LATER PROCEEDING
It is settled law that evidence given in a previous case cannot be accepted as evidence in a subsequent proceedings except in conditions where the provisions of section 34(1) of the Evidence Act applies. Even where a witness who testified in a previous proceeding testifies again in a subsequent proceeding, the previous evidence has no greater value than its use in cross-examination of the witness as to his credit. Romaine v. Romaine (1972) 4 NWLR (Part 238) 650 at 669; Ayinde v. Salawu (1989) 3 NWLR (Part 109) 297 at 315; Alade v. Aborishade (1960) 5 FSC 167; Irenye v. Opune (1985) 2 NWLR (Part 5) 1 at 6-8 Sanyaolu v. Coker (1983) 1 SCNLR 168. — F.F. Tabai JSC.
⦿ PLEA FOUNDED ON THE ALLEGATION OF CUSTOMARY TENANCY – LEGAL CONSEQUENCES
Now before proceeding to analyse the evidence, let me restate the legal consequences on the issue of burden of proof when a claim is founded on customary tenancy. It is settled principle of law that a claim which seeks a declaration that the Defendants are customary tenants of the plaintiff and other consequential reliefs emanating there from postulates that the Defendants are in exclusive possession of the land in dispute, and by the operation of Section 146 of the Evidence Act Cap. E14 of the Laws of the Federation, there is presumption that the Defendants in such exclusive possession are the owners of the land in dispute until the contrary is proved to rebut that presumption. The only way to rebut the presumption is by strict proof of the alleged customary tenancy. That is the danger of a plea founded on the allegation of customary tenancy. — F.F. Tabai JSC.
⦿ PLAINTIFF WHO CLAIMS CUSTOMARY TENANCY CANNOT BE IN EXCLUSIVE POSSESSION
This is yet another misconception of the legal issue raised in the case. Once a Plaintiff claims that a Defendant is his customary tenant on the land in dispute and claims relief based thereon, he admits unequivocally that the Defendant is in exclusive possession of the land in dispute. It would be a contradiction in terms therefore for a Plaintiff whose claim is founded on customary tenancy to also assert that he is in exclusive possession. — F.F. Tabai JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
George Adesola Oguntade, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
F.O. Akerele.
⦿ FOR THE RESPONDENT
O.O. Ojutalayo.
➥ CASE HISTORY
The appellants, as the representatives of Ikotun and Maton families of lyesi Otta, Ogun State brought their suit against the respondent (as defendant) as the representative of Isidana Family of Iyesi Otta, Ogun State.
In their 3rd Further Amended Statement of Claim, the appellants claimed against the respondents the following reliefs, inter alia: “A declaration that the plaintiff is entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being at lyesi village, Otta, Ogun State which is clearly delineated blue on the survey Plan No. SEW/W/2496/4 dated 8th May, 1984. Annual rent of the said land being N100.00.”
The suit was tried by Oduntan J. of the Ogun State High Court. The Plaintiffs called six witnesses. The defendants called seven witnesses. On 19-12-94, the trial judge in his judgment granted all the four reliefs sought by the plaintiff. The defendant was dissatisfied with the said judgment. He brought an appeal before the Court of Appeal, Ibadan (hereinafter referred to as ‘the Court below’).
The Court below in its judgment allowed the appeal. The judgment of the trial court was set aside. Although the court below did not specifically say so, but the implication of the judgment was that the plaintiffs’ claims in their entirely were dismissed.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
I. Whether the learned Justices of the Court of Appeal were not right in holding that the learned trial judge had made a wrong use of evidence in previous proceedings in a gross manner which engendered a miscarriage of justice and thus vitiated the judgment of the learned trial judge?
RULING: IN RESPONDENT’S FAVOUR.
A. It is apparent from the passage I have reproduced above from the judgment of the trial judge that the court used the evidence given by Isaac Bankole in a previous case as if he had given the evidence in the current case. The evidence given by Isaac Bankole in exhibit ‘A’ was used by the trial judge to assess the veracity of the defence witnesses in the current case. The evidence given in the current case which did not conform with that of Isaac Bankole on the previous case was seen as untrue. This was a very erroneous approach. The court below in the lead judgment of Onalaja J.C.A. (presiding) reacted to the occurrence in these words: “Applying the cases of Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) page 297 at 315; Alade v. Aborisade (1960) 5 FSC 167 at 172-173; Owoyin v. Omotosho (1961) 1 All NLR 304 at 308; Ariku v. Ajiwogbo (1962) 1 All NLR 629 at 631-2 all pointed to the rule that evidence given in a previous case can never be accepted as evidence by the court trying a later case except under Section 34(1) Evidence Act, which was not applied by the learned trial judge. Having not complied with Section 34 Evidence Act, Exhibit ‘A’ was inadmissible notwithstanding its admissibility without objection by appellant. As Exhibit ‘A’ was inadmissible this court has power to expunge it from the record of appeal as a trial court was only allowed to admit admissible evidence, so this Court should expunge Exhibit A as decided in Ariku v. Ajiwogbo (supra).” I agree with the reasoning and conclusion of the court below on the point.
B. The evidence of 2nd P.W. above conveys that it was part of the land given to Akilodi/Owolola family that the Owolola family gave to the defendant as customary tenant. Remarkably Owolola family is not a party to this case. Further, the evidence suggests that Alfa Salisu Fatusi owns a portion of the land being litigated upon in this case and he has not been made a party. If the plaintiff has not joined Owolola and Alfa Salisu Fatusi to the suit, how could a declaration of title be made in plaintiff’s favour? See Sanyaolu v. Coker (1983) 1 S.C.N.L.R. 170 at 181 and Oduola v. Gbadebo Coker (1981) 5 SC. 197 at 220..On the whole, I am satisfied that the court below was correct in its decision to dismiss plaintiff’s suit. The plaintiffs woefully failed to establish by evidence the title which they asserted against the defendant. I would accordingly dismiss this appeal with N10,000.00 costs against the plaintiffs/appellants in favour of the defendants/respondents.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 34(1), 146, of the then Evidence Act.
➥ REFERENCED (CASE)
⦿ THERE IS PRESUMPTION OF OWNERSHIP IN CUSTOMARY TENANT UNLESS REBUTTED
In Raphel Udeze & Ors v. Paul Chidebe & Ors (1990) 1 NWLR (Part 125) 141 at 160-161 this Court per Nnaemeka-Agu JSC stated: “It is left for me to mention that the courts below also found that although the appellants pleaded that the respondents were their customary tenants who occupy the land in dispute on payment of tribute, they failed to proved such tenancy, It is significant to note that a customary tenant is in possession of his holding during good behaviour and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant and therefore in possession, then like any other person in possession of land, there is a presumption of ownership in his favour. Although the presumption is rebuttable by due proof of a tenancy, the onus is in the adversary to rebut it if he can. Where, as in this case, the customary tenancy is not proved, such a pleading may turn out to be a dangerous admission of possession in the opposite party upon which the trial court may base a presumption of ownership, unless, of course, it is rebutted.”
➥ REFERENCED (OTHERS)
