Alhaji Lamidi Daodu Olowosago Vs Alhaji Amuda I. Adebanjo (1988) LLJR-SC

Alhaji Lamidi Daodu Olowosago Vs Alhaji Amuda I. Adebanjo (1988)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

On the 4th July, 1988, I summarily allowed the appeal of the appellants and indicated that the reasons for so doing will be given today. I proceed hereunder to give the reasons.

This is an appeal against the judgment of the Court of Appeal Division, sitting in Lagos. On the 2nd October, 1985, in a unanimous judgment read by Kolawole J.C.A., with which Ademola J.C.A., and Nnaemeka-Agu J.C.A. (as he then was, but now JSC) concurred, the court set aside the judgment of Desalu, J. of the High Court of Lagos State, sitting at Ikeja and dismissing the claim of the Plaintiffs/Appellants for

“1. A declaration that the Plaintiffs are entitled to the Statutory right of occupancy OR in the alternative a customary right of occupancy in respect of all piece OR parcel of land situate along Lagos Ikorodu Road, Ikorodu Lagos State which land is now particularly shown and delineated by becon No. WN 2722 and WN 2723 respectively same marked RED in plan N. L & L.CB 21 registered with the Deed of grant dated 28th day of December, 1959 and registered as No. 17 page 17 in Volume 358 of the land Registry, Ibadan.

2. Possession of the said land.

Perpetual injunction restraining the Defendant his Agent OR Servants and privies from repeating OR continuing the acts of trespass to the said piece OR parcel of land.”

The trial Judge dismissed the claim on the ground that only the grantees of the land in dispute as evidenced by the Deed of Grant, Exhibit A, are competent to bring an action against the defendants. Accordingly he held that the Plaintiffs had no connection with the land in dispute and therefore were not competent to bring the action against the defendant’. Plaintiffs appealed to the Court of Appeal against the decision.

Two grounds of appeal were relied upon in the Court of Appeal. Summarily stated, appellants, who are now the Respondents in this court complained that

(a) the learned trial Judge misdirected himself in law to have held that the Deed of Grant Exh. A relied upon by the plaintiff did not confer any interest in them.

(b) the learned trial Judge erred in law that only the first plaintiff averred that he is the son of a grantee and that the others did not establish their relationship to the Grantees mentioned in the deed of Grant. The learned trial Judge failed to observe the rules of natural justice.

After careful consideration of the arguments of the parties, the Court of Appeal observed at p. 189.

“The real bone of contention as disclosed from the argument in support of the appellant’s brief by Mr. Y.O.A. Akande is whether or not one member of a family may bring an action to protect the family’s interest over a piece of land.”

The Court also went on to observe that

“…. the issues have been narrowed down with regard to the person upon whom the onus of proof lies,”

In respect of the onus of proof, since the parties are ad idem that the Aige family is the original owner of the land in dispute, the onus is on the defendant not being a member of the Aige family to show that his possession is such as to oust that of the original owner. With respect to the competence of Plaintiffs to bring the action the Court of Appeal took the view that since it was common ground that the Aige family was the original owner of the land in dispute, and the root of title of Plaintiffs is in the Aige family, they rejected the conclusion of the trial Judge that Plaintiffs were not competent to bring the action against the defendant. The Court of Appeal held that Plaintiffs (or at least one of them 2nd Plaintiff) being members of the family of the late Chief T. K. Dada, have locus standi to prosecute this action.

The Court considered the question of sale of the land in dispute to the defendants and held that, since it was without the consent of the family including the head, it was void. To the submission that the grant to Plaintiffs by Exh. A. was a nullity because many years before the grant the Aige family had divested themselves of the title to the land by grant to T.B, Dada, the Court of Appeal stated, at p. 194.

“….the short answer to that submission is that the grant in Exhibit A conveys a legal estate whereas the grant to the late T.K. Dada was not perfected in his lifetime, what Exhibit A has done therefore is to perfect the grant to the children and grand children of T.K. Dada who survived him and were entitled to inherit the real property of the said Dada. Among those who inherited Dada’s estate were the two vendors of the defendant.”

In addition, the Court of Appeal held that only a party to Exhibit “A” could move for a declaration of its nullity. The Defendant who never pleaded that Exhibit “A” was a nullity could not rely on that ground.

In conclusion, the Court of Appeal referred to the rejection by the trial Judge of the evidence of the defendants’ witnesses who as the vendors testified against him. The Court observed at p. 196.

“The learned trial Judge was therefore in error to hold that the witnesses called by the defendants were not witnesses of truth merely because they did not support the case of the defendant.

The learned trial Judge should have used the evidence given by the defence witnesses as strengthening the plaintiff’s case and not merely as weakness in the defence case. That is clearly in accord with good reasoning and common sense.”

Defendants/Respondents, hereinafter referred to as the Appellants have appealed against the judgment of the Court of Appeal alleging errors of law and fact relying on three grounds of appeal as follows-

“i. The learned Appeal Judges ERRED in law when they held that the 1st Plaintiff/Respondent Alhaji Adebambo alone was competent to prosecute the claim without the other members of the family claiming their interests in the land the subject matter of this Suit. The law as established by the Supreme Court in the case of Buraimon Oloriode “. Simeon Oyebi & Others (1984) 5 SC. P1 is that before a declaration of title under native law and custom can be granted to a claimant he must ensure that all the branches of the family are made parties to the suit either as plaintiffs or defendants.

PARTICULARS OF ERROR

There was no evidence on record as to how the 3rd plaintiff KEHINDE DISIRIYU became related to the plaintiff family nor was it shown at the trial what interest, if any, he had in the land. The 2nd Plaintiff died before the trial and no one else was substituted. The 1st plaintiff failed to show that he had any LOCUS STANDI in the case as he proferred no evidence of being the representative of the family, The 4th defence Witness referred to in Exhibit “A” as a principal party was not joined to the Suit.

ERROR IN LAW

ii. The learned Appeal Judges ERRED in law in granting the RELIEFS sought by the plaintiffs without considering the legal effect of NON COMPLIANCE by the plaintiffs with ORDER 13 RULES 14 and 15 of the High Court of Lagos State (Civil Procedure) Rules 1972 regarding representation of persons in proceedings concerning land held under Customary Law as family property.

PARTICULARS OF ERROR

The learned Appeal Judges failed to consider the consequences of the plaintiffs DEFAULT to seek the LEAVE of the trial Court for a representation ORDER an omission that is fatal to the plaintiffs’ claims

iii. The judgment is against the weight of evidence. Further grounds of Appeal will be filed after the receipt of the record of appeal and LEAVE sought to argue them.”

Counsel to the parties filed their briefs of argument which they relied upon and expatiated upon in argument before us.

It is pertinent to set out the issues for determination as variously formulated by counsel. It is necessary to emphasise the purpose of formulating issues for determination in briefs.

Like pleadings to a litigation between the parties, the issues formulated are intended to accentuate the real issues for determination before the Court. The grounds of appeal allege the complaints of errors of law, fact or mixed law and fact against the judgment appealed against. The issues for determination accentuate the issues in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of errors alleged.

Hence the issues for determination cannot and should not be at large, but must fall within the purview of the grounds of appeal filed.

I shall start with the formulation of the issues for determination in the appellants’ brief of argument which are as follows –

“1. What is the nature of the Plaintiffs’ claim in the pleadings – are they suing that the property in question belongs to the family as family property or to the grantees named in Ex. A

2. Having regard to the wording of Exh. A what is the nature of the grant -is it, (as found by the trial Judge) a grant only to the named grantees, their heirs and assigns or as held by the Court of Appeal a grant to all the children of the late Chief T. K. Dada as family property.
3. In construing Ex. A. must the Court be guided by the intention of the parties as evidenced in the recitals or must the strict rules of legal interpretation apply.
4. Even if the Court of Appeal is right that the grantee in Ex. A hold the property for the family, who could convey a valid title to the property – the named grantees in Ex. A or, as held by the Court of Appeal – the principal members and the family head
5. Even, if the Court of Appeal is right that the grantees in Ex. A hold as family property for the family, will the principle in Sogunle v. Akerele (1967) NMLR. 58 that any member of the family can sue to protect family property still apply to give the plaintiffs locus standi to prosecute the action.
6. Was the Court of Appeal right in reversing the trial Judge on the onus of proof
7. Even if the property is family property which could only be alienated with the consent of the principal members and the head of the family, was the Court of Appeal right in declaring the sale to the Defendant void when:

(a) there was no averment in the Plaintiffs pleadings as to who the family head was and who also are the principal members of the family.

(b) the case of the Plaintiff on the pleadings (paragraph 5) is that title is vested in the grantees named in Ex. A and the evidence on record is to the effect that all the named grantees are dead except one who joined in the execution of EX. E in favour of the Defendant.

8. Finally, is the trial Judge not justified in treating two of the witnesses called by the Defendant as unreliable witnesses.

I also reproduce the formulation of issues for determination by Counsel to the Respondent, which are as follows-

“1. Is the land in question the subject matter of this action a family land OR not as found by the Court of Appeal.

2. Can the Plaintiffs bring this action to protect the interest of the family and has the Defendant’s Vendor any right to part with the land in question.
3. What is the position of EXH A. with regards to the grant therein.
4. Did EXH “A” create Joint tenancy.
5. What is the stand of the native Law and Custom as regard family land.

The formulation of issues by the Appellant is unnecessary prolix. I think it could have been more neatly formulated into five issues as follows-

1. Whether the Plaintiff’s claim as disclosed in the writ of summons and pleadings was supported by the evidence at the trial.
2. Whether the grant in Exhibit A creates a family property in the grantees or was a grant to those named therein.
3. Whether the Plaintiffs in the action were the proper parties to bring the action for a declaration against the defendant.
4. Was the Court of Appeal right in reversing the trial Judge on the view he held of the two witnesses, DW2, DW3 for the defendant.
5. Was the Court of Appeal right in reversing the trial Judge on the onus of proof.

Counsel to the appellant has in his brief of argument adhered to his formulation of issues. The governing issues on which the trial Judge decided the claim of the Plaintiffs/Respondents which was reversed by the Court of Appeal, was that the Plaintiffs not being grantees of the land in dispute or having not shown to be such were not competent to bring the action against the defendant. The two grounds of appeal against the judgment of the Court of Appeal as can be seen from our summary were formulated around this ground.

In his brief of argument, Professor Kasunmu, SAN, for the Appellants, has considered first the first issue for determination as formulated by him. He then considered the 2nd, and 3rd, 4th, 5th and 6th, 7th and 8th in that order. Mr. Talabi, adopted his own style by arguing in his brief the 1st, 2nd, 3rd and 4th of the issues as formulated by him. Since the numbering of the issues for determination by the parties are not consistent with the subject-matter discussed, or the grounds of appeal filed, I shall rely on the issues I have formulated, referring to the appropriate number of the issues as formulated by Counsel.

I think it is convenient to outline the salient facts of this appeal before proceeding to discuss the issues formulated.

The pertinent averments in paragraph 2 of the statement of claim which is admitted in paragraph 2 of the statement of defence is that the land in dispute originally belonged to the Aige family. It was also stated in paragraph 3 of the statement of claim that Yesufu Igiaje, Jinadu Oshinaige, and Salawu Oteju, representing that family, by conveyance in Exhibit “A” granted the land to 8 named persons, – all children and grand children of Chief T. K. Dada, who was of the Otunradewun branch of the Aige family. It was averred that some of the grantees have died, and that after the death of some of the grantees the land in dispute passed to the Plaintiffs and the children of the deceased members under native law and custom.

It is important to point out that none of the Plaintiffs in this action is named as a grantee in the deed of conveyance relied upon and referred to as Exhibit A. The 1st Plaintiff is said to be the son of Efuneye, one of the deceased grantees. The 2nd Plaintiff, described in evidence as the head of Otunrodewun branch of the Aige family, and who died during the pendency of the action and was not replaced, is not one of the grantees and is not known as a child or grand child of Chief T.K. Dada. Similarly, the 3rd Plaintiff is not one of the grantees and not stated to be a child or grand child of T.K. Dada.

It is relevant to state that the grant in Exhibit A was made to the 8 persons named in the deed as the children and grand children of Chief T.K. Dada, without words of limitation creating any family property of the land so granted. Besides, the land was not by the Deed granted to Chief T.K. Dada, or did the 8 persons inherit from Chief T.K. Dada on intestacy or by will the land in dispute.

Appellant, as defendant, had in his statement of defence pleaded that the land in dispute was granted to one Chief Dada (now deceased) by the Aige Family, but devolved on Chief Dada’s two children, Oye Dada and Orefela Dada by Native Law and Custom, who sold the land to him. The conveyance relied upon by the defendants was executed by Orefela Dada, one of grantees in Exhibit “A”, and Idowu Folorunsho Dada and Jonathan Ayodele Dada, the children of Oye Dada. There was evidence of DW1 (p.38), PW2 (p.42) and PW3 (p.44) that Oye Dada and Orefela Dada are grand children of Chief T. K. Dada and are both grantees named in Exhibit “A.” Although there is no dispute as to the root of the title being in the Aige Family, there appears to be some confusion in the vesting of the title in Chief T. K. Dada by PW1. The basis of the claim for the Declaration of title sought by the Plaintiffs/Respondents is Exhibit “A.”

It is however of importance that the recital in Exhibit “A “, stated the fact that in pursuance of an agreement between the children and grand children of Bayan and Adegun, that on partition the lands in respect of which Chief T.K. Dada was in possession, i.e. the land in dispute, be alloted to him as a descendant of Otu-Adegun (Deceased). But Chief T. K. Dada, having died at the time of the execution of Exhibit “A”; the Grantors conveyed to the Grantees,” that piece or parcel of land situate lying and being at near Mile 20 Lagos Adu Road, Ikorodu Western Nigeria………to hold the same unto and to the Use of the said Grantees their heirs and…….here in fee simple…….” The Grantees were named in the Deed as Efuneye, Raliata Amope, Omoyeni Aduke, Olaniwun Tanimowo, Muniratu, Kehinde Muyibatu, Oyebanjo and Oreolorun.

At the trial, the Defendant/Appellant gave evidence of the sale of the land in dispute to him and that Oye Dada and the children of Oreolorun Dada signed the Conveyance. Ore Dada, and DW2 one of the grantors to the Defendant denied selling any land to the Defendant after acknowledging his signature on Exhibits “B” & “E,” Similarly DW3 who denied knowledge of the land in dispute, acknowledged his signature but said he signed on the pressure from D.W.2.

This was the situation before the learned trial Judge. I now turn to the arguments of counsel in this appeal.

The first issue for determination concerns the contention whether the Plaintiffs claim on the pleadings support the decision that the land in dispute vested in the Plaintiffs as family property. Counsel for the Appellants has argued in his brief and orally before us that there were no averments in the pleadings that the land in dispute was first alloted to Chief T. K. Dada by the Aige Family. It was also not pleaded that Chief T. K, Dada family has three branches. Counsel pointed out that there was nothing in the pleading suggesting that the grant of the land in dispute was made to the named grantees for and on behalf of the children of T.K. Dada as family property, Counsel then referring to observations of the trial Judge pointed out the apparent conflict between the writ of summons (as amended), where the Plaintiffs sued for themselves and on behalf of the entire members of Otumadewun Tefojukan Kutimoju Dada Branch of Aige family, and the averments in the statement of claim that the land in dispute was granted to the named grantees described as the children and grand children of Chief T. K. Dada, Counsel submitted therefore that the Court of Appeal was in error to have reversed the findings of the trial Judge and dealt with the case as if it disclosed a claim that the land was family land and its being claimed as such by the family. It was finally submitted that on the pleadings the claim is not that the land in dispute belongs to the family as family property, but to the named grantees in Exhibit “A.”

Mr. Talabi in his brief contended that Plaintiffs in their writ of summons sued Appellant as representatives of Otunradewun branch of Aige family, He pointed out relying on paragraph 2 of the statement of claim admitted by the defendant in his statement of defence that it is common ground that the land in dispute is family land. Accordingly, it is subject to all the incidents of such tenure. The cases of Thomas v Thomas & anor (1932) 16 NLR. 5, Phillip v Phillip (1946) 18 NLR 102 Ricardo v Abal (1932) 11 NLR. 111 Miller Bros v Ayeni (1924)5 NLR. 40 were cited in support.

The concept of family property is original to our indigenous society, and is the bedrock of our law of inheritance. It is regarded correctly as the corner stone of our Indigenous land law. Judicial decisions are replete in the circumstances of the creation of family property. The most common circumstance is death intestate of a land owner, whose estate is governed by customary law. Such land devolves to his heirs in perpetuity as family land See Lewis v. Bankole 1 NLR 81.

Family land can be created by a conveyance inter vivos, where land is purchased with money belonging to the family – See Nelson v. Nelson (1913) 13 NLR 248. Family land can also be created by the use of the appropriate expression in the Will of the owner of such land. See Re Edward Forster (1938) NLR. 83 George v Fajore (1939) 15 NLR.1 Shaw v Kehinde (1947) 18 NLR 129. For the land in dispute to qualify as family land, it will be necessary to identify not only its origin, but its status.

In the first place family land ceases to be such land on partition, – See Balogun v. Balogun (1943) 9 WACA. 78. Thus if the Aige family, as in the instant case partitioned its land and granted any portion to any branch of the family, the grant so made ceases to be Aige family land, but is now the land of the person or persons to whom the grant has been granted.

The Court of Appeal in construing Exhibit “A” drew the conclusion that the land subsequently granted to the named grantees in Exhibit A had in the lifetime been alloted to Chief T.K. Dada, hut no conveyance was executed before he died. The grantees in Exh. “A” were referred to as the children and grand children of Chief T. K. Dada who survived him. There is no doubt therefore that the named grantees derived their title from Exhibit “A.” It is not on intestacy on the death of Chief T.K. Dada, or on a devise by his will. Accordingly Exhibit “A” has to be construed as vesting the land in dispute in the persons specifically named.

However, contrary to the express terms of the grant in Exhibit “A” of the land in dispute to the named grantees, the Court of Appeal accepted the contention of the Plaintiffs, that the land in dispute having first been allotted to Chief T.K. Dada, devolved on his children and grand children after his death. Nothing is farther from the true legal position; because Exhibit “A” was the result of a request from the Aige family by the children and grand children. The Court of Appeal concluded as follows-

“The plaintiffs who testified each stated that he was from the family of Chief T.K. Dada. That evidence was not controverted. Furthermore, the second plaintiff was said to be the daughter of Efuneye one of the grantees in Exhibit A.”

I think Professor Kasunmu S.A.N., counsel for the appellant was right when he submitted that the Court of Appeal relied on the recital to the deed to control the operative clause in Exhibit A. It is well settled that in interpreting a deed, an unambiguous operative part cannot be controlled by the recital. The clear and unambiguous operative part must be given full expression and effect. See IRC v. Raphael (1935) AC.96, 135 Dawes v. Tredwell (1881) 18 Ch. D.354, 388-9.

However, a careful reading of the recital in Exhibit “A”, leads one to the only conclusion that the words “the children and grand children” referred to therein was merely descriptive of the grantees who lived with and survived Chief T.K. Dada and who remained in undisturbed possession of the land after his death. It is these “children and grand children” who approached the Grantors for the execution of the deed – Exhibit “A.” The grant was made to the persons named in Exhibit “A” who were the surviving children and grand children of Chief T.K. Dada. If there were others besides those specifically named, this should have been included by appropriate expression such as to the named grantees “representing the children and grand children of the said Chief T. K. Dada.”

It seems to me unarguable that the words used in Exhibit “A” are clearly incapable of creating family land in respect of the grant to the named grantees. This is because each grantee though child or grand child of Chief T. K. Dada may qualify in the creation of family property. Furthermore, there was no intention to create a family property for the family or Chief T. K. Dada. The effect of the grant therefore was to create a joint ownership of the property in those named. See Caulcrick v Harding (1926) 7 NLR 48. The Court of Appeal was therefore in error to hold that Exhibit “A” created a family property in respect of the land in dispute.

The crucial factor in this appeal is the acknowledgement of the fact that plaintiffs relied in this action on Exhibit “A.” They could not at once be relying also on the title of Chief T.K. Dada. The Aige family conveyed the land in dispute to the named grantees whose right to the grant was founded on the fact that they are descendants of Chief T. K. Dada, who was a member of the Otunradewun branch of the Aige family. Since the grantees rely on Exhibit “A” for their title, only persons named therein, or those properly nominated as successors of persons named therein can bring action on the Deed of grant.

It is clear from the averments in the statement of claim that none of the Plaintiffs was a grantee in Exhibit “A.” The 2nd Plaintiff admittedly, is the daughter of Efuneye, one of the grantees in Exhibit A. In law the 2nd Plaintiff cannot succeed Efuneye in the absence of a formal appointment. 1st Plaintiff, a grandson of Efuneye is seeking a declaration that the land in dispute belongs to himself and other members of Otunradewun Tefojukan Dada branch of the Aige family and not for the grantees in Exh. “A.”

It is no doubt correct to say that a member of the family is competent to bring action to protect the interest of the family in respect of family property; even if he has no authority of the family to bring the action, – See Sogunle & Ors. v Akerele & Ors. (1967) NMLR. 58, at p. 60. This principle however applies to family land. Since the land in dispute in this case is not family property, the principle laid down in Sogunle & Ors. v Akerele & Ors. is not applicable.

It is clear from the foregoing that the claim of the plaintiffs as disclosed in the writ of summons and statement of claim was not supported by the evidence of the trial. It is well settled law that parties are bound by their pleadings. Where there is variance between the claim the pleadings and evidence, the action is bound to fail- See Ogiamen v. Ogiamen (1967) NMLR. 245.

There is no doubt that Exhibit “A” was a grant to the grantees named therein and did not create family property of the land in dispute. Evidence of the Plaintiffs did not support the claim. The question arises whether not being parties to the Deed and not being any of the named grantees. Plaintiffs can bring action in respect of Exhibit “A.” It is well settled law that only parties to deed or persons deriving benefit thereunder can sue in respect of a deed. Plaintiffs not being such persons, cannot bring action in respect of Exhibit “A.”

The learned Judge was therefore right to hold that the Plaintiffs are not entitled to bring the action. The Court of Appeal was wrong to have reversed that holding. Ground one of the grounds of appeal therefore succeeds. The appeal succeeds on this ground alone. I now turn to the issue whether the Court of Appeal was right in holding that the trial Judge was wrong in saying that DW2 and DW3 were not witnesses of truth. The Court of Appeal held that rather than reject their evidence as unreliable, the trial Judge should have used their evidence as an admission against the interest of the appellant, and upon which the trial Judge was entitled to rely as a further re-enforcement of the assertion that Plaintiffs had not given consent to the sale and to their claim to the continuity of the vesting of the radical title in the land in their family. The Court of Appeal was of the opinion that the evidence of DW2 and DW3 were rejected merely because they did not support the case of the defendant/appellant.

A careful analysis of the evidence and the trial Judge’s consideration of its worth discloses that the Judge was perfectly correct in the view he held. First, DW2 and DW3 were two of the four signatories to the conveyance of the land in dispute – Exhibit E to Defendant/Appellant. DW2 appeared on subpoena denied any knowledge of the transaction but acknowledged his signature on Exhibit E. He is one of the named grantees in Exhibit A and one of the signatories in Exh. B, which was a conveyance of part of the land in dispute to Ikorodu Trading Company. Also DW3 after considerable evasion appeared on subpoena. He admitted signing Exhibit E but disclaimed knowledge of sale of the land to the Defendant/ Appellant.

The learned Judge who had the opportunity of hearing them give evidence and observe their demeanour stated as follows – at p.99

“I had the opportunity of listening to the evidence of the witness Ore Dada and studying his demeanour. I came irresistibly to the conclusion that he is not a witness of truth. He impressed me as one who has no regard for truth or what it stands for.”

Of the DW3, he had this to say,

“Like his uncle, Idowu Folorunsho Dada appears to me a very untruthful witness. He was deliberately evasive in answering question put to him and is an obvious liar.”

It is trite law that the trial Judge before who a witness gives evidence has a better opportunity of assessing its veracity by consideration of such evanescent factors as his reaction to cross-examination and his general attitude to the evidence he was giving. The duty of appraising and evaluating evidence is pre-eminently that of the Judge who heard and saw the witness. The Court of Appeal equipped only with the records and the cold facts of the case as found is only entitled to interfere where the finding is palpably perverse – See Onowan v Iserhein (1976) 1 NMLR. 263. It is not entitled to interfere and reverse the finding which it had no opportunity to observe merely because it would have come to a different conclusion – See Ogundulu v Philips & Ors. (1973) NMLR. 267. In this case which is a finding of fact concerning the veracity of witnesses based on the evidence before the trial Judge, the Court of Appeal was wrong to have introduced extraneous matters which could only arise from speculation. Whether the evidence of the DW2 and DW3 were prejudicial to the case of the Defendant/Appellant or strengthens that of the Plaintiffs/Respondents is clearly different from whether they ought to be believed. The Court of Appeal was wrong to usurp the functions of the trial Judge and substitute its own views of the facts for that of the trial Judge.- See Egri v. Uperi (1974) 1 NMLR.22.

Finally, the Court of Appeal reversed the trial Judge on the onus of proof. They came to this view by holding that “where the dispute involved what was accepted by both sides as originally family land, then when a person claims to be exclusively entitled to (that) family property, the onus is on him to prove it.” In this case the onus, the Court of Appeal said, is on the Defendant and not on the Plaintiff.

I have already held that the land in dispute not being family land, the proposition relied upon by the Court of Appeal does not arise. Again, it is clear from the averments on the pleadings, the parties agreed that the land in dispute was originally Aige family land. There was no other admission, and indeed it was not pleaded that it was the family land of the Plaintiffs.

The Plaintiffs did not plead any other family in who title to the land vested. As counsel to Appellants correctly puts it, ‘in his brief, “Even if the Court of Appeal is right that it is family property, the plaintiff must still discharge or show a link or interest before the onus will shift. The onus will not shift unless and until the Plaintiff can show a semblance of title…..” In the case before the trial Judge which was a claim for a declaration of title, the onus is on the Plaintiffs to prove their title to the land.

Until this is done no burden shifts to the Defendant who is putting forward a different title of his own. The Plaintiffs having failed to establish their link with the land failed to discharge the burden of proof on them.

There was accordingly no burden on the Defendants – See Awomuti v. Salami (1978) 3 SC.105, Eze v Igiliegbe 15 WACA. It was for the above reasons, that I allowed the appeal of the Appellants and set aside the judgment of the Court of Appeal.

Other Citation: (1988) LCN/2377(SC)