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FATAI-WILLIAMS, J.S.C. (AG.)
Chief ERA. Williams (with him Alhaji M.O. Oseni) – for the Appellant
K Gbajabiamila – for Respondent
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Evidence – Failure to call a witness – Whether correct to apply the presumption in s.148 (d) of the Evidence Act
Civil Action – Practice and Procedure – Visit to Locus – Failure to record observations made at – Effect – Evidence Act s.148 (d).
COKER, Ag. C.J.N. (Delivering the Judgment of the Court):
The respondent to this appeal was the plaintiff in Ikeja High Court No. IK/157/83. He had sued the defendant, now appellant, on a writ which is endorsed as follows:
‘The Plaintiff claims against the Defendant Declaration of Title to a piece of land situate lying and being at Pedro Village (measuring 5.548 Acres) in the Ikeja District, Western Region of Nigeria. The plaintiff also claims the sum of £100 (One Hundred Pounds) for trespass committed on the said land by Agents and Servants of the Defendant.”
It was, and still is, common ground between the parties that the land, the subject-matter of the action, originally belonged to the Onisemo Chieftaincy Family of which the defendant is the present titular head. The plaintiff’s case is summarised in paragraphs 5, 6 and 7 of his amended statement of claim as follows:
“5. In 1913, the then Chief Onisemo sold the land to one Madam Sinotu Ayodele the grandmother of the plaintiff who went into possession immediately.
On the other hand, the defendant’s case is that the Onisemo Chieftaincy Family never sold the land, that one Olofitusi (or Olofenusi) and one Okorigi were put in possession of the land by his family as customary tenants of the Onisemo Chieftaincy Family several years ago and that the plaintiff was a descendant of the said Olofitusi. In the course of his evidence at the trial, the plaintiff admitted that his grandmother, Sinotu Ayodele, was a daughter of Olofitus! and that the younger sister of his grandmother, by name Barikisu lyadunni, was still alive: indeed, the woman Barikisu lyadunni, stated to be about 80 years old, gave evidence for the defence. She stated that Okodgi was her uncle and that both he and their late father Olofenusi were customary tenants of the Onisemo Chieftaincy Family on the land.
The learned trial Judge, Somolu, J. (as he then was), gave judgment with costs for the plaintiff on both heads of his claim and also made an order of injunction against the defendant. In the course of his judgment and after summarising the evidence given on both sides and the addresses of counsel, the learned trial Judge observed thus:
“I have been deeply impressed by the evidence of the two witnesses for the plaintiff on these facts and I accept it as both truthful and completely free from either bias or self- Interest. I watched both of them in the witness box and I have come to the conclusion that they came to tell what they knew to be true, and they are the only witnesses who stand to gain nothing by the result of this case; they are both very elderly ladies of respectable mean. From their evidence, I am able to discover that the woman Sinotu Ayodele was a fairly well-to-do person and someone of forceful character who was not only wise enough to convert her father’s licence on the land into an absolute interest for herself, but was shrewd enough to get her transaction evidenced in writing over fifty years ago! If the evidence of these witnesses as to the possession and user of the land in dispute over such a long period is taken along with the payment of money in Exhibit “A” and the recognition of the sale in Exhibit “B”, I am of the view that the area of the land in question is definite enough to be a bias for a decree of specific performance and, therefore, of a declaration of title.”
The learned trial Judge decreed title to the land in favour of the plaintiff and proceeded to observe as follows:
“In making this declaration, I have not lost sight of the claim made by the witness, Barikisu lyadunni, to an interest in the house originally built by Olofintusi which now stands on the land, apparently rebuilt after the death of the man, but I take view that the plaintiff is not desirous of defeating her interest in the said house which is bound to disappear in view of the approved plan Exhibit “C”, and also in view of the fact that the licence granted to 0!ofintusi to occupy the site under which she claims has been superceded by the absolute title granted to Sinotu Ayodele over the whole land……. I am convinced that not only was there evidence of abandonment but that the licence to occupy the site has become extinguished by the sale to Sinotu.”
The defendant has appealed to this Court against the judgment. Before us on appeal the contentions of learned counsel for the defendant are, firstly, that the purchase of the land by the plaintiff’s ancestor (or the plaintiff) was not proved and, secondly, that the finding of possession in favour of the plaintiff and his ancestor by the learned trial Judge was a misconception of the evidence and of the rules of customary law. Learned counsel for the plaintiff submitted on the other hand that the findings of the learned trial Judge are justified but conceded that neither of the parties had asked for the order of injunction which the learned trial Judge had made against the defendant, that section 20 of the High Court Law (Western Nigeria Laws 1959, Cap.44) does not apply to this case and that in any case there was no evidence of the actual area of land claimed to have been sold by the Onisemo Chieftaincy family to the ancestor of the plaintiff.
The learned trial Judge obviously treated as a matter of fact what clearly is an issue of law and should have been properly so found. Both parties are in agreement that the radical title to the land is in the Onisemo Chieftaincy Family. The plaintiff has alleged a sale to his ancestor: he therefore has the onus of proving the sale. (See Mosalewa Thomas v. Preston Holder. It is impossible to lay down any hard and fast rule as to the nature of the evidence required to discharge the onus. Cases must depend upon their peculiar circumstances but in every case the identity of the land and the divestment, voluntary or otherwise, of the title of the accepted owner must be established. In the instant case it was conceded by the learned counsel for the plaintiff that the identity of the land was not established. The evidence of the transfer by the Onisemo Chieftaincy Family was based on two documents and the fact of possession. These documents were admitted in evidence as Exhibits “A” and “B”. Exhibit “A”, the receipt by which it was claimed by the plaintiff that his grandmother bought reads as follows:
“I Sunmonu sold a piece of land to Ayodele the sum of £8. (Eight Pounds) and he paid the total amount for Sunmonu £8 – (Eight Pounds) on 26th day of December, 1912”.
Witness Asani Momodu His March
Writers (Sgd.) S.B. OBI (Sgd.) SUNMONU ABISEMO
There was absolutely no evidence of the capacity in which Sunmonu sold and indeed the tenor of the defence evidence is that there was no Sunmonu Onisemo in the family. To this must be added the further deficiency of lack of certainty of the area sold. The other document, Exhibit “B”, which was put up by the plaintiff as a ratification of the sale by Exhibit “A” by a Chief Onisemo in 1941, reads as follows:
‘This is to certify that both Sunmonu and also Asani of Lagos sell a portion of farm which led at Pedro Village to Madam Sinatu Ayodele at the rate of £8:Os:Od Eight pounds.
I Buramoh Mosuro the Chief Onisemo and my families recognise the selling of this farm to Mrs. Sinatu Ayodele from to days dated the farm was handed to Madam Sinatu Ayodele on the 16th day of February, 1941 and nobody must not trouble him there.
Read and translated in Yoruba vocabulary.
(Sgd.) BURAMOH MOSURO The Chief Onisemo
This document also fails to define the limits of the land concerned and clearly suggests that the possession of the land was only then handed over to Madam Sinotu Ayodele. As a document transferring land or title to same, the document is clearly inadmissible. The learned trial Judge in his judgment stated that the documents Exhibits “A”and “B” were “not admitted as instruments conferring title to land but as receipts for money paid.” It is difficult to see how Exhibit “B” can be treated as a receipt when it dearly does not acknowledge the receipt of any payment. Even on the basis on which the learned trial Judge had accepted it in evidence it is difficult.to see how Exhibit “B” can be a ratification of Exhibit “A”. In any case as the authorship of Exhibit “A” which was challenged was not proved any purported sale of the family land by it must be void. This absolutely negatives any probative value that is sought to place on Exhibit “B”.
Again, the document Exhibit “B” states that possession was being handed over thereby to the grandmother of the plaintiff, Madam Sinotu Ayodele. The learned trial Judge also in his judgment found that the plaintiff, as his ancestors, had been in possession of the land in such right. Learned counsel for the defendant attacked the Judge’s finding in this respect as well as the purported transfer of possession by the document Exhibit “B”. We think that the attack is justified. The learned trial Judge, for reasons which are not clear, lost sight of the admission by the plaintiff that his own maternal great grandfather, Olofitusi, was a customary tenant of the Onisemo Chieftaincy Family: the Judge also overlooked the legal implications of such an admission. If it is, as Indeed it was, common ground that Olofitusi was a customary tenant on the land, then it is an incident of the tenure under which he held that he should be in possession and that after his death, as long as there was no breach of customary law, his progeny would continue to occupy the land as such ad infinitum. The customary landlords have no right to determine the tenancy of their possession unless there be such a breach.
There was no evidence of a breach of customary law (except by the present claim of the plaintiff) before the learned trial Judge much less that of an abandonment as the learned trial Judge suggested. The plaintiff (and his ancestors) is in possession of the land by virtue of the customary tenancy of Olofitusi and we are in no doubt that a finding of possession aliter in their favour was a misconception of the irresistible evidence.
With respect to the claim for trespass the evidence is all but satisfactory. There is no evidence that the defendant entered on the land himself but it was claimed that one Mull led a number of men into the land. There was no evidence that Muji was challenged by the plaintiff or anybody acting on his behalf. The defendant gave evidence admitting that Muji was his caretaker of all lands at Pedro Village including the one now in dispute. Both by the pleadings and his oral evidence in court the defendant denied the trespass. The learned trial Judge stated that Muji should have been called by the defence to deny the trespass and that as the defendant had not called him –
‘Which is the really effective denial open to him since he did not know what Muji and his men did or did not do in the village and I must presume as a matter of law that he did not do this because Muji’s evidence if called would go against his own denial and since Mull was defendant’s servant, all that he did on plaintiff’s land and In the apparent course of his duty will bind him and render him liable.”
No authority has been shown to use for such a proposition and we do not accept it as a correct statement of the law. Section 148(d) of the Evidence Act, Cap.62 reads as follows:
“148. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume X X X X X X X (d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
X X X X X X X X
It is clear that the section deals with the failure to call evidence and not the failure to call a particular witness. We do not see that it could be said here that it was the defendant who “withheld” Muji or that his evidence was indispensable in order to enable the defendant to rebut the claims of the plaintiff. A party is not bound to call a particular witness if he thinks he can prove his case otherwise.
Furthermore, there is another aspect of this case on which we think it desirable to express our views. Reading through the judgment of the learned trial Judge, it is obvious that he had visited the locus in quo, as was indeed anyway conceded by learned counsel for the plaintiff. There does not appear however on the records any notes about the visit. An inspection of locus is as much a part of the entire proceedings in any suit and the rules of evidence apply equally to such inspection as to any other portion of the proceedings. In the instant case, findings of fact, apparently crucial in their effect, have been based on the observation at the inspection and the records are conspicuously silent as to whether these resulted from visual or evidential inference. It is impossible for any court of appeal to determine the effect of the visit on the judgment of the learned trial Judge after such a failure to include the appropriate notes in the record.
For the foregoing reasons, at least, the claim for title in this case should have been dismissed. We have already stated our views, concerning the order of injunction granted by the learned trial Judge. It was not asked for by the plaintiff and should not have been made. In any case, even if it was asked for, in the circumstances of this case, it should have been refused. There was no reliable evidence on which the defendant could properly be asked to pay damages for trespass and that claim should as well have been refused.
This appeal therefore succeeds and it is allowed. The judgment of the Ikeja High Court in Suit No. IK/157/63, including the order of costs, is set aside and it is ordered that the plaintiff’s case in that court should be dismissed and that this should be the order of the Court.