INTRODUCTION
The law permits a party who is unsatisfied with a judgment of a Court (other than the Supreme Court) to appeal against such judgment, either as of right or with leave of the Court. To be properly before the appellate Court, the reasons for such appeal must be stated (called grounds of appeal). One of the viable grounds of appeal is that the judgment being appealed against was arrived at by improper valuation of evidence before the Court.
It is trite in law that he who asserts must prove! Thus, it is not enough for the appellant to raise the ground of improper valuation of evidence; he has the onus of proof to validate his allegation.
In ADEDOYIN & ORS V. AMOO (2018) LPELR-44978(CA), Honourable Justice BARKA, J.C.A. while delivering the leading judgment has diligently explained the onus of proof placed on a party relying on improper valuation of evidence as a ground to set aside a judgment. According to him, “It is the position of the law, that for a complaint on improper evaluation as in the instant case to have meaning, the appellant or complainant must clearly identify and specify the evidence on which the complaint was made”. He explained further that this is “to enable the appellate Court to consider whether or not there was proper evaluation in support of the findings, conclusions and eventual decision of the Court of trial with respect to the area of dispute.” The learned Justice went on to state that “He [appellant] must also demonstrate to the Court on appeal, that but for the failure to evaluate or properly evaluate the pieces of evidence both documentary and oral, the decision of the Court would have been in his favor”. He pressed home his point when he clarified that “… the appellant has the onus of satisfying the appellate Court that the decision on appeal is wrong, and where he fails, the decision appealed on stands”
FACTS IN BRIEF
Alh. Sulemonu Ajape Bankole Adedoyin and two others suing for themselves and on behalf of the entire members of Abibu Bankole and Iyun families, Osin Adedoyin village Ilorin West Local Government Area, Kwara State (claimants now appellants) caused a writ of summons to issue against Alhaji Salimonu Amoo (defendant now respondent), wherein they claimed to be the customary owners of the expanse of land in Osin-Adedoyin village, stretching from Adedoyin and forming/sharing common boundaries with Adepe, Monmonu, Alaji, Ajara, Ologunso, Alikanbu, Elewuro and Laduba all between Asa and Ilorin West Local Government Areas of Kwara State.
The Respondent on the other hand, in the statement of defense filed, denied the claim in its entirety, urging lower Court to discountenance the claimants’ claim and to dismiss the suit for being frivolous and gold digging.
The case proceeded to a full blown trial, and at the close of evidence, written addresses were ordered, filed and adopted. The trial Court in a considered judgment delivered on the 19th of December, 2016, in dismissing the claimant’s action held that the claimants have not proved their entitlement to the reliefs sought and the issue for determination was therefore resolved in the negative, against the claimants.
Being disgruntled by the decision of the trial Court, the appellants filed this present appeal.
ISSUES FOR DETERMINATION
The seven issues formulated for the determination of this appeal and adopted by the Court of Appeal for the proper determination of this appeal are as follows:
- Considering the established methods of proving title to land as has been judicially settled in plethora of authorities and whether having regards to the pleadings and evidence led in support of same by the parties, the learned trial judge was right in holding that the appellants failed to prove their title to the land in dispute.
- Whether the learned trial judge fully comprehended the case before him at trial and whether the decision of the trial judge would have been different if he had not lost track of the entire case before the Court on the disputed land.
- Whether page 59 of the appellants’ (claimants’) counsel’s final written address, paragraph 28 of CW4’s written statement on oath and Exhibit C were not wrongly interpreted or misconceived by the trial judge.
- Whether from the record, there is anywhere both the appellants and the respondent commonly traced the land in dispute to Oba Shitta or if there is any evidence from the record that Haileru Adedoyin family is into two (2) extractions.
- Whether the trial judge was right in holding that Exhibit B does not relate to the land in dispute but in respect of land situate at Laduba.
- Whether the trial judge was right to have concluded that three out of the four(4) exhibits tendered by the appellants have the same force with the only Exhibit E tendered by the respondent.
- Whether there is living member of Adedoyin family that the appellants can call as a witness and whether an inhabitant of Adedoyin Ori-Okoh compound is the same as Adedoyin family.
HELD
The Court of Appeal unanimously resolved all the issues for determination against the appellants, holding that the appeal is one lacking in merit and same was accordingly dismissed. Consequently, the decision of Justice I. A. Yusuf, delivered on the 19th day of December, 2016, in suit No. KWS/230/2014, between Alhaji Sulemonu Ajape Bankole Adedoyin and two others vs. Alhaji Salimonu Amoo, wherein appellants’ claims were dismissed was affirmed.
Costs of N50, 000.00 was awarded against the Appellants in favour of the respondent.
RATIO DECIDENDI
EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: The onus on a party who relies on improper evaluation of evidence as a ground to set aside a judgment
“It is the position of the law, that for a complaint on improper evaluation as in the instant case to have meaning, the appellant or complainant must clearly identify and specify the evidence on which the complaint was made to enable the appellate Court to consider whether or not there was proper evaluation in support of the findings, conclusions and eventual decision of the Court of trial with respect to the area of dispute. He must also demonstrate to the Court on appeal, that but for the failure to evaluate or properly evaluate the pieces of evidence both documentary and oral, the decision of the Court would have been in his favor. See, Ojokolobo vs. Alamu (1998) 9 NWLR (pt. 565) 226, Baba vs. NCATC Zaria (1991) 5 NWLR (pt. 192) 388, Agbi vs. Ogbeh (2006) ALL FWLR (pt. 329) 941, Opu-Ado vs. Abere (2017) ALL FWLR (pt. 910) 195 @ 231 per Lawal Garba JCA. In other words, the appellant has the onus of satisfying the appellate Court that the decision on appeal is wrong, and where he fails, the decision appealed on stands. See Obodo vs. Ogba (1987) 3 NWLR (pt. 54) 1, Raphael vs. Ezi (supra) @ 61.”Per BARKA, J.C.A. (P. 43, Paras. A-F)
EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Whether a plaintiff can rely on the weakness of the defendant’s case to prove his own case in action for declaration of title
“With respect to the first issue, which reads, whether going by the evidence of the claimants and their witnesses, the lower Court was right in holding that claimants failed to establish the grant/gift of the land in dispute by Oba Suleiman/Haileru Adedoyin and therefore not entitled to any of the declaratory reliefs sought, it is basic as established through case law that where a plaintiff claims for declaratory reliefs with respect to alleged ownership of land, the plaintiff has the onus of proving his claim. This he must do by relying on the strength of his case, and not on the weakness of the defense case, although he is at liberty to make use of the defense evidence where it assists his case. See Omo JSC in Bankole vs. Pelu (1991) 8 NWLR (pt. 211) 523, Fasikun 11 & Ors vs. Oluronke 11 & Ors (1991) 1 SC 16, Josiah Akinola vs. Fatayinbo Oluwo (1962) 1 SCNLR 352, Alade vs. Awo (1975) 4 SC 150 (reprint). It is basic therefore with respect to the case at hand that for the plaintiff to have succeeded, he must satisfy the Court as to the precise nature of the title claimed, and the Court must also be satisfied with the evidence establishing title of the nature claimed, in our case absolute grant/gift.”Per BARKA, J.C.A. (Pp. 23-24, Paras. F-E).
APPEAL – INTERFERENCE WITH EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence; Instances where an appellate Court will interfere.
“It is an elementary fact, that a trial Court is in the best position in the evaluation of evidence due to its vantage position of listening first hand to the witnesses as they testify, and watching their demeanor in assessing their credibility. The Court has a duty first in time, to receive all available evidence, sifting through the evidence and ascribing value to the evidence received and weighing same on the imaginary scale to see which amongst the parties adduced evidence which is heavier in terms of its value. See Olufosoye & Ors vs. Olorunfemi (1989) LPELR-2615 (SC). For as held in Bamgboye vs. University of Ilorin (1999) 10 NWLR (pt. 622) 290:
“It is trite law that findings of primary facts are matters peculiarly within the competence of the Court of trial, the assessment, evaluation, appraisal of evidence emanating therefrom and the ascription of probative values thereto being primarily and pre-eminently that of the trial Court and any interference by an appeal Court therewith is by law, confined to narrow and limited dimensions.”
The cases of Chief Ebba vs. Ogodo (1984) 1 SCNLR 372; Atuyeye vs. Ashamu (1987) 1 NWLR (pt. 49) 267; Thomas vs. Thomas (1947) AC 484, and Woluchem vs. Gudi (1981) 5 SC 279, Raphael vs. Ezi (2015) 12 NWLR (pt. 1472) 39 @ 58,IREC Ltd vs. Oni (2017) ALL FWLR (pt. 876) 145 @ 194. amongst many others in support of the above legal position.
The appellate Court will therefore be slow to interfere with the evaluation of evidence by a Court of trial, unless and until it is shown that the trial Court did not properly evaluate the evidence before it, or where it made a wrongful approach to the evidence adduced, or where it failed to properly make good use of the opportunity of seeing or listening to the witness testify. See Eholor vs. Osayande (1992) NWLR (pt. 249) 524, Okunzua vs. Amosu (1992) NWLR (pt. 248) 416, Fatuade vs. Onwoamanam (1992) 7SCNJ 243, Ogbechie vs. Onochie (2) (1988) 1 NWLR (pt. 70) 370.”Per BARKA, J.C.A. (Pp. 40-41, Paras. A-E).
APPEAL – INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts.
“Upon a careful and dispassionate consideration of the evidence before the lower Court, I was not convinced that this Court needs to interfere with the well-considered decision of the lower Court. Indeed as held in the Supreme Court case of Agbeje vs. Ajibola (2002) 1 SC 1 @ 16, where a Court of trial without question justifiably appraises the facts, this Court and any other appellate Court will not be in the position to substitute its own views for those of the trial Court, in the face of ample evidence supporting the trial Court’s findings and conclusion.”Per BARKA, J.C.A. (Pp. 45-46, Paras. D-A).
LAND LAW – SURVEY PLAN: When a survey plan will not be necessary.
“The lower Court in its judgment, faulted the appellants for not being specific on the land being claimed by them, and further preferred the traditional evidence laid by the respondents over and above that of the appellants in dismissing the claimant’s case.
I have therefore given due consideration to the submission of the learned counsel with regard to whether the precise area in contention was laid before the lower Court by the claimants. See Adelusola vs. Akinde (2004) 12 NWLR (pt. 887) 295;
“A plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates.”
I take note of the claimants’ averment at paragraph 18 of the statement of claim, where it was averred that Oba Sule gave the expanse of land at Osin Mogaji now called Osin Adedoyin village to his second son Adedoyin and his heirs in perpetuity. The defendants on the other hand alluded to the said land by paragraph 7 of the statement of defense, and whereas the said land rightly forms the subject matter in contention, the identity of the land was not made an issue. It seems clear to me therefore that the identity of the land described as Adedoyin land by both parties, is clear to them from their various averments and pieces of evidence, and by the authority of Fatuade vs. Onwoamanam (1990) 2 NWLR (pt. 132) 322, the need for a sketch plan or survey plan becomes unnecessary. See also Atanda vs. Iliasu (supra), Odofin vs. Oni (2001) 1 SC 13, Okpaloka vs. Umeh (1976) 9-10 SC 269.
To this extent, it is my humble view that the lower Court was in error basing his judgment on the claimants’ non production of a survey plan in the description of the disputed land, when such has not been made an issue, and clearly understood by the parties.”Per BARKA, J.C.A. (Pp. 35-37, Paras. D-B).
ADEDOYIN & ORS v. AMOO (2018) LPELR-44978(CA)
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