➥ CASE SUMMARY OF:
Friday Elema & Sunday Elema V. Princess Christy A. Akenzua (SC.37/1995 · 23 Jun 2000)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Declaration of statutory occupancy.
Proof in a civil case.
➥ CASE FACT/HISTORY
The Plaintiff gave evidence on her own behalf and called 6 witnesses to show that the parcel of land in question originally belonged to the late father of the Defendants Chief Felix Owen Elema. At the death of Chief Felix Owen Elema the two appellants and their elder brother Jonathan Elema were given letters of administration to administer the estate of their deceased father it was in this capacity that they transferred the land in dispute to the Plaintiff as shown in the receipt Exhibit ‘D’ which was issued as far back as 2 November 1972. It was not until 1981 that the Plaintiff discovered that some people were trespassing on the land. She complained to Chief Jonathan Elema who gave her a hand-written note Exhibit ‘F’ confirming her ownership of the land in question and directing that nobody should stop her from working on the land.
For their part, the Defendants denied having any land transaction with the Plaintiff. They called three (3) witnesses but did not themselves give evidence on their own behalf. As will be shown later in this judgment, the evidence of these witnesses did nothing to enhance the defence of the Defendants.
The Appellants Prince Friday Elema and Prince Sunday Elema were the Defendants in this action filed at the High Court of Justice, Benin City Edo State. In the action, the Respondent who was the Plaintiff, claimed against the Defendants jointly and severally as follows:- “(a) A declaration that the Plaintiff is entitled to the grant of Statutory right of occupancy in respect of a piece of land with an area of 12.183 acres situate and lying at Ward ‘A’ Elema Quarters, Benin City within the jurisdiction of this Honourable Court which said piece of land is demarcated with beacons No. LM. 2559, LM.2558, MA 1975, MA. 1976 and marked ‘A’ and LM.2561, LM. 2562 and LM.2549 and marked ‘B’ in Plan No. ER. 511 of 10/10/73 prepared by Chief G. C. O. Eriyamremu, Licensed Surveyor and filed in these proceedings. (b) N1,000.00 (One thousand naira) damages for trespass on the said land. (c) Perpetual Injunction restraining the Defendants, Privies, their servants and Agents from further trespassing on the said land.”
➥ ISSUE(S)
I. Whether the Plaintiff is entitled to the grant of a right of occupancy to the land?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE PLAINTIFF/RESPONDENT PROVED THAT A VALID SALE OF LAND UNDER CUSTOMARY LAW WAS EFFECTED TO HER
‘The question I have to resolve is whether the plaintiff established the title she claims. As I have already shown, the Plaintiff called evidence in line with her pleadings. As her evidence clearly shows, the Plaintiff paid the Defendants and their deceased elder brother Jonathan Elema as administrators of the estate of the late Chief Felix Owen Elema for the land in dispute. They issued her a receipt Exhibit ‘D’. The Defendants put her in possession of the land. Specifically she said it was the 1st Defendant who was mandated to take her to the piece of land in question. She exercised control over the land. For example, she gave out a portion of the land measuring 100′ x 100′ to P.W. 1 Chief G. Eriyamremu. When the plaintiff’s possession was disturbed in 1981, the Defendants’ elder brother Chief Jonathan Elema gave her a letter to show that they had transferred the land to her and therefore nobody should disturb her workers from carrying on work on the land. From the evidence of the transaction, I would say that there had been a valid sale of the land in dispute under native law and custom: See Cole v. Folami (1956)1FSC66. All the requirements of a valid sale were present. She paid for the land and the land was handed over to her in the presence of witnesses. A valid sale of land by native law and custom is without the necessity for a conveyance as under English law. What is required is the handing over of the purchase money by the purchaser and by the delivery of possession on the other hand by the vendor. Essentially this is what happened in this case.’
‘In the face of the evidence adduced by the Plaintiff, the Defendants had a duty to rebut the evidence that they issued Exhibit ‘D’ to the Plaintiff and also that their deceased brother Jonathan Elema did write Exhibit ‘F’ to the Plaintiff. This evidence did not come as a surprise. It was in line with the Plaintiff’s pleadings. The Defendants as has been shown did not discharge this burden. The evidence they called was ridiculously weak. In fact it was silent on every material averment in the Plaintiff’s pleadings. I should imagine they considered they had a duty to explain the circumstances in which Exhibit ‘D’ and Exhibit ‘F’ were issued to the Plaintiff. In the absence of such an explanation, the inescapable conclusion is that they had put the plaintiff in possession and as against them she was entitled to the reliefs she claimed.’]
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✓ DECISION:
‘I am satisfied that the findings of the learned trial judge were amply supported by the evidence before him. He was justified in entering judgment for the plaintiff. The Court of Appeal, rightly in my view, affirmed that judgment. I see no merit whatsoever in that appeal which I hereby dismiss with N10,000.00 cost to the plaintiff.’
➥ FURTHER DICTA:
⦿ SHIFTING OF BURDEN IN CIVIL CASES
Be that as it may, in the light of the evidence adduced by the Plaintiff, I think the Defendants had a duty to rebut it, if they were to carry the day. This is moreso when they pleaded that they had no land transaction with the Plaintiff. The law in this regard is settled. In civil cases while the burden of proof initially lies on a plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice-versa as the case progresses. This is also referred to as the evidential burden. This is good law and good sense. For if a party calls evidence which reasonably satisfies the court that the fact sought to be proved is established, the burden would shift on his adversary against whom judgment would be given if no more evidence were adduced. See Osawaru v. Ezeiruka (1978) LRN 307; (1978)6-7 SC130) Adegoke v. Adibi (1992)5 NWLR (Pt. 242)410; Sections 137(1) and (2) Evidence Act Cap. 112 Laws of the Federation 1990. — Katsina-Alu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A. I. Katsina-Alu, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
T. J. Onomigbo Okpoko, Esq.
⦿ FOR THE RESPONDENT(S)
A.N.A. Igbinovia Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
