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  • 2013-12-16
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Yusuf v. Akinsunnoye

1.MADAM AYAYI YUSUF

2.MADAM AINA OYADELE

V

RAPHAEL  AKINSUNNOYE

COURT OF APPEAL

( AKURE DIVISION )

K. M. O. KEKERE-EKUN JCA ( Presided and Read the Lead Judgment )

ALI ABUBAKAR B. GUMEL JCA

CORDELIA IFEOMA JOMBO-OFO JCA

CA/B/49/2010

FRIDAY, 19 APRIL 2013

COURT - Declaratory relief - Claimant for - Onus on to succeed on strength of own case and not rely on weakness of defence When may rely on - Grant of upon admission - Impropriety of

EVIDENCE - Declaratory relief - Claimant for - Onus on to succeed on strength of own case and not rely on weakness of defence When may rely on - Grant of upon admission - Impropriety of

LAND LAW - Defendant who has not counterclaimed - Whether has the burden to prove his title

LAND LAW - Larger land claimed - Title to smaller parcel of where claimant succeeds in proving title to - Propriety of grant to

LAND LAW - Title to land - Proof of - Five ways therefor

PLEADINGS - Facts - Propriety of pleading and not evidence

PLEADINGS - Pleadings - Bindingness of on parties

PLEADINGS - Purport of

Issues:

  1. Whether the dismissal of the appellants’ claim in respect of the entire land in dispute by the trial court is proper.
  2. Whether having regard to the pleadings and the evidence before the trial court there was any condition attached to the grant of the portion of the land in dispute to the respondent’s father.
  3. Whether from the pleadings and evidence before the trial court, the appellants are caught by the provisions of section 149(d) of the Evidence Act.

Facts:

The appellants as plaintiffs relied on traditional evidence as basis of their title to the land known as Asamuro and Oguntola family land along Ipinsa Road, Akure, Akure South Local Government. They claimed that their mother had granted a portion of the land to the respondent’s father for purposes of planting food crops only upon certain conditions. That after the death of their mother, the respondent was allowed the continued use of the land, but that he laid claim to the ownership of the land on grounds that the grant was without conditions and planted cash crops thereon. They prayed the High Court of Ondo State for declaration, perpetual injunction and damages for trespass. The respondent however claimed that the land was an unconditional grant to his father and he was allowed to plant cash crops thereon. The trial court dismissed appellants’ claims. Not satisfied, the appellants filed an appeal to the Court of Appeal. They challenged the decision of the trial court on grounds that the trial court erred by dismissing appellant’s claim for declaration of title in respect of the entire land in dispute and by failing to properly evaluate the evidence before it to hold that the appellants failed to prove that the grant of the land was not absolute.

In determination of the appeal, the Court of Appeal considered the following statute:

Evidence Act, section 149(d) (now section 167(d) of 2011 Act)

“149. 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 relation to the facts of the particular case, and in

particular the court may presume

...

(d) that evidence which could be and is not produced would, if produced, be unfavourable to the party who withholds it.”