AZOR & ANOR v. OKILE & ANOR (2020)

AZOR & ANOR v. OKILE & ANOR

(2020)LCN/14142(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, April 24, 2020

CA/E/259/2014

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

1. CHIEF IZUEGBUNAM AZOR 2. OLE NWAFOR APPELANT(S)

And

1. JOHN OKILE 2. ABEL OKILE RESPONDENT(S)

RATIO

PROOF OF TITLE TO LAND

It is trite that in a claim for declaration of title to land, onus of proof is on the claimant who must succeed on the strength of his case and not the weakness of the defence. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336 and MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (PT.7) 393. PER OYEWOLE, J.C.A.

IMPORTANCE OF JURISDICTION

Jurisdiction is a threshold issue, it is the life-elixir of the exercise of judicial power. Any exercise of judicial power without the requisite jurisdiction is incapable of conferring any legal benefit. See ODOFIN VS AGU (1992) NWLR (PT.229) 350, NIDOCCO LTD. VS GBAJABIAMILA (2013) 14 NWLR (PT.1374) 350, EKPENYONG VS NYONG (1975) 2 SC (REPRINT) 65 and PDP & ORS VS. EZEONWUKA & ANOR (2017) LPELR-42563 (SC). PER OYEWOLE, J.C.A.

WHETHER OR NOT PAYMENT OF TRIBUTES IS AN ELEMENT IN CUSTOMARY TENANCIES

There is no doubt that payment of tributes is an element in customary tenancies but it has been held not to be the most essential attribute. Fundamental to customary tenancies is the acceptance of the over lordship of the landlord by the customary tenant. This much was made abundantly evident by TOBI, JSC thus: The concept of customary tenancy, which creates a relationship of landlord and tenant, is peculiar to customary law and has no equivalent in English law. The concept connotes a situation where strangers or immigrants are granted land by the overlord to be in occupation and continue in peaceable enjoyment, subject to forfeiture of the right on certain grounds, including alienation of the land without the consent of the overlord, denial of the title of the overlord or refusal or failure to pay tribute. While payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. There are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognizes the position of the overlord, customary tenancy exists. In other words, where the tenant unequivocally recognizes the position of overlord of the landlord, a customary tenancy exists, whether tribute is paid or not. After all, payment of tribute could be overlooked by the landlord who has milk of kindness in him and a flowing charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. The point I am making is that the Court of Appeal is correct in coming to the conclusion that payment of tribute by way of Ishakole is not an invariable practice. The most important condition, if I may say so, is for the tenant to agree that the landlord is his overlord, and there is a plethora of evidence on that by the 2nd to 5th defendants. See AKINLAGUN & ORS VS. OSHOBOJA & ANOR (2006) LPELR-348 (SC) at 27-28. See also ABIMBOLA VS. ABATAN (2001) LPELR-38 (SC). PER OYEWOLE, J.C.A.

THE PRINCIPLE OF A PARTY WHO ALLEGES MUST PROVE

The law is trite that he who alleges must prove and the onus of proof is on the person who would lose if no evidence is adduced. I call in aid the decision of the Apex Court in WACHUCWU & ANOR. V. OWUNWANNE & ANOR. (2011) LPELR- 3466 (SC) and ADELEKE & ORS V. IYANDA & ORS (2001) LPELR- 114 (SC). Also, where a party seeks declaratory reliefs, the party seeking such a relief must succeed on the strength of his own case and not rely on the weakness. PER DONGBAN- MENSEM, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 11th day of November, 2013.

The Appellants had approached the Customary Court of Mbanago Awgu, holden at Mbanago-Awgu over a dispute with the Respondents involving a parcel of land situate at Umuhu-Awgu, for the following reliefs:
(a) Declaration that the plaintiffs are entitled to the Customary Right of Occupation of a parcel of land known as and called “Ebor Ndichie Umuonyebia” situate at Umuhu-Awgu.
(b) An order of perpetual injunction restraining the defendants, their agents, servants or privies from further entry into the land in dispute.
(c) An order compelling the defendants to remove the cement blocks deposited there.
(d) An order for the defendants to pay for the cost of this case.
(e) Any other order(s) as the Court may deem fit to make in the circumstance.

The Respondents as defendants resisted the claim upon which the case proceeded to trial. At trial, the Appellants testified and

called additional witnesses while the Respondents did the same. The trial Customary Court conducted a visit to the locus in quo before delivering a reserved judgment on the 13th February, 2012 wherein it found in favour of the Appellants and granted their reliefs.

Dissatisfied, the Respondent approached the Court below via a notice of appeal filed on the 20th February, 2012. The said appeal was contested and argued by the two sides upon which the Court below delivered a considered judgment as aforesaid on the 11th November, 2013 wherein the said appeal was allowed and the judgment of the trial Customary Court was set aside.

Unhappy at this turn of events, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 30th January, 2014 containing three grounds.

Parties were invited by the Court to file addresses on the jurisdiction of this Court to entertain the appeal which addresses were adopted at the hearing of the appeal, alongside the already filed briefs.

Mr. Ndukwe adopted the Appellants’ brief filed on the 27th June, 2014, the Reply brief filed on the 28th November, 2014 as well as the

written argument on the issue of jurisdiction filed on the 21st February, 2018 as the arguments of the Appellant in respect of the appeal.

For the Respondents, Mr. Ugwu adopted the Respondents’ brief filed on the 13th October, 2014 as well as the arguments on jurisdiction filed on the 28th May, 2018 as the arguments of the Respondents in contesting the appeal.

That being so, the departure point here will be a determination of whether indeed this Court has the requisite jurisdiction to hear and determine this appeal.

Mr. Ndukwe considered the grounds of appeal herein vis a vis the provisions of Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereinafter referred to as “the

Constitution” and submitted that ground 1 thereof raises an issue of customary law, which is sufficient to sustain the appeal. He referred to AKINLOYE VS OGUNGBE (1979) 2 LRN 283, SALAMI VS OKE (1987) 9-11 SC 43 at 50 and DANG PAM VS DANG GWOM (2000) FWLR (PT 1) 1.

On his part, Mr. Ugwu considered the grounds of appeal herein and argued that the appeal in issue only dealt with evaluation of facts and had nothing to do with customary law and was as such incompetent pursuant to Section 245 (1) of the Constitution. He referred to OSADEBE VS MOTANYA (2014) 23 W.R.N. 162 at 184, PAM VS GWOM (2000) 2 NWLR (PT 644) 322 and ONITIRI VS BENSON (2010) 29 W.R.N. 148.

Section 245 (1) of the Constitution provides as follows:
245. (1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
The implications of the above stated provisions for appeals emanating from the Customary Court of Appeal to the Court of

Appeal are clear and unambiguous. Appeals relating to any question of customary law would lie as of right to the Court of Appeal while those falling outside this prescribed framework would lie with the leave of either the lower Court or the Court of Appeal. See OZOEMENA & ANOR VS. NWOKORO & ORS (2018) LPELR-44462 (SC).
The question as to what constitutes customary law has been interpreted to include a ground which pertains to the failure to prove a case before the Customary Court while an omnibus ground of appeal does not pertain to customary law. See GOLOK VS. DIYALPWAN (1990) LPELR-1329 (SC).
It was also decided that where the decision of the Customary Court of Appeal relates to issues of procedure or turns purely on facts, then it would not constitute an appeal pertaining to customary law. See PAM VS. GWOM (2000) LPELR-2896 (SC).
In his arguments on this issue, the learned counsel for the Appellant conceded that only Ground 1 of the Notice of Appeal raised an issue of customary law, this concession was considered inadequate by his learned counterpart for the Respondents who contended that none of the grounds pertained to customary law.

In the said Ground 1, the Appellants contended thus:
GROUND 1: ERROR IN LAW
The Customary Court of appeal Justices erred in law when they erroneously stated that the nature of tribute as well as the quantum of tribute paid by the Respondents to the Appellants were not proved in the trial Court.
PARTICULARS:
1. Tribute in customary tenancy arises by operation of law independently of agreement.
2. Tribute is merely an acknowledgment of the grantors title, bears in amount no economic relation to the economic value of the land.
3. Customary law does not require proof of quantum of tribute.
4. Customary law does not require proof of the quantum of tribute.
5. That tribute is different from rent which arises from agreement between the grantor and the tenant.
A perusal of the above ground together with the particulars thereof discloses abundantly that this ground pertains to customary law and it therefore sustains this appeal. Grounds 2 to 4 having been conceded by the Appellants as having no bearing with customary law and having been filed without the leave of Court, are incompetent and are accordingly struck out.

I shall now proceed to the substantive appeal. The Appellants distilled 3 issues for determination thus:
1. Whether the Customary Court of Appeal Enugu has jurisdiction to hear and determine the appeal from Mbanano Customary Court? Ground 4.
2. Whether customary law requires that tributes payable by customary tenants must be proved both in quantity and nature? Ground 1.
3. Whether the disparity between the parties during negotiation can be a ground to infer that there was no attempt to sell but an appeasement? Ground 3.

The Respondents equally distilled 3 issues on essentially the same subject-matters as follows:
1. Whether the Customary Court of Appeal Enugu State has jurisdiction to hear and determine appeal from Customary Court Mbanabo.
2. Whether the lower Court was right in concluding that a party claiming customary tenancy has a duty to prove the nature of tribute paid by the customary tenant.
3. Whether the lower Court was justified in finding that the negotiation between the parties was not over the purchase price for the land.

The issues formulated by the Appellants were the only ones tied to the grounds of

appeal and I shall adopt them in determining this appeal. That said, as issues 1 and 3 were formulated from incompetent grounds which have been struck out, the only valid issue remaining therefore is issue 2 formulated from the only remaining ground. The said issue goes thus:
Whether customary law requires that tributes payable by customary tenants must be proved both in quantity and nature.

Arguing the issue, Mr. Ndukwe submitted that the Court below was not in the same position as the trial Customary Court which heard the witnesses and visited the locus in quo and could not therefore justifiably interfere with the findings of fact made by the trial Customary Court. He referred to EFI VS ENYINFUE (1954) 14 WACA 424, GOLOK VS DIYALPWAN (1990) 3 NWLR (PT 139) 411 at 686-687 and NKOKO VS AKPALA (2000) 7 NWLR (PT 664) 225.

He further submitted that what an appellate Court should consider was whether there was a miscarriage of justice and not whether there was a misdirection not occasioning miscarriage of justice. He referred to ANYANWU VS MBARA (1992) 5 NWLR (PT 242) 386 and UKEJIANYA VS UCHENDU (1950) 13 WACA 45.

Contrariwise, Mr. Ugwu argued

that payment of tributes is an essential component of customary tenancies but that not only did the Appellants fail to prove the payment of tributes, PW3 testified that the Respondents never paid tributes to the Appellants. He referred to DASHI VS SATLONG (2009) 1-2 MJC and ASHIE & ORS VS ANSA & ORS (2011) FWLR (PT 80) 1529 at 1586.

The learned counsel pointed out that the Appellants did not show that they led evidence of payment of tributes and further submitted that although the judgments of customary Courts are accorded latitudes, such would not extend to where the decision was shown to be perverse. He referred to AWOLEYE VS OGUNBIYI (1986) 2 NWLR (PT 24) 626.

On page 96 of the record of appeal, the Court below found as follows:
The plaintiffs/respondents did not satisfactorily discharge the burden cast upon them by law. The evidence of Anunobu Raphael Monday, the septuagenarian and elder of Ezi-Umuhu Community, cast a considerable slur on the claim of the plaintiffs/respondents that the defendants’ family paid yearly tribute to them with respect to the land in dispute. If this witness who also tried to settle the dispute

between the parties had never heard that the family of the defendants/respondents paid yearly tribute to that of the plaintiffs/respondents, then, had the plaintiffs/respondents not failed to prove a vital part of their claim? Why did the plaintiffs/respondents not get a witness outside themselves as claimants to testify that the defendants/appellants or their fathers paid tribute regarding the land in dispute? Could they not have got a witness or two to give evidence of a tenancy relationship that has, according to them, spanned two generations? I am afraid I find it difficult to hold that the plaintiff/respondents discharged the burden of proof cast on them by law as asserters. It is only after the plaintiffs/respondents might have discharged this burden in accordance with the required principle of law that the onus shifts to the defendants/appellants.

thus:
The concept of customary tenancy, which creates a relationship of landlord and tenant, is peculiar to customary law and has no equivalent in English law. The concept connotes a situation where strangers or immigrants are granted land by the overlord to be in occupation and continue in peaceable enjoyment, subject to forfeiture of the right on certain grounds, including alienation of the land without the consent of the overlord, denial of the title of the overlord or refusal or failure to pay tribute. While payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. There are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognizes the position of the overlord, customary tenancy exists. In other words, where the tenant unequivocally recognizes the position of overlord of the landlord, a customary tenancy exists, whether tribute is paid or not. After all, payment of tribute could be overlooked by the landlord who has milk of kindness in him and a flowing charity. There are also instances where the landlord asks the tenant

to stop payment of tribute because of very long association and the good behaviour of the tenant. The point I am making is that the Court of Appeal is correct in coming to the conclusion that payment of tribute by way of Ishakole is not an invariable practice. The most important condition, if I may say so, is for the tenant to agree that the landlord is his overlord, and there is a plethora of evidence on that by the 2nd to 5th defendants. See AKINLAGUN & ORS VS. OSHOBOJA & ANOR (2006) LPELR-348 (SC) at 27-28. See also ABIMBOLA VS. ABATAN (2001) LPELR-38 (SC).

The Court below held that the Appellants failed to lead evidence that the Respondents paid tribute to them and this point was not challenged before us in this appeal. More importantly however, the Appellants also failed to lead evidence that the Respondents accepted their over lordship thereby failing to prove the crux of their claim to ownership of the land in dispute which is in the possession of the Respondents.

It is trite that in a claim for declaration of title to land, onus of proof is on the claimant who must succeed on the strength of his case and not the weakness of the defence.

See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 336 and MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (PT.7) 393.

In the circumstances therefore, I resolve the sole issue in favour of the Respondents and against the Appellants. I find no basis to interfere with the judgment of the lower Court.
I therefore find no merit in this appeal and I accordingly dismiss it. The judgment of the lower Court is hereby affirmed.
Parties shall bear their respective costs.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA dismissing this appeal.

The Appellants failed to adduce evidence to support their claim. The law is trite that he who alleges must prove and the onus of proof is on the person who would lose if no evidence is adduced. I call in aid the decision of the Apex Court in WACHUCWU & ANOR. V. OWUNWANNE & ANOR. (2011) LPELR- 3466 (SC) and ADELEKE & ORS V. IYANDA & ORS (2001) LPELR- 114 (SC).

Also, where a party seeks declaratory reliefs, the party seeking such a relief must succeed on the strength of his own case and not rely on the weakness

of the defence. See ALAO V. AKANO & ORS (2005) LPELR- 409 (SC). In the circumstance, I agree with the lead Judgment which I hereby adopt wholly as mine. I too hereby dismiss this appeal and endorse all the orders made in the lead Judgment.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI OYEWOLE, JCA. I agree that the appeal has no merit. I too dismiss the appeal.

Appearances:

Mr. J. B. U. Ndukwe with him, Mr. C. Okoye For Appellant(s)

Mr. C. P. Ugwu with him, Mr. C. I. Nwokoro For Respondent(s)