ATTAMA & ORS v. UGWUJA & ORS (2020)

ATTAMA & ORS v. UGWUJA & ORS

(2020)LCN/14349(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/E/59/2009

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

AUGUSTINE ATTAMA 2. FREDRICK ATTAMA 3. HYACINTH ATTAMA (FOR THEMSELVES AND ON BEHALF OF UMU ANEDE ANI ATTAMA AGADA OKOSHI FAMILY OF ANEZI EDE OBALLA NSUKKA L.G.A.) APPELANT(S)

And

1. VINCENT UGWUJA 2. MARCELLUS UGWUJA 3. SUNDAY UGWUJA RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

An appellate Court would only interfere where such evaluation is perverse and occasions a miscarriage of justice. SeeATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) 360, EKI VS. GIWA (1977) 2 SC 131 at 133, LION BUILDINGS LTD. VS SHADIPE (1976) 12 SC 135 at 153, EGBE VS ADEFARASIN (1987) 1 SC 1 and KAMILA VS STATE (2018) LPELR-43603(SC). PER OYEWOLE, J.C.A.

WHAT CONSTITUES A “PLEDGE”

An understanding of what ordinarily constitutes a pledge was provided by ARIWOOLA, JSC thus:
One may then ask, what does it mean to pledge-
This means “a formal promise or undertaking”. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage.” “The pledge is said to be as old as recorded history and is still in use. In this transaction the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid.” See; Black’s Law Dictionary, Ninth Edition Page 1272. A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge. See IHUNWO VS. IHUNWO & ORS (2013) LPELR-20084 (SC) at 14-15.
Further elucidation on the subject was provided by NSOFOR, JCA thus: Now, a pledge of land arises, ex contractu, between the person called the pledgor and the other party called the pledgee.
Arising from the transaction, radical title to or in the land resides in the pledgor. The pledgee has only, a temporary occupation licence or possession. So, having alleged a pledge, then, from the state of the pleadings again, it rests on the defendants, who assert it, to prove the assertion…
And here it becomes necessary for me to advert to the observation by the Supreme Court per Elias, C.J.N. at pages 30/32 in Agadaokoriko vs. Ozo Esedalue (1974) 3 SC. 15 . It repays my respectful quotation. Said the C.J.N.: –
“One invariable rule of customary pledge that can be gathered from reported cases is that the pledgee always goes into possession and has the right to put the land to some productive use. To that extent such use is a kind of interest due on the amount of the loan. The invariable nature of customary pledge which is perpetually redeemable is that the pledgee has only a temporary occupation licence and that he must yield up the pledged land as far as possible in the form he took it originally. This means that he must put it only to temporary use so that its return to the pledgee should be unencumbered in any way”. PER OYEWOLE, J.C.A.

WAYS OF ESTABLISHING PROOF OF TITLE TO LAND

It is now trite that five methods by which a Claimant may establish title to a disputed piece of land have crystallized over the years. These five methods are as follows:
(i) Proof by traditional evidence.
(ii) Proof by production of documents of title duly authenticated, unless they are documents 20 or more years old, produced from proper custody.
(iii) Proof by acts of ownership, in and over the land in dispute, such as selling, leasing, making a grant, renting out all or any part of the land or farming on it or a portion thereof – extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such proprietary acts are the true owners of the land.
(iv) Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership, not only of the particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See:D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at pages 246-250 and ONWUGBUFOR & ORS VS. OKOYE & ORS(1996) LPELR-2716(SC) at 24-25.
What this implies is that a Claimant only needs to establish one of the five roots of title to establish his claim. Where he pleads more than one method, he does so ex abundanti cautela as he will succeed on the establishment of one of the five possible roots of title. See ONWUGBUFOR &ORS VS. OKOYE & ORS (supra) at 25. PER OYEWOLE, J.C.A.

WHETHER OR NOT NATIVE LAW AND CUSTOM IS A MATTER OF EVIDENCE TO BE ESTABLISHED BY CREDIBLE EVIDENCE

In other words, native law and custom is a matter of evidence to be established by credible evidence unless such native law and custom was so notorious that the Courts would take judicial notice thereof. See OYEWUNMI & ANOR VS. OGUNESAN (1990) LPELR-2880 (SC) and NTEOGWUILE V. OTUO (2001) LPELR-2071 (SC). The quality of evidence as would establish the existence of such native law and custom could be elicited from native chiefs or other persons with specialized knowledge of the particular native law and custom involved. See USIOBAIFO & ANOR V. USIOBAIFO & ANOR (2005) LPELR-3428 (SC). PER OYEWOLE, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Enugu State, Nsukka Judicial Division, delivered on the 30th July, 2007 by ONOVO, J.

The Appellants had commenced two separate suits against the Respondents in respect of a parcel of land situate at and called Abede in Amezi Village of Ede Oballa, Nsukka Local Government Area of Enugu State. In the first suit, the Appellants sought the following reliefs:
1. A declaration that the plaintiffs for themselves and on behalf of Abede Ede Oballa, Nsukka Local Government Area are the persons entitled to the grant of the Customary/Statutory Right of Occupancy in respect of the land in dispute verged red in the plan.
2. A declaration that the land the subject matter of this dispute was pledged to Ugwuja Ishiafia the predecessor in title of the defendant for consideration of 20 cowries (N2.00).
3. An order of Court compelling the defendant to accept from the plaintiffs the sum of N2.00 being consideration for the pledge of the plaintiff’s family land or alternatively, an order that the plaintiffs pay into the

Court the sum of N2.00 being the consideration for the pledge.
4. An order of perpetual injunction restraining the defendant whether by himself or through his agents, servants or privies from trespassing into the land in dispute or doing anything which is inconsistent with the proprietary rights of the plaintiffs.

In the subsequent suit, the Appellants sought the following reliefs:
(a) A declaration that the plaintiffs for themselves and on behalf of Umu Ani-Nwattamah Agada Okoshi are the people entitled to the Customary/Statutory Right of Occupancy in respect of the area verged brown in survey Plan No. TLS/EN.D17/93.
(b) N50,000.00 general damages for trespass to the area verged red in the plaintiffs survey plan.
(c) An order of perpetual injunction restraining the dependents, their agents, whomsoever acting on their behalf from further trespassing into the land in dispute.

The two suits were heard together on the same evidence presented by both sides at the end of which the learned Trial Judge found that the Appellants failed to make out their entitlement to the reliefs sought in the two suits and consequently dismissed their claims.

Dissatisfied, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 29th October, 2007 against the judgment in the first suit dismissing their claim for declaration of title. The said Notice of Appeal was subjected to a number of amendments with the extant version being the Further Amended Notice of Appeal filed on the 31st May, 2017 containing eleven grounds.

At the hearing of the appeal, Mr. Idam, the learned lead counsel for the Appellants adopted the Appellants’ Amended Brief of Argument filed on the 31st May, 2017 but deemed properly filed and served on the 28th November, 2018 as well as the Reply Brief filed on the 1st June, 2020 but deemed properly filed and served on the 2nd June, 2020 as the arguments of the Appellants in this appeal. Both briefs were settled by Chief P.M.B. Onyia.

For the Respondents, Mr. Agbo their lead counsel, adopted the Preliminary objection as well as the Respondents’ brief filed together on 23rd September, 2019 but deemed properly filed and served on the 3rd October, 2019 as the arguments of the Respondents in contesting this appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Naturally, the take-off point should be the Respondents’ Preliminary Objection raised and filed in the Respondents’ brief and argued as their first issue. The said objection goes thus:
Whether the further amended notice of appeal particularly some grounds of appeal therein and the amended brief of argument predicated upon it or those grounds are not incompetent as those grounds were filed without the leave of this Court or that of the trial Court below.

Arguing the said objection, Mr. Agbo contended that the present appeal does not fall within the categories of appeal not requiring leave of Court as provided in Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria (as amended) hereinafter referred to simply as the Constitution. He then submitted that having failed to obtain the requisite leave, this appeal is incompetent and should be struck out. He referred to several judicial decisions.

The response of the learned counsel for the Appellants was that pursuant to Section 241 (1) (a) of the Constitution, all appeals against the final decision of a High Court in the exercise of its original jurisdiction, are of

right regardless of whether they are on grounds of law or facts. The learned counsel then distinguished some of the judicial authorities referred to by the Respondents and submitted that the present appeal did not require leave as it was an appeal against the final decision of a High Court.

It seems to me that the point being made by the learned counsel for the Respondent, with due respect to him, is pointless. Section 241(1)(a) of the Constitution unequivocally provides thus:
241. (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
The appeal here was filed against the final decision of the High Court of Enugu State and that much was not contested by the Respondent, and that being the case, appeal is of right irrespective of the nature of the grounds thereof. This point had been reiterated by this Court in a number of cases as to make it trite. See OYEWINLE VS ARAGBIJI OF IRAGBIJI & ORS (2012) LPELR-9328 (CA),

UNIUYO VS. AKPAN (2013) LPELR-19995(CA), NUC VS ALLI & ANOR (2013) LPELR-21444 (CA) and AINA VS SONUGA & ORS (2014) LPELR-24390 (CA).

Learned counsel referred to various judicial authorities which are however inapplicable to the situation at hand and shall be accordingly discountenanced. The preliminary objection therefore lacks merit and it is accordingly dismissed.
I shall now proceed to the main appeal.

The Appellants distilled six issues for determination which were accepted but rearranged by the Respondents. The said issues are as follows:
1. Whether the learned trial Judge was right when he held that the Appellants failed to establish that the land in dispute was pledged to the Respondents and their entitlement to the right of occupancy over the lands in dispute. (Distilled from Grounds 1 and 7).
2. Whether the learned trial Judge was right in failing to draw inference of ownership of the land in dispute in favour of the Appellants, from the undisputed fact that the appellants that gave the disputed land the name it bears. (Distilled from grounds 2 and 3).
3. Whether the learned trial Judge was right when it failed to give

due probative value to Exhibit B, which is the customary arbitration award/decision between the parties and went on to hold that it does not bind the parties even in the face of voluntary participation of parties in the said arbitration. (distilled from grounds 4 and 5).
4. Whether the learned trial Judge was right in disbelieving the Appellants’ account of the pledge and in going further to hold that the Appellants had failed to discharge the onus of proof on them as they could not explain why none of the plots pledged to the Respondents had been redeemed. (Distilled from Grounds 6, 8 and 9).
5. Whether there was a proper evaluation of evidence by the trial Court. (Distilled from Ground 11). And
6. Whether the issues of whereabouts of buildings occupied by Appellants’ ancestors who were buried on the disputed lands and the fact of non-redemption of some plots from the Respondents by the Appellants, were not raised suomotu by the trial Court of which no opportunity was accorded the parties to address the trial Court on it. (Distilled from Grounds 8 and 10).

Issues 1 and 4 were argued together. I shall take them alongside issues

5 and 6 in view of the overlapping arguments canvassed. At the risk of repetition, the said issues are:
Whether the learned trial Judge was right when he held that the Appellants failed to establish that the land in dispute was pledged to the Respondents and their entitlement to the right of occupancy over the lands in dispute.
Whether the learned trial Judge was right in disbelieving the Appellants’ account of the pledge and in going further to hold that the Appellants had failed to discharge the onus of proof on them as they could not explain why none of the plots pledged to the Respondents had been redeemed.
Whether there was a proper evaluation of evidence by the trial Court. And
Whether the issues of whereabouts of buildings occupied by Appellants’ ancestors who were buried on the disputed lands and the fact of non-redemption of some plots from the Respondents by the Appellants, were not raised suomotu by the trial Court of which no opportunity was accorded the parties to address the trial Court on it.

The Appellants contended that they led credible evidence through oral history of how the land in dispute devolved on

them and how it was pledged to the Respondents’ father which evidence was however treated with levity by the learned Trial Judge.

Their learned counsel analyzed the legal implications of a customary pledge and submitted that no matter the length of time, it cannot be transformed into proprietary rights in favour of the pledgee. He further outlined the prerequisites for the existence of a pledge and referred to ONYENGE VS EBERE (2004) 6-7 SC 60 and UFOMBA VS AHUCHAOGU (2003) 4 SC (PT 11) 65.

Learned counsel submitted that the finding of the trial Court on the evidence adduced by the Appellants on the pledge of the land in dispute was perverse as it resulted in miscarriage of justice. He faulted the evaluation of the adduced evidence made by the trial Court saying that the said evaluation failed to demonstrate the basis for the findings. He referred to STATE VS AJIE (2000) 7 SC (PT 1) 24, ALLI VS ALESINLOYE (2000) 4 SC (PT 1) and AIYEOLA VS PEDRO (2014) 13 NWLR (PT 1424) 454.

It was further submitted that the allusion by the learned Trial Judge to nine portions of land held by the Respondents within Abede was not justified as it was not

made an issue by the parties, it was not supported by the pleadings of the Respondents and the evidence adduced in respect thereof was contradictory. Learned counsel referred to MAMMAN VS SALAUDEEN (2005) 12 SC (PT 11) 46, ORIZU VS ANYAEGBUNAM (1978) 5 SC 21 and OHOCHUKWU VS A.G. RIVERS STATE (2012) 6 NWLR 53 (incomplete citation).

He urged the Court to hold that there was no basis for the finding of the trial Court disbelieving their case and urged that the two issues be resolved in favour of the Appellants.

Contrariwise, Mr. Agbo submitted for the Respondents that the Appellants failed to establish the existence of the pledge on which their case rested. He pointed out that the evidence adduced on the name of the pledgee deferred from the name pleaded and that they failed to lead credible oral history of their ownership of the entire Abede land of which the land in dispute formed part of.

The learned counsel submitted that the evidence of PW2 was hearsay and inadmissible and referred to JAMB VS ORJI NKEIRUIKA & ORS (2008) 44 WRN 92 at 106 and DANIEL VS THE STATE (2007) 41 WRN 105 at 121. He further submitted that the testimony of PW4 was

discredited under cross-examination and that the testimony of PW7 was unreliable. He contended that evaluation of evidence was within the province of the trial Court and that the evaluation made by the learned Trial Judge was adequately done and that the findings were not perverse. He referred to ADAMU & ORS VS THE STATE (1991) 6 SCNJ 33 at 39, ITOMO EMORI VS EFOLI ESUKU (2013) 4 WRN 90 and CHIEF SAMUSIDEEN AFOLABI AYORINDE VS CHIEF HASSAN SOGUNRO & ORS (2013) 1 WRN 1 at 20-21.

It was submitted for the Respondents that the pleadings and evidence of the Appellants on the supposed pledge of the land in dispute were challenged by the Respondents who also pleaded the ownership of several parcels of land by them in Abede and led evidence in support thereof. He highlighted the testimony of the 1st Appellant as PW7 who under cross-examination supported the case of the Respondent in this regard. Learned counsel submitted that what has been admitted need no proof and referred to A. A.GBEMI & SONS NIG. LTD & ANOR VS SKYE BANK PLC (2018) 50 WRN 127 at 160.

Learned counsel further submitted for the Respondents that the dispute was not limited to

the pledged land but the entire Abede land which the Respondent led evidence to show belonged to the Respondents through the 9 additional parcels owned by them in Abede while the Appellants were unable to make out their entitlement to the reliefs sought which were rightfully rejected by the trial Court.

He contended that the case presented by the Respondent was not contradictory and was rightfully given evidential value by the learned Trial Judge. He urged the Court to resolve the two issues in favour of the Respondents.

The contention here relates to evaluation of the evidence adduced at trial by the learned trial Judge. Evaluation of oral evidence adduced at trial and ascription of probative value thereto is the primary responsibility of the trial Judge who had the privilege of seeing and hearing the witnesses. An appellate Court would only interfere where such evaluation is perverse and occasions a miscarriage of justice. SeeATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) 360, EKI VS. GIWA (1977) 2 SC 131 at 133, LION BUILDINGS LTD. VS SHADIPE (1976) 12 SC 135 at 153, EGBE VS ADEFARASIN (1987) 1 SC 1 and KAMILA VS STATE (2018) LPELR-43603(SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Central to the case of the Appellants for declaration of title to the land in dispute was their contention that the said land was pledged to the Respondents and that attempts by them to redeem the said traditional pledge had been resisted by the Respondents.
An understanding of what ordinarily constitutes a pledge was provided by ARIWOOLA, JSC thus:
One may then ask, what does it mean to pledge-
This means “a formal promise or undertaking”. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage.” “The pledge is said to be as old as recorded history and is still in use. In this transaction the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid.” See; Black’s Law Dictionary, Ninth Edition Page 1272. A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge. See IHUNWO VS. IHUNWO & ORS (2013) LPELR-20084 (SC) at 14-15.
Further elucidation on the subject was provided by NSOFOR, JCA thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, a pledge of land arises, ex contractu, between the person called the pledgor and the other party called the pledgee.
Arising from the transaction, radical title to or in the land resides in the pledgor. The pledgee has only, a temporary occupation licence or possession. So, having alleged a pledge, then, from the state of the pleadings again, it rests on the defendants, who assert it, to prove the assertion…
And here it becomes necessary for me to advert to the observation by the Supreme Court per Elias, C.J.N. at pages 30/32 in Agadaokoriko vs. Ozo Esedalue (1974) 3 SC. 15 . It repays my respectful quotation. Said the C.J.N.: –
“One invariable rule of customary pledge that can be gathered from reported cases is that the pledgee always goes into possession and has the right to put the land to some productive use. To that extent such use is a kind of interest due on the amount of the loan. The invariable nature of customary pledge which is perpetually redeemable is that the pledgee has only a temporary occupation licence and that he must yield up the pledged land as far as possible in the form he took it

originally. This means that he must put it only to temporary use so that its return to the pledgee should be unencumbered in any way”.
Continuing at page 33 he said:-
“One other important point is that the pledgor’s right of redemption cannot be clogged in, any way by the pledgee such for instance as by demanding any amount in excess of the sum for which the land was originally pledged… or by using other subterfuges to delay or postpone the pledgor’s or his successor’s right to redeem nor is lapse of time a bar to the exercise of the right of redemption for customary pledges of land are perpetually redeemable”. See MBUBU VS. OBORI & ANOR (2002) LPELR-12714 (CA) at 9-11.
Central to a traditional pledge therefore is that no matter the duration of the pledge or in other words, no matter how long the pledged land stays in the possession of the pledgee, it can always be redeemed upon the repayment of the pledged sum and will not metamorphose into a sale or transfer of title unless there is an express agreement to that effect. See IGBUM VS. NYARINYA & ANOR (2000) LPELR-9938 (CA), KOFI VS KOFI (1933) 1 WACA 284, IWUCHUKWU VS ANYANWU (1993)

8 NWLR (PT 311) 307 and EBEVUHE V. UKPAKARA (1996) 7 NWLR (PT 460) 254.
Every allegation of pledge is a matter of fact to be established by credible evidence by the pledgor as he who asserts must prove. In this regard, evidence is expected to be led that there was a pledge and the parties to the said pledge; that the pledge took place in the presence of witnesses; that there was a pledge sum; that the pledgee was put in possession; and the agreed mode of redemption of the pledged property. See EZIKE & ANOR VS. EGBUABA (2019) LPELR-46526(SC) at 11-12 and AKUCHIE VS NWARNADI (1992) 8 NWLR (PT. 257) 214 at 226.

The gist of the Appellants’ case in this regard can be found in paragraphs 13-22 of the Amended Statement of Claim. The said paragraphs are as follows:
13. The Plaintiffs aver that their grandfather Late Onah Attamah pledged the land in dispute to one Late Ugwuja Ishiafia the father of the Defendant for a consideration of 20 cowries which pledge took place in the presence of Ngwoke Attamah now Late, the immediate younger brother of Late Onah Attamah.
14. The Plaintiffs state that their late grandfather could not redeem his

land until he died.
15. The Plaintiffs aver further that after the death of their grandfather, the father Ani Nwa Attamah attempted to redeem the piece of land from Ugwoke Ugwuja, the son of Late Ugwuja Ishiafia, but this attempt could not materialize as the Plaintiff’s father took ill and did not recover until the Nigerian civil war broke out and made such redemption impossible as Ani Nwa Attama died during the war.
16. Following the death of the Plaintiff’s father it has now become the responsibility of the 1st Plaintiff, the most senior member of the Plaintiff’s family to redeem the pledged land.
17. The Plaintiffs aver that in 1989, the 1st Plaintiff accompanied by his junior brother Mr. Fredrick Attamah the 2nd Plaintiff took steps to redeem the land by going to the Defendant who is the son and successor in title to Late Ugwuja Ishiafia, the Pledgee with 3 bottles of beer, 2 piece of kola nuts.
18. The Plaintiffs aver that the Defendant welcomed them in the visit and ate the kola and drank the beer brought by the 1st and 2nd Plaintiffs.
19. The Plaintiffs state that at the meeting, the 1st Plaintiff told the

Defendant that the object of their visit is to inform him that 1st Plaintiff wants to redeem their land which their father pledged to his father.
20. The Plaintiffs aver that the Defendant after listening to the 1st and 2nd Plaintiffs admitted the Plaintiffs ownership of land but asked them to come back in a week’s time for further discussion on the modalities of redeeming the land.
21. The Plaintiffs state that after one week, the 1st and 2nd Plaintiffs went back to the Defendant with one gallon of palm wine and some kola nuts.
22. That the Defendant drank the wine along with the 1st and 2nd Plaintiffs, and after drinking the palm wine, the Defendant denied the 1st Plaintiff the right to redeem the land, thus denying the Plaintiffs the right to ownership to their land.

In support of these averments, the Appellants called 7 witnesses. PW1 was a surveyor who had no knowledge of the pledge when it took place. PW2 did not witness the pledge but only heard of it from the Appellants’ late father Ani Nwa Attama. Pursuant to Section 38 of the Evidence Act, his evidence was therefore hearsay and inadmissible as he was attempting to

assert the veracity of what he heard. See JOLAYEMI VS OLAOYE (2004) ALL FWLR (217) 584, MANAGEMENT ENT. LTD. VS OTUSANYA (1987) ALL NLR 375, BENDEL STATE VS OMO (1990) 6 NWLR (PT 157) 407, GABRIEL VS. STATE (2010) 6 NWLR (PT. 1190) 280, FRN V. USMAN & ANOR (2012) LPELR-7818(SC) and EDEMEKONG & ORS VS. EKPO & ORS (2012) LPELR-19705(CA).

PW3 was the secretary of the Igwe of Ede Oballa whose testimony was on the arbitral intervention of the Igwe in council. He was not in a position to testify about the pledge. PW4 on his part gave evidence of a different pledge transaction other than the one in issue. PW5 was a boundary neighbor who did not even mention the pledge at all in his testimony. PW6 was the brother of a boundary neighbor who personally had no land in Abede and did not offer any direct testimony on the pledge of the land in dispute. PW7 was the 1st Appellant. His testimony on the pledge as contained on page 68 of the record went thus:
I told the Court that one of the two pieces of land was pledged to the father of the Defendants. The considerations for the pledge was 20 cowries. It’s equivalent now is two naira. The land could

not be redeemed during the life time of our forefather because he could not meet up with the money with which to redeem it. My father was planning to redeem it but fell sick and died during the civil war.

Under cross-examination he stated that he was not born when the said pledge was made and that the reason for the pledge as he was told, was to enable his grandfather who made the pledge, fend for his six children. He identified one Eze Nwugwu Ishiofa as the person from the Respondent’s Umuoho, who witnessed the said pledge. His evidence on the witness to the said pledge was not contained in his pleadings. By the pleadings, the witness to the said pledge was Ngwoke Attamah, the younger brother of his grandfather, Onah Attamah. It is trite that parties are bound by their pleadings and evidence which is at variance with the pleadings goes to no issue. See AKPAPUNA & ORS. VS NZEKA & ORS. (1983) LPELR-384 (SC).

As earlier stated, the existence of a pledge must be established by credible evidence as it is incumbent on the party asserting the existence thereof to prove it. See EZIKE & ANOR VS EGBUABA (supra). The Appellants failed to

lead credible evidence on the existence of the pledge pleaded by them.

Having thus failed, what remains in this respect is a determination of whether despite their failure to establish the pledge, the Appellants established their entitlement to declaration of title to the said land in dispute.

particular piece of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarly that the presumption under Section 46 of the Evidence Act, Cap. 112 of 1990 applies and the inference can be drawn that what is true of the one piece of land is likely to be true of the other piece of land.
(v) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See:D.O. IDUNDUN & ORS VS. OKUMAGBA (1976) 9 AND 10 SC 227 at pages 246-250 and ONWUGBUFOR & ORS VS. OKOYE & ORS(1996) LPELR-2716(SC) at 24-25.
What this implies is that a Claimant only needs to establish one of the five roots of title to establish his claim. Where he pleads more than one method, he does so ex abundanti cautela as he will succeed on the establishment of one of the five possible roots of title. See ONWUGBUFOR &ORS VS. OKOYE & ORS (supra) at 25.
To succeed in establishing his root of title in a claim for declaration of title however, a Claimant must plead

and adduce credible evidence in support of his case. Onus of proof is on him which he discharges on preponderance of evidence. In discharging the onus on him he must rely on the strength of his case and not the weakness of his opponent. SeeKAIYAOJA & ORS. VS EGUNLA (1974) LPELR-1644 (SC).

By the pleadings, the case of the Appellants was that the land in dispute formed part of a bigger land called Abede, inherited by them through their forebears and in respect of which their family had been in undisturbed possession. Paragraphs 8-12 of the Amended Statement of Claim puts their root of title in clear perspective. The said paragraphs are as follows:
8. Agadakozi inherited and got the portion of land called “ABEDE” land.
9. In course of time, the descendants of Agadakozi came to be referred to as the Abede family and their land as Abede Family land.
10. Agadakozi begat Onanshi Ogume, Onanshi Ogume begat Ugwu Onanshi Ogume, Ugwu Onanshi Ogume gave birth to Onah Attamah and Ngwoke Attamah. Onah Attamah gave birth to Aninwa Attamah and Ugwu Onah Attamah. Aninwa Attamah gave birth to Augustine Attamah, the 1st Plaintiff and the

other Plaintiffs on record.
11. Agadakozi and his descendants the Abede family have been in undisturbed and bonafide possession of the whole of Abede land ever since the death of Ezeja Okunye and have always exercised diverse acts of ownership thereon, like farming, dwelling and letting out/pledging some portions of the land to tenants.
12. The land in dispute is a piece or parcel of land situate and lying inside the Abede family land in Ede-Oballa. The said piece of land is delineated and shown in Survey Plan No. TLS/EN/D/01/93 dated 11/3/93 drawn by A.O. IGBOANUGO, a licensed Surveyor and thereon verged RED. The Plaintiffs hereby plead the said Plan and shall rely on its features during trial.

From the outlined pleadings, the Appellants’ root of title is anchored in oral or traditional history. To succeed in this endeavor, the traditional history must show the original settler stating how he acquired title to the said land and from that foundation, narrating how the land devolved from generation to generation until it got to the present Claimants. This must be concisely and consistently narrated unless the Defendants conceded the origin

of the land. See OWOADE VS. OMITOLA (1988) 2 NWLR (PT.77) 413, THOMAS VS. HOLDER (1946) 12 WACA 78; ISIBA VS. HANSON (1967) 1 ALL NLR 8 (1968) NMLR 76 and ONI VS. OLOKUN & ANOR (1994) LPELR-14138 (CA).

The Respondents herein did not concede the origin of the land as narrated by the Appellants and as such they were not relieved of the burden of establishing their root of title. Their evidence came substantially from PW7. Evaluating the adduced evidence on the issue, the learned Trial Judge stated on pages 162-163 of the record of appeal thus:
According to the plaintiffs, Ugwuja Ishiafia to whom the land was pledged was the father of Ugwoke Ugwuja, who in turn is the father of the defendants. The defendants however denied knowledge of any person known as Ugwuja Ishiafia whom they said never existed since Ugwoke Ugwuja’s father was Ugwuja Agbo while his grandfather is Ugwu Isiwu Nwangbo- see paragraphs 4 and 9 (e) of the defendants’ Amended statement of defence dated 23/1/95 and filed on 6/2/95.
It is the same Onah Attama who was said to have pledged the land to the defendants’ grandfather that the defendants alleged was

granted the land by their fathers to live on since he was driven away from his place and was looking for refuge before his wife Elegide Ukwueze came to their people to solicit their assistance…
The geneology outlined by the plaintiffs is quite unbroken and may be accepted but it has nothing to do with the land in dispute. The evidence led as to the entry of Ezeja Okwunye into the land in dispute is not satisfactory.
They had called a number of witnesses in proof of the fact that they had all along been on the land in dispute. It was Agada Okoshi who got the land as his share of his father’s estate but down six generations only PW7 and his brothers have buildings on the land in dispute despite the existence of alleged graves of their ancestors. Where did those ancestors allegedly buried on the land live or was Abede a burial ground?
The plaintiffs have not been able to discharge the onus laid upon them by law as to the presence of the defendants on nine portions of land within Abede land. Their evidence that those pieces of land were pledged to the defendants cannot be believed. They had called PW5 who also stated that the grandfather of

the plaintiffs also pledged a piece of land to his father. That land was redeemed but the plaintiffs were not able to redeem a single one out of the nine that were pledged to the defendants’ fore-fathers.
It would seem that the grandfather of the plaintiffs had virtually all his land under pledge. One cannot therefore but wonder as counsel to the defendants did, whether there was an outbreak of epidemic in the plaintiffs’ family at that time which necessitated the pledge of all those pieces of land to different individuals. PW5 only came to Court to assist the plaintiffs and was denied by DW6 whom he said mandated him to testify on his behalf. The plaintiffs could not say why the lands were pledged to different people. Their story is difficult to believe. The tale told by the plaintiffs is a fairy tale which is not good enough to ground a declaration of title to land.

I have taken time to elaborately set out the reasoning leading to the conclusion of the learned trial Judge to show that contrary to the submissions of the learned counsel for the Appellants, their case was not perfunctorily treated by the learned trial Judge.

They failed to lead credible evidence in support of their claim for title to the said land and cannot lay the blame for the dismissal of their case on the doorsteps of the learned Trial Judge. They only had themselves to blame.

The contention that the learned Trial Judge suo motu raised the issue of the 9 plots of land held by the Respondents in Amede is not supported by the evidence. The learned Trial Judge was entitled to evaluate the adduced evidence before the Court which was justifiably done.
I find no basis to impeach the evaluation made and I therefore resolve the four issues here against the Appellants and in favour of the Respondents.

Next is issue 2 which is:
Whether the learned trial Judge was right in failing to draw inference of ownership of the land in dispute in favour of the Appellants, from the undisputed fact that the appellants that gave the disputed land the name it bears.

Arguing this issue, the learned counsel for the Appellants contended that the admitted fact was that the land in dispute was located in Abede land from which the learned Trial Judge ought to have drawn the inference that it was land belonging to the

Appellants especially as PW7 testified that customarily only the owners of a place could name it. He referred to OGUNSANYA VS OGUNSANYA (1995) 7 NWLR (PT 404) 702, OKECHUKWU VS. OKAFOR (1961) 1 ALL WLR 685 at 691 and ALHAJI VS SERIKI VS MR. JONJAY ADURALERE (2011) LPELR-4946.

The counter-argument of the Respondents was that a place is given a name by the people living in it or due to some special event and that the land in dispute being part of the land granted to the grandfather of the Appellants was appropriately named after the people thus occupying it. It was argued further that contrary to the position of the Appellants, the two families had lived in harmony prior to the present dispute.

It was common to both sides that the land of which the land in dispute formed a portion was named Abede land. The Appellant advanced a proposition that by the custom of the area, land could only be named by the owner thereof. Unless a particular custom is so notorious that the Court would take judicial notice thereof, credible evidence must be led to show that a particular custom prevailed in a given area. In other words, native law and custom is a matter of evidence

to be established by credible evidence unless such native law and custom was so notorious that the Courts would take judicial notice thereof. See OYEWUNMI & ANOR VS. OGUNESAN (1990) LPELR-2880 (SC) and NTEOGWUILE V. OTUO (2001) LPELR-2071 (SC). The quality of evidence as would establish the existence of such native law and custom could be elicited from native chiefs or other persons with specialized knowledge of the particular native law and custom involved. See USIOBAIFO & ANOR V. USIOBAIFO & ANOR (2005) LPELR-3428 (SC).

In his arguments on this issue, the learned counsel for the Appellants referred to the testimony of the 1st Appellant as PW7. The 1st Appellant did not put himself out as an expert in the native law and custom of Ede Oballa and it would take more than his testimony to establish that such a custom prevailed in Ede Oballa. I therefore resolve this issue as well against the Appellants and in favour of the Respondents.

Next is issue 3 which is:
Whether the learned trial Judge was right when it failed to give due probative value to Exhibit B, which is the customary arbitration award/decision between the parties and went on

to hold that it does not bind the parties even in the face of voluntary participation of parties in the said arbitration.

On this issue, the Appellants contended that the Respondents voluntarily submitted to customary arbitration of the Igwe’s cabinet with the outcome admitted in evidence as exhibit B and that the said outcome ought to have bound the Respondents and should not have been discountenanced by the trial Court as it satisfied all the requirements of a customary arbitration. Their learned counsel referred to OPARAJI VS OHANU (1999) 6 SC (PT 1) 41 and ONYENGE VS EBERE (2004) 6-7 SC 63 and NJOKU VS EKEOCHA (1972).

On the other hand, the Respondents argued that the conditions for a binding customary arbitration was not satisfied by exhibit B as the said arbitration went beyond the issue submitted to it which prompted the Respondents to reject it, thereby rendering it unenforceable as found by the trial Court. Their learned counsel referred to ODONIGI VS OYELEKE(2001) 84 LRCN 658 at 675, EGESIMBA VS ONUZURIKE (2002) 103 LRCN 2485 at 2485, UME VS OKORONKWO (1996) 43 LRCN 2068 at 2080 and MENIHU OZOUKEJE VS OGBOZO OZOUKEJE (2017) ESCCALR

179 at 204.

In their Reply brief, the Appellants reiterated their earlier arguments that the learned Trial Judge wrongfully failed to accord probative value to exhibit B.

The essence of customary arbitration involves interventions by local chiefs or family heads with the sole intention of amicably resolving disputes in line with local customary laws and practices. InAGU VS IKEWIBE, KARIBI-WHYTE, JSC stated thus:
It is clearly unarguable that the judicial power of the Constitution in Section 6(1) is by Section 6(5) vested in the Courts named in that section. Not so a Customary arbitration. What then is a customary arbitration, I venture to regard Customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the Arbitrators who are either the Chiefs or Elders of their Community, and the agreement to be bound by such decision or freedom to resile where unfavourable.
In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the Courts.
Secondly, customary law is by virtue of Section 274(3), 4(b) an

“existing law” being a body of rules of law in force immediately before the force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by Section 274(3) & 4(b) of the Constitution 1979.
– See Giwa v. Inspector-General of Police (1985) 6 N.C.L.R. 369, Enyinnaya v. Commissioner of Police.
It is well accepted that one of the many African Customary modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling disputes in all indigenous Nigerian societies.
It is this kind arbitration which the Court considered in Assampong v. Kweku & Ors (1932) 1 W.A.C.A. 192. In Phillip Njoku v. Felix Ekeocha (1972) 2 E.C.S.L.R. 199 Ikpeazu, J., held that
“Where a body of men, be they Chiefs or otherwise, act as arbitrators over a dispute between two parties, their

decision shall have a binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and thirdly, that they agreed to be bound by the decision, such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.” See AGU V. IKEWIBE(1991) LPELR-253(SC) at 25-26.
Essentially, the basic ingredients for a customary arbitration to be binding and effective are the voluntary submission of the dispute to the arbitration of the individual or body, the agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding, that the arbitration was in accordance with the custom and that the arbitrators reached a decision and published their award.

The accepted evidence at trial was that the Respondents did not complete the arbitration process which resulted in exhibit B, it therefore cannot be said that they expressly or impliedly agreed to accept and be bound by the outcome of the said arbitration which produced Exhibit B.

In the circumstances I resolve this issue as well against the Appellants and in favour of the Respondents.
In totality, I find no merit in this appeal and I therefore dismiss it accordingly.
Parties shall bear their respective costs.

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 too find no merit in the appeal and I therefore dismiss it accordingly.

ABUBAKAR SADIQ UMAR, J.C.A.: I have before now had the opportunity of reading in draft, the judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I entirely agree with the manner my learned brother comprehensively and lucidly dealt with the issues raised for determination of this appeal. His approach appears to have left me with little to contribute lest, I might commit error of repetition.
I equally hold that the appeal lacks merit and it is dismissed.
No order as to cost.

Appearances:

Mr. I.O. Idam with him, P.N. Ndubuisi, Esq., For Appellant(s)

Mr. C. S. Agbo with him, Mr. M. Onyisifor For Respondent(s)