CLETUS NNAJI & ORS. v. OGUZIE ONUOHA
(2011)LCN/4358(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2011
CA/PH/183/2006
RATIO
NATIVE COURT: WHETHER THE PROCEDURE OF A NATIVE COURT SHOULD NOT BE SUBJECTED TO STRICT PRINCIPLES OF LAW AS DONE IN REGULAR COURTS OF RECORD
…the procedure of a Native Court should not be subjected to strict principles of law as done in the regular courts of record. Indeed, it has been held that greater latitude and broader interpretation should be accorded to decisions of native courts. See, Efi vs. Eyinful (1954) 14 WACA 424, Ekpa vs. Ufong (1990) LRCN 1473 at 1587, (1991) 6 NWLR (Pt. 197) 258, Odofin vs. Oni (2001) 1 SCNJ 13, (2001) 3 NWLR (Pt. 701) 488, Olujinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 251 Bello Ogundele & Ors. vs. Shittu Agiri & Ors (2009) 18 NWLR (Pt. 1173) 219 at 252 (per Fabiyi, J.S.C). PER MOJEED ADEKUNLE OWOADE, J.C.A
FILING OF PLEADINGS IN CUSTOMARY AND NATIVE COURT: WHETHER PARTIES ARE OBLIGED TO FILE PLEADINGS IN PROCEEDINGS OF CUSTOMARY OR NATIVE COURTS
In other words, in assessing and interpreting the proceedings of customary or native courts as in the instant case, it should be borne in mind that the parties are not obliged to file pleadings and the substance rather than the form of the proceedings should be looked into. See, Ajayi vs. Aina (1942) 16 NLR 627, Chukwunta vs. Chukwu (1953) 14 WACA 341, Adogan vs. Aina (1964) 1 ANLR 127, Chief Ajagunjeun & Ors. vs. Sobo Osho of Yeku Village & Ors. (1972) 5 SC 89, Chief Dokubo & Anor. vs. Chief Omoni & 9 Ors. (1999) 6 SCNJ 168 at 180, (1999) 8 NWLR (Pt. 616) 647. PER MOJEED ADEKUNLE OWOADE, J.C.A
TITLE TO LAND: WHETHER THE PROOF BY ANY ONE METHOD WOULD SUFFICE IN PROOF OF TITLE TO LAND; WAYS BY WHICH OWNERSHIP OF LAND MAY BE PROVED
In other words, while the proof by any one method would suffice under the principle in Idundun vs. Okumagba (supra) there is no limit to the number of methods or combination of methods that can be pleaded and proved. See Ayanwale vs. Atanda (1988) 1 NWLR (Pt. 688) 22, Morenikeji vs. Adegbosin (2003) 8 NWLR (823) 612 at 661 – 662. In Idundun vs. Okumagba (supra) at pages 246 – 250 the Supreme Court (per Fatayi – Williams JSC) listed the 5 ways in which ownership may be proved. These are (1) by traditional evidence (2) by production of documents of title (3) by proving acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner (Ekpo vs. Ita 11 NLR 68). (4) by proving acts of long possession and enjoyment of the land. These are really more of a weapon of defence rather than offence (by S. 145 Evidence Act possession raises a presumption of ownership although this presumption can be defeated). See also Abatan vs. Winsalla SC/516/66 delivered on 26/6/70 unreported. (5) by proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also the owner of such adjacent land (S. 45 of Evidence act). PER MOJEED ADEKUNLE OWOADE, J.C.A
FINDING OF FACTS: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT MADE BY THE TRIAL COURT
The attitude of an appellate court is that it will not interfere with those findings of fact except the appellant can show special circumstances – either there was a miscarriage of justice or a serious violation of some principles of law or procedure or that the findings are erroneous in substantive or procedural law. See Lokoyi vs. Olojo (1983) 8 S.C. 61 at 63 – 73 (1983) 2 S.C.N.L.R 127; Ojomu vs. Ajao (1983) 9 S.C. 22 at 53 (1963) S.C.N.L.R. 156; Otogbolu vs. Okeluwa (1981) 6 – 7 S.C 99. PER MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. CLETUS NNAJI
2. OWUNNA NWAIWU
3. VINCENT AMAECHI
4. VIRGILUS AMAECHI
5. JUDE ONYEKPEREM
(FOR THEMSELVES AND AS REPRESENTING THE UMUEJEM FAMILY IN UMUGO EZIAMA IN NGOR OKPALA LOCAL GOVERNMENT AREA) Appellant(s)
AND
OGUZIE ONUOHA
(FOR HIMSELF AND AS REPRESENTING UMUEKEAGBA FAMILY IN UMUAGWU EZIAMA IN NGOR OKPALA LOCAL GOVERNMENT AREA) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Imo State, sitting at Owerri in Appeal No. CCA/OW/A/46/2004 delivered on the 12th October, 2005 affirming the judgment of the Customary Court, Ngor Okpala, sitting at Umuneke in Suit No. CC/NGO/47/98 delivered on 15th January, 2004.
On 15th June, 1998, the respondent as plaintiff in the Customary Court of Ngor Okpala Local Government Area of Imo State holden at Umuneke claimed against the appellants as defendants as follows:
“1.Declaration that the plaintiff is entitled to the Customary Right of Occupancy to that piece or parcel of land known as and called “Okwu Azu Ulo” lying and situated at Umuagwu Eziama in the Ngor Okpala Local Government Area of Imo State in jurisdiction shown on Plan No. AS/IMD/43/88.
2. N5,000.00 General Damages or (sic) for trespass in that the defendants, without consent licences and or authority of members of Umueke-Agba family in Umuagwu Eziama in the Ngor Okpala Local Government Area of Imo State within jurisdiction, broke entered into the said piece or parcel of land stated (sic) started clearing the bush and putting down yam stakes indiscriminately with the view to farming therein.
3. Perpetual Injunction restraining the defendants, their servants/agents or privies from further entering praying (sic) part of the said pieces or parcel of land without the plaintiffs’ consent, licenses and/or authority.”
The brief facts of the case are as follows:
The respondent as plaintiff claims that the original owner of the land in dispute was Umuazulo, a village which became extinct as a result of a spiritual abomination which resulted in the death of the members of the village. That, his progenitor, one Agwu married a wife from the Umuazulo village and from that marriage Agwu begot Agbaa. That following the death of Umuazulo people, the sons of Umueke Agba came to them for help in appeasing the gods, after which he began to inherit their property including the land in dispute and that was how the land in dispute became the property of Umuekeagba.
The respondent further stated that sometimes in 1971, the entire Eziama Community arbitrated over the land between Umuekeagba family and the appellants Umuejem family which native arbitration ended in favour of the respondent. The decision of the arbitration was tendered as Exhibit A.
The appellant’s case is that their Umuejem family are the owners in possession of the land in dispute. That their original ancestor called Ugo deforested the land and farmed on it and that the land devolved over the years from Ugo to them.
Appellants stated that the respondent’s family started laying claims of ownership over the land in dispute in 1971 and denied any native arbitration by Eziama Community as claimed by the respondent. In the course of proceedings, appellants tendered certified true copies of judgment/rulings from the Magistrate’s Court in respect of some criminal proceedings arising from the land in dispute in which members of the respondent’s family were in the past convicted. And, also of criminal proceedings initiated by the respondent’s family against the members of appellant’s family, which resulted in acquittal and discharge.
At the trial, before the Customary Court, the respondent testified as PW1 and called two other witnesses – PW2 and PW3. The appellants also testified through the 3rd appellant as DW1 and called DW2 and DW3.
In a considered and unanimous judgment the Customary Court held in favour of the respondent.
In coming to this conclusion, the court observed at pages 98 – 99 at the record as follows:
“1. That the name of this land in dispute is called Okwu Azulor
2. That the defendant attached other names like Ogba Okpulor – Okwu or Ndiokwu etc to gain entry into the said piece and parcel of land.
3. That this land situates at Umuagwu – Eziama.
4. That Exhibit (A) is proceedings and award of Eziama community arbitration also confirm that the said piece of land situates at Umuagwu side.
5. That Exhibit B is the Survey Plan No. ASYIMD/41/88 of the said land in dispute is in order.
6. That Exhibit C, the Survey Plan No.11565 IMD 1333/88 of the defendants is hereby rejected, as it does not reflect the true fact of the land in dispute.
7. That any village sharing boundary with this land (Umuobasi Awom and Umuekegba, Umuagwu village that crossed their ancestral boundary) (OVKVU) re-forced with Ukpp, Nturakpa, Nvirilu etc. shall be committing trespass.
8. That the original owners of this land in dispute was Umuochocho kindred in Umuazulor that became extent (sic) extinct.
9. That the plaintiff’s inherited this land from Umuazulor.
10. That the deforestation story of the DW1 is untrue.
11. The refusal of the defendants to bring juju for the plaintiffs to swear during the 23 villages of Eziama arbitration shows that the land does not belong to them – see Exhibit A.
12. Plaintiff proved his case on the probability balanced scale of justice that the land in dispute belongs to him.”
Before then, at pages 92 – 93 of the record, the Customary Court rendered a report of its visit to the Locus in quo as follows:
Report of Locus in quo
“On the 16th December 2003 Court moved to the land in dispute. Present at the site were:-
The plaintiff, the plaintiff counsel Nonye Okoronkwo, Esq., with C. U. Njepuoma, Esq., The defendants, the defendant’s counsel K. J. Nwanguma, Esq., the DW2 and 3 a host of their relations from both parties.
Court moved around the land in dispute and observed:
1. That all the bounday neighbours to this land in dispute was physically present at their own portion of land.
2. That the land has boundary with
(1) Umuofeke village – Eziama
(2) Umunwaku
(3) Umuanyannihu in Umugo – Eziama
(4) Umuobasi Awom in Umuagwu – Eziama
The boundary mount re-enforced with old life Nke, Ukpo, Nturikpa, Nvirilu etc, on it shows clearly that the land in dispute is at Umuagwu side.
The plaintiff’s (Umuekegba kindred) live at the other side of the land in dispute.
What the defendant claim as boundary, using palm leave (Onu) planted close to the plaintiff’s backyard is no boundary at all.”
The trial Customary Court also made pertinent findings (pages 93 – 99 of record) which influenced its decision on the bundle of facts presented by the parties.
First, on whether the land in dispute situates at Umuagwu or Umugo – Eziama.
“Based upon the report of locus in quo (visit to the land in dispute) the land in dispute has a noticeable boundary with a big boundary mount. The boundary mount has not less than 15 (fifteen) life trees on it – eg. Ukp, Nturukpa, Nvirilam, Ago Anwu – Anwu etc, on it. The boundary shows, the pieces of land belonging to Umufeke village and all the kindreds in Umuagwu on one side and pieces of lands belonging to Umulobasi Avom – Umuagwu and the land in dispute on the other side. Therefore the land in dispute is frankly speaking situates at Umuagwu, Eziama, behind the plaintiff house.”
Second on whether the plaintiff’s evidence is credible, that:
“The evidence of PW1, PW2 and PW3 collaborated (sic). The PW2 amplifies the evidence of the PW1 by making the court to understand that the kindred that own the land in dispute is Umuchocho. The PW2 said (quote), I was born before the write man case, (sic) testified onsoever and that happened, whereas, the evidence of DW1 bordered on what was told to his (sic) by way of history of someone else.
Secondly, the DW1 said quote this land was deforested by ‘Ugo’. It is a dead certainty that, (sic) it is the custom of Ngor-Okpala, Umugo and Umuagwu in particular that any land deforested by someone else must have a boundary mount (ovuru) or life trees planted round the land deforested. In the instance case the only boundary is that rightly pointed out by the plaintiff. What the defendant showed the Court on locus as boundary is no boundary at all.
Thirdly, there is no evidence whatsoever supporting his deforestation story. If Ugo actually deforested any piece or parcel of land for Umuijem family, it is not the land in dispute.”
And fourthly, on whether the arbitration did not take place at the Eziama Centre Nkwpala, the trial Customary Court observed that “this is false. The panel sat at the centre of Eziama Community – Nkwoala market square – see exhibit A page (2) supra. (7) refers.”
Dissatisfied with the judgment of the Customary Court the appellants appealed to the Customary Court of Appeal.
The Customary Court of Appeal found no merit in the appellants appeal and dismissed it.
On the appellants issue on lack of proof of the respondent’s title, the Customary Court of Appeal at pages 219 to 220 of the record after referring to the opinion of the full court per Weber .J. in Ekpo vs. ITA XI N.L.R. 68 endorsed the decision of the Customary Court and held that:
“Having known what traditional evidence entails, it is necessary to see how far the plaintiff/respondent complied with the requirements needed to prove his case by traditional evidence. The evidence of the PW1 – OGUZIE ONUOHA started from page 18 of the record of appeal and ended on page 30 of the said record. Having read and considered the said evidence it is my view and I hold that the evidence of the PW1 – Oguzie Onuoha satisfied the requirements needed to prove entitlement to customary right of occupancy through traditional evidence. He gave evidence of the original owners of the land and their connection with the plaintiff/respondent. There was also evidence of unbroken chain of possession between the original owners and the present plaintiff/respondent. There is the plaintiff’s survey plan in this case which according to the lower court, was in consonance with what the court saw during its visit to the locus. The witnesses of the plaintiff confirmed the traditional evidence of the plaintiff. I do not see what remains to be proved through traditional evidence by the plaintiff/respondent. I therefore resolve this issue against the defendants/appellants……..”
The Customary Court of Appeal also agreed with the lower court on the question of arbitration. At pages 222 – 223 of the record it held:
“The question of where the decision or arbitration took place is answered by the statement in Exhibit ‘A’.
“The decision was taken by “Eziama” people this 27th day of April, 1971 in Nkwoala market according to our native law and custom.”
The above quotation also settles the issue of who arbitrated and whether it complied with the customary requirements of a valid arbitration as provided for in the relevant judicial authorities. There is nothing on record to show that in accordance with the native law and custom of Eziama community each village must sign an award during arbitration. The fact, that six people signed Exhibit ‘A’ is therefore of no moment…..”
Again, dissatisfied with the judgment of the Customary Court of Appeal, the appellants filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 23/11/2005.
Appellants brief of argument dated 10/11/2006 was filed on 17/11/2006 and deemed filed on 28/2/2007.
Respondent’s brief of argument dated 29/7/2007 and filed on the same day was deemed filed on 5/7/2007.
The appellant’s nominated a sole issue for determination, to wit:
“Whether the respondent satisfied the legal requirements of traditional evidence as required by law to entitle him to the Customary Right of Occupancy over the land in dispute?”
The respondent on the other formulated two issues for determination:
(i) Whether the Customary Court of Appeal was right in affirming the judgment of the Customary Court on those issues viz; proof of title and local arbitration.
(ii) Whether there was a local arbitration between the plaintiff/respondent’s family and the defendants/appellants in respect of the land in dispute by the Eziama community of the parties and if there was such a local arbitration, what was it’s effect on the parties?
Respondent’s Issue No. 2 is totally irrelevant to this appeal. None of the appellants grounds of appeal complained about the local arbitration. Issues for determination in an appeal can only arise from the grounds of appeal. Accordingly, respondent’s Issue No. 2 is struck out.
This appeal shall be decided on the sole issue formulated by the appellants. In arguing the sole issue, learned counsel for the appellants submitted that the respondent traced his root of title to the land in dispute vide traditional history. That the summary of the respondent’s history/evidence is that the land in dispute, known as and called ‘Okwu Azulo’ was founded by a village named Umuazulo.
Counsel submitted that the respondent was bound in law and must plead and prove facts showing whom this Umuazulo is, how Umuazulo became the owner and how the land devolved down the line to the respondent. These facts must be alleged and proved to sustain a claim for declaration of title to land based on traditional history.
On this, learned counsel referred to the cases of Emezie vs. Onuoha (2001) FWLR (Pt. 62) 1929) at 1935, Anyanwu vs. Mbara (1992) 5 NWLR (Pt. 242) 386, Nkado vs. Obiano (1997) 5 SCNJ 33 at 47.
Appellants counsel furthered that where the plaintiff fails to establish his ownership of the land in dispute through traditional evidence in the manner required by law, he can not fall back on long possession and acts of ownership to proof title because he must first prove a valid root of title to be able to rely on acts of ownership or long possession.
This proposition of law, said counsel is confirmed by the Supreme Court in the cases of Owhonda vs. Ekpechi (2003) 17 NWLR (Pt. 849) 326 at pp. 344 -345 and Mogaji vs. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393 at 395.
Counsel submitted that the respondent as plaintiff at the trial court failed woefully to show any fact(s) as to how the land in dispute was founded by the said Umuazulo, whether it was by conquest, deforestation, first settlement or by any other means. That, the mere mentioning of names of people or family whom the respondent claimed to be his ancestors does not suffice. There must be evidence to show or demonstrate how the land in dispute devolved among these people or family over the years from generation to generation until it got to the plaintiff. And, that, the plaintiff was duty bound in law to show how these ancestors or family came about the land i.e. what the ancestors specifically did to actualise the founding.
On, this, counsel referred to the cases of Olohunde vs. Adeyoju (2000) FWLR (Pt. 24) 1355 at 1388, Mogaji vs. Cadbury Nig. Ltd (supra) Owhonda vs. Ekpechi (supra) Achiakpa vs. Nduka (2001) 39 W.R.N. 1 at 29, Oyadare vs. Keji (2005) AFWLR (Pt. 247) 1583 at 1600 and Ezeanikwa vs. Mouneke (2005) All FWLR (Pt. 256) 1327 at 1339 amongst others.
Appellant’s counsel noted that PW3 at page 34 of the record gave evidence under cross examination to the effect that the said Umuazulo was a “stranger village which lived in Umuagwu village of Eziama community, but cannot tell how they came to own the lands. The question said counsel is, how did this stranger village came to own land in Umuagwu village in Eziama? Counsel said, the respondent as plaintiff led no evidence whatsoever to answer this question.
Appellant’s counsel added, that the evidence of the respondent at the trial court as shown at pp. 18 – 30 and 217 of the record simply put, is that “one Agwu the plaintiff’s forbear married from Umuazulo family in Umuagwu Eziama and begot Agba. And that when Umuazulo family committed an abomination they were believed to have been wipe out by the gods. And that it was Agbaa who appeased the gods as the blood relation of the Umuazulo family thereby inheriting their land”
Appellant’s counsel relied on the case of Akanbi vs. Salawu (2005) 13 NWLR (Pt. 8938) 637 at 650 – 651 and submitted that in fact, the evidence led by the respondent, left gaps or created mysterious or embarrassing linkages, which are difficult to explain and, that the Customary Court of Appeal was in grave error of judgment when it held at pages 219 – 220 of the record that the evidence of PW1 satisfied the requirement needed to prove entitlement to customary right of occupancy through traditional evidence.
Appellant’s counsel also submitted that beside the weak traditional evidence/history put forward by the respondent, there also exist irreconcilable conflicts in the said traditional evidence. That, while the respondent as PW1 testified to the effect that the founder/original owner of the land in dispute was Umuazulo, under cross-examination, he said Umuazulo were the original owners of the land. Also, that while PW2 in his own evidence claimed that the founder of the land were Umuchocho kindred in Umuagwu, there was no evidence from the respondent’s witnesses that Umuazulo and Umuchocho refer to one and the same person.
Counsel submitted that this conflicting evidence of the respondent and PW2 was further contradicted and compounded by Exhibit ‘A’, the decision of arbitration of Eziama community of the parties. Exhibit ‘A’, said counsel contains names of four distinct villages/kindred as the original owners of the land in dispute including Umuazulo and Umuchocho.
Counsel submitted that having regards to these damaging conflicting evidence of the respondent as to his root of title, the trial court was wrong in law to pick and choose which version of the evidence to rely on and to hold that the respondent proved his case.
Appellant’s counsel drew attention to the remarks of the trial court at pages 93 – 96 of the record. That, “the evidence of PW1, PW2 and PW3 collaborated. The PW2 amplified the evidence of the PW1 by making the Court understand that the kindred that own the land in dispute is Umuchocho.” And, that “the original owners of the land in dispute was Umuchocho kindred in Umuazulo that became extinct.” These findings said counsel cannot be justified having regards to the state of evidence on record and therefore perverse.
Counsel then referred to the case of Bendex Engineering Corp. vs. Efficient PETR Ltd. (2001) FWLR (Pt. 47) 1188 at 1208 – 1209 and Ibrahim vs. Aliyu (2000) FWLR 1081 at 1097 and submitted that the above paragraphs as contained in the judgment of the lower court show that the court embarked upon a voyage of speculation just to make out a case for the respondent. Also, that it is trite that speculation is a mere variant of imagination, guesswork which even where it appears plausible should never be allowed by a court of law to fill any hiatus in the evidence before it. A judicial inquiry is allergic to speculation.
Appellant’s counsel submitted that a plaintiff in an action for declaration of title to land who presents to the court two conflicting and competing evidence of his root of title must fail, and his action be dismissed.
On this, counsel referred to the cases of Mogaji vs. Cadbury Nig. Ltd. (supra) Onibudo vs. Akibu (1982) 7 S.C. 60 at pages 84 – 85. Ohiaeri vs. Akabeze (1992) 2 NWLR (Pt.221) 11 at 19.
Learned counsel for the respondent on the other hand submitted that the law has evolved over a long period of time is that a plaintiff seeking to prove his ownership of a piece of land must identify one or the other of the five (5) methods of proof enumerated in the cases of Idudun vs. Okumagba (1976) SC 9 – 10, 246 and Ekpo vs. Ita 11 NLR 68. Counsel reiterated the traditional history as presented by the respondents and added that Exhibit ‘A’ the document of arbitration dated April 9, 1971 is one of the main planks upon which the case was decided in the Customary Court . Exhibit ‘A’, said counsel, is a memorandum of the record of all that transpired including proceedings and decision of the native arbitration panel to which both parties voluntarily submitted to in 1971, about 35 years ago. That Exhibit ‘A’ was admitted without objection and that the document became particularly useful to the respondents case because one of the arbitrators in Exhibit ‘A’ gave first hand evidence of the events as PW2.
Furthermore, said counsel, Exhibit ‘A’ made mention of a kindred group including Umuazulo as the original owners of the land, though no longer existing but were found to relate more with the respondent Umuagwu/Umokoha family.
Respondent’s counsel pointed out that Nwamadi Okereke of Umugo (DW2) represented the appellants in the 1971 arbitration as he was at that time the head of the appellant’s family. In the same manner, Ishiguzo Ukaha (PW1) represented the respondent in the 1971 arbitration.
Counsel noted that the 2nd paragraph of Exhibit ‘A’ records that :
“Nwamadi Okereke of Umugo, when asked admitted the truth that the people so mentioned were the original right owners of the land in dispute. At this junction, we actually noted that according to our law and custom, the people mentioned must have next-of-kin which is Umuagwu people or Umukoha in particular to be the correct claimant of the land and any of their belongings.”
This, according to counsel implies that Nwamadi Okereke (DW2) of the appellant admitted in the course of the arbitration that the land in dispute originally belonged to the Umuazulo and Co. people.
Counsel submitted that the above stated admission of DW2 in the arbitration of 1971 is a relevant fact as against the appellant under S. 21 of the Evidence Act. He added, that the law is trite that no fact need to be proved in any civil proceedings which the parties thereto or there agents agree to admit at the hearing or which before the hearing they agree to admit. S. 74, Evidence Act, Din vs. African Newspaper ltd. (1990) 3 NWLR (Pt. 139) 392 at 395 – 396, Aromolaran vs. Oladele (1990) 7 NWLR (Pt. 162) 359 at 362.
Counsel submitted that the respondent relied on detailed traditional history in account of their ownership and possession of land dating back to a legendary past when the Umuazulo group owned and possessed the land as original owners thereof.
That, the appellants knew about the original ownership of the Umuazulo group and expressly admitted the original ownership of the Umuazulo group through their then head of family – Nwamadi Okereke DW2.
The respondent, said counsel became relieved thereby of any burden to prove further how Umuazulo acquired their original ownership.
Counsel submitted that quite apart from traditional history, PW1 gave evidence of other acts of ownership such as pledge of the land and other customary grants by the respondents. Also, that, Silas Amadi PW3 who owns adjoining land offered evidence of long possession that he has always seen the respondent on the land in dispute for more than 40 years.
Respondent’s counsel referred to the visit by the Customary Court of the land in dispute on 16/12/2003 and its finding that the land in dispute is on respondent’s side of Umuagwu and that the respondent live on the side of the land in dispute. The live boundary trees shown were those of the respondent, the farms including orchards on the land were shown and acknowledged to belong to the respondents even by the appellants.
Counsel said, the inspection report of the Customary Court further showed that there is no other habitation or settlement anywhere else within the land in dispute other than the homestead and settlement of the respondents. The appellants were not shown or seen to have any presence anywhere near or adjoining the land in dispute. No other family even the appellants claimed ownership of the crops on the land in dispute.
Counsel submitted that the presence of the respondent being so strong on the land and adjoining land, the logical relevance raised by Section 46 of the Evidence Act applies to the effect that acts of possession and enjoyment of land may be evidence of ownership or of right of occupancy not only of a particular piece or quantity with reference to which such acts are done but also other land so situated or connected therewith by locality, similarity that what is true as to one piece is likely to be true of the other piece of land.
On this, counsel referred to the case of Alli vs. Alesinloye (2000) FWLR (Pt. 15) 2610. Also, after referring to the cases of Eze vs. Atasie (2000) FWLR 2180 at 2184, Olujebu of Ijebu vs. Oso the Eleda of Eda (1972) 5 SC 143, F. M Alade vs. Lawrence Awo (1975) 4 SC 215, Aikhiobare vs. Omoregie (1976) 12 SC 11 and Iriri vs. Erhurhobara (1991) 2 NWLR (Pt. 17) 262, learned respondent’s counsel reminded us that in the instant case, the court accepted the traditional history of the respondents as conclusive and sufficient to justify its findings. He argued that the authorities cited by the appellants in regard to traditional history and need to relate same to origin do not apply in this case where the origin was specifically admitted. In the cases cited, said counsel the origins were in dispute justifying the requirement of elongated proof to original source.
Concerning findings of Customary Courts, learned counsel for the respondents said that a point which is desirable to make is that the proceedings of Customary Court must be construed broadly.
On this, counsel referred to the cases of Olujinle vs. Adeagbo (1988) NWLR (Pt. 75) 238 and Oladapo vs. Akinsowon (1975) WRNLR 215 and submitted that the respondent proved their claim before the Customary Court to such degree as to justify the findings and judgment of the Customary Court in their favour and that the Customary Court of Appeal was right to have affirmed the judgment.
Also, said counsel, it is an accepted principle that the evaluation and findings of fact are within the province of the trial court and an appellate court will only interfere if such evaluation is perverse.
On this, counsel referred to the cases of Atolegbe vs. Shorun (1985) 1 NWLR (Pt. 2) 360 and Chukuwueke vs. Nwankwo (1985) 2 NWLR (Pt. 6) 195 (SC).
Finally, respondent’s counsel submitted that the Customary Court of Appeal did not interfere with the judgment of the Customary Court on their evaluation and findings of facts. Rather, it affirmed those findings. There are now, two concurrent findings of two lower courts, the Customary Court and the Customary Court of Appeal. The attitude of an appellate court like the Court of Appeal or the Supreme Court to concurrent findings of two lower courts is that it will not interfere with those findings of fact except the appellant can show special circumstances – either there was a miscarriage of justice or a serious violation of some principles of law or procedure or that the findings are erroneous in substantive or procedural law.
On this, counsel relied amongst others on the cases of Lokoyi vs. Olojo (1983) 8 S.C. 61 at 63 – 73, (1983) 2 S.C. 127. Ojomu vs. Ajao (1983) 9 S.C. 22 at 53, (1983) S.C.N.L.R 156, Ibodo vs. Enorofia (1980) 5 – 7 SC 42 at 55, Western Steel Works vs. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284, Akinsanya vs. U.B.A. (Nig.) Ltd. (1986) 4 NWLR (Pt. 35) 273.
In deciding the sole issue for determination in this appeal, one must quickly make a distinction in the submission of the learned counsel for the appellant in between the contradictions in the evidence of the respondents witnesses more particularly PW1 and PW2 as to the name of the original founder of the land in dispute. That is, while PW1 mentioned Umuazulo as the village that founded the land, PW2 talked of Umuchocho kindred in Umuazulo as the kindred that founded the land. And the legal conclusion of the appellant’s counsel that contradictions and inconsistencies in the traditional history/story by a plaintiff in an action for declaration of title to land would necessarily lead to the dismissal of the plaintiff’s case.
It must be made clear that in this case, there were no contradictions, no inconsistencies and no two versions of the traditional history of the respondents as plaintiffs were presented before the Customary Court. The only story presented before the Court in totality was that of a kindred (Umuchocho) perhaps including other kindreds (as per Exhibit A) in Umuazulo as the original owner(s) of the land in dispute. That the family/village is now extinct.
The sole traditional history of the land in dispute and of the devolution of the land from Umuazulo to the respondents counsel can be captured from the evidence of PW1, Oguzie Onuoha, the respondent himself representing the Umuechegba family in Ngo Okpala Local Government Area at page 19 of the record.
“……Umueke Agbaa have the okwuazulo not in dispute, Umueke Agbaa is our family name. Umueke Agba family live on this Nkwuazulo not in dispute, Umueke agbaa also own the Okwuazulo land now in dispute. The progenitor of Umueke Agbaa is Agwu, Agwu begot 4 sons namely, Umuobasi Agbaa, Umuikenga, Umuibe and Umu Ekeagbaa, I know Umuazulo family. Agwu married from Umuazulo family and from that married (sic) he got Agbaa. Umuazulo committed some spiritual arbitration (sic) abomination. That spirit killed all of them. The sons of Umueke Agbaa came to us for help in appeasing (sic) the gods, after this he began to inherit parts of their property. Agwu our ancestor had lands and shared those lands to his sons. Okwauazulo was not amongst the lands he shared to his sons Agba begot Eke, Eke begot Nwokelebe, Nwokelebe begot Alawonke and Anyanwu Alawonke begots Onuoha and Ukaoha, Anyanwu had no sons, Ukaoha and Onuoha begot children that made up Umueke Agbaa now the plaintiff from the time of Agbaa we have been in possession of this land in dispute. From the time of Eke Agbaa this land is used for farming purposes…….”
The fact that Umuazulo originally owned the land in dispute and how the land had to devolve on the respondent was corroborated by Exhibit ‘A’.
What the trial Customary Court had to contend with, contrary to the suggestion of the learned appellant’s counsel, were not contradictions in the traditional history of the respondent but discrepancies as to the names of kindred(s) that made up Umuazulo. By these, cases such as Mogaji vs. Cadbury Nig. Ltd. (supra) Onibudo vs. Akibu (1982) 7 S.C. 60 and Ohiaeri vs. Akabeze which held that a party who presents to the court two conflicting and competing evidence of his root of title must fail, do not apply to the facts and circumstances of the present case.
What is more, the trial Customary Court in this case, was not just content with upholding the respondent’s claims based on the traditional history alone. The court, tested the traditional history of the respondent with acts of ownership which includes the fact of Exhibit ‘A’ itself, acts of farming and pledging as shown in the evidence of PW1, acts of long possession and enjoyment of land as shown in the evidence of PW3 and proof of possession of connected or adjacent land as shown by the physical inspection of the court of the land in dispute.
In the instant case, the trial Customary Court was careful enough to weigh the respondent’s story side by side with the appellants’ story before coming to a decision that the respondents story was more probable than the appellants story in accordance with the rule in Mogaji vs. Rabiatu Odofin (1978) 4 S.C. 91. For example, at page 93 of the printed record, the trial Customary Court had this to say of the appellant’s case
“Secondly, the DW1 said quote this land was deforested by ‘Ugo’ it is a dead certainty that it is the custom of Ngor-Okpala, Umugo and Umuagwu in particular that any land deforested by someone else must have a boundary mount (Ovuru) or life trees planted round the land deforested. In the instance case (sic) the only boundary is that rightly pointed out by the plaintiff. What the defendant showed the court on locus as boundary is no boundary at all.
Thirdly, there is no evidence whatsoever supporting his deforestation story. If Ugo actually deforested any piece or parcel of land for Umuijem family, it is not the land in dispute ……”
The learned justices of the Customary Court of Appeal, rightly in my view upheld the decision of the Customary Court, which granted customary right of occupancy to the respondent.
Two reasons were proffered by the lower court. The first, relying on the case of Ekpo vs. Ita XI N.L.R. at p. 68 that the traditional history of the respondent was tested in the light of recent events.
Second, that in totality, the respondent satisfied the requirements needed to prove entitlement to customary right of occupancy. Thus, first at pages 218 – 219, the lower court had this to say.
“In considering (traditional evidence) a trial court should always remember that there is inevitably bound to be conflicts in the traditional stories of the parties. This does not mean that either side is lying. They may both be honest and truthful yet genuinely mistaken. That it is why it is necessary to test each sides traditional history by reference to facts and acts done in recent years as established by the evidence led, in order to see which side ought to be preferred on the basis of probability. See Iwimhene Kojo II vs. Opanin Bonsie (1957) 1 W.L.R. 223, (1988). W.A.L.R. 257, Olisa Chukura’s Privy Council Judgments 668. In order words, though proof of title by traditional evidence may have its roots in ancient history. It must have its stem and branches in Modern history to be conclusive….”
And at pages 219 – 220, the court below concluded the matter of the respondent’s traditional history evidence as follows:
“Having known what traditional evidence entails, it is necessary to see how far the plaintiff/respondent complied with the requirements needed to prove his case by traditional evidence.
The evidence of the PW1 – Oguzie Onuoha started from page 18 of the record of appeal and ended on page 30 of the said record. Having read and considered the said evidence it is my view and I hold that the evidence of the PW1 – Oguzie Onuoha satisfied the requirements needed to prove entitlement to customary right of occupancy through traditional evidence. He gave evidence of the original owners of the land and their connection with the plaintiff/respondent. There was also evidence of unbroken chain of possession between the original owners and the present plaintiff/respondent. There is the plaintiff’s survey plan in this case which according to the lower court, was in consonance with what the court saw during its visit to the locus in quo. The witness to the plaintiff confirmed the traditional evidence of the plaintiff. I do not see what remains to be proved through traditional evidence by the plaintiff/respondent …”
Despite the above copious observations of the court below, learned counsel for the appellant still insisted that the respondents as plaintiff at the trial failed woefully to show any fact(s) as to how the land in dispute was founded by the said Umuazulo whether it was by conquest, deforestation, first settlement, or by any other means. Also, that where the plaintiff fails to establish his ownership of the land in dispute through traditional evidence in the manner required by law, he can not fall back on long possession and acts of ownership to proof title because he must first prove a valid root of title to be able to rely on acts of ownership or long possession.
In support of the above two propositions, learned counsel to the appellants referred us to the cases of Owhonda vs. Ekpechi (2003) 17 NWLR (Pt. 849) 326 at 344 – 345, Mogaji vs. Cadbury Nig. Ltd. (supra) at p. 395, Olohunde vs. Adeyoju (2000) FWLR (Pt. 24) 1355 at 1388 and Akpadiaha vs. Owo (2001) FWLR (Pt. 57) 940 at 943.
It is pertinent to observe at this stage that both the principle of law that a party seeking declaration of title to land must plead and prove how the land was founded and the proposition that where the plaintiff fails to establish his ownership through traditional evidence he can not fall back on long possession and acts of ownership to prove title derive essentially from the need for proper pleadings and buttress the rule that parties are bound by their pleadings
In contrast, the procedure of a Native Court should not be subjected to strict principles of law as done in the regular courts of record. Indeed, it has been held that greater latitude and broader interpretation should be accorded to decisions of native courts.
See, Efi vs. Eyinful (1954) 14 WACA 424, Ekpa vs. Ufong (1990) LRCN 1473 at 1587, (1991) 6 NWLR (Pt. 197) 258, Odofin vs. Oni (2001) 1 SCNJ 13, (2001) 3 NWLR (Pt. 701) 488, Olujinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 251 Bello Ogundele & Ors. vs. Shittu Agiri & Ors (2009) 18 NWLR (Pt. 1173) 219 at 252 (per Fabiyi, J.S.C)
In other words, in assessing and interpreting the proceedings of customary or native courts as in the instant case, it should be borne in mind that the parties are not obliged to file pleadings and the substance rather than the form of the proceedings should be looked into.
See, Ajayi vs. Aina (1942) 16 NLR 627, Chukwunta vs. Chukwu (1953) 14 WACA 341, Adogan vs. Aina (1964) 1 ANLR 127, Chief Ajagunjeun & Ors. vs. Sobo Osho of Yeku Village & Ors. (1972) 5 SC 89, Chief Dokubo & Anor. vs. Chief Omoni & 9 Ors. (1999) 6 SCNJ 168 at 180, (1999) 8 NWLR (Pt. 616) 647.
In relation to the second leg of the appellant’s counsel submission on this score, it would be recalled that except for the caveat, perhaps observation, in the case of Idundun vs. Okumagba (1976) 9 & 10 SC 246 – 250 to the effect that proving acts of long possession and enjoyment of land are really more of a weapon of defence rather than offence, there is nothing in that case that suggests (beyond the limitations of pleadings) that a plaintiff who seeks declaration of title to land cannot plead and prove one or more of the five established methods of proving title.
In other words, while the proof by any one method would suffice under the principle in Idundun vs. Okumagba (supra) there is no limit to the number of methods or combination of methods that can be pleaded and proved. See Ayanwale vs. Atanda (1988) 1 NWLR (Pt. 688) 22, Morenikeji vs. Adegbosin (2003) 8 NWLR (823) 612 at 661 – 662.
In Idundun vs. Okumagba (supra) at pages 246 – 250 the Supreme Court (per Fatayi – Williams JSC) listed the 5 ways in which ownership may be proved. These are
(1) by traditional evidence
(2) by production of documents of title
(3) by proving acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner (Ekpo vs. Ita 11 NLR 68).
(4) by proving acts of long possession and enjoyment of the land. These are really more of a weapon of defence rather than offence (by S. 145 Evidence Act possession raises a presumption of ownership although this presumption can be defeated). See also Abatan vs. Winsalla SC/516/66 delivered on 26/6/70 unreported.
(5) by proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also the owner of such adjacent land (S. 45 of Evidence act)
Learned counsel for the appellant relied on a statement by Musdapher, JSC, in the case of John owhonda vs. Alphonso Chukwuemeka Ekpechi (supra) at pages 344 – 345 for the proposition that :
“There is no doubt that it is the law, that in an action for declaration of title to land, where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he cannot also fall back on long possession and act of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession. See Kalio vs. Woluchem (1988) 1 NWLR (Pt. 4) 610 at 628 karibi – Whyte JSC…..
Accordingly where a party pleads root of title, he cannot talk of acts of ownership or long possession in order to establish title. He must first prove the root of title. See Fasoro vs. Beyioku (supra).”
The above quoted principle, which may for now be conveniently stated as the principle in Kalio vs. Woluchem (supra) and Fasoro vs. Beyioku (1988) 2 NWLR (Pt. 76) 263 merely reiterates the principle of bindingness of pleadings on the parties and does not in any way deviate from the idea that a party seeking declaration of title may rely on one or more of the methods of proof laid down in the case of Idundun vs. Okumagba (supra).
Indeed, if the learned counsel for the appellants had paid due attention and read in full, the erudite lead judgment of Mustapher J.S.C. in the case of Owhonda vs. Ekpechi (supra), he would have discovered at page 345 of the same judgment that the learned jurist actually endorsed the principles laid down in Idundun vs. Okumagba (supra)that is
“The law is that a party to a land dispute may plead and prove his title in any of the five recognised ways. All the modes of proof of title are independent and non is superior to the other. See Idundun vs. Okumagba (supra) Karimu vs. Fajube (1968) NMLR 151. So where traditional evidence fails, a party may still rely on any of the four other modes to prove title to land in dispute.”
His other learned brothers Uwais C.J.N, Mohammed, Kalgo and Ejiwunmi, JJSC, endorsed the above position of the law. Ejiwunmi, JSC at page 357 of the report supported Musdapher, JSC as follows:
“On appeal, the contention made for the defendant appears to be that the court below was not right to have upheld the claim in trespass as the plaintiff did not prove his ownership of the disputed land. With due respect to learned counsel for the defendant, this argument did not take into cognisance the principles enshrined in the case of Idundun vs. Okumaga (1976) 9 – 10 SC 227; Ekpo vs. Ita (1932) 11 NLR 68 in which it has been clearly laid as settled law that the five ways of proving the title of land is not subordinate to the other. Where as in this case, the plaintiff had established that he acquired the pieces of land under one deed of conveyance, he need not seek to establish his title to the property by another of the ways identified for proving title to land.”
A more recent decision on the subject matter which should be of interest to the learned counsel for the appellant is the decision of the Supreme Court (per Mukhtar JSC) in Onuoha Nwokorocha vs. Desmond Uchechi Nwogu & 2 Ors. (2009) 10 NWLR (Pt. 1150) 553.
In that case, the Supreme Court overturned the Court of Appeal and upheld the decision of the High Court that the appellant has successfully proved his ownership of the land in dispute. The conclusion of the apex court was in-spite of the deficiencies in the traditional history of the appellant and the rather unsatisfactory nature of the appellant’s proof of acts of possession of land. In the Nwokorocha vs. Nwogu’s case (supra) the Supreme Court recognised that the fulcrum of a case is derived from the pleadings and its success depends thereon, for pleadings that are bereft of the facts needed to prove a case cannot be proved by evidence no matter how cogent, i.e parties are bound by their pleadings. See Shell BP vs. Abedi (1974) 1 SC 23 and Ebosie vs. Phil Ebosie 1976) 7 SC 119. Also, that the key to the possibility of switching from one method of proof to another and in support of the other lies in the pleadings of the parties and not for the reason of limitations in the principles laid down in Idundun vs. Okumagba (supra). In the Nwokorocha case, Mukhtar, JSC, delivering the lead judgment of the court eventually upheld the appellant’s claims at page 580 as follows:
“In the light of the above discussions and reasonings, I am satisfied that the appellant proved his ownership of the land in dispute vide the fifth way of proving title to land. The appellant may have failed to prove title by traditional history, which was what he predicated his case on but the evidence before the court has proved his entitlement to the land by one of the ways enunciated in the Idundun vs. okumagba case (supra). In the circumstances, I resolve this last issue partly in favour of the appellant and grounds 3 of the appeal fails, whereas ground (4) succeeds.”
Onnoghen, JSC in his own contribution at page 581 said:
“On the second issue, which is the kernel of the appeal. It is important to state that appellant did not set out to claim declaration of title to the land in dispute simpliciter but recovery of possession thereof. It is that claim for recovery of possession that puts the title of the appellant to the land, in question in issue or dispute. Appellant may not have pleaded how his ancestor acquired the land in dispute – either by conquest, first settlement, deforestation, purchase, gift, conveyance etc, but pleaded and gave evidence of the original owner of the land which later came to him by inheritance over the ages.”
And at page 590, Chukwuma Eneh, JSC puts the matter thus:
“In other words, the issue has resolved itself to a question of facts as in this case the question of traditional history has been given necessary cogency and support by the facts of acts of possession and ownership of the lands surrounding the land in dispute in the instant matter as pleaded and proved by the plaintiff. See Fasoro & Anor vs. Beyioku (1988) 1 NSCC Vol. 19 (Pt. 1) 705 (1988) 2 NWLR (Pt. 76) 263.
Finally, in relation to this appeal, this court is now faced with a situation of concurrent findings of two lower courts, that is the Customary Court and the Customary Court of Appeal. The attitude of an appellate court is that it will not interfere with those findings of fact except the appellant can show special circumstances – either there was a miscarriage of justice or a serious violation of some principles of law or procedure or that the findings are erroneous in substantive or procedural law. See Lokoyi vs. Olojo (1983) 8 S.C. 61 at 63 – 73 (1983) 2 S.C.N.L.R 127; Ojomu vs. Ajao (1983) 9 S.C. 22 at 53 (1963) S.C.N.L.R. 156; Otogbolu vs. Okeluwa (1981) 6 – 7 S.C 99. No such circumstances has been shown by the appellant in this case.
On the whole, I find no merit in this appeal. The appeal is accordingly dismissed.
N5,000.00 costs is awarded in favour of the respondent.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A. I agree with his reasoning and conclusions. The appeal totally lacks merit and is hereby dismissed.
Appearances
Mr. D. O. Agbo, Esq.For Appellant
AND
Mr. C. U. Njepuome, Esq.For Respondent
