GABRIEL AKPUKPU & ORS v. MEETING ELAGHA & ORS (2014)

GABRIEL AKPUKPU & ORS v. MEETING ELAGHA & ORS

(2014)LCN/6963(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/B/395/2009

RATIO

CONDITIONS TO BE FULFILLED FOR A CUSTOMARY ARBITRATION TO BE BINDING ON PARTIES

The conditions which a customary arbitration must fulfill before it becomes binding on parties are stated in the case of Nzomah v. Ugochi (2002) FWLR (Pt. 135) Pg. 694 at 702 as follows:

(i) There must have been a voluntary submission of the dispute by the parties to a non-judicial body.

(ii) The parties must have agreed to be bound by the decision of the non-judicial body as final.

(iii) The decision must be in accordance with the custom of the people or their trade or business.

(iv) The arbitration must have reached a decision and published their award.

It therefore means that before a customary arbitration can be binding on the parties, all and not one of the conditions must have been fulfilled. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A.

LAND LAW: WHEN DOES AN IDENTITY OF LAND BECOME AN ISSUE IN DISPUTE

Where as in this case, both sides know the land in dispute, such need may not arise. Before identity of the land can become an issue in the dispute, the defendant must specifically make an issue of it in his pleadings by disputing the area or location or features shown in the plaintiff’s plans or description. See Gbadamosi v. Dairo (2007) 1 SCNJ 444.

The point made by learned appellants’ counsel is that the respondent did not know their boundary men at the adjacent side of the canal. On the other hand, the appellants proved that the land adjacent to the canal belonged to the appellants. I have to agree that the undisputed owners of the adjacent land to the land in dispute is presumed unless rebutted to be the owner of the disputed land. This is because by virtue of S. 35 of the Evidence Act, 2011 acts of possession and enjoyment of land may be evidence of ownership not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected by locality or similarity that what is true of one piece of land is likely to be true of the other piece of land. See Idundun v. Okumagba (1976) 9 – 10 SC 227; Owhonda v. Ekpechi supra at pg. 2547, Godfrey Anukam v. Felix Anukam (2008) 2 SCNJ 62. Per HELEN MORONKEJI OGUNWUMIJU, J.C.A.

LAND LAW: METHODS OF PROVING TITLE TO LAND

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. GABRIEL AKPUKPU
2. FRIDAY EBIKPO
3. TIFOLI SECRETARY
(For themselves and on behalf of Afi Family of Tuomo) Appellant(s)

AND

1. MEETING ELAGHA
2. PATRICK ELEGHA
(For themselves and on behalf of Tobufiyekumo Family of Tuomo) Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State delivered by Hon. Justice P.J.O. Anigboro on 17th of July, 2009. The facts that led to this appeal are as follows:
By their amended statement of claim, the Respondents as Plaintiffs at the trial Court filed a claim for declaration of title to the Ekeredi Tobufiyekumo land situate in Ebiriba Ogbo bush in Tuomo, in Burutu Local Government Area of Delta State. The Respondents also claimed for damages in trespass, and an injunction. The Respondents called three witnesses including the first Plaintiff while the Appellants called five witnesses including the first Defendant. The Appellants also tendered Exh. A, the verdict of a nine man settlement panel who earlier heard the parties in respect of the dispute over the same land. The case of the Respondents at the trial court is as stated by the 1st Respondent on Pg. 110-115 of the record.

The Respondents swore that they inherited the land in dispute from their ancestor called Ekeredi Tobufiyekumo who founded/deforested it for farming purposes. That upon the death of Ekeredi, the son of Tobufiyekumo, the original founder of the land, his children namely FIRESEIGHA (M) and ENDIKONGHA (M) took over the use of the land by farming on it until their death. Thereafter their children called ELAGHA, MIENKIYEI, ODUDU and EBERE continued to farm on it until their death. The Respondents, who are the children of Elagha, the grandchild of Ekeredi Tobufiyekumo, inherited the land and presently use it for farming purposes.

The Appellants through their witnesses at the trial court led evidence that –
(a) The land in dispute was founded by their ancestor Okpei who was the father of both the great grand parents of the Respondents and the Appellants Foukunou and Akerebunou. And after the demise of Okpei, his property was shared among his children after his death. Foukunou was the great grand father of the Appellants and Respondents who begot Anebofa. That before Anebofa’s death he shared his property to his children living with him at Tuomo because most of the children were girls and went outside Tuomo to marry. Anebofa begat Dutare who begot Afi, Appellants’ great grand father and Tobufiyekumo Respondents great grant father also.
(b) That Anebofa shared some of his properties to his grandchild Gberegolo who married another of his grand child’s wife because after the death of the grand child, there was nobody to marry her (Werta)’s wife (widow) and Gberegolo who is a grand child agreed to marry her hence he gave Gberegolo the property to take care of the deceased wife and children in accordance with the Ijaw Native Law and Customs. And after the death of Gberegolo his children started to inherit the said property till the present Appellant and the said property includes the vast portion of land called the Gberegolo Ogbo and Oba.
(c) Appellants also stated that they have been exercising all acts of ownership and possession of the said portion of land without hindrance from time immemorial and until sometime 2006 when Setraco Nig. Ltd came to construct a road from Bomadi to Tuomo and excavated lands and farm lands belonging to the Appellants when the Respondents started laying claims to the said land and the said company involved the community chairman in order to settle the matter among the parties.
(d) The parties submitted to local arbitration and the community appointed a nine-man arbitration panel to wit: 3 persons each from each of the 3 quarters in the town. The arbitration panel visited the land in dispute and took evidence from both parties and their witnesses. The panel settled the matter and gave judgment in favour in the appellants. The report is Exhibit A. Based on the said verdict in (Exhibit A) the company paid the Appellants compensation having found that the land belonged to Appellants.

At the end of the trial, the learned trial judge found for the Plaintiffs now Respondents and granted the declarations sought including the sum of N200,000.00 as damages for trespass and awarded N5,000 as costs against the Appellants.

The Appellants being dissatisfied, filed this appeal. The appellants’ brief dated 10/7/12 was filed same day. The Respondents filed Respondents’ brief dated 11/3/13 on 13/3/13.

The appellants in the brief settled by Mr. Olayiwola Afolabi submitted the following issues for determination:
1. Whether the trial judge was right in entering judgment in favour of the Respondents on the grounds of the pleadings and evidences adduced by both the owners of the land in dispute? Ground 1
2. Whether the trial judge was right in striking out the report of the 9-man arbitration (Exhibit A) or whether the trial court was right in disallowing the report of the 9-man arbitration panel (Exhibit A)? Ground 2.
3. Whether the trial judge was right in raising the two preliminary points of law itself and enter judgment for same in favour of the respondents? Ground 3.
4. Whether from the totality of evidence adduced by the parties, the court was right in awarding N200,000.00 as damage and trespass in favour of the Respondents? Ground 5.

The Respondents in the brief filed by Mrs. Patricia O. Okiehor raised the following issues:
1. Whether the trial judge was right in entering judgment in favour of the Respondents on the grounds of the pleadings and evidence adduced by both the owners (parties) of the land in dispute.
2. Whether the trial judge was right in striking out the report of the 9-man arbitration (Exhibit A) or whether the trial court was right in disallowing the report of the 9-man arbitration panel (Exhibt A)?
3. Whether the trial judge was right in raising the two preliminary points of law itself and enter judgment for same in favour of the Respondents. If no, where the 2 preliminary issues of law raised by the court occasioned miscarriage of justice.
4. Whether from the totality of evidence adduced by the parties, the court was right in awarding N200,000 as damage and trespass in favour of the Respondents.

I have considered the records and the grounds of appeal and I am of the humble view that the issues as distilled by both learned counsel are similar in content and language and address the complaints in the grounds of appeal. However, they are so inelegantly couched that I need to rephrase and re-order them in order to make more sense of the issues for determination. My humble re-phrase of the issues are set out below:
1. Whether the learned trial judge was right in raising the two preliminary points of law suo motu and resolving them in favour of the Respondents.
2. Whether the learned trial judge was right in disregarding the report of the local arbitration committee in Exhibit A.
3. Whether in view of the pleadings and evidence, the learned trial judge was right in granting the declarations sought by the Respondents including the award of damages and injunction.

ISSUE ONE
On this issue, learned appellants’ counsel pointed out the two preliminary issues of law raised by the trial court which are:
(1) whether the parties (Plaintiffs) are properly constituted in respect of the interested parties to the cause of action and or
(2) whether Exhibit “A” constitute estoppel and therefore binds the court. Appellants counsel argued that the two issues raised by the learned trial judge did not arise anywhere in the pleadings, evidence, and addresses of the parties. He argued that the court is obliged to adjudicate only on the issues submitted for determination and not go outside these issues. Counsel argued that Exhibit A was not raised as estoppel but as further proof of title to the land.
Counsel cited Abubakar v. Joseph (2008) 160 LRCH 159 at 209; Ogundele v. Agiri (2010) Vol. 180 LRCN 138 at 165.

Learned Respondents’ counsel on this issue argued that the two preliminary issues arose from address of Appellants’ counsel at the trial court. On the first preliminary issue raised by the court, learned Respondents’ counsel argued that the appellants’ counsel at the trial court had raised the issue during address that there was a lacuna in the traditional history given by the respondents regarding what happened to the children of the second child of Ekeredi and that the respondents had not shown that they had full competence to file a claim on behalf of their whole family.

Resolution of Issue One
I must say that there is no doubt that I am bound to agree with the learned appellants’ counsel that a judge can raise an issue of law or one of fact suo motu provided the court gives the parties an opportunity to address it on such issues before arriving at any conclusion that would impact on the rights of any party. This is a necessary adjunct of the concept of fair hearing. See Longe v. First Bank Plc (2010) 6 NWLR (Pt. 1189) Pg. 1.

On page 73 of the record, the learned trial judge raised two issues which was captioned ‘Preliminary Issues’ as follows:
“Before the court will determine the issues the court will dispose of two preliminary issues of law which go to the competence of the suit namely:
(1) whether the parties (plaintiff) are properly constituted in respect of the interested parties to the cause of action; and secondly whether Exhibit A constitute estoppel and therefore binding on the court.”

In the judgment, at Pg. 73-76 of the record, the trial judge referred copiously to the address of Mr. P.E. Sambo Esq., learned counsel to the Defendants at the trial who had challenged the evidence led by the Plaintiffs/Respondents on the grounds that the Respondents did not testify as to what happened to the children of the second child of Ekeredi thus creating a lacuna in their evidence of traditional history which leads to the assumption that a branch of the family was not being represented in the suit.

My own understanding of the reasoning of the learned trial judge is that the Court felt that the appellants were challenging the capacity of the Respondents to sue and the court raised the issue to settle the question of the capacity of the respondents so raised. The question was resolved by the learned trial judge at pg. 75 of the record thus:
“Paragraph 1 of the amended pleading showed that the suit was on a representative capacity and plaintiff sought and obtained the approval of the court on the 1/4/2009 of the authority of Tobufiyekumo family of Foukunou Quarter Tuomo.
The approval of the authority of the said Tobufiyekumo family complies with Order 11 and 8 Rules of the (1988 Rules); while the title of the plaintiff complies with the provisions of Order 11 Rules 7 of the same Rule.”

The second preliminary issue raised by the learned trial judge also related to the address of the appellants’ counsel at the trial court- Mr. P.E. Sambo when he urged the trial court to abide by the award of the nine man arbitration panel set up by the community to look into the land dispute between the parties. The learned trial judge held that in spite of the address of learned appellants’ counsel, and even though both parties in their pleadings referred to the customary arbitration the issue of estoppel by record was not raised by the appellants as provided by Order 25 Rule 6(1) of the Rules of Delta State High Court 1988-then applicable. The learned trial judge also distinguished the facts of this case from the facts of Uzomah v. Ugochi (2002) FWLR (Pt. 135) Pg. 694 at 702 and Udeze v. Nwosu (2008) 154 LRCN 110, 5282.

What I am trying to say here is that the complaint raised by learned appellants counsel on this issue is completely unfounded as the so called ‘preliminary issues’ were not raised by the learned trial judge suo motu as claimed by the appellants counsel but arose from the address of the counsel for the defendants (now appellants) at the trial court. Indeed the learned trial judge was obliged to consider the issues as raised by the learned counsel for the Defendants now Appellants in his address. This complaint is completely misconceived and the issue is hereby resolved against the appellants. It must be observed that this resolution does not necessarily resolve the complaints raised by the appellants against the substance of the judgment.

ISSUE TWO
On this issue, learned appellants’ counsel argued that the trial court erred when it discountenanced the decision of the nine man arbitration panel which had earlier on dealt with the case as the panel fulfilled all the conditions of customary arbitration. Counsel argued that the respondents had held themselves bound by the decision of the customary arbitration after the committee’s decision. The respondents didn’t stop the compensation being paid to the appellants, but then later turned around after the compensation had been paid, to come to court.

Counsel argued that the cases cited by the appellants counsel at the trial court viz; Uzomah v. Ugochi and Udenze v. Nwosu supra were both similar to the facts of this case and should have been applied by the trial judge.

On this issue, learned respondents’ counsel argued in reply that the nine man settlement panel set up by the Tuomo Community Chairman was not convinced that the land in dispute truly belong to the Afi (Appellants) family, hence the decision that the Tobufiyekumo family be allowed to continue their farming activities on it or what else would have made it to come to that decision or conclusion.

Counsel insisted that the nine man settlement panel did not fulfill all the conditions stated in the case of Nzomah v. Ugochi (supra), for a customary arbitration to be binding on parties, in this case, the Respondents. The cases of Uzomah v. Ugochi and Udenzi v. Nwosu (supra) do not apply to this case as their facts are different from the facts of this case. The trial court was therefore right in distinguishing the above stated cases from the case at hand. Counsel argued that if only submission to the customary arbitration was enough, the law would have stated so, and not add or include other conditions.

Resolution of Issue Two
The conditions which a customary arbitration must fulfill before it becomes binding on parties are stated in the case of Nzomah v. Ugochi (2002) FWLR (Pt. 135) Pg. 694 at 702 as follows:
(i) There must have been a voluntary submission of the dispute by the parties to a non-judicial body.
(ii) The parties must have agreed to be bound by the decision of the non-judicial body as final.
(iii) The decision must be in accordance with the custom of the people or their trade or business.
(iv) The arbitration must have reached a decision and published their award.
It therefore means that before a customary arbitration can be binding on the parties, all and not one of the conditions must have been fulfilled.

In this case both parties raised the issue of the customary arbitration. The respondents in paragraphs 9, 10, and 13 of the amended statement of claim referred to the arbitration and complained that the verdict was obtained fraudulently by the appellants. The arbitration was also referred to by the defendants now appellants in paragraphs 18 and 19 of the amended statement of defence. The argument of the respondent is that in the first instance, the document – Exhibit A was never pleaded as estoppel by the appellants whom it favoured. The Respondents are also that in the second instance, the cases cited by learned appellants’ counsel are not supportive of the ratio being pushed by learned appellants’ counsel.

The learned trial judge held the view that the appellants as the defendants at the trial court even though they alluded to the customary arbitration never indicated in their pleadings that they were holding the respondents bound by it.

Let us look at Paragraphs 18 and 19 of the amended statement of defence. It states thus at Pg. 38-39 of the record:
18. Paragraph 10 is also false. Defendants also aver that the Tuomo Community Chairman who along with others brokered the peace meeting was not bias and or close to any of the Defendants. Defendants further avers that Tuomo Community is made up of three quarters and it was three persons each from each of the quarters thereby making the panel to be a 9-man panel that tried the matter and gave judgments in favour of defendants based on the witnesses that testified as both Plaintiffs and Defendants called the same witnesses who testified in favour of Defendants. And also that one E.D. Morunmorum J.P. who was also a member of the 9-man panel is an uncle to the 1st Plaintiff while Ziakede Ofaye is a cousin to the 2nd Plaintiff is also a member of the panel, that is to say, the committee was not and could not have been hand picked by anybody. The verdict of the nine man settlement panel is hereby pleaded.
19. Paragraph 11 is false. Defendants aver that the nine man settlement panel verdict was not gotten fraudulently. More so, that both plaintiffs and Defendants agreed to abide by the jurisdiction and outcome of the panel before the panel started its work that came up with the verdict.

It is my humble view that from the pleadings of the appellants as defendants at the trial court, they intended that the proceedings and conclusion of the arbitration panel should be made to bind the respondents who had resiled from it. The respondents refused to be bound by the result of the customary arbitration even though they clearly submitted to the jurisdiction of the panel. The point made by the learned trial judge and being made by the respondent’s counsel is that the arbitration was not the normal customary arbitration nor was it that of a legally constituted customary court to make it binding on any of the parties. Learned trial judge was emphatic on the point that the appellants as defendants never raised it formally as estoppel thus constituting it as a defence to the suit. I do not think that having couched the pleadings and led evidence of the customary arbitration, which the appellants made part of their defence, the appellants were required to do more.

The learned trial judge on pg. 76 of the record held as follows:
“Plaintiffs from the evidence of parties took no benefit from the award of the 9-man arbitration panel. 1st plaintiff testified that plaintiffs filed this suit because the award was unsatisfactory to the plaintiffs. In the case of Uzomah v. Ugochi cited by P.E. Sambo Esq. the parties accepted the award which they perfected. In that case the defendant who was alleged to have defamed the plaintiff perfected the cleansing ceremony of the plaintiff who later sought further redress in court. These facts are diametrically different from the facts of this case, though the defendants seemed to have benefited from the award by the payment of the compensation by Setraco. The fact remains that one of the parties had resiled out of the decision and come to court; the party was not the person that paid the compensation. The court hereby distinguishes the facts of this case from that of Uzomah v. Ugochi (supra) and refuses to apply same.
In the case of Udeze v. Nwosu which P.E. Sambo Esq., further cited the decision which the Supreme Court enjoined the courts to respect was not of arbitration but that of Customary Court.
The decision on appeal was initiated from trial Customary Court of Imo State which was subsequently appealed to the Imo State Customary Court of Appeal. In the light of this the court further distinguishes the fact of the case of Udeze v. Nwosu from this case. Like the 1st preliminary issue defendants did not raise issue of estoppel by records. They did not even plead that parties were bound by the award.
In view of the above the court hereby holds the view that the Exhibit A is not binding on the parties and the court hereby discountenances same as not binding on it. This issue is resolved against the defendants.”

I beg to differ from the learned trial judge.

There is no doubt that the appellants pleaded the facts of the customary arbitration in their amended statement of defence.

The learned trial judge was of the view that the pleading of the appellants regarding the customary arbitration did not meet or conform with the provisions of Or. 25 Rule 6(1) of the 1988 High Court Rules applicable to Delta State which states as follows:
“A party shall plead specifically any matter (for example performance, release any relevant statute of limitation, fraud or any fact showing illegality) which if not specifically pleaded might take the opposite party by surprise”

I humbly cannot agree with the learned trial judge that the pleading needed to use the word ‘estoppel’ before the clear defence as indicated in the pleadings can be countenanced. There was no surprise in the pleading of the native arbitration by the appellants as defendants at the trial court. In fact, the respondents (as plaintiffs) opened salvo on the point by pleading copiously in paragraphs 9, 10 and 11 of their amended statement of claim what led to the native arbitration and why they were dissatisfied with it. Indeed, inference can be drawn from the pleadings or averments that amounts to pleading estoppel. See Godwin Nsiege & Anor. v. Obinna Mgbemena & Anor. (2007) 4 SCNJ 359; Auto Import v. J. A. A. Adebayo & Ors. (2005) 12 SCNJ 106.

In this case, the decision can be called one of customary arbitration which ordinarily would bind both parties if all the conditions precedent to its legality and applicability existed.

I have to make a distinction here between a decision under customary law and a decision made pursuant to customary arbitration. Both are binding on parties who subject themselves to the jurisdiction of such tribunals.

The distinction made by the learned trial judge of the cases of Uzeoma v. Ugocha (2002) FWLR (Pt. 135) Pg. 694 and Udenze v. Nwosu (supra) from the facts of this case are of no moment. In Udenze v. Nwosu the Supreme Court reiterated the need for superior courts to have regard and respect for the findings of native tribunals. In that case it was a legally constituted customary court. In Uzeoma v. Ugocha, it was the decision of a body of elders called the Nwadiali in the village that was upheld by the Court of Appeal. Akpiroroh, J.C.A. followed the decisions in Hioeri v. Akabeze (1992) NWLR (Pt. 221) Pg. 1; Osuigwe v. Nwihim (1995) 3 NWLR (Pt. 386) Pg. 752. This Court in Uzeoma v. Ugocha held as follows on the bindingness of customary arbitration:
1. Conditions for bindingness of customary arbitration-
(a) There must have been voluntary submission of the dispute by the parties to a non-judicial body.
(b) The parties must have agreed to be bound by the decision of the non-judicial body as final.
(c) The decision must be in accordance with the custom of the people or their trades or business.
(d) The arbitration must have reached a decision and published their award.

Let me set out the contents of Exhibit A which is a one page document.

“THE VERDICT OF 9-MAN SETTLEMENT PANEL APPOINTED BY THE COMMUNITY CHAIRMAN, TO LOOK INTO THE LAND DISPUTE BETWEEN TOBUFIEKUMO FAMILY AND AFI FAMILY ON 4/12/2006”

After hearing the statement of both families, investigations were made at home and in the bush (that is the land in dispute), the panel came out to give this verdict. The spokesman, Mr. Kerebi Amgbakkro addressed and advised both parties to cool their minds and accept whatever outcome from the ruling and live in peace and harmony as they were before. The verdict is given as follows:
(1) The pending compensation for the land or area to be excavated by Setraco Construction Ltd. should be paid to Afi family and not to any other family.
(2) That, from our findings, the disputed land from the boundary with Obabedin-ware to the boundary with Eweke’s land is owned by Afi family and not Tobufiekumo family.
(3) The Tobufiekumo family should not be allowed to continues (sic) their farming activities on the said land and should not claim ownership right on the land.
Conclusion, this verdict was given in the presence of both families
THE PANEL MEMBERS
1. Chief Tarewore Loyibo – (Sgd) Chairman 4/12/06
2. Chief E. D. Morunmorun – (Sgd) – 4/12/06
3. Mr. Kerebi Amgbakro – (Sgd) Spokesman 4/12/06
4. Mr. Kumasi Thomas – (Sgd) – 4/12/06
5. Mr. Paul E.e – (Sgd) Secretary – 4/12/06
5. Mr. Joseph Ombe – (Sgd) – 4/12/06
7. Chief Custom Zonneogbe (Sgd) – 4/12/06
8. Mr. Ziakede Ofaye – (Sgd) – 4/12/06
9. Mr. Awolowo Tomke – (Sgd) 4/12/06

The averments in Paragraph 18 of the amended statement of defence filed by the appellants was not contradicted by the respondents. It is clear that both parties agreed to be bound by the result of the nine man arbitration panel drawn from the three quarters which made up the Tuomo community. The Respondents complained at the trial that the panel was partial and that the result was fraudulent. Immediately the panel was constituted they had the opportunity to object to its composition and to refuse to give evidence before it. They complained only after the verdict did not favour them.

The question here is whether the decision of the nine man arbitration panel constituted estoppel in law. To the extent that the Respondents submitted themselves and held themselves bound by the arbitration and by allowing the appellants to collect the compensation one is bound to hold that they cannot resile from the decision of the native arbitration. I am of the firm and humble view that the learned trial judge was wrong to have ignored the decision of the native arbitration to which the two parties subjected themselves. This issue is resolved in favour of the appellants.

ISSUE THREE
On this issue, learned appellants’ counsel argued that the learned trial judge was wrong in entering judgment in favour of the respondents on the pleadings and evidence led by both parties. Counsel argued that the respondents’ only claim to title to the land in dispute through traditional history failed. Learned appellants’ counsel argued that the respondents did not prove through unbroken traditional evidence from their ancestor to the present day that they are the owners of the disputed land. Counsel insisted that the traditional history of intervening ownership given by the respondents was faulty and had unexplained gaps. Counsel argued that the respondents PW2 was a tainted witness whose evidence contradicted that of PW1.

The Respondents in their statement of claim in paragraphs 3 aver that the land in dispute was founded by Ekeredi Tobufiyekumor and the land in dispute is known as Tobufiyekumor ware Ogbo. But 1st Respondent in his evidence called the land “Ekeredi land” and that Ekeredi was the first person to enter and cleared the land in dispute. The PW2 is a member of Tobufiyekumor (Respondents) family who said he had been farming since his youth but he did not have a farm on the disputed land. But he was on the land on April 2009. He also stated that the land was founded by Tobufiyekumor himself who was a senior brother to Afi. And that it was Tobufiyekumor that gave property to Gbaregolo. Counsel argued that the contradiction ought not to be believed by the trial judge.

Counsel cited Elegushi v. Oseni (2006) 133 LRNC 263 at 282; Dagaci of Dere v. Dagaci of Ebwa (2006) 140 LRCN 2114 at 2179.

Counsel argued that the respondents failed to prove their root of title to the land. Counsel insisted that by paragraphs 4 and 5 of the amended statement of claim, the respondents briefly summarised their genealogy as follows to be found on pg. 49-50 of the record:
4. The Plaintiffs aver that upon the death of Ekeredi Tobufiyekumo, the original founder of the land in dispute, same devolved on his children, namely (2) Fireseigha (m) and (2) Endikongha (m) who continued to farm on the land until their demise after which their children (1) Elagha (m), (2) Mienkiyei (m), (3) Odudu (m) and (a) Ebere (m) continued to farm on it until their death. The Elagha the first son of Fireseigha is the father of the plaintiffs who are presently using the land for farm purposes.
5. Plaintiffs further aver that the Gbarigolo canal was formerly known as Egiren Tobufiyekumo Oba and owned by Egiren Tobufiyekumo who later gave it to his brother’s son by name Gbarigolo of Afi family, and maternally of Patani, when he (Gbarigolo) returned from Patani to Tuomo. That the canal thereafter became known as Gbarigolo Oba. That the Defendants are descendants of Gbarigolo.

Counsel referred us to the said root of title claimed by the Respondents.

From the genealogical tree, after the original founder founded the land in dispute, he farmed on it and after his death the land devolved to his two children and after his two children, it devolved to another three set of children and thereafter to the father of the plaintiff and the question is, what then happened to the rest of the family? Counsel claimed that it is not the two Respondents who instituted the suit in court that own the land. They have not been able to account for other family members.

Counsel argued that nowhere in the pleadings of the respondents did they claim that their fore fathers founded the Gbaregolo Canal. Whereas the evidence led at the trial by the Respondents was to the effect that Afi family Appellants) do not have land in Tuomo.

Counsel also contended that while the respondents were not able to name their boundary men on the canal side, the appellants during their evidence were able to prove that the land adjacent to the canal belonged to them. The respondents did not call credible evidence of co boundary owners and thus failed one of the tests for proving title to land. Counsel cited Otama v. Youdubagha (2006) 134 LRCN 362 at 380 EE 381 AA. See also the case of Owhonda v. Ekpechi (supra) Pg. 2545 Z; Falomo v. Onakanmi (2005) 11 WRN 141 Pg. 170 II 25 – 35; Owhonoa v. Ekpechi (2003) 113 LRCN 2525 at Pg. 2547.

Counsel argued that even though the learned trial judge relied heavily on the evidence of the P.W.1, the same P.W.1 under cross examination admitted that the land in dispute has a common boundary with the Gbarego Oba canal which belongs to the appellants. Counsel reminded us that under cross examination, the respondents through PW1 admitted that ‘when one goes to the land in dispute from Tuomo’ you will pass the land belonging to the defendants before getting to the land of the plaintiffs.

The learned appellants’ counsel argued that the court ought not to have believed the evidence of the respondents that their farm produce was stolen and that the award of damages for trespass and injunction was wrong.

Learned counsel for the respondents in reply argued that there was no lacuna in the traditional history proffered by the respondents at the trial court since the respondents pleaded and adduced cogent, consistent and credible evidence of traditional history. Counsel argued that the identity of the land in dispute was never in dispute or in issue in this case. Counsel submitted that the identity of a land in dispute can only be said to be in issue if and only if the Defendant in his statement of defence makes it one.

Counsel argued that the land in dispute shares a common boundary with the Gbarigolo-Oba or canal which was given to Gbarigolo by Egiren, the son of Tobufiyekumo and brother of Ekeredi. Respondents counsel argued that the identity of the land was never in dispute being well known to both parties.

On the issue of boundaries, learned Respondents’ counsel submitted that a plaintiff is required to prove with certainty the boundaries to the land in dispute only when the boundary is in issue or in dispute, but where the land is well known to the parties and the description/location are admitted by the defendants in their pleadings as in this case, the plaintiff need not prove same. Counsel cited Otanma v. Youdubagha (2006) 134 LRCN 362 at 380 para IPU, Ogun v. Akinyelu (2005) 123 LRCN 97 at 117 para UZ, G Badamosi v. Dairo (2007) 145 LRCN 508 at Pg. 518-519 A & 524.
On the issue of alleged contradictions in the evidence of the Respondents at the trial, counsel submitted that the contradictions are immaterial as they did not discredit the root of title pleaded and proved by the Respondents. The law is that for a contradiction to render nugatory the case of the Plaintiff, it must be material or substantial in nature. Counsel cited Elegushi v. Oseni supra, also cited by the Appellants; Dagaya v. The State (2005) 134 LRCN 395 at 425 and Agbo v. State (2005) 135 LRCN 808 at 827 AK & 828-292.

Counsel also argued that the learned trial judge was right in making an award in damages for trespass for the respondents. He submitted that the appellants in their pleadings or evidence never specifically denied the averments of the respondents that the appellants destroyed their farm produce.

Resolution of Issue Three
On the issue of the identity of the land in dispute and its boundaries, the learned trial judge held on pg. 79 of the record thus:
“The court has read the pleadings of parties and it is of the candid view that the land in dispute is the same and not two different pieces of land with different boundaries as the averment at paragraph 4(d) of the amended statement of defence tended to depict.”

I have also read the pleadings of the parties and the evidence led at the trial court. There is no doubt that even though the parties gave different names to the disputed land, they referred to the same location. While the appellants called it Gbaregolo-Ogbo, the respondents called it Tobufiyekumo-Ogbo or Ekeredi land. The parties knew the land in dispute which was a large portion of land they called ‘bush’. In any event, it is trite that the onus is on the plaintiff to establish the identity of the land in dispute. Where as in this case, both sides know the land in dispute, such need may not arise. Before identity of the land can become an issue in the dispute, the defendant must specifically make an issue of it in his pleadings by disputing the area or location or features shown in the plaintiff’s plans or description. See Gbadamosi v. Dairo (2007) 1 SCNJ 444.

By the pleadings of the respondents, particularly paragraph 5 of the amended statement of claim, it is apparent that the respondents agree that the land in dispute was given by their own ancestor to the ancestor of the appellants one Gbarigolo of Afi family which made the canal to become known as Gbarigolo Oba.

There are five methods to prove title to land. One is by proving title through traditional inheritance – that is by proving traditional history. The essential requirements to be proved in respect of root of title by traditional evidence are the ancestor who founded the land, how he founded it, and intervening holders of the land. I have considered the evidence in the pleadings and the evidence led during the trial. Paragraphs 4 and 5 of the amended statement of claim states as follows:
4. The Plaintiffs aver that upon the death of Ekeredi Tobufiyekumo, the original founder of the land in dispute, same devolved on his children namely (1) Fireseigha (m) AND (2) Endikongha (m) who continued to farm on the land until their demise after which their children (1) Elagha (m), (2) Mienkiye (m) (3) Odudu (m) and (a) Ebere (m) continued to farm on it until their death. That Elagha the first son of Fireseigha is the father of the Plaintiffs who are presently using the land for farm purposes.
5. Plaintiffs further aver that the Gbarigolo canal was formerly known as Egiren Tobufiyekumo Oba and owned by Ekeredi Tobufiyekumo who later gave it to his brother’s son by name Gbarigolo of Afi family, and maternally of Patani, when he (Gbarigolo) returned from Patani to Tuomo. That the canal thereafter became known as Gbarigolo Oba. That the Defendants are descendants of Gbarigolo.

There is no doubt that the traditional evidence as set out by the respondents in para 4 and 5 of the amended statement of claim and the evidence in court did not explain properly and clearly the traditional root of title of the respondents to the land in dispute. On the other hand, paragraphs 5-12 of the amended statement of defence on pg. 37 – 38 of the record states as follows:
5. Defendants aver that the land in dispute, Gbaregolo-Ogbo was founded by late Okpei of blessed memory. Okpei is the ancestor of the plaintiffs and defendants. Okpei founded a vast portion of land including the land in dispute when he deforested it of its prestine vegetation amongst other lands he founded in Tuomo town. In his life time he exercised acts of ownership and possession over the said lands by farming/fishing therein. Upon his death, the lands then devolved on his children till Anebofa who is a grand child of Okpei finally shared the lands owned by his grandfather among his children and grandchildren, etc and the portion in dispute was then shared to Gbaregolo his grandchild.
6. The plaintiffs and defendants are descendants of Okpei, Okpei of Tuomo town begat two male child called Faoukunou and Akerebunou. Upon Okpei’s death, the properties were shared among Foukunou and Akerebunou. Foukunou begat Anebofa, who upon the death of Foukunou inherited all the lands/properties shared to Foukunou.
7. That Anebofa begat five children whom are (i) Derebide (f), (ii) Amadoy (f), (iii) Bilo (f), (iv) Buropekiumor (f) and (v) Dutare (f) who is a daughter of Otutubara, Anebofa’s father’s (Foukunou’s) wife who did not bear any child for him before his death and was given to Anebofa as a widow.
8. That before Anebofa’s death, he shared the lands amongst his children, grandchildren who were living with him at Tuomo because most of the children were girls who went to marry outside Tuomo town. That was how the portion in dispute was given to Gbaregolo, Anebofa’s grandchild.
9. Dutare begat 3 children, namely: (i) Afi (m) (ii) Kuru (f) (iii) Tubofiyekumor (m) and Afi begat Gbaregolo, Asia and Owei while Gbaregolo begat Enokubo, Ekenkigha, Dudud, Domudia and Yebeke.
10. Domudia begat Porbeni (m), Ebikemfa and Exando while Eneokubo begat Ebikpolade (m), Willy (m) Doufa (m), and Ofosu (m). Then Ebikpolade begat Friday Ebikpo (2nd Defendant) while Willy begat Apoudide and Apoudide begat Gabriel Akpukpu (1st Defendant) and Fatima, Fatima begat Tifoli Secretary (3rd Defendant).
11. Defendants aver that Anebofa also shared the portion of land in dispute to his grandchild; Gbaregolo because when his another grandchild Weita, Derebide’s son; who was with Anebofa in Tuomo died, there was no capable person in the family to look after Weita’s wife by name Onokorakpo and her children whom are Ayese (female), Ama (f). It was Gbaregolo who stood to marry Onokorakpo and took care of the deceased children under the Izon native law and custom of inheritance and the marriage was blessed with two children name Etonye and Eyeororokunor. And so when Anebofa was sharing the lands/properties to his children most especially Dutare’s children who lived with him in Tuomo, that is to say, Afi, Kuru and Tubofiyekumo, they also shared to Gbaregolo to enable him take care of his deceased cousin Weita’s wife and children.
12. Paragraph 5 is false. Defendants aver that Gbaregolo is the owner of the portion of lands including the canal known as Gbaregolo-Oba which was given to him by his grandfather Anebofa and did not get any land or canal from his uncle Tubofiyekumo.

The evidence led by the appellants’ witnesses shows that they were able to account generation to generation how the land came to be theirs by inheritance. The evidence on record is also that Setraco – the Construction Company while constructing the Bomadi/Tuomo road in 2006 spoilt some farm crops of the appellants’ family members on the land in dispute. Some family members including 3rd appellant, and other members of the appellants’ family (including Regina and Alex Ebikpolade) were paid for their crops that were destroyed. It was when the Setraco Company needed to dig a mud pit on the land in dispute that the respondents came to lay claim to it.

I agree with the argument of learned appellants’ counsel, that the respondents did not adduce sufficient traditional evidence of their root of title to the land in dispute. In Dagaci of Dere v. Dagaci of Ebwa (2006) 1 SCNJ 160 the Supreme Court insisted that it is not for the claimant of a declaration for title to land to claim casually that the land has been in his family from time immemorial. The claimant must go further and point a genealogical tree of the family ownership of the land from the past to the present. In this case at hand, the pleadings and the evidence led by the Respondents was too sparse and did not link one generation to the next to make it believable against the evidence of the Appellants. In spite of the opinion of the learned trial judge that his Lordship considered the demeanour of the witnesses, when the witnesses have not been able through their testimony to prove the claim, then the claimant is not entitled to judgment. It is obvious that the Respondents as Plaintiffs at the trial court were not entitled to the reliefs claimed and granted. They were not able to prove on a balance of probabilities their title to the land in dispute and thus the consequential orders.

I cannot shut my eyes to Exhibit A the verdict of the customary arbitration which had nine people from the three quarters of Tuomo. The verdict was to the effect that the Appellants from Afi family are the owners of the land in dispute. Even if Exhibit A cannot be considered as constituting legal estoppel against the Respondents, it is evidence that majority of the elders of Tuomo, the community to which the parties belong believe that the land in dispute belongs to the Appellants. The trial court and this court cannot presume to know the traditional history of the community better than its elders drawn from all the quarters in the community who took a unanimous decision which the Respondents at first did not kick against. I resolve this issue in favour of the Appellants.

In my humble view, this appeal is meritorious and should be allowed. The judgment of Hon. Justice P.J.O. Anigboro of the Delta State High Court in Suit No. HCB/10/2007 is hereby set aside and all orders therein vacated. Appeal allowed.
I award N50,000.00 costs to the Appellants against the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, J.C.A. I am not only in total agreement with the re-phrasing and re-ordering of the Issues for the determination of the appeal undertaken by his lordship, but also with the manner in which the said Issues were resolved given the exposition of the law on the Issues. I have nothing useful to add to the lucid lead judgment.

In the circumstances, I too, find the appeal to be meritorious and allow the same. The judgment of the lower court delivered on 17/7/2009, is hereby set aside and all the orders therein vacated. I also abide by the order relating to costs as made in the lead Judgment.

TOM SHAIBU YAKUBU, J.C.A.: I had read before now, the draft of the judgment just delivered by my Lord – HELEN MORONKEJI OGUNWUMIJU, J.C.A., with whom I agree that this appeal is meritorious. I, too therefore, allow it and set aside the judgment of the Delta State High Court in respect of Suit No. HCB/10/2007 by P.J.O. Anigbore, J., of 17th July, 2009.

I abide by the order as to costs as contained in the lead judgment.

Appearances

E. O. Afolabi with him D. A. Uhunmwangho Esq., Miss E. E. Oisamoje, Miss E. D. Ibojo, E. E. Adun (Miss) O. Ohwojehri Esq.For Appellant

AND

P. O. Okiehor (Mrs.)For Respondent