ROWLAND KALU ONWUKA & ANOR v. CHIEF OKOKO OKERE OBASI & ORS
(2019)LCN/13185(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/OW/361/2017
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. ROWLAND KALU ONWUKA
2. ONWUKA ONWUKA (a.k.a. Teacher)
(For themselves and as representing Ndi Olugu Section, Ndi Ekpu Section, Ndi Ibem Mbila Section, excluding Oka Ezera Descendants of Ndia Mbila (Ogbu paternal family of Asaga Ohafia) Appellant(s)
AND
1. CHIEF OKOKO OKERE OBASI
2. MBILA OKA EZERA
3. OGWO EKE AWA
4. AWA EKE AWA
5. OKA EZERA OKA EZERA
6. MICHAEL OKEKE UMA IBE
(For themselves and as representing Ndi Okoro Section of Ndi Mbila (Ogbu) paternal family and Oka Ezera Descendants of Ndi Ibem Mbila section of Ndi Mbila (Ogbu) paternal family of Asaga Ohafia)
AND
INYAMA CHIORI Respondent(s)
RATIO
MEANING OF THE TERM “CUSTOMARY TENANT”
It must be observed that the term customary tenant has its meaning and basic incidence by which it is known without which the relationship cannot be described as customary tenancy. The main incidence of customary tenancy is the payment of tribute by the customary tenant to the overlord. See the case of ABUDU LASISI Vs. OLADAPO TUBI & ANOR (1974) 12 SC 71. PER ANDENYANGTSO, J.C.A.
WHETHER OR NOT HE WHO ASSERTS MUST PROVE
The law is that he who asserts must prove. Iheanacho Vs Iheanacho (2018) LPELR ? 44124 CA; Dasuki Vs FRN & Ors (2018) LPELR – 43897 (SC); Section 131(1) of the Evidence Act, 2011. PER MBABA, J.C.A.
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading judgment): This is an appeal against the judgment of Hon. Justice Amanze Chikwendu Chioma, J. sitting at the Ohafia Judicial Division of the Abia State High Court, delivered on 30th day of May, 2017.
Chief Okoko Okeke Obasi and 5 others took out a Writ of Summons and Statement of claim at the High Court of Abia State, against Nna Amogu Kalu and 4 others which processes were filed on the 19th day of June 2009 (See pages 2?20 of the Record of Appeal, the ?Record? for short). In the Further Amended Statement of Claim dated 16th May, 2013 and filed on 20th May, 2013 (pages 174?193 of the Record), the Claimants at paragraph 67 (pages 191?193 of the Record) claimed the following reliefs:-
?A. A declaration by the Honourable Court that Ndia Mbila (Ogbu) compound also called Ndia Mbila (Ogbu) paternal family of Asaga Ohafia is entitled to the right of occupancy in respect of the piece or parcel of land known as and called as follows:-
i. Ikporokporo
ii. Onu ? Ngwo
iii. Ndele
iv. EgbeUtelu
?v. Ali Efi/Ekeluogo
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vi. OkpuIyi Obu/OkpuAzuforoNdiObu
vii. Obuke and
viii. Ngele Obolobo/OloriOgbu, each which is situated at Asaga Ohafia within the jurisdiction of this honourable Court which pieces or parcels of land are well?known to the parties in this suit.
B. A declaration by the Honourable Court that the purported sale of any of the pieces or pieces of land enumerated under paragraph 53(1) above or any part of any of them by the defendants themselves or their agents or privies without the knowledge, consent and approval of the plaintiffs is null and void and of no effect whatever.
C. An order of the honourable Court setting aside the sale of any piece or parcel of land as enumerated in paragraph 53(1) or any part of any of them in contravention of the memorandum of settlement dated 11/6/99 executed by duly authorized representative of Ndia Mbila (Ogbu) paternal family for being ineffectual, unauthorized null and void.
D. ALTERNATIVELY, a declaration by the honourable Court that any sales or other disposition of any of Ndiambila (Ogbu) Paternal family land as enumerated in paragraph 53(1) hereinabove or any part of any part of any of them carried out
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in conformity with the memorandum of settlement dated 11/6/99 executed by duly authorized representative of NdiaMbila (Ogbu) paternal family are or is valid, authentic and effective.
E. An order of injunction permanently restraining the defendants by themselves or through their agents, servants or privies from interfering in any way with rights of the land enumerated under paragraph 53(1) hereinabove as members of NdiaMbila (Ogbu) paternal family.
F. An order of perpetual Injunction restraining the defendants led by the 1st defendant from continuing to invoke or impose the customary sanction of ostracism in their efforts to enjoy and or farming on the said Ndia Mbila (Ogbu) paternal family lands as enumerated in paragraph 53(1) hereinabove.
G. An order of perpetual Injunction restraining the defendants from imposing any kind of customary sanctions and fines as a means of compelling the plaintiffs to refrain from challenging or resisting the purported dispositions of their paternal family lands by the 2nd& 3rd defendants with the active support of the 1st defendant.
H. An Order of perpetual Injunction restraining the defendants
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from disturbing the plaintiff?s (sic) rights to continue to live in and enjoy their individual residence with NdiaMbila (Ogbu) compound as Asaga Ohafia.
I. An Order of the Court compelling the defendants to render account of the money realized or collected from
i. Sale of residential plots of land at Ngele Obolobo/Olori Ogbu to some NdiMbila (Ogbu) members at home and abroad.
ii. Leasing on short term basis Ndiambila (Ogbu) farmlands to tenant farmers for the years 2006 to 2009 and
iii. Leasing on annual basis Ndia Mbila (Ogbu) communal modern oil palm plantation situate at piece or parcel of land known as and called OkpuIyiObu for the years 2005 to 2009.
J. The sum of N5 million as general damages for loss of farming rights in the years 2009 suffered by the plaintiffs in respect of the piece or parcels of land called Ikporokpo, Obuke, Onu ? Ngwo and Ndee because of the defendants acts of intimidation ostration and other oppressive measures against the plaintiffs.?
?
The 1st and 2nd Defendants filed their joint statement of Defence dated 14th February, 2011 on the 4th March, 2011 (pages 84?96 of the Record).<br< p=””
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As the proceedings progressed, the 1st and 4th Defendants died, and as a result, the 2nd, 3rd, and 5th Defendants became 1st, 2nd and 3rd Defendants respectively. The 3rd Defendant filed a separate Statement of Defence dated and filed 10th October, 2013 (pages 218?234 of the Record). The Plaintiffs? or Claimants? Reply to the defences of the Defendants dated 18th November, 2011 was filed on 2nd December, 2011 (pages 124?141 of the Record).
Pleadings were filed, exchanged, issues joined, and the case proceeded to trial. At the close of trial and adoption of written addresses of learned counsel on both sides, the learned trial Judge delivered judgment on 30th May, 2017 as earlier indicated, in favour of the Claimants and against the Defendants (see pages 683?694 of the Record). Dissatisfied with the decision of the lower Court, the Defendants filed a Notice of Appeal on 9th June, 2017 containing 8 grounds (pages 770 ? 777 of the Record).
Henceforth I shall refer to the claimants as the Respondents and the Defendants as the Appellants.
By the Order of this Court granted on 14th May, 2018 the Appellants filed
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their Appellants? Brief of Argument (settled by Udo Uduma Esq.) on 5th March, 2018 but deemed properly filed and served on 14th May, 2018. The Respondents filed their Respondents? Brief of Argument (settled by AnagaKaluAnaga Esq.) on 1st June, 2018.
On 14th February, 2019 when the appeal came up for hearing, Udo Uduma adopted the Appellants? brief of Argument and urged us to allow the appeal and set aside the judgment of the lower Court, while AnagaKaluAnaga Esq. adopted the Respondents? brief of Argument and urged us to dismiss the appeal and affirm the decision of the lower Court as the appeal lacked merit.
Now the grounds of Appeal without their particulars are as follows:-
?GROUND ONE
The lower Court misdirected itself in law and came to a perverse decision when it entered judgment for the claimants/Respondents despite the fact that the claimants failed to prove their genealogical link to the original owner/founder of the lands in dispute.
GROUND TWO
The lower Court misdirected itself and erred in law when it placed the burden of proof on the defendants and thereby came to a perverse decision.<br< p=””
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GROUND THREE
The trial Court erred in law and misdirected itself when it equated rights/privileges of usufruct granted by the defendants? ancestors to the claimants with right of co ownership of the lands.
GROUND FOUR
The learned trial judge erred in law when it held that the claimants and the defendants belong to the same family and own the lands in dispute in common when evidence is clear to the effect that both parties do not share a common ancestry and a common family heirloom.
GROUND FIVE
The trial Court misdirected itself and erred in law when it made the following Declaration (Order):
?A declaration by the Honourable Court that the purported sale of any of the pieces or parcels of land enumerated under paragraph 67 (1) above or any part of any of them by the Defendants themselves or their agents or privies without the knowledge, consent and approval of the Claimants is null and void and of no effect whatever (sic)?.
GROUND SIX
The learned trial judge erred in law when it failed to properly appraise and give value to the evidence of the DW1 and the DW3 which resulted in a perverse decision.<br< p=””
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GROUND SEVEN
The learned trial judge erred in law when he made the following vague and perverse order:
An order of injunction permanently restraining the Defendants by themselves or through their agents or privies from interfering in any way with rights of land enumerated under paragraph 67 (1) hereinabove as members of NdiaMbila (Ogbu) paternal family.”
GROUND EIGHT
The entire judgment is altogether perverse and unwarranted.?
From these grounds of appeal, the Appellants in their Brief of Argument formulated 8 issues for determination thus:-
?1. Whether the lower trial Court was right when it entered judgment for the claimants/respondents despite the fact that the claimants failed to prove their genealogical link to NnaMbila Uduma, the original owner of the lands and founder of NdiaMbila Ogbu paternal family? (Ground 1)
2. Whether the learned trail judge did not misdirect himself when he placed the burden of proof of the claimants? membership of NdiaMbilaOgbu family on the defendants? (Ground 2)
3. Whether the learned trial judge was right in equating rights/privileges of usufruct granted by the
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defendants? ancestors to the claimants with right of co-ownership of the lands? (Ground 3)
4. Whether the learned trial judge was right when it held that the claimants and the defendants belong to the same family and own the lands in dispute in common despite clear evidence to the effect that both parties do not share a common ancestry and a common family heirloon? (Ground 4)
5. Whether the learned trial Court was right when it made the following vague, garbled, speculative and perverse declaration:
?A declaration by the Honourable Court that the purported sale of any of the pieces or parcels of land enumerated under paragraph 67(1) above or any part of any of them by the defendants themselves or their agents or privies without the knowledge, consent and approval of the claimant is null and void and of no effect whatsoever.” (Ground 5).
6. Whether the learned trial judge was right when he failed to properly appraise and give value to the very apt evidence of the DW1 and DW3 which failure resulted in a miscarriage of justice? (Ground 6)
7. Whether the learned trail judge was right in making the following vague, garbled,
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speculative and perverse order;
?An order of injunction permanently restraining the Defendants by themselves or through their agents or privies from interfering in any way with rights of land enumerated under paragraph 67 (1) hereinabove as members of NdiaMbila (Ogbu) paternal family.”(Ground 7).
8. Is the judgment of the lower Court not altogether perverse? (Ground 8)?
The Respondents in their Brief of Argument formulated two issues for determination which are:-
?(a) Whether the Learned Trial Judge was wrong when he held that the claimants and the Defendants belong to the same family and own the lands in dispute in common.?
(b) Whether the Learned Trial Judge was not right when he placed on the defendants the burden of proving that the Claimants are customary tenants, therefore not members of NdiMbila Ogbu Compound.?
I hold the firm view that the issues formulated by both parties can be synchronized as those of the Appellants can be subsumed in those of the Respondents as follows:-
Issues 1, 4, 5 and 7 of the Appellants are subsumed in issue (a) of the Respondents while issues 2, 3, 6 and 8
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of the Appellants are subsumed in issue (b) of the Respondents.
I shall therefore treat the issues as synchronized above.
ISSUE (a) (GROUNDS 1, 4, 5 and 7)
?Whether the Learned Trial Judge was wrong when he held that the claimants and the Defendants belong to the same family and own the lands in dispute in common.?
It is the submissions of the Appellants? learned Counsel, Udo Uduma Esq. that the Respondents relied on traditional history in proving their case; that both parties are ad idem that the lands in dispute became the family lands of Ndia Mbila Ogbu paternal family through NnaMbila Uduma, the progenitor and founder of NdiaMbila paternal family; that the lands in dispute belong to the descendants of Nna Mbila Uduma but that the Respondents (as claimants) failed to plead and lead evidence on their genealogical connection to NnaMbila Uduma, as admitted by 1st Appellant, and therefore failed to prove their title to land as required by law, relying on IBIKUNLE VS. LAWANI (2007) 3 NWLR (Pt. 1022) 580 at 595 and ODUNUKWE VS. OFOMATA (2011) ALL FWLR (Pt. 568) 861.
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Udo Uduma Esq., referred us to the definition of ?descent? and ?descendant? as rendered in the Black?s Law Dictionary 8th Edition, and submitted that the Appellants and Respondents do not share a common ancestry and descent as Umu Uma and Umu Okwara are of two different stocks or paternal kindred within Asaga Ohafia; that the Respondents cannot place reliance on Exhibits B, C, E, F and G to prove ownership or co-ownership of the disputed lands in view of the colossal failure of their traditional history, relying on ELEGUSHI VS. OSENI (2005) 14 N.W.L.R. (Pt. 945) 348 and BALOGUN VS. AKANJI (2005) Vol. 126 LRCN 858. Referring to the evidence of the Respondents under cross examination (without specifying the Respondents cross examined) Udo Uduma Esq., contended that they are adopted children in Ndia Mbila Ogbu, which fact was not pleaded and as such the evidence goes to no issue, relying on AKUNWATA OGBOGU MBANEFO VS. NWAKIBIE HENRY MOLOKWU (2014) 6 NWLR (Pt. 1403) 377 at 394 Ratio 17 (SC); that the learned trial Judge erred when he proceeded to award/accord the status of co-ownership of the lands in dispute to the Respondents without them first establishing their membership of Ndia Mbila
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family, as was decided by this Court in MRS. OLUBISI OLADIPO VS. MRS. OLUKEMI EMIOLA (Nee OLADIPO) (2017) ALL FWLR (Pt. 880) 879 Ratio 1, then urged us to hold that the Respondents failed to establish their link to Nna Mbila Uduma, the original owner of the land, and resolve this issue in favour of the Appellants and against the Respondents.
Anaga Esq., for the Respondents answered this issue in the negative and submitted that the case of the Respondents (as claimants), is that they and the Appellants (Defendants then) as members of the same compound (NdiMbilaOgbu), are entitled to peaceful residence of the area of the compound given to them by the Founder of the compound; that they are not stranger elements in the compound and are thereby entitled to continue to enjoy the lands commonly owned by the members of NdiMbila Ogbu; that the case of the Respondents is not that of the headship of the compound as contended by the Appellants? Counsel and that the Appellants did not file any counter claim at the lower Court, while the Respondents pleaded and led unchallenged evidence in proof of their case.
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Anaga Esq. also submitted that the Respondents had
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pleaded facts and documents before the lower Court to show that they are members of NdiMbila Ogbu, despite Appellants? denial, referring to Reliefs 2, 5, 6,7 and 8 of the Respondents? Writ of Summons and the Statement of claim (page 3 of the Record), as opposed to the pleadings and evidence of the Appellants in paragraph 2 of the 1st and 2nd Appellants? Statement of Defence, (page 85 of the Record) that the Respondents are customary tenants, therefore non indigenes of NdiMbila Ogbu. Learned Counsel contended that since the parties in the Court below disagreed on their respective origins, rights and privileges within NdiMbila Ogbu compound, the learned trial Judge was therefore right to have resorted to the examination of recent acts of the parties and documents to that effect, tendered before the lower Court, which he duly considered before coming to the conclusion that they are all members of NdiMbila Ogbu and entitled to all rights and privileges accruing to members of the compound. He then referred us to paragraphs 31-35 of the Further Amended Statement of Claim and submitted that the facts therein contained were neither challenged nor CW1 was
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thereon cross examined.
Anaga Esq., then summarized the evidence given on the facts contained in paragraphs 31-35 of the Further Amended Statement of Claim and submitted that the Appellants having failed to challenge the facts therein contained, are deemed to have admitted same which require no further proof, relying on AKINWIE VICTOR ADESULE VS. AKINFOLARIN MAYOWA & 6 ORS. (2011) 13 NWLR (Pt. 1263) 135 at 170 paras E?F.
Learned Counsel again submitted that the learned trial Judge was right when, after reviewing all the facts and evidence (both oral and documentary) placed before him, held at pages 763?764 of the Record as he did, and then urged us to resolve this issue in favour of the Respondents and against the Appellants.
ISSUE (b) (GROUNDS 2, 3, 6 and 8)
?Whether the Learned Trial Judge was not right when he placed on the defendants the burden of proving that the Claimants are customary tenants, therefore not members of NdiMbila Ogbu Compound.?
Udo Uduma Esq., on this issue submitted that the Respondents as claimants in the Court below clearly bore the burden of proving their membership of NdiMbila Ogbu
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paternal family of Asaga Ohafia but woefully failed to discharge this burden by failing to prove their roots to NnaMbila Uduma; that a plaintiff has the duty to prove his case to the satisfaction of the trial Court and that this burden does not and cannot shift to the defendants who did not counter claim, relying on OYEDEJI VS. OYEYEMI (2008) 6 NWLR (Pt. 1084) 485 at 487; that in this case, the Appellants who did not have that burden, however proceeded to prove their origin; that the CW1 clearly admitted that his Ndi Okoko family belongs to Umuokwara kindred whereas NdiaMbila Ogbu Family of the Appellants belong to Umu Uma kindred, which two kindred are distinct from each other within Asaga Ohafia; that despite this clear evidence the learned trial Judge proceeded erroneously and held that the Appellants did not prove the family of the Respondents, thereby rendering the decision perverse. He urged us to so hold.
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Udo Uduma Esq., further submitted that the law is settled that the right of ownership is very distinct from the right or privilege of usufruct; that when a person is settled on land to co-use it with the owner, such rights of user cannot ripen to right
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of ownership no matter how long exercised. He submitted that in the instant case, there was clear evidence that the Respondents were merely settled on the land by the ancestor of the Appellants, which fact the learned Trial Judge had aptly found in his judgment at page 760 of the Record, yet turned round to hold otherwise, thereby going into error by giving the Respondents the status of co-owners of the lands. He submitted that occupational right granted in respect of family land cannot ripen into ownership, relying on OBIENU VS. OKEKE & ORS. (2017) LPELR?43447, and MRS. OLUBISI OLADIPO & ORS. VS. MRS. OLUKEMI EMIOLA (Nee OLADIPO) (2017) ALL FWLR (Pt. 880) 878 at 879 Ratio 1.
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Counsel referred us to the evidence of DW1 and DW3 at pages 593?599 and 409?420 of the Record respectively, which portrayed the correct status of the Respondents? respective families as settlers in NdiaMbila Ogbu Compound who only enjoy rights of user of the lands subject to good behavior. He then urged us to re-evaluate the evidence of DW1 and DW3 which the trial Court failed to properly do, thereby arriving at a wrong conclusion and then urged us to
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resolve this issue in favour of the Appellants and against the Respondent.
Anaga Kalu Anaga Esq., for the Respondents submitted that the case of the Respondents was clearly stated in their Writ of Summons, Further Amended Statement of Claim, evidence led (both oral and documentary) that they are members of NdiMbila Ogbu Compound who reside in the area of the compound given to them by the founder of the compound, referring to page 174 of the Record, but that the Appellants however, denied this claim at paragraph 10 of their Statement of Defence at page 87 of the Record, claiming that the Respondents are customary tenants in NdiMbila Ogbu, which assertion was denied by the Respondents, thereby putting the burden of proof upon the Appellants.
Anaga Esq., submitted that the position or status of the Respondents does not meet the qualification of customary tenancy as recognized by law, relying on MALLAM ALI KANO VS. ALHAJI NUHU MAIKAJI (2013) ALL FWLR (Pt. 673) 1850 at 1880 para C, which he quoted extensively, and submitted that there was evidence that the Respondents occupied or held positions in the highest seat of authority in NdiMbila Ogbu which only
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indigenes are permitted to hold, and therefore cannot be termed as customary tenants. He submitted that in this case the 1st Respondent is a member of IbomIsii, the highest ruling body in NdiMbila Ogbu, which is evidence that they are not customary tenants as contended by the Appellants. Again, it is submitted that there are exhibits which were jointly signed by the Respondents with the Appellants indicating that they are members of one compound and that if the Appellants are disputing the status of the Respondents it is their duty to prove that in accordance with the provisions of Sections 18(2) and 73 of the Evidence Act, 2011 (as amended); furthermore, that the Appellants who did not call any independent witness to establish the custom, have failed to discharge the burden placed upon them by law. He then referred us to Exhibits C, E, F and G, and the case of ABUDU LASISI VS. OLADAPO TUBI & ANOR. (1974) 12 SC 71, on what a customary tenant is and submitted further that from the moment the Appellants denied that the Respondents are members of NdiMbila Ogbu compound, by the operations of Section 131(1) of the Evidence Act, 2011 (as amended), the burden of
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proving the place of origin of the Respondents other than NdiMbila Ogbu fell on the Appellants to discharge, which they have failed to do in this case. He then urged us to resolve this issue in favour of the Respondents and against the Appellants, and concluded by urging us to dismiss the appeal and affirm the decision of the Abia State High Court in the Suit HOH/27/2009 for the reasons:
(1) That the Respondents adequately proved their membership of NdiMbila Ogbu Compound and their rights as co-owners of the lands jointly owned by NdiMbilaOgbu Compound and
(2) That the appeal lacks merit.
RESOLUTION
ISSUE (a) (GROUNDS 1, 4, 5 and 7)
?Whether the Learned Trial Judge was wrong when he held that the claimants and the Defendants belong to the same family and own the lands in dispute in common.?
Let me pronto say that the contention of the Appellants that the Respondents anchored their claims on traditional history, and having failed to prove same, cannot resort to proof by documentary evidence, is not borne out of the facts of this case, as the claims of the Respondent in the Court below do not support that view. The
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Respondents? case is that they and the Appellants are of the same descent and ancestry, and therefore are equally entitled to the rights and privileges of the members of the Compound, that is to say, NdiMbila Ogbu.
The Respondents had at the lower Court led both oral and documentary evidence to show that they and the Appellants are members of NdiMbila Ogbu compound, which was denied by the Appellants (pages 3 and 25 of the Record respectively), who maintained that the Respondents were customary tenants.
It is to be noted that the disagreement on the origin of the parties caused the trial Judge to resort to the examination of both oral and documentary evidence tendered by both parties before the Court, upon which it came to the conclusion that both the Appellants and Respondents are all members of NdiMbila Ogbu Compound and are therefore entitled to all the rights and privileges accruing to all members of the Compound. In the process, the learned trial Judge found the following facts proved:-
(a) IbomIsii is the highest ruling body within NdiMbila Ogbu and only open to real indigenes of the Compound, and the 1st Claimant is a member of that body;
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this fact was fortified by the document tendered as Exhibit ?E? during proceedings (page 865 of the records).
(b) The Appellants agreed that the Respondents are members of the Five Units within NdiMbila Ogbu Compound which places of abode were allocated to them by the Founder of the Compound.
(c) The various documents that the Appellants and Respondents have signed together as members of NdiMbila Ogbu, and that is to say:
(i) Exhibit ?B? ? Suit No. HOH/17/98 wherein the Appellants and the Respondents as members of NdiMbila Compound jointly sued the defendants in the case to protect the interest of NdiMbila Compound over some of the lands now in dispute (pages 851 ? 852 of the Record)
(ii) Exhibit ?CPetition sent to the Assistant Inspector General of Police by NdiMbila Ogbu Compound dated 26/5/98 (pages 853-856 of the Record) in which the 1st Appellant and the 1st Respondent among others signed for NdiMbila family of Asaga Ohafia.
(iii) Exhibit ?E? ? Document titled Report of Interim Settlement of NdiaMbila Ogbu Compound Disputes dated the 2nd day of February, 2007
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(pages 865-866 of the Record).
(iv) Exhibit ?F? ? Document from NdiMbila Ogbu Compound to all age grades in Asaga Ohafia dated 21/5/98 (pages 867-869 of the Record) in which the Appellants and the Respondents signed as representing the five units within NdiMbila Ogbu Compound.
(v) Exhibit ?G? dated 5/6/99 from NdiMbila Ogbu Compound to Rev/Dr. Uma Ukpai and two others titled ?Conclusion of Action on the Settlement of the Disputes arising from NdiMbila (Ogbu) Paternal family lands (pages 868-869 of the Record) in which the signatories including the Respondents signed for themselves and on behalf of NdiMbilaOgbu family of AsagaOhafia.
The facts of the Respondents being indigenes of NdiMbila Ogbu and their interests as co-owners of all lands owned by NdiMbila Ogbu Paternal Family or Compound are contained in paragraphs 31?35 of the Further Amended Statement of Claim (pages 173?193 especially pages 181?182 of the Record). See also pages 437?438 of the Record for the deposition of CW1 on each of the averments.
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The facts found established by the trial Court as unchallenged in paragraphs 31
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? 35 of the Further Amended Statement of claim and on which there was no cross examination can be summarized thus:-
(a) That both the Respondents and the Appellants appeared before a peace finding arbitration headed by Rev. Dr. Uma Ukpai.
(b) The arbitration resulted in the out of Court settlement of Suit Nos. CCA/UM/A/1993 and HOH/17/98, Exhibits ?A? and?B? herein respectively.
(c) The arbitration reaffirmed that all the 8 pieces of land now in dispute are the communal land of all members of NdiMbila Ogbu Compound including the Respondents.
(d) The arbitration declared as null and void all sales of the lands made without the involvement of the Respondents.
(e) That it was agreed that Ngele Obolobo and OloriNdi Ogbu lands be mapped out for residential purposes and it was Mbila Oka Ezera (2nd Appellant) who mapped out the lands.
(f) That it was agreed that the mapped out portions be sold to only sons of NdiMbila Ogbu at the rate of N3,000.00 for those resident at home and N10,000.00 for those resident outside.
(g) That the 1st Appellant was among the three persons appointed by NdiMbila Ogbu Compound
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members to function as the body to make the allocations and collect the money.
(h) That the above findings and recommendations of Rev. Dr. Uma Ukpai peace panel are contained in a document dated 1/9/98 and the document was subscribed to inter alia by:
(i) Nna AmoguKalu (late 1st defendant) and two others for Umu Amogu.
(ii) Rowland Kalu Onwuka (Present 1st Appellant) and one other, for NdiOlugu Section.
(iii) While the rest of NdiMbila Ogbu were represented as signatories to the document by Eke Oka Ezera (father of the 3rd and 4th Appellants), Ukoha Chiori (brother of the 3rd Appellant), Kalu Ezera II and OkokoOkekeObasi (1st Respondent herein).
Now, it is trite that facts not controverted or challenged and on which there is no cross examination, are deemed admitted and require no further proof. See ADESULE VS. MAYOWA & 6 ORS (2011) 13 NWLR (Pt. 1263) 135 at 170 paras E?F.
The trial Court, after reviewing the evidence of the parties held on pages 758 ? 760 as follows:-
?From the foregoing facts pleaded and led in evidence by the parties, there is no dispute to the fact that the Claimants have at all material
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time lived in NdiaMbila Ogbu compound and enjoyed the lands in dispute with the Defendants as well as joining the Defendants and other members of NdiaMbila Ogbu paternal family in fighting the various battles and challenges that have risen in respect of the compound and the lands in dispute both from outsiders and within the compound. In addition, answer the compound name and participate in family meeting.
The Defendants conceded to the foregoing fact, however, their contention is that whatever right and action taken by the Claimants in respect of the land in dispute were taken as customary tenants or strangers to the compound and were done at the pleasure of the Defendants subject to good behavior. That whatever action or role they have played at anytime to defend the land in dispute was part of their responsibility and that such action does not change their status as customary tenants or make them members of the compound or joint owners of the land in dispute.
Where as in this case the Claimants have been in the compound and enjoying the status of membership attending family meeting farming the land jointly with the Defendants, defending challenge to
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family land, the onus is on the party challenging his membership to prove the family to which such person belong. See EJILEMELE Vs. OPARA (1998) 9 NWLR (PT. 567) P. 587. It is the Defendants who are alleging the claimants are customary tenants that have to prove same, and the Claimants pay them customary tribute. See the case of DADA & ORS. Vs. BANKOLE & ORS (2008) 5 NWLR (PT. 1079) Page 26.
In effect, the onus is on the Defendants to prove their assertion. Have the Defendants proved that the Claimants are customary tenants or strangers? The Defendants in their address did submit in paragraph 4:3. That the Claimants did not deny their averment that the 1st Claimant originated and is part of NdiIbe Odwara paternal family or compound of Asaga Ohagia and that Umu Oka Ezera Kindred of the 2nd, 3rd, 4th and 5th Claimants originated from Amamiri Ihechiowa in Arochukwu L.G.A. That is not correct. That fact was denied by the Claimants in paragraph 2 of their Reply to statement of defence, where the 1st and 6th Claimants stated that they have always had their abode in Ndi Okoko section of Ndi Mbila Ogbu and that they have never lived in or been part
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of Ndi AgbogoIbe compound and that the 1st Claimant is not and has never been second in command at NdiIbe Okwara and has never held the position of head of age grade. That the Oka Ezera descendants among the Claimants did not migrate from Amamiri Ihechiowa in Arochukwu L.G.A. That they are direct and rightful descendant and successors of Ibem Mbila and Mbila Uduma.
The Claimant went further in paragraph 2 (b) of their Reply to furnish facts in support of their contention. With that Reply by the Claimants the onus is on the Defendants to prove their assertion. The Defendants did not prove that the 1st and 6th Claimants are part of NdiIbe Okwara compound. His ipse dixit is not sufficient, Exhibit ?J? tendered by the Defendants is no proof of the fact that the 1st Claimant is a member of NdiIbe Okwara compound.
It is pertinent to point out that the 1st and 6th Claimants are not claiming the headship of NdiaMbila Ogbu compound neither are they claiming to be descendants of NnaMbila Uduma. The case of Ndi Okoko represented by 1st and 6th Claimants is that their traditional place of abode in NdiMbila Ogbu was assigned to each section by Mbila Uduma the
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founder of Ndia Mbila Ogbu and 5th Claimants of Oka Ezera descendants came from Amamiri Ihechiowa in Arochuckwu L.G.A.
Moreover the 3rd Defendant who is a principal member of the compound admitted and confirmed that Oka Ezera family of the 2nd, 3rd, and 5th Claimants have their root in NdiaIbem Mbila and expressed surprised that the Defendants are saying that the 2nd, 3rd and 5th Claimants are from Amamiri in Ihechiowa. The evidence of the 3rd Defendant a member of the NdiaIbem Mbila that the 2nd, 3rd, and 5th Defendants are part of their family is unassailable and unimpeachable. His evidence is an admission of that fact.?
The learned trial Judge was on firm ground when he held on pages 763 ? 764 of the Record thus:-
?On the whole, though the Defendants tried hard to deny that the Claimants are members of Ndia Mbila Ogbu compound, however, the aforesaid documents signed by the Defendants particularly the deceased 1st Defendant and the present 1st Defendant seriously debunked the claim of the Defendants and affirmed the case of the Claimants that they are members of the compound. The law is that documentary evidence which is evidence
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of a permanent nature is a hanger on which to test the veracity of oral testimony. See FASHANU Vs. ADEKOYA (1974) ANLR VOL 1 PAGE 32.
Having regards to the forgoing, it is my view that the 1st Claimant membership if IbomIsii of Ndia Mbila Ogbu which all the parties herein agree is not open to nonmembers of the compound as well as their membership of Ezie Akpan and the aforesaid Exhibits are solid acts of membership and joint ownership and possession of the lands in dispute by the parties herein. The Defendants are hereby stopped from denying the Claimants the right that accrue to them.
Again, both DW3 and DW4 stated that in all the arbitration regarding the status of the Claimants, none had declared them non-indigenes of Ndia Mbila Ogbu. Also none of the arbitration has declared that the Claimants are not entitled to lands commonly owned by Ndia Mbila Ogbu.
Finally, the 2nd, 3rd, and 5th Claimants coming from Amamiri in Ihechiowa. Rather they stated that they are members of NdiIbemmbila of Ndia Mbila Ogbu compound. The 3rd Defendant who is member of NdiaIbem Mbila section stated that Oka Ezera family of the Claimants i.e. the 2nd, 3rd, and 5th Claimants are
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of NdiaIbem Mbila. The 3rd Defendant stated that he was surprised when the Defendants started describing them as coming from Amamiri in Ihechiowa. That piece of evidence supports the case of the claimants. When the issue is as to whether a person is a member of a family or not; It is the evidence of members of the family that is critical and determinant as against the evidence of nonmembers of NdiaIbemMbila.
It is therefore my view that the 2nd, 3rd, and 5th Claimants are members of NdiaIbemMbila section.?
The findings and evaluation of the facts by the trial Court is unassailable and cannot be disturbed by this Court. I therefore resolve this issue in favour of the Respondents and against the Appellants.
ISSUE (b) (GROUNDS 2, 3, 6 and 8)
?Whether the Learned Trial Judge was not right when he placed on the defendants the burden of proving that the Claimants are customary tenants, therefore not members of NdiMbila Ogbu Compound.?
In this case, after the Respondents had put forward their case and the facts that they and the Appellants belong to a common ancestry, the Appellants, though without filing any counter claim, put
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forward a different history that the Respondents were customary tenants to the Appellants.
Having so pleaded, the burden shifted to them to prove that the Respondents are customary tenants (see page 87 of the Record). The Appellants had the duty to prove the customary tenancy by pleading facts and producing evidence in proof thereof of the incidences of customary tenancy inter alia. For it is trite that where a party in land matters alleges that the defendant is a customary tenant such a party must plead and prove the incidences of the customary tenancy. See KANO VS. MAIKAJI (2013) ALL FWLR (Pt. 673) 1850 at 1880 para C where this Court held as follows:-
?The main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity, subject to good behavior. However, although payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because there are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognizes the position of the over lordship of
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the landlord, a customary tenancy exists, whether tribute is paid or not. This is because payment of tribute could be overlooked by the landlord as a result of kindness and charity. There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behavior of the tenant. Where there is no evidence of customary tenancy between the two parties, the question of forfeiture does not arise.?
It is therefore not enough for the Appellants to simply plead, for pleading sake, that the Respondents were customary tenants without more.
In this case, the learned trial Judge rightly held at page 760 para 2 thus:-
Moreover the 3rd Defendant who is a principal member of the compound admitted and confirmed that Oka Ezera family of the 2nd, 3rd, and 5th Claimants have their root in NdiaIbem Mbila and expressed surprise that the Defendants are saying that the 2nd, 3rd, and 5th Claimants are from Amamiri in Ihechiowa. The evidence of the 3rd Defendant a member of the NdiaIbem Mbila that the 2nd, 3rd, and 5th Defendants are part of their family is unassailable and unimpeachable. His evidence is an
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admission of that fact.
Going by the Defendants? definition of customary tenant as a person who is not from the descent of NnaMbila Uduma, the original founder of the land irrespective of the level of a person?s relationship with the landlord and the condition of grant. The 1st Defendant and other members of Ndi Olugu Section are customary tenants in that the 3rd Defendant pleaded and led evidence as to the fact and supported same with Exhibit ?M? made by the deceased 1st Defendant. Exhibit ?M? is an admission against interest by the deceased 1st Defendant who until his death was the head of NdiaMbila Ogbu Compound, the compound of the parties.?
The learned trial Judge?s analysis and analogy is apt. I agree with his conclusion on this issue. For it is manifest from the Record that the Appellants did not call any evidence in proof of any of the incidences of customary tenancy such as payment of tribute. On the contrary, there is evidence that:-
(1) The 1st Respondent was/is a member of IbomIssi (the highest Ruling body in NdiMbilaAgbu).
(2) The members of the Respondents? family occupied the
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position of Ezie Akpan, exclusive preserve of the indigenes only.
(3) The Appellants did not prove their assertion that the Respondents are customary tenants.
(4) Both parties signed Exhibits C, E, F and G, indicating that both have fought the cause of the NdiMbila Agbu Paternal Family together.
I cannot agree more with the learned trial Judge when he held at pages 761?762:-
?It must be observed that the term customary tenant has its meaning and basic incidence by which it is known without which the relationship cannot be described as customary tenancy. The main incidence of customary tenancy is the payment of tribute by the customary tenant to the overlord. See the case of ABUDU LASISI Vs. OLADAPO TUBI & ANOR (1974) 12 SC 71.
The question is; does the relationship between the Claimants and the land in dispute bore the incidence of customary tenancy? There is no evidence before the Court showing that the relationship between the parties is subject to the payment of customary tribute. Rather the facts overwhelmingly show on the contrary that the relationship between the parties is consistent with joint ownership.
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For instance, it is common ground between the parties that strangers or customary tenants cannot be made members of IbomIsii of NdiaMbila Ogbu compound. Claimants pleaded and gave evidence that the 1st Claimant is a member of IbomIsii of NdiaMbila Ogbu compound representing Ndi Okoko section. Though the Defendants tried to deny that fact. However, Exhibit ?E? is a documentary evidence of that fact, that meetings were held on the 1/2/2007 and 2/2/2007 in which members of IbomIsii of the compound were constituted, and the 1st Claimant was made one of the members. The said letter was signed by the deceased 1st Defendant, 1st Claimant and the present 3rd Defendant and other members of the compound. Furthermore, the 3rd Defendant admitted the Constitution of the IbomIsii and Exhibit ?E? and the evidence of the 3rd Defendant is an admission against interest. IbomIsii is the governing and administrative organ of the compound. It is therefore strange to assert as the Defendants have done that a person who is a member of the highest governing body in the compound is a stranger or customary tenant.
?Again, it is also conceded by the parties that non
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natives and indigenes of the compound cannot be made EzieAkpan. The claimants led evidence to the effect that Nna Oka Eme forebear of the 2nd, 3rd, and 5th Claimants and Nna Oka Ezera father of the 2nd Claimant and grandfather of the 3rd, and 5th Claimants had occupied that position. The Defendants admitted that Nna Oka Ezera was Ezie Akpan but stated that he was Ezie Akpan for want of a fit and proper native. Having admitted that he is Ezie Akpan, the onus is on the Defendants to prove that the said Nna Oka Ezera became Ezie Akpan for want of fit and proper native. Incidentally, they failed to prove same. Thus, the foregoing fact shows that the Claimants cannot be occupying the aforesaid position as customary tenants.?
I also resolve this issue in favour of the Respondents and against the Appellants.
On the whole, this appeal, being unmeritorious, fails and is hereby dismissed. The judgment of the trial Court is hereby affirmed, together with the orders made therein. The Appellants shall pay cost of N50,000.00 only to the Respondents.
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AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, Andenyangtso JCA that this appeal lacks merit and should be dismissed. Appellants had largely admitted the case of the Respondents at the lower Court, as the evidence of 3rd Respondent as well as some critical documents produced at the trial (like Exhibits A, B, C, E, F, G) have supported the claims of the Claimants, as being part of the Ndi Mbila (Agbu) paternal family of Asaga Ohafia, entitled to enjoy all the benefits which accrued to the said family.
Appellants had alleged that Respondents were strangers and customary tenants, thus had the duty to prove the allegation. Appellant, who resorted to labeling the Respondents as Customary tenants (even when they (Appellants) asserted no claim in the Suit) were bound to establish such wishful thinking/speculation, meant to alienate the claimants and deny them of their ancestral rights. The law is that he who asserts must prove. Iheanacho Vs Iheanacho (2018) LPELR ? 44124 CA; Dasuki Vs FRN & Ors (2018) LPELR – 43897 (SC); Section 131(1) of the Evidence Act, 2011.
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?I too dismiss the Appeal and abide by the consequential orders in the lead judgment.
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Appearances:
Udo Uduma, Esq.For Appellant(s)
Anaga Kalu Anaga, Esq.For Respondent(s)
Appearances
Udo Uduma, Esq.For Appellant
AND
Anaga Kalu Anaga, Esq.For Respondent
