ABECHI & ORS v. INC TRUSTEES OF OCHEFU FOUNDATION (2020)

ABECHI & ORS v. INC TRUSTEES OF OCHEFU FOUNDATION

(2020)LCN/14398(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/MK/196/2014

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

SUNDAY ABECHI 2. AJEI OOKWO 3. OCHENI ECHEBIOGO 4. OKANKPO OKOPI 5. SUNDAY OKOCHI (For Themselves And On Behalf Of Ondo Clan Of Ogabia Ugboju, Otukpo LGA Benue State) APPELANT(S)

And

INCORPORATED TRUSTEES OF OCHEFU FOUNDATION (For Themselves And On Behalf Of Ochefu Family Of Ogobia Ugboju, Otukpo LGA Benue State) RESPONDENT(S)

RATIO

DEFINITION OF THE TERM “LOCUS STANDI”

The term “locus standi” denotes the legal capacity of a person to institute proceedings in a Court of law and it is used interchangeably with terms like “standing” or ‘title to sue”. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law. See Adefulu V Oyesile (1989) 5 NWLR (Pt.122) 377, Ladejobi V Oguntayo (2004) 18 NWLR (Pt. 904) 149 and Owodunni V Registered Trustees of CCC (2000) 10 NWLR (Pt. 678)315.
The onus is on the plaintiff to prove his standing if it is called in question and he must show that his civil right and obligation have been violated or are in danger of being violated or adversely affected by the act complained of. The statement of claim must disclose a cause of action vested in the plaintiff. The test to be applied are; (1) that the action must be justiceable. (2) there must be a dispute between the parties. See Adesanya V President of Federal Republic of Nigeria (1981) 2 NCLR 358 and Attorney of Cross-River State V Federal Republic of Nigeria (2019) 16 NWLR (Pt. 1681) 401. PER EKANEM, J.C.A.

WHETHER OR NOT THE ONUS IS ON THE PLAINTIFF TO ESTABLISH HIS TITLE ON THE STRENGTH OF HIS OWN CASE IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land, as in this instance, the onus is on the plaintiff to establish his title on the strength of his own case and not on the weakness of the defendant’s case. The plaintiff is however entitled to take advantage of any aspect of the defendant’s case which tends to support his case. The onus on the plaintiff does not shift until plaintiff completely and successfully discharges the onus on him. SeeKodilinye V Odu (1936) 2 WACA 337, Dim V Enemuo (2009) 10 NWLR (Pt. 1149) 353 and Salisu V Mobolaji (2016) 15 NWLR (Pt. 1535) 242.

There are five ways of proving title to land in Nigeria, namely;
(i) by traditional evidence;
(ii) by production of documents of title duly authenticated;
(iii) by acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference that the person is the true owner thereof;
(iv) by acts of long possession and enjoyment of the land which may be prima facie evidence of ownership of the particular parcel of land; and
(v) by proof of possession of connected or adjacent land in circumstances rendering it possible or probable that the owner of such connected land would in addition be the owner of the land in dispute. See Idundun V Okumagba (1976) 9 – 10 SC 227, Piaro V Tenalo (1976) 12 SC31 and Salisu V Mobolaji supra. PER EKANEM, J.C.A.

FACTORS TO PROVE TRADITIONAL HISTORY OF TITLE TO LAND

DEFINITION OF THE TERM “CUSTOMARY ARBITRATION”

Customary arbitration is one of the modes of settlement of disputes recognized by the law of Nigeria. A decision by a customary arbitral panel may operate as estoppel if:
(a) the parties voluntarily submitted their dispute to the native arbitration panel for determination;
(b) it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted as final and binding;
(c) the said arbitration was in accordance with the customs of the parties or their trade or business;
(d) the arbitrators reached a decision; and
(e) the decision or award was accepted at the time it was made. See Agu V Ikewibe (1991) 3 NWLR (Pt. 180) 385, 408 and Okala V Udah (2019) 9 NWLR (Pt. 1678) 562, 576. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Benue State, Makurdi Judicial Division (the trial Court) delivered on 20/5/2014 in suit No. GHC/74/2010, by A.K. Baaki, J. In the judgment, the trial Court found in favour of the respondent and granted the reliefs sought by her, awarding damages of N1,000,000.00 against the appellants for trespass. The appellants aggrieved by the decision filed a notice of appeal against the same to this Court. The notice of appeal was amended by the order of this Court.

The facts of the case leading to this appeal are that the respondent (as plaintiff) obtained leave of the trial Court to sue for herself and on behalf of the Ochefu family of Ogobia, Ugboju, Otukpo Local Government Area of Benue State. The suit was against the appellants. The respondent claimed that the 2 parcels of land known as plots I and 71, Ogobia Ugboju covered by Otukpo Local Government Area Certificates of Occupancy No. 2961 and No. 1680 are owned by the Ochefu family. The said family incorporated the respondent in 2004 and transferred title and ownership of the land to the

respondent for the benefit of the family.

The respondent averred that the founder of their family, Ochefu Ujo founded the land in dispute by settlement thereon and that their family have been on the land for over 50 years exercising various acts of possession and ownership thereon without challenge; that the appellants trespassed on the land and destroyed many economic trees. The respondent therefore sued the appellants for declaratory, injunctive and monetary reliefs.

The appellants, on the other hand, claimed that their family own a large parcel of land of which the two parcels of land in dispute are part; that their family gave the land to Ochefu Ujo to live and farm on and that the respondent surreptitiously got purported Certificates of Occupancy on the land as a means of arrogating ownership of the land to the Ochefu family. The respondents therefore counter-claimed for declaratory, injunctive and monetary reliefs.

At the end of trial in which 3 witnesses testified for the respondent and tendered 6 exhibits while 6 witnesses testified for the appellants, the trial Court granted the claim of the respondent and dismissed the counter-claim of

the appellants.

At the hearing of the appeal on 17/3/2020, J.I. Ekeoma, Esq. for appellants adopted and relied on appellants’ brief of argument which was filed on 4/10/2016 but was deemed duly filed on 6/3/2017 as well as the reply brief filed on 18/4/2019 but deemed duly filed on 22/5/2019 in urging the Court to allow the appeal. D.M. Tsevende, Esq. for the respondent adopted and relied on respondent’s brief of argument which was filed on 4/3/2019 but was deemed duly filed on 5/3/2019 in urging the Court to dismiss the appeal.

In the appellants’ brief of argument, three issues are formulated for the determination of the appeal. The issues are:
“(1) Whether the lower Court had jurisdiction to entertain the suit. Ground 1 of the Amended Grounds of Appeal.
(2) Whether looking at all the circumstances of this case the respondent is entitled to a declaration of title to the land, the subject matter of this appeal. Grounds 2, 4 and 5 of the Amended Grounds of Appeal.
(3) Whether the Learned trial Judge was right when he held that exhibit E was an arbitration decision which was binding on appellants. Grounds 3 of the

Amended Grounds of Appeal”.

On the other hand, the respondent presented the following issues for the determination of the appeal:
“i. Whether the respondent as plaintiff in the Court below had the requisite locus standi to institute the action thereby clothing the Court below with jurisdiction to entertain same.(Distilled from Ground 1 of the emended notice and grounds of appeal).
ii. Whether the Court below properly evaluated the evidence before him to come to the conclusion that the respondent is the valid owner of the land in dispute. (Distilled from grounds 2, 4 and 5 of the amended notice and grounds of appeal).
iii. Whether Exhibit E constituted an arbitration decision binding on the appellants. (Distilled from Ground 3 of the amended notice and grounds of appeal)”.

The two sets of issues formulated by counsel on both sides are in substance the same. I shall therefore adopt the issues formulated by appellants’ counsel for the purpose of determining the appeal.

Issue 1
Appellants’ counsel stated that the respondent enjoys corporate personality by reason of its incorporation evidenced in its

certificate of incorporation, Exhibit (1). He noted that the suit was brought on behalf of the Ochefu family but that the said family is different from the respondent. Counsel observed that though the respondent is said to be holder of legal title over the two pieces of land but that the certificates of occupancy – Exhibit A, B and C – were issued in the names of Ochefu Memorial Academy, Musa Ochefu and Col. A.A. Ochefu. He contended that there is no document evidencing assignment or transfer of the land to the respondent and therefore she has no link with the land. Citing the case of Oloriode V Oyebi (1984) 1 SCNLR 390, he submitted that the fact that the trustees of the respondent are members of the Ochefu family and vice versa does not entitle the respondent to sue when there is no link between her and the land in dispute.

It was his argument that the fact that the suit was initiated in a representative capacity is not enough to clothe the respondent with authority to sue as there must be a link between the respondent and the land, and there must also be common interest shared by the respondent and those she seeks to represent. He

emphasized that the respondent has not shown what interest it has in the land which she stated clearly remains the property of Musa Ochefu and Col. A.A. Ochefu. He urged the Court to strike out the suit for absence of locus standi of the respondent.

Respondent’s counsel submitted that in determining locus standi, recourse must be had only to the statement of claim. He further submitted that by virtue of paragraphs 1 and 5 thereof and the entire process, the respondent had shown interest in the land. He stressed that evidence to be adduced at the trial does not come into play when locus standi is in question. Thus, he argued, the argument of the appellants that there was no evidence of transfer of the land to the respondent was unfounded. Counsel posited that the common interest that the respondent shares with the Ochefu family is that the former was incorporated for the development of the latter. He referred to Section 596 (2) of the Companies and Allied Matters Act, and submitted that the properties of trustees vest in the corporate body upon her incorporation and so there was no need for evidence of transfer of title.

Appellants’ counsel in his reply submitted that Section 596 (2) of the CAMA is inapplicable to this matter as the respondent had failed to show documents of transfer of title to her and also as the provision does not vest title of properties belonging to individuals in incorporated trustees.

Resolution
The term “locus standi” denotes the legal capacity of a person to institute proceedings in a Court of law and it is used interchangeably with terms like “standing” or ‘title to sue”. It is the right or competence to initiate proceedings in a Court of law for redress or assertion of a right enforceable at law. See Adefulu V Oyesile (1989) 5 NWLR (Pt.122) 377, Ladejobi V Oguntayo (2004) 18 NWLR (Pt. 904) 149 and Owodunni V Registered Trustees of CCC (2000) 10 NWLR (Pt. 678)315.
The onus is on the plaintiff to prove his standing if it is called in question and he must show that his civil right and obligation have been violated or are in danger of being violated or adversely affected by the act complained of. The statement of claim must disclose a cause of action vested in the plaintiff. The test to be applied are; (1) that the

action must be justiceable. (2) there must be a dispute between the parties. See Adesanya V President of Federal Republic of Nigeria (1981) 2 NCLR 358 and Attorney of Cross-River State V Federal Republic of Nigeria (2019) 16 NWLR (Pt. 1681) 401.

In land matters as in this instance, where a plaintiff has no legal interest in the land, he lacks standing. See Ayorinde V Kuforiji (2007) 4 NWLR (Pt. 1024) 341.

I have already stated that in determining locus standi, it is the statement of claim that is to be considered, I therefore set out hereunder, the relevant paragraphs of the amended statement of claim, Viz; paragraphs 1, 4, 5 (a) (b), (c) (d), k (1) and 7.
”1. The plaintiff is a Corporate entity duly registered under the Companies and Allied Matters Act, with its office in Otukpo within jurisdiction, and at all material times the holder of legal title to 2 pieces of land lying and situate at Ogobia, Otukpo Local Government Area, covered by Otukpo Local Government Area Certificate of Occupancy No. 2961 otherwise known as Plot No. 1 Ogobia, Ugboju, Otukpo Local Government Area and Plot No. 71, Ogobia Ugboju covered by Otukpo Local Government

Certificate of Occupancy No. 1680. The Certificate of Incorporation of the plaintiff as well as the Otukpo Local Government Certificate of Occupancy No. 2961 and the Otukpo Local Government Certificate of Occupancy No. 1680 are hereby pleaded and shall be relied upon at the trial….
4. Plaintiff avers that the Ochefu family has since 1955, exercised maximum acts of ownership and control of the land without challenge or molestation from anybody whatsoever, and currently has farms, economic trees and buildings on the lands….
5. Plaintiff avers that in 1977, Col. A.A. Ochef obtained an Idoma Local Administration Certificate of Occupancy over the said piece of land. Plaintiff further avers that:
a. The Certificate of Occupancy aforesaid was subsequently converted to an Otukpo L.G. Certificate of Occupancy as afore pleaded.
b. in 1980 Musa Ochefu obtained an Otukpo Local Government Certificate of Occupancy over Plot No. 71 Ogobia Ugboju for residential purposes. The said Plot already had buildings on it at the time the Certificate of Occupancy was issued.
c. The Ochefu family incorporated the plaintiff in 2004 and

transferred titles and ownership of the lands aforesaid to the plaintiff for the benefit of the Ochefu family.
d. On 17/2/2004, the defendants’ clan attached (sic) and destroyed an Ochefu family building on Plot No. 71 Ogobia Ugboju and the matter was reported to the Police who, made a number of arrests, but following the intervention of Ugboju Community elders, the matter was withdrawn from the Police….
f. Inspite of the undertaking aforesaid, the defendants, on 30/7/2005, numbering over 300 (Three Hundred) youths and elders and armed with guns, matches and power saws, descended on the plaintiff’s land/estate at Ogobia and destroyed farm lands and orchards on over 10 (ten) hectares of land worth over N5,000,000 (Five Million Naira) only….
k. The family of Ochefu, trustees/cestuique trust of the plaintiff, have been in unchallenged and unbroken possession of the land since 1955, and have been law abiding and contributing its own quota to the development of the community.
l. The dispute engendered by the defendants’ community has reared its ugly head only in the last 5 years, when the defendants started

disputing ownership of the lands with Ochefu family, from whom plaintiff derived her title and for whose benefit the plaintiff holds the lands in trust….
7. The plaintiff shall at the trial also contend that the defendants community never had title to the plaintiff’s land and that even if they had, not conceding, having allowed the plaintiff’s family to settle on the disputed land of their own accord for over 50 years, to obtain statutory documents of title over same and to exercise various acts of exclusive possession and ownership of same, without challenge or molestation from them, cannot now suddenly dredge up a claim to the land, particularly when they have never done so in the past, and seek to chase the plaintiff’s family off plaintiff’s land”.

From the foregoing, the following facts emerge:
1. The respondent claims to be holder of title to the two pieces of land in dispute.
2. The Ochefu family has since 1955 exercised acts of ownership and control over the land, and currently has farms, economic trees and buildings thereon.
3. In 1977, Co. A.A. Ochefu obtained an Idoma Local Administration

Certificate of Occupancy over a piece of the land which was subsequently converted to an Otukpo Local Government Certificate of Occupancy.
4. In 1980, Musa Ochefu obtained an Otukpo Local Government Certificate of Occupancy over a piece of the land in dispute.
5. The Ochefu family incorporated the respondent in 2004 and transferred title/ownership of the land to the respondent for the benefit of the Ochefu family.
6. The appellants trespassed on the land in 2004 and 2005.

In sum in her amended statement of claim, the respondent avers that the Ochefu family is the owner of the land in dispute though Col. Ochefu and Musa Ochefu obtained Certificates of Occupancy over the land; and that upon incorporation of the respondent, the Ochefu family transferred its title/ownership of the land to the respondent to hold for the benefit of the family.

In the case of Ajayi V Adebiyi (2012) 11 NWLR (Pt. 1310) 137, 176 and Barbus & Co. Nig Ltd V Okafor – Udeji (2018) 11 NWLR (Pt. 1630) 298, 311 it was held that the Court ought to adopt a liberal approach in applying the test of locus standi which I have already mentioned.

Though questions may be raised as to the effect of the Certificates of Occupancy granted to Col. Ochefu and Musa Ochefu, that would be going into the merits of the case of the respondent which does not arise when the issue of locus standi takes the centre stage. When looked at liberally, the facts in the amended statement of claim disclose legal interest of the respondent and a dispute as to ownership and trespass between the respondent and appellants. It is true as argued by appellants’ counsel that the respondent is different from the Ochefu family, yet it is the respondent’s case that the family transferred title/ownership of the land to the respondent in 2004 for the benefit of the family. There is therefore sufficient interest in the land on the part of the respondent to ground its standing and also a common interest, grievance and shared interest in the reliefs to ground a representative action.

Counsel for appellants argued stridently and repeatedly that there is no document tendered in evidence before the lower Court to show transfer of title or interest in the land to the respondent by the Ochefu family. The answer is that locus standi is determined

by looking at the statement of claim only and not evidence led subsequently. See Owodunni V Registered Trustees of CCC supra. 357, Accord Party V Governor of Kwara State (2011) All FWLR (Pt. 555) 220, 283 and Inakoju V Adeleke (2007) 4 NWLR (Pt. 1025) 427, 602 where the Supreme Court stated:
“The question as to the competence of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led.”

I therefore enter an affirmative answer to issue 1 and resolve it against the appellants.

Issue 2
Appellants’ counsel submitted that in a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence and that the onus on the plaintiff does not shift. He set out the established five ways of proving title to land in Nigeria as postulated in Idundun V Okumagba (1976) 9-10 SC 227 among other cases. He posited that the respondent’s case was based on (i) production of document of title (ii) traditional evidence and (iii) long possession. He treated them one after the other as follows:

(i) Production of document of title:
Counsel adopted his argument on issue 1 as it relates to exhibits A, B and C. He re-stated that since those documents belong to persons who have different legal personalities from the respondent, she cannot depend on the documents to prove title to the land especially as there is no evidence of transfer or assignment to her. Nothing he emphasized linked the respondent with the three grantees of the certificate of occupancy (exhibits A, B and C). He again submitted that there was no evidence that the respondent was acting on behalf of the Ochefu family in respect of the land in dispute and that the fact that Col. Ochefu and Musa Ochefu are members of the Ochefu family is not enough to entitle the respondent to meddle into land belonging to individual members of the family.

Counsel asserted that by paragraph 3 (c) and (d) of the defence to counter-claim, the respondent pleaded that the land in dispute belongs to Ilaba Community. He also referred to exhibit E (the record of proceeding of a panel set up to settle a land matter between Ilaba and appellants’ community). He noted that the Ochefu family was not party

to exhibit E. It was his submission that having admitted that the land belongs to Ilaba Community, the respondent had no right to seek for a declaration over the same land. It was further contended that exhibit E shows that part of the land was awarded to the appellants and so the respondent had to show how Ilaba community and the appellants divested themselves of their titles, which she failed to do.

Traditional history
Counsel set out the three requirements of traditional history. After referring to some portions of the pleadings of the respondent, he contended that there was nothing to show how Ochefu Ujo founded the land, from where he moved to the land and how the land devolved down to the respondent. He submitted that the pleadings of the respondent fell far below what is required to prove title by traditional history.

Long possession
Counsel noted that whatever acts of possession the respondent claims over the land has its roots in its plea that the land was founded by Ochefu Ujo who settled on the land and founded it. The result, he stated, is that the root of title upon which the acts of possession were based is faulty as the

respondent failed to prove how the land devolved from Ochefu Ujo down to her. He submitted that where a party bases his title on traditional evidence which fails, any evidence of long possession built on the traditional evidence must fail since it is without foundation.

He submitted that possession only raises a presumption of ownership and cannot defeat the title of a true owner. Again, he submitted that long possession can only be used to defeat a claim for title and trespass, and not to establish a claim for declaration of title.

Counsel contended that declaration of title cannot be based on admission and therefore the trial Court was wrong in holding that the appellants having admitted that the respondent had been on the land for about 50 years, they cannot now contend otherwise. He submitted that a plaintiff must succeed on the strength of his case. It was his position that the trial Court failed in its primary duty of evaluating evidence leading to a miscarriage of justice. He therefore urged the Court to set aside the findings of the lower Court and make its own finding.

For the respondent, it was argued that the respondent established its

title to the land in dispute by adducing credible evidence. Counsel for respondent submitted that the respondent established its title in four of the five ways of proving title, to wit; production of documents of title, traditional history; act of ownership and long possession. In the same manner as appellants’ counsel, he dealt with the four ways as follows:
Production of Documents of Title:
Counsel referred to exhibits A, B and C and submitted that the respondent is at all material times the holder of the legal title of the land covered by those documents. He further submitted that there was enough evidence to show a nexus between the respondent and the documents. He stated that the fact that Musa Ochefu and Col. A.A. Ochefu are members of Ochefu family as well as trustees of the respondent is not in dispute. He added that title to the land covered by the certificate was transferred to the respondent.

He posited that the pleadings of the respondent do not in any way suggest that the disputed land belongs to the Ilaba community but that they rather show that the land is essentially located in Ilaba community. What is more, he added, the

appellant who are not members of Ilaba community cannot benefit from such an admission, which he denied.

Traditional History
Counsel argued that the respondent led evidence through PW3 to satisfy the requirements of traditional history. He stated that the trial Court found that the claim of the appellants that their family gave the land to Ochefu Ujo was not established and that the finding has not been challenged on appeal.

Acts of Ownership and Long Possession
Counsel stated that the respondent proved acts of ownership and long possession over the land in dispute through PW3 as well as the admission of DW5 and DW6. He urged the Court not to interfere with the finding of the trial Court in that regard as it has not been shown to be perverse. Counsel submitted that long possession is one of the recognized ways of proving title and that the appellants have failed to show that they are true owners of the land in dispute.

The reply of the appellants is essentially a rehash or prettification of their arguments in the appellants’ brief of argument. I shall therefore discountenance the same.

Resolution
In a claim for declaration of title to land, as in this instance, the onus is on the plaintiff to establish his title on the strength of his own case and not on the weakness of the defendant’s case. The plaintiff is however entitled to take advantage of any aspect of the defendant’s case which tends to support his case. The onus on the plaintiff does not shift until plaintiff completely and successfully discharges the onus on him. SeeKodilinye V Odu (1936) 2 WACA 337, Dim V Enemuo (2009) 10 NWLR (Pt. 1149) 353 and Salisu V Mobolaji (2016) 15 NWLR (Pt. 1535) 242.

owner of such connected land would in addition be the owner of the land in dispute. See Idundun V Okumagba (1976) 9 – 10 SC 227, Piaro V Tenalo (1976) 12 SC31 and Salisu V Mobolaji supra.

Counsel on both sides seem to agree that the respondent’s claim for title is based on production of documents of title, traditional history acts of ownership and long possession. I shall start by looking at documents of title.

Documents of title
Where a party founds his claim for title on production of documents of title, the Court is to ask the following questions:
(i) Is the document genuine?;
(ii) Is it duly executed, stamped and registered?;
(iii) Had the grantor the authority and capacity to make the grant?;
(iv) Had the grantor what he purported to grant?;
(v) Had the document the effect claimed by the holder? See Dabo V Abdullahi (2005) 7 NWLR 9Pt. 923) 181 and Ayorinde V Kuforiji (2007) 4 NWLR (Pt. 1034) 341.

The contention of counsel on both sides seems to orbit around the fourth question. Exhibit A is the Otukpo Local Government certificate of occupancy No 02961 (with Site Plan) issued in favour of Ochefu

Memorial Academy; Exhibit B is the Otukpo Local Government Authority certificate of occupancy No. 1680 of 1980 issued in favour of Musa Ochefu while Exhibit C is the Idoma Local Government certificate of occupancy dated 16/5/1977 issued in favour of Col. A.A. Ochefu. They were not issued in favour of the Ochefu family or the respondent.

It was contended by the respondent’s counsel that Musa Ochefu and Col. A.A. Ochefu are members of Ochefu family. That fact was not pleaded by the respondent and no evidence was of course led on it. It therefore does not lie in his mouth to so assert.

In Madu V Madu (2008) 6 NWLR (Pt. 1083) 296, 319, it was held that the presumption that arises from the issuance of a certificate of occupancy to a person is that the holder is the owner in exclusive possession of the land the subject of the grant and that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is rebuttable because if it is shown that another person had a better title to the land before the issuance of the certificate, the certificate of occupancy will stand revoked. See also

Kolo v. Lawan (2018) 13 NWLR (Pt. 1637) 495, 516.

There is no evidence of the transfer or assignment of the interest of the grantees of the right of occupancy to the respondent by those grantees. Therefore exhibits A, B and C cannot be relied upon by the respondent to prove title to the land covered by those certificates.

Traditional history
Where a plaintiff relies on traditional history to prove title to land, he is required to plead and proof:
(i) who founded the land;
(ii) how the land was founded; and
(iii) the particulars of the intervening owners through whom the claimant founds his claim. See Akinloye V Eyiyola (1967) SCNLR 19, Piaro V Tenalo supra and Salisu V Mobolaji supra.
I must at this point state that the pleadings of the respondent as to her traditional history is not organized, sequential and systematic. The averments thereon are scattered all over her pleadings. However, the law enjoins that I read the pleadings as a whole. See Fubara V Minimah (2003) 112 LRCN 2182, 2208. The averments of the respondent as to traditional history are set in paragraph 4 of the amended statement of claim as well as paragraphs 2(c)(e)

(not d as stated) and 7 of the reply to statement of defence and defence to counter – claim.
The combined effect of the averment is as follows:
(i) that the eponymous founder of Ochefu family (Ochefu Ujo) founded the land in 1955 and settled thereon;
(ii) that the said family has been exercising acts of ownership thereon since then without let or hindrance.
Appellants’ counsel acknowledged No. 1 above at page 20 par. 47 of his brief of argument when he argued in part that;
“… Whatever acts of possession the respondent claims over the land have its root to its plea that it was its forebear Ochefu Ujo who settled on the land and founded it”.
The respondent led evidence through the PW3 on the founding of the land by Ochefu Ujo by first settlement thereon. He was not cross – examined on this point. However, appellants’ counsel contended that the respondent failed to plead and lead evidence on intervening owners through whom it founds its claim. It must be remembered that the case of the respondent is that the land is communally owned. In other words, the land devolved on the descendants or

children of Ochefu Ujo. In that circumstance, the respondent was not obliged to plead particulars of successive owners. In Salisu V Mobolaji supra. 276 Ogunbiyi, JSC, held as follows:
“As rightly submitted by the learned counsel for the respondents herein, his clients are not obliged to plead a narration of the genealogical tree from the original owner down to the respondents. Consequently, the rule which makes it mandatory on a party to plead successive persons to whom the land devolve before he could prove ownership by traditional history will not apply. This is premised on the fact that the land did not devolve on successive persons but remains as a communal land”.

It is noteworthy that PW3, Musa Ochefu, (the grantee of the right of Occupancy evidenced in exhibit B) testified that title in the land in dispute lies in the Ochefu family and that the same had been transferred to the respondent who sued not only on its behalf but also on behalf of the Ochefu family. It is therefore my view that the respondent led sufficient evidence to set up a prima facie case based on traditional evidence.
Even though the burden of proof is on a

plaintiff who seeks declaration of title to land, yet Section 133(2) of the Evidence Act provides that if the party upon whom the burden of proof lies adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced. The appellants were therefore required to lead evidence to show that judgment should not be given in favour of the respondent. Such evidence must be on facts pleaded.

The appellants did not plead traditional history. They only pleaded that the founder of Ochefu family was given the two pieces of land in dispute to settle on and farm by the elders of their clan. In other words, the appellants did not plead traditional history to counter the traditional history of the respondent. In Amayo V Erinmwingbovo (2006) 11 NWLR (Pt. 992) 669, 682, it was held that traditional history uncontradicted can support a claim for declaration of title. InAkanbi V Salawu (2003) 13 NWLR 9Pt. 838) 637, 649 – 650, it was held that traditional history may succeed on its merit either standing alone when there is no

competing story or where such story breaks down. See also Ogun V Akinyelu (2004) 18 NWLR (Pt. 905) 362, 386.
The traditional history of the respondent had no competing traditional history from the appellants and so it was bound to succeed. The averment of the appellants that the elders of their community gave the land to Ochefu Ujo was not proved. The trial Court found this to be so and there is no ground which challenges the finding and so it stands.

It is not correct, as stated by appellants’ counsel, that the respondent pleaded in paragraph 3(c) and (d) of the defence to the counter – claim that the land belongs to Ilabe community. I think I should set out the averments and I do so hereunder:
“c. If any community could lay claim to the land in dispute as being situate in their community, is Ilaba community. But the Ilaba community is aware that Ochefu Ujo was an early settler on the land and that the land was not given to Ochefu Ujo by Ilaba community or anybody as Ochefu Ujo founded the land in dispute.
d. The entire OGOBIA 2 is essentially Ilaba land. Ilaba ancestral shrine known as called OPIEBETA is also located in

OGOBIA”.

I agree with respondent’s counsel that the averments show that the land dispute is situate in Ilaba community though Ochefu Ujo settled earlier in the land in dispute.
It was the submission of appellants’ counsel that by exhibit E pleaded and tendered by the respondent, part of the land in dispute belongs to Ilaba community and so the respondent cannot claim title to the land. The answer to this submission is that a defendant does not provide an answer to the claim of a plaintiff suing in trespass by pleading that title to the land is in another person. See Ricketts V Hassan (2002) 2 NWLR (Pt. 750) 94, 112. In any event, such a position was not the case of the appellants and so it holds no water. It was not also their plea that a part of the land in dispute was awarded to them in an arbitral proceedings. The Ochefu family was not a party to exhibit E and so cannot be bound by the arbitral award therein.

I now return to exhibits A, B and C. They were no doubt issued in the favour of Ochefu Memorial Academy, Musa Ochefu and Col. A.A. Ochefu. I have already stated the rebuttable presumption that arises from a grant of a

statutory right of occupancy as was held in Madu V Madu supra. Though there is no dispute between respondent and Musa Ochefu and Col. A.A. Ochefu family, yet evidence on record shows title to the land to be in the Ochefu family. Indeed, Musa Ochefu (as PW3) testified to that effect. The result is that exhibits A, B and C are not evidence of title in the grantees but at best evidence of possession or occupation. It is in this light that the holding of the Court in Edebiri V Daniel (2009) 8 NWLR (Pt. 1142) 15, 27 – 28 applies that a certificate of occupancy raises a presumption that the holder has a right of occupancy and possession, and has nothing to do with title.

Having proved title by traditional history, the Ochefu family as represented by the respondents, was entitled to the declaratory relief sought without even the need to consider acts of ownership and long possession which were aplenty in respondent’s favour. See Runsewe V Odutola (1996) 3 SCNJ 33, 40 and 41.

The appellants admitted respondent’s possession of the land but pleaded that their family gave the land to Ochefu Ujo to build and farm on. The trial Court found at

page 194 of the record that there was no evidence of such grant. Furthermore, the claim of the appellants that Ochefu Ujo and his younger brother apologized for their son planting melina trees on the land was not proved. This is because Ogo Angeluwa whom they said was the sole surviving witness of the incident was not called to testify. Evidence of any other witness on the alleged incident amounted to hearsay which is not acceptable to prove the incident.

It was admitted by the appellants that the Ochefu family has been on the land for 50 years. Indeed, there was abundant evidence from witnesses on both sides including DW5 and DW6 that the said family has buildings on the land apart from farming thereon, including planting economic trees. In Onye-maechi V Nwaohamuo (1992) 9 NWLR (Pt. 265) 372, 382 and 383, it was held that 50 years’ possession raises a rebuttable presumption of ownership and shifts the burden to the opponent to prove their title. Section 143 of the Evidence Act provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the

person who affirms that he is not the owner. The appellants did not discharge that burden.

It is correct as argued by appellant’s counsel that there is no prescriptive title under customary tenure. However this applies where possession is sought to be used against the true owner. The appellants have not shown that they are owners or true owners of the land in dispute. So the argument of their counsel on this point comes to naught.
The trial Court therefore rightly found in favour of the respondent.
I therefore enter an affirmative answer to issue 2 and resolve it against the appellants.

Issue 3
Appellant’s counsel submitted that, contrary to the finding of the trial Court, Exhibit E was not an arbitration decision, customary or otherwise. He stated that it was not clear from the document who appointed the panel, the circumstances of the appointment and whether both communities agreed to submit to its decision. He stated that Exhibit E was between Ilaba and Ondo communities and that the Ochefu family was not a party to it. Thus, he argued, the respondent could not derive any benefit from it. It was his further argument that

for Exhibit E to constitute estoppel, the parties, subject matter and issues must be the same, which is not so in this instance.

For the respondent, it was submitted by their counsel that Exhibit E constitutes a valid arbitration which is binding on the appellants. He added that the document shows that both Ilaba and Ondo communities submitted themselves to the arbitration panel. He set out the elements of a binding native arbitration and submitted in essence that Exhibit E satisfied those conditions.
Appellant’s reply again is an attempt to re-argue the points in their brief. I therefore discountenance the same.

Resolution
Customary arbitration is one of the modes of settlement of disputes recognized by the law of Nigeria.

A decision by a customary arbitral panel may operate as estoppel if:
(a) the parties voluntarily submitted their dispute to the native arbitration panel for determination;
(b) it was agreed by the parties either expressly or by implication that the decision of the arbitration would be accepted as final and binding;
(c) the said arbitration was in accordance with the customs of the parties or their

trade or business;
(d) the arbitrators reached a decision; and
(e) the decision or award was accepted at the time it was made. See Agu V Ikewibe (1991) 3 NWLR (Pt. 180) 385, 408 and Okala V Udah (2019) 9 NWLR (Pt. 1678) 562, 576.
The trial Court found at page 197 of the record of appeal that the appellants submitted themselves to the arbitration in exhibit E and are restrained from backing out. In other words, the trial Court found that exhibit E operated as estoppel against the appellants. For estoppel per rem judicatam or issue estoppel to apply, one of the conditions is that the parties (or their privies) must be the same in the present case as well as in the previous one. See Alashe V Ilu (1965) NMLR 66, Ikpang V Edoho (1978) 6-7 SC 22, Udo V Obot (1989) 1 NWLR (Pt. 95) 59 and Olufeagba V Abdul – Raheem (2010) All FWLR (Pt. 512) 1033.
The proceeding in exhibit E was between Ilaba and Ondo (appellants’) communities. The Ochefu family was not a party to the proceeding. The trial Court stated at page 197 of the record thus:
“While it is concede (sic) that the Ochefu family was no party to the arbitration…”

Having found that the Ochefu family was not a party to the proceeding in Exhibit E, the trial Court was wrong to have proceeded to hold that the arbitral award was binding on the appellants and to hold on that basis that the land on the right side of the Adoka – Otukpo Road where the land in dispute is situate does not belong to the appellants. The issue of bindingness of exhibit E on the appellants can only be raised, considered and determined in a case where both the appellants and Ilaba communities (the other party thereto) are parties or some of the parties. To hold otherwise is to determine a matter that involves the interest of a party (Ilaba community) in its absence, for it was possible for the trial Court to have held that exhibit E was not binding on the appellants; that would have been done in the absence of Ilaba community whose interest would have been adversely affected by such a decision reached in its absence.

Consequent upon the foregoing, I enter a negative answer to issue 3 and resolve it in favour of the appellants.
On the whole and in the light of my resolution of issues 1 and 2, I come to the

conclusion that the appeal lacks merit and it fails. I accordingly dismiss the appeal and affirm the judgment of the trial Court.
I assess the costs of this appeal at N200,000.00 in favour of the respondent and against the appellants.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the decision rendered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions reached in the Lead Judgment.

It is the position of law that the parties who gave their consent to the submission of the dispute to the Elders or Traditional Arbitrators without any express reservation of a right to resile, and that there is certainly no right to resile after the award is made. It is for the appellant to satisfy the Court that a right so contrary to the basic concept of arbitration is recognized by native customary law. See Opanin Asong Kwasi & Ors. vs. Joseph Richard Larbi (1952) 13 WACA 76 per Lord Normand at page 80. In Aguocho vs. Ubiji (1975) 5 ECSLR 221 per Aniagolu, J., (as he then was) at page 224 reasoned as follows: “…where the parties have voluntarily submitted their case to an arbitration of their own

choice, pledging themselves beforehand to be bound by their findings, unless some fundamental error was committed by them in their proceedings or that their decision is otherwise unsupportable on some valid ground, the parties would be bound by the decision and a party would not be allowed to scuttle out of it merely by reason that it did not favour him. It is worse where the decision has been accepted by the party only for him to later seek to jettison it.”

For these reasons and the fuller reasons in the lead judgment, I also find no merit in this Appeal and I hereby dismiss it and affirm the decision of the trial Court.
I also abide by the Order(s) as to costs of this Appeal.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been dismissed. The resolution of the issues arising for determination have been fully considered and resolved, and, I adopt same as mine.

I therefore also dismiss this appeal and abide by the orders made in the lead Judgment, including the order as to costs.

Appearances:

J.I. Ekeoma, Esq. For Appellant(s)

D.M. Tsevende, Esq. For Respondent(s)