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AGU & ORS v. AGU & ANOR (2022)

AGU & ORS v. AGU & ANOR

(2022)LCN/16110(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/OW/420/2018

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Between

1. UDEAGHA AGU 2. AGU UDEAGHA 3. KALU OGBONNAYA AGWU (For Themselves And As Representing Ndi Oburuiyi Family, Agbonta Amaekpu Item) APPELANT(S)

And

1. JOHNSON NMAJU U. AGU 2. CHIEF CHUKWU NMAJU (For Themselves And As Representing Ndi Nmaju Ugboigwe Family, Ufukwu Agbonta Amaekpu Item) RESPONDENT(S)

 

RATIO

ELEMENTS OF A PROVEN PLEDGE UNDER CUSTOMARY LAW

As submitted by the Respondents’ Counsel and as held by the lower Court, for there to have been a proven pledge under customary law, the following are the constitutive elements that must be established:
1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.
See Ezike v Egbuaba (2019) 6 NWLR Part 1669 Page 551 at 553 at 561-562 Para H-B per Okoro JSC, which case was relied upon in Ewor & Ors V. Marcus & Ors. (2021) LPELR-56095(CA), per Tani Yusuf Hassan JCA at Pages 19-20, Paras D-G.
As held in both cases, “it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim….Allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one.”
PER ADEFOPE-OKOJIE, J.C.A. 

WHETHER OR NOT HERESAY EVIDENCE IS PERMITTED IN PROOF OF OWNERSHIP OF LAND IN DISPUTE

However, in proof of ownership of land which is beyond living memory, the law permits hearsay evidence of what transpired, which is why Section 66 of the Evidence Act has delisted this category of evidence from the hearsay rule and elevated it to the status of admissible evidence. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 315 Para H-A per Nweze JSC, Elegushi v. Oseni (2005) 14 NWLR Part 945 Page 348 at 366 Para E-F per Onu JSC; Ewo v. Ani (2004) 3 NWLR Part 861 Page 610 SC at 637 Para F-G per Edozie JSC.
A party relying on such hearsay evidence must however give the names of the witnesses to the transaction, I hold, in this instance of the pledge. No evidence was however given of the names of the witnesses to this transaction, which, as held in the cases cited above of Ezike v Egbuaba Supra and Ewor v Marcus Supra, is a vital requirement. In the absence of proof of such a vital element, I cannot but agree with the lower Court that the Appellants failed in their proof that the transaction between the parties was a pledge.
PER ADEFOPE-OKOJIE, J.C.A. 

THE REQUIREMENT TO BE SATISFIED FOR A CUSTOMARY ARBITRATION TO BE BINDING

For a customary arbitration to be binding, however, there are certain conditions attached.
These conditions were amply stated by the Supreme Court, per Edozie JSC in the case of Okereke v Nwankwo(2003) 9 NWLR Part 826 Page 592 at 613 Para B-H, as follows:
“The main question under consideration is the validity or binding effect of Exhibit “B” which is the proceedings and decision of a non-judicial body, that is a body not vested with judicial powers by virtue of Section 6 of the 1979 or 1999 Constitution. It is a body known as customary arbitrators. Speaking on the subject in Raphael Agu v Christian Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407, Karibi-Whyte, JSC defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 23-24, Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 308; Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at 28. From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3. that the arbitration was in accordance with the custom of the parties or of their trade or business;
4. that the arbitrators reached a decision and published their award and;
5. that the decision or award was accepted at the time it was made.”
Underlining Mine.
PER ADEFOPE-OKOJIE, J.C.A.

MODE OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
It has been established over time that the five modes of proof of ownership of land are the following:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land.
See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Ibude v Saidi (2021) 10 NWLR Part 1785 Page 567 at 583 Para B-F per Okoro JSC; Garba v Tsoida (2020) 5 NWLR Part 1716 Page 1 at 20-21 Para E-H per Kekere-Ekun JSC.
PER ADEFOPE-OKOJIE, J.C.A. 

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State, Igbere Judicial Division (hereafter referred to synonymously as “the Lower Court”/”trial Court”) delivered on the 9th day of July 2018 by A.U. Kalu J, dismissing the Appellants’ claim for title and entering judgment for declaration of title in favour of the Respondents/Counter Claimants. Aggrieved, the Appellants filed two Notices of Appeal, the first on 11/7/18 and the second on 27/8/18. At the hearing of the appeal on 3/2/2022, the Appellants’ Counsel, Ugochukwu N. Ogbonnaya Esq., holding the brief of N.A. Okorie Esq informed the Court that they were relying on the latter Notice of Appeal.

The parties, in prosecution of the appeal, filed their Briefs of Argument, encapsulating therein their issues for determination and arguments thereon.

Facts of this case
The facts in this case are quite convoluted. The case of the Appellants, as Claimants before the trial Court is that they are the rightful owners of the two parcels of land in dispute at Apunsi and Nzaghezi in Agbonta Amaekpu Item Community in Bende LGA of Abia State and that their ancestor Ikoro-Edu had given out the lands to the Respondents’ ancestor Nmaju Ugboigwe on customary pledge for the sum of Seven Pounds, which pledge was redeemed by them. All attempts by successive members of the Appellants’ family to redeem the land were rebuffed by the Respondents’ family, who claimed that such redemption would destabilize their (Respondents’) family, as they had been on the land for many generations. As a result of this refusal, the Appellants took the matter for customary arbitration to the Traditional Ruler of Item land in 1985, resulting in Exhibit “A” , in which it was directed that the two pieces of land should be recovered by the Appellants upon payment of the pledged sum of Seven Pounds to the Respondents. As the Respondents still remained adamant, they instituted the action before the lower Court, seeking the following reliefs, as per their Statement of Claim filed on 2/4/13:
i. “A DECLARATION that from the facts and circumstances of this case what transpired between the claimants’ ancestor and the defendants’ ancestor was a customary pledge which is perpetually redeemable and that the claimants’ fathers having in February, 1985 redeemed the Apunsi and Nzaghezi Lands from the Defendants’ fathers, the defendants cannot turn round to lay claim on any of the two parcels of land.
ii. A DECLARATION that the Claimants are entitled to the Customary Rights of Occupancy over the two parcels of land namely APUNSI and NZAGHEZI situate and located at Agbonta Amaekpu Item in Bende Local Government Area of Abia State.
iii. A DECLARATION that the two parcels of land namely APUNSI and NZAGHEZI situated and lying at Agbonta Amaekpu Item belong to the Claimants by Customary inheritance.
iv. PERPETUAL INJUNCTION restraining the defendant, their agents, privies, assigns, personal and legal representatives, cohorts, minions and successors-in-title from howsoever entering or trespassing into any part of the two parcels of land i.e APUNSI and NZAGHEZI situated and lying at Amaekpu Item or howsoever dealing with the lands in any manner adverse to the interest of the claimants over the two parcels of land.”

The case of the Respondents, however is that their ancestor, Nmaju Ugboigwe migrated from Amaege Okoko Item to Amaekpu Item where he met Ikoro-Edu (the ancestor of the Appellants) and who (Ikoro-Edu) was in dire need of help to placate his land which was considered “hot” and was designated as an “evil land” which was consuming its inhabitants and economic trees. 

Nmaju Ugboigwe (Respondents’ ancestor) then intervened and hired a traditional medicine man Ngeri Ocho and gave his son Mba for sacrifice alongside a female who he bought with his money, and provided all other materials used in the Ifaju Ala (Cleansing ritual). Ikoro-Edu, in consequence, granted the Apunsi land to him. Thereafter, the medicine man, having successfully appeased the gods and cleansed the land, sought to return home and demanded to be paid for his professional services, the Appellants’ ancestor was unable to pay him and gave him Nzaghezi land in lieu of payment, which land he (Ngeri Ocho) sold to Nmaju Ugboigwe. The Respondents denied that the Appellants pledged the two pieces of land to them but that the two pieces of land were purchased outright from the Appellants’ ancestor.

They thus counter-claimed, in their Statement of Defence filed on 20/6/2016, for the following:
i. “A declaration that the Defendants (Ndi Nmaju Ugboigwe Family) of Ufukwu, Agbonta, Amaekpu Item in Bende Local Government Area of Abia State are entitled to the Statutory Right of Occupancy over both the APUNSI and NZAGHEZI LANDS situate respectively in Agbonta, Amaekpu Item, Bende LGA of Abia State within the jurisdiction of this Honourable Court.
ii. An order mandating the Claimants to pay the Defendants/Counter-Claimants the sum of N5Million being General and Exemplary Damages for the Claimants’ acts of trespass and adverse claims to the APUNSI and NZAGHEZI lands of the Defendants.
iii. An order of perpetual injunction restraining the Claimants, Members of Ndi Oburuiyi Family of Ufukwu, Agbonta, Amaekpu Item and all those claiming through or in trust for them, their agents, servants, workmen and their privies from further entering, trespassing into disturbance and/or interference with the overriding superior rights of ownership/Title of the Defendants.”

In proof of their case, the Appellants called four (4) witnesses, while the Respondents, in disproof of the Appellants’ claim and proof of their counter-claim, called six (6) witnesses.

ISSUES FOR DETERMINATION
APPELLANTS
In the Appellants’ Brief of Arguments filed on 19/10/2018, the following were the issues for determination formulated by their Counsel, Nnamdi A. Okorie:
1. Whether the document admitted as Exhibit A is not the yardstick/hanger to weigh oral evidence in this case as to arrive at the truth of this case OR/ALTERNATIVELY Whether Exhibit A is not the conclusive proof of pledge and redemption of the two lands in dispute in this case.
2. Whether there was any pleading or conclusive evidence led in this case that under Item Native Law and Custom, burial on a land automatically vests title on the person burying the dead on a disputed land
3. Whether there was a conclusive proof by the Respondents as defendants/counterclaimants on how they came to be the owners of the two parcels of land in dispute or of their being in possession of same after Exhibit A that was made in 1985.
4. Whether there was a proper evaluation of the documentary evidence tendered at trial especially Exhibits A, B, E, F, G, J, K, L vis-a-viz the oral evidence given by witnesses before the trial Court
5. Whether the award of cost in this case is a proper judicial discretion.

RESPONDENTS
In the Respondents’ Brief of Arguments filed on 31/3/21 by their Counsel, Uwadineke Kalu, in substitution, with leave of the Court, for the initial one which had exceeded substantially the number of pages stipulated in the Rules, 5 (five) issues were similarly distilled for the Court’s determination as follow:
1. Whether from the totality of the pleadings and evidence on record in this case, the Claimants/Appellants legally discharged the onus or burden on them to prove or establish any customary pledges of the 2 lands in dispute and/or their redemption.
2. Whether proven acts of ownership and possession of land, positive and numerous enough do not entitle a party to a declaration of title in his favour and whether burials on land without any challenge or protest do not constitute such acts of ownership/title to land.
3. Whether the case of the Defendants/Respondents in its entirety was not more credible, believable and positive than that of the Appellants and whether the burden of proof on the appellants was discharged.
4. Whether the documents tendered in the trial did or did not support the eventual decision or verdict of the trial Court in dismissing the Appellants, case.
5. Whether the award of cost upon the dismissal of Appellant’s case in this matter was an erroneous exercise of judicial discretion.

In the determination of this appeal, I shall adopt an amalgam of the apt issues distilled by the parties, the issues being similar, which, amended for succinctness, are as follow:
1. Whether the Appellants discharged the burden of proving customary pledge of the land in dispute and its redemption?
2. Whether the lower Court was right to have entered judgment in favour of the Respondents?

Arguments
The 1st issue for determination is:
Whether the Appellants discharged the burden of proving customary pledge of the land in dispute and their redemption?

APPELLANTS SUBMISSIONS
The learned Appellants’ Counsel hinges his contention of conclusive proof of the pledge of the land in dispute and its redemption on Exhibit A, which is a customary arbitration held on 11/8/1985 at the Palace of His Royal Highness Eze George Azu Agwu, the Okpi of Item. The Appellants’ Counsel contends that Exhibit A is the hanger/yardstick on which the entire evidence in this case ought to be weighed, as it is conclusive proof of the pledge and redemption of the two lands in dispute and constitutes res judicata/issue estoppel and captured the gist of the claims of the Appellants as Claimants before the trial Court. He submitted that Exhibit A was signed by the requisite party, being the traditional ruler of the community, relying on the evidence under cross-examination of the Respondents’ witnesses, that they were present at the arbitration, contrary to their averment in their Statement of Defence before the lower Court.

Counsel argued that in the light of Exhibit A, it is clear that the Appellants redeemed their lands pledged to the Respondents in 1985 and were therefore estopped from trespassing on the redeemed lands. The lower Court was thus in error to have held that the fact of the redemption of the pledged lands was not proved, as Exhibit A is conclusive proof thereof. He asked the Court to resist the attempt by the Respondents to vary by oral evidence the contents of this document, citing the cases of Utong v. Utong (2014) All FWLR (pt 746) 447, 476 C-D, Larmie v. Data Processing Maintenance & Services Ltd (2006) All FWLR (pt 296) 775@779; Essien v. Etukudo (2009) All FWLR (pt 496) 1886, 1890.

RESPONDENTS’ SUBMISSIONS
Learned Respondents’ Counsel gave the legal requirements of proof of customary pledge, citing the cases of Iwuala v. Chima (2016) LPELR-40970, Akudie v. Nwamadi (1992) 8 NWLR (pt. 257) 214 at 226, Ndoro v. Pianyii (2003) 5 NWLR (pt. 812) 137 at 151 – 152; Onobruchere v. Esegine (1986) 1 NWLR (pt. 19) 799.

He submitted that the Appellants needed to first prove that there was a customary pledge of the two lands to the ancestor of the Respondents, which he said was lacking. He refuted the bid of the Appellants’ Counsel to isolate Exhibit A from the totality of the Appellants’ case before the lower Court, as it is the totality or entirety of the Appellants’ case juxtaposed with that of the Respondents, put on an imaginary scale, that the trial Court weighs in resolving issues in dispute. He cited the cases of Ogbemudia v. Otabor (2013) 1 WRN 151 at 161 – 162, Ufomba v. Ahuchaogu (2003) 30 WRN 1 at 35-36. He denied that Exhibit A constituted conclusive proof of any pledge or redemption, also denying that any arbitration took place in 1985 between the ancestors of the parties before the Okpi-in Council. He also contended that the Appellants, as Claimants in the Court below, never pleaded Exhibit A as constituting estoppel per rem judicata. They can thus not in their Brief of Arguments change their original claim before the Court below from one on customary pledge to one of trespass, which is also attempting to raise a fresh issue on appeal.

Learned Counsel contended further that Exhibit A was not the only evidence that was considered by the trial Court and rejected by him. This document also failed to meet the essential features of a valid arbitration as to constitute res judicata, he submitted. Concluding on this issue, he submitted that there can be no redemption without a valid customary pledge of the lands. Both were not proved or established before the trial Court. This Court should accordingly hold that the two lands were not under any customary pledge but were purchased outright by the ancestor of the Respondents, as accepted by the trial Judge.

APPELLANT’S REPLY
Learned Counsel to the Appellants submitted that the rejection of Exhibit A on the ground of the Respondents denial of same, without more, is perverse, as it is trite that a trial Court cannot simply state ‘I believe/reject this piece of evidence’ without stating the reasons on record why the said piece of evidence was believed or rejected, citing the case of Bolanle Abeke v. State (2007) 9 NWLR (Pt 1040) 411, David Amadi v. AG(Imo) (2017) LPELR 420. An appellate Court can thus intervene to re-evaluate the evidence, he submitted.

RESOLUTION
To recap, the issue for determination is whether the Appellants discharged the burden of proving customary pledge of the land in dispute and its redemption.

As submitted by the Respondents’ Counsel and as held by the lower Court, for there to have been a proven pledge under customary law, the following are the constitutive elements that must be established:
1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.
See Ezike v Egbuaba (2019) 6 NWLR Part 1669 Page 551 at 553 at 561-562 Para H-B per Okoro JSC, which case was relied upon in Ewor & Ors V. Marcus & Ors. (2021) LPELR-56095(CA), per Tani Yusuf Hassan JCA at Pages 19-20, Paras D-G.
As held in both cases, “it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim….Allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one.”

The lower Court, in the instant case, held that the names of the witnesses to the pledge were neither pleaded, neither was evidence in respect of these witnesses given. There was also no evidence of the redemption of the pledge.

The Court’s reasoning is contained at Pages 489-490 of the Record, as follows:
“One must note that the existence/proof of the alleged pledge is at the core of the claimants’ case. If there was such a pledge the claimants will succeed in this case but if the claimants fail to prove the existence of such a pledge they will fail. It is a well settled principle of law that he who alleges a pledge under native law and custom has the onus to prove that such a pledge transaction had indeed taken place the between the pledger and the pledgee. The person alleging the pledge must prove that the alleged pledge transaction actually tool place and they can only do this by showing:
a. That there was a pledge;
b. That it took place in the presence of witnesses;
c. That there were parties to the pledge;
d. That there was a pledge sum;
e. That the pledgee was put into possession; and
f. The mode of redemption of the pledged property.
See Ihunwo V. Ihunwo & Ors (2013)8 NWLR (Pt.1357) 550; Okpala V. Ibeme (1989) LPELR – 2512 SC.
In the case before us we have reviewed all the evidence presented by the claimants and my humble view is that the claimants failed woefully to prove the customary pledge of the lands in dispute by Ikoro Edu, as the pledgor, to Nmaju Ugboigwe, as the pledgee. Out of the four witnesses called by the claimants’ family, only two, mentioned the pledge and they claimed to be relaying what they said was relayed to them by their ancestor. No other person from another family in the community testified in support of the alleged customary pledge. The CW2 and the CW3 never mentioned such a pledge of the land in dispute and even its purported redemption by the defendants. Also, the claimants did not tell the Court who were the witnesses to the purported pledge. Even if all such witnesses had died their names needed to be pleaded by the claimants and possibly the relations of such witnesses to the alleged pledge could be called as witnesses to state if their deceased relations told them of such a pledge. All parties before me agree that Nmaju Ugboigwe, the purported pledgee, was put into possession by Ikoro Edu but there is not proof by the claimants that Nmaju Ugboigwe was put into possession on the strength of a purported pledge. What about the alleged redemption by the claimants? This too was not proved. There is also another interesting piece of evidence introduced by the defendants which was not challenged by the claimants in any way. The defendants, while challenging the alleged pledge, told the Court that they had over the years been burying their dead in the two lands in dispute and that if lands were truly on pledge to the defendants the custom of the community would not have allowed the defendants to bury their dead in the lands that were on pledge to them. The implication in law is that the claimants accepted this evidence as true and being so the Court accepts it as showing that the lands in dispute could not have been on pledge to Nmaju Ugboigwe because if it were so, the defendants could not have been permitted by the custom of the community to bury their dead within the lands in dispute. What about the alleged redemption of the lands in dispute at the palace of the Okpi of Item Community? I am not satisfied that the claimants conclusively proved the alleged redemption. The is more so as the defendants have denied any redemption of the lands in dispute at the palace of the Okpi of Item Community.

The above are some of the gaps that make it impossible for the Court to accept the claimants’ evidence about the pledge of the land in dispute by Ikoro Edu and its redemption by the claimants. Put bluntly, it is my view that no such pledge or redemption took place. Having failed to prove that Nmaju Ugboigwe’s descendants’ possession of the Apunsi and Nzaghezi parcels of land was as a result of the claimants’ ancestor, Ikoro Edu pledging the two lands to the defendant’s ancestor, Nmaju Ugboigwe, in years gone by, it follows that the claimant’s case failed in its entirety.”

I do agree with the lower Court, that an important factor in proof of a pledge, as stated in the authorities above, is the presence of witnesses to the pledge. Admittedly, the witnesses would already be dead. However, in proof of ownership of land which is beyond living memory, the law permits hearsay evidence of what transpired, which is why Section 66 of the Evidence Act has delisted this category of evidence from the hearsay rule and elevated it to the status of admissible evidence. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 315 Para H-A per Nweze JSC, Elegushi v. Oseni (2005) 14 NWLR Part 945 Page 348 at 366 Para E-F per Onu JSC; Ewo v. Ani (2004) 3 NWLR Part 861 Page 610 SC at 637 Para F-G per Edozie JSC.
A party relying on such hearsay evidence must however give the names of the witnesses to the transaction, I hold, in this instance of the pledge. No evidence was however given of the names of the witnesses to this transaction, which, as held in the cases cited above of Ezike v Egbuaba Supra and Ewor v Marcus Supra, is a vital requirement. In the absence of proof of such a vital element, I cannot but agree with the lower Court that the Appellants failed in their proof that the transaction between the parties was a pledge.

The Appellants have however tendered Exhibit A as conclusive proof of the customary arbitration adjudging the transaction between the parties to be a pledge, outside of which no contrary interpretation can be given, they contend. This document, they urge, is binding on the Court.

In view of the importance of this document, which is on the letter head of “The Palace of His Royal Highness, Eze George Azu Agwu, the Okpi of Item” , the salient portions thereof shall be set out, to wit:
“SETTLEMENT OF LAND DISPUTE BETWEEN THE FAMILIES OF UDEAGHA OJI AND OGBONNAYA AGWU ON ONE SIDE AND KALU INEM AND NMAJU INEM ON THE OTHER SIDE. BOTH FAMILIES RESIDE IN IFIKWU AGBONTA AMAEKPU ITEM
This matter was sent by the Secretary Bende Local Government to His Highness Eze G.A. Agwu, the Okpi of Item and his Council for disposal as contained in the letter REP.BDLG/12/S.8/111/911 dated 7th February, 1985, addressed to Mr. H.A.O. Uja or 29 Arondizuogu Street, Aba and copied Eze G.A. Agwu, the Okpi of Item.
Chief Ogbonnaya Ogwo of Amaekpu Item Village explained that 11 persons were arrested by the police from Umunnato sometime ago on the allegation that they entered farmland, cut and collected palm fruits belonging to the family of Kalu Inem and Nmaju Inem. The matter was brought to Eze G.A. Agwu, the Okpi of Item and his council for investigation and disposal.
UDEAGHA OJI AND OGBONNAYA AGWU MADE THE FOLLOWING STATEMENT:
“Nmaju Ugboiwge was the relation of Kalu Inem and Nmaju Inem. My grandfather Ikoro Edu gave a piece of land known as Nzaghezi on pledge to Nmaju Ugboigwe for N3.00. Ogbonnaya Agwu said that another piece of land known as APU NSI was also pledged to the same family at N4.00, making a total or N7.00. “Kalu Inem and Nmaju Inem accepted this statement.
Udeagha Oji had attempted several times to refund the N7.00 and recover the land. Kalu Inem and Nmaju Inem refused to accept the N7.00 on the flimsy excuse that it would disorganize things in the family, since the land had been with their family for long. Udeagha Oji also, said that his grandfather, Ikoro Edu, also gave Nmaju Ugboigwe another two pieces of land known and called Akpuru – ime and Akpuru – ufu as a free gift. This is to help Nmaju Ugboigwe, who is a native of Umuekwoda in Amaege Okoko Item, to settle down at Amaekpu Item. Udeagha Oji indicated that he wants the land back from them.
SETTLEMENT
After due consultation with his Council, the Okpi of Item passed the following judgment according to Item Native tradition, law and customs: –
1. That the two pieces of land known as Nzaghezi and APU NSI must be recovered on payment or N7.00 to the family of Ugboigwe represented by Kalu Inem and Nmaju Inem. This is because any land on pledge has no recovery time limit according to Item custom and tradition.
2. That the said two pieces of lands known and called Akpuru – Ime and Akpuru – Uru remain with Ugboigwe family as long as they live at Amaekpu Item because the said lands were given to them (Ugboigwe family) by Udeagha Oji’s grandfather, Ikoro Edu, as a free gift.
3. That Udeagha Oji must give the N7.00 here and now to Okpi for safe-keeping for Kalu Inem and Nmaju Inem to collect later since Kalu Inem left angrily leaving the money behind.
4. That as from today 28/2/85, the two pieces of land Nzaghezi and Apu Nsi (note: The palm fruits cut were cut from these pieces of land) have reverted to Udeagha Oji – nobody else can claim them.
5. That Udeagha Oji is a free born of Amaekpu Item and not Umuekwoda in Amaege Okoko Item, as alleged by the opponents.
SGD:
Eze G.A. Agwu
The Okpi of Item”
Underlining Mine

From this document, it is clear that the decision of the Okpi of Item, Eze G.A. Agwu is that the transaction between the parties in respect of the land in dispute, is a pledge.

It is true, as argued by the Appellants’ Counsel that the Okpi of Item was eminently qualified to have sat on the dispute. This is because what he was doing is customary arbitration. 

For a customary arbitration to be binding, however, there are certain conditions attached.
These conditions were amply stated by the Supreme Court, per Edozie JSC in the case of Okereke v Nwankwo(2003) 9 NWLR Part 826 Page 592 at 613 Para B-H, as follows:
“The main question under consideration is the validity or binding effect of Exhibit “B” which is the proceedings and decision of a non-judicial body, that is a body not vested with judicial powers by virtue of Section 6 of the 1979 or 1999 Constitution. It is a body known as customary arbitrators. Speaking on the subject in Raphael Agu v Christian Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407, Karibi-Whyte, JSC defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 23-24, Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 308; Odonigi v. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at 28. From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3. that the arbitration was in accordance with the custom of the parties or of their trade or business;
4. that the arbitrators reached a decision and published their award and;
5. that the decision or award was accepted at the time it was made.”
Underlining Mine
In the instant case, by the definition above, what took place before His Royal Highness, Eze George Azu Agwu, the Okpi of Item, was a customary arbitration. From the concluding part of this document, as underlined above, it is clear that the Respondents did not agree with the decision of the traditional ruler, as it is stated that they left angrily, leaving the money behind. Even if it is assumed that the parties, by going to arbitration agreed by implication to be bound by that decision, the Respondents, by leaving the venue in anger, without collecting any money, clearly did not agree with the decision of the Okpi of Item.
Clearly therefore, as submitted by the Respondents’ Counsel, there cannot be said to have been a valid arbitration which constitutes res judicata.

Learned Counsel to the Appellants again took umbrage at the statement of the lower Court that the Respondents, having buried their dead on the land, was consistent with the fact that the land was not pledged. Counsel contended that this was not the case of the Respondents at the trial and that the lower Court was in error to have so held and in any event, proof of burial of the Respondents’ dead on the land is not, without more, proof of ownership.

In response, the Respondents’ Counsel pointed to Paragraphs 39(a) and 39(c) of their Statement of Defence at Pages 267 and 268 of the record in proof of their pleading of the fact of burial of their dead on the land in dispute.

I note that in Paragraph 39 (a) of their Statement of Defence and counter-claim, the Respondents denied that they were customary tenants of the Appellants but that they bought the land and that “all their dead are all buried in this Apunsi land and Nzaghezi land”.

In Paragraph 39 (c), further denying that they pledged the land but purchased the same outright, they averred that “lands under pledge in Item mythology and custom are not used as burial sites”, and gave the names of the persons buried there.

Thus, not only was it the case of the Respondents, as averred in their pleadings, that the burial of their dead on the land, was synonymous with their purchase of the land, the finding of the trial Judge that “the Court accepts it as showing that the lands in dispute could not have been on pledge to Nmaju Ugboigwe because if it were so, the defendants could not have been permitted by the custom of the community to bury their dead within the lands in dispute” was not the sole determinant in the Court rejecting the Appellants’ claim.

This finding was taken along with other findings, as shown in the judgment of the Court set out in extenso above, in holding that the Appellants had failed to prove their case. I have no reason to disagree with the lower Court that the Appellants failed to discharge the burden of proving customary pledge of the land in dispute and its redemption. I thus resolve the 1st issue for determination against the Appellants.

The 2nd issue for determination is:
Whether the lower Court was right to have entered judgment in favour of the Respondents?

APPELLANTS’ SUBMISSIONS
The Appellants in their submissions denied that there was conclusive proof by the Respondents on how they came to be the owners of the two parcels of land in dispute or of their being in possession of the same but that their evidence was riddled with contradictions. Such contradictions were said to be that Mba, who was allegedly used as the sacrifice, was nowhere listed as one of the sons of Nmaju Ugboigwe in the Respondents genealogy and also that the ‘Medicine man’ Ngeri Ocho was averred to be from Uturu, Okigwe in Imo State in Paragraph 10 of the Statement of Defence while in some of the documents he was said to be from Ndi Ekike Amaogudu-Amaekpu Item, Abia State. Counsel further contended that elements of a valid customary land purchase were not proved.

It was Appellants’ further argument that there was no conclusive proof that the Respondents were in possession of any of the lands in dispute after the redemption recorded in Exhibit A. No witnesses to the sale were pleaded. They were merely trespassing, which attempts were all resisted. It was therefore perverse for the trial Court to have relied on alleged long possession to grant the Respondents title, without them proving their counterclaim. Long possession, he said, does not ripen to ownership.

RESPONDENTS
The learned Counsel to the Respondents submitted that they copiously pleaded and testified that they live and reside on Apunsi land and that their son, Onwuchekwa Agu built a cement block house on Nzaghezi land in 1996. These clear facts were expressly admitted by the Appellants and were not challenged or controverted at all. As proved by them, their ancestors have lived, resided and died on Apunsi land. They have thus demonstrated through unchallenged averments and evidence that they have exercised maximum acts of possession and ownership on both Apunsi and Nzaghezi lands by cultivating and farming there, cutting palm fruits on them, renting or letting parts of them out to tenant farmer, selling of Edo trees and building of houses, inclusive of burial of their dead on the land, which is sufficient to warrant a declaration of title in their favour.

The position of the law, it was submitted, is that unchallenged evidence ought to be relied upon by the Judge.

Counsel further submitted that as is the custom of the people of Item, which was admitted by the Appellants, burials are not done on pledged lands, therefore the fact that the Respondents have been burying on both lands goes to prove that the lands belong to them and were not pledged. There has been no letter of protest or complaint to anybody or authority challenging them with regard to this. Counsel submitted that the Respondents have remained in exclusive possession of the 2 lands up until 2008 and wondered how the Appellants story can be believed, as they resurfaced over 23 years from when they allegedly redeemed the pledged land in 1985.

It was Counsel’s further contention that by the provisions of Section 146 of the Evidence Act, 2011, “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”.

Not only did the Appellants fail to prove that the Respondents in possession were not the owners of the land, the Respondents, as counter-claimants, had convincingly proved and established acts of ownership and possession extending over a sufficient length of time, numerous and positive enough to warrant the inference that they were the exclusive owners. The Appellants, Counsel contended, were unable to disprove the ownership of the land by the Respondents.

RESOLUTION
The lower Court, in considering the counter-claim of the Respondents, following a review of the facts of the case held, at Page 491 of the Record:
“I seem to be persuaded by the evidence of the defendants/counter-claimants on how they came to own the Apunsi and Nzaghezi lands in dispute. Over so many years beyond memory the counter-claimants have demonstrated acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the counter-claimants who have been in possession are the true owners. There is undisputed evidence that the counterclaimants have farmed on the land, built on the land leased or rented parts of the land to seasonal farmers. More critically, the defendants/counter-claimants led unchallenged evidences that in Item custom a pledgee of land cannot bury his dead on such land. The claimants did not challenge this piece or evidence which in law means that they admitted that custom. The implication is that the fact that the counterclaimants were burying their dead on the lands in dispute confirms their ownership of same. That being the case it follows that the defendants are not on the Apunsi and Nzaghezi as pledgees but as outright owners of the said land in dispute.”

In resolution of whether the lower Court was right to have granted the counter-claim of the Respondents, I must bear in mind the settled principle that appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the trial Court. A Court of Appeal will only interfere with the performance of that exercise if the trial Court wrongly assessed the said evidence and arrived at a wrong conclusion. See Statoil (Nig.) Ltd. v Inducon (Nig.) Ltd. (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC; Okechukwu v Obiano (2020) 8 NWLR Part 1726 Page 276 at 302 Para G-H per Galinje JSC; Ukeje v. Ukeje (2014) 11 NWLR Part 1418 Page 384 at 405 Para H per Rhodes-Vivour JSC.

It has been established over time that the five modes of proof of ownership of land are the following:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land.
See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Ibude v Saidi (2021) 10 NWLR Part 1785 Page 567 at 583 Para B-F per Okoro JSC; Garba v Tsoida (2020) 5 NWLR Part 1716 Page 1 at 20-21 Para E-H per Kekere-Ekun JSC.

In the instant case, the Respondents copiously pleaded and testified of acts of ownership, following their purchase of the land from the Appellants’ ancestor. They also testified of acts of long possession of these lands, in building, selling, leasing, renting and farming and the burial of their dead on the land.

I have no reason to interfere or tamper with the decision of the lower Court, who it was that heard and saw the witnesses and rightly evaluated the evidence before it.
I again resolve the 2nd issue for determination against the Appellants.

The Appellants have complained of the award by the lower Court of costs of N30,000 (Thirty Thousand Naira) with no reasons advanced, contending that this award was not done judiciously. He further submitted that it is not in all cases that costs follow the event, so the Court will not be seen as punishing parties for pursuing their presumed right, which was not frivolous and which costs were not demanded by the Respondents.

As rightly pointed out by the Respondents’ Counsel, a successful party in a civil claim is entitled as of right to costs, which follows the event, unless there are circumstances warranting the contrary. A successful party has the right to be compensated for his expenses incurred in course of the proceedings, I hold. I see no reason to interfere with the lower Court’s discretion in the award of this very modest amount.

Having held as I have above, this appeal lacks merit and is consequently dismissed. The judgment of the lower Court is accordingly affirmed. The Appellants shall pay Costs of N100,000.00 to the Respondents.

I can, however not conclude this judgment without commenting on the prolix pleadings of both parties. The number of paragraphs in the Appellants’ Statement of Claim before the lower Court was 31, while that in the Respondents’ Statement of Defence were 41 paragraphs, with the result that the rule of pleadings was violently contravened. 

This rule is that it is facts that are pleaded and not the evidence by which these facts are to be proved. The result is that the pleadings of both parties were replete with evidence, causing them to be unnecessarily lengthy. Counsel are thus cautioned.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions.

The law is elementary that the award of costs, or refusal to award same, is a matter in the discretion of the Court, subject to the only qualification, that the Court’s discretion must be seen to have been judicially and judiciously exercised in this regard. NIGERIAN BANK FOR COMMERCE AND INDUSTRY & ANOR VS ALFIGIR MINING NIG LTD (1999) LPELR-2015 (SC). I am of the view that the Court below rightly exercised its discretion in the award of costs and I see no reason to disturb that.

I dismiss the appeal. The judgment of the High Court of Justice Abia State, Igbere Judicial Division in Suit No. HIG/5/2013 delivered by His Lordship, Hon. Justice Agwu Umah Kalu on the 9th day of July, 2018 is hereby affirmed.
I abide by the consequential order made as to costs.

IBRAHIM WAKILI JAURO, J.C.A.: I had the privilege of reading the draft of the lead judgment delivered by my learned brother Adefope-Okojie, JCA. I am in total agreement with the reasoning and conclusion reached therein and that there is no merit in the present appeal. Accordingly, I too dismiss the appeal. I abide by the consequential orders made therein.

Appearances:

Nnamdi A. Okorie For Appellant(s)

C.E. Okonkwo For Respondent(s)