CHIEF A. C. NWABUDE & ANOR v. AUGUSTINE UGODU & ORS.
(2011)LCN/4769(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of August, 2011
CA/E/251/2006
RATIO
TRADITIONAL EVIDENCE: WHAT A PLAINTIFF MUST ESTABLISH IN A CLAIM FOR DECLARATION OF TITLE TO LAND WHERE HE RELIES ON TRADITIONAL EVIDENCE
It is trite that in a claim for declaration of a title to land based on traditional evidence, the Plaintiff must plead and lead sufficient evidence to establish the following:- 1. Who found the land 2. How the land was founded and 3. Particulars of the intervening owners through whom he claims. See Okpala Ezeokonkwo & Ors v. Nwafor Okeke & Ors (2002) FWLR pt.109 page 1652 at 1668. Hyacinth Anyanwu v. Mbara & Anor (1992) 5 NWLR pt 242 page 386. PER ABDU ABOKI, J.C.A.
DUTY OF PARTY: THE DUTY OF A PARTY TO BE CONSISTENT IN PROVING HIS CASE
A party should be consistent in starting his case and consistent in proving it. See Amana Suits Hotels v. PDP (2007) 6 NWLR pt 1031 page 453. PER ABDU ABOKI, J.C.A.
PLEADINGS: POSITION OF THE LAW WHERE A PARTY GIVES EVIDENCE WHICH IS AT VARIANCE WITH HIS PLEADINGS
It is trite that where a party gives evidence at variance with its pleadings, such evidence goes to no issue and the court is entitled to discountenance such evidence. See Makinde v Akinwale (2000) FWLR pt 25 page 1562. Adimora v. Ajufo (1988) 3 NWLR pt 80 page 7. PER ABDU ABOKI, J.C.A.
PROOF OF CUSTOMARY LAW: HOW CUSTOMARY LAW IS PROVED
The law is that customary law is an issue of fact which must strictly be proved. See Otaru v. Otaru (1986) 3 NWLR pt 26 page 14. In Ajibi v. Olaewa (2003) 1 NWLR pt.822 page 237 at 273 it was held thus:- ‘Matters that are associated with or related with native law and custom or customary law on Chieftaincy are to be strictly proved by calling cogent reliable and credible evidence.’ What the law requires for proof of matters of customary law is cogent, reliable and credible evidence. Such proof required does not need to be corroborate by other witnesses. In Usiobaifo v. Usiobaifo (2005) All FWLR pt 250 page 737 at 744 the supreme court said on the state of the law on the matter thus:- “Proof of customary law is not one of the areas in our adjectival law that need corroboration while it could be desirable that a person other than the person asserting the customary law should testify in support of the customary law, it is not desideratum, This is because the Evidence Act does not so provide, It simply provides in section 14 (1) that a custom can be proved to exist by evidence. This warrant that a single witness or more witnesses may suffice. However a community of witnesses is not required but the quality of evidence given by the single witness or more witnesses. PER ABDU ABOKI, J.C.A.
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
The Defendants like the Plaintiffs are free to formulate their case as desired by them but once formulated they are bound by it and must establish their case as pleaded. In Elimare v. Emhonyon (1985) 1 NWLR pt 2 page 117 at 790, it was held thus:- “Patties are bound by their pleadings and must stand or fall on those pleadings. They are not allowed to depart from the case they have put forward on their pleadings. PER ABDU ABOKI, J.C.A.
DECLARATION OF TITLE: WHETHER THE ONUS OF PROOF IN A CLAIM FOR DECLARATION OF TITLE IS ON THE PLAINTIFF TO PROVE HIS CASE AND NOT TO RELY ON THE WEAKNESS OF THE DEFENCE
I am not unmindful of the fact that in a claim for declaration of title the onus is on the Plaintiff to prove his case and must rely on the strength of his own case and not on the weakness of the defence, except where the weakness of the Defendants tends to strength the Plaintiff’s case or where the Defendants case supports his case. See Dike v Okoloedo (1999) NWLR pt 623 page 359 at 371. Aromire v. Awoyemi (1972) All WLR 105, In the case of Jalayemi & Ors v, Alaoye & Anor.18 NSCQR 682 at 703, the court held as follows:- “I realize that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that a necessity of the Defendant to confront the case so made may arise,” PER ABDU ABOKI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF A. C. NWABUDE
2. TRAMET (NIG) LIMITED Appellant(s)
AND
1. AUGUSTINE UGODU
2. AUGUSTINE OBIDIOZOR
3. BENNETH UZOWULU Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of C. E. K. Anigbogu J. of the Anambra State High Court of Justice, Onitsha delivered on 27th March 2006.
The brief facts of the case are as follows:-
The Plaintiffs are members of Umu-Utumacha Family in Umu-Nweshi of Isiowulu Community Obosi, while the 1st Defendant is from Ire Village in Ire Obosi. The 2nd Defendant is a company incorporated in Nigeria. The Plaintiff claimed that the land in dispute forms part of a larger expanse of land known as “Omoko Land” situate at Obosi but the Defendants said the land is called “Ozalla land” and that it is delineated by a Survey Plan No.AA/D.30/2000.
Both parties derived their root of title to the land in dispute under native law and customs of Obosi known as “Igbota-ani”. By this custom, whoever came into a virgin forest clears and cultivated it automatically becomes the owner and its ownership devolves unto his descendants from generation to generation.
The Plaintiffs claimed that as descendants of a common ancestor called TUMATCHA, they are the bonafide owners of the land in dispute called “Omoko Land” and that they have been exercising maximum and unchallenged acts of ownership and possession over the land by inter alia farming, and cultivating and letting same to several farmers on terms who cultivate thereon.
The Defendants claimed that it was the ancestor of the 1st Defendant called Udezuga who first settled and deforested the land called Ozalla land Obosi, part of which is now in dispute. He was said to have farmed the land and carried out other maximum acts of ownership and possession on the said land unhindered.
The Plaintiffs claimed that no member of Ire Family owns land around the area in dispute except by purchase or grant from a member of Isiowulu Community. They claimed that Obosi Master Plan No.ECAS/7/82 demarcates the boundary of Isiowulu and Ime Obosi.
The 1st Defendant claimed that his ancestor Udezuga shared his estate amongst his four sons and that two of the sons Odogwu-Ezuga and Oliobi got separate portion among other lands in the area encompassing the Ozalla land Obosi. He said that the Ozalla land inherited by Nwabude shares a common boundary with the land of Umuachusim Family (descendants of Oliobi). He said that the Umuachusim Family also called their own portion of land Ozalla land. He further said that the land in dispute forms part of the Ozalla land inherited by Odugwu-Ezuga whose share devolved unto Nwabude.
The 1st Defendant said that the Nwabude family of Ire Village Obosi consigned large track of the said Ozalla land to him under the native law and custom of Obosi people.
After the grant to him by his family the 1st Defendant said he immediately commenced exercising unbroken maximum acts of ownership and possession over the Nwabude’s portion or Ozalla land by farming, alienating and leasing it till 1986.
The 1st Defendant alleged that when Umuachusim boundary of their Ozalla land was encroaching into the Ozalla land of the 1st Defendant, the representatives of Umuachusim family of Oliobi and the 1st Defendant of Umu-Obanaka Family worked out modalities for the management and administration of the Ozalla land by merging the two separate portions of land belonging to the 1st Defendant on the one hand and that of the Umuachusim Family of Oliobi on the other hand. The two families together exercised various acts of ownership and possession on the portion of land merged until 1987.
The 1st Defendant claimed that in 1987 the 2nd Defendant approached him as its Chairman/Managing Director and the Umuachusim Family for a grant of part of the Ozalla land for construction of Anambra State Branch of Food Processing and Preservation Industry. The 2nd Defendant paid N1 million naira (N1,000,000.00) to the land owners for a lease of 99 years.
The company was said to have been put into possession of the Ozalla land part of which is in dispute and a lease agreement was executed by the parties.
The 2nd Defendant was said to have subsequently applied for and was granted customary certificate of occupancy registered as No. 72 at page 72 in volume 5 of the Land Registry at Awka.
The 2nd Defendant in turn was said to have put in tenants both individuals and companies on various parts of the land.
The 1st Defendant said because of the wrongful activities of Umuachusim Family in respect of the merger agreement, he repudiated the agreement. He said that on 5/11/99, the Umuachusim Family sued him.
The Plaintiffs on their part claimed that the dispute with the 1st Defendant was taken before the Obosi Central Landlords Association and that the 1st Defendant asserted that he purchased his land from Iyiawa Family of Onitsha.
They also complained about the 1st Defendants acts of trespass on their land to the Igwe-Obosi-in-Council and that they both submitted voluntarily to arbitration by the Igwe council and equally agreed to be bound by the council’s decision. The Igwe-in-Council was said to have decided that the land in dispute belongs to the plaintiffs and that the Defendant should desist from further trespass on the plaintiffs land. The decision was said to have been published to the parties. The plaintiff claimed that according to the custom and tradition of Obosi people, where a matter is reported to the Igwe-in-council and the parties voluntarily submitted themselves to the said council, they are bound by the decision of the council.
The proceedings before the Igwe-in-Council was said to be in accordance with the custom and tradition of the Obosi people. When the decision of the Igwe-in-Council was delivered and made known to the parties, the 1st Defendant was said to have initially accepted it and had refrained from his acts of trespass on the Plaintiffs’ land but subsequently the 1st Defendant by himself, through his servants and agents forcefully entered into the Plaintiffs’ Omoko land with earth moving machines, removed and destroyed the beacons placed on the land by the Plaintiffs, destroyed the economic crops planted by the Plaintiffs, and some of their tenants’ and destroyed the layout which the Plaintiffs made on the land. The 1st Defendant was said to have been warned by the Plaintiffs to desist from his trespass and to make good the damages he had done on the Plaintiffs land by his said trespass.
In spite of the warnings and the decision of the Igwe-in-Council, the 1st Defendant has continued his various acts of trespass over the Omoko land, by selling portion of this land to strangers who have either fenced or are building on the portions alienated to them by the 1st Defendant despite the Plaintiffs protestations. The Plaintiffs claimed that as a result of the acts of the trespass they suffered great damages.
The Plaintiffs filed an action against the Defendants in which they claim on paragraph 39 of their Statement of Claim as follows:-
“39, WHEREFORE the Plaintiffs claim from the Defendant as follows:-
(a) Declaration that the Plaintiffs are the persons entitled to the Statutory Right of Occupancy over the piece and parcel of land known as ‘OMOKO LAND’ situate in Obosi within the jurisdiction and more particularly shown and verged pink on Plan No.TLS/AN/D.33/98.
(b) N5,000,000.00 (five million naira) damages for trespass.
(c) Perpetual injunction restraining the Defendant, his servant, agent, business associates and/or privies from entering, trespassing and/or interfering with the Plaintiffs’ Omoko land in whatsoever manner.
After hearing the cases of the parties on both sides, the learned trial judge considered matters on which issues were joined and entered judgment in favour of the Plaintiffs against the Defendants.
The Defendants dissatisfied with the decision of the trial court appealed to this court. They filed a Notice of Appeal containing nine grounds of appeal. The Defendants who are now the Appellants before this court, in their Brief of Argument prepared by Arthur Obi Okafor SAN dated 20th October 2010 and filed on 22nd of October 2010 distilled five issues for determination as follows:-
1. Did the Respondents establish that Tumatcha their alleged foremost ancestor founded the land in dispute? Ground 1, 2, 3, 9 and 10.
2. Did the Respondents establish the boundary of the land in dispute asserted by them? Grounds 3, 4, 6, 9 and 11.
3. Was the court below right to have evaluated the Deed of Conveyance that was not pleaded by neither of the parties nor received in evidence as exhibit and relying on same in coming to its decision? Grounds 5 and 9.
4. Was the court below right in relying on the purported decision or recommendation of the Obosi Central Landlords’ Association as an arbitral body to which the parties voluntarily submitted their dispute?
Grounds 6, 9 and 12.
5. Was the court below right in holding that Igwe’s decision was binding on the Appellants and that the said Appellants voluntarily submitted to the proceeding of Igwe in Council, which gave rise to the decision in Exhibit F? Grounds 7 and 9.”
The Respondents’ Amended Brief of Argument prepared by G. E. Ezeuko Esq. was dated and filed on 27tfi October 2010. The Respondents formulated four issues for determination of this appeal which reads thus:-
1. Whether the Plaintiffs/Respondents established their title to the land in dispute by proof of traditional history.
2. Whether “Exhibit C”, Obosi Master – Plan No. ECAS/7/82, shows the boundary line between the Plaintiffs and Defendants.
3. Whether the trial court was right to refer to a document filed by the Defendants in its file.
4. Whether the lower court was right in holding that Igwe-in-Council decision and the decision of Obosi Central Landlords Association are binding on the Appellants.
The Appellants also filed an Amended Appellants’ Reply Brief dated 29th November, 2010 and filed 30th November 2010.
The five issues formulated by the Appellants are adopted for the determination of this Appeal.
ISSUE ONE
Did the Respondents establish that Tumatcha their alleged foremost ancestor founded the land in dispute?
Arthur Obi Okafor, SAN in his submission on behalf of the Appellants argued that the onus is on the Plaintiffs to show how they are entitled to the land in dispute and that the Plaintiffs must rely on the strength of their case and not on the weakness of the Defendants case. He referred to the cases of Ajagugbadi M v. Laniyi (1999) 13 NWLR pt 633 page 92 at 113.
Dike v. Okoloedo (1999) NWLR pt 623 page 359 at 371.
Learned senior counsel contended that a Defendant who has not counter – claimed does not need to answer the claim put up by the Plaintiff based on defective evidence. He cited in support the case of Jalayemi & Ors v. Alaoye & Anor 18 NSCQR 682 at 703. He submitted that it is not permissible to declare the Respondents the owner of the disputed land merely because of the discrepancies allegedly found in the case of the Appellants when the said Appellants have not counter – claimed in the suit.
Learned senior counsel stated that there are five ways by which ownership of land can be proved in our judicial system. He referred the court to the case of Idundun v. Okumagba (1978) 9-70 SC 222.
Onwugbufo v. Okoye (1996) 7 NWLR pt 424 page 292 at 279-280.
Lawson v. Ajebulu (1997) 6 NWLR pt 507 page 14 at 17
Learned senior counsel maintained that the Respondents having pleaded traditional history must plead and prove three ingredients or elements which he listed as follows:
1. Who founded the land in dispute?
2. How the land was founded.
3. The particulars of the intervening owners through whom he claims.
He argued that there should be evidence in proof of pleaded facts. He cited in support of this submission the cases of Boniface Anyika & Co. Ltd. v. Uzor (2006) 26 NSCQR 7346 at 7355.
Learned senior counsel argued that the Respondents abandoned the Igbota-ani custom pleaded by them and did not mention it in their evidence before the trial court. He submitted that it is the law that custom must be strictly proved. He referred the court to the cases of
Ajibi v. Oloewe (2003) 1 NWLR pt.822 page 237 at 273.
Ahuachogu v. Ufomba (1998) 12 NWLR pt.577 page 293 at 304
He contended that the Respondents must testify specifically in respect of Igbota-ani custom. He maintained that the trial court had used the word deforestation interchangeably with Igbota-ani custom when the incidents of Igbota-ani that was pleaded go beyond acts of deforestation. Learned senior counsel submitted that the court below’s allusion that Igbota-ani custom is the same thing as deforestation is perverse. He argued that apart from the fact that the Respondents did not plead that Igbota-ani custom is the same thing with deforestation, they did not lead any evidence to that effect.
He argued that parties are free to formulate their cases as desired by them, but once formulated, they are bound by it and must establish their case as pleaded. He referred to the cases of
Ehimare v. Emhanyan (1985) 1 NWLR pt 2 page 117 at 190.
Buhari v. Obasanjo (2005) 13 NWLR pt.941 page 1 at 309.
Learned senior counsel maintained that from the judgment of the court below, it is clearly the case of the Appellants that Adike was the common ancestor of both the Respondents and the 1st Appellants and was accepted by the court, but that, that aspect of the pleading appears to be the basis upon which the court below held that there is a common ground between the parties that Adike was the founder of Obosi community.
Learned senior counsel submitted that since this action seeks both declaration and injunctive reliefs, the declaration sought must be proved. He contended that assuming without conceding, that there was any admission on the part of the Appellants in this matter, it does not relive the Respondents from the onus placed on them of proving their claim as pleaded. He referred the court to the case of
Taduggoronno v. Gotom (2002) 4 NWLR pt 757 page 453 at 476.
Learned senior counsel argued that one single act of deforestation by “Adike” the undisputed common ancestor of the parties cannot constitute the custom of the Obosi people. He further argued that for an act to constitute a custom, it must have been the practice of the members of the community over a long period of time. He referred this court to the case of Kundey & Ors v. Military Governor of Gongola State & Ors (1988) 1 NSCC 827 at 840.
Learned senior counsel argued that no member of the community gave evidence for the Respondents with respect to Igbota-ani custom and that the Respondent did not show the practice of Igbota-ani in Obosi. He submitted that because custom ought to be strictly proved, the law has made it a practice that will not be safe to rely on the sole evidence of a person asserting a custom to make a finding that a custom exist. He insisted that the Respondents never called independent witnesses from Obosi community to show that the custom prevails. The court was referred to the cases of
In Queen Ex Parte Ekpenga v. Ozogula II (1962) 7 All NLR 264 at 268.
Eeanya v. Okeke (1995) 2 NWLR pt 388 page 742 at 767.
Onyejekwu v. Onyejekwu (1999) 3 NWLR pt 596 page 482 at 492.
Learned senior counsel submitted that the trial court was therefore wrong to have treated the issue of customs as requiring no proof on the part of the Respondents. He contended that in so doing, the trial court proceeded to speculate on facts not given in evidence at the trial. He submitted that it is trite that speculation is not part of the judicial functions of the court and that one of the cardinal principles of adjudication is that a court should not speculate. He cited in support of the cases of
Archibong v. Ita (2004) 2 NWLR pt 858 page 590 at 624-625.
Sky Insp. (Nig.) Ltd. (2002) 17 NWLR pt.795 page 86 at 716.
A.C.B. Plc v. Emostoade Ltd. (2002) 1 NWLR pt 770 page 501.
Learned senior counsel urge the court to hold that the Respondents who predicated their root of title on Igbota-ani custom failed to prove same. He referred the court to the case of
Magaji v. Cadbury Nig. Ltd, (1988) 2 NWLR pt.7 page 393 at 431.
He maintained that the Respondents who have failed to prove their root of title cannot rely on any act of ownership as a basis of their entitled to judgment. He argued that since the Respondents origin of title is invalid, they can no longer rely on any act of ownership and possession to sustain their title.
G. E. Ezeuko Esq. learned counsel for the Respondents submitted on this first issue that the Plaintiffs pleaded who founded that land, how he founded the land and how the land in dispute devolved to them.
The court was referred to paragraphs 4, 5 and 6 of the Plaintiffs Statement of Claim and the evidence of PW2 at pages 119-120 of the Record of Appeal, as well as the cases of Okpala Ezeokonkwo & Ors. v. Nwafor Okeke & Ors (2002) FWLR pt 109 page 1652 at 1668.
Hyacinth Anyanwu v. Mbara & Anor (1992) 5 NWLR pt 242 page 386.
Learned counsel argued that from both the pleading and evidence adduced by the Plaintiffs, they have satisfied what the law requires of them and that the lower court was right in granting the reliefs of the Plaintiffs, having found their traditional evidence to be cogent, conclusive and satisfactory. He referred this court to the cases of
Abinabina v. Enyimade (1935) 12 WACA 171.
Balogun v. Akanji (1988) 1 NWLR pt.70 page 301 SC
Learned counsel referred the court to paragraphs 5 and 6 of the Amended Joint Statement of Defence at page 85 of the Record of Appeal where the Defendants specifically pleaded lgbota-ani custom and its meaning which is deforestation.
He argued that in view of the Defendants’ pleadings, both parties are in agreement that Igbota-ani or deforestation is a recognized method of acquiring title over land in Obosi. He contended that the Defendants having admitted the process of deforestation in the pleadings, cannot turn round and deny such in their testimony. Learned counsel cited in support of his contention the provisions of section 75 of the Evidence Act cap 112 laws of the Federation of Nigeria and the cases of Ejebu v. Okoro (2001) FWLR pt 79 page 1350, Agbaisi v. Ebikorefe (1997) 4 NWLR pt 502 page 630
He submitted that where a party gives evidence at variance with pleadings, the court is duty bound to discountenance such evidence as it goes to no issue. He referred the court to the cases of
Adimora v. Ajugo (1988) 3 NWLR pt.80 page 1.
Makinde v. Akinwale (2000) FWLR pt.25 page 1562.
Learned counsel submitted that customary law is an issue of fact that must be proved and that such proof is not one of the areas in which this law requires corroboration. He referred the court to the cases of
Otaru v. Otaru (1986) 3 NWLR pt 26 page 14.
Usiobaifo v. Usiobaifo (2005) All FWLR pt 250 page 131 at 141.
Learned counsel referred the court to the findings of the learned trial judge in particular at page 169-170 and submitted that the finding and conclusion is amply supported by evidence and cannot be faulted, more so where the 1st Defendant/Appellant at page 2 of Exhibit P admitted that he bought the land in dispute from Iyiawa Family of Onitsha in 1971. He submitted that in a claim for declaration of title, the onus is on the Plaintiff to prove his case and he must rely on the strength of his own case and not on the weakness of the defence except where the weakness of the Defendant’s case tend to strengthen the Plaintiff’s case or where the Defendant’s case supports his case. He cited the case of Aromire v. Awoyemi (1972) All NLR 705.
Learned counsel maintained that the Respondents have not only led cogent, direct and positive evidence to show the strength of their case but that Appellants pleading and evidence on deforestation clearly support the case of the Respondents.
He contended that the lower court unquestionably evaluated the evidence and appraised itself of the facts, guided by the principles as laid down in Woluchem v. Gudi (1981) 5 SC 291.
The Appellants in their Amended Reply Brief argued that the Respondents failed to point out the evidence of any of their witnesses defining the Igbota-ani custom. Learned counsel for the Appellants submitted that it is the law that custom must be strictly proved not being a matter that can be established by inference or speculation. The court was referred to the cases of
Ajibi v. Olaewe (2003) 8 NWLR pt 822 page 237 at 273.
Ahuachogu v. Ufomba (1998) 12 NWLR pt.577 page 293 at 304.
Jolayemi v. Alaoye (2004) 12 NWLR Pt.87 page 322 at 340.
Ifeajuna & Ors v. Ifeajuna (1997) 7 NWLR pt.513 Page 405 at 423.
It was submitted on behalf of the Appellants that the cases of
Agbahomoro v. Eduyegbe (1999) 3 NWLR pt 594 at 170.
Agbaisi v. Ebikwefe (7999) 3 NWLR pt594.
Ogbuanyinya v Okudo & Ors (1999) 3 LRN 318 cited by the Respondents in their Brief in arguing that the court below was right in the manner in which it made use of the documents in its files was inappropriate in that the document was not pleaded, not tendered in evidence, nor its probative value demonstrated in the open court. He further argued that none of the parties ever referred the court to the document either during the hearing or at the address stage.
It has also been argued on behalf of the Appellants that it was wrong for the Respondetsb to make reference to the 1st Amended Joint Statement of Defence in the manner they did when there was a 2nd Amended Joint Statement of Defence upon which the case was contested.
It was the contention of the Appellants that there is nowhere in the said 2nd Amended Joint Statement of Appeal where the Appellants pleaded Igbota-ani custom and/or that Igbota-ani custom means deforestation. It was submitted that the law is settled that an amended pleading will no longer define the issue in contest between the parties. The court was referred to the case of A.C.B. Plc v. N. T. S. (Nig,) Ltd (2007) 1 NWLR pt.1016 page 596 at 618.
He submitted that it is settled law that Declaration to title is not awarded to a party based on the pleadings of his opponent or any admission therein. He argued that it is for a party claiming Declaration to have same established from his pleadings and evidence led. He referred the court to the case of Adasama v. Aderonmu (2000) 1 NWLR pt 672 page 370 pt 382-383.
It is trite that in a claim for declaration of a title to land based on traditional evidence, the Plaintiff must plead and lead sufficient evidence to establish the following:-
1. Who found the land?
2. How the land was founded and
3. Particulars of the intervening owners through whom he claims. See Okpala Ezeokonkwo & Ors v. Nwafor Okeke & Ors (2002) FWLR pt.109 page 1652 at 1668.
Hyacinth Anyanwu v. Mbara & Anor (1992) 5 NWLR pt 242 page 386.
In the instant case the Respondents who were Plaintiffs before the lower court pleaded in their Statement of Claim in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 at pages 53-54 of the Record of Appeal that their root of title based on traditional history as follows:-
4. The plaintiffs aver that the land in dispute is owned by the plaintiffs family from time immemorial starting with their foremost ancestor called TUMATCHA who first cleared the said land then a virgin forest, farmed, cultivated and settled thereon. The land from the plaintiffs foremost ancestor has been in an unbroken possession of the plaintiffs and through successive inheritance from the plaintiffs’ ancestors devolved on the plaintiffs.
5. Tumatcha, the foremost ancestor of the plaintiffs, owned the land by being the first to come into the and then a virgin forest and cleared and cultivated the virgin land by a custom of Obosi known as Igbota-ani.
6. By this Obosi custom of Igbota-ani, whoever first came into a virgin forest, cleared and cultivated it, automatically becomes the owner. This ownership devolves unto his descendants from generation to generation.
7. The Plaintiff who are the descendants of a common ancestor called TUMATCHA are the bonafide owners of this land in dispute called OMOKO LAND.
8. Tumatcha begat UGBANA and AMAECHINA
9. Ugbana begat ILOJIOFOR who begat UMUORAH and ATUONA. Atuona begat Ilonkwu, Ilonkwu begat Udogu, Udogu begat Azubuike, Azubuike begat Augustine Udogu who is the first plaintiff in this suit.
10. Ugbana the first begat Onwuzor, Onwuzor begat Ugbana the 2nd, Ugbana the 2nd begat Agulefo, Agulefo begat Obidozor, Obidozor begat Amaifeobu, Amaifeobu begat Augustine Anene Obidozor who is the 2nd plaintiff in this suit.
11. Ugbana begat Onwuzor, Onwuzor begat Ikenegbu, Ikenegbu begat Akonobi, Akonobi begat Uzowulu who is the 3rd plaintiffs in this suit.
12. The Plaintiffs aver that their family name of “Umutumacha” was derived from TUMATCHA the founder of the land in dispute known as and called OMOKO LAND.
13. The Plaintiffs aver that right from their foremost ancestor and now to them they have been exercising maximum and unchallenged acts of ownership and possession over the land now in dispute by inter alia farming and cultivating same, letting same out to several farmers on terms who cultivate thereon.
In support of these averments of the Respondent, evidence was given by PW2 the 1st Plaintiff at pages 119 – 120 of the record of Appeal as follows:-
“The land in dispute in this case is owned by us Umu-Utumocha as shown in Exhibit A. The land was originally owned by our great grand father Utumocha, Utumocha got the land according to Obosi custom. He was the first to clear the land and it became his own according to our native law and custom, No other person owned the land before Utumocha and no other person had laid claim to the land.
Before this case no other person has trespassed or laid claim on the land except the present Defendants in this suit.
………………………….
………………………….
From the line of Utumocha till date we the survivors own the land.
We are Umu Utumocha because Umumocha is our ancestor. I know where the Army Barracks is located. It is on the land of Esi Owulu and we Umu Utumocha lived at the spot.
I know when the Government acquired the land. A notice was issued calling on all land owners at the area to submit their claims for compensation, Umu Utomocha put up a claim for compensation,”
Now having established who founded the land claimed by the Plaintiffs, the next requirement is how the land was founded.
The Plaintiff/Respondent claimed that the land in dispute was founded through the process of Igbota-ani or deforestation.
The custom of deforestation or Igbota-ani is corroborated by the Defendants when in paragraph 5 of their 2nd Amended Joint Statement of Defence at page 96 of the Record of Appeal they averred as follows:-
‘5, Adike first settled and deforested the land called Ozalla land Obosi part of which is now in dispute. He farmed the land and carried out other maximum acts of ownership and possession in the said land unhindered.’
A party should be consistent in starting his case and consistent in proving it. See Amana Suits Hotels v. PDP (2007) 6 NWLR pt 1031 page 453. In the instant case the 1st Defendant under cross-examination at page 146 of the Record of Appeal testified that:-
‘Paragraph 5 of Statement of Defence. The word deforest is a taboo to Obosi.
This evidence of 1st Defendant clearly contradicts paragraph 5 of their 2nd Amended Joint Statement of Defence, wherein they averred that their ancestor Adike first settled and deforested the land. It is trite that where a party gives evidence at variance with its pleadings, such evidence goes to no issue and the court is entitled to discountenance such evidence. See
Makinde v Akinwale (2000) FWLR pt 25 page 1562.
Adimora v. Ajufo (1988) 3 NWLR pt 80 page 7.
Equity will also not allow a pari to approbate or reprobate at the same time. A Defendant who has admitted averments in Plaintiff’s Statement of Claim would not be allowed to abandon such admission. See A.G. Lagos State v. Purification Tech. Nig. Ltd, (2003) 16 NWLR pt 845 page 1
The Appellants have argued that the evidence given by PW2 in support of the Obosi custom of deforestation or Igbota-ani is insufficient to prove the custom and that the Respondent never called any independent witness.
The law is that customary law is an issue of fact which must strictly be proved. See Otaru v. Otaru (1986) 3 NWLR pt 26 page 14.
In Ajibi v. Olaewa (2003) 1 NWLR pt.822 page 237 at 273 it was held thus:-
‘Matters that are associated with or related with native law and custom or customary law on Chieftaincy are to be strictly proved by calling cogent reliable and credible evidence.’
What the law requires for proof of matters of customary law is cogent, reliable and credible evidence.
Such proof required does not need to be corroborate by other witnesses.
In Usiobaifo v. Usiobaifo (2005) All FWLR pt 250 page 737 at 744 the supreme court said on the state of the law on the matter thus:-
“Proof of customary law is not one of the areas in our adjectival law that need corroboration while it could be desirable that a person other than the person asserting the customary law should testify in support of the customary law, it is not desideratum, This is because the Evidence Act does not so provide, It simply provides in section 14 (1) that a custom can be proved to exist by evidence. This warrant that a single witness or more witnesses may suffice. However a community of witnesses is not required but the quality of evidence given by the single witness or more witnesses.”
The learned trial judge made a finding on whether the Plaintiffs have established title to the land in dispute at pages 169-170 of the Record of Appeal thus:-
“The Plaintiffs testified that their ancestor Tumaocha occupied the land by clearing it or deforesting it i.e. Igbota-ani. The Defendant/DW1 and DW2 in a bid to dispute the claim of the Plaintiff as to the origin of the land said that the process of deforestation or Igbota-ani is a taboo to Obosi and as such is not Obosi custom, I find it rather difficult to accept the Defendant’s assertion that the process of deforestation or Igbota-ani is a taboo in Obosi particularly when the Defendant at paragraph 5 of their Statement of Defence they pleaded as follows:-
‘5. Adike first settled and deforested the land called Ozalla land Obosi part of which is in dispute. He farmed the land and carried out other maximum acts of ownership and possession in the said land undisturbed’.
If Adike who has been admitted to the common ancestor of the Plaintiffs and the Defendants claim title to the land by deforesting it, can any Obosi man then rightly say that the act of deforestation Igbota-ani is a taboo in Obosi land? The answer is definitely No.”
The finding of the trial court which is supported by evidence and reached after careful evaluation of all the evidence and facts before it cannot be faulted.
The Defendants like the Plaintiffs are free to formulate their case as desired by them but once formulated they are bound by it and must establish their case as pleaded. In
Elimare v. Emhonyon (1985) 1 NWLR pt 2 page 117 at 790, it was held thus:-
“Patties are bound by their pleadings and must stand or fall on those pleadings. They are not allowed to depart from the case they have put forward on their pleadings.
The Defendants are not consistent in the defence of their case.
The Defendants introduced a totally different defence from that pleaded in their 2nd amended Joint Statement of Claim when the 1st Defendant in a letter to the Obosi Central Landlords Association Exhibit P at page 2, claimed to have bought the land in dispute from Iyiawa family of Onitsha in 1971 thus making a nonsence of his proof of title by traditional history.
I am not unmindful of the fact that in a claim for declaration of title the onus is on the Plaintiff to prove his case and must rely on the strength of his own case and not on the weakness of the defence, except where the weakness of the Defendants tends to strength the Plaintiff’s case or where the Defendants case supports his case. See Dike v Okoloedo (1999) NWLR pt 623 page 359 at 371.
Aromire v. Awoyemi (1972) All WLR 105,
In the case of
Jalayemi & Ors v, Alaoye & Anor.18 NSCQR 682 at 703, the court held as follows:-
“I realize that the Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that a necessity of the Defendant to confront the case so made may arise,”
In the instant case the Respondents have led cogent, direct and positive evidence to show the strength of their case and the pleadings and evidence on deforestation by the Appellants also supports the case of the Respondents.
I am of the opinion that the trial court was right in granting a declaration of title in favour of the Plaintiffs/Respondents having found that the evidence of the Plaintiffs/Respondents, on traditional history to be cogent, conclusive and with no unexplained lapses.
This issue is resolved in favour of the Respondent
ISSUE TWO
Did the Respondent establish the boundary of the land in dispute asserted by them.
Learned counsel for the Appellant referred the court to Exhibit A the Respondents’ Survey Plan of the land in dispute. On the said Exhibit A, learned counsel contended that the land in dispute has boundary with the land of Achusim family and that both parties agreed on the point. He argued that the respondents did not even call the Achusim family to testify to this. He contended that the Achusim family is from Ire village not from Isi Owulu.
Learned counsel challenged the finding of the lower court that the land in dispute falls on the side of Isi Owulu to which the Plaintiffs belong. The Appellant also attacked the evidence of their witness DW2 who said that if he stands on the land facing Onitsha – Enugu expressway, the right hand side goes to Isi Owulu, the left hand is Ire and Umuota and that Isi Owulu has no business on that side.
Learned counsel contended that the holding of the trial court was completely contrary to the evidence before it and that the evidence of DW2 relied upon only mentioned that to the left of the land in dispute is Ire whilst to the right is Isi Owulu. He argued that where the DW2 stood in the land in dispute to define his left and right was not stated by him to belong to the Respondents as concluded by the trial court. He contended that DW2 did not state that the place he was standing on belongs to the Respondents. Learned counsel argued that it has been shown that the boundary between Umuachusim family of Ire village, a component of the Ire Obosi, who ought not to have owned land on the right hand side in line with the Respondents imaginary boundary actually owned land therein and also obtained same through inheritance. He argued that the existence of that boundary was not proved by the Respondents and that the trial court was thus wrong to have accepted the evidence of the boundary as proof and to have acted on the said evidence.
Learned counsel insisted that the finding of the trial court that DW2 admitted the boundary in Exhibit C to be the boundary of the Obosi people as known by Obosi people is not born out of evidence and is therefore perverse. He argued that exhibit C the Obosi Master Plan, is an inadmissible document and that this trial court ought not to have relied on same in entering judgment for the Respondents.
Learned counsel submitted that both parties and the court are bound by the pleadings in a suit and he referred the court to the case of National Investment and Properties Co. Ltd. v Thompson Organization Ltd & Ors (1969) NSCC 161.
He argued that Exhibit C is neither the original Obosi Master Plan tendered in suit No. 0/80/81 nor a Certified True Copy. He contended that under section 109 of the evidence Act, the said Obosi Master Plan is clearly a public document and therefore, the Respondents ought to have subpoenaed the relevant officer to tender it. Learned counsel maintained that the Appellants in this matter had opposed the admission of the document at the court below. He submitted that the court below having admitted it ought to have expunged it from its record and not to have relied on the said master plan in its judgment. He referred the court to the case of Minister of Lands Western Nigeria v. Dr. N. Azikiwe & Ors. (1996) 6 NSCC 31.
In his submission on this second issue, learned counsel to the Respondents referred the court to paragraphs 3 and 17 of the Plaintiffs Statement of Claim at pages 77 and 78 of the record of Appeal as well as the a evidence of PW1, PW2 and DW2 which supported the pleadings.
Learned counsel argued that Exhibit C the Obosi Master Plan No.ECAS/7/82 and Exhibit A Plaintiffs Plan No.TLS/AN/D.38/98 and Exhibit B Plan No.TLS/AN/D. 58/98 pleaded and tendered by the Plaintiffs show the boundary of the land in dispute. He argued that the Plaintiffs had said that the purpose of tendering ‘Exhibit C’ is to show clearly the boundary between the Plaintiffs/Respondents and the Defendants/Appellants and that this boundary is shown on Exhibit C verged yellow. He also argued that the Defendants/Appellants pleaded Exhibit C in paragraph 57 of their second Amended Joint Statement of Defence at page 101 and that their witness DW1 gave evidence on it at page 137 and 138 of the Record of Appeal. He further argued that DW2 under cross examination in respect of Exhibit C at page 145 of the Record of Appeal amplified the probative value of Exhibit C. DW2 in his testimony referred to Exhibit C the Obosi Master Plan No.ECAS/9/82 at page 142 of the Record of Appeal.
He contended that both the Plaintiffs and Defendants fully acknowledge the existence of Exhibit C which is the Obosi Master Plan used by the Obosi people in their suit against Onitsha people over the same area of land part of which forms the area now in dispute. Learned counsel argued that the parties having relied on Exhibit C in their case against Onitsha people, cannot now be allowed to disclaim Exhibit C because at the time Exhibit C was made it was not within the present parties contemplation that this present suit will eventually arise. He maintained that it is the case of the Plaintiffs that the land in dispute was part of a large expanse of land involved in Exhibit C which was relied on by both parties as Obosi indigenes against Onitsha people in suit No.0/80/87 and that the Plaintiffs filed Exhibit B which is a plan showing the superimposition of the land in dispute in Exhibit A with Exhibit C. He maintained that the superimposition clearly placed the land in dispute within Exhibit C and particularly the yellow verge which the parties agreed as forming the boundary between Isiowulu and Ire Obosi.
Learned counsel contended that the evidence of DW1 at page 138 of the Record of Appeal is crucial in resolving whether the land in dispute is located within Isiowulu village side or Ire village side of Exhibit C which is the Obosi Master Plan. He maintained that an examination of Exhibit A and B shows that DW1 was absolutely correct in giving the exact location and boundary of the land in dispute. He contended that both the Plaintiffs plan, Exhibits A and B, and the Defendants plan, Exhibit N, are in agreement that the land in dispute frontally is facing Onitsha – Enugu Expressway while its back aligns with the boundary wall separating it and Onitsha Army Barracks. He argued that it is therefore correct per the evidence of DW1 that if one stands on the land in dispute facing Onitsha – Enugu Expressway, the right hand side goes to Isiowulu village of the Plaintiffs while the left hand side goes to Ire village. He insisted that this is correct because on Exhibit A, B, C and N there is no other piece of land on the right a hand side of the land in dispute if one stands on the land in dispute facing the expressway. The left hand side is Ire village land and the Plaintiffs’ boundary neighbor, the Umuachusim family, is from Ire village Obosi. He maintained that the boundary between the Plaintiffs and Achusim or Umuachusim is shown on Exhibit A with Ogilisi and Ebenebe trees demarcating the boundary.
Learned counsel submitted that it is not the law as submitted by the Appellant, that in order to be granted declaration of title in respect of land the Plaintiffs must call his boundary witnesses or any particular witness rather what is required is that the Plaintiff should lead credible, cogent and satisfactory evidence. The court was referred to the case of Shobago v. Ikotun (2009) FWLR pt.172 page 1751. Learned counsel for the Respondents maintained that this legal requirement has been satisfied by Exhibit C and that the learned trial judge was right in ascribing probative value to it. He submitted that the trial court was right in accepting Exhibit C as clearly showing the boundary between the parties. He argued that it is not the law that in tendering a document where the maker of the document is dead or cannot be called to give evidence without undue expenses, that the party seeking to do so shall state so in his pleadings.
Learned counsel contended that the correct position is that party seeking to tender such evidence will lay the proper foundation while giving evidence for the court to receive the secondary evidence. He contended that PW2 in his evidence at page 118 of the Record of Appeal clearly laid proper foundation before tendering Exhibit C.
On the contention of the Appellants that Exhibit C is a public document and ought to be certified, learned counsel for the Respondents argued that the Appellant have totally misconceived the law on this point.
Learned counsel argued that Exhibit C in possession of PW2 does not need certification because it does not fall within the category of such documents as envisaged under section 109 of the Evidence Act. Learned counsel submitted that the earned trial judge was right in discountenancing the objection to its admissibility of Exhibit C, the Obosi Master Plan.
Where a trial is conducted on the basis of pleadings all relevant allegations in the pleadings must be proved by evidence and such evidence must be in line with the Pleading. See
Alamisyuigha v. Igoniwari (No.2) (2007) 7 NWLR pt.1034 page 524.
N.A.C. Ltd v. Uba Plc. (2005) All FWLR Pt.284 page 275.
Buhari v. Obasanjo (2005) 2 NWLR pt.910 page 241.
Olorunfemi v. Asho (2000) 1 SC 15.
Where a document is pleaded to establish a particular fact, it can only be used for that fact and can not be used to prove another fact which is not an issue in the pleadings. See
Omega Bank (Nig.) Plc. v. O. B.C. Ltd. (2005) 8 NWLR pt 928 page 547.
In the instant case the Plaintiffs/Respondents gave a description of the land in dispute in their pleadings particularly in paragraphs 3 and 17 of their Statement of Claim at pages 77 and 78 of the Record of Appeal thus:-
“3. The land in dispute forms part of a larger expanse of land of the Plaintiffs Omoko land situate at Obosi, within the jurisdiction of this honourable court. The said land in dispute is more particularly described and delineated in survey Plan No.TLS/AN/D.38/98 filed with this Statement of Claim wherein it is verged pink, The Plaintiffs shall at the trial rely on all the features of the plan as well as Obosi Master – Plan No. ECAS/7/82 made in suit No.0/80/81 by surveyor Chidolue chowing the boundary between Isiowulu and Iwe Obosi and also the superimposition of the Plaintiffs Plan on the said Master – Plan which superimposition is shown in Plan No.TLS/AN/d.58/98 also herein filed”‘
“17. While the Defendant is from Ire village, Obosi in an area commonly referred to as “Ime Obosi the Plaintiffs are from Isiowulu Ugamuma village, Obosi, No member of Ire village owns land around the area in dispute except by purchase. The Plaintiffs will find onn Obosi Paster – Plan No.ECAS/7/82 in supporting their averment that any member of Ire Obosi who crossed the boundary to have land at Isiowulu did so by purchase or grant from a member of Isiowulu community, The said plan demarcates the boundary of Isiowulu and fme Obosi”‘
The plaintiffs in support of their averments called PW1 Aloysius Obi Igboanugo, it chartered Licensed Land Surveyor who tendered Exhibit ‘A’ Plan No.TLS/AN/D.38/99 and Exhibit ‘B’ plan No.TLS/AN/D.58/98. PW1 in his testimony said at page 116 of the Record of Appeal thus:-
”At the request of the Plaintiffs I superimposed the survey plan which I made Exhibit A on the Obosi Master Plan I.D. No. 7, and based on that I produced my own plan showing the superimposition.
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The line verged yellow on Exhibit B according to the Plaintiff is the boundary between the Obosi and Isi Owulu”
Both parties to this dispute had relied on the Obosi Master – Plan No.ECAS/7/82 to establish their case.
PW2 gave evidence of the Obosi Master – Plan No. ECAS/7/82 and it was tendered in Evidence through him as “Exhibit C”. The witness who hail from Ugamuma village, the same village as the Plaintiffs said in his testimony at page 118
“I know the Defendant Chief A. C. Nwabude. He is from Ire village in Ire Obosi. I do not know the person called Tramet Nig, Ltd. I know the land in dispute in this case. We call it Ani Omoko. I am a native of Isi Owulu in Obosi. My family are natives of Isi Owulu Obosi. The land in dispute is in Isi Owulu in Obosi. It is in Isi Owulu Obosi, We have a survey plan of this land. We of a land surveyor who surveyed the land for us (witness identified the survey plan Exhibit A), There is a plan called Obosi Master – Plan called Obosi Master – Plan. I know it. We used it in a land case when Mbanefo was giving us trouble on the land’ Igwe Iweka the second represented Obosi in that case. Kodilinye was the king or ruler of Obosi when Mbanefor was giving us trouble on the land, Surveyor Chidolue made the Obosi Master-Plan, When the Obosi people went to stand on the land to identify the land it turned out that the people directly concerned are the people of Isi Owulu. I am from Isi Owutu ad the land is Isi Owulu land. I am informed that Surveyor Chidolue is now dead. When the case was on, I endeavoured as Isi Owulu man to procure a copy of the Master – Plan,”
PW2 further said at page 119 of the Record of Appeal that:-
“The Master Plan shows the boundary between Isi Owulu and Ire Obosi. It is verged yellow. The yellow verge on the Master-Plan is found in Exhibit B. The yellow verge is showing the boundary between Ire Obosi and Isi Owulu, The land indispute in this case is owned by us Umutumacha as shown in Exhibit A.”
I have earlier said in this judgment that both parties to this dispute pleaded the Obosi Master Plan No.ECAS/7/82. The Defendants in paragraph 57 at page 101 of the Record of Appeal averred in their 2nd Amended Joint Statement of Claim thus:-
“Paragraph 17 of the Plaintiffs Statement of Claim is denied, the Defendant in answer aver that the Obosi Master Plan No, ECAS/7/82 was made in suit between Obosi as a community and Onisha community.”
DW1 Chief Michael Amechi Nwabude said on the issue of the boundary of at the land in dispute at pages 137 to 138 of the Record of Appeal as follows:-
“The Plaintiffs said that there is a boundary between Ire Obosi and Isi Owulu, The boundary was made by Obosi people, I know the boundary. We are on opposite sides,
If I stand on the land facing Onisha – Enugu Expressway, the right hand side goes to Isiowulu. The left hand is Ire and Umuota, Isi Owulu has no business on that side.
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I am aware of the land matter between Obosi and Onisha, I testified in that case, There was a master survey plan of Obosi which was used in that case. The lawyers handled the survey plan. That plan delineates the boundary between Onitsha and Obosi,
I do not inspect the plan, I can not read the plan, I can not say whether the plan shows the family land boundaries in Obosi,”
It is the case of the Plaintiffs/Respondents that the purpose of tendering “Exhibit C” is to clearly show boundary between the Plaintiffs/Respondents and the Defendants/Appellants and that this boundary is shown on Exhibit C verged yellow.
DW2 Chief Austine Chukwuemeka Nwabude said on Exhibit C at page 142 to 143 of the Record of Appeal thus:-
“I have seen Exhibit C and f have also seen the yellow verge which is the boundary between Isi Owulu and Chimezie Ikeazon The portion owned by Chimezie is Ire land which he got from his family. The boundaries between land in Obosi are never straight lines: This Exhibit C is the Suruey Plan which we used in our case with Onisha people.”
The testimony of DW1 supports the description of the land in dispute by Exhibit A and B. It is not in dispute as between the parties that the land in dispute directly faces Onitsha – Enugu Expressway. Exhibits A and B shows the exact location of Onitsha – Enugu Expressway and the Onitsha Army Barracks which was itself part of the Isiowulu land before it was acquired by the Government. Both the Plaintiffs plan Exhibit A and B and the Defendants Plan Exhibit N, are in agreement that the land in dispute is directly facing the Onitsha – Enugu Expressway while its back aligns with the boundary wall separating it and Onitsha Army Barracks. DW1 was therefore correct in describing the exact boundary of the land in dispute when he said that if one stands on the land in dispute facing Onitsha – Enugu Expressway, the right side goes to Isi Owulu village of the Plaintiffs and the left hand goes to Ire village of the Defendants. This is correct because a look at Exhibit A, B, C and N will indicate that there is no other piece of land on the right hand side of the land in dispute, if one is on the land in dispute is Ire village land and the plaintiffs’ boundary neighbour, the Umuachusim family is from Ire village Obosi. The boundary between the Plaintiffs and Achusim or Umuachusim is shown on Exhibit A with Ogilisi and Ebenebe trees demarcating the boundary.
In further describing the neighbours of the land in dispute PW1 under cross examination at page t27 to 128 of the Record of Appeal gave evidence in line with Exhibit A as follows:-
“Exhibit A is the plan of our land, Umuachusim has nothing here, Umuachusim are from Ire Obosi and have their land on Ire Obosi side, Umuachusim land terminates at the boundary of the Ire Obosi and Isiowulu land, Umuachusm people are our neighbours on the land.”
DW2 at page 143 to 144 of the Record of Appeal described the land in dispute as per their plan Exhibit N thus:-
“I can find Omoko land on the plan. I have seen it at the middle of the Army Barracks at OniBha, This Omoko land of Umuodogwu and the second to the north hand side is Omoko land of Umuakalu, Umu Utumocha has their family land inside the Army Barrack in Onitsha, There is an Ozalla Egbuaghalu land of Umuachusim of Oliobi of Umude in Ire.
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Below the land in dispute is Umuachusim family land.
At page 144 DW2 continued
“Umuachusim family said that they owned land there and I said that since we are brothers that there is no problem and that they should join ire on the transfer of the land. So we made a joint agreement. When we discovered that Umuachusim had no land there, we cancelled the agreement From the evidence of DW2 and Exhibit N, the Umuachusim land is also a neighbour to the land in dispute as claimed by PW2 and shown on Exhibit A.
The evidence of DW1 which describes the boundaries of the land in dispute is relevant and admissible being an admission against interest. See Alon v. Dandrill Nig. Ltd. (1997) 1 NWLR pt 577 page 495 at 502.
Ojiegbe v. Olrwaranyia (1962) 2 SCNLR 358.
The trial court made a finding on the boundaries of the land in dispute at page 169 of the Record of Appeal thus:-
“I am equally satisfied that the boundaries as shown by the Plaintiffs and the defence in their testimonies backed by Exhibit C clearly and without any ambiguity indicate that Ire Obosi occupies the lands on the left and Isi Owulu occupies the land on the right of Onitsha/ Enugu Expressways.
The land in question therefore clearly falls on the side of Isi Owulu to which the Plaintiffs belong.”
The trial court made a correct finding on the boundary of the land in dispute. I am also in agreement with the trial court that the Respondents have established the boundary of the land in dispute asserted by them. The Appellants have argued that in order to be granted a declaration of title in respect of the land the Plaintiff must call his boundary witnesses. It is not the law that a Plaintiff seeking declaration of title to land must call his boundary neighbours as witness where the oral and documentary evidence given is sufficient to sustain the Plaintiffs’ case. The Plaintiff is only required to lead credible, cogent and satisfactory evidence. See
Shobajo v. Ikotun (2003) FWLR pt 172 Page 1751.
Exhibit C the Obosi Master-Plan was prepared by the Obosi people during their dispute with the Onitsha people.
There is no evidence before this court that it was prepared by any public authority such as the local, state or federal government or any parastatal of any of the tiers of government as to bring it within the provision of section 109 of the Evidence Act. It is therefore not a public document but a private document and does not require any certification before it can be admissible in evidence.
It is the evidence of PW2 that he got himself a copy of Exhibit C while the case was going on with the Onitsha people. There is no evidence that Exhibit C tendered by PW2 was not genuine. It is a copy made from the same source with the one tendered at trial during the Obosi and Onitsha dispute, it is therefore admissible.
This issue is resolved in favour of the Respondents.
ISSUE THREE
Was the court below right to have evaluated the Deed of Conveyance that was not pleaded by wither parties nor received in evidence as exhibit and relying on same in coming to its decision?
Learned counsel for the Appellants referred to the Appellants 2nd Amended Joint Statement of Defence at pages 96 – 102 of the Record of appeal and in particular paragraph 18 at page 97 and argued that the reason advanced by the trial court for considering the Deed of Conveyance, was because it was extensively referred to both in pleadings and in evidence by the parties.
Learned counsel maintained that the trial court was wrong in undertaking discussion and use of the Deed of Conveyance not tendered as Exhibit before it. He referred the court on this point to the cases of
Oladele v. Aromolaran II (1996) 6 NWLR pt 453 page 180 at 221.
Omega Bank (Nig) Plc v. O. B. C. Ltd (2002) 16 NWLR pt.794 page 483 – 516.
Learned counsel contended that the fact that none of the parties pleaded, demonstrated or gave evidence of the said Deed of Conveyance through out the whole trial clearly showed that none of the parties intended to build their case at the trial court on the document. Learned counsel argued that the trial court by making reference to the said document in its judgment was not holding the scale of justice even between the parties. He maintained that it was not proper for the trial court to refer to its file and that it is not permissible in a contested matter such as this for the court below to take up a document on its own, scrutinize its contents and then proceed to rise the said contents of the document to enter judgment against one of he parties in the proceedings without allowing the affected party to make any contribution thereby. Learned counsel contended that the use to which the trial court put the Deed of Conveyance was totally wrongful and a negation of the rules of pleadings and fair hearing.
On this third issue for determination, learned counsel for the Respondent referred the court to the evidence of DW1 at pages 137 and 139 and that of the DW2 at pages 143 and 144 of the Record of Appeal. He also referred the court to paragraph 18 of the Statement of Claim at page 78 and the evidence of PW2 at page 122 of the Record of Appeal.
Learned counsel argued that based on the extensive pleadings and evidence highlighted, the lower court was not in error when it said that the two exhibits attached to the counter-affidavit by the Appellants in the motion for interlocutory injunction were extensively referred to by the parties. He contended that it is a total misconception that a court should be precluded from looking at documents in its file.
He insisted that it is not the law that a court can not look at documents in its file in resolving conflicts. The court was referred to the cases of
Agbahomoro v. Eduyegbe (1999) 3 NWLR pt 594 page 170.
Agbasi v, Ebikorefe (supra)
Ogbuanyinya v. Obi Okudu & Ors (1979) 3 LRN 378.
Learned counsel submitted that since the documents are part of the Record of Proceedings of the trial court, it is in the interest of justice to have the falsity of the documents pointed out; moreso where the documents are exhibits in a motion for injunction and relied upon by the Appellants. He contended that the comparison by the court did not negate the rules of pleadings and fair hearing.
It was submitted that the use to which the trial court put the Deed of Conveyance was totally wrongful and a negation of the rules of pleadings and fair hearing. The trial court on pages 171-172 of the Record of Appeal said on the said Deed of Conveyance thus:-
“I now come to consider the pleading by the 1st Defendant that his family Nwabude family conveyed the land to him in 1970, Earlier in these proceedings, the Plaintiffs had by a motion on notice sought an order of court for an injunction restraining the Defendant from entering the land, in a counter-affidavit filed on 74/4/98 exhibited a letter to the Obosi Central Landlords Association dated 9/8/98 by one Daniel Ughanze saying that Umu Utumocha family have no land and the Deed of Conveyance by the Nwabude family conveyed the land to the 1st Defendant, This court per S. mb. Ibeziako J. 20th September 1998 considered and the motion with N10,000.00 costs. These two exhibits have been extensively referred to both in the pleadings and evidence of the parties and I declare it fit to consider the two in this judgment as part of the record of proceedings in this suit.
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The Deed of Conveyance between the Nwabude family and the 1st Defendant, A. C. Nnabude present some interesting features
(1) The 1st Defendant signed the Deed on behalf of Nnabude family conveying the land to himself, He signed as one of its vendors and signed as purchaser.
(2) He signed as the Head of Nnabude family when DW1 his elder brother was nowhere cited in the document could he be Head of Nnabudes family in the lifetime of his elder brother?
(3) The witness to the vendors is M. N. Okonkwo who described himself as a chartered insurance Underwriter and the witness to the purchaser A. C. Nnabude is M. N. Okonkwo an Accountant.
In his letter Exhibit P the 1st Defendant stated that he bought the land from fyiawa family of Onitsha for twelve thousand pounds in 1921. He did not mention the conveyance by his family,
I believe that the claim of a conveyance by the Nnabude’s family is fictitious document prepared by the 7th Defendant and registered. In considering the document filed in the motion for injunction in the court, f am not unmindful of the decision of the supreme court in Obulor & Anor v. Oboro (2001) 4 SC (pt.1) 77 at pp 79/80 wherein cour8 were warn to confine its judgments to matters pleaded and given in evidence.
In the present case, the two documents discussed here were exhibited in the motion for injunction and copiously relied upon in the pleadings and evidence before me. I deem it fit in the interest of justice to comment on the two documents as being part of the case before me.”
I have equally taken a look at the lease document at pages 34 to 40 of the Record of Appeal. The Deed of Lease was part of the court record having been attached to a counter-affidavit referred to on paragraph 16 of the said counter-affidavit and exhibited and marked C. It is titled
A CONVEYANCE OF FREEHOLD
BY
MESSRS AUSTEN CHUKWUEMEKA NWABUDE ANTHONY EZE
NWABUDE AND OSITANWABUDE.
ALL OF OBOSI IN IDEMILI DIUISION OF EAST CENTRAL STATE
TO
AUSTEN CHUKWUEMEIA NWABUDE
RELATING TO
LAND KNOWN AS AND CALLED OZALA
SITUATE IN OBOSI VILLAGE IN THE EAST CENTRAL STATE.
(Sign) S.B.C. OBIORA
SAM B. C. OBIORA & CO
SOLICITORS.
14 OKWUOSA AVENUE OGUI ENUGU.”
I also find that all the observation made by the learned trial judge on the said lease document are correct.
It is trite that a party should be consistent in starting his case and consistent in proving it. A party to a dispute will never be allowed to take one stance in his pleadings and then take a completely different stance during trial. See Amara Suits Hotels v. P.D.P (2007) 6 NWLR pt.1031 page 453 at 483.
In the instant case, the Defendants (Appellants) in their 2nd Amended Joint Statement of Defence particularly at paragraphs 17, 18, 59 and 60 at pages 97, 101 and 102 of the Record of Appeal pleaded as follows:-
“17. The land in dispute forms part of the Ozalla land inherited by Odogwu – Ezuga, which shares devolves unto Nwabude.”
“18. Nwabude family of Ire village Obosi conveyed large tract of the said Ozalla land to the 1st Defendant inter – alia under the native law and custom of Obosi people.”
“59. the Defendants deny paragraphs 79 and 20 of the Statement of Claim as false and repeats the averment in paragraphs 4 to 19 of the Joint Statement of Defence. The Nwabude family of Obosi granted to the 1st Defendant the land in dispute in 1970 when the Defendant wanted to establish Building Materials Industry on the land.”
“60. Paragraphs 22 28, 29 and 30 of the Statement of Claim are denied, the 7n Defendant aver that since the grant to him of the land in dispute by his family in 1970, he has been exercising various act of ownership and possession over same till 1986 when the land was merged with the Achusim family land and parts of the land transferred to the 2nd Defendant in 1987,”
However the 1st Defendant in Exhibit P, a letter he wrote to Obosi Central Landlords Association dated 18th march 1992 he said at page 2 that he bought the land in dispute from Iyiawa family of Onitsha in 1971, thus making useless his proof of title by traditional history.
In support of the Defendants averments in the 2nd Statement of Defence, DW1 in his evidence-in-chief at page 137 of Record of Appeal stated as follows:-
“When my brother 1st Plaintiff (Sir) Austine Nwabude returned from overseas, he requested for that land he bought some drinks to the family that he has arranged to bring some people to use that land, The family admitted his request and went to show him the land.”
DW1 again, said at page 139 of the Record of Appeal
“It was either in 1978 or 1975 after the Civil Wars that the family gave that the family gave that land to 1st Defendant ”
DW2 who is the 1st Defendant/Appellant in his testimony before the trial court said at page 140 of the Record of Appeal, thus:-
“I am the owner of Ozalla land, Nwabude family are the original owners of the land and they gave it to me so I own it. I gave the land to Tramet Nig, Ltd, as the owner”
DW2 further said at page 144 of the Record of Appeal
“Nwabude family gave the land after the Nigerian Civil War when I returned from overseas,”
The trial court in the instant case was proper to have looked at the documentary evidence in its file to resolve the conflicting evidence before it. This opinion of mine is supported by a plethora of decided authorities in which it has been held that a court of law can look at a document in its file while writing its judgment or ruling even though the document was not tendered as Exhibit at the trial. See
Akinola v. V. C. Unilorin (2004) 11 NWLR pt 885 page 610.
Agbahomoro v Edieyegbe (1999) 3 NWLR pt 594 page 170.
Agbisi v Ebikorefe (1997) 4 NWLR pt 502 page 630.
Ogbuanyinya v. Obi Okudia (7979) 3 LRN 318.
In the instant case, the trial court was proper to have taken a look at the Deed of lease contained in the courts file in this dispute. The comparison by the court and the observation made thereafter have not violated the rules of pleadings and fair trial. This issue is resolved in favour of the Respondents.
ISSUE FOUR
Was the court below right relying on the purported, decision or recommendation of the Obosi Central Landlords Association as an arbitral body which the parties voluntarily submitted their dispute?
Learned counsel for the Appellant in arguing this issue referred the court to the evidence of PW3 at pages 130 – 131 of the Record of Appeal as well as the finding of the trial court on the validity of Exhibits F from which counsel said it formed the opinion that the decision in Exhibit F was based on the recommendation of the Obosi Central Landlords Association. Learned counsel argued that the Respondents pleaded that it was on the strength of their complaint over the Appellants alleged act of trespass in 1993 that the Igwe Obosi-in-council took up the matter for arbitration. However he maintained that PW3 in his testimony stated that the Igwe gave them an assignment to carry out investigation on the ownership of the land in January 1992. Learned counsel contended that it could not be possible for the Igwe to refer the matter to Obosi Central Landlords Association in 1992 when the matter had not come to him for the purpose of arbitration.
He argued that against the evidence of PW3 that the Igwe referred the matter to them and they reported their findings to the Igwe and also showed him the letter from the 1st Appellant, were not pleaded and clearly goes to no issue. The court was referred to the case of
Awuse v. Odili (2005) 16 NWLR pt 952 page 416 at 504.
Learned counsel argued that there was no clearly meeting point between the Obosi Central Landlords Association and the Igwe-in-council. He contended that the trial ocuft was palpably wrong in finding that the decision of the Igwe-in-Council had any nexus with the proceeding of the Obosi Central Landlords Association and thereby holding that there was valid customary arbitration between the parties.
Learned counsel submitted that from the decision of the Supreme Court in the case of Agu v. Ikewibe (1991) 3 NWLR pt 180 page 385, a body assumes the position of arbitrators when a person voluntarily submit their disputes to the body to exercise judicial function in accordance with custom and the body reaches a decision the terms which were known, final and nonconditional. He argued that none of these conditions was satisfied by the event that took place before the Obosi Central Landlords Association. Learned counsel argued that the matter was allegedly taken to the Obosi Central Landlords Association by the Igwe and not by the parties. He argued that the facts erected by the Respondents in respect of the Obosi Central Landlords Association is a ruse in that there was no way the Igwe-in-Council could have in 1993 or thereafter refer the matter to Obosi Central Landlords Association. He contended that it is obviously impossible for the Igwe-in-Council who received complaint in 1993 from the Respondents to have referred the dispute to the Obosi Central Landlords Association in 1992. He argued that there was no pleading and therefore there could be no evidence that the said landlords Association made a final resolution of the dispute or made recommendations to anybody especially the Igwe-in-Council.
Learned counsel urged the court to hold that the trial court was wrong to have acted on the proceedings of the Obosi Central Landlords Association and used same as one of the basis for entering judgment against the Appellants.
It is submitted on behalf of the Respondents on this issue that it is evident from the Plaintiffs’ pleadings that in fact there were two arbitral bodies in Obosi that looked into the matter between the Plaintiffs and the Defendants. The court was referred to paragraph 18 of the Plaintiffs Statement of Claim at page 18 of the Record of Appeal as well as the evidence of PW2 at page 121 to 122 of the Record of Appeal where exhibit F a letter from one Daniel Ughanze to Obosi Central Landlords Association retracting his earlier statement was tendered in evidence.
Learned counsel argued that from the evidence of PW2, it is clear that Obosi Central Landlords Association has the responsibility to oversee all land in Obosi and that both parties appears before the Association to resolve issue of ownership in respect of the land in dispute. Learned counsel argued that despite the denial by the Defendant, Exhibit P which is the 1st Defendants/Appellants letter to the Obosi Central Landlords Association dated 8th March 1992 clearly contradicted the evidence of DW2.
Learned counsel for the Respondents maintained that the 1st Defendant at page 2 of Exhibit P had stated that he bought the land in dispute from Iyiawu family of Onitsha in 1971, thus making nonsense of his proof of title by traditional history. It is the evidence of PW2 that Obosi Central Landlords Association has the responsibility to oversea all lands in Obosi.
Learned counsel pose the question why the 1st Defendant/Appellant should write a petition to Obosi Central Landlords Association in respect of land bought from Onitsha people within the vicinity of the Army Barrack.
Learned counsel for the Respondent submitted that those were bogus attempts by the 1st Defendant to confuse any inquiry as to his ownership of the land in dispute. He contended that the Defendants/Appellants having made representation and called witness (Daniel Ughanze) to Obosi Central Landlords Association, they can not be allowed to resile because the decision was against them. Learned counsel referred to the evidence of PW3 at page 122 where he stated that that association’s decision was made known to all the parties. PW3 was a 95 years old chairman of Obosi Central Landlords Association who despite his age gave evidence before the trial court without equivocation that both parties appeared before them and based on their findings, the Plaintiffs’ people of Isiowulu are the owners of the land in dispute.
Learned counsel submitted that on the totality of pleadings, evidence and Exhibit E, the decision of Obosi Central Landlords association satisfies the criteria as laid down in Agu v. Ikewibe (1991) 3 NWLR pt 780 page 385. He maintained that the parties had appeared before the Obosi Central Landlords Association on their own without compulsion or coercion.
Learned counsel submitted that the general rule governing arbitration is that as parties choose their own arbitrator to be their judge in dispute between them, they cannot, when the award is good on its face object to his decision either upon law or on the fact. He cited the case of
Igwego v. Ezeugo (1992) 6 NWLR pt 249 page 561
Learned counsel for the Respondent contended that the parties having voluntarily appeared before the Obosi Central Landlords Association is indicative of their willingness to be bound by the decision since the parties were free ab initio not to appear before the Association. Learned counsel submitted that local or native bodies with responsibilities to look into complaints voluntarily submitted before them cannot be fully expected to strictly comply with technical procedure rules of the regular courts, and therefore decisions, findings or resolutions of disputes voluntarily submitted to these bodies should not be ascertain from the form, i.e compliance with procedure, but rather from the substance of the case. He cited on this point the case of
Oyah v. Ikalile (1995) 7 NWLR pt 406 page 750.
In their Amended Reply Brief, the Appellants contended that the Respondents had a duty to show from the pleadings and the evidence led that the arbitration award is applicable in the present case. Learned counsel for the Appellants maintained that the Respondents have not shown from the pleadings where they pleaded that the Obosi Central Landlords Association sat as an arbitral body and reached a decision. He argued that it is not just enough to reel out testimonies of witnesses as evidences when the said testimonies are not based on pleaded facts. Learned counsel for the Appellants submitted that it is trite law that evidence on fact not pleaded goes to no issue. He referred the court to the case of Akinbi w Military Governor of Ondo State (1990) 3 NWLR pt 740 page 525 at 533.
This issue concerns customary arbitration by the Obosi Central Landlords Association. The Plaintiffs/Respondents averred in paragraph 18 of their Statement of Claim at pages 78 and 79 of the Record of Appeal as follows:-
“18. when the dispute between the Plaintiffs and the Defendants came before the Obosi Central Landlords Association, the defendants manipulated one Daniel Ughanze from Umuakulu family, Isiowulu, to testify for them. By his letter dated 9th of August 1993, the said Mr. Ughanze denied the ownership of the land in dispute by the Plaintiffs. When confronted with Obosi master-Plan, the said Mr. Ughanze retracted his assertion by his letter to the Obosi Central Landlords Association dated 9th August, 1993.”
In support of this averment PW2 gave extensive evidence at pages 121 to 122 of the Record of Appeal as follows:-
“When the dispute arose between us and the Defendants, the matter was taken to Obosi Central Landlords Association whose responsibility is to oversee all lands in Obosi, My family and the Defendant went to the Obosi Central Landlords Association and when we got there the Defendants got one of our relation to testify for him that the land does not belong to us. The relation of ours is one Daniel Ughanze, The said Daniel Ughanze then said that the land does not belong to us, When the Obosi Central Landlords Association brought out the master plan of Obosi, the said Daniel Ughanze raised an alarm and said that the Defendant showed him a wrong plan and that in fact the land belong to us.
The said Daniel then wrote to the Landlords Association asking them to discountenance his earlier letter where he said that the land does not belong to us, He gave us a copy of the letter he wrote to the Central Landlords Association, (witness identifies the letter). Ezeuko SAN: I seek to tender
Obi Okafor: No objection
Court: The letter dated 14h August 1993 is admitted as Exhibit E.
PW3/1st Plaintiff (contd.) The Obosi Landlords Association told him to leave the land as it belong to Umu utumaocha,”
It is clear from the testimony of PW2 reproduced above which was not impeached by the appellants that both parties appeared before the Obosi Central Landlords Association and called witnesses. Daniel Ughanze wrote Exhibit E to retract his earlier evidence to the Obosi Central Landlords Association on behalf of the Appellants upon being shown Exhibit C, the Obosi master Plan.
The 1st Defendant/Appellant who testified as DW2 before the trial court denied making representation to the Association. He said at page 144 of the Record of Appeal thus:-
“I have heard of the Obosi Landlords Association, I tendered the government white paper on it. I never made a representation in writing to the said body concerning the land in dispute. I cant remember making representation on 7th March 1992 to the Obosi Landlords Association, My complaint to the Obosi Landlords Association is in connection with another parcel of land where I mould blocks which land I bought from Iyiawu family of Onitsha.
Ezeuko: I seek to tender the said document
Okoro: I object No foundation has been laid in respect of this document
Court: Objection over ruled. The letter of complaint to the landlord Association is admitted as Exhibit P.”
This testimony of DW2 is contradicted by Exhibit P a letter he had written to the Obosi Central Landlords Association. The said Exhibit P is hereby reproduced for ease of reference.
CHIEF AUSTIN C. NWABUDE
OJUDOR OF OBOSI
Ojudor Palace Lodge
Chief Nwabude Ojudor Road
Obosi
Anambra State
18th March, 1992
The Chairman,
Central Landlord Association,
c/o Ogbueshi Obidoa,
Obosi
Dear Sir,
RE: MY PIECE AND PARCEL OF LAND AT OZALA OBOSI NEAR THE ARMY BARRACKS OBOSI
It gives me pleasure not only to observe that you are the one clearing the land at the above mentioned site but also that you are now taken the responsibility of over-seeing and taking the correct role to protect Obosi land under the umbrella of Obosi Central Landlord Association.
To me, this is a welcome news if you will employ selfless service and every sense of responsibility, maturity, equity and fair play.
The whole town was turned into the hama house of horror because we entrusted this noble service in the hands of the sons of Sodom and Gomorra who called themselves Obosi Youth Association.
Thank God that you have awaken from your slumber. I will continue to pray for you so that the Almighty Father will guide you and avail you His wisdom to work with His light in truth and honour.
My main reason of writing this petition is to register my interest on that area of land you are clearing at Ozala Obosi near Army Baracks.
It is common knowledge to every Obosi man that my fight with the banned Obosi Youth Association over that land, extended beyond burning of caterpillars to threats of lives, property, police cases and civil court action starting from Igwe-in -Council (Eze-na-Ndiichie)
The disagreement stermed from the fad that I bought 7.729 acres of land in the area from lyawu family of Onitsha in 1971 when Onitsha people were in control of the whole land. At that time it was a general impression that Obosi people has lost all their land to Onitsha and infact no Obosi man operated in any of the disputed land. Unfortunately, I did not make use of this land because the family of Odumegwu Gbue-Agu of Onitsha and Ifeajuna family got an injunction against Iyawa family and chased me out of the land with court order after I have paid twelve thousand pounds to Iyawu family and cleared/graded some portion of it to use for my factory.
It was U.C.C. who cleared and graded the land for me with their caterpillar and grader.
Everybody is free to make his or her fact finding from Mr. Uzo Nwobi, Mr. Nnaemeka Ifezue Mr. Emmanuel Onubogu, Mr. Emmanuel Nkemena to mention but a few living people in Obosi.
This matter was brought before Igwe-in-Council (Eze-na-Ndichie) as a case between myself and the then Obosi Youth Association.
It was decided by the Igwe-in-Council that I have legitimate claim and ordered Obosi Youth Association to allow me re-enter my land on condition that I surrender every original document, Deeds and Survey plans that bears any Onitsha man’s or family’s name to Obosi Youth Association because of the danger and adverse effects of such documents in our cases with Onitsha.
In obedience to the verdict of the Igwe-in-Council, I did not only surrender all the documents but I destroyed all the deeds and documents in my possession on the spot to prove my good intention and sincerity over all issues concerning Obosi Community, but Obosi Youth Association rejected the verdict of Igwe-in-council with suffer disrespect and further went haywire and intensified their troubles with serious threats on my life, and property which resulted to several police actions against them and their accomplice like Mr. Ume (Egojuoyi), Mr. Chioma Okekg to mention but a few.
The fight continued even after they were banned. Chief Ikeazor Oboli (SAN) as the lawyer for the Oliobi family who was fronted by the youth, Mr. Rob Iweka as my lawyer and Mr. Nwana as lawyer for Chidebe Agu in their wisdom intervened and got myself and Oliobi family to mutual understanding and made a working agreement which we all signed. The agreement is with me and I am prepared to tender same before you, if need be.
It was because of this agreement that I appointed Mr. Amaechi Umolu (now Osoma Obosi) Mr. Nnamdi Udoye, (Akunaedoziobi) and Mr. Raph Ayaeji as my Agent/Representative in all matters connecting my interest in the land in the said area.
I have all the documents, site plans including even the master plan and other important letters both from individuals, government, army and police to buttress every point I make in this my humble petition but for security reason, I will like to come with them in person if you will be kind enough to invite me at least to explain matters in more detail to you.
My prayer is for God to give me back my land, now that you are in charge. The area in the original plan is 7.720 acres or 3.124 hect.
Thank you immensely.
SGND
Chief A. C. Nwabude
Ojudor Obosi
It is clear from Exhibit P reproduced above that it had been written, signed and dated by the 1st Appellant to the Obosi Landlords Association.
Also at page 2 of the said Exhibit P, the 1st Defendant/Appellant stated that he bought the land in dispute from Iyiawu family of Onitsha in 1971, by the statement in Exhibit P he has made a U-turn as to his root of title to the land in dispute which he claimed through traditional history from his ancestors. He said in his evidence-in-chief – DW2 at page 140 of the Record of Appeal thus:-
“I am the owner of Ozalla land, Nwabude family are the original owners of the land and they gave it to me so I own it, I gave the land to Tramet Nig, Ltd as the owner.”
It is also the evidence of PW3 the 95 year old chairman of Obosi Central Landlords Association that the 1st Defendant was summoned by them and that he appeared before them and tendered a letter. He said at pages 130 and 131 thus:-
“I know the Plaintiffs of Umu Utomocha and I know the Defendant Chief Dr. A. C. Nwabude, Both parties are from Obosi. The Plaintiffs are from Ugamuma and the Defendants are from Ire village in Obosi. The Defendant is from Ire village of Udezugah, I am the chairman of Obosi Central Landlords Association and it is in that capacity that I came to know them. I know the land in dispute and I can describe it right her and now. During our meeting in 1992 January about middle of January at the Landlords Association Meeting, at the palace Hall in the Igwe’s residence, then Igwe Iweka came to the meeting and told us that he has an assignment for us. He said we should investigate the land that is situate at the right hand side of Army Barrack. The land stretches from the right hand side of the Army Barracks goes to Vinee Oil Company. The Igwe said we should find out which of the two lands owning families that own the particular land, Igwe Iweka is the traditional ruler of Obosi. We found out that the land is situate in partition. We called Isiowulu Obosi which is made up of Uruwulu, Nmakwu and Ugamuma villages.
………………………..
The Defendant was summoned to our meeting. The Plaintiffs are also members of the Central Landlords Association.
The Defendants appeared before us, He also brought us a letter. We reported our findings to the Igwe and also showed him the letter from the Defendant. We made no other findings but the Igwe said he will invite the two parties for a resolution of the problem. Our findings fancied the Isiowulu people as the owner of the land. We reported to the Igwe that the land is in the portion of Isiowulu. It was the Defendants letter that made us know that he is involved in the land.”
The trial court made a finding of fact on this issue at pages 170 to 171 of the Record of Appeal thus:-
“The Plaintiffs complained and both the Plaintiffs and the Defendants voluntarily submitted to arbitration and agreed to be bound by the decisions of the Igwe-in-council. The Defendants’ denials of paragraphs 58 and 61 of the 2nd Amended Statement of Claims is very detailed.
……………………….
……………………….
These averments clearly do not represent the position as shown in Exhibits and testimony of the Defendants, The contradictions in the existence of the Obosi Central Landlords Association and the letter written to the said Association by the DW2/1st Defendant do not lend any credence to the defence. The question that agitates the mind of the court is, how could the DW2/1st Defendant write a letter in 1992 to an organization which he said was not in existence by 1992/1993. He had tendered the government white paper of 1986 in order to prove that the Obosi Central Landlords Association was dissolved by government in 1986, yet he took his complaint to that body in 1992 seeking a solution to his problem from that body.
I do not believe the Defendant’s evidence that he did not write or submit to the Obosi landlords Association. The DW2/1st Defendant wrote Exhibit P to the Obosi Central Landlords Association in that letter he traced his title to the land to the purchase he made from Iyiawu family of Onitsha in 1971. He did not tell the Landlords Association that his family the nwabude family conveyed the land to him in 1970. He said:-
‘The disagreement stemmed from the fact that I bought 7,720 acres of land in the area from Iyiawu family of Onitsha in 1971 when Onitsha people were in control of the whole land.’
He equally offered to appear before the Association with all the document relating to his claim to the land and pleaded with the Association to give back his land to him,”
These findings of the trial court cannot be faulted; they are supported by both oral and documentary evidence placed before the court. I also have carefully read Exhibit P reproduced in this judgment. I am satisfied that the Dw2/1st Defendant wrote the petition and submitted to the Obosi Central Landlords Association investigation or customary arbitration In the instant case, it is in evidence that the Obosi Central Landlords Association has the responsibility to oversee all land in Obosi. The Association came to a decision which is part of the subject of this Appeal. I am in total agreement with the submission of the learned counsel for the Respondents that local or native bodies with responsibilities to look into complaints voluntarily submitted before them cannot be fully expected to strictly comply with technical procedure rules of our courts and therefore decisions, findings or resolutions of disputes voluntarily submitted to these bodies should not be ascertained from the form, ie compliance with procedure but rather from the substance of the case. See Oyah v. Ikalile (supra).
The general rule governing arbitration is that as parties choose their own arbitrator to be their judge in dispute between them, they cannot, when the award is good in its face, object to his decision either upon the law or on fact.
See Igwego v. Ezeugo (1992) 6 NWLR pt 249 page 561,
In the present case, the parties having voluntarily appeared before the Obosi Central Landlords Association on their own volution without compulsion or coercion, is an indication of their willingness to be bound by the decision since the parties were free from the beginning not to appear before the Obosi Central landlords Association if they choose not to do so.
I am of the opinion that the decision of the Obosi Central Landlords Association satisfied the conditions laid down in the case of Agu v. Ikewibe (supra) and the trial court was proper in relying on it. This issue is resolved in favour of the Respondents.
ISSUE FIVE
Was the court below right in holding that the Igwe’s decision was binding on the Appellant and the said Appellants voluntarily submitted to the proceedings of Igwe-in-Council which give rise to the decision in Exhibit F.?
It has been contended on behalf of the Appellants on the issue that Exhibit F is the purported decision of Igwe of Obosi made in resolution of the matter between the 1st Appellant and the Respondent. On its face, it was stated that the 1st Appellant was absent and did not participate in the resolution of the matter.
Learned counsel argued that it was an exercise carried out by the Igwe of Obosi with only the Respondent participating. He gave the conditions under which customary arbitration such as Exhibit F would be binding on the parties as enunciated in the case of Agu v. Ikewibe (supra) as follows:-
i. there is evidence of voluntary submission of the dispute to the elders of the community.
ii. Initial willingness of the parties to be bound by the decision of the chiefs and elders of community.
iii. The chiefs and elders exercised judicial function according to custom.
iv. The terms of the decision were known, final and non-conditional.
Learned counsel argued that in the instant case a party who refused to appear before a body seeking his consent to decide a case concerning him cannot be said to have voluntarily submitted to the said body. He argued that the finding of the trial court that Exhibit F is binding on the Appellants because the 1st Appellant submitted a letter to the fact finding of the Obosi Central landlords Association does satisfy the well established conditions for a valid arbitration. It was argued on behalf of the Appellants that the Respondents did not plead that the said Landlord Association made any resolution of the dispute or that such resolution or recommendation was sent to the Igwe-in-Council. There was also no pleading that the Igwe-in-Council acted on the recommendation of the said Landlords Association in reaching its decision in Exhibit F.
Learned counsel to the Appellants argued that the evidence of the witness of the Respondents showed that the two transactions were independent. PW3 he argued testifies that Igwe assigned them to investigate the ownership of the land in their meeting of January 1992 at a time the matter had not been taken to the Igwe for the arbitration. PW2 also testified that they took the matter to the Igwe-in-Council after the proceedings of the Obosi Central Landlords Association.
Learned counsel contended that the evidence of PW3 that they reported their findings to the Igwe was not pleaded and therefore goes to no issue. Learned counsel submitted that it was palpably wrong for the trial court to uphold the validity of Exhibit F on the basis that it was based on the recommendation of the Obosi Central landlords Association. He argued that the arbitration effort made by the Igwe could not have taken effect as the 1st Defendant refused to submit to the said arbitration. He contended that there was no initial willingness of the parties to be bound by the decision of the said Igwe. Learned counsel for the Appellant submitted that the trial court’s acceptance of Exhibit F as binding on the said Appellants is totally wrong and contrary to the established conditions which the trial court had earlier set out correctly but proceeded to give a contrary decision. He urged the court to hold that the trial court was wrong in ‘its decision that the 1st appellant was bound by the decision in Exhibit F.
In their response to the submission of the Appellants on this issue, the respondents referred the court to paragraphs 23, 24, 25, 26 and 27 of the Statement of Claim wherein the Plaintiff s pleaded that upon the continuous acts of trespass by the Defendants over the land in dispute, they complained to the Igwe-Obosi-in-Coincil who invited both the Plaintiffs and the Defendants to state their case. Learned counsel argued that PW2 gave evidence that both parties appeared before the Igwe-in-Council and were asked whether they wanted the council to settle the matter and they all said yes and both parties agreed to be bound by the decision.
It was also argued by learned counsel for the Respondents that it is evident from the evidence-in-chief of DW1 at page 136 of the Record of Appeal that the Igwe-in-Council settles disputes.
He further argued that despite the denial of DW2 the Igwe-in-Council looked into the matter and came out with a written decision which PW2 tendered as Exhibit F.
Learned counsel for the Respondent submitted that where parties by consent voluntarily submit to a domestic forum inclusive of arbitration, or a body of persons invested with judicial authority to hear and determine such disputes and matters for investigation in accordance with customary law and general usage and decision is duly given such a decision is binding on the parties and the courts in appropriate cases will enforce it. The court was referred to the case of Joseph Onwu & Ors v. Ezekiel Nka (1996) 7 NWLR pt 458 page 1.
Learned counsel maintained that the parties in this matter willingly submitted themselves to the arbitration of Igwe Obosi. He contended that it is also in evidence that this body is invested under customary law and usage with judicial function to settle disputes.
In the instant case, the Respondents in paragraphs 23, 24, 25, 26 and 27 of the Statement of Claim the Plaintiffs now Respondent before this court pleaded that they complained to the Igwe Obosi-in-Council of the continuous acts of trespass by the Defendants over the land in dispute. The said paragraph at pages 79-80 of the Record of Appeal are hereby reproduced for ease of reference.
“23. The Plaintiffs complained about the Defendant’s acts of trespass on their land to the Igwe-Obosi-in-Council which invited both the Plaintiffs and the Defendants in respect of the complaint
24. Both the Plaintiffs and the Defendant voluntarily submitted themselves to an arbitration by the Igwe Council and equally agreed to be bound by the Council’s decision, The Igwe-in-Council decided that the land in dispute belongs to the Plaintiffs and that the Defendants should desis from further trespass on the Plaintiffs’ land, The said decision/award was published to the parties in this suit. The Plaintiffs shall rely on the decision of the Igwe-in-Council at the trial of this case,
25. According to the custom and tradition of Obosi people, where a matter is reported to the Igwe-in-council and the parties voluntarily submitted themselves to the said council, the submission implied that the parties to the dispute have agreed to be bound by the decision of the Council aforesaid.
26. Evidence shall be led at the trial of this suit that the proceedings before the Igwe-in-Council was in accordance with the custom and tradition of the Obosi people,
27. When the decision of the Igwe-in-Council aforesaid was reached, delivered and made known to the patties in this suit the Defendant accepted same and refrained from his act of trespass on the Plaintiffs’ land now in dispute.”
The Defendants/Appellants denied that there was even an arbitration on the disputed land by the Igwe Obosi. This they pleaded on paragraph 61 of the 2nd Amended Joint Statement of Defence at page 102 of the Record of Appeal and it reads thus:-
“67. The Defendant deny paragraphs 23, 24, 25, 26 and 27 of the Statement of Claim. The Defendant aver that there was no such arbitration between the 1st Defendant and the Plaintiffs before the Igwe-Obosi- in-Council and/or any other body over the land in dispute,”
However in support of the averments of the Plaintiffs/Respondents PW2 said in his evidence-in-chief at pages 122 – 123 of the Record of Appeal thus:-
“Thereafter we took the matter to Eze na Ndichie the traditional ruler and his cabinet. We were summon before the Igwe-in-Council with the Defendants and we were asked whether we want the council to settle the matter and we all said yes and the Igwe-in-council started to look into the matters. We and the Defendant agreed to abide by the decision of the Igwe-in-Council. At the council, he showed the paper that he purchased the land from Iyiawu family. The Igwe-in-Council decided in writing which was served on both the Defendants and ourselves. The Igwe-in-Council decided that the land in question belongs to Umu Utumocha and that no person will enter Isi Owulu from Ire and own land without purchasing it (witness identifies the Igwe-in-Council’s letter of decision),
Ezeuko Son: – We seek to tender
Obi Okafor – No objection
Court – the documented decision of the Igwe-in-Council dated 29/9/93 is admitted and marked
Exhibit F,”
The Defendants/Appellants through their witness DW1 at page 136 of the Record of Appeal admitted that the Igwe Obosi-in-Council as the custodian of custom and tradition of the Obosi people is invested with authority to settle disputes. DW1 said thus:-
“The Igwe-in-Council is the custodian of cutom and tradition of Obosi, We settle disputes also.”
The 1st Defendant who gave evidence as DW2 had denied that the Igwe-in-Council arbitrated the matter. He said in his evidence-in-chief as page 142 of the Record of Appeal thus:-
“I did not attend any arbitration wherein the Igwe of Obosi settled this dispute. The issue has never come up in the Agenda for our meetings over the past 30 years. I there was any settlement meeting, I am not aware. I did not attend any. There has been no cabinet circular on this issue, I can not say whether Umuachusim were at the said meeting, I do not go and I did not know about the meeting, I have never participated in any meeting.”
Despite these denials by DW2, Exhibit F was tendered in evidence as the written decision of the Igwe-in-Council on the disputed land.
The trial court made a finding on the bindingness of the decision of the Igwe Obosi-in-Council on the Appellants at pages 172-173 of the Record of Appeal thus:-
“On the validity and bindingness of Exhibit F, the decision of the Igwe Obosi which is bound on the recommendation of the Obosi Central landlords Association I guess discussing it may be mere surphisage considering the fact that from the evidence of the parties it is clear that the boundaries between Ire Obosi and Isi owulu are defined by the Obosi people themselves but for the fact that the 1st Defendant denies ever submitting to an arbitration. I deem it fit to give the document a second look visa-a-vis the pleadings and evidence before us. The Plaintiffs pleaded arbitration and tendered Exhibit F is considered the decision of a native or tradition tribunal and the courts have ruled on the effect of such decision and the conditions upon which such decision will be binding on the disputants.
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Ezeuko of learned counsel for the Plaintiff has urged the court to hold that following he decision in Agu v. Ikewibe (supra) the decision of the arbitration in Exhibit F is binding on the parties. He had earlier on referred to the evidence of the PW3, the 95 year old chairman of the Obosi Landlords Association who said that the Defendant appeared before them and produced a letter Exhibit P1 and urged the court to accept the voluntariness of the appearance of the parties of the arbitration. I am inclined to accept his submission more especially where the evidence led by both sides support the findings of the arbitration as to the distinction between the lands of the Plaintiff family and the Defendants family. All the survey plans tendered by the parties proved the same fact. A person from the Defendants family, that is Ire Obosi can only acquire land from the Plaintiffs’ side that is Isi Owulu by either purchase or gift and not by traditional descent, as the boundaries between the two sides are very distinct as led in evidence by both sides.”
In Adonigi v Oyeleke (2001) 6 NWLR pt 708 page 72 at 28
The Supreme Court per Kalgo JSC held
“The question of customary arbitration and the conditions attach thereto has been considered by our court in many cases, some of which are-
Assampong v. Amuaku & Ors (1932) 7 WACA 193
Mbagbu v Agochukwa (1973) ECSLR (Pt.1) 9
Inyang v. Essien (1957) 2 FSC 39; (1957) SCNLR 772
Idika v Erisi (1988) 2 NWLR (pt 78) 563 at 573,
Kwasi v. Larbi (1952) 73 WACA 17,
And from the principle enunciated in these decisions, it an reasonably be deduced that the Nigeria law recognizes arbitration under customary law provided the following conditions are satisfied:-
1. The parties voluntarily submitted their disputes to a non-judicial body, to wit their elders or chiefs as the case may be for determination,
2. the indication of the willingness of the parties to be bound by the decision of the non-judicial body or freedom to reject the decision where not satisfied and
3. Neither of the parties has resiled from the decision so pronounced,
It would appear therefore that once these conditions are satisfied in a customary arbitration, the arbitration would be liberally treated as a judicial proceedings and could be taken to operate as or create estoppels per new judication.”
In the instant case it is not in dispute that the Igwe Obosi-in-council is the custodian of custom and tradition of the Obosi people and also settles dispute under the Obosi custom and tradition.
At the trial court there was the testimony of PW2 that both parties appeared before the Igwe-in-Council and were asked whether they wanted the council to settle the matter and that they all said yes and both parties agreed to be bound by the decision of the Igwe-in-Council. PW2 also tendered exhibit F the decision of the Igwe-in-Council which was also not challenged by the Defendants/Appellants at the trial court. Exhibit F is hereby reproduce for case of reference
Omoko Land Peace Committee
Meeting held on 29/9/93
At Igwe’s Palace.
At the final meeting of the Peace Committee meeting mediating on Umu-Utumacha of Ugamuma village Obosi, and Chief A. C. Nwabude Oiudor on the subject of Omoko Land held at the Palace this 2fl day of September, 1993 with the mentioned people present:-
H.R.H. Igwe Iweka II, Eze Obosi
Chief N. N. Nwora (Ogidi)
Ogbueshi S. N. Obidoa,
Mr. B. B. Obidiozor
Mr. C. O. Osuno
Mr. A. O. Udogu
Mr. L. A, Arinze
Mr. B. C. Uzowulu
Mr. N. E. Nwora
Mr. A. A. Obidozor
Mr. Beruk Nwangwu
Mr. G. C. Anyaoku
It was observed that Chief A. C. Nwabude Ojudor was absent inspite of H.R.H.’s directive at the last meeting held on Wednesday 22d September, 1993, through Chief N. N. Nwora Ogidi of Obosi. That he (Chief A, C. Nwabude) should be present at the next meeting to present his proposal for a compromise between him and Umutumacha sub family of Umunweshi Ugamuma.
It was also observed that Messrs Linus Okafor and Okey Agbanusi who were standing for Umuachusim kindred of sub-family of Oliobi in Umu-Udezuga family of Ire Obosi were also absent.
His Royal Highness produced a letter dated 20th September, 1993, the portion of which reads thus;
With regards to the un-ending nature of the on going dialogu and the attendant personal attacks not only on my perso7 but my late father and his offspring. I will no longer continue to attend the meetings of the so call peace move. Again, I would mention that members of my family are very much disturbed at the rate our late father who is not a party to this dispute is being disparaged. We are surely not going to stand by and watch the insult from Mr. Lawrence Arinze and Mr. Udogu.
Finally, I commend His Royal Highness for his peace efforts but appeal to him in the name of God to allow justice to prevail.
Then his Royal Highness said that this matter has been discussed for land and he considered that the compromise of Umutumacha to offer one acre of their land to Chief A. C. Nwabude Ojudor of Obosi for his effort is fair and reasonable. He therefore from his knowledge and experience as Igwe of obosi (Eze Obosi) for the past 19 years he states as follows:-
1. That Isiowulu road starting from Oshia Udo down to Onitsha up to Nkpu-Egbunajughalu all the lands situated on the right hand side down to Nkisi belong to Isiowulu (Ugamuma, Uruowulu and Nmakwum) and all lands situated on the left hand side doen to Nkpu-Egbuajughalu C. K. C. Ndende and river Niger belong to Ime Obosi i.e (Ire and Umuota).
2. Any person(s) from Ire and Umuota claiming any land on the right hand side would not be right and he (Igwe) would not support his claim unless he acquired such land from Isiowulu people.
3. That he considered the compromise made by Umutumacha to Chief A. C. Nwabude Ojudor as fair and reasonable in other to compensate him for his efforts on the land.
4. In conclusion, this is the justice of the matter as His Royal Highness sees it.
SIGNED SIGNED
Igwe lweka II Chief N. N. Nwora (Ogidi)
Eze Obosi Cabinet Secretary
CC: Chief A. C. nwabude
(Ojudor of Obosi)
Ire village, Obosi
Chairman Obosi Central Landlord Association
c/o Chief S. N. Obidoa
Umuota Village Obosi
Umutumacha sub-family of Ununweshi
c/o Mr. B. B. Obidozor, Ugamuma Village, Obosi
It has been clearly disclosed on the face of Exhibit F that the 1st Defendant/Appellant was absent. I am of the opinion that the absence of the 1st Defendant/Appellant at the hearing before the Igwe Obosi in Council is an indication that he did not want to be bound by the decision contained in Exhibit F. I therefore hold that Exhibit F is not binding on the Appellants. See
Ondonigi v Oyeleke (supra)
Inyang v Essien (supra)
This issue is resolved in favour of the Appellant. But on the whole this appeal lacks merit and it is hereby dismissed.
The decision of the trial court delivered on 27/3/06 is hereby affirmed.
I make no order as to cost.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Aboki, JCA, and I agree with him that the appeal lacks merit. He has dealt extensively with the issues canvassed in this appeal, and I merely wish to stress that there is a rebuttable presumption that the trial Court’s findings and conclusions are correct. The duty of this Court to interfere with improper findings or correct any erroneous conclusions would only come into play where a trial Court fails to properly examine and evaluate the evidence before the Court – see Sanni v. State (1993) 4 NWLR (Pt.255) 99 & Nwankwoala v. State (2005) 12 NWLR (pt. 940) 637.
In this case, there is no question that the trial Court did a good job of evaluating the evidence before it, and the presumption that its findings and conclusions on the fact are correct have not been rebutted in any way by the Appellants. Consequently, I also dismiss the appeal, and I abide by the orders in the lead Judgment, including that as to no costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I agree.
Appearances
Arthur Obi Okafor with M. E. Alite and Best OkonyeFor Appellant
AND
G. E. Ezeuko with Adibaezeufor and M. D. EgbuwaFor Respondent
