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In The Court of Appeal of Nigeria

On Thursday, the 16th day of June, 2005




VICTOR AIMEPOMO OYELEYE OMAGE   Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI   Justice of The Court of Appeal of Nigeria

MONICA B. DONGBAN-MENSEM   Justice of The Court of Appeal of Nigeria



    (For themselves and as representing Ibinta Community) Appellant(s)


    (For themselves and as representing Ndiokoroji Quarters of Aro Ibinta, Ibinta, Okigwe) Respondent(s)

FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Njemanze, J., while sitting at the High Court, Okigwe, in Imo State on 3rd March, 1997. The judgment was in respect of the claims in suit with number HO/20/91 filed by the appellants as plaintiffs. The learned trial Judge dismissed the claims in their entirety.
The resolution of this appeal principally relates to the propriety or otherwise of the findings of fact by the trial Court. It is therefore apt to recapitulate the facts leading to the judgment of the trial Court at a reasonable length.
Put succinctly, the plaintiffs’ claims, as can be gathered from paragraph 18 of the amended statement of claim, relate to a declaration of the court that the defendants are their customary tenants in respect of portions of land referred to as ‘Ogboenwe’ and ‘Ndiuhu’ situate at Ibinta in Okigwe Local Government Area of Imo State.
The land is said to be occupied and enjoyed by the defendants as their homestead and farm lands. As such tenants, the plaintiffs maintained that the defendant are not entitled to lay claims to ownership or title to the said portions of land or any portion of land in Ibinta wheresoever situate. The plaintiffs also claimed forfeiture of their tenancy since the defendants denied the title of the plaintiffs as customary owners of the said portions of land. The plaintiffs further claims the sum of N176,666.70 as mesne profits for the use and occupation of their lands as well as perpetual injunction to restrain the defendants, their servants and privies from further entry into the land.
The evidence put forward by PW1 is that the plaintiffs are the owners of the lands in dispute from immemorial antiquity. He said that through one Nwosu Okwozo, the land was let to one Chief Kanu Okoroji, a strong warrior of Arochukwu, who helped Nwosu Okwozo to procure nine slaves for the purpose of protecting the founders of a church and a school in Ibinta in 1904. According to PW1, the nine slaves formed the nucleus of the defendants. The defendants’ slave forefathers settled on the lands in dispute as customary tenants sequel to a covenant by them to be of good behaviour and to respect the custom of Ibinta and be loyal to the Chief of Ibinta. But contrary to the covenant, PW1 said the defendants denied the plaintiffs’ ownership of the lands which led to the filing of this suit for declaration of title and forfeiture against the defendants. The plaintiffs tendered a host of exhibits. The defendants denied the story and the account of their origin as stated by PW1. They maintained that the land in dispute referred to as ‘Alaikpa Ndiokoroji’ by them was acquired by their ancestor, one Kanu Okoroji, by conquest and they occupy the land up to date. The defendants denied being part of Ibinta or being known as ‘Aro Ibinta’. They relied on proceedings in respect of portions of the land and tried to put up a plea of res Judicata. The defendants contended that the plaintiffs did not discharge the onus of proof to prop their claims.
The trial Court, in it’s reserved judgment, dismissed the plaintiffs’ claims but held that res judicata did not apply. The plaintiffs who will from now on be referred to as the appellants felt unhappy with the stance of the learned trial Judge and have appealed to this court. Nine grounds of appeal accompanied the notice of appeal filed on 20-5-97. By the leave of this court granted on 12-10-99, one more ground of appeal was added to make the total number rise to ten (10). This ground of appeal, in effect, attempted to contest the jurisdiction of the learned trial Judge in exercising original jurisdiction in respect of land, the subject of a customary right of occupancy. The defendants shall from now be referred to as respondents.
It is only necessary to reproduce the three issues couched by the appellants and adopted by the respondents for a due determination of the appeal as can be seen at page 4 of the appellants’ brief of argument. They read as follows:
“(i) Whether the court below had the jurisdiction to adjudicate on the claim before it.
(ii) Whether having regard to the state of pleadings and the evidence adduced, the respondents could be said to be the customary tenants of the appellants.
(iii) Whether the appellants are entitled to the reliefs they claimed in the lower court.”
On 13-4-05, when the appeal was heard, M. O. Nlemedim, Esq., learned Counsel who appeared for the appellants, applied orally to withdraw issue NO.1 touching on the jurisdiction of the trial court to determine the suit. The learned Counsel for the respondent was at one with the appellants’ Counsel. It is clear that after the land mark decision of the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, the jurisdiction or vires of the State High Court to determine suits in respect of land in non-urban areas ceased to be a moot point. Thus, the first issue couched in respect of same, as above reproduced, ceases to be relevant. Without much ado, it is hereby struck out since it has been withdrawn. I hereby discountenance arguments canvassed by learned Counsel for both parties in their respective briefs of argument on issue No.1.
Issue No. (ii) relates to appraisal of evidence and ascription of probative value to same. In the main, the case the appellant tried to put forward is that the respondents are their customary tenants in respect of portions of ‘Ogbaenwe’ and ‘Ndiuhu’ lands referred to as ‘Alaikpa’ by the respondents. The appellants contend that the respondents incurred the act of forfeiture when they denied the title of their overlords.
It is pertinent to state at this juncture to start from the known basic and well established principles of law relating to burden of proof in civil suits. A plaintiff has the duty to prove his case on the preponderance of evidence as dictated by Section 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. A plaintiff has the duty to establish his case on the balance of probability. Burden of proof is not static. It lies on the party who would fail if no evidence is led. Refer to Are v. Adisa & Ors. (1967) NMLR 304; Ikwuka v. Anachuna (1996) 1 NWLR (Pt. 424) 355; Mogaji v. Odojin (1978) 4 SC 91 at P. 94; Bello v. Eweka (1981) 1 SC 101.
The burden of proof of any issue before evidence is adduced is upon the party asserting the affirmative of the issue. See Okechukwu & Sons v. Ndah (1967) NMLR 368. To succeed, a plaintiff should adduce evidence with real probative value to support his claim. He should succeed on the strength of his case and not on the weakness of the defence. However, a plaintiff can rely on any aspect of the defence that supports his own case; if any. See Akinola v. Oluwo (1962) All NLR 224; (1962) 1 SCNLR 352.

Where a party on whom the burden of proof in a case rests, fails to adduce evidence on a material issue which he needs to prove or if the evidence adduced by him is so patently unsatisfactory that a prima facie case has not been made out, the trial Court, in such a situation, does not have to consider the case of the defence at all. Refer to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.

In re-appraising findings of fact, those made by the trial Court should be accorded due regard. An appellate court will not interfere with findings of fact made by a trial Court, except where wrongly applied to the circumstance of the case. An appellate Court will only interfere with findings of fact by a lower Court, if it is shown that the conclusion reached was wrong or perverse. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265.
There is a presumption that a decision of a trial Court on facts is correct. An appellate Court should not ordinarily substitute its own views of fact for those of the trial court which watched the demeanour and performance of witnesses. See Ebba v. Ogodo (1984) 1 SCNLR 372.
As can be garnered from the amended statement of claim and the evidence strenuously adduced by PW1, the claim to ownership of the land in dispute, put briefly, was predicated on the procurement of nine slaves that constituted what came to be known as Ndiokoroji. They claimed that they gave the land in dispute -Ala Ikpa to them to settle as customary tenants after a covenant by which they undertook to be of good behaviour, respect the custom and tradition of Ibinta and to be loyal to the Chief of Ibinta.
The respondents in their defence on this issue denied being slaves. They maintained that they were warriors from Kanu Okoroji’s ‘army’ from Arochukwu who came, on invitation, to defend and resettle Ibinta people in their war with Umunze and that the covenant was with respect to their entitlements upon a successful completion of their assignment.
For the appellants to succeed in their claims, the onus of proof is on them to depict that the respondents are their customary tenants. The appellants tried to place reliance on certain exhibits tendered by them as well as on the evidence of PW1 which should be treated in their sequence. The exhibits which require proper appraisal are in respect of suits between the forebears of the parties in this appeal. I have given a very careful look at the decisions in respect of the cases decided by various courts between the forebears of the parties. I cannot see anything in exhibit ‘B’ which is the starting point of the long drawn battle which shows or point at the direction that the defendants therein were slaves or customary tenants.
In exhibit ‘C’, the claim was in respect of recovery of a plot of land called Ngwala which undoubtedly is not part of Ala Ikpa now in dispute herein. I cannot trace anything in exhibit ‘C’ that shows that the respondents’ forebears were slaves or customary tenants. This exhibit ‘C’ has no correlation with the appellant’s claims herein.
Exhibit ‘D’ relates to contempt of court charge against the defendants therein for allegedly failing to withdraw from the land known as Ngwala. All the ‘accused’ therein were found not guilty and discharged. Therein, they were not branded as slaves or customary tenants. Again, the land in dispute therein known as Ngwala is not part of Ala Ikpa land in dispute herein.
Exhibit ‘E’ is in respect of an in-house matter between members of Aro Ibinta. It is in respect of land known as ‘Ikpatu’ which is not part of Ala Ikpa land in dispute herein.
In Exhibit F, Ofoma Ogbonna represented the people of Ibinta against Rufus Chikezie and others of Aro Ibinta. The plaintiff claimed for an order on the defendants to accept 10 pounds redemption fee on Ikpata or Ngwara land pledged to the defendants since 11-5-20. In Otanchara Native Court, the plaintiff’s case was dismissed by a majority judgment. The plaintiff appealed to the A.D.O., who reversed the decision and ordered the defendants to accept the 10 pounds redemption fee within one week. The defendants then appealed to the District Officer’s Court of Appeal which in the judgment in exhibit “G”, dismissed the appeal but stated that the plaintiff’s title over land marked red in map OKS/O85- Exhibits N & S herein, is not to extend over road from Oka Nnachi passing between ‘P’ and ‘E’ (on the Ekpa boundary) to Edo tree further south.
The defendants appealed further to the resident’s Court of Appeal. The plaintiff applied for a review of the decision in exhibit G. The resident took both the appeal and the review together. In exhibit ‘H’ the resident’s decision on appeal favoured the defendants. The resident found as follows:
“It is common ground that this Aros occupy the land called Ala Ikpa without dispute. Plaintiff maintains that they received Ikpatu on pledge defendants that Ikpatu was purchased outright for 10 pounds. There is no agreement on these lands.”
Ofoma Ogbonna who represented the plaintiffs then applied to the High Court at Onitsha for an order of certiorari to quash the decision in exhibit ‘H’. The High Court heard the application and refused it as manifest in exhibit O. Still not satisfied, Ofoma Ogbonna further appealed to the Supreme Court which dismissed his appeal with 20 Guineas costs in favour of the respondents as can be seen in exhibit ‘P’.
From the decision of the resident in exhibit ‘H’ affirmed by the High Court in exhibit O and confirmed by the Supreme Court in exhibit P, ‘Aros occupy land called Ala Ikpa without dispute.’ Such was common ground. The Aros were not referred to in exhibit ‘H’ as slaves or customary tenants.
In exhibit K, Obi Okonkwo represented the people of Ibinta. He testified that five Aros – Kalunta, Chikezie, Ochiawuto Onukwuwe and Nmerenuonu were residing on the land known as Ala Ikpa with their permission. They were allowed to live on the land free. They did not ask them to pay rent. David Nwosu, another Ibinta man confirmed same without any equivocation. The case against the defendants therein was not against Aro Community of Ibinta. They were adjudged to have right of occupation. The A.D.O. did not support payment of rent by them ‘after those long years of peaceful occupation’.
There is no evidence pointing to the stance that there was an agreement on customary tenancy between the ancestors of the parties. And the ancestors of the respondents were not referred to as slaves.
What then is customary tenancy? The requirements of customary tenancy have been graphically covered by the Supreme Court in the case of Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 217, where it was pronounced that:
“The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence he is in a different category from a lessee. It is a grant upon terms, a grant upon terms and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity.”
Let me say it right away that the appellants from the documentary evidence considered above have failed to convince me that there is customary tenancy between them and the respondents herein. I am unable to fathom same even by sheer implication. I cannot see the agreement depicting the terms and conditions agreed by the parties. It appears to me that it merely exists in the imagination of the appellants who are trying to force it down the throats of the respondents.
On incident of customary tenancy as put forward by the appellants, I shall now consider the evidence adduced viva voce by PW1. In line with paragraph 8 (iv) and (v) of the amended statement of claim, PW1 testified on what he called covenant (Igba-Ndu) of 1961. He maintained that the defendants swore never to lay claim to any portion of Ibinta land wherever situate for all time and that they would be loyal to Ibinta Community and would obey and respect the Chief of Ibinta. The appellants on their part swore that they would not quit the defendants provided that they kept to their oath. PW1 said as a result of this covenant both parties abandoned the appeal which was then pending in the Supreme Court. PW1 was shown exhibit P showing that the appeal was fully argued and dismissed by the Supreme Court. It is unthinkable that PW1 feigned ignorance of exhibit P.PW1 there and then put himself in a position that he should not be believed on serious issues. His credibility and integrity become suspect. His veracity got impaired as he showed that he was not a witness who was ready to further the cause of truth.
The evidence of PW1 in respect of ‘Igba-Ndu’ covenant as put up naturally crashed. I agree with the learned trial Judge that if ever there was any covenant in 1961 it was one for peace. It has nothing to do with customary tenancy agreement. The learned trial Judge watched the demeanour of PW1 and faulted him. It was within his competence to so do. I am at one with him. Refer to Nze v. Unakalamba (1998) 2 NWLR (Pt. 53 7) 308 at 323; 336.
Curiously, there is the complaint in the appellants’ brief of argument that the learned trial Judge did not state whether he believed the appellants or the respondents. The appellants need to know that there is nothing magical in the use of terms like – ‘I believe’ or ‘I do not believe’ in appraising evidence. Let me add that there is nothing esoteric in the employment of such tags. Reasons for believing or not believing a witness must be depicted. The learned trial Judge showed why PW1 should not be believed on his imagined ‘Igba-Ndu’ covenant of 1961. No right thinking tribunal will believe him. And the same cast aspersion on his evidence that his grand-father procured nine slaves which formed the nucleus of the respondents and that such culminated in a surmised customary tenancy.
The appellant failed to show that there was ‘a grant upon terms and conditions’ between them and the respondents. There must be an agreement as dictated by the decision in Abioye v. Yakubu (supra).
I agree with the learned Counsel for the respondents who settled their brief that ‘the same must kick off with an agreement’.
The appellants complained that the learned trial Judge erred when he said that customary tenancy required payment of monetary-tribute. Learned Counsel for the respondent conceded the point. It is inconsistent with existence of customary tenancy as same may well be established without the payment of tribute under customary law.

Tribute may be tangible or intangible. It may be in form of ‘acknowledgment of gratitude or respect.’ Refer to Abimbola v. Abatan (2001) 9 NWLR (Pt. 717) 66 at 75; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 at 452.
The real point is that there was no credible evidence adduced by the appellants at the trial court to sustain the existence of a customary tenancy between the appellants and the respondents. There was no agreement established to indicate terms and conditions of same. The appellants failed to prove the plank of their claim to wit:
customary tenancy. The submission of the respondents’ counsel that the appellants, having failed to prove the customary tenancy on which their case was predicated, the appellants must be hoisted with their own petard holds water.
The appellants failed to prove their case on a preponderance of evidence. They should succeed on the strength of their own case; not on the weakness of the defence. They are not entitled to the reliefs claimed by them at the lower court. The case ought to be dismissed as was done by the learned trial Judge. See Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215. Idesoh v. Ordia (1997) 3 NWLR (Pt. 491) 17 at 25.
Before I draw the curtain, perhaps I should say it that all human beings should be careful in the way and manner they talk glibly about slavery. It should be borne in mind that we are all children in the sheep-fold of God.
I come to the conclusion that the appeal is devoid of merit. It is hereby dismissed as I affirm the balanced judgment of the learned trial Judge. The respondents are entitled to costs which I assess at N5,000 against the appellants.

OMAGE, J.C.A.: This is an appeal from the High Court of Imo State in the judicial division of Okigwe. It is against the judgment of Njemanze, J. I have read before now the lead judgment of my learned brother, Fabiyi, JCA, I agree with the reasoning and conclusion of my learned brother, that the appeal lacks merit and should be dismissed.
I have chosen in my contribution to restate the facts of the matter in order to better express my consideration for agreeing with the lead judgment.
In the court below, the plaintiff who are now the appellants sued the defendants now respondents for:-
(a) Declaration that the respondents are customary tenants of the appellants in respect of the parcels of land called Ogbaenwe, and Ndinhu, which parcel of land are located in Ibinta in Okigwe local government area of Imo State.
The appellants as plaintiffs in the court below also seek :-
A declaration that since the defendants in another suit No. HO/54/90 have sought a declaration that the appellants, that is plaintiff are not entitled to the land the defendants have denied the title of the plaintiff and forfeiture of their tenancy is the consequence.
The plaintiffs/appellants therefore, seek a declaration that the respondents have forfeited their rights over title to the lands in their occupation. For this, the appellant claimed in the court below the sum of N176,666.70 as mesne profit and for an order for perpetual injunction against the respondents. The plaintiff in proof of their claim called two witnesses whose testimonies are of traditional history and typified by the evidence of PW1. PW1 said the appellants are owners in possession of the land in dispute. The said land was let through Nwozo Okwozo to the ancestor of the respondent called Okoroji. Okoroji brought in 9 slaves to build a church and establish a school in Ibinta in 1904. PW1 said the forefathers of the present defendants/respondents settled on the said land, as customary tenants upon the covenant made by them to the forebears of the plaintiffs/appellants to be of good behaviour, and remain loyal to the Chief of Ibinta.
The defendants denied the above account of their alleged origin, and depose that the land in dispute is called by them Adaikpa Ndiokeroji with a boundary with Ibinta. They deposed that their ancestor acquired the land by conquest in which one of their leaders called Kanu Okoroji fought. The respondents said they are till today in peaceful occupation, possession and ownership of the said land. The respondents rely on previous proceedings in respect of the land, and claim that it creates in them a claim to res judicata. They deny being called Aro ibinta.
In a considered judgment, the trial court did not find in favour of the plaintiff; and dismissed the plaintiffs’ claim on the ground that the plaintiff did not make out their case. The plaintiff has now appealed and has formulated the following issues-
(i) Whether the court below had jurisdiction to adjudicate on the claim before it?
(ii) Whether having regard to the state of pleadings and evidence adduced, the respondents could be said to be the customary tenants of the appellants?
(iii) Whether the appellants are entitled to the reliefs they claimed in the lower court?”
The respondents’ brief shows the same issues for determination as contained in the appellants’ brief. The two sets of issues will be treated as one; as the issues are of the same contents and theme.
My learned brother, Fabiyi, JCA has considered and ruled on the issues of jurisdiction raised. I agree that since the decision in the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, the previous view that the State High Court has no jurisdiction to adjudicate on land in a non urban area, has ceased to be good laws and the decision in Oyeniran v. Egbetola (1997) 5 NWLR (Pt 504) 122 and other such decisions are held by the Supreme Court to be made per incuriam. The reasons being that Section 230 of the Constitution confers on the State High Court unlimited jurisdiction in all matters civil and criminal. See also Section 6 of 1999 Constitution.
The second combined issue on which to comment on is the position of the law on issues of facts on which the court below has made its findings. It remains the law; see Section 135(1) Evidence Act that whoever desires the court to give him judgment on facts must prove the facts, and the existence thereof. See Section 140 Evidence Act. The court below has found on the facts against the appellant. What requires comment at all on the facts is the issue as to whether payment of tribute alone presumes the existence of tenancy: evidence does not show in the record, that the payment of tribute is or is not attributable to a tenancy in this case. Could the existence of tribute not attributable to other factors? Indeed non-existence of tribute is not at variance with the existence of customary tenancy. In any case it is the law, that unless on appeal, sufficient evidence is presented by the appellant that the findings and conclusions of the court is perverse; the appellate court will not intervene in issues of facts previously determined by the court below. See Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) p. 386. An appellate court as in the instance appeal will only interfere with the findings and evaluation of facts, where the findings cannot be substantiated by evidence in any way. The appellate court will not substitute its own views thereof.
In the event, I agree that the appeal lacks merit and should be dismissed. I abide by the consequential order made in the lead judgment of my learned brother, Fabiyi, JCA.

DONGBAN-MENSEM, J.C.A.: The lead judgment of my Lord, the Hon. Justice Fabiyi JCA, has fully recounted the facts of the case. The essence of this appeal as made out in the three issues is the evaluation of evidence which is the exclusive preserve of the trial Court.
The special circumstances which confer jurisdiction on this court to re-evaluate evidence, which is mainly upon affidavit or pure documentary evidence, does not exist in this case.
My learned brother, has found in the lead judgment, that the trial Judge, found upon an effective evaluation of the evidence, and like a couple of others before him, that the appellants have failed to make out a case worthy of belief.
In my humble opinion, the evidence of PW1 adduced for the appellants appear more in consonance with the stance of the respondents. It is the assertion and position of the respondents that they are warriors whose services were employed by the appellants for the protection of the appellants upon terms. Such warriors, if they be conquered and turned slaves, would be so by a bunch of more fierce warriors, not by persons of mean spirits and disposition, who seek protection as claimed by the appellants.
The story of the appellants, in the 21st century is one of a stale, doll tale lacking any iota of truth nor human appeal.
William Wilberforce, the acclaimed leader of the Clapham Sect, an anti-slavery society, is said to have achieved his first success on the 25th March, 1807; when England enacted the first law to abolish slavery in the then British West Indies. The statute did not however, change the legal status of persons enslaved before its enactment.
In Nigeria, if there were any group of persons termed slaves they are today free citizens with no such dehumanizing appellation of slave-descendants. (Refer Sections 42, 43 & 44 of the 1999 Constitution of the Federal Republic of Nigeria). If such people so described still exist today, I dare say they are entitled to the exclusive and perpetual possession and ownership of whatever they possess and also all that they have laboured to secure for the so called ‘masters’.
A claim, in a court of law, in present day Nigeria, with slavery as a foundation, or even a remote linkage is mildly put, aberrant.
As a matter of fact, if the respondents were of any status other than what they claim to be, they would not have established so much assertive possessory rights and presence to defeat the appellants at each turn and twist of the contest over the said land.
From the exhibits tendered, which have been fully analysed by my learned brother, Fabiyi, JCA, the appellants have been the traditional plaintiffs/complainants and have almost become habitual loosers; since the Supreme Court may over turn us. No where in all their orchestrated suits, did they succeed.
The appellants’ story is rather unattractively fanciful and out of tone with present day realities in which global attention not only advocates the freedom of all persons but also equal opportunities for all manner of human beings.
From historical facts and testimonies, all the members of the human race are alike rational creatures originating from one Heavenly beneficent Creator and in all respects, equally endowed by Him. (By Wilson Armistead on slavery).
Slave-drivers, if any exist today, should be profoundly apologetic rather than assert any imagined rights. This appeal is totally devoid of merit and is accordingly dismissed.
I adopt all the consequential orders made in the lead judgment.

Appeal dismissed.



M.O. Nlemedim, Esq.For Appellant



  1. M. Anah, Esq.For Respondent


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