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ELDER MACAULAY EKEZIE & ORS v. ELDER FRIDAY O. TASIE & ORS (2019)

ELDER MACAULAY EKEZIE & ORS v. ELDER FRIDAY O. TASIE & ORS

(2019)LCN/13788(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of January, 2019

CA/PH/411/2017

 

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria

ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria

Between

1. ELDER MACAULAY EKEZIE
2. CHIEF DARLINGTON EKEZIE
3. CHIEF ANTHONY EKEZIE
4. CHIEF JOEL EKEZIE
5. MR. CHIDI EKEZIE
6. MR. SUNNY EKEZIE Appellant(s)

 

AND

1. ELDER FRIDAY O. TASIE
2. CHIEF SUNNY TASIE
3. MR. GEORGE TASIE
(For themselves and on behalf of Douglas Nwomo Tasie Family of Rumukamalu, Atali in Obio/Akpor Local Government Area of Rivers State) Respondent(s)

RATIO

WAYS OF PROVING OWNERSHIP OF TITLE TO LAND

As for the law involved, we will like to point out that it is now settled that there are five ways in which ownership of land may be proved?.. First ownership of land may be proved by traditional evidence as has been done in the case in hand Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner Fourthly, acts of long possession and enjoyment of the land may also be primafacie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done?. Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence? Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute. PER SANGA, J.C.A.

FACTORS TO BE SHOWN FOR CUSTOMARY ARBITRATION TO BE VALID

In EUGENE NNAEKWE EGESIMBA V EZEKIEL ONUZURUIKE (2002) LPELR ? 1043 (SC) the Supreme Court while pronouncing on the conditions for customary arbitration to be binding held thus: –
?For a customary arbitration to valid, it must be shown: (a) that parties voluntarily submit their disputes to a non-judicial body, to wit, their elders or chiefs as the case may be for determination; and (b) 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; (c) that neither of the parties has resiled from the decision so pronounced. See Agu V Ikewibe (Supra) and the cases cited therein.? ? Per OGUNDARE, JSC on page 28 paragraphs B ? E.
Thus one of the attributes of customary arbitration is the right and freedom of parties to resile from the decision if it is unfavourable as held by the Supreme Court in RAPHAEL AGU V CHRISTIAN OZURUMBA IKEWIBE (1991) LPELR ? 253 (SC) per KARIBI-WHYTE, JSC on page 26 paragraphs A ? F thus: –
?It is well accepted that one of the many African Customary Modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance arid (sic) from which either party is free to resile at any stage of the proceedings up to that point. This is common method of settling disputes in all indigenous Nigerian societies.”PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This suit was commenced by ELDER JOSHUA TASIE (for himself and on behalf of Douglas Nwomo Tasie Family of Rumukamalu Atali, Obio/Akpor L.G.A of Rivers State) as Claimant. He sued the Appellants as Defendants before the High Court of Rivers State Port Harcourt Judicial Division in Suit No. PHC/1402/2012 vide a Writ of Summons and Statement of Claim dated 28th June, 2012 claiming against the said Defendants jointly and severally as follows: –
1: A Declaration that by virtue of the Ikwerre Native Law and Custom applicable to the Rumukamalu Community of Atali in Ikwerre Local Government Area of Rivers State the children of late Ojiowhor Douglas Nwomo Tasie are entitled to possessory rights of the large portion of track of land in dispute located at Ohia Azumini Igba Okporo, Rumukamalu, Atali same having been deforested by late Ojiowhor Douglas Nwomo Tasie.
2: An Order of Perpetual Injunction restraining the Defendants, their agents, servants, privies and or anybody claiming through then how soever called from trespassing or further trespassing into the land in

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dispute located at Ohia Azumini Igba Okporo, Rumukamalu, Atali or disturbing the possessory rights of the members of Ojiowhor Douglas Nwomo Tasie family on the said land.
3: An Order directing the Defendants to pay adequate and reasonable compensation and damages as may be accessed (sic) by this Honourable Court to the members of late Ojiowhor Douglas Nwomo Tasie Family for the unlawful trespass onto the land in dispute known and called Ohia Azumini Igba Okporo, Rumukamalu, Atali and for destroying economic trees and crops thereon. (pages 8 ? 9 of the record of appeal).

The Defendants filed a Statement of Defence containing 21 paragraphs and a Counter Claim wherein they counter claimed against the Claimants as follows: –
1: A Declaration that by virtue of Customary Arbitration and Ikwerre Native Law and Custom applicable in Rumukamalu Community of Atali in Obio/Akpor Local Government Area of Rivers State, the Defendants are entitled to Right of Occupancy over the large portion of track of land bordering both sides of Mini-Wuche/Mini Kamalu stream, Rumukamalu, Atali.
?2: A Perpetual Injunction restraining Defendants whether by himself,

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servants, agents, privies or howsoever from trespassing on the land in dispute.
3: An Order of Possession and N5,000,000:00 (Five Million Naira) damages against the Defendant in Favour of Claimants for trespassing on the said land. (page 27 of the record of appeal).

Trial commenced on 21st January, 2013. The Claimant called two witnesses as follows: –
A:  C.W.1: – Joshua Tasie. He adopted his written deposition and was cross examined by learned counsel to the Defendants. (pages 127 ? 135 of the Records).
B: C.W.2:- is Elder Nwogu Tasie. He also adopted written deposition and was cross examined by learned counsel to the Defendants.  (pages 136 ? 138 of the Records).
The Defendants also called two witnesses as follows:
A: D.W.1: – is Elder Macaulay Ekezie. After adopting his written deposition, he tendered the following documents in evidence: –
Decision of HRH W.W. Onunwo and the Judgment of Chief Priest of Ngbiriko Supreme Shrine of Omademe were tendered without objection and marked as Exhibits ?A? and ?B? respectively.

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Thereafter the witness was cross examined by learned counsel to the Claimant. (pages 138 ? 144 of the record of appeal).
B: D.W.2: – testified on 10th December, 2013. He is Chief Samuel Azundah. He adopted his written deposition and was cross examined by learned counsel to the claimant on pages 145 to 146 of the record of appeal.

Thereafter learned trial Judge adjourned the matter to 24/2/2014 for adoption of written addresses. However it was on 28/4/2014 that learned counsel adopted their respective written addresses and learned trial Judge adjourned the matter to 24/6/2014 for judgment. (pages 146 ? 149 of the record of appeal).
?
On 21/9/2015, learned counsel re-adopted their written addresses and the learned trial Judge adjourned for judgment again to 28/10/2015. (page 149 of the record of appeal). On 5/5/2017 the Court sat and ROTIMI AREMU Esq., of counsel to the Claimant filed a motion seeking to replace the Claimant with his brothers (the respondents). This is because the Claimant died before judgment could be delivered. Learned trial Judge granted the application since E.J. ONOYEIWE Esq., of counsel to the Defendants did not object.

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Judgment was then delivered by learned trial Judge. In his judgment learned trial Judge adopted the sole issue formulated by the Defendants which is as follows:-
?As between the parties which has proved better title to be entitled to the land in dispute

The learned trial Judge reviewed the submissions by learned counsel in their written addresses and the evidences adduced during trial and held as follows: –
?By the traditional history presented to this Court and the Ikwerre Native Law and Custom it is clear to me that the Claimant?s father Late Ojiowhor Douglas Tasie disvirgined the land in dispute therefore became the owner. The Claimants by inheritance without doubt own the land in dispute. They are entitled to the possessory right over the land in dispute located at Ohia Azumini Igba (stream) which stream the Defendants called Mini-Wuche/Mini Kamalu in Rumukamalu Atali.
The Defendants, their agents, servants, privies and or anybody claiming through them howsoever called are hereby perpetually restrained from trespassing or further trespassing into the land. They are also restrained from

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disturbing the possessory rights of the members of Douglas Nwomo Tasie Family over the land.
A cost of N100,000.00 (One Hundred Thousand Naira) is hereby awarded against the Defendants. The cost shall be paid to the Claimants forthwith.? (pages 156 ? 157 of the record of appeal)

The Defendants were aggrieved with this decision so they filed a Notice of Appeal on 14th June, 2017 containing 4 grounds of appeal. (pages 158 ? 162 of the record of appeal). The Record of Appeal was compiled and transmitted to this Court on 25th July, 2017. The Appellant?s brief of argument was filed on 16th August, 2017. It was settled by D.O. EZAGA Esq. (S.A.N). The Respondents Brief of Argument filed on 31/10/2017 was settled by ROTIMI AREMU Esq. The Appellants Reply Brief was filed on 22/12/2017 but deemed as properly filed and served on 11/05/2018.

In their respective briefs of argument, learned counsel adopted the issues they formulated in their written addresses before the lower Court. The Appellants? sole issue is couched thus: –
?As between the parties which have proved better title to be entitled to the land in dispute.

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On the other hand, the Respondents reframed their sole issue as follows:-
Whether from the state of pleadings and evidence before the trial Court, the Judgment of the trial Court can be sustained.

In determining this appeal, I will adopt the issue canvassed by learned counsel to the appellant.

In his submission while arguing the sole issue, learned counsel to the Appellants stated the well known five ways of proving title to a land in dispute as enunciated by the Supreme Court in IDUNDUN V OKUMAGBA (1976) 9 & 10 S.C. 27 i.e.
(1)  By traditional evidence;
(2)  Production of Documents of Title;
(3) Act of ownership provided they extend over a sufficient length of time and numerous and positive enough to warrant the inference of ownership;
(4) Acts of long possession; and
(5) Proof of possession of adjacent land in such a way that one could own both lands.
?
That both parties relied on traditional evidence in their claim of ownership and at the end of the trial the learned trial Judge without proper evaluation of

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the pleadings and evidence placed before him entered judgment in favour of the Respondents based on ?speculations and conjectures?. Learned counsel harp on the holding by the learned trial Judge that ?Tasie and Ekezie had equal right to the Kamalu?s virgin lands?. That this was not the case before the lower Court. The case before the lower Court was whether the land in dispute is owned by Douglas Nwomo Tasie family or the Ekezie family as Respondents and Appellants respectively. That the appellants are a ?sub-family within the Tasie family?. The claim is not by the entire Tasie family so the decision by the lower Court ought to resolve the case between the persons before it since the larger Tasie family neither claimed the land nor did any of the parties accept that it was a joint property. Cited the authority of OKPALA V IBEME (1989) 2 NWLR {Pt. 102} 208 at 222. Where the Supreme Court held thus:-
?The second which is relevant in this appeal, is that where an issue of title to land arises in litigation, the Court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation and not the titles of those not before the Court.”

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Learned counsel further argued that the learned trial Judge accepted the respondents? evidence that their forbear deforested the land in dispute without first determining the basis of the land being available to him for deforestation. That merely deforesting a land does not make one the owner without showing how he was entitled to the land. That ?granted, but not admitting, the said Douglas Nwomo Tasie deforested the land, that does not make it his own in the circumstances of this case?. That the lower Court failed to consider the holding by the apex Court in ODUNZE V NWOSU (2007) 13 NWLR {Pt. 1050} 26 at 53 that a party claiming title to land must first prove his root of title, that is, he must show by traditional evidence of the land that he rightly acquired it before deforesting it. That one cannot jump on another person?s land and claim ownership just because he deforested the said land. Learned counsel then analysed the root of title to the land in dispute as claimed by the Respondents and the evidence of their witnesses. That the evidence adduced by the

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Respondents was disjointed and uncoordinated thus creating a missing link in their root of title and their case ought to have failed on that plank alone. Cited OSU V NWADIALO (2009) 12 NWLR {Pt. 1155} 286 at 304 where the Supreme Court held thus:
?Therefore, it is my view, that the Respondents/Cross-Appellants have failed to plead satisfactorily or lend evidence to show the root of their title and before them that of their ancestors which is a sine qua non in cases where a plaintiff relies on evidence of traditional history in proof of his title to land in dispute.”

Learned counsel then reviewed the evidence of the parties before the lower Court.

Learned counsel submitted further that the issue of title to the land in dispute was previously settled by native arbitration, which both parties agreed with and pleaded in their claims. It is called the Omademe Shrine Arbitration Panel. That the bone of contention was to where the pendulum of judgment in the arbitration swung. While the Respondents claimed that it was in their favour the Appellants claimed otherwise. That the lower Court was then left with only one option which is to

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see the judgment, if written, or hear oral evidence of the said judgment from any of the arbitrators, if not written. That in the instant suit the lower Court was availed with both the written and oral version of the said judgment by the Appellants but chose to ignore same ?on the flimsy ground that the judgment did not mentioned the land it adjudicated upon?. Learned counsel asked: ?Was the Court and parties misled by the non-mention of the land in dispute That if the answer is in the affirmative then it is a ?substantial omission?, if on the other hand the answer is in the negative then the non mention of the land adjudicated upon is ?a mere technicality?. Learned counsel urged the Court to hold that the non mention of the land, if it at all is a mere technicality since there was indeed a mention of the land in the said Arbitration Judgment. Learned counsel cited where the land was mentioned in the pleadings of both parties and the evidence in support thereof.

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He urged the Court to hold that the learned trial Judge was in error when he held that:-
?Evidence of D.W.2 did not touch on any fact that could be useful to the Court in determining the true ownership of the land in dispute.”

That the judgment of the Customary Arbitration Panel is very clear. That since the Respondents failed to swear to the Juju Oath, then their assertion that they summoned the Appellants to the said Juju Shrine but they failed to appear ought to have been discountenance by the learned trial Judge. That the native arbitration judgment was accepted by both parties since they voluntary submitted to it, so its judgment is not only binding on both parties but it acts as estopel against any subsequent regular Court proceedings. Cited EGESIMBA V ONUZURIKE (2002) 15 NWLR {Pt. 791} 466 at 513.

Another issue argued by learned counsel to the appellant is the failure of the learned trial Judge to evaluate the evidence before him. Learned counsel submitted ?the Court?s conclusions were rather drawn from the personal belief of the Court and this have led to serious miscarriage of justice?. Cited: OJOGBUE V NNUBIA (1972) 1 All NLR {Pt. 2} 226 at 232 where the Court held thus:-

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?A judgment of the Court must demonstrate in full a dispassionate consideration of all the issues properly raised and heard and must reflect the result of such an exercise.”

That merely stating that he believe or did not believe is not a magic wand the learned trial Judge can have by merely stating the evidence he chose to believe without corresponding facts and evidence. It has to be backed by facts from witnesses and legal reasoning, since the law does not entitle a judge to assume and/or make a finding without giving justiciable reasons for doing so. Cited in support the Supreme Court decisions in A. G. LEVENTIS (NIG) PLC V AKPU (2007) 17 NWLR {Pt. 1063} 416 at 447; SAGAY V SAJERE (2000) 6 NWLR {Pt. 661} 360 at 370. That the one page analysis ?of what would have passed as an evaluation is certainly scantly and bereft of reasonable details?. Learned counsel urged the Court to resolve this issue in favour of the Appellants, allow the appeal and set aside the judgment of the lower Court.
?
In his submission while arguing the issue he formulated, learned counsel to the Respondents argued that there are areas of mutual agreement by the parties in respect to the land in dispute as follows:-

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(a) That both the Respondents family, Tasie and the Appellants Family, Ekezie have the same progenitors, Kamalu, a descendant of Ali, the founder of Atali, the community in which the land in dispute is situate.
(b) That their progenitor, Kamalu originally owned the land in dispute as part of large track of land inherited from his father.
(c) That both Tasie and Ekezie family are entitle to the land owned by Kamalu that were not shared by Kamalu before his demise and this ownership can come to the family members through act of deforestation.
(d) That the land in dispute though called different names by the parties, was/is well known to both the Respondents and the Appellants so as to make it possible for the Court order or judgment to be effectively attached to same whichever way the judgment goes. (See paragraphs 1 to 15 of the statement of claim contained at pages 4 to 6 of the records and paragraphs 5 to 10 of the statement of defence contained at pages 22, 23 and 24 of the records)
While the areas of disagreement are as follows: –

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(a) The Respondents case was built around the fact that the land in dispute was deforested by their late father, Douglas Nwomo Tasie whereas the Appellants case was that the entire land of Kamalu was deforested by him before his death.
(b) Whereas the Respondents claim title to the land in dispute by virtue of their father deforesting the land, the Appellants case was that the Appellants family hired the Respondents father amongst others to help re-deforest (whatever be the meaning) the land in dispute and thereafter built their claim to the disputed land on customary arbitration. See the counter-claim at page 27 of the record.

He then stated the obvious position of the law that since Appellants counter claimed against the Respondents they have the onerous duty to not only defend the suit against them but must bear the burden of proving their counter-claim as regards title to the land in dispute. That in this suit both the Appellants and the Respondents bear the equal burden of proving their respective claims before the trial Court. This is because a counter-claim is a distinct action and the counter claimant must comply with all

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the requirements in the main action before he can be said to succeed before the trial Court. Cited: USMAN V. GARKE (1999) 1 NWLR {Pt. 587} 466; NIDB V DE-EASYLIFE ELECTRONICS (1999) 4 NWLR {Pt. 597} 8. That a counter claim is a different action that must be proved the same way the substantive action is to be proved. Learned counsel then narrated the five ways of establishing title or ownership of land as held by the Supreme Court in IDUNDUN V OKUMAGBA (1976) 10 NSC 445 at 446. That for a party to succeed he need not prove the five ways cumulatively but a disjunctive prove of any will suffice.

That the Respondents? case was based on traditional evidence, acts of ownership, long possession and proof of possession of the adjacent land in a way that one could own both land. He referred to the written deposition and testimony of C.W.1 on pages 11 ? 12 and 131 to 134 of the records of appeal. That the claim of the Respondents as pleaded and supported by evidence on traditional evidence is tied to ?deforestation of a virgin land? by a member of the Respondents? family in respect to a land that both Appellants and Respondents

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have equal access and rights to. That both parties are in agreement that under Ikwerre Native Law and Customs applicable to them, a family member in Ikwerre land can deforest a land owned by their forefathers but which remains uncultivated, that once that is done, the member and his offsprings become, the owners with authentic title to such land. That D.W.2 admitted to this mode of owning land while testifying under cross-examination.

On evaluation of the evidence by the learned trial Judge learned counsel submitted that in his judgment the learned trial Judge did evaluate and considered the evidence proffered by the respective parties before arriving at a decision. Learned counsel copiously quoted the evaluation of the evidence contained in the judgment of the lower Court and submitted that the submission by the Appellants that the trial Court failed to evaluate the evidence led by the parties is misconceived and totally misleading. Cited the decision of this Court in ILORI V TELLA (2006) 18 NWLR {Pt. 1011} 267 at 291 where it held, inter alia, that evaluation of evidence involves a reasonable belief of the evidence of one of the contending parties

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and the disbelief of the evidence of the other party or a reasoned preference of one version of the evidence to another. That the learned trial Judge evaluated the evidence of the parties and gave considerable recognition to the values and quality of evidence adduced by the parties before preferring that of the Respondents.

Learned counsel submitted that relying on the authority of EKRETSU V OYOBEBERE (1992) 9 NWLR {Pt. 266} 438 at 442, though a Claimant succeeds on the strength of his case he may take advantage of the Defendant?s case which supports his case. He urged the Court to hold that Kamalu did not deforest all his land before his death. There were land left that was capable of being deforested by the Respondents? father as he did in this case. Urged the Court to hold that the land was deforested by Douglas Nwomo Tasie, who was shown to have been on the said land and deforested same. That the Appellants? contention that the said Tasie ?re-deforested? the land in dispute at the instance of their forefather as a labourer should be discountenanced since they failed to call even one of the co-labourers who

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re-deforested the land in dispute or their descendant to testify in support of their claim. Learned counsel urged the Court to invoke Section 167(d) of the Evidence Act and hold that failure to lead evidence in this regards is fatal to case of the Appellants. Cited: BABATUNDE V STATE (1969) 1 NWLR {Pt. 227} 228 at 229.

Learned counsel further submitted that in the event their argument on traditional history did not convince the Court, the Court is urged to consider their evidence of positive and numerous acts of possession of the land in dispute. That even where traditional history is held to be inconclusive, a Claimant can still succeed in an action for declaration of title to land on acts of possession. Cited NKADO V OBIANO (1997) 5 NWLR {Pt. 503} 31 at 50 and MOGAJI V CADBURY NIG. LTD (1985) 2 NWLR {Pt. 449} 381. That from the pleadings of the Respondents their father Douglas Nwomo Tasie was in possession of the land before his death. Learned counsel referred to paragraphs 12, 13, 14, 15 and 16 of their statement of claim and paragraphs 12, 13, 14, 15 and 16 of the written deposition of C.W.1. That Douglas Nwomo Tasie was on the land since 1945

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when he deforest the land. The Appellants also admitted that he was on the land since that year and all efforts to make him yield possession failed. That even the Appellants admitted that Douglas Nwomo Tasie has been in possession of the land for long and this admission needs no further proof as facts admitted needs no further proof by the party asserting it. Cited: EBOADE V ATOMESIN (1997) 5 NWLR {Pt. 506} 490; TAIWO V ADEGBORO (1997) 11 NWLR {Pt. 528} 224.

Learned counsel urged the Court to hold that the holding of the trial Court that by virtue of the possession, the Respondents can claim ownership of the land in dispute is unassailable and urged the Court to so hold.
?
On native arbitration, learned counsel to the Respondents submitted that they have joined issues with the Appellants on this point wherein they denied customary arbitration in respect of the land prior to 2009 when Douglas Nwomo Tasie died. That the Respondent denied that Appellants ever took their father before any customary arbitration before his death. Referred to paragraphs 12, 13, 14 and 15 of Claimants Reply to Defendants Statement of Defence and Defence to Counter Claim.

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Learned counsel submitted that the Court has held in EGESIMBA V ONUZURUIKE (2002) 15 NWLR {Pt. 791} 466 at 513 that the following criteria for customary arbitration are valid;
(1) Voluntary submission by the parties to the arbitration panel.
(2) Willingness to be bound by the decision of the panel.
(3) Non rejection of the decision of the panel.

That once any of these requirements is lacking, then the customary arbitration decision becomes ineffective and thus not binding on the parties. Cited: OKPURUWU V OKPOKAM (1988) 4 NWLR {Pt. 90} 554. That one of the salient attributes of customary arbitration is right and freedom of the parties to resile from the decision when it is unfavourable, as held in AGU V IKEWIBE (1991) 3 NWLR {Pt. 180} 385 at 407. That from the facts and circumstances of this case, especially from the extract of Exhibit ?A?, both parties, particularly the Appellants have resiled from the decision of the customary arbitration by their refusal to abide by the outcome of the decision of the panel which necessitated the panel to now ask for a further oath

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taking because one of the parties refused to accept its verdict.

On the submission by learned counsel to the Appellants on the customary arbitration as regards the land in dispute learned counsel to the Respondents submitted that the learned trial Judge who had the benefit of listening to the witnesses and observing their demeanour rightly opined in his judgment that: –
?Evidence of DW2 did not touch on any fact that could be useful to the Court in determining the true ownership of the land in dispute.”

That the decision of the arbitration panel did not add any value to the cases of the parties since in one breath the said panel held in favour of the Appellants and in another held that it was the refusal of the Appellants to abide by its decision that led the said panel to request for Juju material for oath taking. Learned counsel urged the Court not to disturb the holding of the trial Court to the effect that evidence of DW1 and Exhibits ?A? and ?B? added no value to the case of either of the parties before it. That in ODOFIN V AYOOLA the Supreme Court held that where a trial Court which saw and heard the

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witnesses, came to a specific findings of facts on the evidence in issue before it, an Appellate Court which had no similar opportunity, should refrain from coming to a different finding unless it can show that the conclusion of the trial Court was perverse or did not flow from the evidence before it. Cited the Supreme Court holding in OKOCHI & ORS V ANIMKWOI & ORS (2003) 18 NWLR {Pt. 851} (2003) 2 SCNJ 260 at 277 per TOBY JSC. That a decision by customary arbitration does not have force in itself until pronounced upon by a competent Court. Cited: AWOSILE V SOTUNBO (1992) 5 NWLR {Pt. 243} 515.

Learned counsel finally submitted that this appeal lacks merit and urged the Court to dismiss it in its entirety and affirm the judgment of the lower Court.

FINDINGS
I have carefully considered the submission by learned counsel to the parties. Learned counsel in their respective submissions rightly stated that the Supreme Court formulated five distinct ways of establishing title to land in D.O. IDUNDUN & ORS V DANIEL OKUMAGBA (1976) LPELR ? 1431 (SC) per FATAI-WILLIAMS, JSC as follows:-

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?As for the law involved, we will like to point out that it is now settled that there are five ways in which ownership of land may be proved?.. First ownership of land may be proved by traditional evidence as has been done in the case in hand Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner Fourthly, acts of long possession and enjoyment of the land may also be primafacie evidence of ownership of the particular piece or quantity of land with reference to which such acts are

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done?. Such acts of long possession, in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence? Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute?..?
?
I have carefully considered the claim and counter claim by the respondents and the appellants in their pleadings and the evidence adduced in support thereof. While the Respondents are claiming that their forebear one Ojiowhor Douglas Nwomo Tasie deforested the land in dispute which, according to Ikwerre Native Law and Custom, applicable to both parties, a family member can deforest a land and once that is done he and his offsprings becomes the owners with title to such land. Even the Appellants? witness Chief Samuel Azunda (DW2) whose testimony is on pages 145 ? 146 of the record of appeal admitted during cross examination the applicability of this custom of ownership of land under

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Ikwerre Custom. The appellants claimed that the said Ojiowhor Douglas Nwomo Tasie was a labourer employed along with other labourers to deforest the land for the ancestor of the appellants after which he refused to vacate the said land while other labourers left is hard to believe and I did not believe that story.

It is my finding that based on the state of pleadings of the respondents and the evidence adduced in support thereof before the trial Court vis–vis the holding by apex Court IDUNDUN -V- OKUMAGBA (Supra), they had built their case on traditional history, evidence of possession over a sufficient length of time numerous and positive enough to warrant the inference that they are the true owners of the land and proof of possession of adjacent or connected land in a way that showed they are the owners of both lands as pleaded in paragraphs 3 to 11 of their statement of claim on pages 4 to 6 of the record of appeal and the evidence of C.W.1 and C.W.2 on pages 131 to 134 of the record of appeal.
?
On the submission by learned counsel to the appellants that the learned trial Judge failed to evaluate the evidence adduced before him, I find

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that though the judgment is not lengthy but the learned trial Judge adequately considered the evidence proffered by the parties. For instance he held on pages 156 ? 157 of the record of appeal thus: –
?In view of the facts that the Defendants are not only defendants but have counter-claim, both parties therefore have equal burden of proving title to the land in dispute.
From the evidence before the Court, it cannot be said that Kamalu the son of Ali, the founder of Atali deforested the entire Atali land, it is more reasonable to believe that he could have only deforested the land where he dwelt with his two sons Chiolu and Olutogbo being the Okporo (former dwelling place).
The defendants? logic that one can own a virgin land without necessarily, deforesting it and deforesting it without owning it cannot apply in this case as both Tasie and Ekezie had equal rights to Kamalu?s virgin lands.
According to the D.W.1 those who assisted his father Charles Ekezie to cut the regrown forest the land in dispute, for consideration of using the land for one farming reason included the father of the Claimants, Douglas Tasie and that

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while other labourers Samuel Agbaraka, Emmanuel Tasie of Atali, Stanford Amadi and Wilson Wobo of Elimgbu all left the land after one year, but that only the Claimants? father Douglas Tasie stayed back on the land. The conclusion to be drawn here is, that the other Labourers left the land because they had no colour of right to the land while same cannot be said of Douglas Tasie who is a descendant of Kamalu?..
This conclusion is in line with the pleading of the claimants in paragraphs 12 and 13 of the Statement of Claim that both Douglas Nwomo Tasie and Nelson Wakowhu who were brothers crossed the stream and blazed the trail by disvirgining the swamp forest and that the land of both adjoined each other.
The story of the CW2 to that effect is more reliable than that of the Defendants that Douglas Tasie was hired to work for Nelson Ekezie.
None of the persons who allegedly worked for the father of the defendants, Ekezie was called as a witness. Exhibits A and B which are the Traditional Arbitrations decisions did not make mention of the land adjudicated upon.

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By the traditional history presented to this Court and the Ikwerre Native Law and Custom it is clear to me that the claimants? father Late Ojiowhor Douglas Tasie disvirgined the land in dispute and therefore became the owner. The Claimants by inheritance without doubt own the land in dispute. They are entitled to the possessory right over the land in dispute located at Ohia Azumini Igba (stream) which stream the Defendants call Mini-Wuche/Mini Kamalu in Rumukamalu Atali?

It is obvious that the learned trial Judge adequately evaluated the evidence proffered by the respective parties before reaching a decision in favour of the respondents which decision is unassailable.

As for the customary arbitration which the appellants are relying upon to claim that the land in dispute was awarded to them it is my finding that even D.W.1 through whom the two documents were tendered, admitted under cross examination that Exhibit ?B? relates to a different land that is not connected to the land in dispute when he testified on page 139 of the record of appeal as follows:-
?Question: The land in dispute that took you to HRH Onunwo is different from this land<br< p=””</br<

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?Answer: Yes it is different.?
?Question: What is the distance between that land and the land in dispute
?Answer: I am not a surveyor I cannot say. I don?t know.?

I also noted that Exhibit ?A? clearly show that it was the appellants that refused to agree with the initial decision of the Arbitration Panel which led to the decision to take oath before the Panel consisting of D.W.2 who is a member of Mgbako Supreme Juju Shrine as seen in the ?Judgment of Land Case? by the office of the Chief Priest Ngubko Supreme Shrine Omademe Town on pages 76 ? 77 of the record of appeal.
In EUGENE NNAEKWE EGESIMBA V EZEKIEL ONUZURUIKE (2002) LPELR ? 1043 (SC) the Supreme Court while pronouncing on the conditions for customary arbitration to be binding held thus: –
?For a customary arbitration to valid, it must be shown: (a) that parties voluntarily submit their disputes to a non-judicial body, to wit, their elders or chiefs as the case may be for determination; and (b) the indication of the willingness of the parties to be bound by the

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decision of the non judicial body or freedom to reject the decision where not satisfied; (c) that neither of the parties has resiled from the decision so pronounced. See Agu V Ikewibe (Supra) and the cases cited therein.? ? Per OGUNDARE, JSC on page 28 paragraphs B ? E.
Thus one of the attributes of customary arbitration is the right and freedom of parties to resile from the decision if it is unfavourable as held by the Supreme Court in RAPHAEL AGU V CHRISTIAN OZURUMBA IKEWIBE (1991) LPELR ? 253 (SC) per KARIBI-WHYTE, JSC on page 26 paragraphs A ? F thus: –
?It is well accepted that one of the many African Customary Modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance arid (sic) from which either party is free to resile at any stage of the proceedings up to that point. This is common method of settling disputes in all indigenous Nigerian societies.”

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From the facts and circumstances of this case as it relates to Exhibit ?A? (the Judgment of the Customary Arbitration Panel) both parties resiled from the decision of the said Panel by their refusal to abide by its decision. While the Appellants? refused to ?stop at old binding? leading to a decision for oath taking, the Respondents failed and/or refused to ?bring Juju? for oath taking (pages 76 ? 77 of the record of appeal). Moreover the decision of the Customary Arbitration Panel does not have force until pronounced upon by a Court of competent jurisdiction. In VINCENT O. AWOSILE V CHIEF F. O. D. SOTUNBO (1992) LPELR – 658 (SC) the apex Court per NNAEMEKA-AGU JSC held thus: –
?It must always be borne in mind that the decision of arbitration whether native or orthodox lacks intrin sic or inherent force until pronounced upon by competent Court?..the Court pronouncement is what baptizes an arbitration decision giving it in the process, the power to operate as estoppels per rem judicatam.”
Thus the reliance by the appellants on Exhibit ?A? (the Judgment of the office of the Chief Priest Ngbuko Supreme

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Shrine Omademe Town) without more is a non sequitur and cannot avail them since both parties resiled from it. This issue is therefore resolved against the appellants.

It is the decision of this Court that this appeal lacks merit and it is hereby dismissed. The Judgment of the trial Court in Suit No. PHC/1402/2012 delivered on 5th May, 2017 is affirmed. Parties shall bear their respective costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, BITRUS GYARAZAMA SANGA JCA gave me the opportunity of reading before now the Judgment just delivered. I agree that the appeal lacks merit and I dismiss it. I abide by the consequential Order.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I agree.

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Appearances:

No appearancesFor Appellant(s)

Rotimi Aremu, Esq. with him, S. Legborsi, Esq.For Respondent(s)

 

Appearances

No appearancesFor Appellant

 

AND

Rotimi Aremu, Esq. with him, S. Legborsi, Esq.For Respondent