JOHN ONYENGE & ORS VS CHIEF LOVEDAY EBERE & ORS
In the Supreme Court of Nigeria
Tuesday, June 22, 2004
Case Number: SC. 117/2000
SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT
SYLVESTER UMARU ONU JUSTICE, SUPREME COURT
SAMSON ODEMWINGIE UWAIFO JUSTICE, SUPREME COURT
DENNIS ONYEJIFE EDOZIE JUSTICE, SUPREME COURT
IGNATIUS CHUKWUDI PATS-ACHOLONU JUSTICE, SUPREME COURT
1. JOHN ONYENGE2. ANDREW AMADI3.IKECHI NWACHI (For themselves and on behalf of Umungede Family, Uwaza in Ukwa LGA of Abia State)
1. CHIEF LOVEDAY EBERE2. ENOCH EBERE3. PETER ALIRI (For themselves and on behalf of “Ulogor” Family, Owaza in Ukwa LGA of Abia State)
TRADITIONAL ARBITRATION AND COMMON LAW
It is my view that where parties decide to be bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of title to land no longer apply. In such a situation, the proof of ownership or title to land will be based on the rules set out by the traditional arbitration resulting in oath taking. It is in this regard that I find it difficult to go along with counsel in his submissions bordering on the common law. One of such submissions is the rule, or should I say principle, that possession is nine-tenths of ownership. The other is on principles of law governing proof of title to land. I think this is what counsel means by his submission that the burden is squarely on a party claiming declaration of title to adduce credible and admissible evidence in support of the title. I think it is good law that in arbitration under customary law, the applicable law is customary law and not common law principles with their characteristic certainty and ossification. – per NIKI TOBI, JSC
BURDEN OF PROOF IN CIVIL CASES
The burden of proof in a civil matter such as this is on the party who alleges the affirmative. And that party could be the plaintiff or the defendant, depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to prove the negative. – per NIKI TOBI, JSC
NIKI TOBI, JSC (Lead Judgment):
This case has moved through three courts, viz: Ukwa Customary Court, Ukwa Local Government Area; Customary Court of Appeal, Abia State and the Court of Appeal, Port Harcourt Division. This is the fourth court.
The plaintiffs, who are the respondents in this court claimed against the defendants, who are the appellants in this court: (a) a declaration that the plaintiffs are entitled to the customary right of occupancy in and over the piece of land called Egbelu Ulogor; (b) N2,000 general damages; and (c) perpetual injunction restraining the defendants, their servants, agents and or privies from committing further acts of trespass on the said land.
The trial court gave judgment to the plaintiffs in terms of their claims, except the relief on trespass where the court awarded N700.00 damages. The Abia State Customary Court of Appeal allowed the appeal of the defendants and dismissed the case of the plaintiffs. The plaintiffs appeal to the Court of Appeal was allowed. That court restored in full the judgment of the trial court. It is the judgment of the Court of Appeal that the defendants as appellants have appealed to this court. And so the plaintiffs won in two courts (Customary Court, Ukwa and Court of Appeal), while the defendants won in one court (Customary Court of Appeal, Abia State).
Let me state the facts of the case. The plaintiffs’ case is that they are descendants of one Ulogo who deforested the land in dispute, “Egbelu; Ulogo”, situate at Owaza in Ukwa Local Government Area within the jurisdiction of Ukwa Customary Court. The plaintiffs stated in evidence that one Elechi, the 1st son of Ulogo, their ancestor, pledged the land in dispute to one of the defendants’ ancestors, Nwosu Nwokiri for 400 manilas. The pledge was not redeemed by subsequent heads of the plaintiffs’ family until when the 1st plaintiff’s father, Ebere Oforji, as head of Ulogo family, approached the defendants for redemption of the pledge of the land in dispute. Ebere Oforji tendered N6.68 as the equivalent of 400 manilas to the defendants which they refused to accept claiming that the land in dispute was not on pledge to the defendants and particularly that the plaintiffs are not the descendants of Ulogo.
For the refusal of the defendants to accept redemption of the pledge and asserting ownership of the land in dispute, the plaintiffs, in accordance with the custom of the parties deposited the redemption money of N6.68 with “AKPAM JUJU” at Obuzo, Asa in Ukwa Local Government Area. PW2, Nna Nwankpa, was the Chief Priest of the “AKPAM JUJU”.
The evidence is that the parties appeared before the ‘AKPAM JUJU” and each party stated its case before the Juju priests. The Juju priests gave a decision that the plaintiffs should take oath since the defendants had refused to take the oath. The defendants were ordered to provide any juju of their choice for the plaintiffs, within eight days, to take the oath. This, the defendants failed to do but rather summoned the plaintiffs before a foreign juju, “OGWUGWU AKPU” of Okija in Anambra State, demanding that the plaintiffs should take oath before the juju that the land in dispute is the plaintiffs’ family land and that the said land in dispute was pledged to the defendants’ ancestor by the plaintiffs’ ancestor. The plaintiffs agreed to take the oath and the “OGWUGWU AKPU” juju from Okija in Anambra State was brought down to Ukwa and placed on the land in dispute. The plaintiffs took the oath that they are descendants of Ulogo and that the land in dispute was the property of their ancestor, Ulogo. On the death of Ulogo, the land was pledged by their ancestor, Elechi, to the defendants’ ancestor. The plaintiffs survived the customary one year of the oath taking and celebrated the survival in compliance with the custom of Asa-Ukwu people to which the parties hereof belong. The plaintiffs thereafter became entitled to the exclusive possession of the land in dispute by the custom of the parties. That is the story of the plaintiffs.
The defendants, on the other hand, also laid claim to the ownership of the land in dispute. The defendants maintained that they were on the land in dispute not as pledges but in exercise of their rights as owners of the said land. The defendants admitted that the matter now before the court was referred to the “Akpam Juju” at Obuzo Asa for arbitration but that the arbitration was inconclusive as they insisted that more than one member of the plaintiffs’ family should swear to the juju. As a consequence they referred the matter to the “Ogwugwu Akpu” juju who ruled that seven members of the plaintiffs’ family should swear to an oath. It is the defendants’ case that on the date of oath taking the juju priest from Okija who administered the oath made it abundantly clear that the juju will not kill anyone unless those who took the oath enter into the land to farm thereon. The defendants maintained that after the oath taking the plaintiffs never entered into the land in dispute.
The parties filed and exchanged briefs. The appellants formulated four issues for determination:
“(1) Were the learned justices of the Court of Appeal right when they held that the Plaintiffs proved the ownership of the land in dispute by oath taking and that the applicable custom to the oath administered by the juju priest from Okija in Anambra State was that of Ukwa people and not that of the people of Okija in Anambra State?
(2) Were the learned justices of the Court of Appeal right when they held that the Appellants could be held liable in trespass when there was evidence that they were in exclusive possession of the land in dispute?
(3) Were the learned justices of the Court of Appeal right when they held that the Plaintiffs proved the alleged pledge of the land in dispute to the Defendants?
(4) Were the learned justices of the Court of Appeal right when they held that the Customary Court of Appeal was in serious error when it interfered with the decision of the trial court on facts?”
The respondents also formulated four issues for determination:
“(i) Whether the learned Justices of the Court of Appeal were not right to uphold the finding of the trial Customary Court that the proved customary law of Asa, Ukwa Local Government Area governed the oath taken by the plaintiffs over the land in dispute.
(ii) Was it not an act of trespass under the Customary law of Ukwa people when the Appellants in 1990 entered the land over which the Respondents, at the instance of the same appellants, took oath and survived the mandatory customary one year period?
(iii) Were the learned Justices of Court of Appeal wrong in upholding the finding of the trial Customary Court that the land in dispute was on pledge to the appellants?
(iv) Whether the Court of Appeal was not right to have upheld the finding of fact of the trial Customary Court arrived at as a result of proper evaluation of evidence?”
The appellants also filed a Reply Brief.
Learned Senior Advocate for the appellants, Chief Chris Uche, submitted on Issue No.1 that the arbitration can only be said to be conclusive if it is shown that the plaintiffs satisfied all the conditions laid down by the juju priest from Okija. Relying on the evidence of DW3, DW1, DW2 and DW4, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that the oath taking in this case was conclusive.
On the conclusion of the Court of Appeal that the evidence of the defendants in respect of the issue of oath taking was contradictory learned Senior Advocate cited the case of Nwokoro V. Onuma (1999) 12 NWLR (Pt. 631) 342 at 355. He submitted that the material point in issue is whether the juju priest ever gave a condition that the plaintiffs should enter the land in dispute and not necessarily the period the juju will last before the plaintiffs can be said to have survived the oath. On this point there was no inconsistency in the evidence put forward by the defendants, learned Senior Advocate argued. He finally submitted on Issue No.1 that the arbitration was inconclusive and that the plaintiffs failed to prove ownership of the land in dispute by customary arbitration.
Learned Senior Advocate submitted on Issue No.2 that a customary pledgee is entitled to go into immediate possession of the pledged land and put the land into productive use and that the pledgee is also entitled to remain in possession of the pledged land until it is redeemed by the pledgor. He cited Okoiko V. Esadalue (1974) All NLR 409. Calling in aid Adeleke V. Adewusi (1961) All NLR 40 at 45 and Akinkuowo V. Fafimoiu (1965) NMLR 349 at 351, learned Senior Advocate submitted that a pledgee like a customary tenant in possession cannot be held liable in trespass until the redemption of the pledge. As the plaintiffs were not in possession of the land in dispute at the time of the institution of the action in trespass, they cannot succeed in an action on trespass which is rooted on possession. He cited Alhaji Yusuf V. Akindipe (2000) 8 NWLR (Pt. 669) 376 at 385.
On Issue No.3, learned Senior Advocate cited the case of Nwoke V. Okere (1994) 5 NWLR (Pt. 343) 159 at 172 and 173 in respect of juju oath taking. He submitted that where a parcel of land is on pledge or subject to customary tenancy, the pledgee is entitled to compensation for his crops on the land while the pledgor is entitled to compensation as the owner of the radical title to the land. He cited section 17(1)(c)(ii) of the Petroleum (Drilling and Production) Regulations Act, Cap. 350 Laws of the Federal Republic of Nigeria, 1990. In a case such as this, where both parties gave divergent evidence on the issue of pledge, ipse dixit of plaintiffs, without more, was insufficient to prove the pledge; and this is because the existence or non-existence of pledge is a question of fact and the onus of proving same is on the party who alleges its existence, learned Senior Advocate contended. He cited Ezeudu V. Obiagwu (1986) 3 SC 1 at 4. It was the argument of learned Senior Advocate that in a case such as this, the court ought to have used evidence of acts of possession (particularly the payment of compensation made by Shell) to resolve the conflicting claim to title made by the parties.
On Issue No.4, learned Senior Advocate submitted that the Court of Appeal was in error when it held that the Customary Court of Appeal ought not to have interfered with the findings of fact made by the trial court. Citing Chief Ebba V. Chief Ogodo (1984) 1 SCNLR 372; Shell Development Petroleum Company Limited V. His Highness Pere Cole (1978) 3 SC 183; African Continental See Ways Limited V. Nigerian Dredging Road and General Works Limited (1977) All NLR 179 at 190 and 191 and Akporo V. Egbalaa (1995) 8 NWLR (Pt. 411) 118 at 128, learned Senior Advocate submitted that the findings of the Customary Court of Appeal on the decision of the Customary Court were valid and the Court of Appeal was wrong in interfering with them. He urged the court to allow the appeal.
Learned counsel for the respondents, Chief T. E. Nwanosike submitted on Issue No.1 that the learned Justices of the Court of Appeal were very right to uphold the finding of fact by the trial Customary Court, Ukwa Local Government Area, that it was the customary law of Asa-Ukwa people that governed the oath taken by the respondents. He argued that the custom that was in evidence before the trial customary court was the custom of Asa-Ukwa clan of Abia State and not the custom of Ubaha Okija in Anambra State. He relied on section 16(2)(d) of the Imo State of (Nigeria Customary Courts Edict (now Law) 1984 applicable to Abia State.
It was the submission of counsel that by Order X Rule 6(4) of the Imo State Customary Court Rules, 1989 the burden of proving the customary law of Okija, which the appellants wished to rely on was on them. To counsel, there was ‘no such proof before the trial Customary Court and the appellants cannot now complain. On what counsel called the alleged terms and conditions which the appellants have consistently canvassed in all the courts, he submitted that the so-called conditions were not clearly established by the evidence of the proponents of the conditions. He took the evidence of DW1, DW2, DW3 and submitted that they contradicted the evidence of the appellants and the respondents.
Relying on Opare V. Sampson 3 WACA 169; Uzoechi V. Onyenwe (1999) 1 SCNJ 35 at 39, learned counsel submitted that the Court of Appeal was right to uphold the finding of fact by the trial Customary Court that it was the customary law of Ukwa Local Government Area that governed the oath taken by the respondents on the “Ogwugwu Akpu” juju of Okija, Anambra State in 1981.
Learned counsel submitted on Issue No.2 that under the customary’ law of Ukwa local Government Area the appellants were liable to the respondents in trespass having entered the land in dispute without the consent of the respondents after they had taken oath on the Okija juju at the instance of the appellants and survived the said oath. Counsel urged the court to refuse to set aside or interfere with the concurrent findings of the trial Customary Court and the Court of Appeal, as the findings were the result of proper evaluation of the facts in evidence.
Reacting to the appellants submission on pledge, learned counsel submitted that the principle adumbrated by the appellants is not derived from the custom of the parties which the trial Customary Court is enjoined to administer under section 16 of Imo State of Nigeria Customary Courts Edict (Law), 1984. He pointed out that there was no evidence of the principle before the trial Customary Court. The evidence of custom of the parties before the trial Customary Court, counsel claimed, is that the respondents became automatically, after one year of the oath taking, the owner in possession of the land in dispute.
Learned counsel submitted that the appellants are bound by the decision of the traditional arbitration which they initiated by demanding that the respondents should take oath on the Okija juju, and that they cannot now resile from the consequences of that decision.
On Issue No.3, learned Counsel submitted that the Court of Appeal was right to have upheld the finding of the trial Customary Court that the land in dispute was on pledge to the appellants. He called in aid the arguments he advanced in Issue No.2 and the evidence of DW1 and DW2. Relying on Ume V. Okoronkwo (1996) 12 SCNJ 404, learned counsel contended that oath taking was one of the methods of establishing the truth of a matter and was known to customary law and accepted by both parties.
Learned counsel submitted on Issue No.4 that the Court of Appeal was right not to have interfered with the findings of the trial Customary Court because the findings were supported by evidence and they were not perverse. He cited Efi V. Enyinful (1954) 14 WACA 424. Counsel urged the court to dismiss the appeal.
Chief Uche, SAN, in his Reply Brief, submitted that there is a great difference between customary arbitration and an oath-taking exercise. He pointed out that whereas oath-taking is an aspect of customary arbitration, yet it is not all customary arbitration that involve oath-taking. He argued, that the oath-taking in this matter was neither complete nor conclusive as the parties were not ad idem on the terms and conditions of the oath.
It was the submission of learned Senior Advocate that since the respondents were the plaintiffs at the trial court, and they were claiming that they swore to the “Ogwugwu Akpu”, the onus was on them to prove their case by calling evidence as to the oath taken by them. Relying on Eze V. Atasie (2000) 10 NWLR (Pt. 676) 470 at 481, learned Senior Advocate submitted that the burden is squarely on a party claiming declaration of title to adduce credible and admissible evidence in support of the title.
Learned Senior Advocate repeated his argument on the inconclusive nature of the oath-taking exercise and cited the following cases: Agu V. Ikwibe (1991) 3 NWLR (Pt. 180) 385 at 470; Awosile V. Sotunbo (1992) 5 NWLR (Pt. 243) 514 at 532; Okereke V. Nwankwo (2003) 9 NWLR (Pt. 826) 592 at 622, (2003) —SCM ——; Odinigi V. Oyeleke (2001) 6 NWLR (Pt. 708) 12 at 28, (2001) —SCM ——; Nwoke V. Okere (1994) 5 NWLR (Pt. 343)
159 at 173; Achiakpa V. Nduka (2001) 14 NWLR (Pt. 734) 623 at 650 (2001) —SCM ——; and Igwego V. Ezeugo (1992) 6 NWLR (Pt. 249) 561 at 587.
On Issue No.2, learned Senior Advocate submitted that since the respondents admitted that the appellants were and are in possession, their claim in trespass ought to have failed, as possession remains nine-tenths of ownership. He cited Akunyili V. Ejidike (1996) 5 NWLR (Pt. 449) 381 and Emodi V. Kwento (1996) 2 NWLR (Pt. 433) 656. It was the submission of learned Senior Advocate on Issue No.3 that it is not correct, as contended by the respondents, that the issues submitted to arbitration included the issue of pledge to land, just as same was not a claim before the lower court. Counsel pointed out that the dispute was in respect of ownership or title; hence in the writ no mention was made of a pledge or any relief for redemption included. To learned Senior Advocate, the issue of pledge was an after-thought, which the respondents failed to prove as required by law. He cited Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258) 214 at 226; Oyediran V. Alebiosu II (1992) 6 NWLR (Pt. 249) 550 at 559 and Eze V. Atasie, supra. On Issue No.4 on concurrent findings, learned Senior Advocate submitted that the Customary Court of Appeal set aside the judgment of the Customary Court, and it is therefore inappropriate to talk about concurrent findings of fact in this matter, particularly as the respondents have not shown upon which facts such concurrent findings were made. He cited Chinwendu V. Mbamali (1980) 3-4 SC 31. He once again urged the court to allow the appeal.
The burden of proof in a civil matter such as this is on the party who alleges the affirmative. And that party could be the plaintiff or the defendant, depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to prove the negative. See generally Okechukwu and Sons
- Ndah (1967) NMLR 368; Osawaru V. Ezeiruke (1978) 6-7 SC 135; Atana V. Amu (1974) 10 SC 237; Fashanu V. Adekoya (1974) 6 SC 83; Akinfosile V. Ijose (1960) 5 FSC 192.
A related aspect is that a party who alleges the existence of customary law must prove that customary law because the Law of Evidence regards it as a fact, unless it can be noticed judicially. See section 14 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. See also Angu V. Attah CP 1874-928 43; Buraimo V. Bamgboye (1940) 15 NLR 139; Adagun V. Fagbola (1932) 11 NLR 110; Giwa V. Erinmilokun (1961) 1 All NLR 294; Ekpana V. Uyo (1986) 3 NWLR (Pt. 26) 63.
It is the case of the respondents that they proved their case of title to the land in dispute, and this was by the decision of the traditional or Customary Arbitration arising from the exercise of oath-taking. It is the case of the appellants that the exercise of oath-taking was inconclusive and therefore could not have given rise to a decision in favour of the respondents. What is the evidence? It is in evidence that the oath-taking exercise was initiated by the appellants. DW3, the juju priest from Okija, the choice of the appellants, said in evidence in-chief:
“My name is Okonkwo Chukwueta. I live at Ubaha Ezike Okija in Anambra State. I am a juju priest. The name of my juju is Ogwugwu Akpu of Obaha Ezike in Okija. I know the parties in this suit. The defendants summoned the plaintiffs in 1981 before my juju. I did not judge any case for them as plaintiffs did not come to Okija. My duty was to come and administer the juju. I then brought the juju to their place Owaza. We took the juju on the land in dispute. I came alone to Owaza. Both parties were present. The villagers who decided on the swearing of the juju including the Eze and his Chiefs were there. I swore before administering the juju that I never brought poison to Owaza. The Eze asked me how many days this juju will last before killing any defaulter. I replied that it has no specific period. I told the Eze that as long as the plaintiffs had already sworn on the juju, that defendants who brought the juju can no more enter into the land in dispute. I warned the Eze that those who swore should start farming on the land that year. I told the Eze that if neither party entered into the land, the juju will not kill anybody. After this the plaintiffs swore to the juju. I do not know whether either party has been farming on the land. After five years ago I removed the juju at the instance of the defendants. I also testified before the Magistrate court, Obehie as I have done in this court.”
DW4, in his evidence in-chief also said:
“In 1981 1st plaintiff had a land dispute with Jiochan Nwosu (now late). Jiochan Nwosu insisted that Loveday Ebere (1st plaintiff) should swear to a juju before the land in dispute, is left for him. Juju was brought on the land from Okija in Anambra State.”
Witness said in cross-examination as follows:
“It is one year, after which he can enter the land after the necessary ceremonies of showing that he has survived. The man who took oath in Ukwa custom owns the land.”
The Customary Court, in its judgment, said:
“This court has a duty to determine which custom of oath taking should prevail in this circumstance. It is the opinion that since the juju was brought into Ukwa, within the jurisdiction of this Honourable Court, it is Ukwa custom that should prevail. In Ukwa custom and in Asa in particular oaths are administered and are allowed a period of not less than one year to watch the outcome of the juju on the party who took the oath. Court is of the opinion that plaintiffs having taken the oath and survived the one year period allowed by Ukwa custom, the defendants have no more claim over that piece of land for which they the defendants administered oath on the plaintiffs. It is also court opinion that defendants have no right whatsoever to command the plaintiffs as to when they (plaintiffs) should enter their land. Court is satisfied that the oath taken by the plaintiffs justified them that the land is on pledge with the defendants. Court noted that one of the arguments of the defendants is that they were enjoying Shell compensation on the land. This is as it should be, for as long as the land is on pledge, the pledgees have every right to continue enjoying everything on the land until the land is redeemed.”
The Court of Appeal agreed with the conclusion of the Customary Court. The court said:
“Considering all the circumstances, I have no hesitation in holding that the conclusion reached by the trial court is far more reasonable than that by the lower court. With all due respect to the Justices of the lower court, they picked the most inconsequential fact in the pack as a basis for overturning the decision of the trial court, which had been reached after examination of the facts before the court. Those facts proclaimed loudly that the applicable custom was the Ukwa custom.”
I am in grave difficulty to disagree with the above conclusion because it is clearly borne out from the evidence before the trial court. . After all; DW4 said in evidence that “the place of origin of the juju sworn upon was totally irrelevant and that everything was done according to Ukwa custom”. And this is clearly admission against interest, and it is against the interest of the appellants as defendants. It is the best evidence in favour of the respondents.
Learned Senior Advocate relied on section 16(2)(d) of the Imo State Customary Courts Edict (now law), 1984. The subsection provides that “a customary law shall be deemed to be binding upon a person where that person agrees or is deemed to have agreed to be bound by the customary law.” It is obvious from the decision of the Customary Court that the customary law binding on the parties
Learned Senior Advocate does not seem to like the tradition or custom of oath-taking. He cited quite a number of cases, including Nwoke V. Okere, Supra. This court recognises oath-taking as a valid process under customary law arbitration. In Ume V. Okoronkwo (1996) 12 SCNJ 404, Ogwuegbu, JSC, held that oath-taking was one of the methods of establishing the truth of a matter and was known to customary law and accepted by both parties. I am bound by that decision.
One fairly curious aspect in this case is that the appellants, who were instrumental to the exercise of oath-taking, are trying to resile from it. I do not think that such a position is available to them in law. In Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290, Iguh, JSC, correctly made the point at page 304:
“I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out or resile from the decision so pronounced.”
See also Kwasi V. Lavbi (1950) 13 WACA 76; Oline V. Obodo (1958) SCNLR 298; Njoku V. Ekeocha (1972) ECSLR 199; Inyama V. Essien (1957) 2 FSC 39.
Dealing with the issue on trespass the Court of Appeal said:
“Once the fact of such arbitration and oath-taking and survival have been successfully established the oath taker acquires the rights of full ownership and possession. If the other party remains in possession he does so as a trespasser if such possession is not with the consent of the owner. In the circumstances of this case the lower court was clearly wrong to hold that the plaintiffs should have sued for redemption first. It was because the defendants refused to take the redemption money that arbitration became necessary. The evidence before the trial court, confirmed by the defendants, was that the plaintiffs were to swear that the defendants held the land for them as pledgees and (not) to take the land. There was evidence also that the plaintiffs did take the oath and survived. Right of ownership and possession therefore automatically became vested in them. After one year of the oath the defendants could not be said to be in possession as against the plaintiffs. What they had was mere physical occupation. The plaintiffs had legal right of possession, which was better than the defendants’ occupation. The plaintiffs could, therefore, maintain action in trespass against the defendants. The trial court was perfectly justified in so holding.”
I can hardly improve on the above conclusion of the Court of Appeal. The situation in this case is different from the point made by learned Senior Advocate for the appellants. The issue was based on the oath taking and the after effect of the exercise on the parties. In view of the fact that the respondents survived after taking the oath, the parties were not bound by the niceties of the law as submitted by learned Senior Advocate that possession is nine-tenths of ownership. That may well be so under the common law but certainly not the position in the customary law under which the oath was taken.
It is my view that where parties decide to be bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of title to land no longer apply. In such a situation, the proof of ownership or title to land will be based on the rules set out by the traditional arbitration resulting in oath taking. It is in this regard that I find it difficult to go along with counsel in his submissions bordering on the common law. One of such submissions is the rule, or should I say principle, that possession is nine-tenths of ownership. The other is on principles of law governing proof of title to land. I think this is what counsel means by his submission that the burden is squarely on a party claiming declaration of title to adduce credible and admissible evidence in support of the title. I think it is good law that in arbitration under customary law, the applicable law is customary law and not common law principles with their characteristic certainty and ossification.
On the issue of pledge raised by learned Senior Advocate in the Court of Appeal, that Court said:
“Chief Uche, for the respondents, submitted that the lower court was justified in holding that the appellants did not prove pledge. Learned counsel pointed out that the plaintiffs did not make a claim for redemption of pledge and that they brought up the issue of pledge as an afterthought. He contended that they should have given particulars of it and proved them. Counsel contended also that the traditional evidence given by the plaintiffs fell far short of that required for establishing title to land.
With all due respect to Chief Uche, his standpoint in this case completely overlooks the importance of traditional arbitration in general and oath-taking in particular in our legal system. It is true that this form of adjudication is not part of our judicial system in the sense that a traditional arbitration panel is not one of the courts or tribunals recognised by the Constitution. It is equally true, however, that before the British brought their system of administration of justice we had our traditional system that worked. It worked, and still works better for the indigenes because it is faster and cheaper and they understand it, not being bugged down by the unnecessary and avoidable technicalities that beset the English.”
Again, I can hardly improve on the above conclusion. I cannot, with the greatest respect to learned Senior Advocate, agree that the issue of pledge was an afterthought. The Customary Court dealt with the issue when that court said, and I quote the court at the expense of prolixity:
“Court is satisfied that the oath taken by the plaintiffs justified them that the land is
Chief Chris Uche (SAN), with him M. I. Onochie and Ojike for Appellants.
Chief T. E. Nwanosike for Respondents.
Cases referred to in the judgment: