NWAKOLOBI v. EJEMELI & ANOR (2020)

NWAKOLOBI v. EJEMELI & ANOR

(2020)LCN/14645(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, October 23, 2020

CA/OW/36/2016

RATIO

APPEAL: EFFECT OF A FINDING NOT APPEALED AGAINST

The 2nd Respondent had not appealed against that finding and holding, and so it remains, binding and conclusive, and cannot be challenged, by way of Respondent’s Notice. See the case of Durbar Hotel Plc Vs Ityough & Ors (2016) LPELR – 42650 SC; Ezike Vs Egbuaba (2019) LPELR – 46526 SC and Ihedioha Vs Agwalemere & Anor (2018) LPELR – 44813 CA, on the effect of failure to appeal against any finding or decision of a Court, that it remains binding and conclusive. PER MBABA, J.C.A.

DOCUMENT: IMPLICATION OF A DOCUMENT SIGNED BEFORE BEING PRESENTED TO THE COMMISSIONER FOR OATHS FOR ENDORSEMENTT

Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously.
By Section 112 of the Evidence Act, 2011:
“An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.”

In the Supreme Court decision of Buhari Vs INEC (2008)12 SCNJ 1 at 91, the Court struck out the depositions of Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation Section 19 of the Notary Public Act and Section 112 of the Evidence Act 2011. See also the reasoning of my Lord, Ogunwumiju JCA, in the case of Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA, where she said:
“I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths, in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give evidence, regularizes the deposition. I was of the view that the witnesses’ statements, which are adopted during oral evidence on Oath are different from mere affidavit evidence, which stand on their own, without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Section 112 of Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on Oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari Vs INEC (2008) 12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was a violation of Section 19 of the Notary Public Act and 83 of the Evidence Act (now Section 112)…” PER MBABA, J.C.A.
AFFIDAVIT: PROCESS OF VERIFYING AFFIDAVIT

The provisions of Sections 107 – 120 of the Evidence Act 2011, provide the process of verifying affidavit, which, amongst other things, requires the deponent to sign the process in the presence of the person administering the oath.

In the said case of Erokwu Vs Erokwu (supra), my Lord Ogunwumiju JCA further said:
“The deponent after words, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase “Before me”, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity… When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court.” See also Chidubem Vs Ekenna & 12 Ors (2008) LPER – 3913; (2009) ALL FWLR (Pt.455) 1692. PER MBABA, J.C.A.

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

KENNEDY N. NWAKOLOBI APPELANT(S)

And

1. JAPHET EJEMELI 2. STERLING GLOBAL OIL RESOURCES LIMITED RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the judgment of Imo State High Court, in Suit No. HOG/22/1990, delivered on 31/3/2015 by Hon. Justice Goddy I. Anunihu, wherein his lordship dismissed the claim of the plaintiff, now Appellant.

At the trial Court, Appellant’s father, as plaintiff, had claimed as follows, against the original Defendants:
1) A declaration that the plaintiff is in possession and so entitled to the Customary right of occupancy over the land known as and called “ALA FIWUDO” which situates at Umunkpo Uwaorie Agwa within jurisdiction
2) N2000.00 damages for trespass.
3) Perpetual injunction restraining the defendants, their heirs, successors in title, servants and/or Agents from further trespass into the said land. (Page 11 of the Records)

On the 13th October, 1997, the Suit was struck out because the plaintiff was absent and having been reported dead. It was relisted on 28th July, 2008 with the present plaintiff, substituting his late father. Later, the 2nd Respondent was joined as defendant. The plaintiff filed amended statement of claim

and raised the damages claimed to N1 billion (One Billion Naira) (pages 63 – 64 of the Records). The 1st Defendant filed amended Defence and the 2nd Defendant also filed its defence.

At the end of the trial, the trial Court upon considering the evidence and addresses of counsel held against the plaintiff, dismissing his case, as follows:
“… my above findings does not however detract from the fact (sic) the Defendants had a (sic) offered a better proof of the result of the arbitration by oral evidence than the Claimant. In this case the Defendants had relied on estoppel as defence to the action relying on the arbitration decision. The Claimant did not do anything to impugn the veracity or integrity of the arbitration process. He merely claimed that the arbitration was in his favour without proving same. He placed much reliance on the fact that the land in dispute had been in possession of his family before 1st Defendant was born and that 1st Defendant did not prove the pledge of the land in dispute in this case. It is true that any person who alleges pledge in a land suit has the onus to prove such pledge as decided in

AARON OKORO MBUBU VS ANUGWAEGE (supra). However, that issue would have come into focus if previous native arbitration was not proved to my satisfaction. I would have also have considered evidence of long possession and possession of contiguous land in favour of the claimant, if I was not satisfied with the evidence of arbitration before me. Estoppel is a principle, developed to enhance public policy. Its essence is to ensure that parties do not engage in litigation ad infinitum. Once a party to a dispute submits to an arbitration process, he is bound by the result of such a process. Our law has since recognized oath taking as a notorious way of determining dispute in Igbo native jurisprudence. Cases abound on same, including Okoye & Anor. Vs. Obiaso & Anor(supra). Having come to the conclusion that the parties to this case (excluding the 2nd Defendant who is more or less a nominal party) submitted to native arbitration on the dispute over the land that is subject matter of this suit, and that the arbitrating took place and effectively determined the dispute by oath taking. I answer Issue No. 1 in the negative… that the claimant has failed to prove his

claim. This Suit is therefore dismissed… I make no order as to Cost.” (See pages 249 – 250 of the Records of Appeal).

Aggrieved by that decision, Appellant filed this appeal as per the Notice and Grounds of Appeal (on page 252 to 259 of the Records) disclosing 6 grounds of Appeal. He filed his brief of arguments on 14/3/2017 and distilled three Issues for the determination of the Appeal, as follows:
(1) Whether the learned Trial Court was right in law to have admitted and acted upon the evidence of DW1 and DW2, when it was established that their written statements on oath filed in this suit, were made in the office of the counsel to DW1, who is not a person authorised to administer oath (Ground 1).
(2) Whether the Learned Trial Court was right when it dismissed the suit of the Appellant who proved ownership of the land in dispute by evidence of traditional history, long possession and ownership of contagious(sic) portions of land by his family members or his kinsmen. Grounds 2, 4 and 5.
(3) Whether the Learned Trial Court after correctly rejecting Exhibit C (the document on which the arbitral award was based), was

right in law to hold that the defence of estoppel availed the 1st defendant in this case. (Grounds 3 and 6).

The 1st Respondent filed his brief on 20/4/2018, which was deemed duly filed on 23/4/2018. He donated three(3) Issues too for the determination of the Appeal, as follows:
(1) Whether a presumption of regularity does not lean in favour of DW1 and DW2 vis a vis their respective written depositions (Ground 1).
(2) Whether the Learned Trial Court was right when it dismissed the Suit of the Appellant. (Grounds 2, 4 and 5).
(3) Whether the defence of estoppel availed the 1st Respondent in his case.

The 2nd Respondent filed its Brief on 2/5/2018 which it tagged “2nd RESPONDENT/CROSS-APPELLANT’S BRIEF” The 2nd Respondent’s Counsel adopted the Issues as distilled Appellant, but relied on the argument by the 1st Respondent thereto, with some additions (See paragraph 2.00 and 2.01 of the 2nd Respondent’s Brief).

Arguing the Appeal, on 13/10/2020, Counsel for Appellant S.A. Njoku Esq., said the law is settled, that under the frontloading provision of the Rules of Court, witnesses are to enshrine their

evidence-in-chief in depositions which will be adopted at the trial of the case, and relied on Agagu Vs. Mimiko (2009)7 NWLR (Pt.1140) 342 at 422 – 425. He said that what constitute a “statement on oath”, must be properly sworn to before a Commissioner for Oath for it to be valid – Section 10(1) of the Oaths Act, Cap 01 Vol.12, LFN 2004. He argued that the witnesses deposition of the DW1 and DW2 were not deposed to or sworn before a competent person (Commissioner for Oaths); that they were made and signed at 1st Respondents’ lawyer’s office, according to witness testimonies (pages 155 and 157 of the Records of Appeal). He added that such deposition were inadmissible, relying on Section 112 of the Evidence Act. 2011. He said that he had canvassed the incompetence and worthlessness of the said depositions at the trial, but the trial Court failed to address it. He argued that there was no credible evidence before the trial Court to peg the Defendants defence, and so Appellant’s claim at the trial was uncontradicted and unchallenged. He also relied on Section 5(1) (a) of the Oaths Act, Chidubem Vs Ekenna (2009) All

FWLR (Pt.455) 1692; Obumneke Vs Sylvester (2010) All FWLR (Pt.506)1960 – 1961; Buhari Vs INEC (2008) 19 NWLR (Pt.1120) 246.

On Issue 2, whether the trial Court was right to dismiss the claim after Appellant had proved ownership by traditional history, long possession and ownership of the contiguous lands, Counsel answered in the negative. Counsel said that Appellant had consistently maintained his claim of ownership of the land and acts of possession; that the Defendants on their part, had conceded possession of the land to the claimant (paragraph 5 of the statement of defence – page 17 of the Records); he said that Defendants’ claim was founded on native arbitration, exclusively.

Counsel said it was surprising that the trial Court opted to consider the issue of arbitration, first, before the issue of establishment of title to the land (page 246 of the Records); that that error led to grave mistake as ownership issue should have been considered, before the arbitration issue.

Counsel referred us to the findings of the trial Court on page 249 of the Records, and observed that the trial Court had found that:

1) The land in dispute had been in the possession of the claimant’s family before 1st defendant was born;
2) The 1st defendant, who had conceded possession of the land to claimant’s family, but alleged that the land was on pledge to them (claimant’s family), did not prove the pledge, as required by law;
3) There was evidence of long possession;
4) The claimant was in possession of the contiguous lands to the one in dispute.

Counsel said that despite the above findings, the trial Court held for the Defendants, based on the claim of arbitration; he said that that was wrong. Counsel referred us to the five different ways of establishing title to land, and said that Appellant had fulfilled 3 namely:
1) Traditional evidence;
2) Acts of long possession and enjoyment and
3) Proof of possession of connected or adjacent lands.

He relied on the case of Onibudo Vs Akibu (1982) 7 SC 50; Ajiboye Vs Ishola (2006) All FWLR (Pt.331) 1215; Owoeye Vs Oyinola (2014) All FWLR (Pt.721) 1458 at 1477 – 1478.

Counsel said there was evidence that the land in dispute was surrounded on all sides by pieces of land belonging to

Appellant’s kinsmen and family members; that under cross examination, the 1st Respondent had admitted that no member of his own kindred had land around the land in dispute. He relied on the case of Tapsang Vs Lekret (2001) FWLR (Pt.42) 161 at 200.

Counsel said that native arbitration is not one of the five ways of establishing title to land; that one cannot place something on nothing and expect it to stand. He relied on Mcfoy Vs U.A.C. (1961)3 All NLR 1169; Equity Bank of Nig. Vs Halil Co. Nig. Ltd. (2006) All FWLR (Pt.337) 438. Thus, the trial Court was wrong to jettison the proofs of title by Appellant and rather relied on oath taking, under native arbitration, to award the land to the Respondent.

On Issue 3, whether the trial Court was right, after correctly rejecting Exhibit C (the document on which the arbitral award was based), turned round to hold that the defence of estoppel availed the 1st defendant, Counsel answered in the negative.

He said that the 1st Respondent had pleaded the arbitration and the outcome of the same; that it was in writing (pages 103 – 104 of the Records); thus, having pleaded the pledge and the

arbitration, the legal onus was on them to prove the allegations. Counsel said that after the close of evidence and filing of addresses by Counsel, the 1st Respondent Counsel had applied to Court to re-open their case and to tender document as proof of the arbitration award in their favour; that the Court on 12/12/2014 admitted the said document as Exhibit C, despite objection (pages 184, 206 – 208 of the Records).

However, in his judgment, the trial Court held that the said Exhibit C had no probative value, because the DW1, who tendered the document, did not even state that the parties were given copies of the same (page 249 of the Records). He (Counsel) said that despite the rejection, the trial Court, somersaulted and strangely held that his findings on the Exhibit C did not detract from the fact that the defendants had offered a better proof of the result of the arbitration, by oral evidence. Counsel said that was wrong. He further argued that before the issue of the native arbitration could arise, the 1st Defendant ought to have proved:
(1) His title to the land, allegedly pledged
(2) The fact of the pledge of the land

(3) The parties to the pledge
(4) The witnesses, time and circumstances of the pledge, and
(5) Consideration for the pledge. He relied on Ndoro Vs. Pianwii (2003) 5 NWLR (Pt. 812) 137; Mbubu Vs. Obori & Anor. (2003) FWLR (Pt. 156) 844.

Counsel submitted that, after having rejected the documentary evidence in Exhibit C, as being of no probative value, the trial Court cannot fall back on the oral evidence on the same claim, sought to be founded by the worthless documentary evidence.

He urged us to resolve the Issues for Appellant and to allow the Appeal, reverse the decision of the trial Court, and give judgment to the plaintiff in the suit, as per the findings of the trial Court on the ownership and possession of the land.

Responding, the 1st Respondent’s Counsel, S.A. Okolie Esq., on Issue one, said that the complaint of Appellant was not about the deposition of the DW1 and DW2 (statements on oath), but about the evidence by them, as to where they signed the said depositions – which was at the office of their lawyer – which contradicted the facts on the face of the statements on oath, which suggested that they were

sworn to before the Registrar – Commissioner For Oaths. Counsel, said that Appellant was only imagining that the documents were sworn to before the defendant’s lawyer, and subsequently stamping same, with the Court’s stamp and affixing the signature of the Register, after. He argued that such imaginations are extrinsic to the depositions as they appear on pages 107 and 108 of the Records of Appeal.

He urged us to invoke Section 168(1) of the Evidence Act, 2011, on the presumption of regularity of official act. He also relied on the case of Ndukwe Vs. LPDC (2007) 5 NWLR (Pt. 1026), Gambo Vs. State (2011) AFWLR (pt. 602) 1609.

On Issues 2 and 3, whether the trial Court was right to dismiss Appellants suit, and whether estoppel availed the 1st Respondent, Counsel (who argued the two Issues, together) answered in the affirmative. Counsel said that 1st Respondent had led historical evidence on the founding and devolution of the land in an unbroken chain of succession, down to 1st Respondent’s family; he said that the parties had agreed that there was an arbitration over the land; that while Appellant stated that the arbitration

was not in writing, but was in his favour, the 1st Respondent was detailed in stating that the arbitrators resolved for oath taking, which was accepted to both parties (page 103 of the Record); he stated how the oath was taken and the attendant survival ceremony. Counsel said those pieces of evidence were not challenged by Appellant. He submitted that proof of a fact can be made, without reference to any document; that 1st Respondent had made satisfactory proof of the customary arbitration. He added that the Exhibit C, which the Court refused to ascribe any probative value to, was supplusage; that the fact that weight is not attached to a document, does not detract from the fact that the document exists and forms part of the Records. He urged us to resolve the Issues against Appellant and to dismiss the Appeal.

Counsel for 2nd Respondent, C.C. Onyekanne, Esq., was not in Court at the hearing of the Appeal, but the brief he had filed was deemed duly argued. In the brief he adopted the arguments made by the Counsel for the 1st Respondent, and added in respect of Issue one, that the documents (witness depositions of DW1 and DW2) were there to speak for

themselves (despite the oral testimony of the DW1 and DW2). He relied on the case of Bunge Vs. Govt. of Rivers State (2006) ALL FWLR (Pt. 325), to the effect that oral or parol evidence will not be admissible to contradict or alter the contents of a written document.

On Issue 2, on rejection of evidence of traditional history, Counsel said the contention of Appellant was misconceived; that assuming, but not conceding that the same was proved, the proof of the native arbitration formed estoppel against the Appellant, whether or not he owned all other portions of the land in the area and was in possession of the land in dispute.

Counsel said that once an arbitration is proved against a party, all other ways of proving title will not avail him, as long as he submitted to the arbitration, stated his case and award was made, and he accepted the same. He relied on the case of Nruamah Vs. Ebuzoeme (2013) ALL FWLR (pt. 681) 1426 at 1445 – 1446.

On Issue 3, Counsel added that rejection of a document (Exhibit C) does not necessarily mean that the fact(s) sought to be proved by the rejected document cannot be established through other means; he said

that arbitration can be established by oral evidence; he said that 1st Respondent had pleaded and proved oath taking, which Appellant failed to challenge. He relied on MILAD Lagos State Vs. Adeyiga (2012) ALL FWLR (pt. 616) 396 and Nwaokarobia Vs. Uzoho (2007) ALL FWLR (Pt.376) 729, on acceptability of oath taking in native arbitration, and its binding effect on the parties.

The 2nd Respondent’s Counsel also argued, what he called CROSS Appellant’s Brief, wherein he queried “the jurisdiction of the trial Court to hear and determine the case, when the same had connection and/or was rooted in oil prospecting exploration and mining, distilled from the sole ground of Respondent’s Notice”.

RESOLUTION OF THE ISSUES:
I think the learned Counsel for the 2nd Respondent misfired and/or was confusing a Respondent’s Notice with a Cross Appeal. The 2nd Respondent did not file any cross appeal in this case. Rather, he had obtained the leave of this Court, on 23/4/2018, to transmit an Additional Record of Appeal, wherein he transmitted what he called:
“NOTICE BY 2ND RESPONDENT OF INTENTION TO CONTEND THAT

JUDGMENTS SHOULD BE AFFIRMED ON GROUND OTHER THAN THOSE RELIED ON BY THE COURT BELOW – ORDER 9R2” (filed on 7/2/2017).

By purporting to raise and argue a Cross Appeal, as per the heading of the 2nd Respondent’s brief, it means the Respondent’s Notice raised, had been abandoned. Even if it could be assumed that the 2nd Respondent’s Counsel made a mistake, by referring to Cross-Appeal, when in fact, he wanted to argued Respondent’s Notice (and he was not in Court to explain), Appellant’s Counsel, in his Reply Brief, had called our attention to the fact that the 2nd Respondent had, at the trial challenged the jurisdiction of the lower Court to entertain the case, on grounds of lack of jurisdiction founded on the same ground(s) raised in the Respondent’s Notice. Appellant’s Counsel said that the trial Court had resolved the said challenge on page 246 of Records of Appeal, against 2nd Respondent, as follows;
“The suit before me is purely a claim over ownership of land, which is in dispute between the claimant and the 1st Defendant. The joinder of the 2nd defendant is a later development, which

arose, in essence, from their entry into the land at the instance of the 1st Respondent. I agree with the claimant’s Counsel, that the cases referred by the 2nd defendant’s counsel, to support his preliminary objection do not share the same nature and character with the instant case.”

A Respondent’s Notice is not meant to be in lieu of or substitute to an appeal or cross appeal.

I think the three issues distilled for the determination of this Appeal by the Appellant (which were adopted by the Respondents, with modifications) are apt for the consideration of this Appeal, but I shall take them together, as they all tend to question the way

the trial Court appraised the evidence led in the case, and/or failed to give effect to the evidence/admissions, which Appellant claimed entitled him to judgment.

On the issue of reliance on witness depositions (statements on oath) said to have been sworn to or signed at Counsel’s office, the DW1 and DW2 had actually under cross examination, strangely, confessed that they did not sign the processes before the Commissioner for Oath, as required by law. DW1 said on page 155 of the Records:
“The deposition I made was signed by me I signed the deposition in my lawyer’s office”.
DW2 also said:
“I thumb printed my deposition. I thumb printed the said deposition in my lawyers’ office”. (See page 157 of the Records of Appeal).
I think those confessions were fatal. They put a lie to the witness depositions, which had claimed to have been sworn to, before the appropriate authority (the Commissioner for Oaths). It means, the documents had been signed/endorsed by the witnesses before their Counsel in the lawyer’s office, before they were taken to the Registrar of the Court (Commissioner for Oath)

for stamping and formalities by the Registrar. That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray. Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously.
By Section 112 of the Evidence Act, 2011:
“An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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requirements of Section 112 of Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on Oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari Vs INEC (2008) 12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was a violation of Section 19 of the Notary Public Act and 83 of the Evidence Act (now Section 112)…”
The provisions of Sections 107 – 120 of the Evidence Act 2011, provide the process of verifying affidavit, which, amongst other things, requires the deponent to sign the process in the presence of the person administering the oath.

the principle of presumption of regularity, under Section 168 (1) (2) of the Evidence Act, 2011, should be invoked to cure the alleged defect. Of course, such presumption of regularity cannot, in my opinion, apply to this case in the face of the obvious/honest confessions of the DW1 and DW2, that they did not sign their statements on Oath before the Commissioner for Oaths, but did so in the office(s) of their lawyers!
The effect of the above is that the said witnesses depositions of DW1 and DW2 were a nullity, and in-capable of being used in/as evidence for the Respondents at the trial Court. The trial Court was therefore wrong, in my view, to have proceeded to use the incurably defective written statements on oath by DW1 and DW2 and ascribed probative value to them in the judgment.
Did the Appellant prove his case at the trial?
With the above findings, I think the entire evidence of the Respondents in this case collapsed, vis a vis, the case of the Appellant at the Lower Court, relating to their evidence of possession and acts of ownership of the land in dispute, their traditional evidence and the fact that the connected and adjacent lands to

the one in dispute, were also in the possession of the kinsmen and family members of the Appellant.

The trial Court appears to have made clear findings in support of the claims of the Appellant on page 249 of the Records, where it held:
“The Claimant did not do anything to impugn the veracity or integrity of the arbitration process. He merely claimed that the arbitration was in his favour without proving same. He placed much reliance on the fact that the land in dispute had been in possession of his family before 1st Defendant was born and that 1st Defendant did not prove the pledge of the land in dispute in this case. It is true that any person who alleges pledge in a land Suit has the onus to prove such pledge, as decided in: ARON OKORO MBUBU VS ANUGWAEGE (supra). However, that issue would have come into focus, if previous native arbitration was not proved to my satisfaction I would have considered the evidence of long possession and possession of contiguous land in favour of claimant, if I was not satisfied with the evidence of arbitration before me.”
That means, the trial Court had found as a fact that:
(1) The land in

dispute had been in the possession of the Claimant’s family even before the 1st Respondent was born.
(2) The 1st Defendant, who had conceded possession of the land to the claimant’s family, but alleged that the land was on pledge, did not prove the pledge.
(3) There was evidence of long possession of the land in dispute in favour of the claimant.
(4) The claimant’s family members and kinsmen were also in possession of contiguous lands to the land in dispute.

Notwithstanding the above sound findings, surprisingly, the trial Court somersaulted, terribly, when he went for the alleged evidence of native arbitration over the land in dispute, which it held was in favour of the 1st Respondent, who allegedly took oath to claim the land, as administered by the native arbitrators. Strangely, the trial Court held on to this view of the native arbitration award being estoppels in the case, to defeat the claim of the Appellant, even after it (the Court) had rejected the document carrying the arbitral award, for being worthless and of no probative value!. It held:
“I have to make my observation in respect of Exhibit

‘C’ which is the alleged written decision of the Eze’s Cabinet after the taking and survival of Oath by 1st Defendant’s relation. Though this document was pleaded in paragraph 27 of the Amended Statement of Defence and is relevant to this proceeding, it ought to be tendered by one of the makers in the absence of which an explanation had to be given on the absence of such maker to enable the other party cross examine properly on same. DW1 who tendered this document did not even state that the parties were given copies of same. I agree with learned claimant’s Counsel that Exhibit C has no probative value following the decision in INIAMA VS AKPABIO & ORS (supra)… My above finding does not however detract from the fact the Defendants had a (sic) offered a better proof of the result of the arbitration by oral evidence than the claimant.” (pages 248 – 249 of the Records of Appeal).

That appears curious and absurd, especially as those reasons should have made the judge not to admit the document, in the first place. To fall back to oral evidence of facts, said to have been reduced into writing and the alleged

writing, produced and rejected, for not having probative value, is scandalous! If a written copy of a transaction or event is rejected, for being wanting and of no probative value, how can the oral account of the same transaction/event become valid and reliable, to make the Court discard the sound findings it earlier made in the case?

That appears indefensible, amounting to perverse reasoning, in my humble view, especially as the same Court had held that the 1st Respondent did not prove his claim of pledge of the land, which was the anchor of his defence, the alleged native arbitration award.

The law is trite, that a written document/evidence is the best evidence of a transaction, and is preferred to oral evidence on the matter; and that oral evidence cannot be applied to substituted, contradict, vary, discount and/or replace what has been reduced into writing.
See Uma Vs Oke (2020) LPELR – 50131 CA:
“By our law, an oral evidence cannot be used to defeat, supplant, discount, deny, vary or disown a written transaction or a document or contract. See Champion Breweries Plc v. Specialty Link Limited (2014) LPELR – 23621 CA.”

In the Supreme Court case of Lewis Vs Uba (2016) LPELR – 40661 (SC), my Lord, Okoro JSC, said:
“The general rule is that, where parties have embodied the terms of their agreement or contract in a written document, as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradiction the terms of the written instrument. See Mrs O.D. Layade Vs Panalpina World Transport NY Ltd (1996) NWLR (Pt.544; Union Bank of Nigeria Ltd Vs Ozigi (1994) 3 NWLR (Pt.333) 385.”
The above would tend to suggest that, if a documentary evidence, produced to prove a fact in issue, fails and is rejected, for being of no probative value, then the oral version of the same evidence cannot be credible or more credible, to prove its allegation!

It appears the learned trial Court misconstrued or misconceived the purport of bindingness of arbitration decision, where it is established to have been reached in a case involving the same parties in a previous litigation, over the same issue(s) canvassed in the subsequent case, and where such arbitration was resolved by oath taking. In the case Mbajiuka & Ors v. Anyanwu (2018) LPELR

– 44472 (CA), we re-stated the law relating to application of arbitration decision, which ends in oath taking, as follows:
“I tend to agree with the Appellants about the dangers of resort to oath taking in customary arbitration (before shrines/juju) as means of determining ownership of land; that it can infringe on the constitutional rights of a party, who does not believe in such practices or who abhors such fetishes. It should also be seen that the practice of oath taking, as means of acquiring land/property is rooted in voodooism/magic or speculation, devoid of any rational/logical or legal effort to resolving a problem. It is, in my view, a lazyman’s way of addressing or tacking a problem, and appears to be ingrained in mischief/malice, as it seeks assistances of diabolics or unseen spirits/powers to kill or harm/vindicate one who takes the oath. Of course, those who know how to manipulate such spirits/powers always loam large and win, unfairly! Though oath taking is accepted as part of customary resolution of disputes, I do not think it applies in every situation and should be enforced without discrimination…

I think the traditional practice of oath taking, as means of acquiring land/property, would not pass the repugnancy test, this time. Section 16 (1) of Imo State Customary Courts’ Law, 1984, requires the Court (Customary Court) to administer law prevailing in the area of jurisdiction of the Court, and/or binding on the parties, “so far as it is not repugnant to natural justice, equity and good conscience, or incompatible either directly or indirectly or by necessary implication with any written law for the time being in force in the state.” The Courts have always interpreted this provision to protect vested rights. See Ojiogu Vs Ojiogu (2010) LPELR – 2377 (SC); (2010) 9 NWLR (Pt.1198)1; Oyeniyi & Ors Vs Bukoye & Ors (2013) LPELR – 22087 CA. Igbozuruike & Anor Vs Onuador (2015) LPELR 25530 (CA),and Section 18(3) of the Evidence Act, 2011 on the need to subject customs and practices to the repugnancy tests.”
My Lord Agim JCA, in the case of Atuona & Anor Vs Ozobia & Ors (2015) LPELR – 25759 (CA), criticized this practice, of reliance on oath, thus:
“Oath taking, like customary arbitration, is one of the

customary and traditional methods of dispute resolution in our rural communities. It is not a trial process where parties and their witnesses are heard testifying and are examined and cross-examined. It is subjective and metaphysical way of ascertaining which party’s claim is true. The party swearing make a short statement of his claim that he asserts as true and swears before a juju, shrine or oracle. The verdict is never delivered. There is no process of judgment delivery. The result of the oath taking is determined by certain agreed expected occurrences after a given period of time. How the verdict is to be determined depends on the applicable rules of customary law on oath taking of a particular place. The existence of such custom is a matter of evidence to be proved by the party who asserts and relies on it. Generally, the verdict cannot be verified by any rational process. It is simply a matter of belief and acceptance of the occurrence of certain events as the verdict. By its nature and the inherent lack of rationality and certainty of outcome, its outcome remains shrouded in doubt and vulnerable to disputation. Because of this inherent character

of unreliability, the oath taking method of customary adjudication is not popular in many of our communities today.”

I think the need to review the resort to oath taking as means of dispute resolution, particularly for acquisition title to/ownership of land, becomes imperative, as the five known (as acceptable) ways of establishing root of title, do not include or contemplate of this strange mode (oath taking), for of acquiring or proving title to land. There has to be some empirical means or way of coming to that conclusion, that one has proved his claim. See the leading case of Idundun Vs Okumagba (1976) LPELR – 1431 SC, which states the five known ways of proving title to land:
(1) By traditional history/evidence:
(2) By production of title documents to the land;
(3) By acts of ownership numerous and positive, extending over sufficient length of time to warrant the inference that the person is the true owner.
(4) By acts of long possession;
(5) By proof of possession of adjacent lands in circumstances which render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land.”

See also Orlu Vs Gogo -Abite (2010) 8 NWLR (Pt.1196) 307; Atanda Vs Ajani &Ors (1989) NWLR (Pt.111) 511; Ayorinde & Ors Vs Sogunro & Ors (2012) LPELR – 7808 SC; Nwabuoku & Ors Vs Onwordi & Ors (2006) LPELR – 2082 SC; Ezerioha Vs Mgbeajulu & Ors(2018) LPELR 43811 CA.

In a declaratory Relief, the burden is always on the Plaintiff to prove his claim. I think Appellant had discharged that burden.

The Respondent had alleged that the land was on pledge to the Appellant. It was the Respondents’ duty to prove the pledge, especially as it was established that the Appellant was in possession even before the 1st Respondent was born, and that the adjacent lands belonged to the members of Appellants family. See Chibuike & Anor Vs Okonkwo & Ors (2015) LPELR 40683 (CA); Okoye & Ors Vs Nwankwo (2014) LPELR – 23172 (SC); Ogolo & Ors Vs Ogolo & Ors (2003) LPELR – 2309 (SC).

In this case at hand, there were conflicting claims of who, between Appellant of 1st Respondent, was, in fact, favoured by the Native arbitration. Appellant had stated that he got the judgment in his

favour, while the 1st Respondent also claimed he was favoured, by means of oath taking. There was therefore no valid proof of the correct decision of the Native Arbitration, especially as the Exhibit C (alleged written document of the Arbitration Report), as shown on page 208 of the Records, was rejected, for being wrongly admitted, and of no probative value.

In my view, the trial Court was wrong to indulge the 1st Respondent’s reliance on the alleged claim of oath taking and survival of same as the basis of its decision, and ignoring the basis of his (1st Respondent) claim, which was pledge of the land by his forebears to the Appellant’s family, and which was not proved, or had been abandoned. (See page 249 of the Records of Appeal).

I had earlier held that the statement on oaths adopted by DW1(1st Respondent) was a nullity. Thus even the story of oath taking had no credible evidential foundation. Under cross examination, on page 156 of the Records of Appeal, the 1st Respondent had said:
“I was not present when Agbajechi borrowed money from Nnawuihe. I heard the story from my father. The transaction was not recorded in

writing. My father did not tell me the year of the incident. My father did not tell me the people who witnessed the incident. The transaction was later converted into a pledge. The story was told to me by my father… While my father was alive, I saw the Claimant’s father and family farming on the land at the time of my birth. My father told me then that the land they were farming is his land. I am about 50 years old. I cannot say if the claimant’s ancestors have farmed on the land for up to 100 years.”

The above evidence, completely, defeated any claim of pledge, as 1st Respondent was not forth coming with any evidence of the alleged pledge of the land, the time/year of pledge, amount, circumstances or witnesses. See the case of Udemba Vs Nwabueze (2016) LPELR – 41314 CA, on the proof of pledge of land in customary transaction and what a person alleging pledge must prove, namely:
“… the onus is upon the plaintiff to establish the allegation of pledge and in order to discharge the burden, he ought to prove the following:
1) That the pledge took place in the presence of witnesses;
2) That there were parties of

the pledge;
3) The pledge sum;
4) That the pledgee was put in possession to the land so pledge; and
5) The mode of redemption of the pledge property, as well as
6) That the transaction was given adequate publicity.” Per Agube, JCA
See also Onyemaechi Vs Nwaohamuo (1992) 9 NWLR (Pt.265) 372; Obi Vs Nwagwu (2017) LPELR – 43281 (CA), where it was held:
“… to prove pledge transaction, the plaintiff (who asserts a pledge) must establish:
1) Proof of title to the land;
2) Existence of pledge of the land to the defendant;
3) Witness(es) of the pledge transaction
4) Circumstances and the consideration for the pledge.
See Asologwu Vs Nneji (2002) FWLR (Pt.107)1188.”

On the whole, I think, there is merit in this Appeal and I resolve all the issues for the Appellant and allow the Appeal. I set aside the decision of the lower Court, delivered on 31/3/2015, and in its place, enter judgment for the Appellant (as plaintiff in the said Suit No. HOG/22/1990), the plaintiff’s family having established the claim of being in possession of the land, even before 1st Respondent was born,

exercising rights of ownership, thereon, and his family members being in possession of the connected or adjacent lands around the land in dispute – as also found by the trial Court.

Appellant’s reliefs(1) and (3) are hereby granted and for relief (2), the Respondents shall pay N1,000,000.00 (One Million Naira) only, as damages to the Appellant (as plaintiff), for trespass.

The Respondents shall also pay the cost of this Appeal, assessed at N100,000.00 (One Hundred Thousand Naira) only to Appellant.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have been privileged to have read in draft the Judgment just delivered by my Learned Brother ITA GEORGE MBABA, JCA, and I agree with his reasoning and conclusion that this Appeal is meritorious. Same is allowed by me. I abide by the consequential orders contained in the lead judgment.

Appearances:

A. NJOKU, ESQ. For Appellant(s)

A. OKOLIE. ESQ. – for 1st Respondent
C. C. ONYEKANNE, ESQ. – for 2nd Respondent For Respondent(s)