NWUJU NWAOBIA & ORS. v. UCHE ONWUKA & ORS.
(2011)LCN/4270(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of February, 2011
CA/PH/93/08
RATIO
INTERFERENCE WITH THE FINDINGS OF FACT : THE DUTY OF THE APPELLANT TO DISPLACE THE REBUTTABLE PRESUMPTION THAT THE FINDINGS OF FACT BY A TRIAL JUDGE ARE RIGHT; WHEN THE APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACT MADE BY A TRIAL JUDGE
Let me first say that there is a rebutted presumption that findings of fact by a trial judge are right. The duty to displace such presumption is on the party challenging them. See ISAH ONU & ORS. v. IBRAHIM IDU & ORS. (2006) 6 SCNJ 23. Thus, where a trial court unequivocally evaluates the evidence and appraises the facts, it is not the business of an appellate court to substitute its own views for that of the trial court who saw the witnesses. See CHIEF AWOYOOLA & ANOR. v. SUFIANO ARO & ANOR. (2006) 2 SCNJ 44. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
INTERFERENCE WITH THE FINDINGS OF FACT : WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF A TRIAL JUDGE WHERE IT RELATES TO THE DEMEANOUR OF WITNESSES AND ASCRIBING WEIGHT TO THEIR EVIDENCE
Let me say right off that apart from the fact that there is a presumption of correctness of the trial judge’s findings, where the findings of fact relates to the demeanour of witnesses and ascribing weight to their evidence, it is within the exclusive preserve of the trial court and the appellate court cannot interfere. See SAMSON OWIE v. SOLOMON E. IGHIWI (2005) 1 SCNJ 181. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DUTY OF THE COURT TO REFRAIN FROM SPECULATING IN ARRIVING AT DECISIONS
The courts are enjoined to refrain from speculating in arriving at decisions. See MODUPE v. THE STATE (1998) 4 NWLR Pt.87 at 137; OLADIMEJI v. THE QUEEN (1964) 1 NLR 135. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JOINT OWNERS OF THE LAND IN DISPUTE: ON WHOM LIES THE ONUS OF PROOF WHERE THERE IS A CLAIM FOR JOINT OWNERSHIP OF THE LAND IN DISPUTE
The state of the law and the onus of proof is quite clear in this regard. Where there is a claim for joint ownership by the Plaintiff and the Plaintiff admits that the Defendants were in possession, the onus was on the Plaintiff to prove that both parties held title in common. The claim of the Respondents at the trial court was a tacit admission that the Appellants were in possession, thus the onus of proof of joint ownership was on the Respondents and could not be shifted on the Appellants by the lower court. See CHRISTIAN EWO v. OGBODO ANI (2004) SCNJ 272; (2004) 3 NWLR Pt. 861 Pg. 610 at Pg. 635-636. The Supreme Court held as follows: “Where a group of persons claims to own a piece of land communally with another group of persons which is in possession of the land, the former has the burden to prove that the land in dispute is held by both parties in common. In the instant case, the Respondents admitted that the land in dispute was in the possession of the Appellants but claimed to own same communally with the Appellants. In the circumstances, the Respondents had the onus to prove their claim of communal ownership of the land in dispute.” On the other hand, if the Defendants now Appellants claimed to be joint owners of the land in dispute the effect would be to shift the onus to the Appellants to prove the joint ownership as they have thereby admitted Respondents’ ownership. At no time did the Defendants now Appellants tacitly admit joint ownership. See SHITTU ONIGBEDE v. SAMUEL BALOGUN (2002) 2 SCNJ 219 at Pg.232. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DECISION OF THE CUSTOMARY COURT: WHETHER THE DECISION OF THE CUSTOMARY COURT ON THE APPROPRIATE CUSTOMARY LAW SHOULD NOT BE REVERSED IN THE ABSENCE OF REBUTTAL EVIDENCE
In OGUIGO v. OGUIGO (1999) 12 SCNJ 191 at Pg. 208-210, the Supreme Court held that in the absence of rebuttal evidence, the Customary Court of Appeal, that court should not reverse the decision of the Customary Court on the appropriate customary law. This is because the Customary Court is presumed to know what the law is and to state it even without requiring that any evidence should be led before it to that effect. The Supreme Court took the view that only the members of the trial Customary Court could state the appropriate law from their personal knowledge being indigenes of the area learned in the local law and norms. Neither the Customary Court of Appeal nor any other higher court can claim that knowledge. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. NWUJU NWAOBIA
2. CHINYERE CHINKWE
3. CHRISTOPHER NWAOBIA
4. DONATUS ANYAMELE
5. NWAIWU NWANKWO
(For themselves and as representing Umuodum family) Appellant(s)
AND
1. UCHE ONWUKA
2. EMMANUEL ORJI
3. MICHAEL ONWUKA
4. CHUKWUEMEKA OHAKWE
(For themselves and as representing the entire Umuodum family) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State Customary Court of Appeal sitting at Umuahia dated 14/6/07.
The facts that led to this appeal are as follows:
The Respondents in this appeal laid the following claims against the Appellants herein at the customary court Osisioma sitting at Okpuala-Aru.
“1. A declaration of this Honourable court –
(a) That the Plaintiffs and Defendants are jointly entitled to the Customary Right of Occupancy of the (1) Ohia Uzo Umunwacha (2) Ohia Uzo Umuechere (3) Ohia Okpulo Uhu-Alaobi and (4) Ohia Otulaogba Egbelu being and lying at Umumba within jurisdiction.
(b) That the Defendants cannot sell, mortgage, pledge or apportion any farming plot in the said pieces of land to any person without the consent of the Plaintiffs.
(c) That any sale, mortgage, pledge or alienation of any of the said pieces of land without the consent of the Plaintiffs is null, void and of no effect whatever.
(d) That the Plaintiff are entitled to allocation of farm plot in the said pieces of land for seasonal farming.
2. N10,000.00 general damages against the Defendants for denying the Plaintiff the right to farm on the said pieces of land.
3. Perpetual/Mandatory Injunction restraining the Defendants by themselves, agents, workmen or privies from allocating any farm portion to themselves or to any body at all, or from selling, harvesting palm, fruits, mortgaging, pledging or alienating or any howsoever injuriously dealing with the said pieces of land without the consent of the Plaintiffs.
The said Customary Court on 6th October, 2005 delivered its judgment and dismissed the Respondents’ suit. The Respondents were dissatisfied with the said judgment and appealed against same to the Abia State Customary Court of Appeal sitting at Umuahia. The Customary Court of Appeal delivered judgment on 14/6/07 granting claims 1(a) -(d) and awarding the cost of N2,000.00 and overturned the judgment of the Customary Court. Hence this appeal.
The parties filed and exchanged briefs. The Appellants, brief was dated 18/3/08 and filed on 25/4/08. The Appellants also relied on a reply brief dated 6/8/08 and filed on 11/8/08. The Respondents’ brief dated 16/5/08 was filed same day. At the hearing of the appeal, the Respondents’ counsel moved the ground of the Notice of Preliminary Objection filed with the Respondents’ brief and argued therein. The objections are in the following terms. I will determine them first.
(i) Whether the Grounds of Appeal of the Defendants/Appellants as formulated raise issues of Customary
as required by law.
(ii) Whether the appeal itself is competent in view of the law, which requires that the Appellants’ brief of argument shall be filed within 45 days of the receipt of the Records of Appeal.
On the first head of objection, the Respondents argued that the Grounds 1-4 of the Notice and Grounds of Appeal are incompetent and likewise the issues 1-3 adumbrated by Appellants’ counsel. The main thrust of the Respondents argument is that even though the Appellants argued that the learned Judges of the Customary Court of Appeal erred in law by giving judgment to the Respondents they did not show precisely on which customary law the Judges purportedly misdirected themselves. He argued that none of the grounds of appeal raised the issue of customary law.
Learned Respondents’ counsel also argued that it is the law that grounds of appeal other than one raising question of customary law are not competent in appeal from Customary Court of Appeal to the Court of Appeal. He cited the case of DANG PAM v. SALE DANG GWOM (2000) 1 SCNJ 36. He argued that this is in line with 5.245(1) of the 1999 Constitution.
On the second head of objection, counsel submitted that the filing of the Appellants brief offends Or 17 r 2 of the 2007 Court of Appeal Rules which is a mandatory provision. He argued that the Appellants’ brief filed outside the 45 days provided by the rules is incompetent. The Appellants received the records on 10/3/08 but filed the brief on 25/4/08. He submitted that a breach of the mandatory requirement renders the act null and void and the appeal should be dismissed on that ground. He cited ODUA INVESTMENT v. TALABI (1997) 7 SCNJ 600, 652; FAWOLE AJAYI & ANOR. v. OMOREGBE (19923) 7 SCNJ Pt. 1 Pg.168 at 169.
In answer, learned Appellants counsel submitted that proof of a case is a matter of fact and law and since the Area Court (customary court) administered customary law, the questions raised in the appeal relates to that customary law. It was further posited that since the complaint is that the lower court had a misconception of the evidence which has led to the misapplication of the relevant customary law, then it is an issue of customary law which is in contention. He cited GOLOK v. DIYALPWAN (1990) 3 NWLR Pt. 139 Pg.411 at Pg.419; ABASI v. EKWEALOW (1993) 7 SCNJ 193 at 209.
Let me deal with the first head of objection by stating the obvious. In the instant case, the subject matter of the dispute is in respect of Pieces of land in the area of Umuodurn, Umumba Village in Osisioma Ngwa Local Government Area which is agricultural land. By law the pieces of land are subject to the customary law of the area. In ODUFUYE v. FATOKE (1977) 2 IMSLR 424, the Supreme Court emphasized the point when it stated that a customary court is specifically authorized and bound by law to administer customary law in land matters.
In the circumstances, I agree with the submission of Appellants’ counsel that the complaint of the Respondents that the Appellants failed to mention the customary law for which the court below misdirected/misconceived the facts is misconceived since by law, the customary courts are enjoined to administer the customary law prevailing in the area of its jurisdiction in respect of land situate within that area. In fact, in ABASI v. EKWEALOW supra, the Supreme Court held that misdirection occurs when a judge misconceives the issues or summaries the evidence inadequately or incorrectly or makes a mistake in applying the applicable law to the facts of the case. These are all grounds of error which are appealable.
The Appellants’ answer to the 2nd head of objection is that by their own record, the record of appeal was served on the Appellants between 11/3/08 and 12/3/08 and the Appellants filed their brief on 25/4/08 within the 45 days period provided by law. My own reaction to this head of objection is simple. The question of when the Appellants were served with the record is a matter of fact. It can only be brought properly to our attention by an affidavit in support of the motion of objection. This was not done in this case and there is nothing on the face of the record to show us when precisely the records became available or when it was served on either party. That head of objection is therefore completely baseless.
In the circumstances, the two heads of objection are completely misconceived and are hereby struck out.
The Appellants’ counsel Chief T. G. Nwanosike in the brief settled by him identified 3 issues for determination which were also adopted by the Respondents. I will also utilize same in the determination of this appeal.
(i) Whether the Abia State Customary Court of Appeal was right to set aside the holding of the trial Customary, Court that the story of conquest by the Respondents as the basis of their claim to joint ownership of the lands in dispute was not true.
(ii) Whether the Abia State Customary Court of Appeal was right in holding that the burden of disproving joint ownership of land was on the Appellants.
(iii) Whether the Abia State Customary Court of Appeal was right to hold as perverse the finding of the trial Customary Court that the Respondents are customary tenants of the Appellants”
ISSUE ONE
On issue 1, learned Appellants’ counsel argued that it was wrong for the lower court to upturn the judgment of the Customary Court of Appeal based on a misconception of the evidence. He argued that the Appellants expressly rebutted the story of joint acquisition of the land by both parties through joint conquest of same. He argued that contrary to the finding of the Customary Court of Appeal, the Appellants cross-examined PW1 on the issue of joint conquest while DW1 at page 130 of the records vehemently denied the story of joint conquest of the land in dispute. He submitted that it is wrong for an appellate court to substitute its own views for the findings of the trial court. He submitted that in relation to land matters, facts found by a native court should not be reversed unless clearly wrong. He cited OPARE v. SAMPSON 3 WACA 169; ABAKAH NTHAN v. ANGUAN BENNIEH 2 (WACA) 1 at Pg. 3 and EFI v. ENYINFUL 14 (WACA) 424.
Appellants’ counsel argued that by Or 10 r 6(3) of the Customary Court Rules 1989 applicable in Abia State, the Customary Court is presumed to know the customary law applicable in Osisioma Ngwa Local Government Area of Abia State and to have applied same as against Igbo general custom. He cited EGIRI v. UPERI (1973) 1 ALL NLR Pt.11 Pg. 198 at 205 and OGUIGO v. OGUIGO (1999) 12 SCNJ 191 at 208 and 210.
On this same issue, the Appellants’ counsel argued that the lower court attempted to shift the onus of proof on the Appellants by stating that the Appellants never gave any reason for their denial of the conquest story. Counsel argued that the burden of proof in land matters rests on the Plaintiffs now Respondents and they cannot rely on the weakness of the Defendants’ now Appellants’ case. He cited ADELEKE v. IYANDA (2001) 6 SCNJ 101 at 120.
Sir G. C. Eziafula who settled the Respondents’ brief argued that the Appellants failed to adduce evidence of how the Respondents’ came to own the said lands in dispute in common with them. He submitted that the evidence of common conquest and common ownership of the lands in dispute given by PWI was never successfully disputed by the Appellants.
He argued that the Respondents proved at the lower court on a balance of probabilities the story of how the two families came together. Counsel argued that the history as stated by the Respondents as to how the two parties came to jointly own the lands in dispute is more cogent and probable than that of the Appellants who appear not to know how the two parties came to jointly own and exercise proprietary rights on the lands and farms in dispute.
This issue calls on us to re-evaluate and make findings of facts. The trial Customary Court made certain findings on the evidence while the Appellate Customary Court of Appeal overturned these findings. Let me first say that there is a rebutted presumption that findings of fact by a trial judge are right. The duty to displace such presumption is on the party challenging them. See ISAH ONU & ORS. v. IBRAHIM IDU & ORS. (2006) 6 SCNJ 23. Thus, where a trial court unequivocally evaluates the evidence and appraises the facts, it is not the business of an appellate court to substitute its own views for that of the trial court who saw the witnesses. See CHIEF AWOYOOLA & ANOR. v. SUFIANO ARO & ANOR. (2006) 2 SCNJ 44. We have the duty to determine whose evaluation and findings of fact were correct between the final Customary Court and the Customary Court of Appeal.
As a third tier of court considering the appeal for a second time, we are only obliged to consider the findings made by the lower Customary Court of Appeal which are being challenged before us. However, we have to consider the findings being challenged here as against the findings they overturned. See AKINLAGUN v. OSHOBOJA (2006) 5 SCNJ 261.
Let me say right off that apart from the fact that there is a presumption of correctness of the trial judge’s findings, where the findings of fact relates to the demeanour of witnesses and ascribing weight to their evidence, it is within the exclusive preserve of the trial court and the appellate court cannot interfere. See SAMSON OWIE v. SOLOMON E. IGHIWI (2005) 1 SCNJ 181. Let us examine the evaluation by the trial court vis a vis the evaluation by the lower court.
I have read the proceedings including the judgment of the trial Customary Court and the court made sweeping findings of fact as contained on pages 186-190 of the Record. The Customary Court after evaluating the evidence of both sides to determine whether or not the Appellants were kinsmen to the Respondents, in order to determine whether they were jointly entitled to ancestral lands, found at line 29 of page 187 as follows:
“In Ngwa custom and tradition as applicable in Osisioma Ngwa no member of a kindred marries each other, same is extended to village which is a composite of the kindred. Similarly, under the custom members of a kindred as well as a village have common culture, common burial rites as kinsmen. By this position, given the evidence the Plaintiffs are no kinsmen to the Defendants.”
On the proof of history of the lineage of the family to the land in dispute, the Customary Court found at page 188 of the records as follows:
“The Plaintiffs in their evidence did not trace their root to Adimaru whom they claim to be their ancestor and who allegedly co-founded the lands in dispute which entitles them joint ownership. The PW1’s account dwelt on how the war was fought and conquered by Odum and Adimaru against Chiomuo of Etche.”
On the issue of allocation of homestead to the Respondents by the ancestors of the Appellants, the trial court stated as follows at page 189 of the record –
“The Ngwa custom and tradition as applicable in Osisioma Ngwa views such acts as a duty on the overlord to settle his customary tenants on his lands. The court in its thorough consideration of evidence of both parties and their witnesses believed the version of evidence given by the Defendants and witness as being more probable and more reliable.”
The court then made these precise findings of facts on the factual issues in controversy between the parties on page 189 of the record from line 25 –
“However, the court makes the following findings of fact:
1. There was no war engaged by Adimaru and Odum against Ohiomuo of Etche.
2. The lands in dispute were deforested by Odum the ancestor of the Defendants.
3. The Plaintiffs are Arochukwu indigenes resident in Umuodum kindred as customary tenants.
4. The Defendants are natives of Umuodum kindred in Umumbe village hence overlords.
5. Umuodum’ family meeting established oil palm project and members are stakeholders in the venture.
In the light of the above findings, claims L and its sub-claims of a, b, c, d, 2 and 3 of the Plaintiffs fail and hereby dismissed for want of proof.”
The lower court overturned these findings and gave these reasons contained in their judgment on page 72 of the record –
“The evidence led by the Appellants is that they do things; own lands in common with the Respondents, this pieces of evidence was corroborated by the DW1 – Donatus Anyamele, See Record page 58 lines 23-26. The story of war with an Etche man was not expressly rebutted by the Respondents, which was most probably what brought them together and they started owning the lands in common.”
I am almost inclined to believe the speculation of the learned Appellants’ counsel that the Hon. Judges of the Customary Court of Appeal did not read the proceedings at the Customary Court. There has been massive misrepresentation of the evidence led at the trial court. The nature of this appeal calls for us to re-evaluate the evidence at the trial court and to see if the findings as based on the evidence led or are perverse as held by the lower court.
I agree with the above finding of the Customary Court and the record shows that PW1 told the story of the conquest twice and it became more fanciful at each telling. However, this witness did not trace a direct bloodline between himself and Adimaru even if we believe the story.
I agree that the reason given by the lower court for upturning the evidence of the trial court is mere speculation. The lower court held at page 76 of the record –
“The Respondents merely denied this without giving any reason. It is then axiomatic that in Igbo custom visa-vis Ngwa custom that a stranger is not allowed to enjoy family land as a co-owner, where this therefore happens that a stranger enjoys and owns lands together with indigenes, then something must have happen. It is this that makes the Appellants’ evidence of the war more probable and acceptable.” (Underlining mine)
The courts are enjoined to refrain from speculating in arriving at decisions. See MODUPE v. THE STATE (1998) 4 NWLR Pt.87 at 137; OLADIMEJI v. THE QUEEN (1964) 1 NLR 135.
The record does not bear out the conclusion reached by the lower court at page 76 of the record that the evidence of the Respondents that the lands were acquired by joint conquest of both common ancestors of the parties and that since then they have both been enjoying the lands together was not effectively rebutted or challenged and therefore ought to have been accepted by the trial court. This issue is resolved in favour of the Appellants.
ISSUE TWO
On this points learned Appellants’ counsel argued that the lower court was wrong in their assumption that the Appellants and the Respondents “have been jointly owing and enjoying lands of Umuodum family”. This is because the Respondents are not members of the Umuodum family and the Appellants said so categorically and emphatically. Counsel argued that the incidents of non-relation e.g the fact that the parties worship different deities and inter-marry shows that they are not related. There was no other evidence of any other custom before the lower court. Counsel argued that the Abia State Customary Court of Appeal in its judgment assumed that the Appellants and the Respondents have been jointly owing and enjoying the land. This was rejected at page 189 of the Record by the trial court when it held that the lands in dispute were deforested by Odum, the ancestor of the Defendants, The Plaintiffs are Arochukwu Indigenes resident in Umuodum kindred as customary tenants”.
Learned Respondents’ counsel argued that it is the duty of the Defence to disprove the case of the Plaintiffs, in this case the joint ownership of the lands in dispute. Moreso, when the Appellants were not able to show how they came to have joint ventures in respect of the land with the Respondents, this showed that the Respondents discharged the onus of proof placed on them. My Lords, it is trite that the onus of proof in a civil case shifts as the evidence preponderates. Let us assume that the Respondents were able to prove and discharge the onus of proof by only the evidence of PW1 (- the only one who gave direct evidence in that regard) that the parties jointly owned by joint conquest the land in dispute. The burden then shifted on the Appellants to rebut the evidence of joint conquest of the land. DWI gave a believable and concise history of how the Appellants came to occupy the land and how the Respondents came to occupy the land. There was in my view, and I agree with the trial court, enough evidence to show that the Respondents were no kindred of the Appellants and that the acts of joint ownership of the land and farm claimed was a misunderstanding of the recent arrangements of cooperative management of land resources in possession of both parties. Ownership is different from possession. It seems to me that the lower court misinterpreted the case of the Appellants by holding the view that the trial court departed from the claim by looking at the issue of who were the indigenes of the area. Since the Respondents claimed joint title they must trace their root of title and this can only successfully be done by tracing how they came in possession of the land.
The Respondents were the Plaintiffs at the trial court. PW1 led elaborate and copious evidence for the Respondents of how the ancestors of both the Respondents and Appellants acquired the various lands in dispute by joint conquest of same. PW1 stated that the land is owned by Odum the ancestors of the Appellants and by Adimaru his own ancestors who fought and conquered the land together. This elaborate story of joint conquest was never restated by any of the other Respondents’ witnesses.
I am of the view and the record shows that the Appellants in proof that the Respondents are not members of the Umuodum family relied on the customary law of the Ngwa people of Osisiorna Local Government Area to show that there is no blood relationship between them and the Respondents. Under Ngwa native law and custom which the trial Customary Court applied, members of the same family do not intermarry and they must have common family deity and common burial rites.
The Respondents agreed in evidence that they inter-marry with the Appellants and that they have their own separate deity from the deity of the Appellants. In the circumstances, the trial Customary Court which under the law is presumed to know the customary prevailing in its area of jurisdiction stated and held that the Respondents are not under the customary law of Ngwa people of Osisioma Local Government Area, members of Umuodurn family of the Appellants.
The Appellants through DW1 also gave the history of how the Respondents came to the land. It is on page 131 of the record –
“The first Aro settler from the stock of the Plaintiffs is called Nkemdirim, Oboo came later, followed by Onwuka who came through her sister married to Nkemdirim. The entire Aro settlers in Umuodum are of different areas in Aro and inter-marry within themselves for instance Nkemdirim is of Ndiokwuo and Onwuka from Ndiumuooh all or Arochukwu.”
DW1 stated from page 129 of the record in unbroken lineage how his ancestors came to own the land by deforestation. The law is that any party relying on the evidence of traditional history to prove their title to land must prove the founder of the land, how he founded the land and particulars of intervening owners. See LAWANI ALLI & ANOR. v. CHIEF G. A. ALESINLOYE & ORS. (2000) 4 SCNJ 264. The Appellants were able to do this during the trial. The evidence of deforestation by Odum the progenitor of the Appellants was not debunked under cross-examination. It is my humble view that after the burden of proof shifted on the Appellants; they were able to discharge same through the evidence given by DW1 & DW2. When the pendulum swung back to the Respondents, they were not able to rebut the Appellants’ story of deforestation. I agree with the learned counsel for the Appellants that the trial Customary Court by virtue of Or 10 r 6(3) of the Customary Court Rules Imo State applicable to Abia State is deemed to know what the customary law of Osisioma Ngwa Local Government Area is. They found the evidence of the custom as led by the Respondents’ witnesses directly on the facts in controversy more probable and reliable. DW1 gave copious evidence to support the Appellants’ case on all the material facts in controversy.
In any event, I am of the view that there was no reason on the record to vary the findings of the trial Customary Court as they were in no way perverse. The first issue is resolved in favour of the Appellants.
On issue 2, Appellants’ counsel argued that the Customary Court of Appeal wrongly assumed the position claimed by the Respondents as true by stating that it was the duty of the Appellants to disprove that the parties had been enjoying joint ownership and exercising joint possessory rights on the lands in dispute. Counsel argued that on one hand, the Appellants were able to trace their ancestors to Odum, while the Respondents were not able to do so
On this issue, learned Respondents’ counsel argued that this court should hold that the onus is on the Appellants to show how the Respondents came to enjoy the lands in dispute with them and how both parties shared common custom. Even, if it is admitted that, the Respondents descended from one Nkemdirim, the Appellants failed to show that the evidence of the Respondents as to .joint ownership of the lands was false.
The state of the law and the onus of proof is quite clear in this regard. Where there is a claim for joint ownership by the Plaintiff and the Plaintiff admits that the Defendants were in possession, the onus was on the Plaintiff to prove that both parties held title in common. The claim of the Respondents at the trial court was a tacit admission that the Appellants were in possession, thus the onus of proof of joint ownership was on the Respondents and could not be shifted on the Appellants by the lower court. See CHRISTIAN EWO v. OGBODO ANI (2004) SCNJ 272; (2004) 3 NWLR Pt. 861 Pg. 610 at Pg. 635-636. The Supreme Court held as follows:
“Where a group of persons claims to own a piece of land communally with another group of persons which is in possession of the land, the former has the burden to prove that the land in dispute is held by both parties in common. In the instant case, the Respondents admitted that the land in dispute was in the possession of the Appellants but claimed to own same communally with the Appellants. In the circumstances, the Respondents had the onus to prove their claim of communal ownership of the land in dispute.”
On the other hand, if the Defendants now Appellants claimed to be joint owners of the land in dispute the effect would be to shift the onus to the Appellants to prove the joint ownership as they have thereby admitted Respondents’ ownership. At no time did the Defendants now Appellants tacitly admit joint ownership. See SHITTU ONIGBEDE v. SAMUEL BALOGUN (2002) 2 SCNJ 219 at Pg.232.
I agree with the Appellants that DW1 explained the incidents of communal co-operation and not ownership of community land. This issue is resolved in favour of the Appellants.
ISSUE THREE
On issue 3, learned Appellants’ counsel argued that one of the reasons given by the Abia State Customary Court of Appeal for setting aside the judgment of the trial Customary Court in this case is that the finding of the trial Customary Court that the Respondents are customary tenants of the Appellants was perverse having not been based on evidence before that court.
Counsel further argued that there is enough evidence on the record to support the conclusion of the trial court that the Respondents were customary tenants of the Appellants. Learned Appellants’ counsel is of the view that if the first Aro man to settle in the Appellants’ family, Umuodum, was Nkemdirim as held by the trial Customary Court and testified to by the Appellants, it is then preposterous for the Abia State Customary Court of Appeal to have held that the Respondents were joint owners of the land in dispute through conquest.
Counsel also submitted that even though the Respondents are not paying rent for enjoying the lands, non-payment of rent or tribute is not a condition precedent for the creation of a customary tenancy. Learned counsel relied on ABIMBOLA v. ABATAN (2001) 4 SCNJ 73 at 83 and ADEDEJI v. OLOSO (2007) 1 SCNJ 397 at 418.
Learned Respondents’ counsel argued in paragraphs 7.01-7.02 of the brief filed by the Respondents that under Ngwa native law and custom a stranger cannot own a separate deity from the overlord, a stranger cannot belong to the same kindred or family meeting neither can a stranger bury their dead in the land of their overlord nor apportion homestead for building purposes. He argued that the cases of ABIMBOLA v. ABATAN supra and ADEDEJI v. OLOSO supra were decided purely on the basis of Yoruba customary law where payment of Tribute or homage may not be essential. Counsel argued that the lower court drew the only correct inference from the evidence on record.
Needless to say, I have to repeat the opinion and to agree with the submission of Appellants’ counsel that nowhere in the record did they admit or state in evidence that they jointly own the lands in dispute with the Respondents. I am inclined to agree with the Appellants’ counsel that the finding of the lower court on page 75 of the record that the Appellants never claimed that the Respondents are customary tenants is not correct. Also let us look into the record closely.
At page 131 lines 4-8 of the record of appeal, the Appellants in their evidence through their DW1, Donatus Anyamele stated as follows:
“The Plaintiff are customary tenants of Umuodum The first Aro settler from the stock of the Plaintiffs is called Nkemdirint, Oboo came later, followed by Onwuka who came through her sister married to Nkemdirim. ”
At page 140 line 10-15 the DW2, Henry Nweke, testified as follows:
“The Plaintiff are of (sic) Aro indigenes (sic) who are tenants of Odum. The Plaintiffs do not relate in any way to any of the four sons of Mba in terms of birth. We also have the other Aro settlement in Umuokorafor kindred. These Aros of Umuokorafor inter-many with the Plaintiffs…”
This piece of evidence of Nkemdirim being the first Aro man to settle with the Appellants’ family was not challenged in cross-examination by the Respondents. I agree with the argument of the Appellants that the Respondents having not denied or challenged the assertion of the Appellants on oath that the first Aro man to settle in their family was Nkemdirim, the trial Customary Court was perfectly right to hold that the Respondents are customary tenants of the Appellant. In OGUIGO v. OGUIGO (1999) 12 SCNJ 191 at Pg. 208-210, the Supreme Court held that in the absence of rebuttal evidence, the Customary Court of Appeal, that court should not reverse the decision of the Customary Court on the appropriate customary law. This is because the Customary Court is presumed to know what the law is and to state it even without requiring that any evidence should be led before it to that effect. The Supreme Court took the view that only the members of the trial Customary Court could state the appropriate law from their personal knowledge being indigenes of the area learned in the local law and norms. Neither the Customary Court of Appeal nor any other higher court can claim that knowledge. In the circumstances, I am of the view that this issue be resolved in favour of the Appellants.
In totality, I find merit in this appeal and it is hereby allowed. I set aside the judgment of the Customary Court of Appeal. I affirm the judgment of the trial Customary Court. I award N30,000.00 costs to the Appellants against the Respondents.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree that the appeal be allowed.
Appearances
C. U. NwanosikeFor Appellant
AND
G. C. EziefulaFor Respondent
