SUNDAY BEKOCHI EKWEGHIARIRI v. DONATUS UNACHUKWU & ORS (2013)

SUNDAY BEKOCHI EKWEGHIARIRI v. DONATUS UNACHUKWU & ORS

(2013)LCN/6735(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of April, 2013

CA/PH/89/2005

RATIO

WHETHER ACTIVE STEPS MUST HAVE BEEN TAKEN IN RELATION TO THE LAND TO ESTABLISH POSSESSION

In order to establish possession, a claimant has to take some active steps in relation to the land, such as enclosing the land or cultivating it. In this case the Appellant farmed on the land and planted trees and harvested crops planted therein. The Appellants stated that his ancestors had also farmed on the land for a period spanning about three decades. The Respondents could not dislodge this evidence and thus could not prove a better title. See, OTUTOLA V. ICC (1078) 4 SC 59,SOLOMON V.MOGAJI (982) 11 SC 1. Per PHILOMENA MBUA EKPE, J.C.A.

WHETHER POSSESSION WHERE PROVED IS TITLE AGAINST THE WHOLE WORLD

WHETHER IN A CLAIM FOR OWNERSHIP OF LAND, THE PLAINTIFF MAY RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE IN PROVING HIS TITLE

WHETHER A COURT HAS THE POWER TO MODIFY OR REFRAME ISSUES FORMULATED FOR DETERMINATION BY THE PARTIES

It is settled law that a court has the power to adopt, modify or reframe issues formulated for determination by the parties. The guiding principle is that issues formulated must lead to a proper determination of the dispute or grievance between the paretic. See, the case of SHA V. KWAM (2000) 8 NWLR (Pt.670) 685, FABIYI V. ADENIYI (2000) 4 NWLR (PT.1055) 551. Per PHILOMENA MBUA EKPE, J.C.A.

WORDS AND PHRASES: CUSTOMARY LAW

Customary Law as defined in Black’s Law Dictionary page 413, 8th Edition is: “Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws.” Per PHILOMENA MBUA EKPE, J.C.A.

Before Their Lordships

UWANI M. ABBA AJIJustice of The Court of Appeal of Nigeria

PHILOMENA M. EKPEJustice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANIJustice of The Court of Appeal of Nigeria

Between

SUNDAY BEKOCHI EKWEGHIARIRIAppellant(s)

AND

1. DONATUS UNACHUKWU
2. EDMOND AWA
3. EDWARD OGUINE
4. NICHOLAS IWUOHARespondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal Imo State sitting at Owerri, which judgment was delivered on the 7th day of October 2004. The lower court had set aside the judgment of the Customary Court, Ehime Mbano, given in favour of the Appellant whereby the Appellant herein had been granted possession and ownership of all that piece/parcel of land situate and lying at Mgboroko Umukabia in Ehime Mbano Local Government Area of Imo State.
Dissatisfied with the judgment of the Customary Court of Appeal, the Appellant herein has appealed to this court. The notice and grounds of appeal are found at pages 266 – 271 of the record of appeal.

The facts of the case simply put, revolve around the ownership of the piece and/or parcel of land at Ehime in Mbano Local Government Area of Imo State. The Appellant claims ownership of the said land lying at Mgboroko Umukabia, Ehime in Mbano and which he stated that he had been in exclusive and uninterrupted possession and had equally exercised varied acts of ownership by planting economic trees and farming on the land since the 1960’s. That sometime in 1986 the Respondent encroached upon the land without the consent of the Appellant. He further claimed that he inherited the said land from his father Ekweghiariri who in turn had inherited same from his own father Osutara all of who had been exercising exclusive rights of possession and ownership over the years without any interference from any quarters. All this had been under the native law and custom of the people of. Ehime Mbano in Imo State.

The Respondents on the other hand claim that they are the customary owners of the said land known as Ala THUAGWU/UHUAGWU situate at Umudurebo Agbaja in Ehime Mbano in Imo State. That the said land was deforested by their grandfather OKEHI who also had farmed on it. That the said land was later given to Eregeonye Nwokwa, the granddaughter of OKEHI who died without a male child and thus the land was inherited by the family of the Respondents. That the Appellants encroached on the land while the Respondents family were away at Ife in Osun State and on their return trouble started when the Appellant was asked to remove the economic trees he had planted in their absence. The Respondents then sued the Appellant before the AMALA (Customary Arbitration) which directed that the Respondents swear to a certain “juju” i.e an oath brought by the Appellant.
From the facts herein, none of the parties directly swore to the oath but rather the said oath was finally taken by the son of one of the Respondents on behalf of all the Respondents.

The Appellant later sued the Respondents in the Customary Court, Ehime Mbano, which gave judgment in favour of the Appellant.
Dissatisfied with the said judgment the Respondents appealed to the Imo State Customary Court of Appeal Owerri which in turn delivered judgment on the 7th day of October 2004 allowing the appeal and dismissing the case of the Appellant hence this appeal.
The appellant has now appealed to this court and filed a notice and grounds of appeal which is found on page 266 of the record. The grounds of appeal without their particulars are hereby reproduced for ease of reference as follows

“1. The Customary Court of Appeal misapplied the Customary Law of Ehime Mhano applicable to this suit when if set aside the judgment of the trial court which had granted title over the land in dispute to the Appellant.
2. Customary Court of Appeal erred in law when it held that the trial court did not make a pronouncement as to where the land in dispute is situated – whether in Agbaja or Umukabia.
3. The Customary Court of Appeal erred in law when it held that evidence showed that the land in dispute is surrounded by lands owned by Agbaja people.
4. The Customary Court of Appeal misapplied the customary law of Ehime Mhano applicable to this suit when it held that the trial court woefully failed in its duty to resolve the conflicting evidence as to whether the Respondents took the customary oath or not.”

The Respondents however raised and filed a notice of preliminary objection on the 24th day of May 2012 contending as follows:

“1. That grounds 3(2), 3(3) and 3(5) of the Appellants grounds of appeal are incompetent.
2. That Appellant’s issues 1, 2 and 3 which are based on the above incompetent grounds of appeal are equally incompetent.”

The grounds upon which the objection is raised are thus:

“1. The Customary Court of Appeal misapplied the Customary Law of Ehiime Mbano applicable to this suit when it set aside the judgment of the trial court which had granted title over the land in dispute to the appellant.
2. The Customary Court of Appeal erred in law when it held that the trial court did not make a pronouncement as to where the land in dispute is situated – whether in Agbaja or Umukabia.
3. The Customary Court of Appeal erred in law when it held that evidence showed that the land in dispute is surrounded by lands owned by Agbaja people.
4. The Customary Court of Appeal misapplied the customary law of Ehime Mbano applicable to this suit when it held that the trial court woefully failed in its duty to resolve the conflicting evidence as to whether the Respondents took the customary oath or not.”

Learned counsel for the Respondents C. T. Okeke in his argument on the preliminary objection submitted that it is only when grounds of appeal raise questions of customary law that this court will have the jurisdiction to entertain the matter. He referred to Section 245(1) of the 1999 Constitution which states as follows:

“An appeal shall lie from decisions of the Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.”

He further cited the case of PAM V. GWOM (2000) FWLR (Pt. 1) 1 at 12 where the Supreme Court clearly stated thus:

“The right of Appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of customary law and/or such other matters as may be prescribed by an Act of the National Assembly. It is now the National Assembly that can extend this right by providing for such other matters. Neither the Federal Military Government nor the National Assembly made such other provisions as envisaged in S.224(1) of the 1979 Constitution. In the circumstances for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent it must raise a question of customary law…”

Learned counsel further argued that the Appellant has not stated in any of the grounds of appeal what the customary law of the parties is, and how the customary law has been applied to the question in controversy. He also argued that grounds 3(2) and 3(5) of the Appellants grounds of appeal do not raise questions of Customary Law and being incompetent has robbed the court of the Jurisdiction to entertain same. He then urged the court to strike out grounds 3(2) and 3(5) of the Appellants grounds of appeal.
On whether the Appellant’s issues 1, 2 and 3 are competent, learned counsel submitted that under the Appellants Issue No. 1, he has argued grounds 3(1), 3(2), 3(3) and 3(6) of his grounds of appeal together. That the said grounds include grounds 3(1) and 3(3) which are incompetent for not raising questions of customary law.
Learned counsel for the Respondents further argued that where competent and incompetent grounds of appeal are argued together the said argument will be struck out as it is not the business of the court to extract arguments from incompetent grounds of appeal. He then cited among others the case of SEHIN DEMI v. GOV. LAGOS STATE (2006) ALL FWLR (Pt. 311) 1858 at 1878.
That in view of the foregoing, the Appellant argued grounds 3(1) and 3(3) which are incompetent or defective together with grounds 3(3) and 3(6) and so issue No. 1 is incompetent and should be struck out.
Learned counsel again submitted that any issue deriving from an incompetent ground of appeal or not framed from any ground of appeal ought to be struck out. See, ABU ZARIA v. MOLOKWU (2004) ALL FWLR (Pt. 238) 604 at 667.
Counsel further submitted that Issue No. 2 is not framed from ground 3(4) of the Appellant’s grounds of appeal. That Ground 3(4) complains that the lower court misapplied Customary Law when it held that the trial court failed to resolve the conflicting evidence on the issue of oath taking. He then urged the court to hold that Appellant’s Issue No. 2 does not arise from ground 3(4) of the appellant’s ground of appeal. That since issue No. 3 is based on ground 3(6) of the Appellant’s ground of appeal, which is also defective having not raised questions of Customary Law, the court is further urged to hold that Issue No. 3 is also incompetent. Learned counsel then concluded that in view of the foregoing, the court ought to strike out Issues 1, 2, and 3 as being incompetent.

In his reply to the preliminary objection, learned counsel for the appellant submitted that the objections raised by the Respondents do not comply with the provisions of Order 3 Rule 10 of the Court of Appeal Rules 2011, and urged the court to refuse to entertain same. In the alternative learned counsel for the appellant further argued that the three grounds of appeal challenged by the respondents have raised questions of Customary Law and therefore satisfy the Provisions of Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
He cited the case of ONYEWUNMI V. OGUNSESAN (1980) 3 NWLR (Pt. 137) 182,207 where Obaseki JSC defined customary law as

“The organic or living law of the indigenous people of Nigeria regulating their lives and transactions…. It is said that custom is the mirror of the culture of the people.”

Learned counsel for the appellant reproduced the three grounds of appeal complained of by the Respondents and which grounds I shall also reproduce for ease of reference.

3(2) The Customary Court of Appeal erred in law when it held that the trial court did not make a pronouncement as to where the land in dispute is situated, whether in Agbaja or Umukabia.
3(3) The Customary Court of Appeal erred in law when it held that evidence showed that the land in dispute is surrounded by lands owned by Agbaja people.
3(5) The lower court erred in law when it held that the trial court used survey plans which were not exhibits to arrive at a decision which was unjustifiable.

With regard to ground 3(2) which is about the identity of the land, whether in Agbaja or Umukabia, counsel submitted that this ground of law relates to proof of a case and the Imo State Customary Court administers Customary Laws in respect of where a piece of land is situate. In respect of ground 3(3) as it relates to lands bounding the area in dispute, counsel stated that proof of boundary neighbours is clearly an issue of customary law.
Again with regard to ground 3(5) of the grounds of appeal, learned counsel placed reliance on Order X Rule 15(2) of the Customary Court Rules 1989 of Imo State which provides thus:

“The plaintiff and the defendant where he so desires in rebuttal of the plaintiff’s plan shall tender as exhibit the plan of the land duly endorsed by a Licensed Surveyor.”

This counsel states, shows that survey plans are acceptable as part of customary law to determine and regulate the right, obligation or relationship of the parties having regard to the established facts of the case.
On the second issue, whether Appellant’s Issues 1, 2 and 3 are competent, learned counsel submitted that these are competent as earlier canvassed submitted as all grounds of appeal filed herein have raised issues of customary law. He further submitted that the Court of Appeal has the liberty to formulate fresh issues where the court feels that the issues formulated by the appellant are in one way or the other defective. See, EZEJESI V. EZEJESI (2010) ALL FWLR (Pt. 517) 647.
Learned counsel concluded that in case any of the issues formulated by the Appellant does not conform with the expected standard of the court, same may be re-formulated in line with the grounds of appeal. He then urged the court to dismiss the preliminary objection.

Learned counsel for the Appellant has submitted that the preliminary objection raised by the Respondents did not comply with the Provisions of Order 10 Rule 3 of the Court of Appeal Rules 2011 and urged the court to discountenance the said objections. Order 10 Rule 3 of the Court of Appeal Rules 2011 states as follows:

“If the Respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other orders as it thinks fit.”

In respect to the above Rule, I can categorically state here that it has not been decided whether or not the Respondent has failed to comply with this Rule. This court will have to look into the merit of the objection raised in order to determine one way or the other if the Respondents have failed to comply with the Rules. It is, in my view, too early in the day to arrive at that conclusion without first looking into the merit or demerit of the objection raised by the appellant. That prayer is hereby refused.

The first objection raised by Respondent is:

“Whether Grounds 3(2), 3(3) and 3(5) of the Appellant grounds of Appeal are competent in that they did not raise grounds of appeal involving questions of customary law.”

The said grounds of appeal complained of by Respondent are hereby reproduced, for ease of reference.

3(2) The Customary Court of Appeal erred in law when it held that the trial court did not make a pronouncement as to where the land in dispute is situate, whether in Agbaja or in Umukabia.
3(3) The Customary Court of Appeal erred in law when it held that evidence showed that the land in dispute is surrounded by lands owned by Agbaja people.
3(5) The lower court erred in law when it held that the trial court used survey plans which were not exhibits to arrival at a decision which was unjustifiable.

Ground 3(2) is a ground that refers to the identity of the land in dispute. Both parties in this case are laying claims to the said piece or pieces of land and the Customary Court in Imo State which adjudicated on the matter at first instance administers customary laws in respect of land matters. The court is therefore enjoined to take into consideration the customs and practices of the people in order to ascertain the true owners of the land. Ground 3(2) can therefore be said to be a ground of customary law with regard to ground 3(3) as it is part of customary law to establish boundary neighbours to the said land in dispute. This to my mind is clearly an issue of customary law.
In respect of ground 3(5) of the grounds of appeal, reference has been made to Order X Rule 15(2) of the Customary Court Rules 1989 of Imo State which provides thus:

“The plaintiff and the defendant where he so desires in rebuttal of the plaintiffs plan, shall tender as exhibit the plan of the land duly endorsed by a licence surveyor.”

I throw my weight behind the reasoning of learned counsel for the Appellant that in reference to the above law, survey plans are acceptable as part of the customary law that determines and regulates the relationship rights and obligations of the parties.
In the light of the foregoing, it is my humbly view that grounds 3(2), 3(3) and 3(5) are grounds of appeal that raise questions of customary law, and being thus competent, this court has jurisdiction to entertain them.

The second issue raised by the Respondents in their preliminary objection is whether Appellant’s Issues 1, 2 and 3 are competent. The Appellant formulated three issues for determination and the Respondent’s grouse is that these issues have been argued alongside some incompetent grounds of appeal which renders all the issues incompetent. Even without delving into the nitty-gritty of the preliminary objection, so raised by the Respondent, the Court of Appeal is empowered and has the privilege of reformulating fresh issues in order to place the appeal in arguments therein in their propel perspective. However, I have earlier decided in the course of dealing with the issues in the preliminary objection that the grounds of appeal have all raised questions involving customary law and are therefore competent. Thus the question of arguing both competent and incompetent grounds of appeal doe not arise anymore as that has already been taken care of in my earlier decision. It is however note worthy that this court has the power to re-formulate issues for determination where the need raised. It is settled law that a court has the power to adopt, modify or reframe issues formulated for determination by the parties. The guiding principle is that issues formulated must lead to a proper determination of the dispute or grievance between the paretic. See, the case of SHA V. KWAM (2000) 8 NWLR (Pt.670) 685, FABIYI V. ADENIYI (2000) 4 NWLR (PT.1055) 551.
In conclusion therefore, it is my considered view that the preliminary objection herein raised by the Respondent is misconceived and is hereby accordingly dismissed.

Now to the main appeal. The Appellant has raised three issues for determination to wit:

“(i) Whether, on the facts and circumstances of this case and the evidence on record, the Imo State Customary Court of Apepal Owerri, (the Lower Court) was right in setting aside the judgment of the trial Customary Court?
(ii) Whether a party who voluntarily submitted to a properly constituted Customary Arbitration whereat traditional oath swearing was returned as a verdict in proof of the claim thereat, can resile and renege at the point of swearing to the traditional oath and still lay claim to the ownership of the land, the subject matter of the Customary Arbitration?
(iii) Whether the Imo State Customary Court of Appeal Owerri, was right to have held that survey plans in respect of a claim for title over a piece/parcel of land which is well known to the parties herein, must be rendered as exhibits before a Customary Court could rely or make use of same in the determination of the claim under Customary Law.”

The Respondent counsel on the other hand has adopted the issues formulated by the Appellant. I have carefully examined all the issues raised herein and I have come to the conclusion that to put all arguments in their proper prospective it is better to fuse all the issues into one main issue and allow all the arguments of both parties to flow from one main issue which I have also adopted from the Appellants issue One as follows:

“Whether, on the facts and circumstances of this case and evidence on record, the Imo State Customary Court of Appeal, Owerri was right in setting aside the judgment of the trial customary court.”

Learned counsel for the appellant submitted that the decision of the lower court setting aside the judgment of the trial customary court, on the ground that the customary right of inheritance as given in evidence by the Appellant without considering customary proof of ownership was not supported by evidence adduced before the trial customary court. That the Appellant apart from the traditional evidence of inheritance, also gave evidence as to other acts of long possession and enjoyment of the land such as farming and harvesting of crops therein not challenged or disturbed by any person. Counsel further stated that the Appellant tendered exhibits A and A1 which are receipts of economic trees and crops which the Appellant had bought from the Agricultural Department Mbano which he planted on the land. (see pages 7 and 8 lines 25 – 30 and lines 5 to 10 on page 8). That the Appellant also gave evidence in the trial court of his boundary neighbours, some of whom also gave evidence in the trial court when that court visited the locus in quo for inspection and fact finding.
Learned counsel concluded on that point that the decision of the judgment of the trial customary court was perverse and occasioned a miscarriage of justice, having regard to the weight of evidence.

Learned counsel further submitted that the decision of the lower court to set aside the judgment of the trial court on the ground that the lower court did not make any pronouncement as to where the land in dispute was situate was merely speculative. He slated that the trial court made copious findings and pronouncements on where the land is located, that is; at Mgboroko Umukabia in the Ehime Mbano Local Government Area of Imo State. He then referred to para 7 page 152 and para.25 page 153 of the records. He also referred to the survey plans filed by the Plaintiff/Appellant as 1D1 and that filed by the Respondents as 1D2 both of which were accepted at the customary court trial. The survey plans are marked No. DS 9969 IM-2415 D/87 and Survey Plan No. ASA/IMD/3/88 respectively. See, pages 127 line 1 and 130 line 15. That the parties by their own knowledge and documents are aware with some degree of certainty of where the land in dispute is located and that there was indeed no need for the trial court to have made any pronouncement on that. That the Appellate Court such as the lower court does not re-evaluate evidence of witnesses which it did not see, to use it to interfere with the findings of the trial court. See, ONYERI V. OZONGWU (1999) 11 SCNJ 1 and also OSOLU V. OSOLU (2003) 6 SC (Pt.1) at 12. Para 25 – 30. That the lower court speculated when it set aside the judgment of the trial customary court on the ground that the land in dispute is surrounded by lands owned by other Agbaja people.
Counsel further stated that there was no such evidence in the lower court and that the trial customary court found out and so held that the Appellant’s boundary neighbours were from different families from Umukabia while those of the Respondents were people from their own kindred. That these boundary neighbours also testified during the visit to the locus in quo in favour of the Appellants as boundary neighbours. See, pages 42 – 43 of the records. In a further submission by learned Appellant’s counsel, he stated that the duty of a court is not to speculate but rather to act on evidence as put forward by the parties in proof of their case. He then cited the case of EZEMBA V. IBENEME (2004) 14 NWLR (Pt.894) 617 and also the case of ARCHIBONG V. ITA (2004) 13 NWLR (Pt.858) 590.

Learned Appellant’s counsel again submitted that where a person such as the Appellant has been in long and undisturbed possession of land for decades as in this case, the court ought not to disregard the acts of long possession of the land as held by the person. See, OSOKPO V. PAUL (1990) 2 NWLR (Pt.133) 500.
That in this case, the Appellant gave evidence to the effect that his grandfather, OSUTARA was in exclusive possession of the land in dispute having inherited it from his own father in the 1960s and had continued to farm on the said land until sometime in 1986 when the Respondents first encroached into the land and were sternly warded off. That there was no evidence of either the Respondents grandfather or their father having disturbed the exclusive possession and ownership of the land now in dispute held by the Appellants father and grandfather from whom the Appellant inherited same under Ehime Mbano Native Law and Custom.
In a further submission, learned counsel stated that the Appellant and Respondents as well as all their witnesses all agreed that the economic trees were all planted by the Appellant and his forebears which fact was never challenged by the Respondents fathers or forefathers. That the lower court was therefore in error when it set aside the judgment of the trial court on the ground that the Appellant planted economic trees on the land in dispute without the consent of the Respondents who in turn were aware of the Appellant’s action, but did nothing to stop the Appellant from acting thus. That the law is clear to the effect that belief is immaterial once there is only one version of evidence relating to a material fact. See, N.B.N. LTD. v. OPEOLA (1994) NWLR (Pt.319) 126 at 130 ratio 9.
Learned counsel further submitted that where parties rely on traditional history in proof of their claim of title to land, the proper approach is by references to acts within living memory which are the numerous acts of ownership such as farming and planting of economic trees on the said land. See, the case of IHEANACHO v. CHIGERE (2004) 17 NWLR (Pt. 901) 130 at 148 -149.
Counsel again submitted that the Respondents made no attempt at tracing any root of title in respect to the land they are claiming. That DW1 in his evidence told the trial court that the Respondents inherited the land from his grandfather, one Okehi and nothing more and that there was no evidence of how the land was found and passed unto him. Learned counsel concluded on that point that the contradiction in the testimonies of DW1, 2 and 4 are so material and fundamental that the lower court ought not to have believed them.

On the issue of Customary Arbitration with regard to oath taking.
Learned counsel submitted that the lower court was wrong to have accepted the fact that one of the Respondents took the oath on behalf of the rest of the family and survived, while the Appellant alleged that the Respondents refused to swear to the oath. He further submitted that a person who was not a party in the customary Arbitral proceedings such as DW4 Mr. Innocent Offor is not bound by the decision of the Customary Arbitration. See, OPARAJI V. OHANU (1999) 9 NWLR (Pt. 618) 290. That where two parties to a dispute voluntarily agrees to oath taking as a resolution of their dispute, neither of them can thereafter resile or renege from that exercise. See OYENENGE V. EBERE (2004) 13 NWLR (Pt. 889) 20 at 40.
On the issue of the trial courts reliance on the survey plans which were only tendered as 1D1 and 1D2 and not admitted as exhibits, learned counsel submitted that the strict Rules of evidence and procedure in the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 are inapplicable at customary court trials. That a customary court is essentially a fact finding trial court and therefore not bound by the strict rules and procedure of the law of evidence in the course of its fact finding adjudication, submitting further by learned counsel, he stated that the acceptance of the survey plan submitted by the Appellant as 1D1 survey plan No. DS 9669/M-2415/IM-2415 D/87 in respect of the land in dispute was proper under customary court procedure. That the Respondents also submitted survey plan No. ASA/IMD 3/88 which was equally admitted by the trial court and marked 1D2 and both survey plans described the land as being situate at Mgboroko Umukabia Ehime Mbano in Imo State. That where the identity of the land is not in issue as in this case, the production of survey plans by both parties ought to be sufficient facts in a customary court to establish the identity and location of the land in dispute.
That the lower court was therefore wrong to have made the identity of the land in dispute an issue when the Respondents never did so even at the lower court.
That the fact that the parties gave the said land in dispute different names would not alter the identity of the land.
He concluded that where customary boundary trees or any demarcation marks exist and both parties agree on same, they shall be deemed to be sufficient substitute for a survey plan or sketch. He then urged the court to set aside the decision of the lower court and affirm the judgment of the trial customary court who by their nature are created to dispense substantial justice without due regard to technicalities.

In reply to the appellants submissions, learned counsel for the Respondents first referred to the case of OTANMA v. YOUDUBAGHA (2006) ALL FWLR (Pt. 300) 1579 at 1599 where the Supreme Court held thus:

“In every case, there is always the primary and crucial issue which if determined in favour of the plaintiff, will give him a right to the relief claimed.”

Counsel stated that the crucial or primary issue in this matter is whether the appellant who relied on traditional history or evidence proved his case. He further submitted that the onus of proof in this case lies with the plaintiff who has failed to prove his traditional history, and cited the case of VICTOR OKONKWO V. GEORGE OKONKWO (1998) 7 SCNJ 246 at 255 where the Supreme Court held thus:

“If a plaintiff fails to establish his claim, the defence is not duty bound to call evidence.”

Learned counsel further submitted that the appellant is bound to prove his case through credible evidence and not to rely on the weakness of the defendant’s case. See, HEALTH CARE PRODUCTS NIG. LTD. V. BAZZA (2003) FWLR (Pt. 162) 1937 at 1958. That the Appellant had claimed that he got his land from his grandfather OSUTARA but did not disclose how the said Osutara got the said land.
Counsel submitted that once a party traces his root of title to a particular person he must establish how that person came to have title vested in him. He cited the case of ANUKAM v. ANUKAM (2008) ALL FWLR (Pt.413) 1255 at 1270 where the Supreme Court held as follows:

“It is settled law that once a party…traces the root of title to a particular person or family, he must establish how that person came to have title vested in him……….. ………….”

Counsel also cited the authority in ELEGUSHI v. OSENI (2005) ALL FWLR (Pt. 282) 1837 at 1852 where the Supreme Court laid out the principles of what must be proved in order to establish traditional evidence of title. That since the Appellant failed to prove his traditional history of how the said OSUTARA got the land in dispute, any evidence of possession built on the traditional history must fail. See, AMAJIDEOGU V. ONONAKU (1988) 2 NWLR (Pt.78) 614.
Learned counsel again cited the case of YUSUF v. ADEGOKE (2007) 11 NWLR (Pt.1045) 332 at 374 where the Supreme Court held inter alia

“It is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that root.”

That since the Appellant failed to prove how Osutara got the land, the lower court was right to have set aside the judgment of the trial Customary Court.
Learned counsel for the Respondents referred to the contradictions in the evidence of PW1 about his genealogy while the Respondents gave credible evidence that the land belongs to the Respondents who inherited same from their grandfather OKEHI who deforested the land. That since the Respondents did not counterclaim, they did not need to prove anything. See, DUKE v. KOLO EDO (1999) 10 NWLR (Pt. 623) 361 at 365.

On the issue of oath taking, learned counsel for the Respondents stated that there were contradictions in the testimonies of PWs 1, 2 and 3 as regards to taking of oath by the Respondents which oath was as a result of the Customary Arbitration agreed upon by both parties. The grouse of the Respondents is that the Appellant failed to prove that the Respondents resiled from swearing to the oath which emanated from the Customary Arbitration. Learned counsel reiterated the principle of he who asserts must prove and that the Appellant has failed to prove his own assertion of what actually happened during the oath taking. He then cited the case of CARDOSO v. DANIEL (1986) 2 NWLR (Pt. 20) 1 and concluded that in view of the obvious contradictions, the Appellant’s story over the oath taking is neither credible nor convincing.

On whether the lower court was right to hold that tendering of survey plans by both parties as identification before a customary Court could be relied on or made use of in the determination of a claim under customary law, learned counsel for the Respondents stated that this issue is now irrelevant and a mere academic exercise since the Appellant has failed to prove his traditional history.
Counsel further stated that since the Appellant failed to prove the boundary neighours and location of the land, he has failed to discharge the onus on him to prove same. That the Respondents call the land ALA IHUAGWU while the Appellant in Exhibit D called the same land UHUAGWU or ALA EKWEGHIARIRI OSUTARA. That the Appellant in Exhibit D said the land in dispute is one parcel of land while PW2 and 3 also in Exhibit D said they were 3 parcels of land. He also stated that the evidence of both parties regarding boundary neighbours is conflicting and also urged the court to discountenance the prayer of the Appellant to have recourse to Section 15 of the Court of Appeal Act 2004 and Order 20 Rule 3 & 4 of the Court of Appeal Rules.
Counsel again urged the court to hold that the lower court was right when it held that the survey plans tendered by the parties ought to have been admitted as exhibits before being relied upon or made use of by the court.
He finally urged the court to dismiss the Appellants appeal and affirm the judgment of the lower court.

The general principle of law which has always guided title to land is that in a claim for ownership of land the plaintiff must succeed on the strength of his own case and not rely on the weakness of the defendant’s case in proving his title. See, KODILINYE v. ODU 2 WACA 336, NWOKAFOR v. UDEGBE (1963) 1 ALL NLR 104.
The Supreme Court has held in a plethora of cases that the plaintiff in an action for declaration of title to land must adduce strong credible, cogent and convincing evidence to establish that the land he claims belongs to him. In proving title to land, a party must prove the following:-
1. By traditional evidence
2. By production of documents of title which must be duly authenticated.
3. By exercise of numerous and positive acts of ownership over a sufficient period of time to warrant the reference that the person is the true owner of the land.
4. By acts of long possession and enjoyment of the land.
5. By proof of possession of connected or adjacent land in the circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See, KYARI v. ALKALI (2001) FWLR 1481 AT 1485, NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 at 1506 C – E.
It has been held that each of the five methods of proving title to land suffice independently of the others to prove title to land. See, OKONKWO V. OKOLO (1988) 2 NWLR (Pt. 79) 632 at 656.

Like I stated earlier, one of the primary ways of establishing ownership of land is by proving the root of title through traditional evidence. The Appellant while testifying in the trial court clearly stated that his grandfather OSUTARA, was in exclusive possession of the land in dispute having inherited it from his own father who had been farming on the land without any interruption from the Respondents’ forefathers. The Appellant further stated that he inherited the said land from his own father Ekweghiariri in the 1960’s and continued the farming activities on the land. It can be gleaned from the evidence of the Respondents in the trial court that this particular piece of evidence was not successfully challenged at the trial court.
I agree with reasoning of learned counsel for the Appellant that the decision of the lower court to set aside the Judgment of the trial court on the Appellants evidence of customary right of inheritance was not supported by any evidence adduced before the trial court. The Appellant testified to the trial court as plaintiff and PW1 and stated that both his father and grandfather farmed on the land which they in turn inherited from his great grandfather. He called the land “Ala Ekwegiariri OSUTARA” after his grandfathers. In such a claim for title to land, the onus is however on the party who claims the land and it behooves on him to adduce cogent and uncontradicted evidence that must remain credible and reliable. In the instant case, the Appellant and his witnesses at the trial court went the whole hog in an attempt to establish his root of title as stated above. A party who hinges his claim of declaration of title to land on traditional history must establish how his ancestor, the original owner acquired the land: that is whether by settlement conquest or grant. In the instant case, the Appellant has clearly stated that his great grandfather settled on the land which he passed unto his own grandfather who continued to farm on it. That piece of evidence was not controverted by the Respondents. See the case of AIKLINBARE v. OMOLEGIE (1976) 12 SC 11, KODILINYE V. ODU 2 WACA 336, EBOHA V. ANAKWENZE (1967) SCNLR 97.

Again, a party who seeks title to land by any of the 5 ways of seeking such must prove acts of long possession. Further evidence at the trial court was that in or about the year 1972 the Appellant planted several economic trees of agricultural high breed species without any disturbance or interference from the Respondents and thereafter proceeded to harvest the crops therein, again uninterrupted by the Respondents. Part of the evidence of PW3 at the trial court was thus: “the agric palm trees on the land were planted by the plaintiff.” He reiterated the fact that he, PW3 was a Traditional Ruler and a witness of truth who partook in an earlier arbitration concerning the land in dispute.
In order to establish possession, a claimant has to take some active steps in relation to the land, such as enclosing the land or cultivating it. In this case the Appellant farmed on the land and planted trees and harvested crops planted therein. The Appellants stated that his ancestors had also farmed on the land for a period spanning about three decades. The Respondents could not dislodge this evidence and thus could not prove a better title. See, OTUTOLA V. ICC (1078) 4 SC 59,SOLOMON V.MOGAJI (982) 11 SC 1.

It is trite however, that possession where proved is title against the whole world where no-one has proved better title. See, OGBECHIE v. ONOCHIE (No. 2) (1988) 1 NWLR (pt. 70) 370. See also the case of NWOSU V. UDEAJA (1990) I NWLR (Pt. 125) 188. In the instant case, the Respondents failed to establish such possession but rather looked the other way while the appellant continued to exercise control over the land through farming and planting of Agric Palms and other economic trees. As it were, the Respondents’ made no attempt to interfere with the Appellant when he was planting the agric palms from the inception until they attained maturity. The Appellant was also harvesting the palm fruits for years before the Respondents made any moves to challenge him. It is therefore obvious from the evidence of both parties at the trial Customary Court that the Appellant has a better title judging from the obvious acts of ownership and possession over time. The family of the Appellant has been proved to be in long and undisturbed ownership and possession of the land in dispute right from the days of his father and grandfather before him. At page 149 of the record, “one Ofo Ihie Ononiwu” testified as follows:

“The plaintiff (Appellant) planted the agric palm trees and he was not challenged by the defendants (Respondents).”

In the case of FOLAMI V. COLE (1990) NWLR (Pt. 133) at 448. The Supreme Court held that:
“The owner of the land must be vigilant and challenge anybody entering the land”
The Respondents’ failure to rise up to the challenge of the Appellant with regard to cultivating the said land simply points to the fast that the Appellant has a better title.

Again, another method of proving title to land is by the production of documents of title. The Appellant herein tendered a receipt (Exhibit A) at the trial Customary Court for the purchase of Agric palms which he planted on the land. The said receipt was admitted without objection from the other party. The Appellant went a step further to tender a survey plan which was admitted as 1D1. The Respondents also tendered their survey plan 1D2 based on the same piece of land. From the evidence adduced in the lower court, both survey plan clearly identify the same piece of land which turns out to be that situate at Mgborokom Umukabia, in Ehime Mbano. The Respondents counsel now urges this court to disregard the said 1D1 as they were merely tendered for identification and not as exhibits. He cited Order X Rule 5(3) of the Imo State Customary Court Rules 1998 thus:

“Where a party in a cause or matter desires to rely on a document, he shall cause the original document, to be provided and tendered in evidence.”

That if the Appellant wanted to rely on the survey plan, he would have tendered it as an exhibit in court and not as mere identification. The trial Customary Court in arriving at its decision as to the exact location of the land in dispute, looked at the survey plans therein tendered as 1D1 and 1D2 in the courts file and found that both survey plans describe the land in dispute as MGBOROKO. It is however, worthy of note that Customary Courts are not bound by the Rules of Evidence and technicalities but strictly by the principles of Natural Justice, Equity and Good conscience. Customary Courts by their nature are created to dispense substantial justice without due regard to technicalities. It is my humble view that the trial court was right in looking at the survey plans albeit their having been tendered in court and classified as merely for purposes of identification. On the vexed issue of oath taking, both parties made heavy weather of the fact that the Respondents at the trial court were asked by the Customary Arbitration committee to swear to a particular oath or “JUJU” brought by the Appellant. There was indeed conflicting evidence of whether or not the oath was duly administered. However, my humble view is simply this: “JUJU” or the swearing to an oath to ascertain the veracity of any issue is simply a matter of faith. I do not subscribe to the fact that parties in a dispute should amplify it and use it as a yardstick for adjudication at any level. On my part, I will refuse to place reliance on any “Juju” or the swearing of any oath in order to establish any facts in issue. I am therefore relegating that particular oath taking issue to the back burner as no credible evidence was adduced by either party to sustain or give it any credence. I therefore put that matter to rest.

Another point to consider is the fact that the appellant called the land in dispute ALA EKWEGHIARIRI OSUTARA while the Respondents called the land ALA UHUAGWU. It is my view that by whatever name the said land is called, it still refers to the land in dispute claimed by both parties and identified by them in their various testimonies in court and their survey plans. This also brings me to the famous adage that goes thus:

“A ROSE BY ANY OTHER NAME SMELLS AS SWEET.”

Also one can safely say that the land in dispute though called by different, names by both parties still remains the same land as claimed by either side, the difference in nomenclature notwithstanding. From the totality of all of the above, it is my considered view that this appeal is meritorious and should be allowed. I therefore allow the appeal and accordingly set aside the judgment of the lower court delivered on the 7th day of October, 2004.
Appeal allowed with N50,000 costs in favour of the Appellant against the Respondents.

UWANI MUSA ABBA AJI, J.C.A.: I have read before now the judgment of my learned brother p. M. Ekpe, JCA just delivered.
I agree entirely with my learned brother that the appeal has merit and it is also allowed by me. The Appellate had established exclusive possession of the land in dispute spanning over a long period of time from his great grandfather who farmed on the land and inherited by his grandfather and devolved to his father whom he inherited after his demise. The Appellant continued to exercise control over the land in dispute through farming, planting of Agric Palm trees and other economic trees and the Respondents made no attempt to temper with the Appellant’s rights. See Idundun vs. Okumagba (1976) 9 – 10 SC 277: and Ewo vs. Awi (2004) 3 NWLR (PT.861) 610.

I also wish to add that oath taking is a valid process under Customary Law arbitration and it is one of the methods known to Customary Law for establishing the truth of a matter. See Ume vs. Okorunko (1996) 10 NWLR (PT.477) 133: and Onyenge vs. Ebere (2004) 13 NWLR (PT.889) 20. The failure of the Respondents to personally take the oath of Juju provided by the Appellant shows that they are not truthful in their claim.
I also allow this appeal and set aside the judgment of the Lower Court delivered on the 7th day of October, 2004. I abide by the consequential order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: My Learned brother PHILOMENA MBUA EKPE; JCA, gave me the privilege of reading in advance the judgment just delivered.
My Learned brother exhaustively considered all the relevant issues that arose for determination in this appeal. I have no difficulty in agreeing with him that the appeal has merit and should be allowed. I however wish to comment on the opinion of my Learned brother on the issue of oath taking as a means of settling disputes under customary law. My Learned brother had opined at pages 24 lines 27-25lines 6 of the judgment that:

“… However, my humble view is simply this: “JUJU” or the swearing to an oath to ascertain the veracity of any issue is simply a matter of faith. I do not subscribe to the fact that parties in a dispute should amplify it and used as a yardstick for adjudication at any level. On my part, I will refuse to place reliance on any “JUJU” or the swearing of any oath to establish any facts in issue.”

The issue of oath taking should not be relegated to the back burner or consigned to irrelevance. It has long been established, even by the Supreme Court that, oath taking is a valid process under customary law arbitration, and thus, one of the recognized and accepted means of establishing the truth or otherwise of a claim under customary law. Accordingly, where parties to a dispute voluntarily agree to resolve their dispute by oath taking in accordance with customary law, neither of the parties can resile therefrom. See INYANG v ESSIEN (1957) SCNLR P.112; OKERE v NWOKE (1991) 8 NWLR (Pt.209) P.317; OLINE V. OBODO (1958) S.C.N.L.R p.298; OKARIKA v SAMUEL (2005) 7 NWLR (Pt.924) p.365 and ONYENGE v EBERE (2004) 13 NWLR (Pt.889) p.20.

The record of appeal show that, that there was a customary arbitration before the Amala of the Community, where it was agreed that the Plaintiffs produce a juju for the Defendants, to swear. The Appellant who testified as P.W.1 stated that he produced the juju but the Respondents refused to swear to the juju. That the consequence of the failure of the Defendants/Respondents to swear to the juju is that, the land in dispute would be that of the Plaintiff/Appellant. He was not contradicted on this piece of evidence in cross-examination. The P.W.2 however stated that under the customary law of the parties, one person can swear an oath on behalf of the parties, and that one Innocent Offor swore the oath on behalf of the other Defendants. Unfortunately, the P.W.2 stated that he did not witness the oath taking. The testimony of the Appellant therefore remained uncontradicted.
The Defendants/Respondents agreed that there was an arbitration in respect of this matter, and that it was agreed that the Appellant produce Juju for them to swear, but the Appellant produced two juju. Then D.W.1 stated that his son swore to the oath on behalf of all the Defendants; because the Appellant was of the view that since the Respondents just returned from Yoruba land, they should not swear to the oath. The D.W.2 contradicted the D.W.2 when he stated that the D.W.1 swore to the oath. The D.W.4 on the other hand supported the D.W.1, that it was the Appellant who refused the D.W.1 to swear to the oath, but permitted his son to swear. He also agreed that by their custom, one can swear for himself and on behalf of others.
The Court below found at page 263 lines 15-24 that, the trial Customary Court failed woefully in its duty to resolve the conflicting evidence of the parties on oath taking. In an effort to resolve the conflict, the Court below, took refuge in criticizing the composition of the panel that arbitrated on the panel, and concluded that it did not believe that there was any conclusive settlement. I think, this finding of the lower Court is perverse in that it is not supported by the evidence. We are therefore in as good position as the Court below to evaluate the evidence on record to resolve the conflict. NWACHUKWU v NWOSU (1990) 7 NWLR (Pt.160) p.72; MADUEKWE v OKOROAFOR (1992) 9 NWLR (Pt.263) p.69, and BALOGUN v AGBOOLA (1974) 1 ALL N.L.R (P.2) p.66.

In the instant case, both parties were agreed that there was an arbitration in the matter and that both parties agreed to be bound by the decision arrived at from the arbitration. Both parties are also agreed that it was decided that, the Appellant produced a juju, which the Respondents should swear on. It was further agreed that, it is the custom of the parties that, where the party that swears does not die within a certain period, the land would be his; otherwise, the land would belong to the adversary. The only point of disagreement is whether or not the Respondents took the oath. I find it necessary to observe that the matter was not defended in a representative capacity nor is there evidence to show that the arbitration was conducted for the Respondents in a representative capacity. Apart from the testimony on record that the son of D.W.1 took the oath for him, there is no evidence that any of the other Defendants/Respondents on record took the oath. In any case, the evidence is that the person who took the oath did so on behalf of his father only. The end result is that the evidence on record has established that the Respondents did not take the oath. In arriving at this conclusion, I am not oblivious of the established custom of the parties that a person can take an oath on behalf of the others in the dispute. Here, the person that took the oath is not a party to the dispute, and he did not pretend to take the oath for all the Respondents. I am therefore of the view that the Court below was in error when it failed or refused to apply the result of the arbitration by the Amala in arriving at its decision in the matter. If it had done so, it would have found that the customary arbitration supports the appellant’s case.

It is for the above stated reason and the further reasons contained in the judgment of my Learned brother; Ekpe, JCA; that I agreed that this appeal has merit and should be allowed. Consequently, I hereby allow this appeal, set aside the judgment of the Court below delivered on the 7th day of October. 2004.
I abide by the order on costs.

Appearances

S.I. Emeribe, EsqFor Appellant

AND

C.T. Okeke, Esq., with R. C. Mbonu, Esq.For Respondent