SUNDAY EZEJI OKORIE v. IGNATIUS UNAKALAMBA & ANOR (2013)

SUNDAY EZEJI OKORIE v. IGNATIUS UNAKALAMBA & ANOR

(2013)LCN/6509(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of November, 2013

CA/OW/234/2011

RATIO

WHETHER CIVIL CASES ARE TO BE DECIDED ON THE PREPONDERANCE OF EVIDENCE OR BALANCE OF PROBABILITY

It is trite law that all civil cases in Nigeria are decided on the preponderance of evidence or balance of probability. See Yakubu vs. Jauroyel (2005) ALL FWLR (PT. 283) 184 at 206. This implies that the evidence must be holistically examined and weighed on the imaginary scale to see where it tilts or preponderates. In fact, customary law is entirely a matter of evidence to be decided on the fact presented before the court and must therefore be proved in any particular case. See Agbabiaka vs. Saibu (1998) 10 NWLR (PT. 571) 534 SC. Per UWANI MUSA ABBA AJI, J.C.A. (PJ)

DETERMINING A DECISION INVOLVING QUESTION OF CUSTOMARY LAW

Where there is a dispute as to the extent and manner in which such applicable Customary Law determines and regulates the rights, obligations or relationship of the parties having regards to the facts established in the case, a resolution of such dispute can be regarded as a decision involving questions of Customary Law. See Pam vs. Gwom (2000) FWLR (PT 1) 1@ 14; (2000) 2 NWLR (PT.644) 322 @ 234; Edo State vs. Aguele (2000) 12 (PT. 995) 545 and Golok vs. Diyalpwan (1990) 1 NWLR (PT. 139) 41. Per UWANI MUSA ABBA AJI, J.C.A. (PJ)

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

SUNDAY EZEJI OKORIE Appellant(s)

AND

1. IGNATIUS UNAKALAMBA
2. CHIEF ALBERT UNAKALAMBA
(For themselves and as representing the
entire Unakalamba’s family of
Obilubi, Obazu, Mbieri) Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (PJ) (Delivering the Leading Judgment): This is an Appeal against the judgment of the Imo State Customary Court of Appeal sitting at Owerri delivered on the 26th day of July, 2011.

The Respondents in the Appeal had taken out an action in the Customary Court of Mbaitoli Local Government Area holding at Nwaorieubi against the Appellant claiming for the following reliefs:
1. Declaration of the Honourable court that the Plaintiffs are entitled to the grant of Customary Right of Occupancy over all that piece or parcel of land known as and called “UHU OJI” situate and lying at Obilubi Obazu Mbieri in Mbaitoli Local Government Area within the jurisdiction of this Court.
2. N10,000.00 (Ten Thousand Naira) General Damages for trespass against the Defendant for forcibly entering the land in dispute on 5th March, 1999.
3. Perpetual injunction restraining Defendant, his assigns or agents from further entry into the land again.

Similarly, the Appellant took out action at the Customary Court of Owerri North Local Government Area, holden at Umuoba against the Respondents in Suit No. CC/OW/40/2003 claiming as follows:
1. A Declaration that the Plaintiff is entitled to the Customary Right of Occupancy in respect of the piece and parcel of land known as and called “UHU – ORJI” situate and lying between Owaelu and Owalla in Owerri North Local Government Area of Imo State of Nigeria within the jurisdiction.
2. N50,000.00 (Fifty Thousand Naira) being damages for trespass.
3. Injunction restraining the Defendants, their agents, servants, privies, workmen and heirs from entering or continuing to enter the said UHU – ORJI land of the Plaintiff.

Both suits were later transferred to Owerri Urban Customary Court where they were consolidated and heard as CC/OU/26/28/2006 with the Respondents being the Plaintiffs and the Appellant the Defendant.

The facts of the case as revealed by the evidence are that the Respondents who were the Plaintiffs at the trial Court claimed that they own the land in dispute called Uhu-Orji by inheritance. They accordingly led evidence of traditional history, long and unchallenged possession by farming on four years rotational basis. They equally led evidence of recent possession through farming and were harvesting their own cassava on the land in dispute in 2009. They led evidence that from the deforestation of the land to the present suit, the land is about 100-150 years and had enjoyed ownership and quiet possession until 1999 when the Appellant who was then the Defendant trespassed on the land, consequently triggering the instant suit. On the other hand, the Appellant similarly laid claim to ownership of the land called Uhu-Orji by inheritance. He led evidence of pledging same at two different times and redeemed same in the presence of witnesses whom he failed to call but tendered the evidence of redemption.

The Plaintiffs called a total of three witnesses who testified as PW1, PW2 and PW3, while the Defendant called a total of four witnesses who testified as DW1, DW2, DW3 and DW4 respectively. At the end of the hearing, the trial Customary Court dismissed the case of the Respondents and entered judgment in favour of the Appellant.

The Respondents being dissatisfied with the judgment appealed to the Imo State Customary Court of Appeal which delivered its judgment on the 26th day of July 2011, setting aside the judgment of the trial Customary Court, and entered judgment in favour of the Respondents.

The Appellant is dissatisfied with the said judgment of the Customary Court of Appeal and has now appealed to this Honourable Court vide Notice of Appeal dated 12th day of August 2011 and filed on the 15th day of August upon the following five Grounds of Appeal. The Grounds of Appeal without their particulars are hereunder reproduced.

GROUNDS OF APPEAL

GROUND 1: ERROR OF LAW
The learned Judges of the Imo State Customary Court of Appeal erred in Customary Law when they held that Grounds 1, 2 and 4 of the Respondents’ Grounds of Appeal raise questions of Customary Law and are therefore competent Grounds of Appeal.

GROUNDS 2: ERROR OF LAW
The learned Judges of the Customary Court of Appeal erred in Customary Law which has occasioned a miscarriage of Justice when they held that the Respondents in their traditional history “presented a more cogent, concrete and compelling fact in recent year…” than the Appellant and consequently entered judgment in favour of the Respondents in respect of the land in dispute when the Respondents failed to prove the identity, location and extent of the land in dispute.

GROUND 3: ERROR IN CUSTOMARY LAW
The Imo State Customary Court of Appeal erred in Customary Law which has occasioned a miscarriage of justice when it allowed the Respondents’ Appeal, and entered judgment in favour of the Respondents when the Respondents failed to prove the location, identity or extent of the land in dispute.

GROUND 4: ERROR IN CUSTOMARY LAW
The Imo State Customary Court of Appeal erred in Customary Law which has occasioned a grave miscarriage of justice when it held that the Appellant did not prove his pledge and consequently entered judgment in favour of the Respondents.

GROUND 5: ERROR OF CUSTOMARY LAW
The lower court erred in the application of Customary Law which has occasioned a miscarriage of justice when it set aside the judgment of the lower court and entered judgment in favour of the Respondents when the Respondents did not prove their case on the preponderance of evidence.

Parties filed and exchanged Briefs as required by the Rules of this Court. In the Appellant’s Brief of Argument settled by C.T. Okeke, Esq., learned Counsel nominated the following four issues for determination as follows:-

Issue No. 1:
Whether the Imo State Customary Court of Appeal was right when it held that Grounds, 1, 2 and 4 of the Respondents’ Grounds of Appeal raise questions of Customary law.

Issue No. 2:
Whether the lower court was right when it rejected that the Respondents did not prove the location, identity or extent of the land in dispute and entered judgment in favour of the Respondents.

Issue No. 3:
Whether the lower court was right when it held that the Appellant did not prove pledge and consequently entered judgment in favour of the Respondents.

Issue No. 4:
Whether the lower court was right when it held that the Respondents proved their case on the preponderance of evidence.

In the Respondent’s Brief settled by E.T.C. Ogbusu, Esq., learned Counsel adopted the issues nominated by the Appellant save issue 2 which was recast.

At the hearing of the Appeal on 17th/09/2013, Learned Counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated 6th day of October, 2011 and filed on the 11th day of October, 2011, the Appellant’s Reply Brief dated 21st day of November, 2011 and filed on the 25th of November, 2011 and urged the Court to allow the Appeal.
The Respondents’ Counsel also adopted and relied on the Respondents’ Brief of Argument dated 9th day of November, 2011 and filed on the 10th November, 2011 and urged the Court to dismiss the Appeal.

I have considered the issues for determination filed by the Appellant.

The Respondents having adopted the issues nominated by the Appellant except issue 2 which was recast, the same will be adopted in the determination of the Appeal.

Issue No. 1
Whether the Imo State Customary Court of Appeal was right when it held that Grounds 1, 2, and 4 of the Respondents’ Grounds of Appeal raise questions of Customary Law.

Arguing the issue, C. T Okeke, Esq. for the Appellant submitted that Grounds 1, 2 and 4 of the Respondents’ grounds of appeal to the Imo State Customary Court of Appeal are incompetent as the grounds did not raise any question of customary law. He cited Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 to submit that it is only when the grounds of appeal raise questions of customary law that the Customary Court of Appeal will have jurisdiction to entertain the matter; and that if the Grounds of Appeal do not raise questions of customary law, the Court will not have the jurisdiction to entertain same. On what constitute questions of customary law, reliance was placed on the decision of the Supreme Court in Pam vs. Gwom (2001) FWLR (PT 1) 1 @ 14 per Ayoola, J.S.C. Learned Counsel thus argued that even though the Respondents in their ground 1 said, “the trial Customary Court (the court below) erred in Customary Law …,” they did not state what the Customary Law of the parties is and how the Customary Law has been applied, or how it has not been applied to the question in controversy. That in grounds 2 and 4, no mention was made of customary law, and that the lower court was wrong to have held that the grounds with their particulars raise questions of customary law.

Learned counsel also argued that any issue based on incompetent ground of appeal is equally incompetent and should be struck out and placed reliance on the cases of; A.B.U. Zaria vs. Molokwu (2004) All FWLR (PT.238) 604 @ 667; Emespo J. Continental Ltd vs. Corona Shifah Rtsqesellschff (2006) All FWLR (PT 321) 1233. The Court was urged to strike out the said Issues.

In his response, Learned counsel for the Respondents, Chief Ogbusu, Esq. argued that there is a total misunderstanding and overstretching of Section 282(1) of the Constitution of the Federal Republic of Nigeria, 1999 and the decision in Pam vs. Gwom (2000) FWLR (PT. 1) 1 @ 14 on the meaning of “Question of Customary Law.” Learned counsel argued that it is not the law that, a party who states in his grounds of appeal that the trial court erred in customary law must state the particular customary law, that like in pleadings, it is sufficient that there are particulars which show clearly that the Appellant is raising issues of customary law. It is his view that what matters is not how a party names or titles his grounds of appeal but the contents of the particulars. He relied on the cases of Metal Construction (W/A) Ltd vs. Migliore (1990) 1 NWLR (PT 126) 299; and Nwadike & Ors vs. Ibekwe & Ors (1987) 12 SC 14 @ 27 to submit that it is relevant and crucial to construe the grounds of appeal together with the particulars of error alleged. He argued that the court below examined the grounds of appeal together with the particulars in line with the decisions of the Supreme Court. He thus argued that Grounds 1, 2 and 4 of the Grounds of Appeal raise issues of traditional history, issue of title and methods of proving customary ownership of land under Section 282(1) of the 1999 Constitution and the case of Pam vs. Gwom (supra). He also submitted that none of the cases cited by the Appellant on this issue is relevant as they are inapplicable and the court was urged to resolve the issue against the Appellant.

In determining this issue, recourse must be had to the provisions of Section 282(1) of the 1999 Constitution (as amended) which provides as follows:
282(1) A Customary Court of Appeal of a state shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
(2) For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the state for which it is established.
It is clear from the above provision that the jurisdiction of a Customary Court of Appeal of a state is limited to Appellate and Supervisory jurisdiction in civil proceedings involving questions of customary law or to such other jurisdiction as may be conferred on it by the House of Assembly of the State which establishes it. The provision of Section 282(1) of the 1999 Constitution (supra) limits the jurisdiction of the Customary Court of Appeal to appeals in civil proceedings involving questions of customary law and such other matters as may be prescribed by the House of Assembly that establishes it. Therefore, any ground of appeal which does not raise questions of customary law would be incompetent.

Learned Counsel for the Appellant argued that the court below was not right in holding that the Respondents’ Grounds 1, 2, and 4 of the grounds of appeal raised questions of customary law. The said grounds of appeal along with their particulars are hereby reproduced for ease of reference:

GROUNDS OF APPEAL

GROUND ONE: ERROR IN LAW
The trial Customary Court (the Court below) erred in Customary Law in its consideration of the traditional history, recent acts of possession and ownership of the land in dispute, vis-a-vis as a method of proof of ownership of the land in dispute.

PARTICULARS OF ERROR IN LAW
i. The traditional history the Plaintiff and their witnesses gave in Court was more cogent, straight, strong and plain than that of the Defendant and his witnesses.
ii. In terms of acts of possession both old and recent, there were numerous acts of recent and old possession and ownership exercised on the land in dispute by the Plaintiffs and their fore fathers and fathers on the land as was testified to in Court as against the Defendant who has never cultivated the said land all his life, nor testified to his fathers having been in possession of it in the recent past.
iii. In 1999 and 2003, specifically when the Defendant entered the land in dispute, the Plaintiffs promptly challenged the Defendant, as the persons who have been in actual possession of the land in dispute over the years through their fathers and fore fathers.

GROUND TWO: ERROR IN LAW
The trial Customary Court erred in law when it held that the Appellant (as Plaintiff in the consolidated Suits) had not discharged the burden of proof placed on them to prove their title to the land in dispute and thereby caused a miscarriage of justice.

PARTICULARS OF ERROR IN LAW
i. The trial Customary Court based its decision on the evidence of traditional history led in the case, but paid no attention or heed to the 3 methods positively proved by the Appellants (as Plaintiffs) i.e. (a) long possession (b) proof of acts of ownership (c) enjoyment of adjacent parcels of land by Plaintiffs and their relations to the land in dispute.
ii. The Respondent did not prove acts of long possession of any sort at all nor any acts of ownership save the allegation of pledge which the Respondent made no attempt to prove. As he who alleges, proves.
iii. The issue of the name of the land heavily relied by the Court as claimed by the Respondent was not proved, and moreover the higher courts have held that a particular land may be known by several names, or called by different names by the different parties.

GROUND FOUR: IN ERROR IN LAW
The trial court erred in law when it held that the strength of the Appellants’ case was not enough to grant them their claim over the disputed land but that the Respondent as Plaintiff in CC/OU/26/2006 discharged the burden placed on him and granted him his claims.
i. The strength of the Appellants’ case was strong enough to sustain their claim for declaration of title in their favour as they proved three (3) out of the five methods of proving title as laid down in Idundun vs. Okumagba’s case.
ii. The traditional history evidence and the alleged pledge and its redemption testified to by the Respondent and his witnesses were flawed in all material particulars and they fell short of the standard of proof required by law to sustain a claim for Declaration of Title. The weakness of the Respondent’s case was manifest and clear but the trial Court chose to turn a blind eye to it.
iii. There was no question of the weakness of the Appellants’ case in this matter, as the evidence on the Appellants’ side of the scale was strong and compelling.

In the case of Pam vs. Gwom (2000) FWLR (PT 1) 1 at 14, per Ayoola, J.S.C relied upon by the Appellant’s Counsel, his Lordship posed the question, when a decision is in respect of a question of Customary Law and opined that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of Customary Law so ascertained to the question in controversy.
His Lordship went further to state that, where the parties are in agreement as to what the applicable customary law is, the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, when notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can in my opinion be regarded as a decision with respect to a question of the Customary Law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of Customary Law, notwithstanding that the applicable Law is Customary Law.
I have carefully perused the said Grounds of Appeal, and upon a careful consideration of the same, I am of the view and hold that Grounds 1, 2 and 4 dealt with the determination and application of Customary Law to the controversy between the parties. This is clearly explained by the particulars of the Grounds of Appeal. Where there is a dispute as to the extent and manner in which such applicable Customary Law determines and regulates the rights, obligations or relationship of the parties having regards to the facts established in the case, a resolution of such dispute can be regarded as a decision involving questions of Customary Law. See Pam vs. Gwom (2000) FWLR (PT 1) 1@ 14; (2000) 2 NWLR (PT.644) 322 @ 234; Edo State vs. Aguele (2000) 12 (PT. 995) 545 and Golok vs. Diyalpwan (1990) 1 NWLR (PT. 139) 41. It is therefore my humble view that the proceedings in the trial court and the said Grounds of Appeal involve questions of Customary Law.

The decision of the Customary Court is not on facts or question of procedure. It is therefore not the law that a party who states in his grounds of appeal that the trial court erred in law must state the particular law. It is sufficient that there are particulars which showed clearly that the Appellant is raising issues of customary law. In the instant case, the court below is right, when before coming to the conclusion that the Appellant’s grounds of appeal involve questions of customary law, examined both the grounds as framed together with the particulars thereof. Thus the finding of the Customary Court of Appeal to the effect thus:

“I have carefully read through the said Grounds of Appeal being attacked by the Respondents. I am of the view that a look at the said Grounds of Appeal alongside their respective Particulars of Error shows that they all raise questions of Customary Law. They are therefore competent Grounds of Appeal.”

(See page 140 of the Records of Appeal). This finding of the Lower Court cannot be faulted. It is clear that the Grounds of Appeal border on traditional history, customary title and means of proving same. They are therefore competent Grounds of Appeal as they raise questions of Customary Law. This issue is therefore resolved against the Appellant.

ISSUE 2
Whether the lower court was right when it rejected that the Respondents did not prove the location, identity or extent of the land in dispute and entered judgment in favour of the Respondents.

In arguing this issue, Mr. Okeke of Counsel for the Appellant referred to the Respondents’ claim at the trial Court and submitted that it is trite and needless to over whip the law that a party seeking declaration of title to land must prove the identity, location or extent of the land in dispute. He cited and relied on the cases of Dada vs. Dosunmu (2006) ALL FWLR (PT.343) 1605 at 1657, Otanma vs. Youdubagha (2006) ALL FWLR (PT.300) 1579 at 1590 – 1591, Alase vs. Bernice (2006) ALL FWLR (PT.260) 27 at 44. He also argued that no court would be obliged to grant a declaration to an unidentified land, citing the cases of Adelusola vs. Akinde (2004) 12 NWLR (PT.887) 295 SC and Ogedengbe vs. Balogun (2007) 9 NWLR (PT.1039) 380 SC.

Learned Counsel also referred to the testimonies of PW1, PW2 and PW3 and contended that the location, identity and extent of the land in dispute is an issue and same has not been proved by the Respondents to entitle them to a judgment or declaration of title to the said land.

In his response, Chief E.T.C. Ogbusu, Esq. for the Respondent argued that it is not true that the Respondents did not prove the location identity or the extent of the land in dispute. He submitted that where parties by the evidence adduced both oral and documentary, are ad idem on the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming. Reliance was placed on the following cases: Makanjuola vs. Balogun (1989) 3 NWLR (PT.108) 192 at 204, 207, 211 and 212 respectively; Mabeiri vs. Alade (1987) 4 SC 184 at 189; and Udeze vs. Chidebe (1990) 1 NWLR (PT.125) 141 at 147. He thus submitted that there are pieces of evidence on record which show that the parties are ad idem on the land in dispute. He also referred to Exhibit A tendered in evidence by the Appellant and the evidence from the Appellant which he argued supports the case of the Appellant that the land in dispute is called “Uhu Oji”. The Court was urged to resolve this Issue against the Appellant.

I need to emphasise that each case must be treated on its own merit and peculiar fact, not on technicalities. I have read and considered the pleadings and evidence led as contained in the records to ascertain whether the identity, location or extent of the land is at large or in doubt.

Noteworthy is the fact that both parties called the land “Uhu Orji or Oji” though the Respondents claim it is situate at Obiludi Obazu Mbieri in Mbaitoli Local Government Area while the Appellant claims it is situate between Owaelu and Owalla in the Owerri North Local Government Area of Imo State. See pages 57-58 of the Records. At page 8 lines 7 – 9, PW1 under Cross Examination also revealed thus “…part of this land in dispute lies within Mbaitoli Local Government Area while the other part is within Owerri North Local Government Area.” What then is very obvious is that the land in dispute is a boundary land between two (2) Local Government Areas and since it is a land whose title ranges from 100 to 150 years (as testified on page 10 by PW2), such boundary problem naturally must ensue since the land predates the creation of the state, much less the two (2) Local Government Areas.
Further on the identity or location of the land, the Records reveal more. PW1 (who is a boundary neighbor to the disputed land) testified as follows:

“I know the land in dispute between the Plaintiffs and Defendant Sunday Ezeji Okorie. We have boundary with them. My own land that bounds that of the Plaintiffs is also called Uhu Orji …”

Under Cross Examination, he revealed further that

“it is not correct to say that I do not know the land in dispute very well. I know the land very well. I am 73 years old. I can show you all the boundaries and features.”

See page 5 lines 10-13 and page 8 lines 4 – 7 respectively.

PW2 testified on the identity/location of the land on page 10 lines 1-3 as follows:

“I knew the Defendant in 1999 when he attempted entering our family land trying to establish beacons thereon. That land he tried to enter is same as the subject matter of this suit known as Uhu Orji…”

PW3 on page 15 lines 27-31 with precision and certainty described the land in dispute thus:

“the boundary marks between my own land and the land in dispute are Ukpe or Odunankiri tree or the Ovuvu or boundary mound. The features of this land in dispute include Ichekwuzu tree, Ububara, Nchichi tree, etc. The Iroko on the way to my land is dead; the one standing is on Owalla side of the land in dispute.”

DW2 in his evidence testified knowing the identity and location of the land in dispute on page 19 lines 5-6 that: “the name of the land in dispute is Uhu Orji. It is situate at Uhu Orji.” Similarly, DW3 and DW4 on page 20 lines 28 and page 22 lines 4 respectively called the land “Uhu Orji.” It is therefore the law that a party cannot blow hot and cold at the same time. See Akinonwo vs. Nsirim (2008) ALL FWLR (PT. 410) 610 Okon vs. Ubi (2006) ALL FWLR (PT. 328) page 717.

Facts and evidence from the Records abound that the parties did not dispute the location or identity of the land in dispute. At page 10 lines 25 – 28, the identity or location of the same land in dispute came to bear when the Respondents took out a legal action against the Appellant in 1999 while the Appellant on page 25 lines 9 – 16 admitted that the Respondent sued him after he brushed the land in 1999 to farm on it.

It is on Record (see pages 76 – 77 lines 26 – 32 and lines 1 – 4) that a visit to the locus in quo was carried out by the court on 13/8/2010. It is on evidence that the “1st Plaintiff identified the land in dispute to the Court as fifty plots of land under cross examination by counsel to the Defendant…” while “the Defendant identified the land in dispute to the court before the heavy rain prevented further inspection of the land in dispute.” It is therefore on Record that the visit to the locus in quo did not reveal two different lands in dispute. Thus, where there are two conflicting evidence (as in the present case) adduced by the parties, it is necessary to visit the locus in quo if such evidence can resolve the conflict in the evidence. Seismograph Services Nigeria Ltd vs. Akporovo (1974) 6 SC 119 at 128. On the general principles, purpose and importance of visit to locus in quo, see also Shekse vs. Plankshak (2008) ALL FWLR (PT. 439) 422 at 431.

It is my opinion that the visit to the locus in quo has left the trial court with no doubt as to the identity or location of the land in dispute and consequently resolved any conflict in evidence.

The cases of Dada vs. Dosunmu (supra), Otanma vs. Youdubagha (supra) and Alase vs. Bernice (supra) cited by the Appellant are distinguishable from the facts of the case at hand since the parties in the present case have copiously led facts and evidence of the identity or location of same piece of land. I am thus moved to side with the submission of the Respondents’ counsel that where parties, by the evidence adduced both oral and documentary, are ad idem on the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming. See Makanjuola vs. Balogun (1989) 3 NWLR (PT. 108) 192 at 204.

It has been held also that a court is not bound to accept the evidence of a surveyor on boundaries and description. It is sufficient if the parties know the land. Yusuff vs. Keinsi (2005) 13 NWLR (PT.943) 554. Thus, Exhibit E on page 97 of the Records cannot avail the Appellant. Besides, the Surveyor-General’s remark thus “However, you must note that Boundaries are for administrative purposes only” supports the case of the Respondents.

I must also comment that the Appellant’s submission that a Respondent who did not file a Cross Appeal must formulate his issues from the Appellant’s ground of appeal. Issue 2 was not formulated by the Respondent but recast based and within the Appellant’s grounds of appeal. In Osazuwa vs. Isibor (2004) 3 NWLR (PT.859) 16 at 32 – 33, it was held thus:
“A Respondent who did not file a cross appeal or Respondent’s notice, cannot raise issues for determination which are outside the grounds of appeal filed by the Appellant. He can only either adopt the issues as formulated by the Appellant based on the grounds of appeal before the court or recast the Appellant’s issues by giving them a slant favourable to his defence of the appeal without departing from the complaint in the grounds of appeal.”

I am of the considered and reasoned opinion that the identity or location of the land in dispute is not in doubt. I accordingly resolve Issue 2 against the Appellant.

ISSUE 3.
Whether the lower court was right when it held that the Appellant did not prove pledge and consequently entered judgment in favour of the Respondents.

In arguing this issue, learned counsel for the Appellant argued that the Appellant gave credible evidence of his great grandfather Anyanwuocha Okorie pledged the land in dispute to Obi (Chief Orduobi) and how he re-pledged it to Ezekiel Ijendu Azuonye in 1971 which he finally redeemed in 1996. He submitted that the Respondent never denied the Appellant’s story of pledge nor challenged the pledge transaction and that such evidence is deemed admitted. He relied on Umoru vs. Zibiri (2003) FWLR (PT 172) 1920 at 1923; Durosaro vs. Ayorinde (2005) FWLR (PT 260) 167 at 182 to further submit that the Appellant prove his pledge and that any minor inconsistency is not harmful to the case of the Appellant. C.T. Okeke, Esq. also relied on the cases Onisaodu vs. Elewuju (2006) ALL FWLR (PT.328) 676 at and Yakubu vs. Jauroyel (2005) ALL FWLR (PT 283) 184 to further submit that even if the Appellant did not prove pledge, considering the totality of the evidence before the Court, the Respondent will still not be entitled to judgment. The Court was urged to resolve this Issue in favour of the Appellant.

The Respondents on the other hand argued that, the lower Court was right in holding that the Appellant did not prove pledge. He argued that, for there to be a redemption, there must be a pledge and that it is the law that he who asserts, must prove what he or she asserts, relying on the cases of Okubule vs. Ayagbo 19 (1990) 4 NWLR (PT 147) 723 at 736, Onyemaechi vs. Nwaonamuo (1992) 9 NWLR (PT 265) 372. He also submitted that onus of proving pledge is on the party who alleges its existence and who could fail if no evidence of the pledge is led by either party. It is his view that there was no evidence of such time the alleged pledge by the Appellant took place and that the Appellant failed to prove the existence of the pledge transaction which he alleged as required by law. He relied on the case of Akuchie vs. Nwamadi (1992) 2 NWLR (PT 258) 214. He further argued that the Appellant also failed to call any member of the family from whom he alleged to have redeemed as a witness to testify to that fact, which counsel argued raised a presumption that if he had called them, their evidence would have been against him. It is also submitted that the Appellant had a cross action which he had a duty to prove but failed to do so. He relied on Oyegoke vs. Hamman (1990) 4 NWLR (PT 134) 197 at 208; and Biode Pharm. Ind. Vs. Adsell (Nig.) Ltd (1986) 5 NWLR (PT.46) 107. The Court was urged to resolve the issue against the Appellant.

The proof and issue of pledge was raised first by the Appellant himself as DW4 on page 22 lines 11 – 12 when he said that “The land in dispute was pledged to Obi by my late great grandfather.” The lines following reveal the process of the redemption of the said pledge. He also testified on page 23 line 1 of another pledge or re-pledge thus: “They did so, and the land was pledged to Ezekiel Ijendu Azuonye for the sum of Forty-five pounds (45) while the sum of Eight pounds (8) was refunded to Chief Orduobi.”

The Appellant’s counsel submits on page 11 of paragraph 3.47 of his brief that the issue of pledge is one of the Appellant’s numerous acts of possession over the land in dispute. As assertive and persuasive as it appears, it is bereft of facts and evidence. It is trite law that he who asserts must prove that those facts exist. Okubule vs. Oyagbola (1990) 4 NWLR (PT. 147) 723 at 736.

I have seen nowhere in the records where the pledge and the re-pledge on the disputed land was proved. Accordingly, the existence or non-existence of a pledge of land in dispute is a question of fact and as such the onus of proving such pledge is on the party who alleges its existence and who would fail if no evidence of the pledge is led by either party. See Onyemaechi vs. Nwaonamuo (1992) 9 NWLR (PT. 262) 372.

It is on record on page 22 lines 5 – 6 and page 23 lines 1 – 3 and page 23 lines 25 – 31 that though the year of the first pledge is unknown, it was redeemed in 1996 while the re-pledge or second pledge was in 1951 and redeemed in March, 1971. In between the periods of the two pledges till redemption in 1996, the Appellant could not prove any act of possession or overt acts by him or the pledgees when it has been established that the pledges were not between the Appellant and the Respondents. On the contrary, the Respondents proved several acts of possession from 1959, 1991, 1995, 1999, 2003 and 2007. See page 20 lines 28 – 31 and page 21 lines 1-4. One invariable rule of customary pledge that can be gathered from the reported cases is that the pledgee goes into possession and has the right to put the land to some productive use. See Ufomba vs. Ahuchaogu (2003) 4 SCNJ 231 at pages 249 – 250.
The Respondents also proved that they have enjoyed unchallenged long possession on the disputed land and were never displaced or disturbed as pledgees (if they were!) for a period of about 100 to 150 years. See page 20 lines 23-28.

As the cart cannot be put before the horse, the bogus redemption of an unproved pledge must crash like a pack of cards. Be that as it may, Exhibit A cannot be dumped on the Court without oral evidence in support thereof. See Egba vs. Apah (2005) 10 NWLR (PT.934) 164 and Alao vs. Akano (2005) 11 NWLR (PT. 955) 160 SC.

Pledge, as one of the Appellant’s numerous acts of possession over the disputed land has not been proved as held in Akuchie vs. Nwamadi (1992) 2 NWLR (PT. 258) 214 CA, and therefore fails. Issue 3 is resolved against the Appellant.

ISSUE 4
Whether the lower court was right when it held that the Respondents proved their case on the preponderance of evidence.

In arguing this issue, it is submitted by the Appellant that civil suits are decided on preponderance of evidence and the balance of probability, citing, Yakubu vs. Jauroeal (2005) All FWLR (PT. 283) 184 @ 206. He also submitted that from the totality of the case of the Appellant and the Respondents, the Respondents did not prove their case, but the Appellant did. The argument under Issue No. 1 was adopted.

Learned Counsel relied on Exhibit B, the Survey Plan tendered in evidence by virtue of Order X Rule 15(2) of the Customary Court Rules 1989, the case of Dada vs. Dosunmu (2006) All FWLR (PT. 343) 1605 @ 1651 to submit that the Appellant proved the location or identity of the land over which he claims declarations and injunction. He also relied on Exhibits A, B, D, and G to submit that considering the totality of the evidence on both sides, the Appellant proved his case on the preponderance of evidence, that the trial court did not consider the totality of the evidence led by both parties before it entered judgment in favour of the Respondents. He cited Dughum vs. Andzenge (2007) All FWLR (PT. 385) 499 @ 520; and Onisaodu vs. Elewuju (2006) All FWLR (PT. 328) 676 @ 683 to submit that it is the totality of the evidence that has to be evaluated and assessed together, as the court cannot pick and choose the evidence to be assessed. Counsel urged the court to hold that the Customary Court of Appeal erred in the application of customary law when it held that the Respondents proved their case on the preponderance of evidence and thus entered judgment in favour of the Respondents. The court is thus urged to set aside this judgment and resolved this issue in favour of the Appellant.

In his response, Ogbusu, Esq. for the Appellant conceded that civil cases are decided on a preponderance of evidence, citing, Buhari vs. INEC (2009) 167 LRCN 1, but argued that the Respondents proved their case on a preponderance of evidence, and that the methods of proving ownership of land are stated by the Supreme Court in a line of cases including; Idundun vs. Okumagha (1976) 9 – 10 SC 227 @ 246: Ayanwale vs. Atanda (1988) 1SC 1 @ 31; and Balogun vs. Akanji (1988) 2 SC (PT. 1) 199 @ 233. Counsel submitted that the Respondents led credible evidence of traditional history which the lower court believed. The Appellant led evidence of traditional history which counsel submitted was not believed by the lower Court. Learned Counsel referred to the evidence of PW2 to submit that the Respondents led evidence of long usage and unchallenged long possession. He relied on Adejumo vs. Ayantegbe (1989) 3 NWLR (PT. 110) 417 @ 435; and Ikuomola vs. Oniwaya (1990) 4 NWLR (PT. 146) 617 to further submit that the Respondents having shown one or more of the methods of establishing title to land, the court below was entitled to enter judgment for the Respondents. Learned Counsel also referred to Exhibit ‘E’ tendered by the Appellant to submit that it does not help the case of the Appellant and the so called Exhibit ‘B’ (Survey Plan) has not been attached. The arguments on issues 1 and 2 were adopted and the court was urged to resolve this Issue against the Appellant.

This is a consolidated suit initiated by both parties at the trial court seeking for a declaration of customary title over the land called Uhu Orji. Both parties led evidence consequent upon which judgment was entered. The Appellant led evidence of traditional history and unproved pledge while the Respondents led evidence on the traditional history with evidence of long possession and long usage of the land for farming purposes.

The argument of the Appellant is that the Respondents did not prove their case on the preponderance of evidence to warrant judgment in their favour. How then is a case proved by preponderance of evidence or balance of probability? The Black’s Law Dictionary, 8th Edition at page 1220, has proffered an answer that preponderance of evidence is the burden of proof in most civil trials, in which the jury is instructed to find for a party that, on the whole, has the stronger evidence, however slight the edge may be. Preponderance of evidence is the greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force, superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

It is on the preponderance of evidence led by the Respondents that precipitated judgment in their favour. The two parties led conflicting traditional history on the disputed land. However, the Respondents further proved long possession and long usage. The lower court in applying the rule in Kojo vs. Bonsie (1957) 1 WLR 1223, held that the Respondents have stronger evidence than the Appellant.

It is the law therefore and by virtue of Section 143 of the Evidence Act, 2011 (as amended) that whenever the question of ownership of anything is in issue, the person in possession is presumed to be the owner of the thing. The burden of proving otherwise is on the person that affirms that he is not the owner – Okhuarobo vs. Aigbe (2002) 9 NWLR (PT. 771) 29 SC. PW2 at page 10 lines 23 – 28 testified of being in unchallenged long possession of about 100 to 150 years until in 1999 when the Appellant attempted to trespass on the land. Further, the law is also settled that one of the ways of proving ownership of land is by acts of selling, leasing, renting out all or parts of the land or farming on it or a portion of it. See Idundu vs. Okumagba (1976) 9 – 10 SC 227 at 246. The Respondents through PW2 at page 20 lines 28 – 31 and page 21 lines 1-4 led evidence that he and his father started farming on the land about 1959 and on rotational intervals in 1991, 1995, 1999, 2003 and 2007. I therefore make bold to submit that sometimes, acts of long possession and enjoyment of land can be prima facie evidence of ownership or of Right of Occupancy of a particular piece of land in respect of which such acts are done. See Oyadare vs. Keji (2005) 7 NWLR (PT. 925) 571, SC. Maskala vs. Silli (2002) 13 NWLR (PT. 784) 216 SC.

On the other hand, the Appellant tried to prove pledge (though not even a means of proving title) as one of his acts of long possession but was not supported and substantiated by evidence. I adopt my earlier submission on this point.
Exhibits A-G tendered and admitted in evidence do not strengthen the case of the Appellant against the Respondents based on the balance of probability or preponderance of evidence. I will conclude therefore that in a land dispute, the court is not bound to accept the evidence of a surveyor on boundaries and description if it is sufficient that the parties know the land – Yusuff vs. Keinsi (2005) 13 NWLR (PT. 943) 554 CA. Also, a Survey Plan is not necessary and can be dispensed with where the parties are ad idem on the land in dispute. See C.G.C. (NIG) Ltd vs. Baba (2004) 10 NWLR (PT. 882) 658 CA, Makanjuola vs. Balogun (1989) 3 NWLR (PT. 108) 192 @ 212, Mabeiri vs. Alade (1987) 4 SC 184 at 189, Udeze vs. Chidebe (1990) 1 NWLR (PT. 125) 141 at 147.

What is more is also the testimony of a boundary neighbor to the land who has no doubt as to the identity and location of the land in dispute. At page 5 lines 11 – 14, PW1 testified as follows:

“we have boundary with them. My own land that bounds that of the Plaintiffs is called Uhu Orji together with the Plaintiff’s land. It is called Uhu Orji because Orji trees were there.”

On the preponderance of evidence or balance of probability, it is the totality of the evidence that has to be evaluated and assessed together. The court cannot pick and choose the evidence to be assessed. See Onisaodu vs. Elewuju (2006) ALL FWLR (PT. 328) 676 at 683.

From the foregoing, I hold that the Respondents have led a weightier, more assailing, superior, more cogent and stronger evidence than the Appellant, hence have proved their case on the balance of probability. Apposite is the case of Dughum vs. Andzenge (2007) ALL FWLR (PT.385) 499 at 520 cited by the Appellant’s counsel wherein it was held thus:

“whenever the court is faced with two competing claims over the same parcel of land, as in this case, the question arises as to which of the claimants is entitled to the declaration of title. The duty of the court in that circumstance was to weight on the imaginary scale and determine which evidence of the two claimants is weightier.”

I have found that from the totality of the evidence adduced, the Respondents have led a weightier cogent and stronger evidence than that of the Appellant and lower court was right to have entered judgment in favour of the Respondents.

I also resolve the issue against the Appellant.

Having resolved all the issues against the Appellant, the Appeal lacks merit and is hereby dismissed.

Judgment of the lower Court delivered on the 26th day of July, 2011 is hereby affirmed.

The Respondents are entitled to costs assessed at N30,000.00 only.

PRONOUNCEMENT: Honourable Justice John I. Okoro, J.C.A. has been elevated to the Supreme Court and cannot make contribution on this Judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) J.C.A. I am in total agreement with his reasoning and conclusions that this Appeal lacks merit and should be dismissed accordingly. The lower Court was indeed right to have entered judgment in favour of the Respondents. It is however trite that whenever a court is faced with two competing claims, the weightier evidence on the imaginary scale determines the mind of the court in arriving at a just decision.

Consequently, I too find that this Appeal lacks merit and is hereby dismissed. The judgment of the lower Court delivered on the 26th day of July, 2011 is accordingly affirmed. I too assess costs at N30,000 in favour of the Respondents.

Appearances

C. T. Okeke Esq.For Appellant

AND

Chris Ihentuge Esq.For Respondent