Aaron Okarika & Ors. V. Mr. Isaiah Samuel & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the judgment of Olukole, J. sitting at the High Court of Justice, Port Harcourt, Rivers State of Nigeria on the 12th day of May, 1994.

At the court below, parties initiated two suits which were, by oral application, consolidated for hearing. The respondents herein, as plaintiffs at the trial court, filed suit No. AHC/12/82 against the appellants herein, as defendants at the trial court and claimed in paragraph 21 of their statement of claim at page 52 of the transcript record of appeal as follows:

“(a) Declaration to a customary right of occupancy over all that piece or parcel of land known as and called ‘Mbide land’ situate at Oboburu town in ALGA.

(b) N5,000.00 general damages for trespass.

(c) A perpetual injunction restraining the defendants, their agents or servants from entering the land or doing any manner of work whatsoever on the land.”

The appellants herein later initiated suit No. AHC/17/82 as plaintiffs against the respondents as defendants. In paragraph 13 of their statement of claim at page 78 of the record of appeal, they claimed against the respondents herein as follows:-

“(a) Declaration of a customary right of occupancy over all that piece or parcel of land called ‘Ibewa-Uzor’ situate at Oboburu town and particularly verged red in plaintiffs’ plan.

(b) N5,000.00 general damages for trespass.

(c) A perpetual injunction restraining the defendants, their agents or servants from committing further acts of trespass on the land.”

Upon due completion of pleadings in both suits, the learned trial Judge consolidated them for hearing in one fell swoop. Each side banked on traditional evidence as well as acts of ownership and/or possession. There is the talk of arbitration by having recourse to their local ‘juju’. At the hearing, the plans filed by both sides were admitted by consent. I mention it here since the appellants made an issue out of it.

After the completion of evidence as adduced by the parties and their witnesses, counsel on both sides addressed the court at considerable lengths. The learned trial Judge properly reviewed the evidence garnered by him. After applying the law to the facts to the best of his ability on relevant issues canvassed before him, he entered judgment in favour of the respondents as per their claims in suit No. AHC/12/82 and dismissed the appellants’ claims in suit No. AHC/17/82.

The appellants felt unhappy with the judgment of the learned trial Judge. Their notice of appeal was accompanied by a total of nine (9) grounds of appeal.

The appellants formulated six issues for determination on pages 2-3 of their brief of argument. They read as follows:-

“(1) Whether the learned trial Judge was right in not making specific findings on the issue of arbitration by swearing on oath to juju in his judgment?.

(2) Whether the learned trial Judge was right in admitting in evidence the parties’ survey plans (albeit by consent) and relying on them in his judgment and if he was wrong, did the respondents establish with certainty the land claimed by them?

(3) Whether the learned trial Judge was right in not applying S. 45 (now S. 46) of Evidence Act in favour of the appellants and whether he properly evaluated exhibits F, G, H, J, K and L vis-a.-vis the evidence of P.W.1 and P.W.2?.

(4) Whether the traditional history of the respondents was positive and cogent enough to entitle them to judgment?.

(5) Whether the learned trial Judge was right in dismissing appellants’ cross-action?.

(6) Whether the learned trial Judge was right in holding that there was no land known as Ibewa-Uzor land?.”

The respondents felt that they couched four issues for determination of the appeal. The 4th issue, to my mind, appears suspect as it sounds more like preliminary objection to grounds of appeal. Their four issues read as follows:-

“1. Whether the failure of the learned trial Judge in making specific findings on the issue of oath arbitration by juju is fatal and if yes, whether such failure occasioned any miscarriage of justice?.

2. Whether the learned trial Judge was right when he held that the plaintiffs now respondents have discharged the onus of proving with certainty the areas which their claim relates by holding that the Akabuka – Oboburu road is boundary between the parties?.
3. Whether the learned trial Judge was right in dismissing the cross-action of the appellants having regard to all the circumstances?.
4. Whether grounds 3.4, 3.6, 3.7, 3.8 and 3.9 are not issues of fact or mixed law and facts requiring leave and if they are, are not incompetent without leave obtained.”

Arguing issue No.1, it was contended on behalf of the appellants that since both parties relied on native arbitration by swearing on oath to juju, they were bound by the result or outcome of the same. He referred to the case of Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290. Learned counsel submitted that the learned trial Judge was wrong when he held that the juju arbitration was inconclusive. He felt that such a finding was perverse.

On behalf of the respondents, it was submitted that though the parties relied on juju arbitration, the learned trial Judge was right, by not making any findings on the issue because evidence on it was very inconclusive. Learned counsel pointed it out that counsel for the appellants in his final address at the trial court at page 124 of the record of appeal urged that the settlement by various jujus be disregarded and cited Iwuchukwu v. Anyanwu & Anor. (1993) 8 NWLR (Pt. 311) 307 at 308.

In John Onyenge & Ors. v. Chief Loveday Ebere & Ors. (2004) 12 NWLR (Pt. 889) 20 at page 40, the apex court maintained 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. Refer to Ume v. Okoronkwo (1996) 10 NWLR (Pt. 477) 133. And where two parties to a dispute voluntarily agree to the resolution of their dispute by oath-taking in accordance with customary law, neither of them can thereafter resile from the exercise of oath-taking. See Oparaji v. Ohanu (supra); Oline v. Obodo (1958) SCNLR 298; Njoku v. Ekeocha (1972) (Pt. 1) ECSLR 199; Inyang v. Essien (1957) SCNLR 112.

If native people believe in their custom, however mundane such may be, no one can stop them. However, in my humble view, for such a customary law to be tenable, it must be conclusively proved.

In this matter, the parties carried themselves before Alakiki juju where four members from the appellants’ side subscribed to oath that if they were not the owners of Mbide land there would be casualty within one year. Within one year, one of the oath takers by name Hart Eleba died by accident. The appellants contended that all the oath takers must die within one year. The respondents contended that it was sufficient that one of the swearers died. The custodian of the juju was not called to clear the air. The evidence is not here and not there. Same remains inconclusive. It is not surprising that even appellants’ counsel in his final address at the lower court urged that settlement by various jujus be disregarded. I cannot surmise how any court can safely make a firm finding of fact in favour of any of the parties based on the inconclusive evidence before the trial court. I agree with the learned trial Judge that the attempt to settle the rift by various jujus was futile. I decline to make any finding in favour of any of the parties herein; appellants inclusive. I resolve this issue against the appellants.

Arguing issue No.2, appellants’ counsel submitted that the respondents had the duty to prove with absolute certainty the land claimed by them. He referred to the cases of Adeyori v. Adeniran (2001) FWLR (Pt. 76) 869, (2001) 10 NWLR (Pt. 270) 151; Kyari v. Alkali (2001) FWLR (Pt. 60) 1481, (2001) 11 NWLR (Pt. 724) 412.

Learned counsel observed that the survey plans prepared by the parties were admitted in evidence by consent and not through the respective surveyors who prepared them. He felt that such a step by the court was wrong and referred to section 91(1)(i)(b); (2) and (4) of the Evidence Act. He cited the cases of Oloruntoki v. Johnson (1990) 6 NWLR (Pt. 158) 600 at 606; Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157.

Learned counsel for the appellants felt that in the absence of a survey plan, the respondents failed to establish with certainty, the area of land claimed by them. He felt that there was no positive evidence before the court by which a surveyor could go to the land to make a survey plan. He cited the case of Bassil v. Fajebe (2001) FWLR (Pt. 51) 1914, (2001) 11NWLR (Pt. 725) 592. He urged that the issue be resolved in favour of the appellants.

Learned counsel for the respondents observed that as pleaded, it was established by the evidence of their witnesses as well as the evidence of D.W.2 and D.W.3 that Oboburu/Akabuka road is the boundary between the parties. It was further observed that though section 91 of the Evidence Act requires the maker of a document to tender same, such is with exceptions. He submitted that exception to the rule that maker must be called does not exclude survey plan.

Learned counsel for the respondents submitted that the appellants are estopped from raising the issue of admissibility of the survey plans tendered by consent of the parties without carring the surveyors and should not blow hot and cold at the same time. Learned counsel further submitted that once the procedure that was adopted was consented by all the parties, it is too late for the appellants to be heard on appeal to say that the procedure worked injustice on them because they lost at the trial court. He referred to the cases of Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282 at 296 – 297; Akhiwu v. The Principal Lotteries Officer, Midwest State & Ors. (1972) 1 All NLR (Pt. 1) 229 at 234.

Learned counsel maintained that the respondents proved with certainty the land over which judgment was given in their favour through the evidence of P.W.1. He strongly felt that the learned trial Judge was right in holding that the respondents proved with certainty the land claimed by them.

At each turn of events, the appellants desire to embark upon ploys which are strange to surmise and difficult to comprehend. The appellants must be reminded that administration of justice is a serious matter. It is not a game of hide and seek or a fencing game where a party seeks to outsmart the other through unwholesome designs. The parties, by mutual consent, tendered their survey plans as exhibits ‘D’ and ‘E’ respectively. Indeed, exhibit ‘D’ was tendered by consent on 3-12-92 which is close to eleven years after suit was initiated. To my mind, such was done to avoid any further undue delay and falls within the exception provided by section 91(2) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. The appellants impugned their own plan also admitted as exhibit ‘E’ by consent and by so doing cast aspersion on their own claim as well. The procedure adopted in admitting the survey plans as exhibits was consented to by the parties. Ordinarily, the appellants should not be heard to back out or renege because they lost in the High Court. See Olubode v. Salami (supra).

Most importantly, even without exhibit ‘D’, I firmly form the view that the respondents, through viva-voce evidence of P.W.1 proved with certainty the area of land over which judgment was entered in their favour and as claimed by them. The evidence of P.W.1 is that Akabuka/Oboduru road is on the North beginning from Ekpere Igburu Creek, extending towards Ogboebita land in the west and bounded by Umuakpa family land on the west proper; on the south west by the land of Umuobuzor Oloriachi; Obarama people’s land on the south and south east. The evidence of D.W.2 and D.W.3 under cross-examination clearly strengthened the claim of the respondents that Oboburu/Akabuka road is the boundary between the respondents’ Mbide land to the south and appellants’ Obe land to the north. The appellants; have no business contesting over any portion of land south of Oboburu/ Akabuka road. This issue is resolved against the appellants.

On issue No.3, appellants’ counsel submitted that the learned trial Judge was in error in failing to apply section 46 of the Evidence Act in favour of the appellants who tendered exhibits F, G, H, J and K as evidence of grants made by them. According to counsel, the grants relate to land in Ibewauzor south of Oboburu/ Akabuka road. Learned counsel referred to the case of Mobil Producing (Nig.) Unltd. v. Monokpo (No.2) (2001) FWLR (Pt. 78) 1210, (2001) 18 NWLR (Pt. 744) 212.

Learned counsel for the respondents maintained that acts of ownership relating to sale, apportionment, donations are stated to be on Obe land not in dispute. He asserted that the various acts are not shown to be on the land now in dispute coined as Ibewuzor land by the appellants as plaintiffs in AHC/17/82. Evidence of D.W.3 did not refer to land of the appellants as Ibewuzor. D.W.3 referred to their land as Obe land. So also exhibit ‘A’ made at the earliest opportunity. The alleged grantees of land were not called.

Learned counsel asserted that all the papers tendered in proof of donations, allotments or sales were not tendered as title documents and therefore lacked evidential value in proof of ownership of land. He observed that Philip Umejuru categorically denied that appellants ever gave him his present abode.

Let me reiterate the point here that D.W.3, an old man of 82 years said the boundary between Mbide land and Obe land is Oboburu/ Akabuka road. Mbide land is at the south of the road while Obe land is at the north of the road. There was initially no land known as Ibewuzor. Acts of ownership done on Obe land have no relevance with the newly coined Ibewuzor land which the appeHants want to paint as falling south of Oboburu/Akabuka road.

The appellants merely tendered exhibits F, G, H, J and K in support of alleged grants of land by them. None of the grantees was ‘called to testify. Even then, those exhibits were not documents of title. They were not tendered as receipts. The exhibits cannot be cross-examined. The appellants have the onus to prove grants, leases, sales or donations. The appellants have no document to show in respect of alleged grant to Philip Umejuru who categorically denied that the appellants made a grant of his abode to him.

With the above position of things, I am at one with the learned trial Judge that section 46 of the Evidence Act cannot be applied in favour of the appellants. I cannot fault the findings of fact made by the learned trial Judge as same is not perverse. See Woluchem v. Gudi (1981) 5 SC 291. I resolve this issue against the appellants as well.

On issue No.4, appellants’ counsel felt that the respondents did not lead cogent and positive evidence of their traditional history. He felt that material facts in respect of the history were not pleaded. He referred to the cases of Achiakpa v.Nduka (2001) 14 NWLR (Pt. 734) 623; (2001) FWLR (Pt. 71) 1084 at p. 1829, Akinloye v. Eyiyola (1968) NMLR 92; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417;Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 at p. 399.

Learned counsel further submitted that the root of title to the land must be proved first before reliance can be placed on acts of ownership. He cited Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631; Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.

On issue No.4, respondents’ learned counsel submitted that the traditional history put up by the respondents remain sacrosanct and proved.

Whenever title to land is in dispute, the Supreme Court has given five ways of proving same. Refer to ldundun v. Okumagba & Ors. (1976) 10 NSCC 445 at 453; (1976) 9 – 10 S.C. 227; Piaro v. Tenalo (1976) 12 SC 31, Fasoro v. Beyioku (supra); Alade v. Awo (1975) 4 SC 215 at 228.

The five ways may be restated thus:-

1. Proof by traditional evidence.
2. Production of document of title duly authenticated.
3. Acts of ownership by a person such as selling or leasing or renting out all or part of the land.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land.

Whenever a plaintiff relied on traditional history to buttress his claim for a declaration of title to a piece of land, he must adequately and sufficiently plead his root of title and adduce cogent evidence in support of same. Indeed, it has been stated that such a plaintiff must plead and prove:-

1. The founder of the land.
2. The mode of founding or discovery of the land; and
3. The history of the devolution of the said land from the founder to the present claimants.

The above can be found in the decisions in Piaro v. Tenalo (supra); Ohiaeri v. Akabeze (1992) 2 N.W.L.R. (Pt. 221) 1;Anyanwu v. Mbara (supra); Mogaji v. Cadbury (1985) 2 N.W.L.R. (Pt. 7) 393.

The traditional history of ownership of the land in dispute, as pleaded by the respondents, can be found in paragraph 18 of the statement of claim as contained on pages 50-51 of the record of appeal. In line with their pleadings, PW.1 gave a vivid history of how the land in dispute was initially settled by their fore-father. At page 96 lines 26-31 to page 97 lines 1-5, PW.1, in line with their pleadings, testified that Ele is the founder. Ele is the son of Ukwu who migrated from Benin and settled at Oboburu. Ukwu had three sons – Akpa, Ele and Ohi. Ele begat Umuele, Akpa begat Umuakpa and Ohi begat Umuozo. Before Ukwu died, he divided his land among his three sons. Each retained his own. This accounts for why the respondents’ Mbide land as passed to them is bounded by Umuakpa, Umuozo lands. Without any atom of hesitation, I form the considered view that the respondents in line with their pleadings as adequately pleaded, adduced cogent evidence in support of same. In brief, this issue is also resolved against the appellants.

On issue No.5, learned counsel for the appellants submitted that the learned trial Judge was not right in dismissing the appellants’ cross-action. He submitted that the acts of the appellants on the land in dispute were not acts of trespass but acts of ownership stretching over a long period. He opined that Philip Umejuru was given land as a son-in-law on the southern part of Oboburu/Akabuka road while appellants’ land is mostly on the upper northern side.

Learned counsel for the respondents submitted that the learned trial Judge was right in dismissing the cross-action of the appellants who presented their case as if they had no onus to discharge in the consolidated matters. He submitted that the appellants had a duty to prove their case. He referred to the case of Kodilinye v. Odu 2 W.A.C.A. 336.

Let me say it here that it appears to me that the appellants are not sincere with their claim. They lay claim to land south of Oboburul Akabuka road but D.W.3 in his evidence which strengthened the evidence of the respondents said Oboburu/Akabuka road divides the land of the two parties. Respondents’ Mbide land is to the south while appellants’ Obe land is to the north. With the evidence of D.W.3, the old man who would not lie, it is an eye wash for the appellants to still lay claim to a piece of land in the south of Oboburu/Akabuka road. ‘Ibewuzor land’ coined by the appellants is a figment of their own imagination. They have no land south of Oboburu/Akabuka road and no reasonable court would grant their prayers. This is because declaratory orders are based on discretion which must be exercised judicially and judiciously as well. A Judge must be circumspect, wary and discrete. Refer to Eronini v. Iheuko (1989) 3 SC (Pt. 1) 30, (1989) 2 NWLR (Pt. 101) 46.

The above is not the end of the matter. The appellants failed to prove the boundaries of their land. They failed to prove with certainty the land claimed by them. Refer to Epi v. Aigbedion (1972) 10 S.C. 53 at p. 59. I also resolve this issue against the appellants.

On issue No.6, learned counsel for the appellants felt that Ibewa-Uzor land shown in exhibits D & E existed.

It has been pointed out earlier on that the name ‘Ibewa-Uzor’ was coined for the purpose of this case. No reference to this new name was made in exhibit ‘A’. Appellants’ counsel referred to land therein as Obe land. D.W.2 and D.W.3 called the land Obe land separated from Mbide land of the respondents in the south by Oboburu/Akabuka road. The learned trial Judge was right in finding that the newly coined Ibewa-Uzor is a figment of the appellants’ imagination. I resolve this issue against the appellants as well. On the whole, when the evidence of both parties is put on an imaginary scale, that of the respondents clearly outweighs that of the appellants who in most instances engaged in a game of hide and seek. The appellants have nothing to show in support of their claim. Refer to Mogaji v. Odofin (1978) 4 S.C. 91 at p. 93; Bello v. Eweka (1981) 2 S.C. 101 at p. 108.

I come to the final conclusion that the appeal is devoid of any atom of merit. The appeal is accordingly dismissed as the judgment of the learned trial Judge is affirmed. The respondents are entitled to costs assessed at N7,500.00 against the appellants.

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Other Citations: (2004)LCN/1637(CA)