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Umeadi & Ors V. Chibunze & Anor (2020) LLJR-SC

Umeadi & Ors V. Chibunze & Anor (2020)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Anambra State, [Trial Court, for short], the respondents in this appeal, as plaintiffs, took out a Writ of Summons against the appellant herein, [as defendants]. They sought the following declaratory and injunctive reliefs:

(a) A declaration that the land in dispute is the exclusive property of the plaintiffs and are entitled to the customary right of occupancy in and over the said land called “Ishiekpe;”

(b) A mandatory injunctive order on the defendants to rebuild the damaged house of the first plaintiff which they destroyed;

(c) N10,000 (Ten Thousand Naira only) (sic) damages for trespass;

(d) A perpetual injunction to restrain the defendants by themselves, agents, privies, servants, workmen or whomsoever from further acts of waste and trespass on the land.

Upon the settlement and exchange of pleadings, trial commenced on October 19, 2005. Five witnesses testified on behalf of the plaintiffs. On the other hand, the defendants called four witnesses. The trial Court, in its judgment, found for the respondents, [plaintiffs, as they then were]. The defendants at the Trial Court, [appellants at the Lower Court], approached the Court of Appeal, Enugu Division, [Lower Court, for short], which Court, upon dismissing the defendants/appellants’ appeal, affirmed the Trial Court’s judgement.

They [the defendants/appellants], further, appealed to this Court entreating it to determine their two issues: issues which the respondents adopted in their brief. Before returning to these issues, a factual background of the case may not be out of place.

FACTUAL BACKGROUND

As per their Amended Statement of Claim, the respondents made the case that they are members of the Chibunze family in Egbeagu village, Amansea in Awka Local Government area of Anambra State of Nigeria. They and the appellants are of the Umuofuonye kindred in Egbeagu village, Amansea. They claimed to be the customary occupiers of the land in Amansea.

They made the case that the land in dispute was part of the family land of Umuofuonye kindred when in about 1940, one Emmanuel Uba, a member of Umuogbocha kindred in Egbeagu village, Amansea, trespassed into the Isi-ekpe land of Umuofuonye kindred.

Chibunze, the respondents’ father challenged Emmanuel Uba’s trespassory acts.

The Egbeagu village intervened in the dispute and invited both Umuogbocha and Umuofuony kindreds for arbitration. The Egbeagu village decided that Umuogbocha kindred should bring a juju and place it on the land in dispute for the Umuofuonye kindred to swear by removing same.

They further claimed that their father, Chibunze, without the support of Umuofuonye kindred – the other members of the kindred, because of the fear of being killed by the Ngene Olineru juju, stayed away, rose to the occasion. On account of this, their father, Chibunze, became the exclusive owner of the Isiekpe land. He, Chibunze, thereafter exercised diverse acts of possession on the land such as farming and planting agricultural palms thereon. Before his death, he, Chibunze, allotted portions of the land in dispute to his male children. In 2004, the appellants pulled down and burnt the bungalows of the first plaintiff, now deceased, bungalows allotted to him by their father, Chibunze. This prompted their action in Court.

The defendants/appellants, on their part, maintained that the land in dispute forms part of the entire land which was founded by Ofuonye, the great ancestor of the appellants and the respondents. The said Ofuonye, during his life time, gave birth to sons who, in turn, gave birth to the present kindred known as Umuofuonye in Egbeagu village of Amansea. The land in dispute, according to them, known as and called Isiekpe is the family land of Umuofuonye kindred.

Their further case was that sometime in 1940, a dispute arose between the Umuogbocha and the Umuofuonye families over the Isiekpe land. The Egbeagu village decided that Umuofuonye should take oath for Umuogbocha family. The appellants maintained that the other members of Umuofuonye family assisted the respondents’ father to remove the juju placed on the Isiekpe land by the Umuogbocha kindred. They averred that, after the oath-taking exercise, the respondents’ father never claimed exclusive ownership of the Isiekpe land as other members of the Umuofuonye family continued to farm on the land collectively unhindered.

As indicated earlier, following the affirmation of the trial Court’s judgement, they [the defendants/appellants], further, appealed to this Court entreating it to determine their two issues: issues which the respondents adopted in their brief. The two issues were couched thus:

  1. Whether the respondents established by cogent evidence the custom that a family member who defends family land by oath taking automatically became the exclusive owner of such family land so as to entitle them to the declaration they sought?
  2. Was the Court below right when it affirmed the decision of the Trial Court that burden of proof shifted to the appellants when the Respondent failed to discharge the initial burden of proof?

ARGUMENTS OF COUNSEL

ISSUE ONE

Whether the respondents established by cogent evidence the custom that a family member who defends family land by oath taking automatically became the exclusive owner of such family land so as to entitled them to the declaration they sought?

APPELLANT’S SUBMISSIONS

At the hearing of this appeal on December 16, 2019, Learned Counsel for the appellants, Ifeanyi Obiakor, adopted the appellants’ brief filed on August 24, 2015. He first referred to I. A. Umezulike’s book, A.B.C of Contemporary Land Law in Nigeria (sic) at pages 295 to 297.

In his submission, every member of the family has or enjoys the locus standi to institute an action in respect of any wrong or illegal dealings with the property. He maintained that any member of the family, no matter how insignificant he may be considered, can bring an action to protect family land. He went further to state that the respondent did not establish, by cogent evidence, the custom whereby they claimed that their father, Chibunze, by taking oath on behalf of Umuofonye family in respect of isi-ekpe land alone became automatically the exclusive owner of the dispute land.

He submitted that the respondents must therefore satisfy the Court that, upon the pleadings and evidence which they adduced, they are entitled to the declaration sought, Eya v Olopade [2011] 5 SCNJ 98; Odunukwe v Ofomata [2010] 12 SCNJ 516, 548-549. He referred to the Amended Statement of Claim, pages 38 – 41 of the record; paragraphs 5 to 6 of the Amended Statement of Claim, pages 38 – 46 of the record; the evidence in chief of PW1, Nathaniel Chibunze, pages 54 and pages 53 and 54 of the record. He equally drew attention to his statement under cross-examination, pages 60 and 62 of the record.

He further referred to the evidence of the PW2 at page 70 of the record and the answers in cross-examination at pages 72 to 73 of the record. He then submitted that apart from the complaint of the appellants that the respondent did not plead and establish by evidence the custom that a family land by oath taking, automatically becomes the exclusive owner of such family land and the evidence of P.W1, P.W2 and P.W.4 as to whether Chibunze Anumba took oath over the disputed land as his personal land or as to the land of Umuofuonye family was also contradictory.

He further submitted that on the issue of contradictory evidence of the respondents’ witnesses, that where two pieces of evidence one (evidence of a particular witness) of which affirms the contrary or opposite of what the other witnesses says, they are inconsistent in nature, one contradicts the other and the Court cannot pick and choose which one to credit and which to discredit. The Court must therefore reject the two pieces of contradictory evidence as unreliable and of no probative value, Asariyu v State [1987] 4 NWLR (pt. 67); 709; Okonkwo v State [1998] 8 NWLR (Pt 561) 210.

He therefore submitted that the Lower Court erred in law when it affirmed the decision of the trial Court which was based on these contradictory evidences of PW1; PW2 and PW4 as to the original ownership of the disputed land as to whether the respondent’s father, Chibunze, took the oath in contention on his personal capacity or on behalf of Umuofuonye Family. He submitted that parties are bound by their pleadings and evidence. As such, evidence not pleaded goes to no issue, Ojiogu v. Ojiogu [2010] 3 SCNJ 418; Nwokorobia v. Nwogu [2009] 5 SCNJ 218.

He canvassed the view that, from the averments in Paragraph 5 of the Amended Statement of Claim, it was manifestly clear that the findings of the Lower Courts were not based on the custom that a person who defends the family property by oath taking becomes exclusive owner of such family land which is a corporate entity. He submitted that the Lower Courts misconceived the difference between where two persons agreed to take oath to resolve ownership of a personal property and where a family member defends family land by oath taking and which makes him the exclusive owner of the land. This misconception, in his view, led to miscarriage of justice in the appellants’ case.

He contended that this custom of Amansea alleged by the respondents that, once a person single-handedly defends family property by oath taking, automatically becomes the exclusive owner of that family land was not strictly proved by their evidence. He cited Orlu v. Gogo-Abite [2010] 1 SCNJ 322, 333; Odunukwe v. Ofomata [2010] 12 SCNJ 548; Onyenge v. Ebere [2004] 13 NWLR (pt 889) 20; Ume v. Okoronkwo [1996] 12 SCNJ 404. He urged the Court to resolve this issue in favor of the appellants.

RESPONDENT’S CONTENTION

See also  Anowele And G. Nwafor V The State (1965) LLJR-SC

On his part, Fidelis Anyanegbu, learned counsel for the respondents, adopted the respondent’s brief deemed, properly, filed on June 6, 2018. He contended that, where parties who believe in the efficacy of a juju resort to oath- taking to settle a dispute, they are bound by the result, Onyenge and Ors v. Ebere[2004] 13 NWLR (pt. 889) 20, 40 – 41.

He also pointed out that the averments and evidence respecting the land in dispute on the traditional history of the land in dispute from both parties in this appeal prior to 1940 no longer applied in this appeal. The applicable law is the customary law arbitration, one of methods known to customary law establishing the truth of matter, Ume v Okoronkwo [1996] 10 NWLR (pt. 477) 133.

He submitted that the rule of the custom of oath taking in Amansea Town, according to the evidence of the respondent, is that, if a person removed a juju placed on a disputed land and survives after a period of twelve days, he will barb his hair. If he survives after twenty one days, he will go to the market to celebrate his survival and thereafter he will be declared to be the owner of the land in dispute. Thus, if one man takes oath and he survives, exclusive ownership of the property goes to him.

He pointed out that the respondent has established by cogent evidence the custom that a family member who defends family land by oath taking automatically becomes the exclusive owner of such family land so as to entitle the respondents to the declaration they sought.

RESOLUTION OF THE ISSUE

My Lords, the address of the appellants’ counsel is a vain attempt at the obfuscation of the very straight forward issues which the Lower Courts brilliantly articulated and resolved. In this judgement therefore, I have a duty to contextualize the submissions within the narrow framework of the questions which the lower courts dealt with.

On the first issue, [Whether the respondents established by cogent evidence the custom that a family member who defends family land by oath taking automatically became the exclusive owner of such family land so as to entitled them to the declaration they sought?], the learned trial Judge consistent with the prescription in Mogaji v Odofin [1975] 4 SC 91, constructed the legendary imaginary scale, [pages 128 – 129 of the record] where he weighed the evidence of the plaintiffs and defendants.

He concluded thus:

It is my view that the defendants failed to prove the existence of the alleged custom (sic, in) relation to oath- taking. The evidence of the defendants and their witnesses was only a sweeping assertion that such a custom in fact exists. This, in my opinion, falls short of what is required to prove a disputed custom. It is my view that the defendants who alleged the existence of the disputed custom ought to have gone further to show instances where the alleged custom had been applied either in Amansea or Ibo (sic) land in general. The evidence of the PW2 which I had earlier accepted as true that only Chibunze removed the juju placed on the land in dispute supports the plaintiffs’ case that such custom does not exist.

[pages 129 – 130 of the record; italics supplied for emphasis]

At page 129 of the record, the learned trial Judge had made it clear that in:

…the case in hand, there is no evidence that the alleged custom of the people of Amansea or the Igbos (sic) in general relating to oath taking has been judicially noticed by Courts. It is therefore for the defendants to prove by evidence that in Amansea and in Igbo land in general the practice that a person taking an oath in a land dispute must be supported has been applied for a long period of time that it has now obtained the force of law. [Italics supplied for emphasis] As noted earlier, the Trial Court concluded that “the evidence of the defendants and their witnesses was only a sweeping assertion that such a custom in fact exists page 129 of the record. On appeal to the Court of Appeal, Enugu Division, the Court observed quite rightly, as follows:

Customary law rule being a question of fact, it varies from place to place excepting of course where that custom or practice has assumed the notoriety of such dimension that the Courts would take judicial notice of it…It is for this reason that the cases cited by counsel to the appellant on this point … have to be applied with caution. We need to look inwards to the facts as dictated by circumstances in each case.

The peculiar fact and circumstance in this current case on appeal is the practice by which a person or persons who successfully removes juju planted on a disputed land automatically becomes the owner of that land in dispute if he survived the oath he took.

The Court identified the narrow and peculiar question that fell for determination. According to the Court: ‘the question now is whether the respondents succeeded in proving that their father took the oath and survived the oath alone to become the exclusive owner of the property in dispute.’

[pages 194 – 195 of the record; italics supplied for emphasis]

Like the Trial Court, the Lower Court, in the context of the Mogaji v Odofin (supra) prescription, placed the testimonies of the parties on the imaginary scale of justice. Listen to this fascinating conclusion sequel to the Lower Court’s admirable concurrent findings of facts:

The respondents and witnesses called by them i.e. first respondent, PW2, PW3 and PW4 gave evidence at the trial in support of the assertion or claim that the first respondent’s father was, who single-handedly took the oath without the support of his brethren who deserted him but he lived to survive the customary period of oath taking and thereafter became the exclusive owner of the land in dispute according to native law and custom. PW2 was not just a witness, he gave an eye witness account of the proceedings during the oath taking which took place in 1940. The family of Umuogbocha, to which he belong, (sic), had planted the juju and he said so but it was first respondent’s father, Chibunze, who resisted the claim of Umuogbocha family to the land in dispute to put his on the line. He survived it. Evidence of this witness was not contradicted by the appellants. The Trial Court believed the respondents. This is what it takes to prove the custom and practices as pleaded by them. [page 197 of the record; italics supplied for emphasis]

Again, like the Trial Court, the Lower Court found that:

By dint of those averments, [paragraphs 9, 10 and 11 of the Statement of Defence], especially, facts pleaded under paragraph 11 of the Statement of Defence that, by the native law and custom of Amansea and Igbo land in general, one man does not swear to juju or oath alone in land matters. The appellants have by that put up a rule of customary practice and are bound to prove that fact or custom being the party who assert the existence of that custom or practice. In their bid to prove that custom, DW1, DW3 and DW5 all gave evidence among others to suggest that Chibunze, plaintiffs’ father was not alone on the occasion of the oath taking rather he was supported by Nweke Nwatu Irueto, Aguma Umeadi among others. What is noticeable in the evidence of DW1, DW3 and DW5 on this point at issue is the fact that, themselves were told of the story that Chibunze was assisted by other persons in the family during the proceedings of oath taking. In other words, evidence from defence witnesses, particularly, DW1, DW3 and DW5 was not first hand information or evidence as can be classified as direct evidence as to dislodge the eye witness account of the event as narrated by PW2.

Evidence of tradition and traditional practices is hearsay upon hearsay which is admissible evidence by virtue of Section 66 of the Evidence Act, 2011, but the fact is that such evidence is still hearsay. When therefore such hearsay evidence is placed side by side with the evidence of the person who saw the event take place, who saw the outcome of that event, the latter piece of evidence should be preferred.

[Pages 198 – 199 of the record; italics supplied for emphasis]

In the concurrent findings of the Lower Court, the question of the supersession of hearsay evidence by direct evidence was not the only ground for preferring the plaintiffs/respondents’ side of the story to that of the defendants/appellants. The Lower Court cited further instances as follows:

The Trial Court in any case in the course of the review of evidence of witnesses had cause to question the credibility and evidence of defence witnesses, in particular, evidence of DQ1 when the Court observed that he had an axe to grind with the first respondent such that his evidence cannot be taken as the whole truth or as proving the existence of custom they allege hence the defence also failed to discharge the onus cast upon them to prove their assertion. The Trial Court also in its findings observed that no any instance of the custom alleged by the appellants was cited either from Amansea or from Igbo land, generally. It is not correct, therefore, as submitted by learned appellants’ counsel that it was the trial Court that shifted the onus of proof of the existence of a particular custom to the defendants to prove. The Trial Court did not. Rather, the law did, but the appellants as defendants failed to discharge the thrust on them, lheanacho v. Chigere [2004] 10 NWLR (pt 1001) 130, 160. [pages 199 – 200 of the record] My Lords, before proceeding further on this point, I think it would be fair to acknowledge the academic protestations against the, somewhat, discordant judicial views on the criteria for validating an award under customary arbitration. These protestations are growing by the day: G. Ezejiofor, The Law of Arbitration in Nigeria (Ibadan: Longman Nigeria Plc, 1997) 22-29; A. I. Okekeifere, “The Recent Odyssey of Customary Law Arbitration and Conciliation in Nigeria’s Apex Court,” in Abia State University Law Journal, (1998) Vol 5 No 2; C. E. Ibe, “Legal Effect of Submission to Arbitration under Customary Law: A Critique of the case of Duruaku Eke and Ors v Udeozor Okwaranya and Ors”in UNIZIK Law Journal, Vol 4, No 1, 295-303.

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Others include: O. D. Amucheazi, “Validity of Customary Law Arbitration in Nigeria: A Review of Egesimba v Onuzurike”, in Nigerian Bar Journal, Vol 1, No 4, 2003, 515-524; O. K. Edu, “The Effect of Customary Arbitral Awards on Substantive Litigation: Setting Matters Straight”, in (2004) Vol 25, JPPL 43-53; N. M. Umenweke, “The Ingredients of a Binding Customary Arbitration Revisited: A Critique of the case of Egesimba v Onuzurike [2002] 15 NWLR (pt 791) 466”, in UNIZIK Law Journal Vol 5, No 1, 2005, 130-139; E. S. Nwauche, “The Features of Customary Law Arbitration: Eberev Oyenge”in Abia State University Law Journal Vol 7, 2000, 45-47; C. A. Ogbuabor, “Recurrent Issues in the validity of Customary Arbitration in Nigeria,” in O. D.Amucheazi and C. A. Ogbuabor (eds), (supra) 89-115. ​

These protestations notwithstanding, the truth is that, as Tobi, JSC, explained in Onyenge and Ors v Loveday Ebere and & Ors [2004] 6 SCNJ 126:

…where parties decide to be bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of title to land no longer apply. In such situation, the proof of ownership or title to land will be based on the rules set by traditional arbitration resulting in oath-taking. In arbitration under customary law, the applicable law is customary law and not the common law principle with their characteristic certainty and ossification…. [Italics supplied for emphasis]

Indeed, it was as if Tobi, JSC, was addressing the appellants in the instant appeal when in Onyenge and Ors v Loveday Ebere and Ors (supra), His Lordship held that:

It was wrong for the appellants who were instrumental to the exercise of the oath-taking to resile from it. Such a position is not available to them in law. In view of the fact that the respondents survived after taking oath, the parties were not bound by the niceties of the law as suggested by counsel for the appellants that possession is nine-tenths of ownership. That may well be so under common law but certainly not the position under the customary law under which oath was taken.

From the above principle, it is clear that the parties in this instant matter decided to be bound by traditional arbitration resulting in oath taking; thus, common law principles in respect of proof of title to land no longer applied in this instant case. In the instant matter, the proof of ownership or title to land will be based on the rules set by traditional arbitration resulting in oath-taking, Onyenge and Ors v Loveday Ebere and Ors (supra). I find no merit in the misleading submissions of counsel for the appellants. I have no hesitation in resolving this issue in favour of the respondents. Like the Lower Courts, I find that the respondents established, by cogent evidence, the custom that a family member who defends family land by oath taking, automatically, becomes the exclusive owner of such family land. They (the respondents) are entitled to the declaration they sought.

In a word, it would seem obvious that the appellants’ counsel was either completely oblivious of, or that he totally underrated what a distinguished scholar called the prerequisites of customary arbitration, G. Ezejiofor, “The Prerequisites of Customary Arbitration,” (1992-1993) Vol 16, Journal of Private and Property Law, 32. Let me explain. Learned counsel assumed that pleading what, in his view, evidenced customary arbitration, sufficed to warrant the Lower Court’s favourable finding in that regard. Now, notwithstanding the apocryphal view in Okpuruwu v Okpokam (1988) 4 NWLR (pt 90) 554, 573 that “there is no concept known as customary or native arbitration in our jurisprudence,” there are a plethora of superior authorities to the effect that if customary arbitration was pleaded and proved as such, it was binding on the parties and capable of constituting estoppel, Nruamah and Ors v. Ebuzoeme and Ors [2013] All FWLR (pt 681) 1426, 1445-1446; Agala and Ors v. Okusin and ors (2010) LPELR -221 (SC) 42; Okoye and Anor v. Obiaso and ors (2010) LPELR-2507 (SC) 33; Okereke and Anor v. Nwankwo and Anor(2003) LPELR-2445 (SC) 13; Egesimba v Onuzurike (2002) LPELR-1043 (SC) 24; Odonigi v. Oyeleke(2001) LPELR-2230 (SC) 19; Eke and Ors v Okwaranyia and Ors (2001) LPELR- 1074 (SC) 29; Uzoewulu v Ezeaka [2000] 14 NWLR (pt 688) 679; Obioha v Akukwe [2000] 5 NWLR (pt 658) 699; Agu v. Ikewibe [1991] 3 NWLR (pt 180) 385; Awosile v Sotunbo (1992) LPELR- 658 (SC) 29, Paragraph E; Ohiaeri v Akabeze [1992] 2 NWLR (Pt 221) 1; Ume v. Okoronkwo [1996] 10 NWLR (pt 477) 133; Akpan v. Otong [1996] 10 NWLR (pt 476) 108. Igwego v Ezeugo [1992] 6 NWLR (pt 249) 561; Anyabunsi v Ugwunze (1995) LPELR-503 (SC) 23; Oparaji and Ors v Ohanu and Ors (1999) LPELR-2747(SC) 18; Okala v. Udah [2019] 9 NWLR (pt 1678) 562.

I resolve this issue against the appellants and in favour of the respondents.

ISSUE TWO

Was the Court below right when it affirmed the decision of the Trial Court that the burden of proof shifted to the appellants when the respondents failed to discharge the initial burden of proof?

APPELLANT’S SUBMISSIONS

With regard to this issue, learned counsel for the appellants submitted that it is incontestable that it is a party that will lose if no evidence is adduced by both parties that owes the burden of proof. He cited Section 133(1) of the Evidence Act, 2011 as amended; Oyovbiare v Omamurhomu [2001] FWLR (pt 68) 129, 129.

He drew the attention of the Court to the respondents’ pleading which admitted that the land in dispute was part of the communal land of Umuofuonye kindred in Egbeagu Village.

He also submitted that the respondent failed to discharge the burden of proof that a person who defends family land single – handedly by oath taking becomes the exclusive owner of the said land.

He further maintained that the onus of proof will not shift to the appellants when the respondents, who asserted that a family member who defends family land alone by oath – taking, automatically becomes the exclusive owner of such family land, have not established such custom. He also contended that the respondents, having failed to discharge that primary burden of proof on them, the burden of proof cannot shift to the appellants.

He urged this Honorable Court to resolve this issue in favour of the appellants.

RESPONDENT’S CONTENTION

On his part, learned counsel for the respondents pointed out that the respondents pleaded the customary arbitration of oath-taking in paragraphs 5 and 6 of the Amended Statement of Claim. They went about proving the existence of the said custom. This included the fact that one man can take oath in Amansea. They proved the custom, he pointed out, that if one man takes oath and survives the oath-taking, he becomes the owner of the property in respect of which the oath was taken. If members of his family support him, the land will be family property, [pages 39; 53 -54; 69-70; 76-77; 82-83 of the record.

He pointed out that the appellants, on the other hand, in paragraph 11 of the Statement of Defence pleaded that, under native law and custom of Amansea town and Igbo Land in general, one man does not swear to a juju placed on the land in dispute, page 11 of the record.

He submitted that the above averment is an assertion which the appellants were bound to prove since he who asserts must prove. Simply put, the burden of proving any fact is on the party who asserts the affirmative of an issue. The burden of proving the alleged custom of the people of Amansea that one man cannot remove a juju placed on the land in dispute was on the appellants who alleged the existence of the said custom. He drew the Court’s attention to Section 16 (1) and (2) of the Evidence Act, 2011; Iheanacho v Chigere [2004] 20 NWLR (pt.901) 130, 160.

Learned counsel for the respondents agreed with the Lower Courts that, in the instant case, there was no evidence that the alleged custom of the people of Amansea and the Igbo in general relating to oath-taking has been judicially noticed by our Courts.

He therefore maintained that was the duty of the appellants to prove by evidence that in Amansea in particular, and Igbo land in general, the practice that a person taking an oath in land must be supported, has been applied for long period of time that it has now obtained the force law.

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He urged the Court to resolve this issue in favour of the respondents.

RESOLUTION OF THE ISSUE

My Lords, at the risk of repetition, I am under obligation to return to the brilliant resolution of this issue by the Lower Courts. As shown above, the learned trial Judge consistent with the prescription in Mogaji v. Odofin [1975] 4 SC 91, constructed the legendary imaginary scale, [pages 128 – 129 of the record] where he weighed the evidence of the plaintiffs and defendants.

He concluded thus:

It is my view that the defendants failed to prove the existence of the alleged custom (sic, in) relation to oath- taking. The evidence of the defendants and their witnesses was only a sweeping assertion that such a custom in fact exists. This, in my opinion, falls short of what is required to prove a disputed custom. It is my view that the defendants who alleged the existence of the disputed custom ought to have gone further to show instances where the alleged custom had been applied either in Amansea or Ibo (sic) land in general. The evidence of the PW2 which I had earlier accepted as true that only Chibunze removed the juju placed on the land in dispute supports the plaintiffs’ case that such custom does not exist. [pages 129 – 130 of the record; italics supplied for emphasis]

At page 129 of the record, the learned trial Judge had made it clear that in:

…the case in hand, there is no evidence that the alleged custom of the people of Amansea or the Igbos (sic) in general relating to oath taking has been judicially noticed by Courts. It is therefore for the defendants to prove by evidence that in Amansea and in Igbo land in general, the practice that a person taking an oath in a land dispute must be supported has been applied for a long period of time that it has now obtained the force of law. [Italics supplied for emphasis]

As noted earlier, the Trial Court concluded that “the evidence of the defendants and their witnesses was only a sweeping assertion that such a custom in fact exists,” page 129 of the record. On appeal to the Court of Appeal, Enugu Division, the Court observed quite rightly as follows:

Customary law rule being a question of fact, it varies from place to place excepting of course where that custom or practice has assumed the notoriety of such dimension that the Courts would take judicial notice of it… It is for this reason that the cases cited by counsel to the appellant on this point … have to be applied with caution. We need to look inwards to the facts as dictated by circumstances in each case.

The peculiar fact and circumstance in this current case on appeal is the practice by which a person or persons who successfully removes juju planted on a disputed land automatically becomes the owner of that land in dispute if he survived the oath he took.

The Court identified the narrow and peculiar question that fell for determination. According to the Court: ‘the question now is whether the respondents succeeded in proving that their father took the oath and survived the oath alone to become the exclusive owner of the property in dispute.’ [pages 194 – 195 of the record; italics supplied for emphasis]

Like the Trial Court, the Lower Court, in the context of the Mogaji v Odofin (supra) prescription, placed the testimonies of the parties on the imaginary scale of justice.

Listen to this fascinating conclusion sequel to the Lower Court’s admirable concurrent findings of facts:

The respondents and witnesses called by them i.e. first respondent, PW2, PW3 and PW4 gave evidence at the trial in support of the assertion or claim that the first respondent’s father was, who singlehandedly took the oath without the support of his brethren who deserted him but he lived to survive the customary period of oath taking and thereafter became the exclusive owner of the land in dispute according to native law and custom. PW2 was not just a witness, he gave an eye witness account of the proceedings during the oath taking which took place in 1940. The family of Umuogbocha, to which he belong, (sic), had planted the juju and he said so but it was first respondent’s father, Chibunze, who resisted the claim of Umuogbocha family to the land in dispute to put his on the line. He survived it. Evidence of this witness was not contradicted by the appellants. The Trial Court believed the respondents. This is what it takes to prove the custom and practices as pleaded by them.

[page 197 of the record; italics supplied for emphasis]

Again, like the Trial Court, the Lower Court found that:

By dint of those averments, [paragraphs 9, 10 and 11 of the Statement of Defence], especially, facts pleaded under Paragraph 11 of the Statement of Defence that, by the native law and custom of Amansea and Igbo land in general, one man does not swear to juju or oath alone in land matters. The appellants have by that put up a rule of customary practice and are bound to prove that fact or custom being the party who assert the existence of that custom or practice. In their bid to prove that custom, DW1, DW3 and DW5 all gave evidence among others to suggest that Chibunze, plaintiffs’ father was not alone on the occasion of the oath taking rather he was supported by Nweke Nwatu Irueto, Aguma Umeadi among others. What is noticeable in the evidence of DW1, DWW3 and DW5 on this point at issue is the fact that, themselves were told of the story that Chibunze was assisted by other persons in the family during the proceedings of oath taking. In other words, evidence from defence witnesses, particularly, DW1, DW3 and DW5 was not first hand information or evidence as can be classified as direct evidence as to dislodge the eye witness account of the event as narrated by PW2.

Evidence of tradition and traditional practices is hearsay upon hearsay which is admissible evidence by virtue of Section 66 of the Evidence Act, 2011, but the fact is that such evidence is still hearsay. When therefore such hearsay evidence is placed side by side with the evidence of the person who saw the event take place, who saw the outcome of that event, the latter piece of evidence should be preferred. [Pages 198 – 199 of the record; italics supplied for emphasis] ​In the concurrent findings of the Lower Court, the question of the supersession of hearsay evidence by direct evidence was not the only ground for preferring the plaintiffs/respondents’ side of the story to that of the defendants/appellants. The Lower Court cited further instances as follows:

The Trial Court in any case in the course of the review of evidence of witnesses had cause to question the credibility and evidence of defence witnesses, in particular, evidence of DQ1 when the Court observed that he had an axe to grind with the first respondent such that his evidence cannot be taken as the whole truth or as proving the existence of custom they allege hence the defence also failed to discharge the onus cast upon them to prove their assertion. The Trial Court also in its findings observed that no any instance of the custom alleged by the appellants was cited either from Amansea or from Igbo land, generally. It is not correct, therefore, as submitted by learned appellants’ counsel that it was the Trial Court that shifted the onus of proof of the existence of a particular custom to the defendants to prove. The Trial Court did not. Rather, the law did, but the appellants as defendants failed to discharge the thrust on them, lheanacho v. Chigere [2004] 10 NWLR (pt 1001) 130, 160. [pages 199 – 200 of the record]

Thus, in this instant matter, there is no evidence that the alleged custom of the people of Amansea and Igbos in general relating to oath-taking has been judicially noticed by our Courts. In effect, the burden of proof was on the appellants to prove by evidence that in Amansea, in particular, and Igbo land, in general, that practice of oath taking in land dispute must be supported had been applied for long period of time that is has now obtained the force of law.

Customary law is defined as an unwritten and it depends on what the appropriate authority believes or is persuaded to believe by evidence as customary law, Omaye v Omagu [2008] 7 NWLR (pt 1087) 447; that is customary law is a question of fact to be proved by evidence. However, in all, from the eloquent submissions of the respondent’s counsel, submissions anchored on the admitted evidence and laid down principle by this Court in Onyenge and Ors v Ebere and Ors [2004] 6 SCNJ 126, I have no hesitation in affirming the concurrent decisions of the Lower Courts. This appeal is devoid of any redeeming feature. Appeal is hereby dismissed. I affirm the concurrent findings and decisions of the Lower Courts.


SC.395/2015

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