SUIT NO HAM/34/2003- PAUL ANYANWU & ORS V SAMUEL ELUWA & ORS – delivered on 1ST DAY OF MARCH 2021 by HON. JUSTICE I.M.NJAKA- valid Customary Arbitration- five ingredients that must be pleaded and proved- oath taking under customary arbitration- Parties to a customary arbitration may resile from arbitration- refusal to provide a juju and or swear to a juju- The party claiming title to land is not bound to plead and prove more than one root of title to succeed- customary ownership of land- traditional evidence- contradictions in the evidence of a defendant- no burden of proof on the Defendant- pledge transaction- Burial of a relative in a portion of land may be evidence of ownership- boundary evidence

IN THE HIGH COURT OF IMO STATE

IN THE MBAISE JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE 

ON THE 1^st DAY OF MARCH 2021

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO HAM/34/2003

BETWEEN

PAUL ANYANWU & ORS                                                                                PLAINTIFFS

AND

SAMUEL ELUWA & ORS                                                                                DEFENDANTS

JUDGMENT

The Plaintiffs by their Amended Statement of Claim filed on 21^st day of October, 2016, claimed against the Defendants as follows:

• A DECLARATION that the Plaintiffs are entitled to a grant of the Customary right of occupancy over and in respect of all that piece or parcel of land known as and called “OKPULO AMA” situate at Ama Umuoshi (Umuoshi Village Square) Ndigbo Uvuru in Aboh Mbaise L.G.A.
• The Sum OF FIFTY THOUSAND NAIRA N5O,000.00) being general damages for acts of trespass by the Defendants on the aforesaid land.
• AN ORDER OF PERPETUAL INJUNCTION TO RESTRAINING the Defendants, their servants, agents, heirs and privies from further acts of trespass on the aforesaid land.

The Plaintiffs, in support of their case called two (2) witnesses while the Defendants called four (4) witnesses in support of their defence.

The Plaintiffs through PW1 tendered the following:

1. The Survey Plan dated 3^rd, July 2003 is admitted in evidence and marked exhibit CWA.
2. Resolution passed on the 31/12/1983 towards land dispute between Ndi ole family and Anyanwu family, all in Umuoshi Ndi-Igbo Ovuru is hereby admitted in evidence and marked exhibit CWB.
3. Letter dated 22/3/2002 by his HRH Eze R.U Mbalewe is admitted in evidence and marked exhibit CWC.
4. The letter dated 17/4/2002 from his HRH Eze R.U Mbalewe is admitted and marked exhibit CWD.
5. The judgment dated 15/3/2002 in Suit No: UAC/34/1999 is admitted and marked exhibit CWE
6. The letter from the forestry department in Abo Mbaise dated 11/10/02 is hereby admitted and marked exhibit CWF

The Defendants through the DW3 tendered the following:

7. Survey plan No NCC/DO5/2011 dated 25-10-2011 is admitted and marked exhibit “G”.
8. Agreement of 22-6-83 is admitted and marked Exhibit “H”
9. The receipt dated 26-6-89 and 27-9-89 respectively are admitted and marked exhibit “J” and “J1”
10. Judgment of Amala People between the parties dated 17-10-2002. Admitted and marked exhibit “K”

And under cross examination

11. Judgment dated 13-5-2002 is admitted and marked Exhibit “L” (under cross examination)

PLAINTIFFS’ CASE

The Plaintiffs’ case is that title and/or ownership of the land in dispute, “Okpulo Ama”, is vested in them via inheritance from their forebears and possession is equally resident with them. The Defendants’ ancestors originally hailed from Umuidiri, Obowo in Obowo LGA, Imo State before they migrated and settled in Umuoshi. The Defendants were strangers in Umuoshi and had no blood tie to Oshi, the founder of Umuoshi. They are only entitled to land outrightly given to them by the people of Umuoshi upon their settlement thereof. The land in dispute is clearly not one of such lands given to them. It is further the case of the Plaintiffs that the land dispute has spanned years and was subject to several arbitrations Aladinma Ndigbo Uvuru, Umuoshi Youths progressive Union (Exhibit “CWB”), Eze R. U. Mbalewe and his cabinet (Exhibit CWE), e.t.c and all ended in favour of the Plaintiffs. The climax of the arbitrations was the swearing of oath and survival of same after one year in line with the native law and custom of Ndigbo Uvuru and Igbo land in general, which is an affirmation that the person who took the oath is the bonafide owner of the property over which he took the oath. The plaintiffs’ father, Onwunmelu Anyanwu, took the oath as procured by the Defendants’ relations and survived same, while the Defendants relations died shortly thereafter. It is also the case of the Plaintiffs that they have been in possession of the land in dispute and buried some of their relatives (Eweka Onyenguzoro and Ada Aliriele) there. The agricultural trees which the Defendants purportedly planted in assertion of their baseless claims was planted during the pendency of this suit.

The Plaintiffs through their counsel filed a written address. The plaintiffs submitted for determination the following issues:

(a) Having regard to the Plaintiffs unimpeached evidence of traditional history, are the Plaintiffs not entitled to their claims?

(b) Between the Plaintiffs and the Defendants, who sufficiently identified the land in dispute, having regard to the two opposing dispute Survey Plans?

(c) Whether the Defendants can resile or refuse to be bound by several arbitrations between the parties?

Arguing issues 1 and 2 together the plaintiff submitted that it is now settled that there are five (5) ways to which ownership/title to land may be proved: (a) By traditional history/evidence. (b) By production documents of title which must be duly authenticated. (c) By acts of ownership extending over a sufficient length of time. (d) By acts of long possession and enjoyment of land. (e) By proof of possession of connected or adjacent land rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute. See IDUNDUN VS. OKUMAGBA (1976) 10 NSCC pg 445 at 453; SOGUNRO VS. YEKU (2017) 9 NWLR (PT 1570) pg 290 at 329 – 330; FALEYE VS. DADA (2016) 15 NWLR (PT 1534) pg 80 at 104 – 105.It suffices if only one of the ways is proved. See ONOVO VS. MBA (2014) 14 NWLR (PT 1427) pg 391 at 420 – 421.

It is submitted that the Plaintiffs founded their claim to the land in dispute on traditional history. The Plaintiffs’ traditional history can be found at paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Amended Statement of Claim and paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the PW1 ‘s sworn deposition on oath. A party who relies on traditional evidence must plead and prove such facts as: (1) Who founded the Land; (2) How they founded the land; and (3) The particulars of the intervening owners through whom they claim. See ELEGUSHI VS. OSENI (2005) 14 NWLR (PT 945) pg 348 at 366 – 367. Before the court can rely on evidence of traditional history, there must be no missing link, no conflicts, it must be conclusive and cogent. See ELEGUSHI VS. OSENI (Supra). The evidence of the Plaintiffs via PW1 is most cogent, conclusive, positive, unimpeached, devoid of any conflicts and there are no missing links and we urge the court to so hold. Even upon being cross examined, the evidence of traditional history of the Plaintiffs remained unshaken, unchallenged, uncontroverted and uncontradicted.

It is submitted that where both parties claim ownership by traditional history as in the instant case, it is the duty of the Honourable Court to weigh their evidence on an imaginary scale and determine which of the two sides is weightier. See ONOVO VS. MBA (Supra).  Referred to the evidence of the Defendants as can be seen at paragraphs 8 and 13 of the Amended Statement of Defence; paragraphs 14, 18 and 19 of the DW3 sworn deposition on oath filed on 14/12/2011.

According to the counsel, a thorough analysis of the Defendants’ traditional history is most inconclusive and full of conflicts with several missing links/gaps especially with the introduction of the alleged pledges to one Enere Babaa, Enere Uguibe, Emenogu, Agomuo, Njoku Dick, Isaiah, Akobundu, Festus Gabriel, Umunakwe, Anoku, Peter Reuben, etc. See paragraphs 23, 24, 25 & 26 of DW4’s deposition on oath and paragraphs 15 and 19 of the Amended Statement of Defence. When this pledge took place, for how much, witnesses and redemption thereof were not stated. The traditional evidence of the Plaintiffs is more direct and weightier than that of the Defendants. A careful and thorough reading of paragraphs 8 of the Amended Statement of Defence and paragraphs 5, 6 & 7 of the so-called “Reply to the Amended Statement of Claim” will show the inconsistencies and contradictions in the traditional history of the Defendants. The Defendants on one hand stated that Oshi deforested a vast land called Okpulo Ama and allocated same to each of his “four” sons (Okorocha, Babaa, Ikeoka and Ntole) a portion thereof; on the other hand, they stated that Okorocha (whom they admitted is Plaintiffs’ forebear – see paragraph 8 of the Amended Statement of Defence) never had a share in Okpulo Ama land. These inconsistencies and contradictions cannot withstand nor challenge the direct, consistent and uncontradictory traditional history of the Plaintiffs and we urge the court to so hold.

It is submitted that in an action for declaration title to land, the land to which the declaration relates must be ascertained with certainty and a plan prepared by a surveyor is sufficient. The party relying on same must link its contents to his ownership and lead credible evidence linking the features depicted therein to show his ownership of the land. See AWODI VS. AJAGBE (2015) 3 NWLR (PT 1447) pg 578 at 611; FASHINA VS. OGUNKAYODE (2005) 12 NWLR (PT 938) pg 147 at 172.

In the instant case, the Plaintiffs not only filed a dispute survey plan (Exh. (CWA) to show with certainty the area/identity of the land in dispute, they also led credible evidence even linking its contents to their claim. This evidence though highly challenged upon cross examination, could “not in any way material be controverted nor contradicted. The evidence of the boundary neighbours as stated at paragraph 5 of the Amended Statement of Claim was re-affirmed at cross examination of the PW1. In particular, both the Plaintiffs, dispute plan and their evidence show that the land in dispute has a road traversing or passing through it. That road is the road leading from Ndigbo Uvuru to Mbutu which divided the land in dispute into two unequal portions.

According to the Counsel, the Defendants, on the other hand, filed and tendered an Amended Survey Plan (Exhibit G) to show also the land in dispute. A careful study of Exhibit G will show that it failed to depict or that road dividing or traversing the land into two unequal portions (the large and small portions) and also, the road leading from Ndigbo Uvuru to Mbutu which DW3 admitted upon being cross examined exists. We refer to the DW3’s evidence on 5/2/2018. In addition to that My Lord, the Defendants also in their spurious defence, brought DW4 who testified that he is from Umunedie, Ndigbo Uvuru in Aboh Mbaise LGA and also a boundary neighbor to the land in dispute. Interestingly my Lord, neither Exhibit G nor the Defendant’s pleadings mentioned him as a boundary neighbor to the land in dispute. Referred to Exhibit “G” and to paragraph 6 of the Amended Statement of Defence. The court is urged to hold that the Plaintiffs have successfully and sufficiently identified the land as well as led credible evidence linking them to the ownership thereof to warrant the grant of their claim. It is a settled law that where two parties claim possession, the law ascribes possession to one who can show a better title. See THOMPSON VS. AROWOLO (2003) 7NWLR (PT 818) pg 163 at 208.

According to the counsel, in the instant case as has already been depicted, the Plaintiffs have shown and proved that they have a better title than the Defendants as they have been in possession of the land in dispute. See paragraph 32 of the Amended Statement of Claim. This was not denied by the Defendants. It is the Plaintiff’s evidence that they have relations buried on the land in dispute; they challenged the Defendants when they discovered that they sold a portion of the land in dispute and also, the agricultural trees allegedly planted by the Defendants was done during the pendency of this suit. Referred to paragraphs 37 and 46 of Amended Statement of Claim and also, cross examination of DW3 on 05/02/2018.

On issue c, it is submitted that it is a trite principle of our law that the conditions precedent to the bindingness of a customary arbitration are as follows: (a) There must have been a voluntary submission of the dispute by the parties to the non-judicial body. (b) The parties must have agreed either expressly or by implication to, be bound by decision. (c) That the arbitrators reached a decision and published same. See OKEREKE VS. NWANKWO (2003) NWLR (PT 826) 592, 599 – 600.

On the voluntary submission the counsel referred to the following:-(a) Report by George Ezelu and Eluwanya Anyanwu (Defendant’s family) to Umuoshi people (1^st arbitration). (b) Defendants sued the Plaintiffs before the Aladinma Ndigbo Uvuru (2nd arbitration). (c) The Defendants sued the Plaintiffs before Umuoshi Youths Progressive Union (3rd arbitration). (d) The Defendants sued the Plaintiffs before Eze R. U. Mbalewe (4^th arbitration). Referred to paragraphs 27, 38, 31, 39, 40, 41, 42 and 43 of the Amended Statement of Claim and paragraphs 27, 28, 31, 39, 40, 41, 42 and 43 of PW1 ‘s deposition. All these are clear pointers that the Defendants willingly initiated and submitted to the arbitration proceedings which all ended in favour of the Plaintiffs. In other words, the four (4) arbitrations were all at the instance of the Defendants. AGU VS. IKEWIBE (1991) 3 NWLR (PT 180) at 389; OKEREKE VS. NWANKWO (Supra)

On the parties agreeing to be bound, according to the counsel, that must be inferred or implied from the conduct of the parties. In the instant case, it was the Defendants who sued the Plaintiffs before the various arbitration panel; importantly, before the Aladinma Ndigbo Uvuru which panel decided that the Plaintiff’s father, Onwunmelu Anyanwu takes an oath in line with their native law and custom and where he survives the oath after one

(1) year, he becomes entitled to the land or property over which he took the oath. It is therefore submitted that the production of the following juju, namely: “Agbara Ukwu Lorji” and “Ala ” Umuoshi” for the Plaintiffs’ father to swear is sufficient to prove that the parties agreed to be bound by the decision of the panel. Referred to paragraphs 28, 29, 30 and 31 of the Amended Statement of Claim and paragraphs 28, 29, 30 and 31 of PW1 ‘s sworn deposition on oath. UMEH VS. OKPALAIMA (2016) ALL FWLR (PT 865) 112 at 124; ONYENGE VS. EBERE (2004) ALL FWLR (PT 219) 981.

On the condition that the arbitration panel reached a decision and published same, we refer the Honourable Court to Exhibits “CWB”, “CWC”, CWD” and “CWE”. The Umuoshi people, Aladinma Ndigbo Uvuru, Umuoshi Youths Progressive Union; Eze R. U. Mbalewe and his cabinet all reached a decision and same was published. According to the counsel, it must be pointed out that on the arbitration of Eze R. U. Mbalewe, the Defendants admitted that they did not produce the juju for the re-taking of oath as pronounced by the Eze, they also admitted Exhibit “CWO” was given to them by the Eze but as an afterthought, stated that the juju was not produced on grounds that they lost a senior member of their family, hence it was “morally and customarily wrong” to produce the juju. Notwithstanding this “morally and customarily wrong” stand, they quickly ran to Alaogbaga and shrine at Chokoneze, Ezinihitte Mbaise LGA, where they sued the Plaintiffs again. This defence does not hold water, hence it must be discountenanced.

It is submitted that once a decision is reached by an arbitration body that decision henceforth, creates an estoppel and none of the parties is free to resile from same. See EHOCHE VS. IJEGWA (2003) FWLR (PT 154) 587 at 596.

The court is urged to discountenance Exhibit “K”, the purported findings of the Amala people as the Plaintiffs in evidence testified that such never happened. The Defendants corroborated this evidence when they, via DW3 upon being cross examined admitted that the Eze is the apex arbitral body. Referred to the evidence of DW3 on 04/06/2018. The Amala purported finding could not have taken place as the report to them (Amala) was allegedly made after the decision of the Eze and the court is urged to so hold. Consequently, the Court is urged to uphold the various decisions of the several arbitral panels as tendered by the Plaintiffs as they are most probable, weightier and binding on the parties. Moreover, the Defendants did not succeed in impeaching evidence of these arbitration decisions during cross-examination of PW1.

DEFENDANTS’ CASE

Defendants also hinged their defence on traditional history tracing their genealogy from Oshi, the founder of Umuoshi in Ndigbo Uvuru through to Ntole, the progenitor of their own kindred and whose name the kindred bears, to the present day generation of the people of Ntole. The name Ntole is a nick name given to the man called Mbaka, the last of the four sons of Oshi, who when he married a second wife at a tender age, his father in his excitement exclaimed “I tole n’lu ndom abuo?” which interprets as “have you grown old or rich enough to marry two wives?” The portion of the Ishi Ogwugwu Ntole land which the defendants allowed UMUMGBADA and UMUBABA to live on, which has since been returned to the defendants.  Portion of the land in dispute where the Defendants planted an Oil Palm Plantation since 1989. Portion of the land in dispute which the Defendants sold to Nze Dikeocha. The Defendants said that they did not migrate from the places mentioned by the plaintiffs. They described the evidence of their migration as given by the Plaintiffs as tortoise story.

The defence counsel presented the following issues for determination:

1. Whether the plaintiffs, relying solely on Traditional History, have discharged the onus of proof to entitle them to a declaration of title to the land in dispute.
2. Whether the traditional history expounded and relied upon by the defendants is not preferable to that of the plaintiffs.
3. Assuming that the different chronicles of traditional history of the parties to this suit are apparently believable how would the Honourable court resolve the issue of Ownership/title, in the circumstance?

The counsel argued issues (a) and (b) together. It is submitted that it is trite law that proof in civil cases is based on preponderance of evidence. The burden of proof rests squarely on the plaintiff. The plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s case except where such defendant has a counter-claim or a cross-action (as is not the case here) or where the weakness of the defendant’s case expressly supports the claim of the plaintiff. See the case of KODILINYE VS ODU (1935)2 WACA, 336. Generally, the courts do not grant declarations on default of evidence or admission by the adverse party. The party who seeks the declaratory relief is expected to lead credible, relevant and consistent evidence in support of the declaration before the court can grant it. See the cases of: (a) Udeze Vs Chidebe (1990) 1 NWLR (Pt 125) (b) Adigun Vs AG of Oyo State (1987) 1 NWLR (Pt 53) 678

According to counsel, the pertinent question here therefore is whether the plaintiffs have led credible, relevant and consistent evidence to support the declaration they seek. Relied on IDUNDUN VS OKUMAGBA (1976)1 NMLR, 20. (1976) 9 – 10 SC 227 on the ways of proving title to a land

According to the counsel, the plaintiff relied heavily on traditional history in their attempt to prove their case. This is highlighted by the line of evidence which has anchorage in inheritance, traditional history, custom and succession. But a critical look at the evidence of traditional history led by the plaintiffs before the court shows that it is insufficient, shallow unclear, inconsistent and contradictory. By a long list of cases, the law is settled that for a plaintiff to succeed in proof of his ownership based on traditional history, the person must prove by cogent, relevant, reliable and consistent evidence, the following: (a) The founder of the land, (b) How the land was founded, (c) What the founder was doing with the land, (d) How the land has devolved to him in an UNBROKEN CHAIN of succession from the founder.

It is submitted that the stronghold of the case of the plaintiffs is found in the testimonies of PW1 and PW2 and Exhibits A, B, C, D, E and F. It is submitted that the attempt made by the plaintiffs has fallen far short of the requirement and standard set by law. In so far as the parties all claim to have descend from Oshi who also founded the land in dispute by deforestation the plaintiffs are

not absolved, as claimant of a declaratory order from (b) How the land was founded (c) What the founder was doing with the land (d) How the land has devolved to him in an UNBROKEN CHAIN of succession from the founder.

It is therefore submitted that the requisite material pieces of evidence which the plaintiffs put forth in a case of declaration of title to land by traditional history and evidence of custom are either conspicuously lacking or are controverted or utterly unbelievable. It is further submitted that no case for declaration of title can succeed without material evidence. Relied on NWOKIDU VS OKANU (2010) 1 KLR (pt 276) 323, per Adekeye JSC, UKAEGBU Vs NWOLOLO (2009) 1 KLR (pt 262) 163, Ogbuagu JSC

It is further submitted that failure to graphically provide such evidence of traditional history in a claim for declaration of title to land will ultimately lead the court to dismiss the case. Relied on NKADU Vs OBIANO (1997) 5 NWLR (Pt 503) P 31, Per Onu JSC

It is submitted that the failure of Plaintiffs to prove their root of title by traditional evidence is also fatal to any other mode of proof they may resort to, even though the plaintiffs here have not attempted to resort to any other means of proof except to cling to a purported arbitration and its award, which the defendants of course, stoutly denied. This is because the law is settled that failure to prove ownership by traditional history is fatal to a subsequent proof of ownership by any acts of possession or long possession. Relied on GBADAMOSI Vs OKEGE (2011) 4 WRN p.16, Kekere Ekun, citing OWHONDA Vs EKPECHI (2003) 49 WRN, 1,

It is submitted that as for the case presented by Defendants, the reverse is the case. They have painstakingly, through the evidence of DW3, given an impeccable unchallenged and balanced testimony and their genealogy through Oshi to Ntole to the present day generation who constitute the defendants on record and the persons they represent. This they have done even though there is no duty placed on them by law so to do.

According to the counsel, the defendants gave evidence of user from time immemorial and evidence of recent acts of ownership and possession. See Exhibits G and H and paragraphs 20, 21,22,23, 24, 25, 26, 27, 29, 30, 31 of the written deposition of DW3 – Mr. Elijah Eluwa as adopted. DW3 gave evidence of acts of long undisturbed possession from their ancestor Ntole to the present day generation. He gave evidence of the sale of part of the land to Nze Dikeocha and residential grant made by his ancestors to the families Umumgbada and Umubaba in the areas verged violet and red respectively in Exhibit G. This was not controverted by the plaintiffs. There is also evidence within Exhibit G that while the defendants own adjoining pieces of land or contiguous pieces of land owned by them. There is no such evidence in favour of the plaintiffs.

According to the Counsel, DW4 is a boundary neighbour whose evidence is generally unchallenged under cross examination. Relying heavily on all the authorities cited above i.e a. KODILINYE Vs ODU (1935) 2 WACA, 336 etc and the analysis and submissions made above, the Court is urged to resolve issues A and B in favour of the defendants and hold that the plaintiffs have not discharged the onus of proof placed on them by law but to hold that the defendants on the contrary have presented a more probable and believable case in defence. Plaintiffs have woefully failed to discharge the burden of proof placed on them by law. The said failure cannot even be salvaged by reliance on their contradictory, conflicting and unreliable story of the oath taking.

On issue C it is submitted that in the most unlikely event of the Court being in doubt, after evaluation of evidence as to whose case is better, the is urged to resort to evidence of recent acts of long possession given by the Defendants through DW3 who tendered Exhibits G, H, J, K, K1 and L. The defendants gave evidence of user from time immemorial and evidence of recent acts of ownership and possession. See Exhibits G and H, and paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31 of the written deposition of DW3 – Mr. Elijah Eluwa as adopted. DW3 gave evidence of acts of long undisturbed possession from their ancestor Ntole to the present day generation. He gave evidence of the sale of part of the land to Nze Dikeocha and residential grant made by his ancestors to the families Umumgbada and Umubaba in the areas verged violet and red respectively in Exhibit G. This was not controverted by the plaintiffs. There is also evidence within Exhibit G that while the defendants own adjoining pieces of land or contiguous pieces of land owned by them. There is no such evidence in favour of the plaintiffs.

The counsel urged the court to apply the test as enunciated by the Court KOJO II Vs BONSIE (1953) 14 WACA 242, (1957) 1 NMLR 1223, (1957) 1 WLR AND (2006) 86 LRCN, 1492 per Lord Denning. According to the counsel the Defendants gave unassailable evidence of acts of recent years of possession as epitomized by the sale of part of the land to Nze Dikeocha (See Exhibits H) and the granting of part of the land for residential purposes to certain families as depicted in Exhibit G.

RESOLUTION OF MATTER:

From the evidence of the parties and the submissions of the counsel, two issues call for determination to wit:

1. Is there any valid Customary Arbitration in relation to this land in dispute between the parties?
2. Have the Plaintiffs proved their case to be entitled to the reliefs sought?

Have there been arbitrations over this land between the Plaintiffs and the Defendants? The plaintiff is of the view that there have been several arbitrations, all at the instance of the defendants and all ended conclusively in favour of the Plaintiffs. The Defendant expressed a different view to the effect that the arbitrations are inconclusive and did not end in favour of the plaintiffs. The plaintiff pleaded these arbitrations and tendered documents in an effort to prove their existence. I will now consider the evidence of arbitration and the documents tendered in support.

Exhibit CWB –is dated 31-12-83 and titled UMUOSHI YOUTHS PROGRESSIVE UNION. It stated among other things:

“This case was brought before this Union by Mr. John Eluwa and John Ogbogu of Ndiole family at the meeting of Umuoshi Youths held on 27^th December 1893 at Umuoshi village hall.

Going by the convention that the complainant is always mentioned first, it will appear that the complainant here is John Eluwa of the Defendants herein. Since the resolution is dated 31 -12-1983 and the case was brought on 27- 12-2-1983, it follows that the deliberation was done within 3 days. The general picture of this resolution is that the Plaintiffs have taken oath in respect of this land. One thing about this resolution of Umuoshi Youth Progressive Union is the dispute as to who was the secretary. This was not cleared.

The resolution which is published did not state where, when as per the day, month or year that this oath it referred to was taken.

Under cross examination the PW1 confirmed that the Umuoshi Youth Arbitration was after the Plaintiffs have taken the oath. He stated:

Umuoshi had a meeting and the elders brought the matter to the Umuoshi Youth when we have finished swearing and we were free. Umuoshi Youth Progressive Union discovered that Anyanwu family has sworn to juju, they did arbitrate after we have finished swearing. I tendered exhibit CWB as what was the decision of Umuoshi Youth Progressive Union. I read it before I tendered it

It is my view that the usefulness of this Umuoshi Youth Progressive Union’ s Arbitration is dependent on the proof that the Plaintiff indeed took oath and celebrated survival after one year. I will look for the evidence of the oath taking referred to in Exhibit CWB in the testimony of the Plaintiffs. The PW1 had earlier testified:

“–following from what we said earlier in order to actualize their inordinate desire to usurp the land in dispute, the Defendants’Ntole family, represented by George Ezelu and Eluwanya Iwuala sued Onwunmelu Anyanwu (as representing the Anyanwu family) before the Umuoshi people, claiming title to Okpulo Ama land. It was the very first time the Defendants actually made such a claim. The arbitration ended in our favour the claimants’ family. Undaunted, the Defendants sued before the Aladimma Ndigbo Uvuru making the same claim. Both parties submitted to the jurisdiction of Aadimma Ndigbo Uvuru. After hearing both parties, the Aladimma, in June 1982, decided that the Defendants’ Ntole family (represented by George Ezelu and Eluwanya Iwuala) should produce a juju for Onwunmelu Anyanwu to swear, in respect of Okpulo Ama land. Members of the executive of Aladimma Ndigbo Uvuru who presiede over the arbitration included Messrs, Pius Oguneme (Chairman), Aaron Odoemena, Lazarus Uduhirinwa (Treasurer) and William Onyejieme. The Aladimma, in its decision, scheduled that the oath would be sworn on the 7^th of July, 1982. During this arbitration, as in all other arbitrations, the Defendants referred to the land in dispute as “Okpulo isi Ogwugwu”. The defendants’ Ntole family through their said representatives produced the following juju, namely: “Agbara Ukwu Lorji” and “Ala Umuoshi” for Onwunmelu Anyanwu to swear. Onwuenmelu Anyanwu was my father and the father of the 1^st Claimant, on the 7^th of July, 1982, took the oath, in accordance with the customary rites and rituals concerning oath – taking. The oath taking was done in the presence of many people including us the claimants and some of the Defendants and under the supervision of the aforesaid executive members of the Aladimma. It is the native law and custom of Ndigbo Uvuru Aboh Mbaise, that any person, who survives an oath after one (1) year, becomes entitled to the land or property over which he took the oath. The survival of the oath is an affirmation that the person who took the oath is the bona fide owner of the property over which he took the oath, and that he has been vindicated by the gods. Our father, onwunmelu Anyanwu survived the oath he took over Okpulo Ama (land in dispute) and on the 10^th of July 1983, he celebrated his survival. However, George Ezelu of the Defenants Ntole family, who was one of those who procured the juju, died within the one year, before the one year elapsed, while his brother Eluwanya Iwuala died thereafter.

When the PW1 was cross examined he stated under cross examination:

“According to our custom, you take an oath on terms stated by the person who brought the oath: that is what we did. My father swore just as they said. The term is, that if the land is my father’s land, he will go free but if it is not his land he should die. Then when he has finished swearing, the Aladinma chairman said they should go first followed by the people of Aladinma then followed by my family. Then, as they were going George Ezelu their father fell down and the chairman of Aladinma said they should follow another exist. Then they carried him that is what made him to die after a month. Eze was there when my father took the first oath, he felt that his cabinet should be there but my father said no that nobody can swear two times over a portion of land, that it is not the custom. It is a formulated false to say that it was when this two-cabinet chief of Mbalewe reported that my people refused to take the oath according to terms given by those who brought the oath that Eze ordered that my people should take another oath”

On the other hand, the Defendants disputed that any oath was taken. They admitted that the brought the juju but the Plaintiff failed to swear on the terms provided by them. The DW3 testified:

“The Claimants were dissatisfied with the decision of the said Police. They thereafter summoned us before Umuoshi People and they never looked into the case. we were further summoned before Ndigbo Amala Arbitration Panel. This Panel has judicial functions in accordance with the native law and custom of our people. Both of us testified. The agreement was that we would be bound by their decision. And that any party that refused to take an oath if adjudged by the said panel to do so, that party that fails to take the oath in terms of oath swearing as listed by the other party, the land would be awarded to the opposing party. After evidence was taken from both of us, the said Arbitration Panel decided that Onwumelu Anyanwu from the Claimants family should take the oath for himself and on behalf of his family. The oath was to be taken in two weeks’ time. We brought Alukwu Lorji juju on the appointed date after two weeks in the terms proposed by us. The Claimant refused to take the oath in our proposed terms in accordance with our native law and custom. With that refusal to take the oath, the said “Aladimma” awarded that piece of land to us which is one of the lands in dispute. We continued our possessory rights and farmed on it. The Claimants never swore to the oath let alone surviving it. The case never went to Umuoshi Youth Progressive Union. It was not tried by that Union and no judgment was given. Any purported document from that Progressive Union should be rejected. I was the secretary of that Union by then. I never authorized anybody to act for me as a Secretary of that Union on that 31-12-83. That union has no power to look into any land matter between disputants. We never received any form of advise from the Police or the DPO of the Local Government Area. Being dissatisfied with the said Amala decision, the Claimants went and reported us to HIS Royal Highness, Eze R.U Mbalewe, our Traditional Ruler of Uvuru Autonomous Community. We answered to summons.

The parties joined issue on this Amala Panel. Parties agreed there was arbitration but diverged at the point of whether oath was eventually taken. He who alleges must prove. See IBENEME v. AWOLABI & ORS (2014) LPELR-23541(CA) it is stated:

‘The law is that he who alleges must prove. See section 131, 132, and 133 of the Evidence Act, 2011; Abdul Rahman V. Kadin (2012) LPELR – 8001 (CA); Obi v. Onyemlukwe (2011) NWLR (Pt. 1228) 400; Eyo V. Onuoha 2011) 11 NWLR (pt. 1257) 1; Dim V. Enemuo (2009) 10 NWLR (pt. 1149) 353; Hydyer Trading Manufacturing Ltd v. Tropical commercial Bank (2013) LPELR – 20294 (CA); Bala V. Sakyenu (2013) LPELR – 21409 (CA).” Per MBABA, J.C.A (P. 14, paras. E-G)

It is the positive or affirmative that is usually expected to be proved and not the negative. In JOHN ONYENGE & ORS. V. CHIEF LOVEDAY EBERE & ORS. (2004) LPELR-2741(SC), (2004) 13 NWLR (Pt.889) 20, (2004) 18 NSCQR 789 it is stated:

“The burden of proof in a civil matter such as this is on the party who alleges the affirmative. And that party could be the plaintiff or the defendant, depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to prove the negative.” Per TOBI, J.S.C (P. 17, paras. F-A)

The party who has the onus to proof is the party that that will fail if no further evidence is led in the matter. In ORAEGBUNAM v. CHUKWUKA & ORS. (2009) LPELR-4796(CA) it is stated:

“It is trite law, that onus of proof always rests on a party who would fail if no evidence at all or no more evidence as the case may be, is given on either side. The time honoured maxim or adage that ‘He who asserts must prove’ is very much relevant and applicable in our law of evidence. See Awolowo v. Shagari (1979) 6-9 SC 51; Hule vs. INEC (1999) 4 NWLR 360.” Per SANUSI, J.C.A. (P. 26, paras. E-G)

The Plaintiffs are relying on the Arbitration said to have taken place in 1982, it is their duty, having pleaded same, to prove same with a tangible and substantial evidence. In COMMUNITY DEVT ORGANIZATION & ANOR v. MOHAMMED (2014) LPELR-23598(CA) it is stated:

“The law is that he who asserts must prove and that will be carried out by production of cogent and credible evidence.” Per ORJI-ABADUA, J.C.A. (P.23, paras.F-G

Exhibits CWC is a letter dated 22^nd March 2002 and addressed to Mr. Julius Obogu and Chief Eric Obogu. It stated thus:

On the 24^th February 2001, there was a ruling that the Defendants in this suit-

1. Paul Anyanwu
2. Israel Anyanwu and
3. Bright Anyanwu – for themselves and on behalf of Umuokorocha Family of Umuoshi ndigbo should take an oath on any subject or material that you may provide for such an exercise an on the terms you may stipulate.

We have learnt that you have not made such a provision since over one year, and wish to remind you that justice delayed is justice denied

We give you 14 (Fourteen days) from 23^rd March 2002 to comply or we shall be obliged to dismiss the suit.

Exhibit CWD is another letter dated 17^th April, 2002 from HRH Eze R.U. Mbalewe and addressed to Mr. Julius Obogu and Chief Eric Obogu and it stated:

We refer to our letter Ref. ONN/RUM of the 22^nd March 2002 and regret to note that you did not comply to the court order as you were instructed.

This suit is therefore fixed for determination on Friday the 26^th April, 2002 at 10.00am.

Exhibit CWE is a document titled ‘Judgment’ dated 15^th May 2002. It indicated the parties in attendance as Mr. Julius Obogu, Mr. Paul Anyanwu, Mr. Israel Anyanwu and Mr. bright Anyanwu. In other words, there was a representative of the parties. The claim of the Defendants herein who were Plaintiff in Suit No. UAC/34/99 was dismissed. The claim was:

“Trespass into the Plaintiffs parcel of land known as and called Okpulo Isi Ogwugwu at Umuosi Ndigbo by the defendants

Application for perpetual injunction to restrain the defendants from further trespass into the said parcel of land.

Judgment is said to be delivered at Uvuru this 26^th day of April 2002.

In the face of Exhibits CWC, CWD and CWE from Eze R.U Mbalewe, some portions of which were reproduced above, the Defendants tendered Exhibit K titled “Judgment of Amala People against the case of Ntole People and Umuanyanwu both in Umuoshi Village in Ndigbo Uvuru, Aboh Mbaise LGA on 17^th Oct. 2002”. It read:

“We the entire Ndibgo people have looked into the matter and went to our Eze Eze R.U Mbalewe Eze, Oha 1 JP and hear from him that he did not gave any person the land, that they should go and answer the place they are called to swear, Eze did not judge any case where they planted the palm agric fruits and the trees inside the land.

Therefore, we the entire Ndigbo people saw that what Eze and is depend on his judgment. the judges are

1. Emmanuel Amaefule of Amadim Ndigbo Uvuru
2. Raymond Ibe of Egbelu Ndigbo Uvuru
3. Godson Chekwendu of Umunebie Ndogbo Uvuru
4. Chief Pius Oguneme of Umunebie Ndigbo Uvuru”

Reacting to Exhibit K under cross examination the PW1 stated:

“There was nothing like some elders from our village went to Eze Mbalewe to find out whether he gave judgment to our people. It is false to say that when they came back, the stated that Eze Mbalewe did not give us judgment and they reduced it into writing”

He went on to state:

“Eze was there when my father took the first oath, he felt that his cabinet should be there but my father said no that nobody can swear two times over a portion of land, that it is not the custom. It is a formulated false to say that it was when this two-cabinet chief of mbalewe reported that my people refused to take the oath according to terms given by those who brought the oath that Eze ordered that my people should take another oath”

Now Exhibits CWC, CWD and CWE are documents. They are what they said they are. Document speaks for itself. The law is that where a document is clear, the Operative words in it are to be given their simple and ordinary grammatical meaning. One is not to read into the document what is not there. A document duly pleaded and tendered once admitted is the best evidence of its content and therefore speaks for itself. See KANMODE & ANOR v. DINO & ORS. (2008) LPELR-8405(CA) per LOKULO-SODIPE J.C.A(Pp.31-32, paras.E-A)

The tune of the documents Exhibits CWC, CWD and CWE capturing the arbitration before HRH Eze Mbalewe is that the Plaintiff before the Eze (i.e., the Defendants herein) should produce a juju for the Defendants (i.e., the Plaintiffs herein) to swear to. After one year of this decision the Plaintiffs (defendants herein) did not produce any juju. Consequently, in the presence of the Plaintiffs their case was dismissed.

The Eze, from the documents tendered, dismissed the case of the plaintiff. Did the Eze in the cause of dismissing the Plaintiff’s case before him award the land in dispute to the Defendants (i.e. the Plaintiffs herein)? The Defendants before the Eze did not counter claim. Is it proper to say that he did not give the land to anybody as Exhibit K of the Defendants in this tends to portray. The exhibit K also has the name of Mr. Pius Ogunemen who incidentally was mentioned by the Plaintiffs in this case as one of the Executives of Aladimma Ndigbo Uvuru who presided over the arbitration in 1982. But he did not sign exhibit K. The absence of his signature in this document is explained by the evidence of the Defendants who said he refused to go.

The law knows that a document is not known by what a witness ascribes to it. See IKELI & ANOR v. AGBER (2014) LPELR-22653(CA). It is trite law that the best evidence of the contents of a document is the document itself. See OGU V. MANID T & M CO-OP. SOCIETY (2010) LPELR-4690(CA), SALAMI V. SAVANNAH BANK (1990) 2 NWLR (PT. 130) 106

Exhibit k may be the right interpretation of what transpired before HRH Eze Mbalewe. It is trite and now settled that where a Plaintiff’s claim is dismissed for failing to prove title, a Defendant who has not counter-claimed for declaration of title to the same land does not automatically become entitled to the land. See JINADU V. ESUROMBI-ARO (2005) 14 NWLR (PT. 944) 142 & ANWOYI V. SHODEKE (2006) 13 NWLR (PT. 996) 34 SC.

None of the parties tendered the 1982 arbitration- Amala Arbitration Panel. It is therefore correct to state that the pre 1983 arbitration is not document. That is the arbitration wherein the Plaintiff alleged they took oath. The only document making reference to that arbitration is the Resolution of Umuoshi Youths Progressive Union. In the absence of any document tendered in that respect is safe to conclude that the arbitration was not reduced in writing which is one of the conditions of a valid customary arbitrations.

More so, the Defendant on their part said that they brought the Ala Ukwu Lorji Juju for the Plaintiffs but the Plaintiffs refused to swear on the terms given to them by the Defendants. Consequently, the land was awarded to the Plaintiffs (i.e the Defendants herein. On this face of this dispute of whether the oath was taking or not there is no independent witness to corroborate the evidence of either of the parties.

On the arbitration by Eze Mbalewe, it does appear from the evidence of the Plaintiff that they never believed in that arbitration. It is not only that the Defendants failed to produce the juju but the plaintiff refused to swear to juju for according to them, it will amount to taking an oath for the second time over the same subject matter which according to them is not customary. Corroborating the view of the plaintiff as supporting their contention that if indeed the Plaintiffs swore to Juju in 1982, the HRH Eze Mbalewe being a custodian of tradition will not request that they swear a second time. In other words HRH Eze Mbalew asked the Plaintiffs to swear to a juju because no such a thing happened in 1982.

For better understanding of the Arbitration of Eze Mbalewa contained in Exhibits CWC and L I will produce the content. It read in part:

“This matter which has lingered for more than three years should be determined today, because the Plaintiffs are not serious about the matter

• On the 19^th October, 2000 (page 2514) we had given an order for the Plaintiff to go to a superior court for any new order as we cannot over rule ourselves
• On the 24^th February 2001, the Defendants accepted to repeat the swearing for the Plaintiffs- the object of swearing to be mutually determined
• On 22^nd March, 2002, we learnt that you had not provided the object of swearing, one year after the order was given. Further, 14 days were given for the compliance of this order, but on the 16^th April, 2002, the Defendants wrote to confirm that you had not provided the juju
• On the 17^th April we wrote and fixed a date to determine this suit on the 26^th April, 2002
• On the 20^th April, 2002, the Plaintiffs sued the Defendants at the shrine of Alaogbaga, Chokonoeze, in disobience to the order of this court

We have found the Plaintiffs not serious, and have discovered that they are using this court for delaying tactis to achieve an objective unknown to us

We therefore dismiss the suit No UAC/34/99 with a cost calculated at N1000 – One Thousand Naira only against the Plaintiffs in faour of the Defendants.

Now can this arbitration of the Eze said to be conclusive. The paragraph 2 of the judgment said: “On the 24^th February 2001, the Defendants accepted to repeat the swearing for the Plaintiffs- the object of swearing to be mutually determined”. The document said that the Plaintiff in this case “accepted to repeat the swearing”. This contradicts the evidence of the Plaintiffs that they refused a repeat of the swearing. In the long run the juju was not produced. Instead of providing the juju in line with the directive of the Eze Mbalewe’s arbitration the Plaintiffs sued the defendants before Alaogbaka Chokoneze. The decision – dismissal of the plaintiffs’ case by the Eze was on the 26^th April 2002 and this suit was filed on 26^th May 2003

When probed in respect of this HRH Eze Mbalewe Arbitration under cross examination, the PW1 stated:

“The statement that Eze Mbalewe never decided any case between me and Ntole family is false because Eze Mbalewe decided the matter 3 times. It is false because Eze Mbalewe asked them to bring to us juju to swear, even up till now they have not, then they sued us at Ala Ogbaka Shrine at Chokonaeze. When they went to Ala Ogbaka Shrine the day he asked us to come, we told the priest that they sued us at Mbalewe Cabinet and he asked them if it is true that they sued us before Mbalewe Cabinet and they said yes. Then the priest dismissed us. It is fallacy that when we came to Eze and the Eze was informed that the case is before Ala ogbaga, Eze refused to continue with the case. At no time did eze say that he cannot continue to hear the case which juju is hearing on the one side. We have finished with the case and waiting for eze to write his judgment and when we came he read this judgment and we won the case. We did not take the oath because the defendant did not bring his juju. The oath was not sworn for one year and some six month and Eze warned them that if they did not bring the oath and they will declare that the case is no longer useful for all the parties. It is false that Eze never gave me judgment, he only fined the defendants 100 for delaying the case in his palace. We had judgment. Eze wrote it. I tendered exhibit CWE as the judgment the Eze gave.

 

The plaintiffs seem to be speaking from both sides of their mouths when they said judgment was given to them because the Defendants failed to produce juju and at the same time saying that they refused to swear to the juju because it will amount to swearing for a second time having sworn to juju sometime in 1982.

Exhibit CWF is from Forest Dept Aboh Mbaise dated 11^th October 2002 and addressed to Chief Eric Obogu and Mr. Paul Anyanwu. It is titled ‘VERDICT’. Among other things it said:

“I hereby resolves as follows:

Based on the decision taken by His Royal Highness Eze R.U Mbalewe the Eze Oha 1 of Uvuru Ikedinairi on the 15^th of May 2002 and Suit No UAC/34/99

I hereby upheld his judgment

Having looked into this matter, I hereby endorsed that the said Edo tree belonged to Mr. Paul Anyanwu & Co”

Just like the efficacy of the Umuoshi Youth Progressive Union is dependent on prove of existence of a prior arbitration properly so called, this Verdict from the Forest Department said it affirmed or is hinged on the decision of HRH Eze Mbalewe said to have been made on 15^th May 2002. Its validity will be gauged by the validity of the HRH Eze Mbalewe’s arbitration. A look at document it is stated therein that the decision was made on 26^th April 2002. Forest Department of Aboh Mbasie does not have judicial powers to determine ownership of land or who owns a tree. It does appear that the Defendants were not part and parcel of the Verdict. They did not submit to that Department of Forestry’s arbitration.  The verdict said:

“After this matter has been looked into in my office, between Chief Eric Obogu and Mr. Paul Anyanwu and co., this office went to Ndigbo Uvuru to see the disputed Edo tree. After our inspection Chief Eric Obogu told this Department to go and wait for his decision on this matter. We have waited for more than two months. You fail to leave up to your words.

If this Department of Forestry Aboh Mbasie’s verdict can be called arbitration, then it lacks one of the ingredients that give Customary Arbitration validity.

Arbitration according to the Customary Law is one of the accepted means of settling disputes in this part of the world. It is such that where two parties to a dispute, as in the present case, voluntarily submit their matter in controversy to an arbitration according to customary law and agreed whether expressly or by implication, that the decision of the arbitrators would be accepted as final and binding, then once the arbitrators reach a decision, it will no longer be open to either party to subsequently back out of such a decision. A party rejecting such a decision must prove that it was wrong in principle. See CHUKWUDOZIE ANYABUNSI v. EMMANUEL UGWUNZE (1995) LPELR-503(SC) (1995) 6 NWLR (Pt.401) 255 Per IGUH, J.S.C (P. 23, paras. A-D

There are five ingredients that must be pleaded and proved by any party relying on a customary arbitration. These are: (a) That there has been voluntary submission of the matter in dispute to an arbitration of one or more persons. (b) That it was agreed by the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding. (c) That the said arbitration was in accordance with the action of the parties or their trade or business. (d) That the arbitrators reached a decision and published their award. (e) That the decision or award was accepted at the time it was made. See CHIEF SIMEON NWANNEWUIHE V. CHRISTOPHER NWANNEWUIHE & ORS. (2007) LPELR-8247(CA) Per RHODES-VIVOUR, J.C.A.(now JSC) (Pp.23-24, Paras.C-A),.

In most cases, these customary arbitrations are concluded or finalized by oath taking thus living the pronouncement of the verdict in the hands of the unseen hands. The agreement or decision to take the oath is reached or made in the course of the customary arbitration. If it is proved that the parties agreed to juju swearing and it is proved sworn, then it will be binding. In PIUS UMEADI & ORS v. VICTOR CHIBUNZE & ANOR (2020) LPELR-49566 (SC) it is stated:

“I need to place on record in reiteration 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 and so the common law principles in respect of proof of title to land no longer applies since the proof of ownership of title to land will be based on the rules set out by the traditional arbitration resulting to oath-taking. See John Onyenge & Ors. v Chief Loveday Ebere (2004) 13 NWLR (Pt.889) page 20 at 40-41. From the pleadings and evidence led at the Trial of this suit, it is clear that there was a dispute in 1940 between Emmanuel Uba of Umuogbocha family and Respondents’ Father of Umuofuonye family all of Egbeagu Village, Amansea over the land in dispute. The dispute was referred to Egbeagu village, Amansea for resolution. Egbeagu Village resolved that members of Umuogbocha family should place any juju of their choice on the land in dispute for the people of Umuofuonye family to remove. Umuogbocha family placed “Ngene Olineru” juju on the said land in dispute. All 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 apply in this appeal. What is now applicable in this appeal is the customary law of oath-taking.” Per PETER-ODILI, J.S.C. (Pp. 50-51, Paras. D-D)

In MR. FIDELIS NWABELE & ANOR v. LONGINUS EKWEDI & ANOR (2019) LPELR-48022(CA) it is stated:

“There is no doubt that oath taking is one of the acceptable and customary ways the Igbo people settle disputes between two adverse parties, but where a party is relying on oath taking and arbitration, he has to prove that these factors have been conclusively determined. In the present situation.

1. The date oath was taken by the parties.
2. Those who were present when the said oath was taken by the parties.
3. Before whom the Oath was taken by the parties.
4. The form, terms or manner of the oath taking, and its duration.

These elements seem to be abysmally absent from the case of the Respondents

As I said earlier wherever oath taking is involved, there must be a proceeding leading to that oath taking. It does not just happen. The court in  NWACHUKWU ATUONA & ANOR v. OJINNAKA HERBERT EMODI OZOBIA & ORS (2015) LPELR-25759(CA) stated what oath taking entails thus:

The party swearing makes a short statement of his claim that he asserts as true and swears before a juju, shrine or oracle. The verdict is never delivered. There is no process of judgment delivery. The result of the oath taking is determined by certain agreed expected occurrences after a given period of time. How the verdict is to be determined depends on the applicable rules of customary law on oath taking of a particular place. The existence of such custom is a matter of evidence to be proved by the party who asserts and relies on it. Generally, the verdict cannot be verified by any rational process. It is simply a matter of belief and acceptance of the occurrence of certain events as the verdict. By its nature and the inherent lack of rationality and certainty of outcome, its outcome remains shrouded in doubt and vulnerable to disputation. Because of this inherent character of unreliability, the oath taking method of customary adjudication is not popular in many of our communities today.” Per EMMANUEL AKOMAYE AGIM, JCA (Pp. 41-42, paras. D-E)

So a party relying on oath taking needs to plead or provide the proceedings culminating in that oath taking. It was on this ground that the court in ALEXANDER OKOYE & ORS v. VINCENT NWEKE & ORS (2014) LPELR-24508(CA) stated:

The appellate High Court agreed with the conclusion of the Trial Customary Court when it said this:- “The above is the only evidence of the oath taking under customary arbitration canvassed by the Appellants’ counsel. I cannot find evidence of the terms of the arbitration nor their agreement to be bound by the decision. There is even no evidence of the decision itself…The trial Customary Court was right in treating same as not legally binding …” I am in grave difficulty to disagree with the above conclusion because it is clearly borne out from the evidence before the trial Court. It is trite law that the burden of proof in a civil matter such as this, is on the party who alleges the affirmative.—— In the instant case, the burden of establishing that the oath taking creates an estoppel to the case rests squarely on the Appellants. In this regard, I am at one with the submissions of learned counsel for the Respondents that the evidence of the oath taking as testified by the Appellants’ sole witness are sketchy, terse and lacking in essential details. There is no record before this Court that both parties had initially submitted themselves to the arbitration to swear before the Catholic Prayer Ministry of Ref. Fr. Ede at Elele, as has been contended by the Appellants. This Court being a Court of record is bound by the Records before it. In conclusion, I find that the Appellants have not successfully established that the oath taken by them at the catholic Prayer Ministry of Rev. Fr. Ede at Elele was a decision final and binding on the parties to operate as estoppel on the parties in view of the lapses highlighted supra.” Per AMINU SANUSI, JCA (Pp. 16-20, paras. F-C)

Parties to a customary arbitration may resile from arbitration. In EKEZIE & ORS v. TASIE & ORS  (2019)LCN/13788(CA) it is stated:

Thus, the reliance by the appellants on Exhibit ‘A’ (the Judgment of the office of the Chief Priest Ngbuko Supreme Shrine Omademe Town) without more is a non sequitur and cannot avail them since both parties resiled from it.” Per SANGA, J.C.A. (Pp. 30-33, Paras. B-A)

It does appear that refusal to provide a juju and or swear to a juju in conclusion of arbitration those no work against the party who refused to produce or refused to swear to a juju. It will be taking as a sign of opting out or resiling from the arbitration. In FIDELIS NWABELE & ANOR v. LONGINUS EKWEDI & ANOR. (2019) LPELR-48022(CA), (2019) LCN/13469(CA). it is stated:

On the issue of oath taking for proof of ownership of land under Customary law, the recent view appears to be that, where a party refuses to submit to the taking of oath, he cannot be compelled and his refusal to take the oath cannot translate to admission of the claim of his opponent, as it rather tends to show that the arbitration decision was rejected. See Mbajiuka & Ors Vs Anyanwu (2018) LPELR – 44472 CA; Nwaokarobia & Anor Vs Uzoho & Ors (2006) LPELR 9813 CA.” Per MBABA, J.C.A. (P. 18, Paras. B-F)

I have considered the evidence as it relates to the arbitrations and the documents tendered in support and have come to the inevitable conclusion, in my view, that none can be described as Customary Arbitral Award. The terms and conditions of the 1982 arbitration were not published, see ALEXANDER OKOYE & ORS v. VINCENT NWEKE & ORS (supra). All the arbitrations were to be concluded through oath taking. It was not proved that oath was taking at any time. None of the arbitration was therefore, conclusive. None met the five ingredients of a customary arbitration and none is binding. I so hold.

Now did the Plaintiffs prove their claim to declaration of title.

The Supreme Court in the case of ELEGUSHI V OSENI (2005) 14 NWLR (PT 945) AT 348 aptly stated the five types of legal land ownership in Nigeria and they are as follows:

1. By traditional evidence.
2. By acts of Ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that they are owners.
3. By acts of long possession and enjoyment of the land in dispute.
4. By the production of the documents of title which must be authenticated.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute.

See IDUNDUN V. OKUMAGBA (1976) 9-10 S.C. (REPRINT) 140; (1976) 10 S.C. 227, see section 24 and 26 of the Land Use Act.

The party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relies on more than one root, that is merely to make assurance doubly sure. He does that, ababundatia cautella. See AKANJI VS. BALOGUN (2005) 10 NWLR (PT. 933) PG. 394, per Oputa, JSC. Each of the five ways is independent of the others to prove title in a land case. Therefore, the establishment of one out of the five ways is sufficient to grant ownership. See UMENNADOZIE OGBUOKWELU & ORS V. JAMES UMEANAFUNKWA & ANOR (1994) LPLER -2296.

The issue here is customary ownership of land. In GILBERT ONWUKA & ORS v. MICHAEL EDIALA & ANOR (1989) 1 SC (Pt.11) 1 at 17 ,(1989) LPELR-2720(SC) the court stated:

“The accepted methods of proving customary ownership of land are- (1) Traditional History of ownership; (2) Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and (3) Where (2) above fails, proof of exclusive possession without permission. See Ekpo v. Ita 11 N.L.R. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215.” Per ABUBAKAR BASHIR WALI, JSC (Pp. 27-28, paras. F-A) The Plaintiffs and the Defendants are relying on traditional evidence to claim title to the land in dispute.

On what a party must lay before the court, it is has been stated that it is now been settled that traditional evidence must be such as to be consistent and properly link the plaintiff with the traditional history relied upon. Above all, it is not sufficient for a party who relies for proof of title to land on it [traditional evidence], to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as (1) who founded the land; (2) how the land was founded and (3) the particulars of the intervening owner through whom he claims, see ASANI SOGUNRO & ORS v. AREMU YEKU & ORS (2017) LPELR-41905(SC)Per CHIMA CENTUS NWEZE, JSC (Pp. 18-19, paras. B-A)

Any unexplained gap in the evidence of traditional ownership vitiates the claim. Where the line of succession is not satisfactorily traced by the plaintiff, his claim must be rejected by the court. In other words, there must be no gap in the line of succession up to the plaintiff laying claim. see OYADIJI V. OLANIYI (2005) 5 NWLR (PT.919)561 Per.IBIYEYE, J.C.A (Pp. 14-15, Paras. D-B) – when evidence of traditional history os proffered, the trial Court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon the trial Court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.see NWOKIDU & ORS V. OKANU & ANOR (2010) 1 SCNJ 167 AT 196

Traditional history/evidence is hearsay evidence. Thus it is based on hearsay extending beyond human memory. It is narrated by oral evidence handed down from generation to generation. If it is in respect of ownership of land the relevant family ancestry or community heads, as the case may be, through whom the land has devolved must be pleaded and evidence clearly led in support. See DAVIES V. AJIBONA (1994) 5 NWLR (PT.343) 234 Per UWAIFO, J.C.A (P. 20, paras. E-G)

Since traditional history is beyond human memory most of the times the dramatis personae in the whole saga are not available to attest to or testify to these events. So, except on cases of documented traditional history, it is mostly hearsay evidence. And the Evidence Act has made such hearsay evidence admissible. Hearsay evidence in traditional history is an exception to the general rule on hearsay. It is admissible for that purpose… In MAMMAN & ORS v. KOFAR-BAI (2015) LPELR-25966(CA)

Per ABBA AJI, J.C.A. (P. 14, Paras. C-E)

It is trite and now settled that the Plaintiff who is relying solely on customary/traditional history, as a means of deducing and proving title to land must make sure his evidence and line of argument are straight, logical, consistence, coherence and legally convincing to reflect the current realities in order to have the preponderance of evidence and balance of probability skewed towards him.

In this case the original owner of this land and how he founded it is not in dispute. Both parties traced their origin to Oshi. And that it was Oshi that deforested the land. The only contested issue is whether the Defendants are of the lineage of Oshi. The Defendants said they are and the Plaintiffs said they are not. It is the Plaintiffs who want to exclude the Defendants from the land on the ground that they are migrants and settlers that should prove it.

The traditional history of the Plaintiffs is that Ntole is a sojourner and has no inheritance with Oshi. The PW1 testified:

Oshi had three sons, namely Okorocha, (his first son) Babaa and Ikeoka. In his life time, Oshi gave his Okpulo Ama land to his three sons who partitioned same among the three of them. We the claimant descended from the lineage of Okorocha, who was our great great-grand father. Okorocha in his life time was in exclusive possession of the land in dispute and exercise act of possession including farming and harvesting of economic trees on the land. Okorocha was survived by 4 sons who subsequently inherited his estate including the land in dispute. Okorocha 4 sons are Ndagu, Ajuzieogu, Onyenguzoro and Amechi. The said four sons of Okorocha further partitioned his share of Okpulo Ama among themselves. We, the claimant(s) descend(ed) from the lineage of Onyenguzoro. All the sons of Okorocha through his said four sons have lands that share common boundaries with the Okpulo Ama land on dispute. Onyenguzoro upon getting his own share of Okpolu Ama remained in exclusive possession of same and exercise acts of ownership and possession over the land, by cultivating and harvesting economic trees on the land. Onyenguzoro begat Chidorom and Aliriele, both of who inherited his estate including the Upkoplu Ama, now land in dispute. Chidorom begat and was survived by the Dike, whereas Aliriele begat and was survived by Anyanwu. Dike died without a male issue and Anyanwu became the sole survivor and inheritor of the land in dispute. Anyanwu Alirirlel remained in exclusive possession of the land in dispute, excising all act of ownership and possession; including farming and reaping the economic crop n the land. Anayanwu begat Onwunmelu, Nwanjoku and Sunday, Sunday died without issue. Onwunmelu begat Paul (the 1^st claimant) Israel the 2^nd Claimant), Chukwuemeka, Chinedum, and Obireze, whereas Nwanjoku begat Nathaniel, Simon, Christian and Bright (The 3^rd Claimant). The sons of Onwunmelu and his brother Nwanjoku are today called Umuanyanwu or Anyanwu family, and we the claimant sued as representing them. I know that – Ifeobi- or relocation of dwelling place, after about a generation or after about 30years, was Customary in Ndigbo Uvuri in the olden days. Some of our Umuoshi relations namely Ruben and Dike Emenogu who descended from the lineage of Babaa, one of the sons of Oshi approached Anyanwu in his life time, and requested for land at his Okpulo Ama for relocation, while offering his own land called Okpulu Ukwu Nkoro” for the same purpose. They agreed to this arrangement whereby Anyanwu temporarily exchanged his Okpulu Ama with Okpulo Ukwu Nkoro belonging to Emenogu for purpose of relocation. Following this Ifeobi arrangement, while Emenogu and his children lived at Okpulo Ama, Anyanwu and his Children live at Okpulo Ukwu Nkoro land. Anyanwu died while living at Opkolu Ukwu Nkoro. Later Ruben and Dike approached Onwunmelu and Nwanjoku (sons of Anyanwu) and requested a return to each family original land.

Under cross examination the PW1 stated:

“The defendant ancestors migrated from somewhere to Umuoshi. They were seventy persons that migrated. I was not born at that time they come to Umuoshi. It could be so that our family ancestors and the defendant’s ancestors called Oshi have been living in Umuoshi village about 400 years now. They came from Umuidri Obowo-

On the other hands – the defendants testified that Oshi had four sons – Okorocha, babaa, Ikeoka and Ntole. They pleaded that Ntole was survived by Mbaka who inherited all his properties including the land in dispute and exercised all acts of possession thereof. Mbaka begat Okoro- Okoro begat Onyekwere and Agbaere. Onyekwere begat Ezelu while Agbaere begat Iwuala.  Ezelu begat Obogu, Nwamadi, George and Obenamadu, while Iwuala begat Eluwanya ie Eluwa. George and Nwamadi had no survival. Obenamadu begat Godwin, Ikechi and Sylvanus. Defendants are descendants of Ezelu abd Iwuala

Under cross examination of DW3 he stated:

“The land in dispute was deforested by the man Called oshi, it is not correct to say that oshi has three sons. There are four sons: Okoroko, Babaa and Ikeoke, the fourth is Ntole. Ntole is the 4^th son of Oshi. I am 71 years old. As a 71 years old man I agree with you that Igbo name have meaning. The meaning of Ntole is the man did not grow old before he married two wives and the father said to him have you grown to have married two wives which is Ntole in Igbo. It is not true that Ntole is the corruption of the question of the Uno bu ndiole meaning who are these People or who are you people. There is no name like Mgborimgbo, my grandfather did not tell me about such a name. Mgborimgbo was not the ancestor of the Obogu’s family of the defendant which includes me. The name Amurumgini is not in my family. Amurumgini is not an ancestor of Obogu’s family of the defendant including me. I have heard the name Mbaka. Mbaka is an ancestor of the defendant. Mbaka is the man called Ntole. We are the fourth son of Oshi, we and okoro are of the same lineage of Umuoshi. We are the origin of Umuoshi in Ndi Igbo Ovuru

I must immediately point to the settled principle of law that contradictions in the evidence of a defendant, who by the pleadings has not the initial burden to prove his case, can only be material in the determination of the case, if the plaintiff has, in the first place, proved his case. Where a plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail or help the Plaintiff in sustaining his claim. See COMFORT OBIAZIKWOR & ORS. V. JUDE CHIKE OBIAZIAKWOR & ANOR (2007) 27 WRN 106 AT 132, (2008) 8 NWLR (PT. 1090) 551 AT 576.

Furthermore, the duty of a Defendant who has not Counter-Claimed in an action for declaration of title to land is merely to defend the action. He has no burden to proof anything, for it is only where the Plaintiff has crossed the Rubicon by adducing sufficient evidence which prima facie establishes his title to the disputed land, that he (Defendant) would be required to call evidence in rebuttal. However, where the Defendant has Counter-Claimed for title to the dispute land, he will be in the same position as the Plaintiff and therefore required to adduce evidence to establish his Counter-Claim. See MR. TAJUDEEN AYINDE SUNMONU & ORS v. MR. NOSIRU DADA & ORS (2019) LPELR-48270(CA). There is no burden of proof on the Defendant. Once the plaintiff fails to prove the material facts upon which his claim is predicated, he has failed to discharge the burden of proof placed on him and his case must automatically fail. The law is that there is no burden on the defendant ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR-21403(CA), Per ABIRU, J.C.A. (P. 37, paras. A-F) –

A declaratory relief must be proved to the satisfaction of the Court notwithstanding default of defence or any admission in the defendant’s pleading. Furthermore, where the defendant does not file a counter claim, the burden is heavier on the claimant to prove his title to the land in dispute. The defendant has no duty to prove his own title to the disputed land. See Oyewusi & Ors V Olagbemi & Ors (2018) LPELR – 44906 (SC) Per KEKERE-EKUN, J.S.C. (Pp. 26-27, Paras. F-E).

I reject the evidence of the migration of the Defendants. There sojourning in the numerous places before eventually migrating and settling at Oshi was not substantiated. The Defendant admitted that the parties may have lived together for over four hundred years. No date, time, seasons or remarkable event is tired tied or put on this migration and settlement of the Defendants in Oshi. I accept the evidence of the Defendants that they are of the same lineage of Oshi and therefore have common ancestry with the Plaintiffs. In MOHAMMED TOMU v. SHUAIBU MUAZU & ORS (2019) LPELR-47930(CA) the court stated

“In the instant case, the trial judge accepted the traditional evidence pleaded and relied on by both parties as the evidence lead by both parties was unchallenged and unshaken during cross-examination. The reason according to the trial judge is that “the law is well settled that where the evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the case to act on such unchallenged evidence before it.”  On this point, I agree with the findings of the learned trial judge.

The Traditional Evidence given by the Defendants cancelled out or appropriately answered the Plaintiffs’ traditional evidence hence putting both at per. It is trite and now settled that were parties glaringly relied on evidence of tradition regarding the land in dispute in the proof of the title of their respective roots of title to the ownership to the said land, it is incumbent on the trial  Court to first determine which of the stories is more plausible or probable by reference to all surrounding facts and circumstances. It is only after the histories offered by both sides are placed side by side and weighed and when they are found to be equally plausible or when there is difficulty in resolving which is correct that the question of recent acts of ownership shall become relevant. See OGUN V. AKINYELU (2004) 11-12 SC 4, MOGAJI V. CADBURY NIGERIA LTD. (1985) 2 NWLR (PT.7) 393″. I will therefore proceed to determine whose is more plausible by reference to all surrounding facts and circumstance in this suit. see BARTHOLOMEW ONWUBUARIRI & ORS. V. ISAAC IGBOASOYI & ORS (2011) (2011) LPELR – 754, (2011) 1 SCM 100.

The Plaintiffs alleged that the all the land being occupied by the Defendants were given to them. Under cross examination he stated:

“All the piece of land owned by the defendants are given by our ancestors Umuoshi people when they came but not this particular land Okpo Ala Ama. It is very hard for me to name all the land given to them but this particular one is not given to Ntole the defendant. I know the lands but it does not concern this case. I am not fighting for Umuoshi am fighting for Anyanwu family. I cannot answer questions for the entire Umuoshi. Where they are living now was given to them by my family. The name of the land which my family gave to them where they are living now called okpolu. We gave them oru, Ala Isi Orie, Ubahi Ochie. There is such a name”

The plaintiffs claim that all the lands of the Defendants were given to them by Umuoshi people but are not able to mention any other portion of land given to the Defendants by any other family/kindred of Umuoshi people. There is no evidence of any other family/kindred of Umuoshi that too gave a land to the Defendants. To my mind, for the Plaintiffs to sustain their claim that the Defendants are sojourners or migrants in Umuoshi and are occupying lands given to them by Umuoshi, they should be able to list out all the land occupied by the Defendants in Umuoshi and by whom they were donated.

The Plaintiffs testified to a custom they called “Ife Obi” thus:

I know that – Ifeobi- or relocation of dwelling place, after about a generation or after about 30years, was Customary in Ndigbo Uvuri in the olden days. Some of our Umuoshi relations namely Ruben and Dike Emenogu who descended from the lineage of Babaa, one of the sons of Oshi approached Anyanwu in his life time, and requested for land at his Okpulo Ama for relocation, while offering his own land called Okpulu Ukwu Nkoro” for the same purpose. They agreed to this arrangement whereby Anyanwu temporarily exchanged his Okpulu Ama with Okpulo Ukwu Nkoro belonging to Emenogu for purpose of relocation. Following this Ifeobi arrangement, while Emenogu and his children lived at Okpulo Ama, Anyanwu and his Children live at Okpulo Ukwu Nkoro land. Anyanwu died while living at Opkolu Ukwu Nkoro. Later Ruben and Dike approached Onwunmelu and Nwanjoku (sons of Anyanwu) and requested a return to each family original land.

This custom of Ife Obi is not proved. In MR. COCOA ODIEDI v. MR. VOTE ONORIKUTA & ORS (2020) LPELR-51255(CA) the court stated:

In this state of the law relating to proof of custom, the learned trial Judge, having found that both the Appellants and Cross-Appellants traced the founding of the land and their ancestry being to a common root Abrata or Avrata, was justified in not believing the evidence of either side on the claim to the exclusive title, when there was no partition or severance of the common usage of the land as variously testified to and particularly where there was no credible independent evidence of the custom by persons shown to be seized of the knowledge thereof if, any. See Sokwo Vs. Kpongbo (2008 ) ALL FWLR (pt 410) 680 at 706 .

The custom of “Ife Obi” to my mind will also fall in the face of the evidence of the DW2 thus:

My father Festus Akobundu and Ruben Emenogu, both now late are descendants of Enere Babaa family. When they insisted on claiming that, that portion of land in dispute to be their own, some members of our family told them that it was not their own land and told my father how that land came to their possession. My father reluctance to surrender the land annoyed the members of Ntole family of the Defendants. Consequently, Messrs George and Eluwa from the Defendants Ntole family came and redeemed the said land from my father and Ruben Emenogu. After the redemption, the Defendants Ntole family took possession of their land and continued farming on it up till today. I have never seen the claimants farm on that portion of the land.

This is more plausible than the non-proved custom of “Ife Obi”

The onus is on the Plaintiff to prove the boundaries of the land in dispute. In CHIEF JOHNSON IMAH & ANOR V. CHIEF AJOWELE OKOGBE & ANOR (1993) LPELR-1497(SC) (1993) NWLR (Pt. 316) 159 (1993) 12 SCNJ 57 it is stated:

“The onus is on the plaintiff who claims a declaration of title to a land in dispute to satisfy the court that he is entitled on the evidence brought by him to the declaration claimed. He must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help the plaintiff, and the proper judgment is for the defendant”. “The boundaries of the land in dispute must be proved with certainty such that a surveyor, taking the record, could produce a survey plan, showing with accuracy, the land in dispute. Ascertainable boundaries of the land in dispute must be established”. “Therefore, the claim of a plaintiff who is claiming a declaration of title will be dismissed if he fails to prove the boundaries or the identity of the land in dispute”. PER ADIO, JSC. (P. 19, Paras. G-A) –

The Plaintiffs and the Defendants tendered Survey Plan. In SPECOMILL STAFF CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD v. OGUNTOYINBO & ORS (2017) LPELR-43416(CA) it is stated:

“It is not in doubt that a dispute Plan is one other way of establishing identity of land claimed by a Plaintiff and disputed by a Defendant. Where a Plaintiff has filed and tendered a dispute Plan, it behoves a Defendant who wishes to challenge or dispute the identity of the land, to prepare and tender a Counter-Plan; otherwise he will fail. See Omoregie v. Idugiemwanye (1985) 2 NWLR (pt.5) 41; Ogun v. Akinyelu (2004) 18 NWLR (pt.905) 362 and Archibong v. Ita (2004) 2 NWLR (pt. 858) 590 at 629 – 630.” Per TSAMMANI, J.C.A. (P. 51, Paras. C-E)

It is does appear that there is no dispute as to the identity of the land and the Defendants agreed with the Plaintiffs regarding the name of the land. The identity of the land was not made an issue in the Defendant’s pleadings. He did not dispute either the area of the land or the location. See FRANCIS ADESINA AYANWALE VS. OLUMUYIWA OLUMIDE ODUSAMI (2011) 12 SC (PT. 11) 59 AND ALIMI AKANBI DADA VS. CHIEF JONATHAN DOSUNMU (2006) 18 NWLR (PT.1000) 134; (2006) 12 (PT.2) SCM 108; (2006) 27 NSCQR 485, GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282. In UCHEGBULE AMADI & ORS. v. ONONIWU NNADI NWANYINKWO & ORS. (2012) LPELR-19682(CA) it is stated:

“The necessity of the claimant to lead evidence on the identity of the land will arise or become an issue at the trial, if and only if, the defendant has made it so in his statement of defence. In other words, the identity of the land in dispute will be in issue if; and only if, the defendant in his statement of Defence makes it one, by disputing either the area or the size or the location or other feature indicated by the plaintiff in his statement of claim. See NWOGO v. NJOKU (1990) 3 NWLR (Pt.140) Pg.570. Accordingly, where the identity of the land is not disputed by the defendant’s pleadings’ and the land is known to all the parties to the dispute, it will not be necessary to have either a survey plan of the land or read evidence as to the identity of the land in dispute. See NWANKWO v. OFOMATA (2009) 11 NWLR (Pt.1153) Pg. 496; EKPEMUPOLO v. EDREMODA (supra) at pg.195 and ANYANWU v. UZOWUAKA (2009) 3 NWLR (Pt.1159) PG.445.”Per (Pp. 23-24, paras. D-A) –

Looking at the Survey plans tendered by the Plaintiffs and Defendants, I do not see any major conflict that may warrant the requirement of a composite plan. In AJIBOYE v. ONIGBINDE (2014) LPELR-23117(CA) the Court stated:

“As I stated earlier, those composite plans were filed or tendered with a view to showing whether or not the Appellant trespassed onto the Respondent’s land. This is a commendable act by both parties, as the law is that, where two plans are filed, one by the Plaintiff and the other by the Defendant, and which plans contradict each other, there is the need to file a composite plan to resolve the issue. The respective plans will be compared with the composite plan, so as to see which version of the plans captured the issue in dispute or contention between the parties. See Bitas v. Suleiman (1973) All N.L.R. (pt. II) p. 282; Bankole v. Pelu (1991) 8 NWLR (pt. 277) p. 523 and Nnadi v. Okoro (1998) 1 NWLR (pt. 535) p. 573.” Per TSAMMANI, J.C.A. (Pp. 42-43, paras. A-B)

While the survey plans have almost the same features, it does appear that the Survey plan of the Defendants is more detailed. In OBI V. OZOR (1991) 9 NWLR (PT. 213) 94 AT 105, it is stated:

“The purpose of filing a counter – plan by a defendant in a land matter is to indicate very clearly that the plaintiff’s plan does not accurately represent the correct position of the features on the land in dispute or that the land in dispute is wrongly delineated.

Now looking at both surveys, while in the North boundary the Plaintiff indicted the boundary as Michael Amechi land now in dispute with Ntole Family, and the Anyanwu land on pledge to the Defendants, the Defendants indicated the North boundary as Ntoles land not in dispute.

In furtherance to this, while testifying on the boundary neighbors, the PW1 stated that in the North by the land of Michael Amaeshi, as well as our (Anyanwu) family land which is on the pledge to the Defendants (Ntole) family. The defendants are currently disputing the former land with the family of Micheal Amaeshi. The Plaintiff did not lead any evidence to prove that the land being occupied/owned by the Defendants which is a boundary neighbour to the land in dispute is on pledge to the Defendants.

To prove a pledge transaction, the who asserts a must establish:(i) Proof of title to the land (ii) Existence of pledge of the land to the defendant (iii) Witness(es) of the pledge transaction (iv) Circumstances and the consideration for the pledge. See OBI v. NWAGWU (2017) LPELR-43281(CA) Per MBABA, J.C.A. (Pp. 42-43, Paras. C-B)

It is not sufficient to just say that the land was on pledge to the defendant. No date was put on the alleged pledge. In EUGENE NWAOKAROBIA & ANOR. V. DANIEL UZOHO & ORS. (2006) LPELR-9813(CA) it is stated:

The evidence of recent acts of possession exhibited by the Appellants is a far cry from credible evidence. They gave a piece of land to the pw5 who farmed it for two years, in what year’ we do not know, and that is supposed to constitute sufficient act of authority over a piece of land? Seems more to me like the conduct of a flimsy man of straw consciously waiting to be consumed by a spark of flame!

In IROAGANACHI v. MADUBUKO & ANOR (2016) LPELR-40048(CA)” it is stated:

It was held, that it is the duty of the person who alleges that a pledge, under native law, has taken place between him and the holder of the land, to prove the existence of the pledge transaction and if he cannot do so the claim fails. The onus is clearly on the plaintiff, this being a land case involving a declaration of title to land, to prove the existence of the type of pledge to which he owes the title of the land he claimed. In discharging the onus, the Plaintiff must rely on the strength of his case.” See Kodilinye vs Mbamefo Odu (1935)2 WACA 336; Okpala vs. Ibeme (1989) NWLR (Pt 102)208; Atuanyua vs Onyejekwe (1975)3 SC 115.In the case of Ndoro & Ors vs Planwii & Ors (2002) LPELR -?? 5482 (CA), it was held that to prove a pledge the person pledging the land must prove:” his title to the land, then the pledge itself, the parties to the pledge, the witnesses, time and circumstance of the pledge and the consideration! See also Onobruchere Vs Ezegine (1986) 1 NMLR (pt.19)799.” Per MBABA, J.C.A. (Pp. 39-41, Paras. E-A)

The Plaintiff did not supply any evidence of dispute between Ntole and Michael Ameashi or evidence of pledge to Ntole. It is not the Plaintiffs that are disputing these portions with the Plaintiffs but third parties. I will accept the indication that the land in dispute is bound in the North by the Ntole’s land as indicated in the Defendants survey plan.

While in the West the Plaintiff alleged that the land was bounded by the road leading from Umuohi Ndigbo to Mbutu and beyond that by the land of Emenogu now in dispute with Ntolu family, the Defendants indicated as Ntole family land simpliciter. Here again the Plaintiff did not adduce any evidence to show that indeed this portion of land is in dispute between the Ntole and Emenago. The Plaintiffs did not field as witness any member of Emenago to show that indeed they are disputing that portion of land with the Defendants; I will therefore take it that the land in dispute is bounded by Ntole’s land in the West.

While the Plaintiff indicated that the land is bounded at the South – West by Nze Dikocha’s compound, land of the Dikocha family and Umu oshi village square called Ogbakoro Umuoshi, the Defendants plan indicated that before Ogbakoro Oshi square is Dikocha land a portion that was sold to Dikeocha. And in respect of this sale the PW1 under cross examination stated:

I am a member of Okoroha family, Dikeocha is also a member. Bosa Dikeocha trickily went to Eric and bought that portion of land thinking that we will not know. When we came to know it generated a very great problem which have never ended. That portion he bought which generated problem, is our own and we must get it back

We never knew when Eric sold it to Bosa Dikeocha, it is from this case we got to know it. It is not true that my house is not more than a pole we are very far. It could be up to half a mile. We knew he was living there but we never knew that Dikeocha has extended to our own land. Now that we have known we felt that when this case is finished, we will join that one. Yes, the surveyor is not a native. On the question did you show the surveyor that your land which was sold to Dikeocha, he replied we knew it during this case.

Hence the Plaintiffs acknowledged that Bosa Dikeocha is a member of their family and he bought this land from the Defendants. The sale is evidenced by Exhibit H. The Exhibit H stated:

“This Agreement is made this 22^nd day of June in the year of Our Lord, One Thousand Nine Hundred and Eighty Three between Ntole Community represented by

1.George Ezelu, (2) Eluwanya Iwuala, (3) Julius Obogu and (4) Chuef Eric Obogu all of Umuoshi Ndigbo, Uvuru in Aboh Mbaise who are hereinafter called the Vendors on one part and Nze Bosah Dikeocha of Umuoshi Ndigbo, Uvuru in Aboh Mbaise in Imo State of Nigeria, hereinafter called the Vendee on the other part.

In respect of the sale represented by this agreement, the DW3 under cross examination stated:

The land is divided by Umuoshi village square. The road is leading from Ndi igbo Ovuru to Mbaise.

It is not correct to say when the plaintiff discovered that I purportedly sold part of the land to Boseh Dikeocha they protested. I know the meaning of protest. It is correct to say that the plaintiff father first sued my Family over the land in dispute to the Magistrate court in 1986. They protested by pulling down structures built not by Nze Boseh Dikeocha but Rev. J.A Obi Elamebu- house. After plaintiff father sued in 1986 their family went to high court over the same land in 1990. On the question: it is correct to say that Agric palm trees you claimed to have planted on the land in dispute in 1989 was planted during the tendency of the suit. He answered: Yes I planted in 1989.

That plaintiff had earlier pleaded: We the claimant descended from the lineage of Okorocha, who was our great great-grand father. Okorocha in his life time was in exclusive possession of the land in dispute and exercise act of possession including farming and harvesting of economic trees on the land.” The buying or purchasing of a portion of this land by a descendant of Okorocha is a negation of whatever claim the plaintiffs have over the land. Nobody buys what belongs to himself or his own property.

It is not in disputed that there was such a transaction and the said Dikeocha put in possession. Under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land by the vendor to him. It is not necessary to have a written contract or conveyance as under English law. It is now well settled that payment of purchase price and delivery of possession are sufficient to effect a valid sale and a valid title by native law and custom. See YUSUF v. DADA & ANOR (2017) LPELR-42001(CA)  Per OWOADE, J.C.A. (Pp. 20-21, Paras. B-C, MOSES V. ONU & ANOR (2013) LPELR-20348(CA), OKONKWO V. OKOLO (1988) 5 SCNJ 128 Per TUR, J.C.A. (Pp. 63-64, Paras. E-B). In this case both parties are ad idem that Dikeocha took possession of the portion sold to him by the Defendants.

It will appear to me that the Defendants have shown much present in and around the land in dispute. They have been more visible in exercising right of ownership over the land in dispute and portions of land adjacent and/or adjourning the land in dispute. In GODWIN C. ONOVO & ORS v. FERDINAND MBA & ORS (2014) LPELR-23035(SC) it is stated:

Thus, Section 35 of the Evidence Act, 2011 reads as follows: “35. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.” See Alhaji Karim Laguro & Ors. v. Honsu Toku (1992) 2 SCNJ (Pt.1) and Udeze v. Chidebe (1990) 1 SCNJ 104.

Each of the parties claimed that they buried their relatives on the land in dispute. Almost at the same spot the Defendants claimed to have buried Ada Eluwa Iwuala is where the plaintiffs claimed Ada Aririle of the plaintiffs was buried looking at the two surveys admitted in evidence. Burial of a relative in a portion of land may be evidence of ownership. In OBINNA ONWUAKPA & ORS v. NNENNA ONYEAMA & ORS (2018) LPELR-45091(CA) it is stated:

“It will seem that the burial of corpses on any particular land is symbolic and has socio-cultural significance and this explains the contestations as exemplified in Exhibit 36, a letter or Notice tendered in evidence by the appellants. It signifies ownership of the land, where the person or family member of that family was buried. In the book, ” A.B.C. of Contemporary Land Law in Nigeria” (Revised and Enlarged Edition), I.A. Umezulike wrote at pages 41-42 that: “Customary land law attaches first or permanent importance and significance to burial of forebears, relations and, or family members on parcel of land. In strict customary land law such parcel of land is regarded as sacred and exclusive to the family or person whose dead ones were buried on the land.”

Where both parties claim to have buried their relatives on the land as evidence of ownership, the onus is the plaintiff to prove his assertion. The onus is on the party who will fail if no further evidence is led on either side

On the boundary neighbours to the lands in dispute, PW1 on boundary evidence stated:

“The land the subject matter of this action, is called Ukpolu Ama located at Ama Umuoshi(Umu Oshi Village Square) Ndigbo Uvuru. The extent, features and the dimensions of the Ukpolu Ama land in dispute is as verged red in the survey plan No. OSN/D2/2003. the Claimant state that the land in dispute is bounded as follows: A) In the North by the land of Michael Amechi, as well as our (Anyanwu) family land which is on the pledge to the Defendants (Ntole) family. The defendants are currently disputing the former land with the family of Micheal Amechi. B) In the North East by the land of Josiah Nwachukwu sold to one Gideon Njoku (now a palm plantation) and in the East by the land of Umu Oriaku family of Umunebia Ndigbo Uvuru. C) In the South East by the land belonging to Umuejelonu family of Umunebia Ndigbo Uvuru. D) In the South by the land of Umuoshi Okike family of Umunebia Ndigbo Uvuru E) In the South West by Nze Dikeocha compound land of the Dikeocha Family and the Umuoshi Village Square called Ogbakoro Umuoshi, F). In the West by the road leading from Umuoshi Ndigbo to Mbutu, and beyond that by the land of the Emenego family. We state tat the land in dispute belong to us and that we are in possession of same. We further state that the land in dispute as well as other lands in Umuoshi were deforested by Oshi, the founder of Umuoshi, and our great ancestor.

The Defendants through the DW3 testified:

The two parcels of land in dispute are as shown in our amendment Survey Plan- Plan No.NCC/D05/2011 date 25^th October 2011. The large parcel of the land in dispute has the following as its boundaries namely:(a) The Defendants’ Ntole family land (b) Josiah Nwachukwu land, portion of which he sold to Chief Gideon Njoku which he planted agricultural palm trees. c) Bensin Nweke and Umuejelonu family, d) Afonne Nwamadu land, e) A portion of the Defendants’ family land sold to Nze Bosah Dikeocha, now late, where he built his residential house. The agreement purchase receipt dated 22^nd day of June 1983 shall be tendered at the trial. F) Ogbakoro Umuoshi ( Arena) and Uzo Awaka land. On the small parcel of the land called Okpulo Ama which is also in dispute has its boundaries as follows: a) By the Defendants family land. b) By Umuoshi Town Hall, c) By Dikeocha family land and a small portion sold to Ahuchama family of Umumgbada family which they used in building block Zinc fence d) By the Defendants family land and where some of the Defendants reside.

In furtherance of this boundary evidence, the Defendants called DW1 who at the time he was cross examined was 32 years. By simple arithmetic he was born in 1985. He deposed to his written deposition in 14-12-2011 and was cross examined on 19-6-2017. His testimony is:

“I know both parties in this suit. I only know about a larger portion of the two (2) parcels of land in dispute. The bigger portion of the land in dispute is known as and called “Okpulo Ama”. It is located at Umuoshi Ndigbo Uvuru in Aboh-Mbasie LGA. My father, Mr. Benson Nweke, now late, told me that the owners of that larger portion of the land in dispute is Ntole family of the Defendants. That portion of “Okpulo Ama” land has a common boundary with our own family land. From the time I was farming on our land by accompanying my father up till today, I only see the Defendants Ntole family farm and harvest the Agricultural palm trees they plated on a portion of that larger portion of Okpulo Ama” land now in dispute. I have not for one day seen the Claimants Anyanwu family either farm or harvest those Agricultural palm trees on that larger portion of the land in dispute. I do not know anything about the smaller portion of the land n dispute.

Under cross examination:

“I am 32 years old. Yes I know this dispute has been various courts since 1986. From my age I was less than 2 years when the first suit was filed in 1986.

Yes I am aware that in the cause of this dispute there have been many arbitrations in respect of the dispute by various bodies within Ovuru community. The first arbitration was in 1983. I was not born that time. I do not know they were in court. I do not have an idea that I have not seen the plaintiff harvest on the farm because they were merely complying with the rule that you do not interfere with a pending case. I am a trader. I sell provision. I stated in my disposition that I am a farmer because I am in the village and sometimes, I go to the farm. I was not paid to come and testify

From the evidence led, the surrounding facts and circumstances herein disclosed, coupled with the acts of ownership and possession by the defendants; I am prepared to hold that their traditional evidence is more plausible. That is to say that from my assessment of the witnesses, their oral and documentary evidence I am unable to find for the Plaintiffs in this case. The Plaintiffs have failed to discharge the onus of proof placed on them by the nature of their claim. The case of the Plaintiffs fails and is accordingly dismissed.

I so hold.

I.M.Njaka

Judge

1-3-2021