SUIT NO.: – HOW/869/2017- MR. LINUS ANOZIE (FOR HIMSELF AND AS REPRESENTATIVE OF THE ENTIRE ANOZIE FAMILY OF UMUNKPUKE IN UMUNKWENYE VILLAGE) V MR. SABINUS IGWE ODUNZE, MR. CHIDI OKPE, MR. DONATUS OBINECHE, MR. LAZRUS OKPARA (FOR THEMSELVES AND AS REPRESENTATIVES OF THE ENTIRE UMUNKPUKE KINDRED EXCLUDING ANOZIE FAMILY), MR. EMMA I NDUMANYA- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – delivered ON THE 21ST DAY OF DECEMBER 2021- Arbitration according to customary law is an accepted means of settling disputes- five ingredients must be pleaded and established- right and freedom to resile from a customary arbitration- Refusal to provide or swear to a juju in the conclusion of arbitration can be seen as opting out or resiling from the arbitration- arbitration decision must be accepted by the parties at the time it was made for it to be binding- it may not be considered binding if either party refuses to accept the decision (based on the specific facts of the case)- five types of legal land ownership in Nigeria- burden of proof lies with the plaintiff when there is no counterclaim- methods of proving land ownership under native law and custom, including gifts of land- proof of a gift by traditional history arises when the event is beyond the memory of living witnesses- definition of a gift inter vivos- In cases of individual ownership versus communal ownership of land, the onus of proof lies on the party asserting individual ownership- t is essential for the head of a family to join in the conveyance, and the principal members of the family must consent to the transaction for the sale of family land to be valid

IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

ON THE 21^ST DAY OF DECEMBER 2021

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

SUIT NO.: – HOW/869/2017

BETWEEN

1. LINUS ANOZIE

(FOR HIMSELF AND AS REPRESENTATIVE OF

THE ENTIRE ANOZIE FAMILY OF UMUNKPUKE    PLAINTIFF

IN UMUNKWENYE VILLAGE)

AND

1. SABINUS IGWE ODUNZE
2. CHIDI OKPE
3. DONATUS OBINECHE
4. LAZRUS OKPARA

(FOR THEMSELVES AND AS REPRESENTATIVESDEFENDANT

OF THE ENTIRE UMUNKPUKE KINDRED

EXCLUDING ANOZIE FAMILY)

5. EMMA I NDUMANYA

JUDGMENT

The Plaintiff instituted this suit in a representing capacity for himself and on behalf of members of Anozie family of Umunkpuke in Umunkweye village Irete in Owerri West Local Government Area, Imo State, on 22^nd November, 2017 and claimed as follows:

1. A declaration that the Plaintiff is the person entitled to statutory right of occupancy in respect of the parcels of land known as and called “OBA UMUOMA LAND” situate along Irete-Okuku Road, In Irete, Owerri West Local Government Area.
2. A declaration that the purported sale of a portion of “OBA UMUOMA LAND” by the 1^st – 4^th Defendants to 5^th Defendant is invalid, null and void and of no effect.
3. N5, 000, 000. 00 (Five Million Naira) being damages for trespass against the 1^st – 5^th Defendants for forcefully entering the “OBA UMUOMA LAND” without the prior authority, consent or permission of the Plaintiff.
4. AN ORDER of perpetual injunction restraining the Defendants by themselves, their agents, servants workers, contractors or privies from further entry into the said “OBA UMUOMA LAND” to dump any building material or build or purport to do anything whatsoever on the land without obtaining the prior authority or consent of the Plaintiff.

To prove his case, the plaintiff called 3 witnesses

PW1- Linus Anozie testified and adopted his written deposition made a deposition on 22-11- 17 and 31-1-18. And through him the following documents were tendered:

1. The decision of council of Ndi Nze dated 21-4-16 is admitted as Exhibit A.
2. Decision of council of Ndi Nze dated 14-10-16 is admitted as Exhibit B
3. Verdict on land dispute dated 1-9-17 is admitted as Exhibit C.
4. Dispute Survey plan is admitted as Exhibit D

Cross examination

It is correct to say that my great grandfather is also great grandfather of 1^st – 4^th Defendants. It is not correct that my great grandfather Duruoji begat Igwe Odunze, okpe and Madu. I and the 1^st – 4^th Defendant are from the same kindred at Irete. One kindred of different 6 families. It is not correct that by virtue of the fact that we all came from the same kindred we had always owned and shared all the lands jointly since time immemorial. This land in dispute which I am claiming exclusive ownership over my great grandfather and my late father had exclusively owned the land and farmed on it without any contest from anybody. Apart from my kindred called Umunkpuke, my village is called Umu Nkpenye. It is correct I am aware that my village people Umu Nkpeneye know me and the defendants very well and their origin. It is correct I did summon the defendants before Umu Nkpeneye my people over this same land in dispute. In the arbitration – told me that both of us are joint owners of this land in dispute because they know us very well but the Anozie appealed against that verdict to Irete Council of Ndi Nze. It is not correct that even at that appeal they also told me that the land is jointly owned by me and the 1^st – 4^th Defendants

At the same appeal it is the panel that introduced the issue of oath taking and not I. The panel in their wisdom decided that the defendants should take oath and give them enough time. In my village land is acquired in various ways- by deforestation by purchase by long possession of land. This is privately and personally owned land. Not jointly owned. I stated that I acquired this land through my grandfather who also got the land from one Oke as a result of herbal service he rendered to the said oke. This land given to your grandfather by Oke did Oke own it as a private land or joint land. The said land in dispute I am aware that my entire kindred farmed on it last year and the cassava is still there today. They forcefully entered in the land despite the injunction by Irete Council of Ndi Nze and Umu Nwaoha council of Ndi Nze that placed “omo’ on the farm land.

It is not correct that what I told the court never existed anywhere but in my own imagination. I did not have any hand in the farming. I farmed on the land in 2014 and to farm on it on 2019. I gave five years interval. But they forcefully entered the land in 2018. In that 2014 I farmed there alone as a private land. I never consented to sale of any land. If there was any purported sale of the land it was without my consent as head of family. When I never consented, there was nowhere I would have asked for lion share. It is not correct that I am not a witness of truth

PW2 – Alexander Anozie testified and adopted his written deposition o 22-11-17.

Cross examination

I am a younger brother to PW1. I also know the 1-4^th Defendants

I am not of the same family with them but of the same kindred. I do not know one Duruji him in person but I have heard his name. There are many ways of acquiring land- deforestation, gift, — outright sale. It is not all land that are owned communally. I cannot as a head of family singlehandedly give out my family land to someone else. It is my grandfather Anozie’s land. It is not true that my late father did not also claim exclusive ownership of the land. It is not true that since time immemorial this land has been owned collectively by the entire family of the plaintiff and the 1^st – 4^th defendants. It is not true that in 2016 the family of the plaintiffs and the 1^st –4^th defendants farmed jointly on the land and the cassava is still there. It is not true that this land in dispute has been sold by the families of plaintiffs and the 1^st – 4^th Defendants

I came to know the 5^th Defendant when we saw where they parciliated the land, we made enquiries and 5^th Defendant came up and we told him that the land is Anozie family land. It is not true that my problem with 1^st – 4^th defendants is the sharing formula of the land proceeds. It is not true that I and my brother wanted the loin share of the proceeds and other defendants said no to us. The name of my village is Umunkwenye. I am aware that Umunkwnye was the 1^st to arbitrate on the dispute between me and the 1^st – 4^th Defendants. It is not true that in that arbitration, the award went in favour of the Defendants. It is not true that the Umunkwnye Village Council who knows me very well and the defendants made it clear to me that the land is a communal land.

In exhibit A where I alleged oath taking- there is something as such. In Igbo custom if two parties are disputing ownership of land the parties who want to take the land will take the oath.

We are not the one claiming. They are the ones claiming. The land has been our own for a long time. I am the one who first took the matter to Umunkwenye Council. Dissatisfied with the decision of Umunkwenye we appealed to Council of Ndi Nze. It is not true that in other words I am making a false claim. It is not true that this land has been jointly owned by the plaintiff and 1^st – 4^th Defendants ever time immemorial

PW3 testified and adopted his written statement of 24-10-18.

CROSS EXAMINATION

People do not mount pressure on me to come and testify falsely. What I testified to is the truth. I do not testify falsely. I attend Cherubim and Seraphim. What I testify is the truth. It was when I was called that I came. I am the 2^nd wife of late Onyejinwa, 1^st wife is late. It was long Onyejinwa live with me before he died. I lived long with him before he died. It is above 40years. I am above 60years old. I did not write down when my husband died. I did not go to school. I was about 20 years old when my husband married me. I am aware that the land in dispute has been arbitrated on by my kinsmen, that is my husband’s people arbitrated on it. I did not participate because I am a woman. It is men affair. I did not testify. Even before I married my husband, he was already the Oki or head. He was the oki for a very long time. My husband did not farm on the land in dispute till he died. We were taken it on seasonal lease. In 2010 when the entire kindred farmed on the land, I did not farm there. My legs did not touch there. Since the problem started, I have not farmed there. I will not testify against anybody. I attend Cherubim and Seraphim. What I testify about is what happened. I will stand for the truth. What I said is the truth.

DEFENCE CASE:

DW1 -Sabinus Igwe Odunze testified and adopted his written deposition of 15-1-2018. Through him the defendant tendered:

1. The decision of Umu Nkwenye Village meeting is admitted and marked Exhibit E.
2. The decision of Umunkwenye Council of Ndi Nze dated 19-2-16 is admitted and marked exhibit F
3. List of signatures is admitted and marked exhibit G
4. The perimeter survey plan and parcilaition diagram are admitted and marked exhibits H & H1

Cross Examination

He is the one that set up the committee – Linus Anozie set up the committee. I was the chairman and Daniel Okpara was the Secretary. That the committee should go and look for buyer. After Linus Anozie set up the committee, some people said it should be sold and some said it should not be shared. The majority who said it should be sold put it in writing. The plaintiff and his brothers did not sign exhibit G – purported consent because Anozie Linus was not at home and Alexander was not at home. The plaintiff is the ofo holder and not the eldest in my kindred. The Plaintiff is not the okeyi. He is the oji-ofo

The plaintiff and his brothers did not sign any power of attorney but when the buyer came, he told the committee to take care of selling and send the money to his account. Money was paid into the account belonging to my kindred in respect of the sale. It is a general land. All of us farmed on it in 2015. Augustine Okpe was my uncle. I do not have it off hand when he died. He died before 2015. Onyeajunwa also farmed on the land in his capacity as okeyi while alive. I was a kid then the period Onyeajunwa farmed in the land, I can’t tell exactly how old I was when Onyeajunwa died. I was in Primary two class in school when he died.

The land is a general farm. We farmed on it generally. There has never been a time it was disputed by anybody with the kindred till the time the plaintiff said that people are selling land and set up a committee ad directed that we should look for buyer. Linus Anozie asked us to find buyer. We found buyer. The only problem is the sharing of the proceeds.

The money paid into the kindred account is there up till today. It is a village meeting. After we discussed what to do, we leave. It is not everything that is written. It will be correct to say that the decision of my kindred to sell the land was written in the minute of the meeting on that date. I did not come with the minutes of meeting today. If it is requested, I will bring it.

The family of the plaintiff was okeyi between 1980 -1990. It is farmed generally whether okeyi or not okeyi. I can’t remember if Augustine Okpe died in 2005 while he was still the okeyi. Umunkwenye family meeting decided first and said it belong to kindred. Then they took it to Irete Council of Ndi Nze. Irete Council of Ndi Nze told him that it is a general land. He took it to Umunwaola Council of Ndi Nze, they also told him it is a general land. And then this court. There was a debt as to whether those who are disputing the ownership should take the oath or we that should take the oath. The decision of Umunkwenye was not signed by Kindred Chairman but he gave the instruction and left for Lagos. Mutilation on page 43, might be a mistake from the typist. Umu Nwaoha Council of Ndi nze gave judgment in our favour after some weeks they came to collect the judgment that there is something they want to correct. Good enough before I gave them the document, I have already photocopied it.

Umu Nkpuke is made up 6 families, but one family is late and we are now 5 families. I was not born at the time Okpara Oke gave Dim Anozie the land in dispute for payment for traditional medical services rendered to him but the history has told us everything concerning this. Irete Council of Ndi Nze decided in our favour and that we should go and settle among ourselves. We accepted all the decisions but it was our brother that was taken us round.

DW2 -Daniel Oge Dan Opara testified and adopted his written deposition of 16-1-18

Cross examination

I just informed the court that on 16-1-18 I filed a written deposition. I signed it in the court. All I know is that it was signed in the court, given to the court and adopted in the court. My father resides in Irete Umunkwenye. My father is still alive. It is not true that my father does not follow me to the court because he does support my dispute over this land. He is aged that is why he is no longer coming to court. My contention is that the land in dispute belong to the entire Umunkwenye Kindred. It is correct to say that no member of Umunkwenye acquired any land by deforestation. We acquired it or it was given to us through our sister kindred Umuekem in Umunkwnye. Not only that almost all the land we have in Umunkpke were given to us by Umuekem Kindred. According to history we were told we ran to them for succor. That was why those lands were given to us.The land in dispute is situate along Umuonu- Okuku Road. Umuekwe Kindred have land along this Umuoma – Okuku road. That was why they land was given to us there. It is correct to say that a Kindred land can be in the hand of an individual a single family for over 30 years. The land in contention by custom and tradition is rotational and has never since immemorial been in possession of one person for more than 30years.

There is a great difference between kindred land and Ala Oganaka Ndi Okenyi. The one that is rotational is ognaka-ndi okenye cannot stay up to 30 years in one person’s hand except. Oganaka ndi okenyi is until the person dies. So, staying under an okenyi for 30 years is an act of God. My father is the oldest in the kindred now. My father will not be in possession of the land because he does not have the ofo. Whoever has the ofo works on the land. According to custom and tradition my father does not work on the land because he does not have the ofo. Opara oke is not from Umunkwenye not alone from my kindred Umunkpuke. He is from Umuoma in Irete. Augustine Okpe amd Onyeajunwa were ofo holder in my kindred, they worked and farmed on that land as the okenyi. I know Mrs. Felicia MaduOnyeajunwa. She is the wife of our former okenyi Onyeajunwa (late). Mrs. Felicia Onyeajunwa was not informed of the whole matter surrounding the situation. Moreover, she was the 2^nd wife. She must have been married after Onyeajunwa has farmed on the land.

I do not know when Onyeajunwa died. Felicia Madu is barren. She has no child. After the death of Onyeajunwa it was the father of the Plaintiff – Mr lazarus Anozie who took over from him as okeyi. Nothing like while Onyeajunwa was still alive, the family of Lazarus Anozie was in possession of this land and was farming on it happened or existed except some portions leased to some women including Mrs. Felicia Madu. It is a misinformation that before the land in dispute was sold, we did not seek the consent of the plaintiff and his family members. The okenyi was consulted he gave his consent and even set up a committee and made me the secretary of the committee. Kindred meeting is not a village meeting where you have a minute. In kindred meeting we discuss everything verbally and agree verbatim. Unanimously it was agreed orally and we now raised a signatory column for endorsement for the people who were in support of the sale of Oba Umuoma. At the time the ofo holder the plaintiff was residing in the North. So, we communicated with him via call. Augustine Okpe was an okenyi in Umu Nkpuke between the year 1990 – 2005 and within this period he was not in possession of this land as okenyi and never farmed on this land as okenyi. As at 1990 the Plaintiff father was still alive. He died in 1991. As at then Augustine Okpe has not mounted leadership as okenyi of Umunkpuke

It is correct to say that Augustine Okpe took over from the father of plaintiff. He farmed on the land as okenyi. I do not have the date we agreed to sell the land in dispute off hand but on the signatory paper before the court the date is there. The Umunkpuke kindred could not have farmed on the land generally when we have established before the court that the land is oganaka ndi okenye

When you come to the land, there is a portion we give to the ofo holder and we farmed on the rest of the land. It is approximately 56 plots. This explanation is not an afterthought. The land in dispute has been arbitrated upon by Irete Council of Ndi Nze

According to custom and tradition when one is claiming a communal land, the burden of proving same lies on the person claiming the communal land not the other way round. They did not ask us to take the oath. There was nothing like that because we failed to take the oath as agreed by parties the Irete Council of Ndi Nze put the decision in writing to the effect that the plaintiff owns the land. We asked them to tell the Plaintiff to take the oath since he is dragging a communal land. Yes, it is correct the matter further went to Umu Nwaoha Council of Ndi Nze. Umunkwenye family meeting was the first place that the plaintiff took the matter to and they judged that the land belongs to all of us. The first decision by Umu Nwoha Council of Ndi Nze was that the land belongs to the five families that make up UmuNkpuke Kindred. After one month, the Umu Nwoha Council of Ndi Nze wrote us to bring back this judgment that there are some corrections that they want to do on the judgment. After that they will call us. Up till date they have not called us. So, I do not know where he got this judgment. if they have given another judgment we do not know.

On the question Will it surprise is surprise to know that on 12-7-19 one of you collaborated – Sabstine Igwe Odunze DW1 admitted and identified the judgment of Umu Nwaoha Council of Ndi Nze he answered “Except he admitted the old one

UmuNkwenye Arbitral Body and Umu Nwoha Council of Ndi Nze and Irete Council of Ndi Nze are all equal. No ranking of such bodies. It is not true that before you take any complaint to Irete Council of Ndi Nze you ought to have gone to the village level that is Umunkwenye Village. Unless the person did not agree. So, the person can appeal. After Irete Council of Ndi Nze one can appeal to Umunwaoha Council of Ndi nze. We accepted the decisions of all the Arbitral Bodies because they were all in our favour except the one you presented to the court which we do not have the copy of. It is not true that the final decision of Umu Nwoha Council of Ndi Nze was read before the whole parties and was accepted by the parties. We disassociated ourselves from the judgment we did not have a copy of and not aware of. They collected the original copy from us. So, at the point of filling this there was nothing like the one presented by the counsel. The counsel read the writ of summons of the plaintiff and briefed us.

It is not true that the land in dispute belongs to the plaintiff and not a kindred land because the plaintiff has erred by telling the court that the land, he acquired the land in dispute through a medical service to one Mr. Oke Opara in Umuoha. It is a lie because the land of Oke Opara is coming to tell the court that that the land in dispute is not from his father and there was never a time such a thing happened. The land belongs to UmuNkpuke which included the plaintiff

The total money we got from the sale is in the bank. It was lodged in ECOBank. The problem was that the plaintiff wants the money to be lodged in his personal account. When we refused, he started contending the ownership of the land. Yes, I was saying the truth when I said that the bone of contention was where to lodge the money. Before the money is shared, it has to be lodged in an account. So that is what the paragraph 22 is all about. Money was lodged into Ecobank Account belonging to Umu Nkpuke Kindred in relation to the land in dispute. If the court pleases, we can print the statement of account for the court. I am a witness of truth

DW3 sworn on bible and speaks in Igbo language

Maduka Cajetan Opara is my name. I am from Umuonu Irite Owerri West. I know the Plaintiff. I also know the Defendant. The plaintiff and defendant are from the same village. On 16-1-18 I filed a written deposition. I wish to adopt it as my evidence.

Cross examination

I do not know how the defendant purportedly became the owner of the land in dispute. There was no time Duru Anozie cured Oke Opara of madness. It was from Mr. Linus Anozie that I heard that Duru Anozie cured my father madness. And I told him it was not true. The plaintiff never told me that Duru Anozie cured Oke Opara of his madness. It is not true/correct to say that member of kindred can acquire personal land by purchase or gift. My members of family have not farmed on the land. There was nothing like that when Okey Opara gave the land to Duru Anozie for payment as traditional services. I am not the only son of Okey Opara. We are five. I am 4^th position. My elder brother did not come to testify. They are not at home I am a witness of truth.

At the close of trial, parties filed and exchanged addresses. The Plaintiff in his address raised two issues for determination.

According to the counsel, the plaintiff claims title to the land in dispute by traditional history evidence and by acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner. The plaintiff referred to the case of Idundun v. Okumagba (1976) 9-11 Sc 227. The plaintiff pleaded evidence of Traditional history on paragraphs 7,8,9,10 and 11 of his statement of claims. The plaintiff stated that the land in dispute was used as payment in addition to money to Duru Anozie during his lifetime by Opara Oke for his traditional medicine services rendered to him by Duru Anozie and the evidence of the above claims was not successfully challenged by the defendant. The plaintiff also submitted that the defendant in their statement of defence failed or neglected or abandoned paragraph 7 of statement of claim. So therefore, it is deemed and admitted and requires no further proof (Agbanelo v. Union Bank of Nigeria L.T.D (2000) 4 Sc (Pt.1) 233. It is also submitted that the two apex Arbitration bodies in Irette gave their decision in favor of the plaintiff and it was without any objection as EXHIBITS B and C

ISSUE 2

The plaintiff pleaded that the defendant forcefully entered into the land in dispute, parcellated it and sold part of it to the 5^th defendant and jointly farmed on the remaining portion. And it was admitted by the defendant that he acted as narrated (section 75 of the Evidence Act) SEE Okpareke v. Egbuonu (1941) 7 W.A.C.A 53. He further urged the court to hold this issue in the affirmative.

DEFENDANT’S FINAL ADDRESS

The defendant also raised two issues

ISSUE NO 1.

From the outset, it has said with evidence that the Plaintiffs and Defendants are both family members. He also submitted that the subject matter (Land in dispute) is a communal and joint property since time immemorial and that the head of the family since time immemorial has held this land in trust for all the members of the kindred and this entitles any head of family the privilege of leasing the land to any other person each farming year when the members of the kindred must have gotten portion for farming. He further submitted that the plaintiff claims that the land was given to his grandfather as payment for treatment is a fatal since he couldn’t call any member of the family of Opara Oke for whom he is claiming to have given this land to him for treatment.

He also submitted also that the Onus of proof lies on a party who asserts that a family/ communal property belongs to him and must show how the exclusive ownership devolved on him. He submitted as well that the totality of the Plaintiff’s evidence, his root of title is very doubtful and improbable. He finally submitted that a family head lacks the capacity to transfer a family land or to even sell it as if same is his personal property, as alleged by the Plaintiff, who alleged this land in dispute was given to his grandfather by OKE OPARA.

ISSUE 2

The Defendant submitted that the land in dispute is a land jointly owned by the whole family. He submitted that the plaintiff failed to establish how a joint family property devolved on him exclusively. He also failed to establish how the Defendants trespassed unto the land as to warrant damages for nobody can be trespasser to his own property.

RESOLUTION OF MATTER

Arbitration according to the Customary Law is one of the accepted means of settling disputes in this part of the world. In CHUKWUDOZIE ANYABUNSI v. EMMANUEL UGWUNZE (1995) LPELR-503(SC) (1995) 6 NWLR (Pt.401) 255 it is stated:

“It cannot be over emphasized 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.” Per IGUH, J.S.C (P. 23, paras. A-D

There are ingredients that must be pleaded and proved by any party relying on a customary arbitration. Thus, in the case of CHIEF SIMEON NWANNEWUIHE V. CHRISTOPHER NWANNEWUIHE & ORS. (2007) LPELR-8247(CA) it is stated:

“Five ingredients must be pleaded and established by the party relying on customary arbitration as binding, 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 Igwego v. Ezeugo (1992) 6 NWLR (Pt.249) p. 561: Anyabunsi v. Ugwuze (1995) 6 NWLR (Pt. 401) p. 255: Egesimba v. Onuzuruike (2002) 15 NWLR (Pt.791) 466, (2002) 9-10 SC p. 1 I must observe that an injunction is the product of a judicial decision applying established principles in the exercise of a judicial discretion.” Per RHODES-VIVOUR, J.C.A. (Pp.23-24, Paras.C-A)

A party may resile from arbitration. In EKEZIE & ORS v. TASIE & ORS  (2019)LCN/13788(CA) it is stated:

“…I also noted that Exhibit ‘A’ clearly show that it was the appellants that refused to agree with the initial decision of the Arbitration Panel which led to the decision to take oath before the Panel consisting of D.W.2 who is a member of Mgbako Supreme Juju Shrine as seen in the “Judgment of Land Case” by the office of the Chief Priest Ngubko Supreme Shrine Omademe Town on pages 76 – 77 of the record of appeal. In EUGENE NNAEKWE EGESIMBA V EZEKIEL ONUZURUIKE (2002) LPELR – 1043 (SC) the Supreme Court while pronouncing on the conditions for customary arbitration to be binding held thus: – “For a customary arbitration to be valid, it must be shown: (a) that parties voluntarily submit their disputes to a non-judicial body, to wit, their elders or chiefs as the case may be for determination; and (b) the indication of the willingness of the parties to be bound by the decision of the non judicial body or freedom to reject the decision where not satisfied; (c) that neither of the parties has resiled from the decision so pronounced. See Agu V Ikewibe (Supra) and the cases cited therein.” – Per OGUNDARE, JSC on page 28 paragraphs B – E. Thus one of the attributes of customary arbitration is the right and freedom of parties to resile from the decision if it is unfavourable as held by the Supreme Court in RAPHAEL AGU V CHRISTIAN OZURUMBA IKEWIBE (1991) LPELR – 253 (SC) per KARIBI-WHYTE, JSC on page 26 paragraphs A – F thus: – “It is well accepted that one of the many African Customary Modes of settling dispute is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance arid (sic) from which either party is free to resile at any stage of the proceedings up to that point. This is common method of settling disputes in all indigenous Nigerian societies.” From the facts and circumstances of this case as it relates to Exhibit ‘A’ (the Judgment of the Customary Arbitration Panel) both parties resiled from the decision of the said Panel by their refusal to abide by its decision. While the Appellants’ refused to “stop at old binding” leading to a decision for oath taking, the Respondents failed and/or refused to “bring Juju” for oath taking (pages 76 – 77 of the record of appeal). Moreover, the decision of the Customary Arbitration Panel does not have force until pronounced upon by a Court of competent jurisdiction. In VINCENT O. AWOSILE V CHIEF F. O. D. SOTUNBO (1992) LPELR – 658 (SC) the apex Court per NNAEMEKA-AGU JSC held thus: – “It must always be borne in mind that the decision of arbitration whether native or orthodox lacks intrinsic or inherent force until pronounced upon by competent Court…..the Court pronouncement is what baptizes an arbitration decision giving it in the process, the power to operate as estoppels per rem judicatam.” 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)LCN/13469(CA). it is stated:

“I should also add that an arbitration decision must be accepted by the parties at the time it was made, among other requirements for it to be binding on the parties. See the case of Duru & Ors Vs Duru & Ors (2017) LPELR – 424 00 CA; Okwaranyia Vs Eke (1996)3 NWLR (Pt.436) 335; Ohiaeri Vs Akabeze (1992)2 NWLR (Pt.221) I; Onyenawuli Vs Onyenawuli (2017) LPELR – 42661 CA.

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)

The parties in this suit have tendered arbitral decisions. But it is evident that none was totally acceptable to the parties. The plaintiff first rejected the Umunkwenye Meeting Arbitration which is the closest to the disputing parties and probably more acquainted with the parties and fact surrounding the dispute. The arbitration that required the Defendants herein to take an oath at best was inconclusive as no oath was eventually taking. This was captured under cross examination thus: “According to custom and tradition when one is claiming a communal land, the burden of proving same lies on the person claiming the communal land not the other way round. They did not ask us to take the oath. There was nothing like that because we failed to take the oath as agreed by parties the Irete Council of Ndi Nze put the decision in writing to the effect that the plaintiff owns the land. We asked them to tell the Plaintiff to take the oath since he is dragging a communal land”. So, any arbitral decision handed down against the Defendant hinged on the alleged failure to take out will not stand.

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.

In paragraph 6 of the statement of Claim: The Plaintiff avers that during the life time of their grandfather, Duru Anozie, he was a Traditional doctor who also engaged in healing of sick persons. Plaintiff avers that the parcels of land in dispute were used as payment in addition to money to DURU Anozie their grandfather by OPARA OKE of Umuakom Umuoma Irete in Owerri West Local Government Area for the traditional medical services rendered to him by DURU ANOZIE. Which ever mode the plaintiff decides to use to prove his title, the onus is on the plaintiff to prove his case. More so where there is no counter claim. In ALHAJI IBRAHIM SHEKA v. ALHAJI UMARU BASHARI (2013) LPELR-21403(CA) it is stated:

“It is settled that in civil litigations, where a defendant does not counterclaim, the onus is on the plaintiff to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire vs Awoyemi (1972) 1 SC 1, Agu vs Nnadi (2002) 18 NWLR (Pt.798) 103, Ugoji vs Onukogu (2005) 16 NWLR (Pt 950) 97, Mani vs Shanono (2006) 4 NWLR (Pt 969) 133, Oyedeji vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484. 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 -Awomuti Vs Salami (1978) 3 SC 105, Olowosago vs Adebanko (1988) 4 NWLR (Pt 88) 275, Sosan vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546, Oyedeji vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484.” Per ABIRU, J.C.A. (P. 37, paras. A-F) –

The Plaintiff maintained that he inherited the land form his grandfather to whom the land was given as a gift in lieu of payment for services rendered to his client/patient. In DASHE & ORS v. JATAU & ORS (2016) LPELR-40180(CA) it is stated:

“An outright gift of land for settlement and grazing is a method of proving title under native law and custom. Settlement means actual physical occupation of the land in dispute. See Onadehin & Ors. vs. Sonuga & Ors. (1974) 1 All NLR (Pt.2) 452 at 461-462 and Momodu vs. Awodela (1971) 1 NMLR 127.” Per TUR, J.C.A. (P. 27, Paras. C-E)

In MR. DANIEL IKPAMAKU v. PRINCE OKORARE MAKOLOMI (2011) LPELR-4513(CA) it is stated:

“It is trite law also, that “gift” is also one of several modes of proving title to land and even it alone, if strictly proved, can justify the grant of declaration of title

The grandfather of the Plaintiff is just a third generation in between. The gift cannot be said to have happened time immoral. It could not be said to be beyond the memory of the living. Or happened a time in the past that was so long ago that people have no knowledge or memory of it. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act. Commissioner of Lands v. Kadiri Adigun (1937) 3 WACA 206. In AKINYELE & ORS v. ADEBAYO (2015) LPELR-24304(CA) it is stated:

“Furthermore, where a plaintiff in proof of title to land relies on grant or gift, proof of such grant or gift by traditional history only arises where the fact of the grant or gift was so ancient as to be beyond the memory of living witnesses to the event and not the evidence of tradition permitted by evidence Act. See Okonkwo v. Okonkwo (2004) 5 NWLR (pt.863) pg.87 @ 121 paras A – D, Adisa v. Oyinwola (2000) 10 NWLR (PT.674) PG.116 @ paras G to H and pg.184 paras F to G.” Per DENTON WEST, J.C.A. (P. 9, paras. E-G)

The act of gift inter vivor of a land for whatever purpose is defined in JONATHAN AIGBOKHAEBHO EHIZOYANYAN & ANOR v. JAMES I. AIGBOKHAEBHO EHIZOYANYAN (2021) LPELR-54164(CA) where the court stated:

“A gift inter vivos has defined in ANYAEGBUNAM v OSAKA & ORS (2000) LPELR – 508 (SC) thus “A gift inter – vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. See Halsbury’s Laws of England. 3rd Edition, Vol. 18, page 364 at para 692 . The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied the donor has no right to revoke the gift. See Dewar v Dewar (1975) 2 All E.R 728 at 72.” per MOHAMMED, JSC (PP. 23 – 24, PARAS. F – B) See also; GIWA – OSAGIE v GIWA – OSAGIE & ANOR (2009) LPELR – 4533 (CA); ISIJOLA v OLUSOGA (2015) LPELR – 41788 (CA); ABUBAKAR GABDO v ABUBAKAR USMAN (2015) LPELR – 25678 (CA). On how to prove a gift inter vivos, this Court in BASHIRU DAVIES v NOSIRU  AYINLA RAHMAN – DAVIES & ANOR ;

“…there was no clear – cut evidence that the alleged gift of the property was made in the presence of witnesses to make it a good/perfect and valid gift vide the cases of Ayinke v Ibidunni (1959) SCNLR 666 at 669, Orido v Akinlolu (2012) 9 NWLR (Pt. 1305) 370 at 387 to the effect that to prove a gift of property inter – vivos there must be evidence of actual handing over the land or property or declaration of the gift by the owner of the property and its acceptance thereof in the presence of witnesses.” Per IKYEGH, JCA (P. 13, PARAS D – F) See; EMMANUEL ENADEGHE v INNOCENT EWEKA (2014) LPELR – 24479 (CA).

Also, in OKECHUKWU ONUOHA v. OBIAGERI ONUOHA (2019) LPELR-48993(CA) it is stated:

“It is distinct in the pleading of the Appellant that he is claiming ownership of the enlisted properties via customary gift of the same to him by his brother. The law is clear that before a plaintiff can succeed in a claim for declaration of title to land, the Court must be satisfied as to the precise nature of the title he claims, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and there must be evidence establishing the title of the nature claimed. It is evident in the pleading of the Appellant that he is claiming those properties via customary grant of land inter vivos. The salient question is, “How does he establish such gifts of lands inter vivos under customary law?” To prove gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. See Ayinke v. Ibidunni (1959) 4 FSC 280 at 282 where Ademola, C.J.F., observed that disposition of properties could be made under native law and custom by a gift followed by a transfer of the property, or a declaration by a man on his death bed in the presence of witnesses. It is pertinent to note that irrespective of the document tendered by the Appellant, his only means of acquisition of the said property was by customary grant, and this he has to prove. I must observe that the Court below was engulfed by the document tendered by the Appellant in proof of the customary gift inter vivos claimed by the Appellant. He pleaded ownership by customary gift inter vivos, that was what he was expected to prove and nothing more. Whether the document referred to customary gift or not, he pleaded customary gift. It is trite law that in every litigation in the High Court where tenets of customary law and statutes are applied, native law must be proved. Merely asserting that ‘it is under native law and custom’ is not prima facie the native law and custom. See Ogunleye v Oni (1990) 2 NWLR Part135 page 745, per Belgore, J.S.C. (As he then was). Since he based his claim under the customary law, it is clear that customary law requires no writing for the transfer or gift, whether by way of sale or by way of gift. He is required to prove the actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift. “It is an elementary principle of law and has been held in a plethora of authorities that sale, transfer, grant or gift of land under native customary law is constituted by the handing over of the land so transferred in the presence of witnesses. The presence of witnesses is not only of evidential value, it is also a necessary part of the transaction. This is so because writing is foreign to native customary law and custom. The presence of witnesses gives the transaction not only solemnity but also validity. See Kamalu V. Ojoh (2000) 11 NWLR (Part 679) P.505 at 517 Paras D-E, Cole V. Folami (1956) 1. F.S.C 66 @ 68, Ajayi v. Olanrewaju (1969) 1 All NLR 382 @ 387, Orunengimo V. Egebe (2008) 9 S.C.L.R (ph.7) pg. 82 @ 102.” See AKINYELE & ORS v. ADEBAYO(2015) LPELR-CA/AK/114/2012 per Denton West, J.C.A.” Per THERESA NGOLIKA ORJI-ABADUA ,JCA (Pp. 58-61, paras. D-B)

This is individual against communal ownership. In MR. JOSEPH EFFIONG EDET & ORS v. CHIEF OKON ETIM EFIO-EKPO & ORS (2016) LPELR-41194(CA) it is stated:

“The position of the law is unequivocal and was well stated by Chief Onyebueke that onus of proof is on the party asserting individual ownership of land against a claim of communal ownership of the said land. See CLEMENT V. ODUNUKWE VS DENNIS OFOMATA & ANOR (2010) 44 NSCQR 379.

The task of the plaintiff was/is made harder by the evidence of DW3 who claimed that no such land was given out by their progenitors as claimed by the plaintiff. The plaintiff has not proved exclusive title to entitle him to the reliefs sought herein.

Before I conclude this judgment, I felt it is imperative that I comment on the assertion of the Defendants that the sum of N23,400,000 was paid into the Ecobank Account No: 2353013507 on behalf of Umunkpuke Kindred in respect of the land in dispute. Throughout the hearing, the defendants did not show any evidence of payment of such amount of money. Even when the Plaintiff consistently denied such money was paid. No evidence of deposit or transfer made to the account supplied.

The parties here, I mean the 1^st – 4^th Defendants, admitted that at all time material the plaintiff was or is the head of the family/kindred. The implication of this is that any sale that was made without his consent first sought and obtained is a void sale. In MR. MICHAEL AIYEOLA v. MRS. RAMOTA YEKINI PEDRO (2014) LPELR-22915(SC) it is stated:

“It is essential to the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void ab initio. Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 390 at 404, 405.” Per MARY UKAEGO PETER-ODILI ,JSC (Pp. 37-38, paras. F-A)

Another issue in this suit is the assertion by the Plaintiff that it was a portion of Oba Umuoma farmland that was sold by the 1^st – 4^th Defendants. While on the part of the 1^st – 4^th Defendants it was the whole land that was sold. It shows that the parties are not ad idem at whether it was some portions or the entire portion of the land that was sold.

 

I cannot at this point change the capacity on which this action is brought. The Plaintiff did not sue as the head of the family/kindred. He is not challenging the sale on the ground of exclusion as the head but on the ground that the land solely and exclusively belongs to him.

From what I have said so far this action in my humble view fails and same is accordingly dismissed.

I so hold

I.M.Njaka

Judge

21-12-2021