(2018) LPELR-43962(CA)

Transcription

1 RAPHAEL & ORS v. UKACHUKWU & ORS CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Enugu Judicial Division Holden at Enugu ON TUESDAY, 13TH FEBRUARY, 2018 Suit No: CA/E/150/2014 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 1. RAPHAEL 2. JOHN ULASI 3. CHRISTOPHER ULASI 4. EUGENE ULASI (For themselves and on behalf of other members of Onochie family of Edoji Uruaga, Nnewi) And 1. HYGENTH UKACHUKWU 2. JOSEPH UDOYE 3. GODWIN GINIKANDU 4. JOSEPH NWAGBO 5. EJIDIKE NWAGBO 6. CHRISTIAN UKACHUKWU 7. EMMANUEL UKACHUKWU 8. MRS TOY AGBASI 9. BERTRAM AZUBOGU OBI 10. CHUKWUDI UDEZE EKWENIKE - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. CUSTOMARY LAW - FORFEITURE OF CUSTOMARY TENANCY: Effect of denial of a landlord's title by a customary tenant "But in cases where the tenants turn round not only to dispute the over lordship of the title holders but went out of their way to claim title, they forfeit their right as tenants and their possession of the land. In other words, the real basis of the misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord either by alienation of part of the land or refusal to pay attribute. See MAKINDE v. AKINWALE (2000) 1 SC 89 and ONIAH v. ONYIA (1989) 2 SC (Pt.1) 69 at 84."Per SHUAIBU, J.C.A. (Pp , Paras. F-B) - read in context 2. CUSTOMARY LAW - CUSTOMARY LAND TENURE SYSTEM: Methods of proving customary ownership of land "In the case of ONWUKA v. EDIALA (1989) 1 SC (Pt.11) 1 at 17, the apex Court held that 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."per SHUAIBU, J.C.A. (Pp , Paras. F-B) - read in context

3 3. EVIDENCE - ESTOPPEL: Nature and effect of estoppel "By virtue of Section 169 of the Evidence Act, 2011 a party who has, either by his declaration of act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceeding between himself and such person or such person's representative in interest, to deny the truth of that thing. In essence, such a person must accept the new legal relationship as modified by his own words or action whether or not it is supported by any point of law, or by any consideration but only by his word or conduct."per SHUAIBU, J.C.A. (P. 7, Paras. C-F) - read in context

4 4. EVIDENCE - PROOF OF CUSTOM/CUSTOMARY LAW: Whether he who asserts the existence of a custom must prove same "Generally, the burden of proof in a civil matter 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. 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. Consequently, a party who alleges the existence of customary law must prove that customary law because the law of Evidence regards it as a fact unless it can be noticed judicially. See ONYENGE v. EBERE also reported in (2004) 6-7 SC 52 at 60."Per SHUAIBU, J.C.A. (P. 8, Paras. B-E) - read in context

5 5. EVIDENCE - PROOF OF CUSTOM/CUSTOMARY LAW: Whether he who asserts the existence of a custom must prove same "From the above, it was the appellants who alleged the existence of the customary law visa-vis the customary arbitrations and therefore, the burden lies on the appellants because their existence cannot be judicially noticed. A party who alleges that there was arbitration must lead credible evidence to show that the arbitration which he claimed was held and same was binding on the adverse party. See EGESIMBA v. ONUZURUIKE (2002) 9-10 SC 1 at 55 and OHIAERI v. AKABUEZE (1992) 2 NWLR (Pt. 221) 1. Also in ESUWOYE v. BOSERE (2017) 1 NWLR (Pt.1546) 256. The Supreme Court has held that customary law is unwritten and is a question of fact to be proved by evidence except it is of such notoriety and has been regularly followed by the Courts that judicial notice would be taken of it without evidence required in proof thereof."per SHUAIBU, J.C.A. (Pp , Paras. E-C) - read in context

6 6. EVIDENCE - ESTOPPEL: What a party relying on the decision of the customary arbitrators as an estoppel must adduce "It is also settled that before applying the decision of a customary arbitration as an estoppel the party alleging arbitration must show that parties had voluntarily submitted to the arbitration, consciously indicted their willingness after the pronouncement of the decision, unequivocally accepted the award. While it may be sufficient to simply plead the fact of a previous judgment by a regular Court as the basis of an estoppel, merely pleading such a decision in respect of a customary arbitration without pleading the ingredients that project it as creating estoppel will not be proper pleading because not every decision of a customary arbitration, unlike that of a regular Court, can create an estoppel. In other words, the party alleging customary arbitration will have to adduce credible evidence of the relevant ingredients necessary to sustain the material plea of estoppel by customary arbitration. The appellants having merely plead customary arbitrations in paragraph (t) of the statement of claim without pleading the ingredients that project it as creating estoppel is not enough to sustain a customary arbitration."per SHUAIBU, J.C.A. (Pp , Paras. D-C) - read in context

7 7. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Whether a plaintiff can rely on the weakness of the defendant's case to prove his own case in action for declaration of title "In a claim for a declaration of title, the onus is no doubt on the plaintiffs to satisfy the Court on evidence produced by them that they are entitled to the declaration sought. This means that they must rely on the strength of their case and not on the weakness of the defendants' case and if this onus is not discharged, the weakness of the defendants' case will not help them and the proper judgment will be for the defendants' except where the defendant's case supports that of the plaintiff and contains evidence on which the plaintiff may rely on, the plaintiff is fully entitled to make use of such evidence."per SHUAIBU, J.C.A. (P. 18, Paras. C-F) - read in context

8 8. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: What is required of a person relying on evidence of traditional history in an action for declaration of title to land "It is settled law that a plaintiff who seeks title to land and relies on traditional history must, to succeed, plead and prove facts as to:- (a) Who founded the land, (b) How the land was founded and (c) Particulars of the ancestors through whom he claims."per SHUAIBU, J.C.A. (P. 20, Paras. B- D) - read in context 9. EVIDENCE - PROOF OF TITLE TO LAND: Whether evidence of traditional history is one of the accepted methods of establishing title to land "Thus, traditional evidence which is not contradicted and found by the Court to be cogent can support a claim for declaration of title as traditional evidence is one of the methods of proving title to land. See IDUNDUN & ORS v. OKUMAGBA & ORS (1976) NSCC 445, MAGAJI v. CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393, AKANBI v. SALAWU (Supra) and EWO v. ANI (2004) 1 SC (Pt.11) 115."Per SHUAIBU, J.C.A. (P. 20, Paras. D-F) - read in context

9 10. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: How conflicts in traditional evidence of parties are resolved by court "Where the histories offered by both sides are placed side by side weighed and found to be equally plausible or when there is difficulty of resolving which is correct, then the question of recent acts of ownership shall become relevant. Thus, the Court is bound to first decide which of the stories is more plausible or probable by reference to all surrounding facts and the circumstances and if both are equally plausible and probable, then by reference to recent acts of ownership as established by evidence. See OGUN v. AKINYELU (2004) 1112 SC 4 AT 18."Per SHUAIBU, J.C.A. (P. 22, Paras. B-E) - read in context

10 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Anambra State sitting at Nnewi delivered on the 6th day of November, The appellants as claimants before the lower Court claimed against the respondents jointly and severally as follows: (a) A declaration that the 1st - 7th Defendants being customary tenants of the plaintiff have no legal capacity to alienate, convey or sell any portions of lands the subject of their customary tenancies situate at Edoji, Uruagu, Nnewi whose annual rental value is N500, 000 (Five Hundred Naira). (b) A declaration that the 1st - 7th Defendants conducts of challenging the plaintiffs and refusal to pay annual tribute to the plaintiffs in respect of the land subject of customary tenancies amounts to grievous customary misconduct the penalty of which is complete forfeiture. (c) An order of forfeiture against the 1st - 7th Defendant in respect of the said lands. (d) An injunction restraining the 1st - 7th Defendants from further alienating, selling or conveying any portions of the said lands to any person or group 1

11 of persons. (e) An order of Court setting aside the purported sales, or conveyances of portions of the said lands by the 1st - 7th Defendants 9th to 10th Defendants. (f) Injunction restraining the 8th to the 10th Defendants from further trespass into the said lands purportedly conveyed to them by the 1st - 8th Defendants at Edoji Uruagu, Nnewi. (g) N20,000, (Twenty Million Naira) general damages for trespass against the Defendants. Parties filed and exchanged pleadings. At the hearing both parties called witnesses and at the conclusion of which their counsel filed and adopted their respective written addresses. In a reserved and considered judgment delivered on 6/11/2013, learned trial judge dismissed the plaintiffs' claim its entirety. Dissatisfied with the judgment, appellants appealed to this Court via a notice of appeal filed on 15/01/2014 containing eleven grounds of appeal at pages of the record of this appeal. Distilled from the said eleven grounds of appeal, learned Senior Counsel for the appellants O. A. Obianwu, Esq. formulated four issues for the determination of this appeal as follows:

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13 1. Was the learned trial judge correct in holding that the decision of the customary arbitration (EXHIBITS A & B) initiated by the Dependents but which terminated in favour of the plaintiffs did not constitute estoppels against the Defendants (Distilled from ground 2). 2. Was the learned trial judge correct to have dismissed the claimants' case (Distilled from grounds 1, 3, 4, 5, 6, 7, 8 and 9). 3. Was the learned trial judge correct in his conclusion that the failure of the plaintiffs to file a reply to the statement of defence amounted to an admission of the new facts pleaded in the statement of defence? (Distilled from ground 10). 4. Was the learned trial judge correct in declaring the Defendants owners of the land in dispute in the absence of a counter-claim. (Distilled from ground 11). The respondents also formulated four issues for determination thus: - 1. Whether having regard to the pleadings and evidence before the Court. Exhibits A & B constitute estoppel against the Respondents? 2. Whether the judgment is against the weight of evidence? 3. Whether the failure of the plaintiffs to file reply to the statement of

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15 defence amounted to admission of the new facts raised therein having regard to the facts and circumstances of the case. 4. Whether the finding by the trial Court that the defendants are the owner of the land in dispute is on the facts and circumstances of this case a grant of a relief not sought in the suit in their favour. The two sets of issues are seemingly the same but the first two issues formulated for the respondents sufficiently addresses the controversy leading to this appeal. In other words, the said two issues are wide enough to subsumes all the remaining issues formulated by both the parties. I shall therefore adopt the said issues in determining this appeal. For the sake of clarity the said issues are reproduced hereunder as follows: 1. Whether having regard to the pleadings and evidence before the Court, Exhibits A & B constituted estoppel against the respondents. 2. Whether the judgment is against the weight of evidence. On the binding nature of the customary arbitrations (Exhibits A & B), learned appellants' counsel contended that the learned trial judge misconceived the law in rejecting the customary 4

16 arbitrations on the ground that the ingredients of the said customary arbitrations were not pleaded and proved. He submitted that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agreed expressly or by implication that the decision of such arbitration would be accepted as final and binding; then it would no longer be open to either party to back out or resile from the arbitration reached upon. Thus, the respondents having took the matter to arbitration, cannot be allowed to turn volte face and back out from their voluntary submission to the two customary bodies simply because the result did not favour them. He referred to ONYENGE v. EBERE (2004) 13 NWLR (Pt.880) 20 at 40, UNILORIN V. ODULEYE (2007) ALL FWLR (Pt. 371) 165 and AGIDIGBI v. AGIDIGBI (1996) 6 SCNJ 105. Still in argument, learned appellants' counsel submitted that Exhibits A & B having been referred in the pleadings, formed part of the plaintiffs' pleadings and therefore the lower Court had a duty to give the said Exhibits their true legal effect. He relied on LAWAL v. G.B. OLLIVANT (NIG) LTD 5

17 (1972) ALL NLR 211. He submitted further that the question on whether there was evidence of the ingredients of a valid customary arbitration was suo motu raised and resolved against the appellants without any input from the parties and to the extent, the decision of the lower Court is unsupportable by the facts and the applicable law and that same is prejudicial to the appellants. He referred to the REGISTERED TRUSTEES OF AMORC v. AWONIYI (1994) 7 NWLR (Pt. 355) 154 and OJO OSAGIE v. ADONRI (1994) 6 NWLR (Pt. 349) 131. On the part of the respondents, learned counsel submitted that it is not every arbitration that is binding and capable of operating as Estoppel. And for a customary arbitration to operate as estoppel, the appellants must plead and lead evidence of the ingredients of customary arbitration. In effect, customary arbitration cannot be inferred or assumed. Still in argument, learned counsel submitted that for a decision of arbitrators to have a binding effect, the following must be satisfied:- (a) Both parties must have submitted to the arbitration; (b) The parties must have accepted the terms of the arbitration, and

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19 (c) They must have agreed to be bound by the decisions. He referred to EGESIMBA v. ONUZURUIKE (2002) 15 NWLR (Pt. 791) 446, OKEREKE v. NWANKWO (2003) 9 NWLR (Pt. 826) 613 and AGU v. IKEWIBE (1991) 3 NWLR (Pt.180) 385. Learned counsel submitted further that Exhibits A & B were merely dumped without leading evidence of the ingredient of a valid customary arbitration which they set out to establish. Thus, the lower Court was justified in holding that Exhibits A & B did not create estopped against the respondents. By virtue of Section 169 of the Evidence Act, 2011 a party who has, either by his declaration of act, caused or permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceeding between himself and such person or such person's representative in interest, to deny the truth of that thing. In essence, such a person must accept the new legal relationship as modified by his own words or action whether or not it is supported by any point of law, or by any consideration but only by his word or conduct. The borne of contention in this appeal 7

20 is whether the customary arbitrations, Exhibits A & B binds the parties and that the respondents are estopped from resiling or backing out from the decisions of the arbitrators in the said Exhibits A & B. Generally, the burden of proof in a civil matter 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. 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. Consequently, a party who alleges the existence of customary law must prove that customary law because the law of Evidence regards it as a fact unless it can be noticed judicially. See ONYENGE v. EBERE also reported in (2004) 6-7 SC 52 at 60. In the instant case, the appellants as plaintiffs claimed that they were members of Onochie Dim Onochie family in Dim Melugini larger family in Edoji Uruagu Nnewi wherein Dim Melugini, the plaintiffs' fore bear got all the land comprising Dim Melugini section of Edoji including the land in dispute. They also claimed that the 1st - 7th 8

21 Defendants' grandfather Ezennia and his children fled Ichi their ancestral home and became Eze Anyim's domestics. In effect, they were quartered in the Obi Eze Anyim and when they increased in numbers, Eze anyim granted them different residential lands including the land in dispute. Upon settlement, Ezennia was made to pay tribute of four yams, one gallon of palm-wine four kolanuts on yearly basis. There was also another tribute which consisted in delivering a portion of every animal slaughtered by the 1st - 7th Defendants' grandfather to his overload. In paragraphs (h) - (t) of the statement of claim, the plaintiffs averred as follows: (h) Consequently, when Ezeikwubulu died, it was Nnakude the first son of Ezennia that was the chief mourner as his overlord. (i) Ezennia faithfully and religiously paid those yearly tributes throughout his life time to Ezeanyim. (j) After Ezennia's death, Ezeikwubulu continued to pay tribute to Ezeanyim until Ezeanyinis death, Ezennia was the same person as Ukachukwu. (k) Ezeanyim begat Ume Nnkude (first son) Ebigligbo and Anachebe. When Ezeanyi died, his son Nnakude continued to receive the tribute until his 9

22 death. (l) Ume Nnakude begat Micheal (first son) (John Ulasi 2nd plaintiff) Christopher Ulasi (third plaintiff) David Ulasi, Eugene Ulasi (4th plaintiff). (m) The 1st Defendant paid tribute after the death of his father to the said Micheal Ulasi son of Ume Nnakude. (n) Micheal Ulasi begat innocent late (first son) Raphael Ulasi Chukwuma as second son. (o) The 1st Defendant after the death of Micheal following the young age of the 1st plaintiff (about ten years) the first Defendant ceased to pay the tribute rebelliously. (p) The 1st - 7th Defendants began to assert rights inconsistent with those of their over-lords. (q) In 1996, the plaintiffs briefed a counsel who served Recovery processes on the 1st Defendant who was planning secretly to sell some lands of the plaintiffs. The family actually arbitrated over the matter under the chairmanship of Hon. Emeka Obi which found against the 1st Defendant and restated his customary tenancy, warned him never to sell any lands or would forfeit all the lands he was having in Edoji Uruagu Nnewi. Charles Okeke was the vice chairman of the said family meeting. The family secretary 10

23 then Jonathan Okongwu also a migrant's descendant from Ojoto, assisted the first Defendant to falsify family minutes. (r) Charles Okeke - led family executive committee arbitrated over the disputes that arose when the 1st Defendant, continued to sell plaintiff family lands. Both parties presented their respective cases and the family ruled once more warning the 1st Defendant that as a descendant of a customary tenant/stranger element from Ichi, he should desist from selling further lands, he should refund all expenses incurred by the plaintiffs in the police action which first Defendant initiated and abate his crime of reporting the plaintiffs to Ogwugwu - Isiula shrine in Okija. (s) About 2003 when the plaintiffs wanted to sell a piece of land, the 1st - 7th Defendants knowing fully well that, it was the plaintiffs' family that owned the land, raised no objection and confessed that it was the plaintiffs that owned all the lands thereon, no one sought 1st - 7th Defendants' consent for access road, not entreated for favours from them nor give him N500 or a bottle of drink over-lords, the penalty for such misconduct is total forfeiture of all the 11

24 land subject of customary tenancies held by the 1st - 7th Defendants and those to who they purported to convey lands to got nothing whatsoever from such void transactions. (t) Obi uruagu and Isi Edigi arbitrated over this dispute and found for the plaintiffs their verdict shall be found upon."] The Defendants denied the above claim and insisted that their forefathers have from time beyond human memory been in peaceful and continuous possession of the land in dispute thereby exercising acts of ownership without let or hindrance. That Ezeana acquired his land by deforestation and not by gift from the plaintiffs' ancestor. He Ezeana was not a contemporary of Ezeana and would not have paid tribute to him. The 1st - 7th Defendants also denied the purported arbitrations in paragraphs of the statement of defence thus:- 43. The Isi Obi Edoji and Obi Uruagu Nnewi never arbitrated in to matter and thus never delivered any decision. The purported decision was procured by John Obi by inducing the Isi Obi to give him a fake document in which they anchor their case. The Defendants did not appear before the Isi Obi Edoji at any time in respect of this 12

25 matter and they did not deliver and decision. When the Defendants became aware of the documents masquerading as decision of the Isi Obi Edoji, the 1st - 7th Defendants through their Solicitors wrote them a strong worded letter condemning their despicable conduct in the matter. The letter will be relied upon at the trial. 44. The Obi of Uruagu Nnewi was merely informed that John Obi procured police men to arrest and detain the Defendant at Police Area Command Nnewi, State C.I.D, A WKA Force C.I.D Alagbo, Lagos. He invited the parties to know what exactly happened and to settle the matter. Apart from narrating to the Obi of Uruagu Nnewi how John Obi has been using police to arrest and detain members of the family, he disrupted the family meeting and thereafter claimed that those opposed to him including the then chairman were planning to kill him; there was no hearing on the issue of ownership of the lands in dispute in this suit. At the time of his purported arbitration, this suit was already pending in the High Court as well as three other civil matters and two criminal cases in the Chief Magistrate Court, Nnewi. 45. The said Obi Uruagu, Nnewi 13

26 did not seek or get the approval of either the High Court or the Chief Magistrate to settle the matter and none was granted. Even if the settlement is accepted by the parties. Where settlement fails he informs the court accordingly without usurping the judicial powers of the Court by making far reaching, self serving and unreasonable findings that are not supported by empherical evidence. The purported decision of Uruagu Nnewi does not amount to customary arbitration but deliberate attempt to bias the mind of the Court by making of prejudicial statements masquerading as facts. The purported decision of Obi Uruagu was not pronounced in the presence of the Defendants. They saw it for the first time from the plaintiffs' depositions. The 6th - 10th Defendants did not appear at any time before the said Obi Uruagu Nnewi and thus did not take part in the purported and stage managed arbitration." From the above, it was the appellants who alleged the existence of the customary law vis-a-vis the customary arbitrations and therefore, the burden lies on the appellants because their existence cannot be judicially noticed. A party who alleges that there was arbitration 14

27 must lead credible evidence to show that the arbitration which he claimed was held and same was binding on the adverse party. See EGESIMBA v. ONUZURUIKE (2002) 9-10 SC 1 at 55 and OHIAERI v. AKABEZE (1992) 2 NWLR (Pt. 221) 1. Also in ESUWOYE v. BOSERE (2017) 1 NWLR (Pt.1546) 256. The Supreme Court has held that customary law is unwritten and is a question of fact to be proved by evidence except it is of such notoriety and has been regularly followed by the Courts that judicial notice would be taken of it without evidence required in proof thereof. It is also settled that before applying the decision of a customary arbitration as an estoppel the party alleging arbitration must show that parties had voluntarily submitted to the arbitration, consciously indicted their willingness after the pronouncement of the decision, unequivocally accepted the award. While it may be sufficient to simply plead the fact of a previous judgment by a regular Court as the basis of an estoppel, merely pleading such a decision in respect of a customary arbitration without pleading the ingredients that project it as creating estoppel will not be proper pleading because not 15

28 every decision of a customary arbitration, unlike that of a regular Court, can create an estoppel. In other words, the party alleging customary arbitration will have to adduce credible evidence of the relevant ingredients necessary to sustain the material plea of estoppel by customary arbitration. The appellants having merely plead customary arbitrations in paragraph (t) of the statement of claim without pleading the ingredients that project it as creating estoppel is not enough to sustain a customary arbitration. Issue No. 1 is resolved against the appellants. Respecting issue No. 2, learned appellants' counsel contended that the claim of the appellants at the lower Court was not for declaration of title to the lands in dispute but one for a declaration of the status of the Defendants as customary tenants vis-a-vis the land in dispute. Thus, the trial judge was in grave error in casting upon the plaintiffs (now appellants) the burden of first establishing their title to the lands and then subsequently prove the customary tenancy of the Defendants. He relied on the authorities in the cases of DADA v. BANKOLE (2008) 5 NWLR (Pt.1079) 26 and BABATUNDE v. 16

29 AKINBADE (2006) 6 NWLR (Pt. 975) 44 at 61 in submitting that the main incident of a customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behavior. That had the trial Court took into account of the plaintiffs' evidence that their foremost ancestor Edoji deforested the parcels of land in dispute as well as the intervening owners until they got to Ezeayini who granted same to the 1st - 7th Defendants' forebears on payment of agreed tribute, the trial Court would have come to the conclusion that the plaintiffs have established their claim that the Defendants were their tenants. He submitted further that the trial judge suo motu raised and resolved the issue of who could properly bring the action against the drift of the pleadings and evidence before him that the descendants of Ezeana do not pay tribute. Thus, the failure to consider the totality of the evidence inclusive of Exhibits A & B has caused a miscarriage of justice concluded learned counsel for the appellants. Learned counsel for the respondents submitted that the question of customary tenancy and payment of tribute by 17

30 a defendant to a plaintiff cannot arise without the plaintiff first establishing his ownership of the land. He referred to AKANBI v. SALAWU (2003) 13 NWLR (Pt.838) 65 to the effect that there can be no question of customary tenancy without the issue of title settled. I have right from the onset reproduced the claims of the plaintiffs before the lower Court which can best be described as a hybrid comprising declaration, forfeiture, injunction and damages for trespass. In a claim for a declaration of title, the onus is no doubt on the plaintiffs to satisfy the Court on evidence produced by them that they are entitled to the declaration sought. This means that they must rely on the strength of their case and not on the weakness of the defendants' case and if this onus is not discharged, the weakness of the defendants' case will not help them and the proper judgment will be for the defendants' except where the defendant's case supports that of the plaintiff and contains evidence on which the plaintiff may rely on, the plaintiff is fully entitled to make use of such evidence. But in cases where the tenants turn round not only to dispute the over lordship of 18

31 the title holders but went out of their way to claim title, they forfeit their right as tenants and their possession of the land. In other words, the real basis of the misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord either by alienation of part of the land or refusal to pay attribute. See MAKINDE v. AKINWALE (2000) 1 SC 89 and ONIAH v. ONYIA (1989) 2 SC (Pt.1) 69 at 84. In the instant case, the plaintiff claim was not solely for forfeiture and even then the defendants had pleaded against the forfeiture and there was no clear evidence of title in the plaintiffs. At pages 287 and 288 of the record of appeal, the learned trial judge found as follows:- "As I said earlier, the plaintiffs and their witnesses are of the view that the parcels of land in dispute were deforested by Edoji and were granted to Ezeana and his descendants who are the ancestors to the 1st- 7th defendants on payment of tribute. The defendants and their witnesses disagreed and stated that the parcels of land in dispute were deforested by Ezeana when he came to settle at Edoji like other settlers and on his death, 19

32 his sons and descendants inherited them from him. One thing is clear to me and that is that Edoji and Ezeana cannot deforest the parcel of land in dispute at the same time. The two sets of evidence adduced by the parties cannot therefore be true. Having painstakingly evaluate the evidence of traditional history adduced by the parties in this case it is my view that there is a sharp conflict in the traditional evidence led by the parties." It is settled law that a plaintiff who seeks title to land and relies on traditional history must, to succeed, plead and prove facts as to:- (a) Who founded the land, (b) How the land was founded and (c) Particulars of the ancestors through whom he claims. Thus, traditional evidence which is not contradicted and found by the Court to be cogent can support a claim for declaration of title as traditional evidence is one of the methods of proving title to land. See IDUNDUN & ORS v. OKUMAGBA & ORS (1976) NSCC 445,MOGAJI v. CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393, AKANBI v. SALAWU (Supra) and EWO v. ANI (2004) 1 SC (Pt.11) 115. In the case of ONWUKA v. EDIALA (1989) 1 SC (Pt.11) 1 at 17,

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34 the apex Court held that 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. Examining the pleadings and the evidence in the instant case, the learned trial judge as shown above has arrived at the conclusion that there was a sharp conflict in the traditional evidence led by both parties and thus depended on the recent acts of possession shown by the parties and concluded at pages of the record of appeal thus: "Accordingly, it is my considered view that the 1st 7th defendants and their ancestors who have been in possession of the parcels of land in dispute and who have exercised the acts highlighted above on the parcels of land in dispute are the owners of the parcels of land in dispute. This is so because the acts show that the persons who exercised them on the parcels of the 21

35 land... I prefer the defendants' traditional history to that of the plaintiffs. The defendants have demonstrated events on the parcels of land in recent years as established by evidence which show that their traditional history with regards to the parcels of land in dispute is more probable." Where the histories offered by both sides are placed side by side weighed and found to be equally plausible or when there is difficulty of resolving which is correct, then the question of recent acts of ownership shall become relevant. Thus, the Court is bound to first decide which of the stories is more plausible or probable by reference to all surrounding facts and the circumstances and if both are equally plausible and probable, then by reference to recent acts of ownership as established by evidence. See OGUN v. AKINYELU (2004) 1112 SC 4 AT 18. In the instant case, the learned trial judge adopted the proper procedure in his treatment of the traditional histories given by the parties. I therefore find no merit in appellants' complaints in respect of this issue which is also resolved against them. In the result, the lower Court was 22

36 justified in dismissing the appellants' claims and that they have not been able to demonstrate that the conclusion thereby reached was clearly erroneous. This appeal lacks merit and it is accordingly dismissed with N50, costs in favour of the respondents. HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother M. L. Shuaibu, JCA. I agree with the eloquent reasoning therein and conclusion that the appeal is lacking in merit and should be dismissed. I also agree with the orders for costs as stated in the judgment. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his reasoning and conclusions in dismissing the Appeal as lacking in merit. I also abide by other consequential made thereto. 23

37 Appearances: O. C. Ajuzie For Appellant(s) Chief G. O. Oseloka Osuigwe, with him, C. J. Nnmani For Respondent(s)