Home » Nigerian Cases » Court of Appeal » Ogadinma Ikechukwu Iwuala V. Raphael Chima (2016) LLJR-CA

Ogadinma Ikechukwu Iwuala V. Raphael Chima (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This Appeal is sequel to the Judgment of the Customary Court of APPEAL of Imo State Holden at Owerri which Judgment was delivered on the 5th day of July, 2013 allowing the Defendant (now Respondent?s) Appeal against the Judgment of the Ohaji District of the Imo State Customary Court Holden at UMUAPU. The Appeal is anchored on 8 (Eight) Grounds as contained in the Notice of Appeal dated 22nd day of October, 2013 and filed same date. Below as reproduced are the Grounds of Appeal albeit without their particulars:
?GROUND (1). ERROR-IN-LAW
The learned Judges of the Customary Court of Appeal, Imo State erred in law when they held at page 7 of the Judgment that:
?The Plaintiff did not prove his title to the Claim?.
?(2). ERROR-IN-LAW
The Learned Judges of the Customary Court of Appeal, Imo State erred in law by assuming the position of the trial Court in re-evaluating evidence in the case which the trial Court had dutifully evaluated and made findings thereon without any justifiable reasons to do so in law.
?(3). ERRORS

-IN-LAW
The Learned Judges of the Customary Court of Appeal erred in Law when they held that:
?The fact that the Respondent resiled from the Oath taking is a question of customary Law. Its implication is that the issue in controversy does not belong to him?
?(4). ERROR-IN-LAW
The learned Judges of the Customary Court of Appeal, Imo State erred in Law by ascribing probative value to the Arbitration by OHA-URATTA TRADITIONAL SUPREME COUNCIL when the Court found that the Appellant resiled from the Arbitration.
?(5). MISDIRECTION OF LAW AND FACT
The learned Judges of the Customary Court of Appeal misdirected themselves both in law and fact when in allowing the Appeal they held that the respondent herein is not to be disturbed with his lawful possession of the land in dispute.
?(6). ERROR OF FACT
The learned Judges of the Customary Court of Appeal erred in fact when they held that:
?The issue of pledge was settled by the Oath-taking as directed by the Uratta Traditional Supreme Council which was aborted by the Respondents?.
?(7). ERROR OF LAW AND FACT
The

learned Judges erred in law when they held that the Appellants evidence did not disclose that it was a member of his family that was murdered.
?(8). ERROR OF LAW AND FACT
The learned Judges of the Customary Court of Appeal erred both in law and fact when they held that the pledge raised by the Respondent defeated the acts of long possession of the land in dispute by the Appellant when the pledge was not proved.”

Upon the transmission of the Record of Appeal to this Honourable Court, Briefs of Argument were filed and exchanged by the respective learned Counsel for the Appellant and Respondent. For the Appellant, L. A. Oti ? Onyema (Mrs.) of Chief C. C. Onyeagbako & Co. (Ehirim Chambers) who settled his Brief dated the 17th day of March, 2014, filed on the 20th of March, 2014 but deemed properly filed and served with the leave of this Court granted the Appellant on the 25th day of May, 2015; Four (4) ISSUES were nominated for determination couched and reproduced hereunder as follows:
?1. Whether the Customary Arbitration of Oha Uratta Traditional Supreme Council was conclusive, valid and binding on the

parties where the Oath-taking recommended by the Panel was not conducted? (Grounds 3 and 4).
?2. Whether the Issue of Pledge which was not effectively proved by the Defendants can defeat long possession of the land by the Plaintiff/Appellant? (Grounds 2, 5, 6 and 8).
?3. Whether the Court below was right in holding that the Plaintiff/Appellant did not prove entitlement to his Claim? (Grounds 1, 5 and 7).
?4. Whether the Court below can interfere with the findings of facts by the trial Court in the absence of exceptional circumstances? (Grounds 2, 5, and 7)?.

On behalf of the Respondent, E. C. Mere Esq, who settled his Brief of Argument dated 4th June, 2015 but filed on the 5th day of June, 2015 distilled 5 (FIVE) Issues which are also hereunder reproduced as follows:
?1. Whether the Justices of the Customary Court of Appeal of Imo State had the right to re-evaluate the evidence and whether they properly evaluated evidence? (Grounds 2 and 7).
?2. Whether Appellant proved title? (GROUND 1).
?3. Whether the holding of the Justices of the Customary Court of Appeal was proper on possession?

(Ground 5).
4. Whether the holding of the Justices of Customary Court of Appeal on the arbitration are proper? (Grounds 3 and 4).
?5. Whether there was need for Respondent to prove pledge? (Grounds 6 and 8).

Upon being served with the Respondent?s Brief of Argument, the learned Counsel for the Appellant on the 12th day of June, 2015 filed the Appellant?s Reply Brief dated the 10th day of June, 2015. On the 16th day of February, 2016, the learned Counsel for each of the parties adopted their respective Briefs of Argument to either urge the Court to allow the Appeal or dismiss same.
?
Before delving into the Arguments of Counsel on the Issues formulated for determination, it is only necessary to have a resume of the facts of the case as can be gathered from the Records. It would be recalled that this case started at the Customary Court of Imo State of Nigeria, in the Owerri North Judicial District Holden at UMUOBA between Robinson Iwuala and Harrison Iwuala as plaintiffs against Raphael Chima as Defendant. By the Writ of Summons dated and filed on the 8th day of February, 2002 and the accompanying Claim and Particulars

thereof, the Plaintiffs sought for the following Reliefs against the Defendant:
?(a) Declaration that the plaintiffs are entitled to the Right of Occupancy over and in respect of the land known as and called ?APU ICHE? situate being and lying at Umuorii Uratta within jurisdiction of the Honourable Court.
?(b) Perpetual injunction restraining the Defendant by himself, his heirs, agents, servants, workmen or privies from further entry into the said ?APU ICHE? Land in dispute or from alienating or interfering with the plaintiffs? rights over the land.
?PARTICULARS OF CLAIM.
1. The Plaintiffs are farmers of Ebikoro Umuoba Uratta, Owerri North L.G.A., of Imo State.
2. The Defendant is a farmer of Umuotoboche Umuorii Uratta, Owerri North L.G.A., of Imo State.
3. The land in dispute was inherited by the Plaintiffs from their ancestors who got it from the Defendant?s ancestors to meet the customary requirements when a member of the Defendant?s family murdered a member of the Plaintiff?s family. The Plaintiffs through their ancestors have been in undisturbed possession of the

said land unit the year 2000 when the Defendant started laying false claim to the land?

At the hearing, the Plaintiffs had testified and called almost all their witnesses in order to close their case, when the Defendant applied to the customary Court of Appeal for a transfer of the case to the Ohaji District of the Customary Court Holden at Umuapu on the ground of likelihood of bias by the member 1 of the Owerri North Customary Court. The matter was then transferred to the Ohaji District Court, Umuapu on the 16th of October, 2006 (See pages 17 -19 of the Records for the Motion for Transfer of the Original Suit No. CC/OWN/7/2002, the Statement of the Applicant and the Affidavit in Support thereof and Pages 20 and 21 for the Transfer Order and a letter from the Customary Court, Owerri North transmitting the case file and the entire Records of Proceedings to the Principal Registrar, Customary Court Umuapu) wherein the Suit was give a fresh Number CC/HJ/25/2006.
?
During the pendency of the Suit at Umuapu Ohaji, the 1st Plaintiff (Robinson Iwuala) died leaving the 2nd Plaintiff who was the son of the 1st to continue with the case to conclusion. The

deceased/1st Plaintiff and his two other witnesses as I said earlier had testified before the Customary Court at Umuoba
Uratta, Owerri North L. G. A, and upon the transfer of the case to Umuapu, the Plaintiff adopted their earlier evidence in the former Court as Certified on 13/6/2005. The Plaintiff thereafter called on additional witness making it a total of four witnesses in proof of their case. Subsequently, the certified evidence of the deceased Robinson was admitted as Exhibit PW1B, the Certified True Copy of the Civil Summons in Suit No. CC/OWN/37/2005 between Augustine Chima V. Robinson Iwuala & 2 Ors; dated 22/7/2005 admitted and marked Exhibit PW1C.
?
The Defendant on his part testified as DW1 on the 14/8/2008 and 24/9/2008. On 30/3/2010 his evidence in the previous Court was tendered and marked Exhibit DWA. He further testified before the newly constituted Umuapu Customary Court and after being cross-examined he called DW2 Ambrose Chima and DW3 Mr. Innocent Iheanacho Obilor who testified as the Secretary of Oha Uratta Traditional Supreme Council, Panel of Arbitrators that looked into the matter before it came to Court. The verdict of

the Oha Uratta Traditional Supreme Council dated 12/1/2001 was admitted by the Trial Court and marked Exhibit B while Exhibit C a purported Purchase Receipt of land dated 31/5/2001 which the Defendant gave to Nze Emma C. Okoro over part of the disputed land which the Nze bought in error from Mr. Beniah Iwuala, an uncle to the Plaintiff was also admitted and accordingly so marked.

On a visit to the Locus inquo by the Court, where Eze Emmanuel C. Okoro was confronted with the said Receipt which he denied neither ever acknowledging nor signing, the Defence Counsel re-tendered it and same was admitted and marked Exhibit L. E. 1 notwithstanding that it had been admitted as Exhibit C in Court.

By a Motion dated 29th March, 2011, but filed on the 30th of March, 2011, the present Appellant Ogadima Ikechukwu Iwuala was granted leave to substitute his father Harrison Iwuala who died on Monday 28th March, 2011 while awaiting the Judgment of the Customary Court which was adjourned to 8th April, 2011.
?
The case of the Plaintiff now Appellant as testified by his uncle and Original 1st Plaintiff, is that the land ascended from their ancestor and grandfather One

Opara Alum, down to his own father Akuwara Iwuala and subsequently to themselves. According to him, although the land original belonged to the Defendants/Respondents; his said ancestors came by it as a compensation (atonement) for the killing of Opara Alum?s only sister Ada Alum by the Umuorii people several years before the Suit. From that time up till the year 2000, they had been on undisturbed possession and exercised maximum acts of ownership like farming on the land and selling portions of it to some persons one of whom was Eze Emmanuel Okoro, (the PW4), Ernest Uchegbulem and Mrs. Egbuchuo without being challenged by any person.
?
On the other hand, the case of the Defendant/Respondent is that the land in dispute was deforested by his great ancestor called Uratta from whom Uratta people derived their name. The land devolved on his great grand fathers some centuries before until it got to Nzewuihe from whom his father derived land and who pledged same in 1948 to the Iwuala family for the sum of 10 shillings which he (Defendant/Appellant) had paid back to the Iwuala family. At the close of the case of the parties and the adoption of the Addresses

of their respective Counsel, the Customary Court of first instance at pages 231 and 232 of the Records (Pages 33 and 34 of the Judgment held that the Court found the evidence of the Plaintiff in proof of his title to be plausible and highly probable in the circumstances of this case and the Court believed it.

The Customary Court further held that there was practically nothing to weigh on the Defendant?s side of the scale of Justice as the entire evidence, even from the Defendant, overwhelmingly preponderated in favour of the Plaintiff (now Appellant). Accordingly, the trial Court found that the land in dispute was exchanged by the Defendant?s ancestors in favour of the Plaintiffs? ancestors to appease for the killing of a daughter of the plaintiffs? family called Ada Alum over 300 years ago. The land under the law, according to the Court is not redeemable Nwagwu & Anor V. Okonkwo & Anor (1987) 7 S.C.32 referred.
?
In the final analysis, the Plaintiffs/Appellants were held to have proved their case to the satisfaction of the Court and consequently, the Plaintiffs (now appellants) were granted the Declaration of the title

and injunction as sought with N10,000.00 costs in their favour.

Dissatisfied by the decision of the Customary Court, the Respondent (then Defendant) appealed to the Customary Court of Appeal on initial two Grounds and with leave of the Court below filed Four (4) Additional Grounds making a total of Six Grounds of Appeal (See pages 239 -250 of the Records). After hearing the arguments of Counsel for the respective parties as contained in their Briefs of Argument, the Customary Court of Appeal at page 9 of the Judgment and 281 of the Records per Hon. Justice P. I. Okpara (President) held thus:
?The decision of the Oha Uratta is at the root of the case of the parties. The tilting of the balance of this case one way or the other should be determined by the above arbitration. I have considered the arguments of Counsel on both sides. I also read the Judgment of the Court below. It is my humble view that the Court below wrongly projected the answer given by the DW3, thereby misapplying the principle of Oath taking in Customary Law. It was not for the DW3 who was not a member of the Panel at Oha Uratta arbitration but only came to tender the decision

of the Oha Uratta to answer questions with regard to the reasons for their decision.
The fact that the Respondent resiled from the Oath taking is a question of Customary Law. Its Implication is that the issue in controversy does not belong to him. I therefore hold that the Court below erred in using the evidence of the DW3 in the form it did, in deciding against the Appellant. This issue is resolved against the Respondent and in favour of the Appellant.?

At page 282/10 of the Records/Judgment of the President, His Lordship concluded that:-
?In sum, considering my resolution of the other issues, I hold that the Judgment of the Lower Court should not be allowed to stand.
This Appeal is therefore allowed. I make the following orders:
1. The Judgment of the Lower Court appealed against is hereby set aside.
2. This Appeal is hereby allowed.
3. Suit No. CC/HJ/25/2006 between the parties is hereby dismissed.
4. The Appellant is not to be disturbed with his lawful possession of the land in dispute.
5. The cost of N10,000.00 awarded against the Appellant at the Court below is hereby set aside but if already

paid, should be refunded to the Appellant.
6. Costs in favour of the Appellant in this Appeal is assessed at N15,000.00 (Fifteen Thousand Naira).?

It is against the aforestated Judgment of the Lower Court that the Plaintiff/Respondent has now appealed to this Court on the Grounds and the Issues earlier on reproduced.

ARGUMENTS OF COUNSEL ON THE ISSUES FORMULATED.
In the resolution of the Issues formulated by the respective learned Counsel herein I have noticed that the learned Counsel for the Appellant formulated more than one Issue from Grounds 2, 5 and 7 of the Notice of Appeal as can be gleaned from Issue Number 3 formulated from Grounds 5 and 7 apart from Ground 1 and Issue Number 4 from Grounds 2, 5, and 7.

Accordingly, I shall re-couch Appellant?s Issues 3 and 4 thus:
?3. Whether the Court below was right in holding that the Plaintiff/Appellant did not prove entitlement to his Claim? (Ground 1) and
?4. Whether the Court below can interfere with the findings of fact by the trial Court? (Ground 7)
?
A perusal of the Issues formulated by the learned Counsel for the

Respondent also reveal that Issue Number 1 of the Respondent is the same as Issue Number 4 of the Appellant; Issue Number 2 & 3 of the Respondent is the same as Issue Numbers 2 and 3 of the Appellant; Issue Number 4 of the Respondent is the same with Issue Number 1 of the Appellant and Issue Number 5 of the Respondent is the same with Issue Number 2 of the Appellant. I shall therefore subsume all the five Issues formulated by the learned Counsel for the Respondents within the Four Issues formulated by the learned Counsel for the Appellant.
ISSUE NUMBER 1 OF THE APPELLANT AND ISSUE NUMBER 4, OF THE RESPONDENT.
Arguing Issue Number 1(ONE) of the Appellant, the learned Counsel on ?WHETHER THE CUSTOMARY ARBITRATION OF OHA URATTA TRADITIONAL SUPREME COUNCIL WAS CONCLUSIVE, VALID AND BINDING ON THE PARTIES WHERE THE OATH TAKING RECOMMENDED BY THE PANEL WAS NOT CONDUCTED, quoted page 9/273 of the Judgment/Records part of which I had earlier reproduced and citing the case of Okoye &. Anor V. Obiaso & Ors. (2010) 11 NSCR 168 at 195 para. B; on the mode of proving the existence of Customary Arbitration and conceded also on

the authorities of Ume V. Okoronkwo (1996) 12 SCNJ 404 and Ojiogu V. Ojiogu (2010) 6 NSCR 123 at 149 Para. C (S.C.); that Oath taking is a valid process of customary arbitration but that being an issue of Customary Law must be proved by evidence.

The learned Counsel also conceded that the Court below was right to have found that the fact that the Respondent (now Appellant) resiled from Oath taking is a question of Customary Law (page 9/273 of the Judgment/Records further referred) but unfortunately instead of considering the evidence as produced by parties in proof of such Oath ?taking, the Court below substituted that Law with its opinion by arriving at the conclusion that by resiling, ?the implication is that the issue (subject-matter?) in controversy does not belong to him?, contrary to the parties on the Oath-taking and the arbitration.
?
At that juncture, we were invited to consider the uncontroverted evidence of the PW1 at page 28 of the Records and under cross-examination and further cross-examination at pages 31 and 129 of the Records and the learned Counsel for the Appellant asserted that there is no Custom applicable

to Uratta people to the effect that where a party to Arbitral Proceedings refuses to take Oath by Juju the implication is that the Issue in controversy, does not belong to him as erroneously held, by the Court below. Rather, according to the Learned Counsel, the Custom of Uratta people as stated by the PW1 that: ?In the Oath-taking Custom, if a person who took the Oath does not survive for one year, it means the land does not belong to him? and therefore it is only where the Oath is taken and the Party who took it died after one year that he can be divested of ownership of the property (Land) in dispute. The Learned Counsel added that upon the assumption that such a custom as was stated by the Court below really is the position in Uratta, then the same cannot pass the validity test because it is contrary to the Constitution of the Federal Republic of Nigeria which provides for freedom of thought, Religion and conscience.
?
It was the further submission of the learned Counsel for the Appellant that the Plaintiff/Appellant to further buttress his stand on Oath-taking wrote to the Oha Uratta informing them about his decision not to bring Juju

for Oath-taking and that if he was not permitted to use the Bible, he would not continue with the Arbitration but shall resort to the Law Court for redress as reflected at Pages 28 and 60 of the Records – the evidence- in- chief and answer to cross-examination.

Rounding up his argument on the First Issue for determination the learned Counsel for the Appellant insisted that by this letter of Plaintiff/Appellant before the Oath-taking and prior to the conclusion of the Arbitral Proceedings, the Oath-taking was never conducted; the Customary Arbitration was inconclusive and the Arbitral Award which was made in the absence of the Plaintiff/Appellant was rejected. He opined therefore that for a customary Arbitration to be binding on a party, he must have participated fully in the proceedings till a decision is taken and the parties must accept the award which is not the case here as the Appellant did not participate fully in the Arbitration proceedings; refused the award apart from the invalidity of the arbitration under the Uratta Supreme Council and accordingly cannot be used as a yard stick for discovering the real owner of the disputed

land.

In the same vein, he maintained, the Oath taking was also invalid as same was not conducted in accordance with certain conditions. Pages 31, 38, 39 and 60 of the Records were relied on in so submitting and to urge us to resolve this Issue in favour of the Plaintiff/Appellant.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER 4 OF THE RESPONDENT?S BRIEF:?WHETHER THE HOLDING OF THE JUSTICES OF THE CUSTOMARY COURT OF APPEAL ON ARBITRATION (SIC) ARE PROPER
In his argument of this Issue which is the same with Issue Number 1 (ONE) of the Appellant?s Counsel, E. C. Mere, Esq. for the Respondent answered the question posed by the Issue in the affirmative and also referred as to pages 9 of the Judgment where the President of the Court below upheld the submission of the learned Counsel for the Respondent (then Appellant) on the effect of resiling from Oath-taking. Citing Ojibah V. Ojibah [1991] 4 LRCN 1215, Online & Ors V. Obodo & Ors. (1958) SCNLR 298 AND Ume Vs. Okoronkwo (1996) 43 LRCN 2068 at 2081F, the learned Counsel for the Respondent submitted that it is trite that once Arbitrators rule

on Oath taking and a part resiles, the aftermath Judgment is that the land in dispute does not belong to him.

He pointed out that in the instant case the Oha Uratta pronounced Oath taking with Juju and the Appellant did not decline until sometime when he wrote declining on the ground that he was a Christian but he had the option for the Oath to be taken with the Bible (Page 54; Q21 and answer) and also Page 60 questions and answers 19 & 20 where the said Witness who claimed to be a Christian wrote to the Oha Uratta suggesting delegation to go for sooth saying were referred to in submitting that the going to a soothsayer or native doctor is like going to a native to procure Juju. In his view therefore, the two postures are contradictory. We were then urged to uphold the Customary Court of Appeal verdict on this Issue.

RESOLUTION OF ISSUES NUMBERS 1 (ONE) OF THE APPELLANT AND 4 (FOUR) OF THE RESPONDENT:
I have carefully considered the submission of the learned Counsel for both the Appellant and Respondent on this Issue. There is no doubt that both learned Counsel for the Parties are ad idem on the holding of the Court below that the decision

of the Oha Uratta is at the root of the case of the parties and that the tilting of the balance of the case one way or the other should be determined by the above arbitration.

The learned Counsel for the Appellant has rightly submitted that it is indubitable that Customary Arbitration is legally recognized as a means of proving ownership of/to land.

He has also rightly submitted while relying on the Supreme Court decision in Okoye & Anor V. Obiaso & Ors. [2010] 11 NSCR 168 at 195 Para. B; where the criteria for an Arbitration Award to be binding were stated to include:-
?(a) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more parties;
(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 Custom of the parties or of their trade or business;
(d) That the arbitrations reached a decision and published their award and
(e) That the decision or award was accepted at the time it was mode.?
See also Njoku V. Ekeocha

(1972) 2 E.C.S.L.R. 199 Per Ikpeazu, J. Mgbagbu V. Agochukwu (1973) 3 E.C.S.L.R. (Pt.1) 90; where it was held that the decision was binding if accepted at the time it was made and if so accepted the parties cannot resile thereafter. see further Equere Inyang Vs. Simeon Essien (1957) 2 F.S.C.39; where the parties did not accept the decision of the Iman Council Arbitration Panel and the Federal Supreme Court of Yore held that the Arbitration award was not binding.
Again in Idika Vs. Erisi (1988) 2 N.W.L.R. (Pt.78) at 573; the Supreme Court accepted the outcome of Arbitration where the respective parties contended that the Arbitration decision favoured him and where the trial Court made no specific findings of facts on the crucial issue raised in the pleadings, the Supreme Court further held that the Court of Appeal was right to have ordered for a retrial of the case.
That the practice of Customary Arbitration had long been recognized by our law and even our highest Courts of the land was acknowledged by no less an eminent jurist Karibi-Whyte, JSC in Raphael Agu V. Christian O. Ikewibe (1991) 4 S. C. N. J. 56 at 69 and 70-73; when he posited contrary

to the decision of the Court of Appeal in Okpuruwu V. Okpokam (1988) 4 N.W.L.R.(Pt. 90) 554; that: The practice of Chiefs or Elders of the Community settling disputes between members of their community is both recognized by our legal system and is not in conflict with the exercise of judicial powers in the Constitution 1979?.

Speaking specifically about Oath taking which is the crux of this Issue; both learned counsel for the Appellant and Respondent are also in agreement that it is a process of Customary Arbitration as was decided by the Supreme Court in Ume Vs. Okoronkwo (1996) 12 SCNJ 404 and Ojiogu Vs. Ojiogu (2010) 6 NSCR 123 at 149 Para. C.; where the Supreme Court held that:
?It is settled law that Customary Law is a question of facts which must be proved or established by evidence.”
?
The point of disagreement between the Learned Counsel for the Appellant and Respondent is whether there was proof by the Respondent that the Appellant agreed to take the Oath before resiling from the outcome of the arbitration so as to warrant the Court below to hold that the fact that the Appellant herein resiled from the Oath taking is a

question of Customary Law and the implication is that the Issue in controversy does not belong to him.

The respective learned Counsel for the parties have highlighted the pieces of evidence from the Records tending to support their disparate positions on whether the Court below was right or wrong to have so held that the fact that the Appellant resiled from taking the Oath Proved that the land in dispute was/is not his. For instance at page 28 of the Records the PW1 stated in his evidence-in-Chief about Oath-taking lines 12-23 as follows:-
?The Defendant started harassing us on the Issue about two years ago by summoning us before the Oha Uratta. Before the Oha Uratta stated that he would produce a JUJU for me to swear but I refused and I opted to swear with the Bible as a Christian. The Oha Uratta refused my option to swear with the Bible. I on the other hand rejected swearing with JuJu. It was because of my rejection of the decision of Oha Uratta that I sued the Defendant to this Court.”
?
Before the last part of the evidence above reproduced, the witness had testified about the controversial letter written to Oha Uratta

which was the subject of Cross-examination of the late PW1?s Son Harrison who adopted his father?s earlier evidence-in-Chief at the hearing of the case in Umuoba when the case started de novo at the Umuapu-Ohaji Customary Court that: ?I wrote to the Oha Uratta conveying my objection to JUJU?.
At page 31 of the Records when the deceased PW1 (Robinson Iwuala) was cross-examined about Oath taking he replied in lines 13 -23 inter alia:
?Before the date scheduled for Oath taking in this matter the Second Defendant my Son, wrote a letter to the Panel rejecting Oath taking and asked the Panel to choose any other method of proving the truth of the case. From my age, I am well acquainted with our Custom. It is true that in our custom land cases are determined by Oath taking and if the Bible is produced, I will swear. In Oath taking according to our custom, the claimant of the land in dispute is supposed to swear. In Oath taking custom, if the person who took the Oath does not survive for one year, it means that the land in dispute does not belong to him.”
?
At page 129 of the Records, when Harrison the Second Plaintiff

who then stood in the place of his father and adopted his father?s evidence as PW1 was cross-examined (See Questions and Answers 17-20) the following were recorded by the trial Court:
?Q17. In that arbitration, it was decided that your father should produce a Material of Oath for the Defendants to swear?
?Ans. Yes.
?Q18. Because of the Juju issue of Oath taking, your father refused to produce the Juju for the Oath?
?Ans. Yes.
?Q19. It is also true that your father wrote a letter to the Arbitration Panel in respect of the decision?
?ANS. Yes.
?Q.20. He suggested that he would prefer going to fortune teller and that he sent two people to join Oha Uratta for this purpose to find out who owns the land?
?A. In my father?s letter to Oha Uratta in respect of the Oath, there was nothing mentioned about fortune teller. Rather that both parties and the Oha Uratta should delegate two persons each to go to the land, collect sand and go anywhere to find out the owner of the land according to the practice of our people in those days.”

Still concerning

this question of Oath taking, at page 53 of the Records to 5th thereof Questions 16-20 and 21; the PW1 had also replied to the cross-examination of the Defendant/Respondent as follows:
?Q16. Did you and your father accept the decision of the Oha Uratta arbitration or not when they told me to refund you the 10 Shillings but I gave you N20.
“A. We did not accept the decision the Oha Uratta did.
?Q17. Since you did not accept the decision of the Oha Uratta, did you return the money I paid to you?
?A. There was no cash transaction in the arbitration. Even my late brother sold his own land to H.R.H. Eze DR. Emmanuel C. Okoro of Ihite Oha Uratta in Owerri North L. G. A.
?Q18. When the Oha Uratta Arbitration told you to produce Juju for me to swear on behalf of the land, did you produce Juju.
?A. No because of his position in the Anglican Church.
?Q.19. You said that your father is a Christian and therefore cannot produce material of Oath nor can he swear, why did he swear on Bible at the Customary Court Owerri North. Don?t you know that Oath is Oath?
?A. He swore to the

Bible.
?Q.20. Do you know that the Bible is a material for Oath and God says in the Bible ?Do not swear an Oath why did you and your father swear at all in the Court.
?A. As a Christian he is bound to swear on Bible.
?Q21. Since you know that Bible is a material for Oath taking and your father knows this why did you not give me Bible to swear, to fullfil the decision of the Oha Uratta Arbitration.
?A. The Oha Uratta recommended JuJu and Bible.”
?
It is pertinent to note that the Arbitration Report was published and tendered as Exhibit ?B? at the trial in the Customary Court on the 12th of November, 2008 (see pages 37 -39 of the Records). At page 38 of the Records, the Arbitration Panel had Ruled that since none of the parties (Complainant and Respondents) could prove their respective Claims beyond every reasonable doubt, more so when the Respondent who was of a reasonable old age was not able to tell when the transactions took place coupled with the Complainant?s father?s inability to sue the Respondent?s before he died, the Oha

Uratta had no other alternative than to resort to Oath taking.
In the words of the Panel:
“? and Oha Uratta according to tradition ruled that the Complainant should take an Oath in respect of the land. The Respondents Iwuala?s family should produce material for the Oath taking, and that Mr. Raphael Chima will take the Oath. After one year, if he survives the Oath, the land in dispute will be given to him as his own. Should he die before the period of one year, the land will be given to Iwuala family as the owner of the land. N/B: Iwuala?s family must bring their material for Oath within one Week, before Uratta People inter peace Period before Onwo Oru Uratta Festival. To our greatest surprise, Mr. Harrison Iwuala a member of Iwuala?s family brought a letter from the family on the 8th of January, 2001 stating that in consequence of their religious belief, they will not produce material and administer the Oath on Mr. Raphael Chima, or in the alternative, they and the Complainant will secretly provide two men each to accompany Oha Uratta to go and find out which means going to a fortune teller, or Native Doctor

how the land in dispute came into their family hand for more than 400 years. In conclusion, they suggested that whereby their suggestion fails or not accepted by Oha Uratta in Council that they will seek redress at the Court of Law.”

Upon the foregoing basis, the Oha Uratta came up with their verdict that it is not traditional or legal for Arbitrators in a case to administer Oath on anybody by themselves or provide the material for Oath taking and in addition, going to a fortune teller or Native Doctor to find out the true position of anything in doubt. According to the Oha;
?It is a thing of the past, a very (sic) ancientic and no law Court uphold that. (Oha Uratta Traditional Supreme Council) in consequence of the above reasons without any (sic) stink of bias or prejudice, give our verdict in favour of Mr. Raphael Chima that the land in dispute is redeemable, and not in exchange or the appeasement of a murdered woman in that family of Iwuala could not be able to administer Oath on Mr. Raphael Chima in respect of the land in dispute.”

Raphael Chima was therefore ordered to go and redeem the land from the family of Iwuala.

Going by the authority of Okoye & Anor Vs. Obiaso & Ors. (2010) 11 NSCR 168 at 195 Para B; where the Supreme Court re-stated the principles underlying the bindingness of Customary Arbitration, can we say that the Respondent in both the Customary Court of trial and the Lower Court proved the existence of the conditions precedent for a binding Customary Arbitration, I think not.

In the first place, the Appellant/Plaintiff in the Court of first instance was dragged to the Oha Uratta Arbitration Panel and assuming that he even voluntarily submitted himself to the Panel there was no agreement by the present Appellant to be bound either expressly or by implication by the decision of the said Panel since he ab initio rejected the order of Oath taking by virtue of his being a Christian.

Having suggested an alternative means which the Arbitration Panel regarded as (sic) “ancientic” a thing of the past just like subscribing to Juju as a means of oath taking, there was a missing element of a binding Arbitration Award. Besides, it would appear that the Appellant had lost confidence in the Panel when he wrote intimating them

that where their suggestion failed or was not accepted, then they would seek redress in the Court of law. The Appellant therefore resiled at the earliest opportunity from being bound by the decision of the Arbitration Panel.

The Arbitration Panel Stated the acceptable custom of Uratta people if not the universally accepted Custom of the Igbo people and indeed South-East and South-South Geographical zone, that where parties submit themselves to Oath taking and the Claimant of the land dies one year thereafter, then the land belongs to the Respondent and Vice Versa. With the greatest respect to the Oha Uratta Arbitration Panel and indeed the learned Justices of the Customary Court of Appeal, failure to produce Oath taking material does not necessarily translate to the Respondents not being the owners of the disputed land particularly where in the instant case the Appellants refused to subscribe to the Oath on the basis of their Religion/Anglicans. See Ojiogu V. Ojiogu (2010) 6 NSCR 123 at 149 Para. C.
?
Therefore from the totality of the evidence on Record, the Court below was in grave error to have held as it did that the fact that the Appellant

resiled from Oath taking by implication means that the subject matter in controversy does not belong to him.

As rightly submitted by the learned Counsel for the Appellants, if the holding of the Customary Court of Appeal were to be the custom of the Uratta people then such a Custom is repugnant to the Constitution of the Federal Republic of Nigeria, 2009 (As Amended) which by Section 38(1) thereof provides that every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Such Custom shall therefore to the extent of its repugnancy or inconsistency with the Constitution or any Statute in force in Imo State, be null and void and of no effect whatsoever.
?
Indeed contrary to the bizarre and perverse finding of the Customary Court of Appeal, the Trial Customary Court which had the opportunity of hearing and watching the demeanour of the parties and their witnesses apart from visiting the Locus in quo, brilliantly analyzed evidence of the Witnesses on this vexed Issue of

Customary Arbitration and came out with the unassailable verdict that the verdict of the Oha Uratta Panel was fraught with illegalities and followed bizarre paths in arriving at conclusions without premises and findings not supported by evidence. The Court further held that the Oha Uratta Panel?s verdict was not certain, conclusive and reasonable nor did it follow established principles and the Custom of the people apart from being unfair in the holding of the scale of justice between the parties and therefore occasioned miscarriage of Justice against the present Appellant.

Going into specifics, the Trial Court observed and rightly too, that whereas the Panel stated that after the Statement of the Original Plaintiff, Pa Robinson Iwuala, he was asked under cross-examination by the Defendant, “IF he would swear that the land is not in their hands on pledge but in exchange for a murdered person from his family, he answered yes?, which was the only sort of evidence in the verdict, but that the Council suddenly reversed its position on this evidence by ruling that the Defendant instead of the Plaintiff as the evidence showed, was the person

to swear, and did not offer any explanation as to this sudden reversal.

The trial Customary Court also rightly observed that the evidence by the PW1/1st Plaintiff that the Oha Uratta stated that the Defendant/Respondent would procure JuJu for him (Plaintiff) to swear but he (Plaintiff) refused and opted to swear with the Bible as a Christian but that the Oha Uratta refused his option to so swear with the Bible; and that he wrote to the Oha-Uratta conveying his objection to JuJu; and further that it was because of the Plaintiff?s rejection of Oha Uratta?s decision that he sued the Defendant/Respondent to Court, was not challenged. Consequently, the Trial Customary Court on the authorities of Okeobor V. IGP (2003) 6 MJSC 13 at 28 Para. G and Gaji Vs. IPaye [2003] 12 MJSC 76, concluded that the above evidence which was not challenged at all even by the two Secretaries of the Council who testified in Court for the Defendant, was credible and flows from the facts and other evidence of arbitration.
?
The trial Court also questioned why the Oha Uratta excluded the above pieces of evidence of the plaintiffs from Exhibit ?B? or their

verdict and came to the inevitable conclusion that the Oha-in-Council manipulated the records deliberately to undermine the case and through position of the Plaintiffs/Appellants before it, as it relates to the issue of Oath taking. Most importantly, the Trial Court rightly held at page 204 lines 29-39 of the Records that:
?The irony is that the Defendant with the head of his family also gave evidence of going to Elele to swear to an Oath before Reverend Father Edeh apparently with a Bible, as the means by which the Defendant finally secured the land in dispute (between him and family) as his own rather than family property. In the second place, the decision on who is to take the Oath and who would provide the material for the Oath is guided by Certain indices under Customary Law. The Native Law and Custom is that, generally, the challenger, in this case the Defendant, is the one to provide the material and the persons in possession, in this case the Plaintiffs, will have to take the Oath.”
?
At page 205, the Customary Court of trial observed in lines 1-8 thereof that the Defendant (now Respondent) was aware of the above procedure and

general rule in his question to the 1st Plaintiff before the Oha Uratta as reproduced in Exhibit ?B? or the Verdict. They then posed the questions as to why the Oha Uratta somersaulted this procedure and general rule by suddenly deciding in their Verdict, that the Plaintiffs should provide the material for the Oath without any reasons or explanation and why they should reverse the custom or rather decide against this rule of Custom without any reason or explanation.
?
The trial Customary Court also took a swipe at the Oha Uratta?s holding that the land was redeemable without establishing from evidence that the land was pledged when the same Oha in the verdict said that the Plaintiffs could not tell when the transaction which was about 300 years beyond human memory occurred, but believed and upheld the Defendant?s case even though, he too, could not tell before the Oha when his transaction (the pledge took place). On this part of the verdict of the Oha, the trial Customary Court referred us to the evidence of Nze Sam Ole under Cross-examination who stated that the Defendant could not tell them at the Arbitration even though the said

Defendant then in Court mentioned 1948 as the date of the pledge transaction. Again, the Second Secretary Innocent Iheanacho Obilor upon being Cross-examined denied that it is the Custom and practice of the traditional Supreme Council that where a Litigant before them refuses to swear to an Oath, they decide against him.

On the whole, the Customary Court had cited the authorities of Boniface Oformata & Ors V. Fabian Anoka (1974) 4 ECSLR 251; where it was held that a Court would inquire if an arbitral decision was certain, final, reasonable, legal and if the arbitration award disposed of the differences submitted to it but that where a decision of an arbitration was dependent on a contingency of whatever nature, then the decision although legal was not final. In the instant case, since the swearing of an Oath was part of the arbitration and not an extraneous matter, the arbitration award was not final.

The trial Court in the course of its analysis also relied on Odonigi V. Oyeleke [2001] 5 NSCQR 537, 575, Ohiaeri V. Akabeze [1992] NSCC (Pt.1) 139; on the conditions to be fulfilled before the decision of a Customary Arbitration can be binding on

the parties as earlier highlighted which are:
(1) that the parties should be free to reject the decision where not satisfied;
(2) neither of the parties should resile from the decision so pronounced;
(3) the decision must be in accordance with the custom of the parties and
(4) that parties must have accepted the decision at the time it was given;
to hold as I had done earlier, that in our instant case, the Plaintiffs unequivocally resiled from the arbitration before its conclusion and did so in writing wherein they gave their reason for resiling as well as stated their choice of Court of Law.

In the words of the trial Court, ?The Plaintiffs resiled from and rejected the decision even before it was given. The decision thus is not binding on them?. (See page 208 of the Records/Page 10 of the Judgment of the Customary Court). I adopt this unassailable position of the Customary Court and would add that where a trial Court as in this case had thoroughly evaluated the totality of the evidence of the Parties and their witnesses including documentary Exhibits tendered in this case before arriving at its findings of fact, as

the Customary Court had done herein, the Customary Court of Appeal had no business interfering with such findings which are borne out of the evidence on Record.

The Circumstances under which an Appellate Court will interfere with the findings of fact of a trial Court have been re-stated in the recent case of Aji VS C. B. D. A & Anor [2015] 16 N.W.L.R. (Pt.1486) 554 at 569 Paras. E ?G; 572 Paras. A.-B and 573 Paras. D-E; to include: “where (1) there is miscarriage of Justice; (2) there is perversity, (3) there is substantial error apparent on the face of the Record of Proceedings and (4) there is wrong application of substantive or procedural Law. See further Idufueko Vs. Pfizer Products Ltd. (2014) 1 NWLR (Pt.1320) 96; Salim Vs. CPC (2013) 6 NWLR (Pt1315) 501?.

I find none of the above elements in the decision of the trial Customary Court on the issue of Arbitration so as to warrant the interference by the Customary Court of Appeal with that Judgment. Thus even on the authorities of Ojibah Vs. Ojibah (1991) 4 LRCN 1215; also reported in [1991] 6 S. C. N. J. 156 at 169 Per Nnaemeka- Agu, J. S. C; Online &

Ors. Vs. Jacob Obodo & Ors (1958) 3 F. S. C. 84 at 86 and Umeh Vs. Okoronkwo (1996) 43 LRCN 2068 at 2081 F, all cited by Learned Counsel for the Respondent; there must be the elements of Voluntariness and agreement by parties to submit themselves to arbitration and acceptance to be bound by the outcome before such arbitral decision could be binding on the parties.

There being no evidence that the Appellant participated fully at the Arbitration or accepted the verdict of the Panel before he resiled therefore, coupled with the apparent manipulations of the verdict to favour the Defendant/Appellant; the Customary Court of Appeal was wrong to have held that the refusal of the Appellant to submit to Oath taking meant that the subject matter of the dispute was not his. Their Lordship?s verdict as well as that of Oha Uratta Arbitration Panel therefore cannot stand. Accordingly this Issue Number ONE(1) is hereby resolved in favour of the Appellants.

ISSUES NUMBER 2 OF THE APPELLANT AND 3 AND 5 OF THE RESPONDENTS: ?WHETHER THE ISSUE OF PLEDGE WHICH WAS NOT EFFECTIVELY PROVED BY THE DEFENDANT CAN DEFEAT LONG POSSESSION OF THE LAND BY THE

PLAINTIFF/APPELLANT AND WHETHER THERE WAS NEED FOR THE RESPONDENT TO PROVE PLEDGE
Arguing this Issue, the learned Counsel for the Appellant submitted that the learned Justices of the Customary Court of Appeal were right when they stated at page 273 of the Records that ?It is elementary that once a pledge always a pledge?, but were wrong to have held that: ?It is the pledge that is the root of the acts of long possession. The acts of long possession cannot stand on their own and cannot therefore defeat a pledge? (page 7 of the Judgment/279 of the Records refer). It was the further submission of the learned Counsel for the Appellant that the only reason the Court below arrived at the above conclusion can be gleaned from its finding at page 5 of the Judgment/277 of the Records that: ?The issue of pledge was settled by the Oath-taking as directed by the Oha Uratta Traditional Supreme Council which was aborted by the Respondents.? The learned Counsel argued further that every principle of Law applies to its peculiarity of the case involved and that the Court below disregarded the circumstances of this case

while applying the above principle in that, according to him, there was no pledge over the land in dispute for the principle of ?once a pledge always a pledge? to apply.

He wondered how the Court below came to the conclusion as done at page 277 of the Records/Page 5 of the Judgment when there was no evidence from the parties to show that pledge is proved by Oath-taking which was never done. That decision by the Court below was therefore perverse, the learned Counsel for the Appellant maintained. Drawing our attention to the pages 211 to 218 of the Records, he submitted that the Court below could not in any way under the law, fault the findings of the trial Court that painstakingly considered the evidence of parties on the issue of pledge and arrived at its decision that the Defendant/Respondent did not prove pledge which they alleged.

Citing the Supreme Court case of Ebevhe Vs. Ukpakara (1996) 7 NWLR (Pt.460) 254 and Okoroafor Vs. Abaworonini (1996) 2 NWLR [Pt.430] 278; on where the onus of proof lies where one of the parties is agreed to be in possession and the other alleges pledge, it was submitted in this case that the

Defendant?s witnesses not only contradicted themselves on the pledge but could not provide evidence of witnesses to both the pledge and its acclaimed redemption as even the stories of the Defendant/Respondent on his redemption of the land (see page 138 and 107 of the Records) were most unreliable which shows that the Defendant/Respondent is not a credible witness who must not be relied upon as found by the Trial Court.

In the light of the above, the learned Counsel for the Appellant took the view that the Court below after agreeing with the findings of the Trial Court that the Plaintiff/Appellant has been in long possession of the disputed land erroneously ordered as done at page 10 of the Judgment/Page 282 of the Records that the then Defendants/Appellant?s lawful possession should not be disturbed.
?
Finally on this Issue, the learned Counsel for the Appellant contended that from the findings of the two Lower Courts, the Defendant/Respondent has never been in possession of the disputed land and having failed to prove pledge which he strongly relied on, the Court below was wrong to have made the order that the Defendant/Respondent?s

lawful possession should not be disturbed. We were therefore urged to resolve this Issue in favour of Appellant.

ARGUMENTS OF LEARNED COUNSEL FOR THE RESPONDENT ON HIS ISSUES 3 AND 5 OF RESPONDENT?S BRIEF: ?WHETHER THE HOLDING OF THE JUSTICES OF THE CUSTOMARY COURT OF APPEAL WAS PROPER?
AND
?WHETHER THERE WAS NEED FOR RESPONDENT TO PROVE PLEDGE
Arguing these Issues which are akin to the second Issue as distilled and argued by the learned Counsel for the Appellant, the Learned Counsel for the Respondent on his Issue Number 3 answered the question posed therein in the positive/affirmative as according to him, the Order by the Customary Court of Appeal that the Respondent?s Lawful possession of the disputed land should not be disturbed was/is in order.

His basis in so submitting is that in the first place, the Appellant redeemed the land on the promptings of the Oha Uratta as reflected in page 134 lines 23 -27 of the Record of Appeal, the Respondent having paid the pledge fee back to the Appellant?s father, re-entered the land and brushed same thereby being in actual and physical possession.

?The

learned Counsel for the Respondent recalled that the Oha Uratta arbitrated on the disputed land and found for the Respondent adding that despite the fact that the Respondent (the Appellant) in the Lower Court did not Counter-claim, it was proper for the Court to have made proper and appropriate orders it deemed necessary based on the circumstances of the case. Order 11 Rule 1 of the Customary Court Rules, 1989 of Imo State refers.

Upon the assumption and without conceding that the Respondent was not in possession of the land in dispute, the learned Counsel maintained that the Court below still properly made the order more particularly when the Respondent won the case at the Lower Court. We were urged to note that the sale of part of the land took place during the pendency of this Appeal which is against the principles of Lis Pendens and such void act, in his view, cannot be used to propagate acts of ownership. We were then urged to resolve Issue Number 3 in favour of the Respondent.
?
In respect of Issue Number 5, the learned Counsel answered the question posed therein in the negative that there was no need for the Respondent to prove pledge

irrespective of the fact that he gave sufficient evidence on this Issue.

In tackling the Issue, the learned Counsel for the Respondent submitted that the law is trite on the authorities of Ochonma Vs. Unosi [1965] NWLR 321, and 323; Isiba Vs. Hanson [1967] 1 ALL NLR 8 at 10 and Okubre Vs. Ibangha [1990] 6 NWLR (Pt.154) 1 at 11; that the law is trite that in suits where an occupant of the land wants permanently to divest the original owner of the land, that occupant has the onus of proof. He argued still on this point that the Appellant in this case admitted that they were not the original owners of the disputed land. [Page 30 lines 4-5 of the Record of Appeal refers] and the authorities of Onoburuchere & Anor Vs. Esegine & Anor (1986) NWLR (Pt.19) 799; Ochonma Vs. Unosi (supra) and Isiba Vs. Hanson (supra); since Appellant admitted that they were not the original owners of the land, the onus of proof was on the Appellant which he failed to discharge and which by that reason, the onus never shifted and on that score, there was no need for the Respondent to prove pledge.
?
According to the learned Counsel for the Respondent, in spite of the above

scenario, the Respondent still led sufficient evidence on the pledge, of the parties; the fee of 10 Shillings and the probable year of the transaction in 1948 and redemption of same. He further argued that the land in dispute is surrounded by land of Umuori people ? Respondents kinsmen whereas the Appellant failed to prove atonement, coupled with the fact that the Respondent did not Counter-Claim and accordingly is not in law charged to prove anything, as the Law placed no onus of proof on him.

Finally, the learned Counsel on this Issue urged us to find in favour of the Respondent.

RESOLUTION OF THE COMBINED ISSUES NUMBERS 2 OF THE APPELLANT. AND 3 AND 5 OF THE RESPONDENT:
The Crux of these Issues is the decision of the Customary Court of Appeal (the Lower Court) at page 279/7 of the Records/Judgment that the acts of long possession cannot stand on their own and cannot defeat a pledge as it is the pledge that is the root of the acts of long possession. With the greatest respect, acts of long possession is one of the factors accepted as the mode of establishing ownership of land or root of title. See the celebrated case of Idundun &

Ors. Vs. Okumagba (1976) 1 NWLR 200 at 210-211 per Fatayi- Williams, JSC. of blessed memory who held on this long settled principle of our law that:
?Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (see Section 45 of the Evidence Act, CAP.62). Such acts of long possession, in a claim of declaration of title (as distinct from claim in trespass) are really a weapon of defence than of Offence; moreover, under Section 145 of the Evidence Act (now Section 143); while possession may raise presumption of Ownership, it does not do more and cannot stand when another proves good title (See Da Costa V. Ikomi (1968) 1 ALL NLR 394, 398).”
The learned Emeritus Law Lord of blessed memory also stated the law as submitted by the learned Counsel for the Respondent on the fifth mode of proving ownership which is proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would, in addition, be the owner of the land in dispute.

In the

instant case, it is not that the Appellant?s family and the Respondent?s originally shared or share a common boundary but while the Appellant admits that the Respondent?s family/kindred of Umuori originally owned the land but that: ?The disputed land was inherited by the plaintiff from their ancestors who got it from the Defendant?s ancestors to meet the Customary requirement when a member of the Defendant?s family murdered a member of the Plaintiff?s family?, and that; ?The plaintiffs through their ancestors have been in undisturbed possession of the said land until the year 2000 when the Defendant started laying false claim to the land?; the Respondent on the other hand claimed that the land was pledged to the Appellant/Plaintiff?s ancestors in times past.
?
It would be recalled that the issues of the pledge and atonement were the subject of the Oha Uratta Supreme Council Arbitration and after the Respondent had testified that the land was in the hands of the Appellants on pledge for the sum of N20 (10 shillings) and that before the death of his father, his said father made efforts to no

avail to redeem the land but Appellants were not giving his (Respondent?s father) any tangible reply; and after the demise of his (Respondent?s) father, he (The Respondent) went for the redemption of the land several times but he:
?Was bamboozled and tricked out by the deceitful act of come today come tomorrow, and at last he was told to go, that he cannot (sic) be able to get the land from them. That he had no other alternative than to sue them before the Oha Uratta in-Council for proper arbitration traditionally.”

At Page 38 of the Records/Page 3 of the said Exhibit ?B? (ARBITRATION REPORT), it is recorded that Pa Robinson Iwuala who represented Iwuala?s family stated that he was the son of Akagbara Iwuala who was about 86 years and then the most senior in Iwuala?s family. According to him, the land they were being sued for was named APU ? Iche. He admitted that:
?We are not the aborigin of the land that land came to our hands, for the appeasement or in exchange of a murdered woman from our family by the family of the complainant. The land now in dispute, he continued is not

redeemable according to custom and tradition of the land. When he was asked during cross-examination by Mr. Raphael Chima if he will swear that the land is not in their hands on pledge but in exchange for a murdered person from his family, he answered yes.”

The Arbitration Panel visited the Locus in quo and expressed their satisfaction with what they saw as both Respondent and Appellant showed them one and the same portion of land in dispute. In their verdict still at the same page 38 of the records paragraph 3 captioned ?RULING,? THE OHA URATTA SUPREME COUNCIL held:
?Hence none of them both the complainant and the Respondents could be able to prove their claims beyond every reasonable doubt, even the Respondent who is of reasonable old age cannot be able to tell when the transactions took place. In addition, the complainant father?s inability to sue the Respondents before he died.?

I?t was upon this basis that the council resorted to Oath taking and rather than Mr. Raphael Chima (the complainant at the Arbitration (who had asked the Respondent Robinson Iwuala if he would swear that the land was not in their

hands on pledge but in exchange for a murdered person from his family), producing the material for the oath to be taken by the Respondents at the Arbitration, the Panel turned the custom upside down and subsequently ruled in paragraph 4 of the self same verdict that:
?…Oha Uratta according to tradition ruled that the complainant should take Oath in respect of the land. The Respondents Iwuala?s family should produce the material for Oath taking, and that Mr. Raphael Chima will take oath. After one year, if he survives the oath the land in dispute will be given to him as his own. Should he die before the period of one year, the land will be given to Iwuala?s family as the owner of the land.?
?
It was against this background that the trial Customary Court at page 204/6 of the Records/Judgment, questioned the rationale behind the sudden reversal of the position of the Uratta custom by the Council ruling that the Defendant instead of the Plaintiff as the evidence showed, would then be the person to swear and after highlighting evidence of the PW1 at the trial that Raphael Chima would procure juju for him (Robinson

Iwuala) to swear but he refused and opted to swear with the Bible as a Christian, the Oha Uratta refused his (Iwuala?s option).

Amongst others, the trial Customary Court found that the Defendant (now Respondent) had gone before father Edeh at Elele to swear by the Bible as a means by which he finally secured the land in dispute in another case as his own rather than family property but opted for juju at the Arbitration and that the Arbitration Panel failed to reflect the evidence that the Defendant (Respondent) was the one who stated that he would procure juju for the plaintiff/Appellant to swear, in Exhibit ?B? their verdict.

The trial Court rightly held that the Council manipulated the Records to deliberately undermine the case and true position of the plaintiffs before it as it relates to the issue of Oath taking. Then in the last paragraph of page 204/6 of the judgment, the Customary Court rightly found on the manipulation of the verdict by the Council that ?.”the decision on who to take the oath and who would provide the material for the oath is guided by certain indices under Customary law. The

native law and custom is that generally, the challenger in this case the Defendant, is the one to provide the material and the person in long possession, in this case the Plaintiffs, will have to take the oath.?

Away from the above digression, now it suffices to say that the Uratta Supreme Council Arbitration it would appear, was not initially satisfied with the evidence given by the parties in their disparate claims at the Arbitration hence the resort to oath taking by which the refusal by the Appellant herein warranted the finding in favour of the Respondent herein.
The decision of the Supreme Council/Oha Uratta which was upheld by the lower Customary Court of Appeal was rightly set aside by the Customary Court and I had earlier upheld the decision of the Trial Customary Court in this regard as it was predicated on a non-existent custom and false premises.
?
Now back to the concepts of pledge and atonement upon which the disparate cases of the parties were anchored. Talking of ?pledge? which is a more popular concept of Customary law with a plenitude of pronouncements by all tiers of the Courts of this land including the

Supreme Court, our most venerated legal and erudite scholar Dr. T.O.S. Elias in his seminal ?NIGERIAN LAND LAW,? Sweet and Maxwell Publishers, 4th Edition at pages 153 and 154 had defined the concept thus:
?Pledge is kind of indigenous mortgage by which the owner occupier of land in order to secure an advance of money or money?s worth gives possession and use of the land to a pledge creditor until the debt is fully discharged.?
On the other hand, Olawoye in his book ?TITLE TO LAND IN NIGERIA? Evans Publishers Ltd (1974 Edition) at page 49, takes the view that a ?Pledge is created when an owner of land transfers possession of his land to his creditor as security or, rather, in consideration of a loan with the object that he should exploit the land in order to obtain the maximum benefit as a consideration for making a loan.? Also referred to as a pawn in general parlance, to qualify as a pledge the land the subject of the pledge must be in the possession of the pledgee. See Adjei V. Dabanka (1930) W.A.C.A 63. As rightly held by the Learned Justices of the Customary Court of Appeal, a pledge is

said to be perpetually redeemable hence the maxim ?once a pledge always a pledge.”
Thus in the celebrated case of Onobruchere & Anor V. Esegine & Anor (1986) LPELR-2688 (SC) Oputa, JSC now of blessed memory) relying on the authorities of Ikeanyi V. Adighogu (1951) 2 E.N.L.R. 38 at 39, Laragun V. Funlayo (1955-56) W.R.N.L.R 167. Agbo Kofi V. Addo Kofi (1933) 1 W.A.C.A. 284; Orishanu V. Mefue (1937) 13 NLR 181; stated the position of the law at pages 10-11 of the Report that:
?In Customary Law, the pledgor retains the radical title. It is not extinguishable by the pledge. The pledgor has the right of redemption, and it does not matter for how long the land had been pledged.?
Speaking in the same vein, Onnoghen, JSC in Okoye & Anor v. Obiaso & Ors. (2010) LPELR-2507(SC) at page 10 para. A; posited that it is settled that a pledge does not ripen into ownership because once a pledge, always a pledge. See also Nwagwu & Anor. V. Okonkwo & Ors. (1987) LPELR-2094 (SC); (1987) L.S.C.NJ/2 per Kazeem, JSC at pages paras. B-C of the LPELR above cited.
?Finally, the Law is also settled that although a

pledge is akin to the English concept of mortgage, one distinguishing incident of a pledge is the perpetuity of its redeemability in that whereas in the case of a mortgage ownership of the property mortgaged is in the hands of the mortgagee, in the case of a pledge, ownership is in the pledgor while possession is in the pledgee. See the recent case of Achilihu & Ors. V. Anyatonwu (2013) LPELR ? 20622 (SC) per Ariwoola, JSC; Nwosu v. Mbadugha (1999) LPELR ? 6587 (CA) per Ubaezonu, JCA; Mbabu v. Obori & Anor (2002) LPELR ? 12714 (CA), per Nsofor, JCA.

What emerges from all the above authorities is that upon the assumption that the Respondent in this case proved that the disputed land was pledged, the invariable rule of Customary law which is that the pledgee goes into possession with the right of user of the land for some productive purposes in which case such use is like interest charged on the loan /amount disbursed to the pledgor, would apply.
?
On the perpetual redeemability nature of the pledge transaction, it is said that the pledgee has only temporary occupation license and he must yield up the pledged land in the form it

was taken originally such that the return is unencumbered in any way. It has also been interpreted to mean that should the Respondent have proved the existence of the pledge transaction, then the Appellant or his ancestors or predecessors ought not have demanded any amount in excess of the N20.00 or 10 (ten shillings) which was the purported pledge sum or should they apply or employ other subterfuges to delay or postpone the respondent?s father or the respondent?s redemption of the land as claimed by the Respondent at the Oha Uratta Arbitration or at the trial Customary Court.

Now, how is a pledge created? In the times of yore, a transaction was created orally in the presence of witnesses from both families and outsiders who would proceed to the land and inspect same after which the boundaries are demarcated and upon return from the inspection kola nuts or any other form of kola and drinks are shared as a mark of finalizing the transaction. With the introduction of writing, the transaction is sometimes reduced into writing with those witnesses appending their signatures if Literate or thumb-impressions with jurats if illiterate.
?The

emphasis on witnesses to the transaction is dictated by circumstances as we have found ourselves where there is uncertainty as to who between the Plaintiff/Appellant and defendant/Respondent is telling the truth as to whether the disputed land was given out as a pledge or for atonement/appeasement. In this type of situation as we have found ourselves, it has been held that the evidence of those who witnessed the transaction is very fundamental and where they are all dead, resort is to be had to boundary neighbors who must have noticed the change in the user of the land and possessory interest thereon. See Iwuchukwu V. Anyanwu (1993) 8 NWLR (pt. 311) 307 AT 319 CITED AT PAGE 238 of the ?ABC of Contemporary Land Law in Nigeria (Revised Edition)? by Hon. Justice I. A. Umezulike, OFR, FCI Arb.
?
The crucial question that calls for an answer in this Appeal is whether the Respondent proved that the land in dispute was pledged by his father to the ancestor of the Appellant. Section 146 of the Evidence Act (now 167) of the 2011 Act, Laws of the Federation, provides for the presumption of ownership and specifically states/shifts the burden of proof

to the person who affirms that the person in possession is not the owner. In other words where as in this case there is no dispute that the Appellant through his ancestors had been in possession of the disputed land for about 300 years until 2001 when the Respondent and/or his father started laying claims to the land as being the subject of pledge, the authority of EBEVHE VS. UKPAKARA (1996) 7 NWLR (Pt. 460) 254, ably cited by the Learned Counsel for the Appellant is very instructive.
There the Court held in line with the provision of the above Section of the Evidence Act, that: ?where a Defendant admits that the plaintiff is in possession of the land in dispute (as in this case), although by a pledge which the plaintiff strongly denies, the onus shifts on the Defendant to prove the pledge.? See Dacosta V. Ikomi (1968) 1 N.L.R 394, Amadi V. Nwosu (2003) LPELR ? 12619 (CA) at p.8 Para.C; Nwosu V. Mbadugha (supra) page 8 para. C-E. At page 15-16 of the LPELR ? 6587 (CA), Ubaezonu, JCA with whom J.A. Fabiyi and M.D. Mohammed JJCA (as they were then) concurred; cited with approval the dictum of the learned sage Oputa, JSC (now of

blessed memory) in Ezeudu VS. Obiagwu (1986) 2 NWLR (Pt. 21) 208; (1986) 3 SC 1 at 30-31 that:
?By admitting that the Respondent?s (in our instant case the Appellant?s) ancestors were, and that the Respondent (Appellant in this case) is still, in possession of the land in dispute or even part thereof but as pledgees, the onus of proof that those in admitted possession were not owners of the land in dispute shifted to the Defendants/Appellants by operation of Section 145 of the Evidence Law cap. 49 of the Laws of Eastern Nigeria 1963 in force in Imo State. The trial Court should have called upon the Defendants to begin, not the Plaintiffs who should not have been called upon to establish what the law presumes in their favour.
Although the Law of Evidence does not apply in strictu sensu to proceedings in Customary Courts, by virtue of the maxim that possession is 9/10 (Nine tenth) of the law, the onus was still on the Respondent who asserted that the land was in the possession of the Appellants and their ancestors by pledge, to prove it. In so doing he must adduce sufficient evidence to establish his claim since the law is

settled as were decided in Okoroafor Vs. Aba-Woronini (1996) 2 NWLR (pt. 430) 218; ably cited by Learned Counsel for the Appellant, Nwosu Vs. Mbadugha (supra), Onyemaechi V. Nwaonamuo (1992) 9 NWLR 261, 372, Ufomba Vs. Ahuchaogu (2003) 4 SCNJ 231 at 249-250.

Going by the above authorities and the principles enunciated above it has also been settled by a plethora of authorities beginning from the locus classicus of Adjei Vs. Dabanka (1930) 1 WACA 63, Akuchie Vs. Nwamadi (1992) 8 NWLR (pt. 257) 214 at 226; Onyekwere Vs. Ezenwankwo (1977) 5 FCA 89-95 and the recent case of Ezike & Ors. Vs. Egbuaba (2007) LPELR ? 5131 (CA), that to establish the existence of pledge under Customary Law as in this case, the Respondent (then Defendant) was expected to prove the following:-
(1) That there was a pledge;
(2) That it took place in the presence of witnesses
(3) That there were parties to the pledge;
(4) That there was a pledge sum;
(5) That the pledgee was put in possession;
And
(6) The mode of redemption of the pledged property.

?The question pertinent for determination is whether from the totality of evidence before

the trial Court and on Record, the Respondent discharged this burden of proving the above enumerated essential elements of a valid pledge. At page 134 of the Records the DW1 (Raphael Okechukwu Chima) herein the Respondent in this Appeal, testified in-chief on the pledge transaction. According to him, his father who was working with U.A.C usually paid tax and rate for Nzewuihe. The said Nzewuihe was the son of Nnorom the brother of Akala who begat a son called Nnadi. At the death of Nnorom and Akala, their sons buried them and inherited their property. Nnadi was said to have died without a son and he was buried by Nzewuihe who inherited his estate. In 1918, the DW1/Respondent?s grandfather (Chima) died of influenza and his first wife?s son began maltreating the Respondent?s father as a result of which his paternal grandmother took the Respondent?s father to her home at Umunahu, Uratta.
?
Later on Nzewuihe Nnorom withdrew his (Respondent?s) father from his maternal home and stayed with him at Umuorii Uratta in his house when the father of the Respondent grew up, he worked with U.A.C. and paid tax and rate for Nzewuihe as his step

father. The witness continued in his evidence -in-chief that by 1948, when his said Respondent?s father could not come home and did not pay the tax for Nzewuihe, Nzewuihe had to pledge the land in dispute at the rate of 10s (Ten shillings) to Iwuala and his sons. Later when the Respondent?s father came back on one Saturday to pay the tax and rate, Nzewuihe informed his (Respondent?s) father that he had already pledged the land to Iwuala and sons but advised the said Respondent?s father to wait shortly in the next farming season that by then, the period of the pledge will be due.

?By 1950, Nzewuihe finally died and was buried by the Respondent?s father according to custom and inherited Nzewuihe?s estate. Because his father was not at home, the Respondent continued, his said father handed over the estate to one Igboeriche Ofurum for safe keeping pending when he would return from Aba. The Respondent father testified-in-Chief that his said father went several times to Iwuala to redeem the land and each time he went, Iwuala continued turning him up and down and telling his father that the land could not be redeemed in

the absence of his Iwuala?s brother Benaiah and Benson.

The Respondent also testified that he was used to visiting the Iwuala family in respect of the disputed land and for the redemption of some and when his father died he continued going to redeem the land but to no avail rather the Iwuala?s sold part of the land to one Eze Okoro who planted beacons on the land and he (Respondent) removed the beacons. When the Iwualas called the Police to arrest him (Respondent) he was locked up. He later summoned the Appellant before the Oha Uratta Supreme Council who decided that he should go and redeem the land from the Iwualas. He went to Robinson Iwuala as the Oldest person and gave him the sum of N20 (Twenty Naira) being the equivalent of 10p (Ten Shillings) exchange rate and left Robinson and having done this, he (Respondent) entered the land and started cutting the bush. At that juncture the Iwualas summoned him before the C.I.D Police and he was arrested. The Police and Oha members went to the land but there was nothing like Ofor tree to show that the land was used to pay as a ransom for a murdered person, according to their custom.

?Under

cross-examination at page 135 of the Records lines 1 -4 whether:
?(Q1. Everything you have said in this Honourable Court are facts you know about his land.
?A. Everything I said here is nothing but the truth I know about this case and I have redeemed the land.?

On further cross-examination as to whether he knew one Augustine Chima who sued him along with the Plaintiffs (Appellant) and his father Robinson Iwuala), claiming the disputed land. He admitted that he did not file a counter-claim to the Suit. He denied initially that the said Augustine was biologically his elder. Asked and further put to him that the said Augustine instituted that action (Suit No. CC/OWN/37/2005 on behalf of himself and representing the Umuchima family of Umuololo Umuotoboche Umuorii Uratta, he feigned ignorance. Neither did he know that Augustine Chima abandoned the suit and when the said Augustine was confronted with the truth of the matter over the land. He however stated on further cross-examination as to when as a Defendant in that Suit he appeared he claimed he appeared only once in the case.
?
Upon being questioned about the pedigree and

origin of the said Augustine Chima and their relationship the Respondent replied that Augustine came from Emii but he did not know Augustine?s particular village, kindred or family. He admitted however that the name ?Chima? answered by Augustine is the same surname with his (Raphael?s) but that Augustine has no right over his father?s property. He claimed that Augustine had no grandfather in Umuchima although he has a house at Umuchima but has no compound. He however admitted that Augustine lives in Umuchima compound in Umuolele Umuotobochi not as a slave Osu or out-cast but a stranger.

When asked again as to who was their Head of family he mentioned Ndaa Ambrose Chima adding that Francis Chima is the next to Ambrose Chima in the seniority list. He admitted that the land in dispute is distinct and identifiable and not the entire Apuchie land of the plaintiffs family. He also admitted that some members of the Plaintiff/Appellant?s family has sold their portions to APUCHIE land but added that he sued them and recovered the land.
?
Asked again whether he was aware that land buyers have bought and built houses on their

portions without his consent or Agreement or Purchase Agreement from him (the Respondent), he answered:
?A. I know that one Eze Emmanuel Okoro bought a part of the land from Iwuala?s family. But when I discovered this, I confronted him and he gave me N30,000.00 to allow him build his house.”

Asked again whether he knew that one Anselem Chima?s father is Akwudike Chima he admitted but denied that the said Akwudike Chima is the father of Augustine. On the question whether he know one Benaiah and that the said Benaiah sold his portion of the disputed land, he replied in the affirmative but added that he sued Benaiah and recovered the land although he would not know amongst Robinson Iwuala and Benaiah who is senior and who between them sold his portion of land first. See pages 136-138 of the Records.
?
It is pertinent to note that throughout his evidence on the pledge, the Respondent did not mention the witness (s) who were present in 1948 when Nzewuike or Nzewuihe pledged the disputed land nor did he mention any person who was present during the alleged redemption. Although he purported that the transaction took place in 1948 the

venue of the transaction was not mentioned nor was the mode of the redemption also mentioned.

In any case, to demonstrate that the respondent was a desperate man who could cut corners to achieve his aim of divesting the Appellant?s of the disputed land which had been in their possession from time immemorial (300 ? 400 years) until 2001, when he started laying claims to the land, as rightly observed by the Learned Counsel for the Appellant, the DW1(Respondent contradicted himself on the issue of redemption of the pledge when he stated at page 107 of the Records in his additional evidence that: “I was arrested and on the day of our interview, I presented the verdict Oha Uratta to the Police.”

The Police came to the land and I brought the Oha Uratta Arbitrators to the land as the Police directed. In their presence I refunded the sum of N20 to the Plaintiff as directed in the verdict. See lines 24-29 page 107 of the Records. At page 108 he continued in lines 1 -4:
?The farm land was pledged for 10 shillings, so I gave him N20. I handed over the money to the father of the plaintiff and he accepted it. Since that time the land

has been in my possession.?

As stated earlier, the DW1 who had testified that he paid or refunded the pledge fee/sum N20.00 to the present Appellant at the visit to the locus in the presence of the Arbitrators and the team of Police men, turned somersault at page 138 to testify that he went to Robinson as the eldest man and gave him the sum of N20.00 being the equivalent of ten shillings. Nobody accompanied him in the process and in this modern times he did not request for Receipt of the payment of the pledged sum to avoid future denial by the Appellants and the members of the family of the Appellants who witnessed the refund have not been mentioned as custom would normally demand.

From the evidence above highlighted the impression created is that the Respondent refunded the pledge sum twice-one to Robinson Iwuala (Appellant?s father) and the other to the present Appellant at the locus inquo. This must have prompted the Learned Counsel for the Appellant to cross-examination the DW1/Respondent thus as page 109 of the Records.
?Q. 6 Do you know that in Uratta Custom a land pledged is redeemed once?
?A You can redeem

one land ten times, A father may redeem a land and the people holding the land may refuse, his son grows up he can also go back to redeem the land and so on.?

Knowing fully well that the DW1 had goofed about the custom of the Uratta people on redemption of pledged land, the Learned Counsel to the Respondent tried to repair the damage done albeit belatedly when under re-examination the following dialogue transpired.
?Q. 1: If a father redeems a land and the people collect the redemption money, will there be any need for another redemption money paid to whoever holding the land?
?A. Hence a land has been redeemed by a father who paid the redemption money there will be no need for the son to redeem it again.?
?
Again, in the course of the evidence of the Respondent he claimed that Eze Okoro who had bought land from Benaiah Iwuala gave him N30,000.00 as payment for the land to enable the said Eze build on the land. This assertion was debunked by the Eze when called at the locus inquo during the trial at the Customary Court. See pages 167-171 of the Records. At page 169 to be precise, the defendant

testified at the Locus that he knew that H.R.H. Eze E.C. Okoro bought land at the portion showed by the Appellant as his father?s portion which the defendant admitted was the portion in dispute, the defendant further stated that when became aware of the sale and discovered that someone was building, he opposed his Royal Highness who sent one Sam Ole a onetime Secretary of Oha-Uratta to bring him (the Defendant/Respondent). He went to the Eze?s office with Sam Ole along Orji/Uratta road. After meeting with His Royal Highness, ?the Eze paid me N30,000.00 and entered into agreement with me which I tendered in Court. His Highness paid me the money because he said he found out that I own the land, according to the Respondent.”
?
To belie the evidence of the Respondent and expose him as a pathological liar whose entirety of his case ought not to be believed, the EVIDENCE OF H.R.H. EZE E. C. OKORO beginning from page 169 of the Records lines 17-29 to page 176 lines 1-4 was to the effect that he bought the portion of land aforesaid from Plaintiff/Appellant?s uncle Benaiah Iwuala eight years before he testified and had remained in possession

of the land. He had sold two plots out of the land he bought, one part to a First bank staff, Mr. Udegbule from Mbaise who built a bungalow and the other part to Miss Ebochuo. No one challenge him or his tenants until later, the Defendant began removing the boundary beacons so he sent for the respondent to know why the Respondent was disturbing his (Royal Highness) tenants as both lands were given to him (the Eze) by Benaiah and Robinson Iwuala (Appellant?s uncle and father). Each of them had given the Eze their own portion and the Respondent was not supposed to disturb his tenants.

Speaking specifically about the purported Agreement and the sum of N30,000.00 being the purported purchase price for the land he had earlier bought from the Appellant?s uncle and his father, His Royal Highness stated at pages 169 lines 27-29 to 170 lines 1-4 thus:
?I never signed any agreement with Defendant. I gave him transport money of N3000.00 (Three Thousand Naira) because he came to me. I never gave him N30000.00 (Thirty Thousand Naira) for anything and I never gave him any other money apart from that transport money which I gave him because

I summoned him. That was the end and he never disturbed the tenants again.?

My Lords, the Respondent never bothered to cross-examine the witness on this very damaging evidence adduced against his case for a witness who was called to support his claim as to title to the land and the fact that he had redeemed the disputed land from the Appellant?s uncle and Robinson the late 1st Plaintiff/Appellant?s father. The said witness was also not treated as a hostile witness and accordingly, the silence of the Respondent?s Counsel may the Respondent on this very damaging evidence tantamount to admission against interest. What is more when His Royal Highness was however cross-examined half heartedly by the Defence Counsel as recorded at page 170 lines 7-14 by the trial Court:
?Shown to the witness and read out to him is a document titled receipt and dated 31/5/2001. Counsel for the Defendant asked him if he was not the one who issued the document to the Defendant. The Eze denied being a party to the document and exclaimed that his purported signature on the document was forged.”

?Defence Counsel tendered the Receipt in evidence.

Plaintiff Counsel says no objection. COURT: The Receipt dated 31/5/2006 is admitted and marked Exhibit ?LE1?

In the course of the Learned Respondent?s Counsel?s argument, he alluded to page 149 lines 21-28 of the Record of Appeal where the DW2 Ambrose Chima the eldest person in the Respondent?s family testified that it is not true that the land in dispute was used as compensation for the death of one Ada Alum. According to him, he was hearing that name for the first time as the land was rather used to borrow money (10 shillings) by Nzewuihe from Iwuala, the grandfather of the plaintiff/Appellant. The witness stated that he knew that the land had been redeemed from the Plaintiff/Appellant with N20.00 by Raphael Chima. He recalled how the matter first went before Oha Uratta for arbitration and the Oha adjudged same in favour of the Respondent.
?
The above evidence is still contradictory with that of the Respondent who stated that he redeemed the land twice which the Appellant and his father had vehemently denied and from the evidence of the Eze, there was no such redemption. Again whereas the Respondent purported that the

land in dispute was pledged in 1948, the DW2 when cross-examined at page 153,
?Q10. When was this land in dispute pledged? A. it happened in ancient times.?

To buttress the fact that there was no such pledge as purported by the Respondent when the DW2 Secretary to Oha Uratta Samuel Ole was cross-examined at page 144 of the Records.
?Q10. you based your decision on the Defendant?s claim that the land was pledged in 1948?, ?the DW2 replied:
?A There was no specific date mentioned in that verdict.?

When further asked whether because no specific date was mentioned by the Respondent at the Arbitration, any dated mentioned in Court by the said Respondent was an afterthought, the witness replied that nothing concerned him.

?To further prove that the land must have been given out to the family of the Appellant beyond human memory Francis Ofoegbu Ihebom a retired Deputy Commissioner of Police testified that he came to the land in dispute between 1928/29 as a primary school pupil. He was used to carrying bottles of water for farmers (workers) employed on the disputed land by the grandfather of the

plaintiff Akuwara Iwuala. According to the witness, ?The water is for the workers to drink and so on. No one ever challenged the plaintiff?s grandfather or plaintiff?s father over the land which had remained in their possession.? This witness amazingly was not challenged under cross-examination and his evidence of non existence of pledge as well as the ownership of the disputed land ought to, and was rightly accepted by the trial Court.

Again to further buttress the fact that no pledge took place between his step foster father Nzewuihe Nnorom who was alleged to have died in 1950 after the pledge in 1948, the PW1 gave unchallenged evidence that his father Akuwara Iwuala who had been in undisturbed possession of the land he inherited from Iwuala as far back as 1928/29, died in 1943 which is to say that the transaction could not have taken place later than 1943 not to talk of 1948 as purported by Respondent.
?
After considering the totality of the evidence led by the Defendant in proof of the alleged pledge against the background of the elements enumerated at page 213/15 of the Records/Judgment and placing reliance on the case of

Akuchie V. Nwamadi (1992) 8 NWLR (pt. 258) 214 (CA); the Customary Court Judges could not have put it better when they held that: ?Beginning from the last (element, that the pledge took place in the presence of witnesses) there is nowhere in the body of the entire evidence before this Court that the alleged transaction was said to have taken place before any witness and no witness to the alleged transaction was mentioned.?

At page 214 of the Records/16 of the Judgment, the trial Customary Court on the contradiction between the evidence of the DW1 and DW2 held thus: after stating that both of them testified and agreed that the pledgor was Nzewuihe: ?but whereas the Defendant says that the land was pledged in 1948, his head of family says that land was pledged in ancient times. This is clear contradiction.? See lines 4-8 of pages 214/16 of the Records/Judgment.
?
At page 15/17 of the Records the trial Court after resolving the contention of the Learned Counsel on when Akuwara died in favour of the Appellant that Akuwara died in 1943 and Iwuala his father died long before then, the Court rightly held that the

consequences are that:
1. The Defendant saying that Nzewuihe pledged the disputed land to a non-existent person or persons, who had been dead for at least five years or much more, prior to alleged transaction.
2. The evidence of the Defendant as to when the pledged transaction took place is seriously contradicted by that of the eldest male member/head of the Defendant?s family.
3.The evidence of the said Head of the family disproves the incidence of the alleged transaction because Akuwara to whom the land was allegedly pledged did not exist in ancient times when the said transaction allegedly took place.
4. There was therefore nobody who advanced the alleged pledge money of 10 (ten) shillings and or who was put in possession of the land as a result of the alleged pledge.

The trial Court was therefore right to have relied on Aremu V. Adetoro (2007) 49 WRN per Niki Tobi, JSC, Agbi V. Ogbeh (2005) 25 WRN 38, 55 and Ibekendu V. Ike (1993) 7 SCNJ (Pt.1) 50 which established and restated the long settled position of our Law that a Court of law cannot pick and choose one aspect of the evidence of a party and throw away the other as the

circumstances of the Defence assertions presents rather, fundamental contradictions, speculations and doubts in the evidence of a party (in this case the Defendant (Respondent) must be resolved in favour of the other party (in this case the plaintiff/Appellant); to discountenance the evidence of the Defendant/Respondent and his witnesses on the purported pledge transaction. See page 217 of the Records.

On the second element which ought to be proved, the Court also agreed as I had done that the Defendant gave two inconsistent versions of redemption of the pledge and thus incredible and totally lacking in veracity and therefore on the authority of Ebevhe Vs. Ukpakara (supra) and Akanbi Vs. Salawu (2003) 10 MJSC 2000 para. E, rightly held that the Defendant failed woefully to prove any pledge of the land in dispute as well as any redemption of the phantom pledge.

On the whole, I am in complete agreement with the Learned Counsel for the Appellant that the Customary Court of Appeal after agreeing with the trial Court that the Appellant (then plaintiff was in long possession of the land in dispute erroneously gave judgment in favour of the Respondent and

upheld his defence that the land was on pledge. Accordingly, these issues are resolved in favour of the Appellant.

ISSUE NUMBER 3 OF THE APPELLANT ?WHETHER THE COURT BELOW WAS RIGHT IN HOLDING THAT THE PLAINTIFF/APPELLANT DID NOT PROVE ENTITLEMENT TO HIS CLAIM AND ISSUE NUMBER 2 OF THE RESPONDENT: ?WHETHER APPELLANT PROVED TITLE
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER 3 OF THE APPELLANT.
On this Issue, the learned Counsel prefaced his argument on the age long principle as settled in a plethora of cases on the methods of proving title to land as re-stated in the recent case of Ayanwale Vs. Odunsanmi (2012) 1 NSCR 41 at 51 Para C; and submitted that a plaintiff on the authority of Ojoh Vs. Kamalu & 3 Ors. (2005) 18 NWLR (pt. 958) 523 at 574 ? 575; has a right to rely on one or more of these methods and that in our instant case, he relied not only on traditional evidence of title but also on acts of ownership and long possession which the Defendant could not debunk even with the Defendant/Respondent?s claim of pledge.

?The learned Counsel highlighted the reasons advanced

by the Court below in holding that the Appellant did not prove his entitlement to his claim and submitted that the Lower Court?s decision is perverse having regard to the evidence of the PW1 in his evidence-in-chief at page 28 of the Records and under cross-examination. On what the law requires in proof by traditional evidence, he referred to the Supreme Court case of Elegushi & Ors. V. Oseni & Ors (2005) 7 SC (pt. III) 205 as well as Ewo & Ors. V. Ani & Ors. (2004) 1 SC (pt. II) 115; Anukam V. Anukam (2008) 1-2 S.C 34. Nkado V. Obiano (1997) 1 NWLR (pt. 482) 374; Ohiaeri V. Akabeze (1992) 2 NWLR (pt. 221) 1 and Anyanwu V. Mbara (1992) 5 NWLR (pt. 242) 386; to further submit that the Plaintiff/Appellant sufficiently proved above facts as enumerated in the above cited cases. Page 229 of the Records refers where the Court of trial Umuapu rightly so found.

According to him, the Appellant not only proved title to the disputed land by traditional evidence but went further at page 27 of the Records to show by his evidence, acts of long possession and ownership over 300 years which the defendant did not dispute.

?The Learned

Counsel in this respect also alluded to the answer to cross-examination at page 68 of the Records by which the DW1 admitted that the plaintiff (now Appellant) has been exercising acts of ownership over the disputed land by selling it without challenge until 2001 when he started claiming the land.

He also referred to the collection of N30,000.00 or N3,000.00 from Eze Okoro instead of asserting ownership as proof of the fact that the land in dispute does not belong to him more so, when in addition to the above conduct of the Respondent, he did not debunk the traditional evidence produced by the Plaintiff/Appellant both by cross-examination and defence nor was the evidence of long possession or acts of ownership.

Relying again on the authority of Efet V. INEC (2011) ALL FWLR (pt. 565) 203 at 219 E-F, where the Court held that where a fact which has not been categorically countered or denied by a party, that fact is deemed admitted in land by the opposite party. He urged us in the light of the above to resolve this issue in favour of the Appellant.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON HIS ISSUE NUMBER 2 OF THE RESPONDENT?S

BRIEF
Reacting to the arguments above proffered by the Learned Counsel to the Appellant, E-C Mere, Esq. for the respondent answered the question posed by the issue in the negative as according to him the Appellant failed to prove title at the trial Court. In his view, the Appellants anchored their claim on the fact that the disputed land was given to them by Umuorii people for the murder of their sister one Ada Ahum on atonement therefore for a party to establish atonement, he has to prove that it is a way of settlement of issues such as a murder in their area first but in the instant case atonement was not proved as one of the ways of settling issues like murder in Uratta in the olden days as there was no scintilla of evidence adduced by the Appellant as he called no witness to confirm same.
?
Secondly, the learned Counsel for respondent highlighted certain ingredients a party ought to prove to establish atonement which include the following:
(a) Who was murdered?
(b) Who committed the murder
(c) What incidence led to the murder?
(d) When did the murder take place?
(e) Who were present when land ?APUICHE? was

exchanged with the murdered person?
In answer to those questions, the learned Counsel on the question as to who was murdered referred to the evidence of the PW1 at page 28 line 9 of the Record of Appeal who called the person murdered as Ada Alum and by his answer to cross-examination there is another village called Umualum whereas the Appellant comes from Umuoba and there is no relation between the Appellant and Umualum.

The learned Counsel contended that the Appellant also did not trace Ada Alum to his root with clarity as the name Ada Alum was not traced to the Chima family while the land in dispute was inheritance of Nzewuihe and later Anthony Chima through whom it devolved on the respondent and not Umourii community land as land is not owned communally but by families and individuals.
?
On the question of who committed the murder which is the second ingredient it was the Learned Counsel for the Respondent?s further contention that by the evidence of the PW1 at page 30 line 1 of the Records, he stated that he did not know the name of the murderer and by that admission the Appellant woefully failed to establish that there was murder and

atonement for he who claims murder and atonement ought to establish the identity of the murdered and the murderer.

On the third ingredient of what incident led to the murder, he submitted that the Appellant ought to give evidence of the incident leading to the murder i.e. whether they were fighting or quarreling etc but that merely stating that they got the land in exchange for the murder of Ada Alum without identifying the murderer and also what led to the alleged incident makes the story unbelievable and un-established.
?
As for the fourth ingredient of when the murder took place, the Learned counsel for the Respondent contended that the PW1 gave four conflicting probable times at pages 49 Question and Answer 7, 55 Question and Answer 6 lines 12-16, 30 line 2 of the Record of proceedings where he alleged that the murder took place 3000 (three Thousand ) years ago; 300 years, 400 years, 1000 years and under cross-examination stated that his father did not tell him the time of the occurrence of the incident, which contradicted all various times ?3000,300,400 and 1000 years earlier given from the foregoing, he submitted that the law is trite

that inconsistent facts are resolved in favour of the adverse party and in this case the Respondent Onubogu V. The State (1974) 4 ECSLR P.403 and Mogaji V. Cadbury (1988) 2 NWLR (pt.7) 393 at 405 A-B, were cited in support of the above position of the law and to urge us to resolve the contradictions in favour of the Respondent
.
Finally on the fifth ingredient which is who were present when the land was exchanged, the learned Counsel to the Respondent submitted that there was no evidence led on who were present when the land was exchanged or when the Appellant?s ancestor(s) was/were put into possession and to whom it was given. According to Learned Counsel, the Appellant made sweeping statements without any attempt at proving his assertions and that the Issue of atonement being in the character of Customary transaction evidence of witnesses present during handing over is material as to who were the Council of Elders that arbitrated and arrived at the exchange or whether it was the Oha Traditional Council of Umuorii with Umuoba or whether it was the Oha Uratta Supreme Council or mere elders of the two communities?

?The learned Counsel alluded to

the evidence of the DW2 to the effect that the land belongs to Nzewuihe?s family and relying on Maduabu V. Ray (2001) ALL NWLR (pt. 300)1671 at 1695; submitted that for evidence to be acceptable, it must be credible, conclusive and more plausible. He Conceded to the position of the law as advanced/enunciated by the Appellants in their Issue Number 3 on the five methods of proving title which he re-enumerated along with the authorities cited by the Learned Counsel for the Appellants which authorities restated the principles enunciated in Idundun V. Okumagba (1976) 9-10 SC 227 and trite position of the Law that a party proving title to land can rely on any of those methods. He therefore posed the question whether the Appellants proved any of the five ways which question he answered in the negative by reference to page 28 lines 9-10 and page 30 lines 20-21 and having submitted that those pieces of evidence were not conclusive as Umuorjii Village in its entirety cannot commit murder Umuorji also not being a natural person, reharshed his submissions on the inability of the Appellants to prove the essential elements of atonement.

?Positing that the

plaintiff stated that Opara Alum was the brother to Ada Alum but was unable to trace the relationship between his family to Opara Alum, He concluded that their (Appellant?s) traditional history was totally unproved. He then argued in this respect that the issue of pledge raised by the Respondent very well countered the issue of possession and the fact that the boundary neighbours were Umuorjii people showed that there was really a pledge. On the other hand, the fact that the Appellant at page 55 Question 06 of the Records could not even state their boundary neighbours shows that he did not even know the land and cannot in law be deemed to have proved title and his claim ought to have been dismissed on the authorities Iyaji V. Eyigebe (1987) 3 NWLR (pt.61) 523 at 534 G, Baruwa V. Ogunsola, 4 WACA 159 and Brima Babalola VS Lawal (1984) 4 S.C. 145.
?
Finally on the issue, the Learned Counsel for the Respondent on the question of whether the Appellants proved the date of atonement. He also answered in the negative by referring us again to page 49 line 20 and page 55 of the Records (the statements of the PW1 in-chief and under cross examination which

statements are conflicting and on the authorities of Onubogu V. The State (Supra) Amogaji V. Cadbury (Supra), we cannot pick and choose which to believe and the one to disbelieve. In conclusion the Learned counsel asserted that since the sole traditional history relied on by the Appellant is atonement and the probable date could not be proved, we were urged to hold that the plaintiff/Appellant failed woefully to prove traditional history and resolve the issue in favour of the Respondents.

RESOLUTION OF ISSUES
In the resolution of the two related issues on whether the Plaintiff/Appellant proved his entitlement to the Declaration of title to the customary right of Occupancy as sought in the Customary Court, it is gratifying that both the Learned Counsel for the parties have cited the locus classicus of Idundun V. Okunagba (1976) 9 & 10 SC; where per Fatayi -Williams JSC; listed the five ways by which ownership of land may be established which are:
(1) By traditional evidence.
(2) By production of documents of title which are duly authenticated.
(3) By proof of acts of ownership (such as selling, leasing, renting out the land

or part thereof or farming on it) extending over sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner (See the Rule in Ekpo V. Ita II N.L.R. 68).
(3) By acts of long possession and enjoyment of the land which under Section 167 of the Evidence Act (then 145) raises the presumption of ownership although this presumption is rebuttable; and
(4) By proof of possession of connected or adjacent land in circumstances rendering it probable that the claimant is also the owner of such adjacent land.

Both Learned Counsel are also ad idem as has been established by a plethora of authorities that a claimant can rely on any of these methods. See Ayanwale Vs. Odusami (2012) 1 NSCR 41 at 51 C; Ojoh V. Kamalu & 3 Ors. (2005) 18 NWLR (pt. 958) 574-575. Omoregie & Ors VS. Idugiemwanye & Ors .(1998) 2 NSCC 838, Osidele VS. Sokumbi (2012) 51 NSCQR 337, (2012) 15 NWLR (pt. 1304) 470. In the instant case the Plaintiff in the Lower Court (now Appellant herein) as rightly observed by the Learned Counsel for the Appellant, placed reliance on the first third and

fourth methods of proving title to the disputed land.

It is also necessary in, the peculiar circumstances of this case to restate the time honoured principle of law as enunciated in the locus classicus of Kodilinye V. Mbanefo Odu (1935) 2 WACA 336 per Webber, C-J at 337-338; on the general burden and standard of proof of Declaration of title to land as in this case that the onus lies on the Plaintiff/Appellant to satisfy the Court that he is entitled to the declaration sought before adducing credible evidence in proof thereof. In so doing, the Plaintiff must rely on the strength of his case and not on the weakness of the Defendant?s case for if this onus is not discharged, the weakness of the Defendant?s case will not help him and the proper judgment is for the Defendant. See, Onobruchere V. Esegine (supra) at page 799, Kuma V. Kuma (1974) 2 W.A.C.A., Nwaokafor VS. Udegbe (1963) ALL NLR 107, Mogaji v. Odofin (1978) 4 S.C 91, Bello V. Eweka (1981) 1 SC 101 at 117-120 and the recent authorities of Otukpo V. John (2012) 49 NSCQR 1304 at 1324, Ashabi Eya V. Olopade (2011) 46 NSCQR 373 and Achilihu & Ors V. Anyataonwu (2013) 53 NSQR 474 at

520.

Again, the Learned Counsel for the Appellant rightly cited and relied on Elegushi & Ors. V Oseni & Ors. (2005) 7 S.C. (pt. III) 205; where the Supreme Court held that:
?To establish traditional ownership by conclusive evidence the Plaintiff must plead and prove such facts as:
(a) Who founded the land in dispute
(b) How they founded the land, and
(c) The particulars of the intervening owners through whom they claim?
Nkado V. Obiano (1997) 1 NWLR (pt. 482) 374, Anukan V. Anukan (2008) 1-2 S.C. 34, Ohaeri V. Akabeze (1992) 2 NWLR.

On the footing of the above authorities the Appellant?s grandfather who testified as PW1 had traced the genealogical pedigree of the land at page 27 lines 5-21 and page 28 lines 7-15 of the Records as follows:
?The land in dispute descended from Opara Alum, our ancestor to us. Opara Alum begat Iuwala . Iwuala had three sons namely:
(1) Amadi Iwuala;
(2) Iheakalam Iwuala;
(3) Akuwara. My own father is Akuwara Iwuala. I knew my father Akuwara.?
My father during his lifetime farmed on this land in dispute with me. I accompanied my father to

farm for over ten years up to 1943 when my father died. After my father?s death, I took over the land and have been farming on it. Before my father died, nobody ever challenged his ownership of this land in dispute. Nobody has ever challenged me over the land in dispute, some other members of my family have land in Apu Iche land. Those other members of my family are still on their own Apu Iche land but my brother has sold his own. This my brother sold his own portion is Benaiah Iwuala. That Benaiah?s Apu Iche land and mine are the same Apu Iche land.

At page 28 lines 7 to 15 of the Records the witness continued:
?My ownership of this land at Umuorii emanated from Opara Alum and Ada Alum. Ada Alum and Opara Alum were of the same parents. Ada Alum was murdered by Umuorii and this land in dispute was given out as a ransome for Ada Alum. By Uratta custom, any land given out as a ransome for a murdered person can never be redeemed or recovered. This incident of Ada Alum happened many many years ago, and since the land was given out as ransome, nobody has ever challenged us over the ownership. The Defendant started harassing us on the

issue about two years ago.”

Under cross-examination at pages 29 line 30 page 30 lines 1 -6 the witness was emphatic that:-
?Ada alum was murdered during the time of our ancestors. I do not know who murdered her, but my father told me the story. He did not tell me the time it happened. Ada Alum was the only name for Ada Alum. Ada Alum means the daughter of Alum. I told this Court that this land in dispute was not originally our own, but that it was given to us as ransom for the murder of Ada Alum.”

Later at the same page 30 lines 22-26 of the Records, the witness on further cross-examination without any equivocation stated that:
?my father did not tell me why Ada Alum was murdered. My father did not tell me those who were present when Ada Alum was killed, but only told me that one Ada alum was murdered. My father did not tell me the name of the Panel that decided that the land in dispute Apu-Icheku should be used for compensation for the person murdered.”
?
To buttress the fact that the land, the subject matter of the dispute was exchanged in atonement for the murder of Ada Alum and that the custom is inherent in

Uratta, the PW2 Daniel Anamena Nwagu of Ebikoro Umuoba, Uratta born in 1914 and a Pensioner then over 100 years old testified that he had heard about the land in dispute called Apu Iche, but had not been there. According to him from the old people that that land belonged to Umuorii but was exchanged for a human being.

He heard from their fathers that the land was given out as a ransom for human being. He concluded his evidence-in-chief by asserting that: ?Following our custom it is an established fact that a land used for ransom remains irredeemable and irrevocable. I heard the story from our fathers.? See page 32 of the Records.
?
Under cross-examination and in a manner confirming that atonement is recognized under Uratta custom, the Learned Counsel for the Defendant introduced the issue of whether OFOR OSISI or OFOR TREE was seen on the disputed land when the PW2 VISITED THE LOCUS AND THE WITNESS REPLIED IN THE NEGATIVE. He also reiterated that he told the Court that the land APUICHE is at Umuorii but that it was used as ransom for human being as his father and their old men told him. However he stated that he did not know the name

of the killer of the human being for whom the land was used as ransom.

PW3 Francis Ofoegbu?s evidence had been alluded to while resolving the issue of pledge. It suffices for purposes of emphasis and particularly touching on the vexed issue of atonement to recall his evidence at page 34 of the Records that he was born on 25/12/1923 and knew the mother of the deceased 1st Plaintiff and grandfather of the present Appellant. According to the witness, the name of the 1st plaintiff?s mother was Nne Iheoma and that in late 1920?s the Plaintiff?s/Predecessors-in-title to the Appellant were farming at Apu-Iche land and he (the PW3) was used to carrying water to the Appellant?s grandparents for about five farming seasons. To the best of his knowledge, nobody challenged the Appellant?s grandparents on the land. He also heard from some elders in the Community (not from his PW1?s father), that the land in dispute was exchanged for murder.

As for the custom of atonement he stated thus:
?It is the custom in our area that if a member of one?s family is murdered by another family, the settlement will be

that either another person is surrendered by the family of the murderer to the family of the murdered; or a piece of land can be surrendered as the ransom. I heard the story from Onyekuru Opara, Wori Emeana; Andrew Nze. They are all dead. I heard these stories when I was in college and whenever I came home on holiday?. See pages 34-35 of the Records.

Under cross examination at the same page 35 lines 18-30, the witness reiterated that he was born in 1923 and was about 80 years then. He was sent for water by the Appellant?s grandfather only in the farm. He reiterated at page 36 lines 4-6 that:
?It is correct in our Custom that when someone is murdered, land could be exchanged as a ransom or a human being could be exchanged. The area of land must be big enough.?
In line 9-12 of that page he maintained thus:
?I heard the story about the land in dispute when I was in secondary school. I definitely heard the story of a person murdered in connection with this land in dispute. I do not know the person that was killed.?
?
At page 171 of the Records at the visit to the locus, the witness also gave unchallenged

evidence to the effect that he carried bottles of water to farmer (workers) employed in the land by the grandfather to the Plaintiff/Appellant Akuwara Iwuala. The water was for the workers to drink and so on and that: ?No one had ever challenged the Plaintiff?s grandfather or the Plaintiff?s father over the land. Which had remained in their possession.?

The Learned Counsel for the Respondent, in spite of this unchallenged evidence of the Appellant and his witnesses on atonement; has submitted based on his criteria that the Appellant did not prove title to the land in any of the five ways laid down in Idundun V. Okumagba (supra). I am of the firm view that from the preponderance of evidence of the Appellant and his witnesses he had proved that Ada Alum was murdered . At page 60 of the Records apart from the evidence of elders of the community who were consistent that they heard the story from elders gone before them, the PW1 under cross examination (Q14 and Q15) insisted in answers to questions whether at the Arbitration before the Oha Uratta his father claimed that the land came to them as compensation for a murdered woman from his

100

(PW1?s) family, who the Defendant?s family killed and which family originally owned the land before it came to the Appellant?s family, thus:
?My father did not specifically mention the Defendant family but the entire Umu Ori community and this action took place over 3000 years ago. Answer to Question 14). Again as for Question 15 he answered that: ?I cannot say, what I know is that the Umuorii people gave out the land to my people to avoid inter tribal war as a result of the murder over 300 years.?

From the above answers, it is clear that the Umuorii people of which the Respondent is part and parcel, committed the murder and to me, it is fallacious for the learned Counsel to insinuate that Uratta land belong to families and individuals and not to the Community. To debunk this stance of the Learned Counsel. I need cite the dictum of Lord Haldane in Amodu Tijani V. Secretary Southern Nigeria [1921] 2 A.C. 399 at 404, (1921) N.L.R. 24 at 59 to the effect even as at the 1920?s one of the generally accepted incidence of native Law and Custom was that the notion of individual ownership of land was quite alien to

101

native ideas, for land belonged to the Community, the village or the family and never to the individual. This Custom was prevalent amongst the people of Southern Nigeria which Umuorii a kindred in Uratta was or is.

Accordingly, with the above dictum which was followed in Sabhuza II V. Miller (1926) A.C 518 at 525. Oshodi V. Dakolo (1929) 9 N.L.R. 13 at 25-26, Kuma VS Kuma (1938) 5 W.A.C.A 4 at 8 and Okiji VS. Adejobi (1960) F.S.C. 44; even if it was or not a member of the Chima family who committed the murder 300 or 3000 years before the Suit, if war broke out, the entire Umuorii would have been embroiled in it. I therefore hold that the Umuorii committed the murder and because this incident happened at a time beyond human memory the possibility of the dramatis personae being together is not farfetched.
?
It would appear that the Learned Counsel for the Respondent has imported the essential ingredients of a pledge under custom into atonement and as the Learned Counsel for the Appellant has rightly observed in paragraph 2.0.4 of his Reply Brief there is no law whether Customary, case law or otherwise laying down the ingredients of atonement to be proved

102

in order to establish title by it. I agree therefore with the Learned Counsel for the Appellant and as I had earlier held, that all that the Appellant needed to do in proof of his title under custom was to establish his root thereof through an unbroken genealogical pedigree or tree as he had done by proving that Opara Alum founded the land through compensation for the death of Ada Alum who was allegedly murdered by Umuorii people and the particulars of intervening owners were proved to have been from Opara Alum the plaintiff?s progenitor to Iwuala; to Akuwara; to Robinson; Harrison until it devolved on Ogadinma the present Appellant.

?Juxtaposed side by side with the spurious, concocted and unsubstantiated defence of pledge as pleaded by Respondent, the case of the Appellant preponderated that of the Respondent on the imaginary scale of Justice. Conscious of this fact the trial Customary Court after a dispassionate appraisal of the totality of the evidence of the parties, came to the inevitable conclusion at page 229 of the Records (page 31 of its Judgment), that the Plaintiff?s witnesses were credible and the evidence before the Court in

103

support of the custom of atonement was cogent and reliable and therefore agreed/held after citing the case of Nwagwu & Anor V. Okonkwo & Anor (1987) 7 S.C. (See also (1987) LPELR ? 2094 (SC) per Kazeem, JSC) a case that emanated from Mbaise on facts in pari material with this present; that:-
?It is the Custom of Uratta people that land may be used to compensate the killing of a person or atone for such killing.?

On the pertinent question whether the plaintiff?s proved their case to entitle them to the judgment of the trial Court the Learned President in his Lead Judgment at pages 299/31 of the Records, unassailably held after citing with approval ACHIAKPA V. NDUKA (2001) 9 MJSC 137; on what must be proved by a party relying on traditional evidence as we had earlier stated, thus:
?The Plaintiff in his evidence traced the land in dispute to his Ancestor Opara Alum who got the land in appeasement for the murder of his sister Ada Alum over 300 years ago. He traced the devolution of the land from Opara Alum without any gaps through his ancestry namely: Iwuala, Akuwara, Robinson, Harrison and then to himself

104

Ogadinma. The Plaintiff also established that his family had been in continuous undisturbed possession of the land since then until his present challenge by Defendant, 300 years after.?

Apart from the above findings which were borne out from the evidence on Record, the Plaintiff had also relied on unchallenged possession and acts of ownership extending over sufficient length of time numerous and positive enough as to warrant the inference that they (Appellant?s) are the owners of the land. They had enjoyed the land and sold part to persons one of whom was Eze C.E. Okoro who put the final nail on the coffin of the Respondent?s case as earlier highlighted in the previous issue of pledge and atonement.

Needless to restate also that since the Respondent admitted that the Appellants had been in possession all these years but purports that the possession is not adverse, the onus was on him to prove the contrary that the land does not belong to the Appellant by way of atonement but through pledge.

?Karibi-Whyte, JSC, succinctly captured the position of the law in Adegbite V. Ogunfaolu & Anor (1990) LPELR-93 (SC) at page 26 paras

105

A.C. that;
?The principle is well established that where a plaintiff in an action for declaration of title has proved sufficient acts of possession, he has established a prima facie case that he is the owner. The onus is therefore on the Defendant under Section 145 of the Evidence Act to rebut if he must avoid judgment for the Plaintiff?s.”
See Onyeka Onwu V. Ekwubiri (1966) 1 ALL NLR 32 Umeobi V. Otukoya (1978) 4 S.C. 33?. See further Oduola V. Coker (1981) 5 S.C. 197, Ajunwa V. Odili (1985) 2 N.W.L.R (Pt.12) 352; Fasoro V. Beyioku (1988) 2 NWLR (pt. 76) 263; Kolapo & Anor. V. Alade (1985) 3 NWLR (pt. 12) 352 and per Ogbuagu, JSC in Sapo & Anor. V. Sunmonu (2010) LPELR ? 3015 (SC), (2010) 11 NWLR (pt. 1205) 374.

In the instant case, the Court of trial evaluated the evidence and come out with the findings that: ?the Defendant offered a sole defence which is his assertion that the land had been in the Plaintiffs? possession in the stated manner because it was pledged to them. The Defence of the pledge has woefully failed. The effect is that the evidence of the Plaintiff is not challenged, refuted,

106

controverted, rebutted or debunked in any way. Counsel?s efforts on behalf of the Defendant cannot substitute for the virtually non-existent evidence from the Defence in answer to the Plaintiff?s claim and evidence it is trite law that;
?No matter how brilliant and persuasive Counsel?s submission may be, it can never metamorphose to evidence? FBN (NIG) PLC VS. AKPARABONG COMMUNITY BANK LTD (Supra) Ratio 5. The law is that a party who desires to dislodge another in possession has to show a better title – AJEIGBE Vs. OBADINA & ORS. (1981) 1 NWLR (Pt.72) 584. The Defendant admitted that the plaintiffs are in possession of the land in dispute by a pledge which Plaintiffs strongly deny. The onus is on the defendant to prove the pledge and having failed to do so, the presumption in law is that the Plaintiffs are the owners of the land. See ?EBHVUE V. UKPAKARA (Supra).?

At page 231/33 of the Records/Judgment after highlighting/reflecting on the five ways of proving title as laid down in Idundun V. Okumagba (Supra), the trial Court rightly held that the Plaintiffs proved their title by acts of ownership

107

extending over sufficient length of time, numerous and positive enough to warrant the inference that they are the owners and that they (Plaintiffs) also proved acts of possession and enjoyment.

The Learned Counsel for the Respondent had purported that the evidence of the Plaintiff on proof of his title were contradictory on when the murder took place whether it is 3000 or 300 or 400 years but a careful perusal of the Judgment of the Customary Court would reveal that it consistently mentioned three hundred years ago or ancient times.

In any case, the trial Court had found out at page 231 lines 1-25 and rightly held that as it stood, the evidence of the plaintiff was not contradictory or inconsistent as there was no conflict, it was not assailed in any way and therefore credible and cogent. The Court was therefore right in relying on Morenikeji V. Adegbosin (2003) 12 MJS 130 Ratio 3; to hold that:
?This Court finds the evidence of the Plaintiff in proof of his title to be plausible and highly probable in the circumstances of this case and the Court believes it. Order X Rule 6 (1) of this Court?s Rules enjoins that:
The Court shall

108

in any civil cause or matter decide in favour of the party in whose favour there is preponderance of evidence which is believed by the Court.?
See also the Supreme Court in Adeleke Vs. Iyanda (2001) 9 MJSC 178. In the present case, there is practically nothing to weigh on the Defendant?s side of the scale of Justice. The entire evidence, even from the Defendant, overwhelmingly preponderates in favour of the Plaintiff.?

It was upon the foregoing basis that the Court on the authority of Nwagwu & Anor. V. Okonkwo & Anor. (supra) found in favour of the plaintiff/Appellant. I completely adopt the position brilliantly taken by the trial Customary Court as mine and agree completely with the Learned Counsel for the Appellant that the Lower Court (Customary Court of Appeal) was in grave error to have departed from the findings of the trail Court and held that the plaintiff/Appellant did not prove their ownership of the disputed land through atonement and thereby setting aside the well reasoned and brilliantly written judgment of the trial Customary Court.
?
Accordingly I shall again resolve this issue in favour of Appellant.<br< p=””

</br<

109

ISSUE NUMBER 4 OF THE APPELLANT:
?WHETHER THE COURT BELOW CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT IN THE ABSENCE OF EXCEPTIONAL CIRCUMSTANCES AND ISSUE NUMBER 1 (ONE) OF THE RESPONDENT: ?WHETHER THE JUSTICES OF THE CUSTOMARY COURT OF APPEAL IMO STATE HAD THE RIGHT TO RE-EVALUATE THE EVIDENCE AND WHETHER THEY PROPERLY EVALUATED THE EVIDENCE
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER 4(FOUR) OF THE APPELLANT?S BRIEF
In his argument on the above issue, the Learned Counsel referred us to the principle of Law as enunciated in a number of case Law as can be seen in Ogundepo & Anor. Vs. Olusegun (2012) 2 NSCR 47 at 59 para D, Pacers Multi-dynamics Ltd Vs. The Dancing Sister & Anor. (2012) 4 NSCR 1 at 19 para. B; on the practice of Appellate Courts not to interfere with findings of facts of a trial Court if supported by evidence and circumstances under which Appellate Courts may interfere. Further authorities like Wachukwu & Anor. Vs. Onwunwanne & Anor. (2011) 6 NSCR 85 at 104 para. C. Cameroon Airlines Vs. Otutuizu (2011) 1 ? 2 S.C. (Pt.111) 200, Onwubuariri

110

& 3 Ors. Vs. Igboasoiyi & 4 Ors. (2011) 1 ? 2 S.C. (pt.111) 109 Ndulue Vs. Orjiakor (2013) ALL FWLR (pt.673) 1804 at 1825 ?1826 paras. H ? A; and Oludamilola Vs. The State (2010) 7 NSCR 44 at 52; were all cited in this respect and the rationale behind the aforestated principle.

He then submitted that a thorough reading of the judgment of the Court below shows clearly that the Court assumed the position of the trial Court and re-evaluated evidence properly evaluated by the trial Court and substituted its findings in the absence of any justifiable reason legally.

The Learned Counsel rounded up his submissions on this issue by contending that in all the issues raised before the Lower Court, the Court erred by interfering with the findings of facts on the issues of pledge, Customary Arbitration, proof of title and so on and accordingly, we were urged to resolve this issue in favour of the Appellant and set aside the Judgment of the Customary Court of Appeal, Imo State dated 25/7/2013 and uphold the Judgment of the trial Customary Court dated 13/5/2011 in favour of the Plaintiff/Appellant.

ARGUMENT OF LEARNED COUNSEL FOR THE

111

RESPONDENT
Reacting to the above arguments of the Learned Counsel for the Appellant, E. C. Mere, Esq for the Respondent answered the question posed by this issue in the affirmative adding that the Lower Court so properly re-evaluated the evidence given at the trial Court. The Learned Counsel for the Respondent conceded to the position of the law as stated by his Learned colleague and the authorities cited on circumstances under which an Appellate Court may interfere with the findings of fact of trial Courts which have the right to so do because they hear directly from the witnesses and are in a position to watch their demeanour. For this position of the law he also cited and relied on The Residence Ibadan Province Vs. Lagunju (1954) 14 WACA 549, Kudore Vs. Alaka (1956) SCNLR 255, UNILAG Vs. AIGORO (1985) 1 NWLR (pt.1) 143; Oyeyemi Vs. Irewole L.G. (1993) 1 NWLR (pt.270) 462 at 475 Paras. F ? G, in so submitting, that the evaluation of the evidence by the Umuapu Customary Court, Ohaji is perverse from the evidence contained in the Records.

?According to the Learned Counsel, from their discussion on issue number 2, they have been able to show that

112

the Plaintiff totally failed to prove title to the land as the atonement proffered by the Appellant as the traditional history of the land was not proved but unfortunately despite the above lapses, the trial Court went on to hold that Plaintiff proved title to the land in dispute. Pages 202, 219 ? 232 of the Records were referred to in castigating the trial Court Judge for going on a frolic of its own and unnecessarily expending energy to justify his perverse findings that title was proved.

He revisited the question of who had the onus of proof in a case of this nature by relying on Section 136 of the Evidence Act and answered that it was the Appellate since he was the claimant as he was the one to lose the case if no evidence were to be led at all. He reiterated that the Court below was right to have re-evaluated the evidence and citing the case of Obiazikwor vs. Obiazikwor (2007) ALL FWLR (pt.371) 1602 at 1624 paras. B ? ;, maintained that the trial Court made futile efforts to go into voyage of discovery of unascertained contradictions in the case of the Respondent and disregarded the law that the Plaintiff must first prove his case.<br< p=””

</br<

113

According to Learned Counsel, since the Plaintiff failed to prove his case, he cannot be availed such contradiction in the defense. Referring us to Chukwueke Vs. Nwankwo (1985) 2 NWLR (pt. 6) 195; on the need for the Plaintiff to rely on the strength of his case and not on the weakness of the Defendant?s case as far as the case involved declaration of title, he again submitted that the trial Court relied on sweeping generalization on atonement and made out a case for the Appellant which he did not deserve. The Lower Court in his view was therefore right at page 7 of the Judgment paragraph 3 thereof to have so held as the trial Court erroneously held that the Defendant contradicted his case when a witness stated that the pledge took place in 1948 and the other stated that he did not know the time, which according to him (Learned Counsel for the respondent), does not amount to contradiction as no conflicting dates were given like in the Appellant?s case hence the Lower Court was right to have re-evaluated the perverse evaluation. We were therefore in the light of the foregoing, urged to resolve the issue in favour of the Respondent and uphold the

114

Judgment of the Customary Court of Appeal.

RESOLUTION OF ISSUES:-
There is no doubt and both Learned Counsel for the Appellant and Respondent are ad idem on the avalanche of cases unleashed on us, that it is not the practice of the Appellate Courts to interfere with findings of facts of a trial Court which are predicated on the proper evaluation of evidence as borne out of the Records. Ogundepo & Anor. Vs. Olusesan (2012) 2 NSCR 47 at 59 Para. D, Pacesetters Multi-dynamics Ltd. Vs. The MVDancing Sister & Anor. (2012) 4 NSCR 1 at 19 para. B; Wachukwu & Anor. Vs. Onwunwanne & Anor (supra). Cameroon Air lines Vs. Otutuizu (supra), Ndulue Vs. Orjiakor (supra), Ishola Vs. Folorunsho & Anor. (2010) NSCR 66 at 121 para. C; and all the cases cited by the Learned Counsel for the Respondent like The Residence Ibadan Province Vs. Lagunju (1954) 14 WACA 549, Kudoro Vs. Alaka (1956) SCNLR 255, UNILAG Vs. AIGORO (1985) 1 NWLR (pt.143) and Oyeyemi Vs. Irewole LG (1993) 1 NWLR (Pt.270) 462 at 475 Paras. F?G; are on point on the time tested principle of law that an Appellate Court can only interfere with the findings of facts of a trial

115

Court under certain exceptional circumstances.?
The rationale behind this principle of our law is as rightly stated in Ndulue vs. Orjiakor (2013) ALL FWLR (Pt.673) 1804 at 1825 paras. B ? D and later re-stated Per Ogunbiyi JSC; in Gbemisola Vs. Bolarinwa (2014) 57 NSCQR 510 at 557; thus: ?The law is further well pronounced that evaluation of evidence and the ascription of probative value to the evidence are primarily the function of a Court of trial, which heard, saw and duly assessed the witnesses. The duty of the Court of Appeal is to find out whether there is evidence on Record on which the trial Court could have acted. Appellate Court can also in perverse findings tamper with the evaluation of evidence or where on the face of the Record it is clear that Justice has not been done in the case. See Lawal vs. Adekoya (1974) 6 SC 83 and Balogun vs. Akanji (1988) 1 NWLR (pt.70) 301. See also Nsiran vs. Nsirin (2001) FWLR (pt.96) p.433 at 445, (2002) 3 NWLR (pt.755) 697. In other words, the Appellate Court will not interfere with the findings of fact made by the trial Court unless it is shown that such finding does not derive from the evidence

116

before that Court or is not related thereto. See again Ogundulu vs. Chief Olabode (1973) 2 SC 71.”
Other circumstances where an Appellate Court can interfere and substitute its opinion for that of a trial Court after re-appraisal or re-evaluation of evidence include where demeanour of witnesses is not in issue or the re-evaluation relates to interpretation of documents or inferences to be drawn from proved facts. See BFI GROUP CORPORATION vs. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR ? 9339 (SC) per Fabiyi, JSC at 31; Onwubeariri & Ors. Vs. Igboasuyi & Ors. (2011) LPELR ? 754 (SC) at 25 ? 26 F ? A and 27 paras. A ? B. per Onnoghen, JSC and Haruna vs. The Attorney-General of the Federation (2012) LPELR ? 7821 (SC) per Galadima, JSC at pages 16 ? 17 paras. G ? A and per Adekeye, JSC in Okonkwo & Ors. Vs. Okonkwo & Ors. (2010) LPELR ? 9357 (SC) who still on this principle posited inter alia that:
?I must reiterate that evaluation of evidence and ascription of probative value is primarily the function of the learned trial Judge. An appellate Court can only interfere where

117

and when he fails to do so properly. When the trial Court has satisfactorily performed its primary function of evaluating the evidence and ascribing probative value to it, an appellate Court has no business interfering with its finding on such evidence. Abisi vs. Ekwealor (1993) 6 NWLR (pt.302) 643.Atolagbe Vs. Shorun (1985) 1 NWLR (pt.2) para.360, Obodo Vs. Ogba (1987) 2 NWLR (pt.54) 1.?

Guided by the above authorities and my careful perusal of the judgments of both the trial Court and the Court below, I must confess that throughout my sojourn in the temple of Justice, I have not come across any Judgment as so brilliantly written in terms of evaluation of evidence, application of the law and unassailable conclusions on all the issues raised; like the Judgment of the Ohaji Customary Court, Holden at Umuapu, Imo State.
?
Without mincing words, in all ramifications, the judgment of the appellate Customary Court in terms of contents and output cannot compare itself with the Judgment of the trial Customary Court. I had highlighted all the issues revisited by the Learned Counsel for the Respondent in his Respondent?s Brief and I reiterate and

118

adopt all I had said whether on the issue of Arbitration, Atonement, Onus of proof and on whom it lay, the issue of pledge and the conclusion reached on these issues.

For purposes of emphasis I reiterate that the evaluation of evidence and ascription of probative value and the application of the law to prove facts by the trial Customary Court were unassailable and the Appellate Customary Court of Appeal had no business placing itself in the shoes of the trial Court to re-evaluate the evidence on Record and substituting its opinion for that of the trial Court when the findings of facts were not perverse nor was the application of the law to prove facts wrong.
?
With due respect, the learned Counsel for the Respondent was merely deluding himself when he claimed that the Appellant failed to prove title by traditional evidence. Even if the Appellant so failed (which is not the case) as there is overwhelming evidence both from the appellant and indeed his witnesses on the traditional history of the land, the Respondent who pleaded the defence of pledge could not substantiate same with his wishy-washy evidence and thus was not able to displace the evidence

119

of the Plaintiff/Appellant and his witnesses which the trial Court rightly held preponderated that of the Respondent on the imaginary scale of Justice.

Even outside the evidence of atonement, the Appellant as had earlier been held, traced the genealogical pedigree from Opara Alum through successive generation of the Appellants ancestors until it devolved on him.
Moreover, the Appellant as had been shown and rightly held by the trial Court gave unchallenged evidence of acts of possession and user of the land numerous and positive enough to warrant the inevitable conclusion by trial Court that the land in question belonged to him by Appeasement/Atonement for the killing of Ada Alum by the Umuori people from where the Respondent hails. This is because contrary to the respondent?s claim that the pledge took place in 1948, the Appellant?s grand-father had died since 1943 and there was ample evidence that the Appellants predecessors-in-title had exercised acts of ownership of the land since the 1920s. Assuming that the traditional evidence of the rival parties were incredible, even on the application on the Rule in Kojo Vs. Bonsie (1957) 1

120

W.L.R 1223, per Lord Denning where it was held in case that parties as in this case relied on traditional history, their evidence must be treated by reference to the facts in recent years as established by evidence and seeing which of the two competing histories is most probable (see Aikhionbare & Ors. Vs. Omoregie & Ors. (1976) 12 SC 11; Per Sowemimo, JSC; Chukwueke Vs. Nwankwo & Ors. (1985) 2 NWLR (pt.6) 195, Thanni & Ors. Vs. Saidu & Ors. (1977) 2 SC 89; Dibiamaka & Ors. Vs. Prince Osakwe & Anor.(1989) 3 NWLR (pt.107) 101; the fact that the Appellant?s ancestors had sold out part of the land prior to 2001 and those who built on the disputed land were not challenged until recently when the Respondent and his father woke up from their slumber, the presumption of ownership is in favour of the Appellant. See Sapo & Anor vs. Sunmonu (2010) LPELR -3015 at 36.
?
The Learned Counsel for the Respondent had also in his submission on the inability to discharge the onus of proof by the Appellant harped on inability of the Appellant to call boundary neighbours. With the greatest respect again, the issue of boundary neighbours does

121

not arise since parties are not disputing the boundaries of the disputed land and have both identified the land in dispute with definitive certainty having agreed that the land originally belonged to the Umuorii and the Chima family except that the portion in dispute was given out to the Appellant?s family in appeasement for the murder of Ada Alum by the Umuorii people.

Again on acts of the parties recent memory, the evidence of Eze E.C. Okoro to the effect that the evidence of the respondent that he refunded the pledge sum and purchase price for the portion of the land bought by the said Chief Eze Okoro had been debunked by the said Eze when he testified that he only paid the Respondent the sum of N3,000.00 transport after they had discussed on the portion of the land he the Eze bought and since then the Respondent had stopped disturbing the said Eze.
?
The Learned Counsel was from the above facts most uncharitable when he vilified and charged the Learned Judges of the Customary Court with going on a frolic of their own and unnecessarily expending energy to justify their perverse findings. The Learned Counsel also was not fair to the Learned

122

President of the Customary Court who wrote a most outstanding and erudite judgment when he accused the Judge of embarking on a voyage of discovery, in discovering contradictions in the case of the respondent which actually exist upon a careful perusal of the Records.

The Learned Counsel therefore misquoted and misapplied Obiazikwor Vs. Obiazikwor (supra) and Chukweke Vs. Nwankwo (supra) as the appellant discharged the onus cast on him and the burden which shifted to the Defendant/Respondent to prove the contrary which he failed to do.

In conclusion, I agree completely with the Learned Counsel for the Appellant that the Court below erred in law which error occasioned a miscarriage of Justice when it interfered with the findings of facts of the trial Judge and accordingly their Judgment cannot stand. These issues are also resolved in favour of the Appellant.

The Appellant?s Appeal is hereby allowed for being meritorious and the Judgment of the Lower Court delivered on the 25th day of July, 2013 is hereby set aside. The Judgment of the Ohaji Customary Court delivered on the 13th day of May, 2011 is hereby restored.
?
I award N50,000.00

123

Costs in favour of the Appellant.

Other Citations: (2016)LCN/8649(CA)

Ogadinma Ikechukwu Iwuala V. Raphael Chima (2016) LLJR-CA

Ogadinma Ikechukwu Iwuala V. Raphael Chima (2016) LLJR-CA

Related Posts:

More Posts

Section 47 EFCC Act 2004: Short Title

Section 46 EFCC Act 2004: Interpretation

Section 45 EFCC Act 2004: Savings

Section 44 EFCC Act 2004: Repeal of Act No. 5 2002

Leave a Reply Cancel reply