Chief Johnson Nwosu & Ors V. Jacob Uche & Ors (2005)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment of Njemanze, J., while sitting at the High Court, Okigwe, in Imo State on 3rd March, 1997. The judgment was in respect of the claims in suit with number HO/20/91 filed by the appellants as plaintiffs. The learned trial Judge dismissed the claims in their entirety.
The resolution of this appeal principally relates to the propriety or otherwise of the findings of fact by the trial Court. It is therefore apt to recapitulate the facts leading to the judgment of the trial Court at a reasonable length.
Put succinctly, the plaintiffs’ claims, as can be gathered from paragraph 18 of the amended statement of claim, relate to a declaration of the court that the defendants are their customary tenants in respect of portions of land referred to as ‘Ogboenwe’ and ‘Ndiuhu’ situate at Ibinta in Okigwe Local Government Area of Imo State.
The land is said to be occupied and enjoyed by the defendants as their homestead and farm lands. As such tenants, the plaintiffs maintained that the defendant are not entitled to lay claims to ownership or title to the said portions of land or any portion of land in Ibinta wheresoever situate. The plaintiffs also claimed forfeiture of their tenancy since the defendants denied the title of the plaintiffs as customary owners of the said portions of land. The plaintiffs further claims the sum of N176,666.70 as mesne profits for the use and occupation of their lands as well as perpetual injunction to restrain the defendants, their servants and privies from further entry into the land.
The evidence put forward by PW1 is that the plaintiffs are the owners of the lands in dispute from immemorial antiquity. He said that through one Nwosu Okwozo, the land was let to one Chief Kanu Okoroji, a strong warrior of Arochukwu, who helped Nwosu Okwozo to procure nine slaves for the purpose of protecting the founders of a church and a school in Ibinta in 1904. According to PW1, the nine slaves formed the nucleus of the defendants. The defendants’ slave forefathers settled on the lands in dispute as customary tenants sequel to a covenant by them to be of good behaviour and to respect the custom of Ibinta and be loyal to the Chief of Ibinta. But contrary to the covenant, PW1 said the defendants denied the plaintiffs’ ownership of the lands which led to the filing of this suit for declaration of title and forfeiture against the defendants. The plaintiffs tendered a host of exhibits. The defendants denied the story and the account of their origin as stated by PW1. They maintained that the land in dispute referred to as ‘Alaikpa Ndiokoroji’ by them was acquired by their ancestor, one Kanu Okoroji, by conquest and they occupy the land up to date. The defendants denied being part of Ibinta or being known as ‘Aro Ibinta’. They relied on proceedings in respect of portions of the land and tried to put up a plea of res Judicata. The defendants contended that the plaintiffs did not discharge the onus of proof to prop their claims.
The trial Court, in it’s reserved judgment, dismissed the plaintiffs’ claims but held that res judicata did not apply. The plaintiffs who will from now on be referred to as the appellants felt unhappy with the stance of the learned trial Judge and have appealed to this court. Nine grounds of appeal accompanied the notice of appeal filed on 20-5-97. By the leave of this court granted on 12-10-99, one more ground of appeal was added to make the total number rise to ten (10). This ground of appeal, in effect, attempted to contest the jurisdiction of the learned trial Judge in exercising original jurisdiction in respect of land, the subject of a customary right of occupancy. The defendants shall from now be referred to as respondents.
It is only necessary to reproduce the three issues couched by the appellants and adopted by the respondents for a due determination of the appeal as can be seen at page 4 of the appellants’ brief of argument. They read as follows:
“(i) Whether the court below had the jurisdiction to adjudicate on the claim before it.
(ii) Whether having regard to the state of pleadings and the evidence adduced, the respondents could be said to be the customary tenants of the appellants.
(iii) Whether the appellants are entitled to the reliefs they claimed in the lower court.”
On 13-4-05, when the appeal was heard, M. O. Nlemedim, Esq., learned Counsel who appeared for the appellants, applied orally to withdraw issue NO.1 touching on the jurisdiction of the trial court to determine the suit. The learned Counsel for the respondent was at one with the appellants’ Counsel. It is clear that after the land mark decision of the Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, the jurisdiction or vires of the State High Court to determine suits in respect of land in non-urban areas ceased to be a moot point. Thus, the first issue couched in respect of same, as above reproduced, ceases to be relevant. Without much ado, it is hereby struck out since it has been withdrawn. I hereby discountenance arguments canvassed by learned Counsel for both parties in their respective briefs of argument on issue No.1.
Issue No. (ii) relates to appraisal of evidence and ascription of probative value to same. In the main, the case the appellant tried to put forward is that the respondents are their customary tenants in respect of portions of ‘Ogbaenwe’ and ‘Ndiuhu’ lands referred to as ‘Alaikpa’ by the respondents. The appellants contend that the respondents incurred the act of forfeiture when they denied the title of their overlords.
It is pertinent to state at this juncture to start from the known basic and well established principles of law relating to burden of proof in civil suits. A plaintiff has the duty to prove his case on the preponderance of evidence as dictated by Section 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. A plaintiff has the duty to establish his case on the balance of probability. Burden of proof is not static. It lies on the party who would fail if no evidence is led. Refer to Are v. Adisa & Ors. (1967) NMLR 304; Ikwuka v. Anachuna (1996) 1 NWLR (Pt. 424) 355; Mogaji v. Odojin (1978) 4 SC 91 at P. 94; Bello v. Eweka (1981) 1 SC 101.
The burden of proof of any issue before evidence is adduced is upon the party asserting the affirmative of the issue. See Okechukwu & Sons v. Ndah (1967) NMLR 368. To succeed, a plaintiff should adduce evidence with real probative value to support his claim. He should succeed on the strength of his case and not on the weakness of the defence. However, a plaintiff can rely on any aspect of the defence that supports his own case; if any. See Akinola v. Oluwo (1962) All NLR 224; (1962) 1 SCNLR 352.
Where a party on whom the burden of proof in a case rests, fails to adduce evidence on a material issue which he needs to prove or if the evidence adduced by him is so patently unsatisfactory that a prima facie case has not been made out, the trial Court, in such a situation, does not have to consider the case of the defence at all. Refer to Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24.
In re-appraising findings of fact, those made by the trial Court should be accorded due regard. An appellate court will not interfere with findings of fact made by a trial Court, except where wrongly applied to the circumstance of the case. An appellate Court will only interfere with findings of fact by a lower Court, if it is shown that the conclusion reached was wrong or perverse. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265.
There is a presumption that a decision of a trial Court on facts is correct. An appellate Court should not ordinarily substitute its own views of fact for those of the trial court which watched the demeanour and performance of witnesses. See Ebba v. Ogodo (1984) 1 SCNLR 372.
As can be garnered from the amended statement of claim and the evidence strenuously adduced by PW1, the claim to ownership of the land in dispute, put briefly, was predicated on the procurement of nine slaves that constituted what came to be known as Ndiokoroji. They claimed that they gave the land in dispute -Ala Ikpa to them to settle as customary tenants after a covenant by which they undertook to be of good behaviour, respect the custom and tradition of Ibinta and to be loyal to the Chief of Ibinta.
The respondents in their defence on this issue denied being slaves. They maintained that they were warriors from Kanu Okoroji’s ‘army’ from Arochukwu who came, on invitation, to defend and resettle Ibinta people in their war with Umunze and that the covenant was with respect to their entitlements upon a successful completion of their assignment.
For the appellants to succeed in their claims, the onus of proof is on them to depict that the respondents are their customary tenants. The appellants tried to place reliance on certain exhibits tendered by them as well as on the evidence of PW1 which should be treated in their sequence. The exhibits which require proper appraisal are in respect of suits between the forebears of the parties in this appeal. I have given a very careful look at the decisions in respect of the cases decided by various courts between the forebears of the parties. I cannot see anything in exhibit ‘B’ which is the starting point of the long drawn battle which shows or point at the direction that the defendants therein were slaves or customary tenants.
In exhibit ‘C’, the claim was in respect of recovery of a plot of land called Ngwala which undoubtedly is not part of Ala Ikpa now in dispute herein. I cannot trace anything in exhibit ‘C’ that shows that the respondents’ forebears were slaves or customary tenants. This exhibit ‘C’ has no correlation with the appellant’s claims herein.
Exhibit ‘D’ relates to contempt of court charge against the defendants therein for allegedly failing to withdraw from the land known as Ngwala. All the ‘accused’ therein were found not guilty and discharged. Therein, they were not branded as slaves or customary tenants. Again, the land in dispute therein known as Ngwala is not part of Ala Ikpa land in dispute herein.
Exhibit ‘E’ is in respect of an in-house matter between members of Aro Ibinta. It is in respect of land known as ‘Ikpatu’ which is not part of Ala Ikpa land in dispute herein.
In Exhibit F, Ofoma Ogbonna represented the people of Ibinta against Rufus Chikezie and others of Aro Ibinta. The plaintiff claimed for an order on the defendants to accept 10 pounds redemption fee on Ikpata or Ngwara land pledged to the defendants since 11-5-20. In Otanchara Native Court, the plaintiff’s case was dismissed by a majority judgment. The plaintiff appealed to the A.D.O., who reversed the decision and ordered the defendants to accept the 10 pounds redemption fee within one week. The defendants then appealed to the District Officer’s Court of Appeal which in the judgment in exhibit “G”, dismissed the appeal but stated that the plaintiff’s title over land marked red in map OKS/O85- Exhibits N & S herein, is not to extend over road from Oka Nnachi passing between ‘P’ and ‘E’ (on the Ekpa boundary) to Edo tree further south.
The defendants appealed further to the resident’s Court of Appeal. The plaintiff applied for a review of the decision in exhibit G. The resident took both the appeal and the review together. In exhibit ‘H’ the resident’s decision on appeal favoured the defendants. The resident found as follows:
“It is common ground that this Aros occupy the land called Ala Ikpa without dispute. Plaintiff maintains that they received Ikpatu on pledge defendants that Ikpatu was purchased outright for 10 pounds. There is no agreement on these lands.”
Ofoma Ogbonna who represented the plaintiffs then applied to the High Court at Onitsha for an order of certiorari to quash the decision in exhibit ‘H’. The High Court heard the application and refused it as manifest in exhibit O. Still not satisfied, Ofoma Ogbonna further appealed to the Supreme Court which dismissed his appeal with 20 Guineas costs in favour of the respondents as can be seen in exhibit ‘P’.
From the decision of the resident in exhibit ‘H’ affirmed by the High Court in exhibit O and confirmed by the Supreme Court in exhibit P, ‘Aros occupy land called Ala Ikpa without dispute.’ Such was common ground. The Aros were not referred to in exhibit ‘H’ as slaves or customary tenants.
In exhibit K, Obi Okonkwo represented the people of Ibinta. He testified that five Aros – Kalunta, Chikezie, Ochiawuto Onukwuwe and Nmerenuonu were residing on the land known as Ala Ikpa with their permission. They were allowed to live on the land free. They did not ask them to pay rent. David Nwosu, another Ibinta man confirmed same without any equivocation. The case against the defendants therein was not against Aro Community of Ibinta. They were adjudged to have right of occupation. The A.D.O. did not support payment of rent by them ‘after those long years of peaceful occupation’.
There is no evidence pointing to the stance that there was an agreement on customary tenancy between the ancestors of the parties. And the ancestors of the respondents were not referred to as slaves.
What then is customary tenancy? The requirements of customary tenancy have been graphically covered by the Supreme Court in the case of Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130 at 217, where it was pronounced that:
“The holding of a customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term, hence he is in a different category from a lessee. It is a grant upon terms, a grant upon terms and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity.”
Let me say it right away that the appellants from the documentary evidence considered above have failed to convince me that there is customary tenancy between them and the respondents herein. I am unable to fathom same even by sheer implication. I cannot see the agreement depicting the terms and conditions agreed by the parties. It appears to me that it merely exists in the imagination of the appellants who are trying to force it down the throats of the respondents.
On incident of customary tenancy as put forward by the appellants, I shall now consider the evidence adduced viva voce by PW1. In line with paragraph 8 (iv) and (v) of the amended statement of claim, PW1 testified on what he called covenant (Igba-Ndu) of 1961. He maintained that the defendants swore never to lay claim to any portion of Ibinta land wherever situate for all time and that they would be loyal to Ibinta Community and would obey and respect the Chief of Ibinta. The appellants on their part swore that they would not quit the defendants provided that they kept to their oath. PW1 said as a result of this covenant both parties abandoned the appeal which was then pending in the Supreme Court. PW1 was shown exhibit P showing that the appeal was fully argued and dismissed by the Supreme Court. It is unthinkable that PW1 feigned ignorance of exhibit P.PW1 there and then put himself in a position that he should not be believed on serious issues. His credibility and integrity become suspect. His veracity got impaired as he showed that he was not a witness who was ready to further the cause of truth.
The evidence of PW1 in respect of ‘Igba-Ndu’ covenant as put up naturally crashed. I agree with the learned trial Judge that if ever there was any covenant in 1961 it was one for peace. It has nothing to do with customary tenancy agreement. The learned trial Judge watched the demeanour of PW1 and faulted him. It was within his competence to so do. I am at one with him. Refer to Nze v. Unakalamba (1998) 2 NWLR (Pt. 53 7) 308 at 323; 336.
Curiously, there is the complaint in the appellants’ brief of argument that the learned trial Judge did not state whether he believed the appellants or the respondents. The appellants need to know that there is nothing magical in the use of terms like – ‘I believe’ or ‘I do not believe’ in appraising evidence. Let me add that there is nothing esoteric in the employment of such tags. Reasons for believing or not believing a witness must be depicted. The learned trial Judge showed why PW1 should not be believed on his imagined ‘Igba-Ndu’ covenant of 1961. No right thinking tribunal will believe him. And the same cast aspersion on his evidence that his grand-father procured nine slaves which formed the nucleus of the respondents and that such culminated in a surmised customary tenancy.
The appellant failed to show that there was ‘a grant upon terms and conditions’ between them and the respondents. There must be an agreement as dictated by the decision in Abioye v. Yakubu (supra).
I agree with the learned Counsel for the respondents who settled their brief that ‘the same must kick off with an agreement’.
The appellants complained that the learned trial Judge erred when he said that customary tenancy required payment of monetary-tribute. Learned Counsel for the respondent conceded the point. It is inconsistent with existence of customary tenancy as same may well be established without the payment of tribute under customary law.
Tribute may be tangible or intangible. It may be in form of ‘acknowledgment of gratitude or respect.’ Refer to Abimbola v. Abatan (2001) 9 NWLR (Pt. 717) 66 at 75; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435 at 452.
The real point is that there was no credible evidence adduced by the appellants at the trial court to sustain the existence of a customary tenancy between the appellants and the respondents. There was no agreement established to indicate terms and conditions of same. The appellants failed to prove the plank of their claim to wit:
customary tenancy. The submission of the respondents’ counsel that the appellants, having failed to prove the customary tenancy on which their case was predicated, the appellants must be hoisted with their own petard holds water.
The appellants failed to prove their case on a preponderance of evidence. They should succeed on the strength of their own case; not on the weakness of the defence. They are not entitled to the reliefs claimed by them at the lower court. The case ought to be dismissed as was done by the learned trial Judge. See Okeke v. Agbodike (1999) 14 NWLR (Pt. 638) 215. Idesoh v. Ordia (1997) 3 NWLR (Pt. 491) 17 at 25.
Before I draw the curtain, perhaps I should say it that all human beings should be careful in the way and manner they talk glibly about slavery. It should be borne in mind that we are all children in the sheep-fold of God.
I come to the conclusion that the appeal is devoid of merit. It is hereby dismissed as I affirm the balanced judgment of the learned trial Judge. The respondents are entitled to costs which I assess at N5,000 against the appellants.
Other Citations: (2005)LCN/1763(CA)
