Eugene Nwaokarobia & Anor. V. Daniel Uzoho & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM JCA.
The Appellants, as Plaintiffs, in the Isu customary court Nneneasa of the Imo State Judiciary, claimed as follows:-
(a) A declaration ‘that the Plaintiffs are entitled to the Customary Right of occupancy over the piece and parcel of land known as and called ‘Uhu-umu-Uche’ situate at Ebenator-Ekwe in Isu Local Government Area within the jurisdiction of Court.
(b) Perpetual injunction restraining the defendant’s servants or agents from further act of trespass to the land of the Plaintiff aforesaid
(c) N3, 000.00 (Three Thousand Naira) only being general damages for the economic crops and and carried away.
The parties joined issues at the trial Court.
It is the case of the Appellants that the land devolved to them from their ancestor by the name Uche Duru- who first farmed the land and after whom the land is called as “UHU-UMU-UCHE” The land is situated at Ebenator Ekwe in the Isu Local Government Area of Imo State. There is no dispute as to the identity of the land.
Conversely, the Respondents as Defendants claim ownership of the land. They call their own land ‘Okukoro-ala” or ‘Uhu Umuche,” situate at Ebenator Ekwo in Nkwerre Local Government Area of Imo
State. The said land revolved on them from their ancestor called Okorokoro of the “Okwaraudu family”. The Respondents also claim that the Appellants are also of the “Okwaraudu family” but deny that any of their ancestors answered the name “Uche” as claimed by the Appellants.
The Appellants called five witnesses to establish their claim while the Respondents challenged the case of the Appellants with an equal number of five witnesses.
The trial-Customary Court dismissed the suit of the Appellants in a split decision of two to one.
The Appellants immediately launched a complaint at the Customary Court of Appeal Imo State holden at Owerri. They again lost and have now come to this Court urging us to overturn the decisions of the trial and appellate Customary Courts.
Appellants filed five grounds of appeal from which grounds; two issues were distilled for determination by this Court. The issues are:-
1.Whether having regard to the provisions of the Customary Court Rules and the applicable native law and custom, the Appellants did not prove their cases as required by law.
- Whether the court below did not err in native law and custom when it based its decisions on the Appellants refusal to continue with illegal and inconclusive native arbitration, even when there was no decision given on oath taking and after the Court itself has stated that it is not bound by local arbitration.
The Respondents reformulated the two issues of the Appellants as follows:-
- Whether the Appellants did not prove their case as required by law.
- Whether the Court below did not err in native law and custom when it based its decision partly on the Appellants’ refusal to continue with inconclusive native arbitration”
This appeal shall be determined upon the issues formulated by the appellants.
ISSUE ONE:
“Whether having regard to the provisions of the Customary Court Rules and the applicable native law and custom, the Appellants did not prove their case as required by law”.
In his submission in support of this issue, the learned Counsel to the Appellants cited the provisions of Section 50 of the Land Use Act,
Section 22 of the Customary Courts Edict No.7 of Imo State (as amended), and Order 9 Rule 2 of the Customary Court Rules of 1989 as the applicable statutory provisions in this suit.
The learned counsel to the Respondents concedes to this primary point and both learned Counsel are Ad idem that proof in civil matter’s before the Customary Court is based on the balance of probabilities or the preponderance of evidence just as in other Courts. The Plaintiff of course always has the initial burden of proof and the corresponding duty to establish a prima facie case before the Defendant is required to state his case. (Refer BENNETH UDE AGU v. MAXWELL NNADI (2002) 18 NWLR pt 798 P 103 at 128, the Supreme Court citing AROMIRE v. AWOYEMI (1971) 2 SC t, MOGAJI v- ODOFIN (1978) 4 SC 91, KAIYAOJA v. EGUNLA (19774) 12 SC 55, ONWUAMA v. EZEOKOLcI (2002) 5 NWLR Pt, 760 P. 353).The Appellants maintain that they did not only establish their case by credible traditional history, but also by evidence of acts of ownership and long possession. The learned Counsel cited the evidence of Pw1 and Pw2 who are boundary neigbhours and Pw5 to whom they had given the land and on which he farmed for two years unperturbed. The learned Counsel submits that these pieces of evidence are unchallenged and the trial Court was wrong in ignoring same. The learned Counsel submits that the decisions of the trial and appellate customary Courts are perversed in that they ignored the facts or evidence of the Appellants and their witnesses. The decisions have therefore occasioned a miscarriage of justice which the Appellants urge this Court to remedy. Cited in support of this point are the following cases:-
- AGBOMEJI v. BAKARE (1998) 9 NWLR (p.564) 1 at 8 para C.
- ATOLAGBE v. SHORUN ({0s5) r NWLR (P.2) 360
- ADIMORA v. AJUFE (1989) 3 NWLR) P.80)1 AND
- OLALE v. EKWELENDU (1989) 4 NWLR (P.115) 329.
The learned counsel also objects to the undue reliance by the trial Court, on the name of the land and the demeanour of the 1st Appellant as a basis for deciding against the Appellants. The learned Counsel submits that the name the parties call the land in dispute is not a relevant factor in deciding the issue of ownership.
Counsel submits further that it is the law that where there is a conflict in the traditional history, the demeanour of witnesses is of little guide to the truth of the matter. It must be recognized, said the learned Counsel that in the course of transmission from generation to generation of the traditional history, mistakes may occur without any dishonest motives. In such a case, the traditional history is to be tested by recent facts established by evidence with a view to determining which of the conflicting version is more probable.
The following cases are cited to buttress this submission:
- ONAFOWOKAN v. THE STATE (1987) 3 NWLR (P.61) 538,
- ADELUMOLA v. THE STATE (188) 1 NWLR (P.74) 683,
- SAMUEL BOZIN v. THE STATE (1983) 2 NWLR (p.8) 465,
4 OLADEHIN v. CONTINENTAL (1978) 2 SC 23 at 33
- ALL v. ALESINLOYE (2000) 6 NWLR (P.660)177 especially at pages 201 -202, Para. G – B.
- IDUNDAN v. IJUNEGVA (1976) 9-10 SC 227 at 246-250
- ATANDA v. AJAIN (1989)3 NWLR (P111) 511 & ANYANWU v. MBARA (1992) 5 NWLR (P.242) 381.
Any doubt, submitted counsel, on the traditional evidence of the Appellants should have been resolved by reference to recent acts of possession and ownership. These, contends the learned counsel was established by the evidence of pw1, pw2, & Pw5, but which the trial court erroneously ignored. Those testimonies were the only guide to resolve the conflict, purports Counsel.
(Refers to EJEM v. OFIA (2000) 7 NWLR (p. 666) 662 at page 673, para. A – B, EKPO v. ITA (1932) 11 NLR 68 at 69, ADEREMI v. ADEDIRE (1996) NWLR 398).
Conversely the Respondents maintain that the Appellants fabricated the story about their ancestor; Uche Duru a non-existant person in order to take that which did not belong to them.
The learned counsel to the Respondents submits that the trial and the appellate Customary Courts premised their decision on the failure of the Appellants to proof their root of title. The learned Counsel pointed to the visit to the locus in quo where at, the Appellants were unable to point to the relics of their ancestors whom the 1st Appellant as pw3 had said lived and farmed on the land. They equally failed to point to the relics of the abode of Obiwuaku whom they named as the son of the said Uche Duru.
The learned Counsel cited section 34 & 35 of the Evidence Act to buttress his submission that the Appellants failed woefully to discharge the onus of proof of the existence of ‘uche’ or ‘Umuche’ in relation to the land in dispute. The counsel refers to the case of Obiaku v. Ekesiobi (2003) FWLR (pt. 166) p. 661 at 668. The learned counsel flawed the comparison made in the minority judgment between the instant case and the unreported case of Madu v. Iwuofo CC/NN/52/91, where it was clearly established that Ozuzu, the ancestor lived, died and was buried on the land. This fact gave the land the name “Uhu-Ozuzu”.
What are the findings of the trial Court?
The trial Court found that in evidence in -chief, the 1st plaintiff as the Pw3 relied on hereditary inheritance for his root of title. He said that one Uche Duru was their first ancestor to live on the land. He traced their ancestory down to their father- Nwokorobia from whom they inherited the land – Uhu Umuche.
The Pw3 – the 1st plaintiff Eugene Nwokorobia, claimed that it was from the said Uche that the land in dispute derived its name.
But on the other hand, contrary to the pw3’s claims, the Dw2 Nnametu Ahumaraeze and the Dw3 Daniel Uzoh, told the Court that the land got its name as an area where people laid arm-bush during the inter-village war between Umuokoroboro, Umuduruewuru and other village.
That particular area was where people kept watch to catch or disel kidnappers. As such the area was referred to called, and known as Uhu-Umuche. All the people of the area refer to the area as Uhu Umuche. The two witnesses affirmed that nobody had ever rived on the rand in dispute, since it was deforested. The Dw3 – Daniel Uzoho, told the, Court that nobody in their lineage ever answered Uche either in the past or at present, and there are no descendant candidate’s of Uche anywhere in Umuokorokoro as the descendants of the said mythical Uche of the plaintiffs.
The Defendants also told court that all the boundary neighbours to this land call their various portions of land Uhu Umuche, despite the fact that ail of them come from different families and kindreds of Umuokorokoros for example, Hilary Nwagbara of Umuekwgbara calls his portion Uhu Umuche; Clement Orji – pw2 from Amuka, calls his own land – Uhu Muche; Ndionu Mbagwu calls his own land Uhu Umuche, and he comes from Umuokwara Ojiaku, and when asked to name the children of Uche or the descendants of Uche who lived on the land, the plaintiff – Pw3 could not name any.”
I have extensively reproduced the decision of the trial court to show that the Court did adequately considered the evidence adduced before it, evaluated same before concluding that the evidence of the Plaintiffs who have the burden of proof was rather of a feather weight. The court by a majority of two to one rightly, in my humble opinion, rejected the said evidence and dismissed the case of the Appellants.
At the Customary Court of appeal, the judges found that the trial court, which has the primary function of evaluating the evidence of witness who testify in their presence, rightly evaluated and allotted weight as they deemed fit to the two sides. They found nothing untoward about the findings of the trial Court and therefore upheld same.
The Appellants have come to us alleging the Appellants did proof their case before the two courts but were wrongly denied of their title and also punished for exercising their rights to pull out from the “purported native arbitration”.
First and foremost, it is not the responsibility of this court to evaluate evidence; it is that of the trial court. The trial also has the legal competence to draw inferences from the conduct of the parties appearing before them. This is because the trial Court has the advantage of seeing and assessing each of the party and their witnesses as they testify. (Refer:- Kamaldeen Toyin Fagbenro v. Ganyiyewhe Arobadi, (2006) 7 NWLR p. 978 at 1-230).I have reproduced supra, and in extensor, the judgment .f the trial Court. The Court found and held that the Appellants fabricated the story about their ancestor Uche Duru. The evidence before the court showed that a good number of the people riving and farming around the rand in dispute call their portions of rand by the name Uhu-Umuche or Uhu The name Uhu-Umuche Uche is therefore not peculiar to the Appellants.
The respondents who claim they are from the same lineage with the Appellants avowed that none of their ancestors or relations dead or living has ever gone by the name of Uche. This is a very weighty declaration which was not at all rebutted by the Appellants.
The evidence of recent acts of possession exhibited by the Appellants is a far cry from credible evidence. They gave a piece of land to the pw5 who farmed it for two years, in what year’ we do not know, and that is supposed to constitute sufficient act of authority over a piece of land? Seems more to me like the conduct of a flimsy man of straw consciously waiting to be consumed by a spark of flame!
The trial Court believed the Respondents. The Customary Court upheld the findings of the trial court.
I find no good reason to defer.
ISSUE TWO
The learned Counsel has made as an issue, the reference/reliance by the Customary Courts, on arbitration in dismissing the suit of the Appellants.
Exactly what is the decision of the trial Court on the attempts at Customary arbitration?
The trial Court held that:-
“… Although the Court is not bound to accept the verdict of these local arbitrations, but some facts can be deduced from them – some substantial elements of truth and acts glaring in the fac,E. The Amara suggestion of oath – taken is not wrong both in law and custom.
The refusal of a party to swear, or to be sworn for denotes something of being liable, according to the custom of the Igbos.”
“The Court concluded in these terms..
The refusal by the Appellants to hear the result of the oracle chosen by them has got a lot of suspicion in it on the side of the plaintiffs. The Eze in-council gave the Plaintiffs leave to perform all necessary ceremonies or rites to hear the result of the Chukwu oracle but this period of grace, plaintiffs rushed to Court.
One may argue that the Government has banned the Chukwu oracle, but one believes that what prompted that what prompted the parties to go to Chukwu, should as well push them to hear result of their venture”
By the terms of the Judgment of the trial Court, one cannot agree with the learned Counsel for the Appellants that the Court used the refusal/withdrawal of the Appellant from the Customary arbitration to enter judgment against them.
Far from it. What the trial Court did was draw inference from the antecedents of the case in support of their finding that the Appellants failed to discharge the initial burden on them to establish their title to the land.
Customary arbitration and oath taking in land matters is a known and acceptable practice in Igbo land. The implication of going back and forth or playing ‘hide and seek’ as the Appellants did with the issue of oath taking is what irked the trial Court and led them to make the observation which they are in law entitled to make an d decide accordingly. (Refer:- SODIPO v. LEMMII NKAINENY (1986) NWLR pt 15 p 220 at 224 – 5).
The trial Court dutifully heard the witnesses, visited the locus in quo and fully evaluated the evidence adduced before it.
The Judges did not in any way falter in the exercise of their judicial function.
The learned Judges of the Customary Court of Appeal which reviewed the decision of the trial Court found that “there is no doubt that the trial Court judiciously used our imaginary scale and it weighed in favour of the Respondents”.
The Judges held that the Plaintiffs failed to proof their case. “what is worse’”, declared the Appellate Customary Court they started badly by fielding and locating evasive witness (Pw1) who did not know anything other than that to him the Appellant are the owners of ‘Uhu Umu Uche’. In fact no other witness was helpful to the Plaintiffs’ case”‘
On the inference to be drawn from the conduct of the Appellants regarding the attempted customary arbitration, the learned Judges of the Appellate Customary Court had this to say:-
“No doubt that the consultation of the Ghukwu oracle is illegal and no one is entitled to plead it in his favour, but suffice it to say that the attitude of the appellants starting from reporting a civil matter to the police through reference to the eldest kinsman, thence to Ghief Nwokefore and to the proscribed Chukwu oracle is one package of dubious machination and mischief making.
The appellants will initiate a mock trial or settlement procedure and will frustrate the final settlement. I will borrow a leaf from Cockburn CJ in Moriaty v. London C.d. Rlys 1R 5 QB 314 when he said “if you can show that a man has been suborning false testimony and have endeavoured to have a recourse to perjury, it is strong to show that he knows perfectly well that his cause of action was an unrighteous one”. In liked manner I will say that since it has been shown that the appellant’s did initiate various arbitration panels and did frustrate each panel’s effort at resolving the issue, the appellants know that their cause of action is an unrighteous one”.
This line of reasoning finds support and authentication in the case of John Onyenge & 2 Ors v, Chief Loveday Eberev & 2 Ors (2004) 13 NWLR pt 889 p. 20 at 40, per Niki Tobi (JSC).
The learned Jurist held as follows:-
“This Court recognizes Oath-taking as a valid Process under customary law arbitration. In Ume v. Okoronkwo (1996) 10 NWLR (pt. 477) p. 133, (1996) 12 SCNJ 404, Ogwuegbu JSC held that Oath – taking was one of the method of establishing the truth of a matter and wars known to customary law and accepted by both parties. One fairly curious aspect in this case is that the Appellant, who were instrumental to the exercise of Oath – taking are trying to resile from it. I do not think that such a prosition- is available to them in law.
(Emphasis; mine) In Oparaji v. Ohanu (1999) 9 NWLR (pt. 678) 290, Iguh, JSG correctly made the point at page 304”
I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once the arbitrators reach a decision, it would no longer be open to either party to subsequently back out of or resile from the decision so pronounced.”
Conclusion of the arbitration and oath – taking they initiated.
The inference drawn by both the courts below in this appeal is that the Appellants frustrated the conclusion of the arbitration and oath – taking because they stand on very fictitious grounds.
The learned Counsel for the Appellants charges that if the case of the Appellants and those of the Respondents had been placed on the imaginary scale, the case of the Appellants would preponderate and be more credible counsel concedes to the established principle of evidence in our Courts that the standard of proof is that of balance of probabilities. (Refers Kaiyaojo v. Egunla (1974) NSCC vol. 9 p. 606 & Adeleke v. Iyanda (2001) FWLR (pt. 60) 1580 at 1595).
It is however also well established by a plethora of cases that in a claim which seeks a declaration as to the rights of a Plaintiff vis-a-vis the Defendant in a property, the plaintiff must succeed on the strength of his case and not on the weakness of the defence case. The plaintiff is however entitled to take advantage if the case of the defendant strengthens his own case. A solid foundation must however, first be established by the Plaintiff. Where no foundation is established, there is nothing to be neither strengthened nor developed; the scenario is a total collapse of the plaintiff’s case like a pack of cards.
The exception to this general rule is as stated in the case Of MR. INYANABOMIETE-KARIBO WEST V. CHIEF HUNTLEY S.K.D. OFFOR and 2 Ors (1996) 8 NWLR Pt 466 p. 343 at 358 as follows:-
S.K.D. OFFOR and 2 Ors (1996) I NWLR pt 466 p.343 at 358 as follows:-
(a) Where there are facts and factors in the Defendants case which supports the plaintiff’s cases;
(b) Where the defendant in his own pleading admits that the Plaintiff was the original owner; in such a case, the onus is on the defendant to prove the absolute grant to him and;
(c) If the Plaintiff is shown to be in possession, the primary onus is discharge and by virtue of the provisions of section 146 of the Evidence Act, the plaintiff is presumed to be the owner of the land. It is the defendant who must rebut the presumption”.
(Refer- BELLO v. EWEKA (1981) 1 SC 101 OKO v. NFUKIDEM ({993) 2 NWLR (pt. 274) 124 at 138 and IGIEHON v. OMOREGIE (1993) 2 NWLR pt 276 p. 398).
It is the primary responsibility of the trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value. The Appellate Court which neither heard the witnesses nor saw them to observe their demeanours in the witness box has no such responsibility.
When evidence is adduced before a trial Court, it is expected to evaluate same before arriving at its decision. An appropriate evaluation of evidence necessarily entails giving reasons for the acceptance or rejection of the various facts/testimonies adduced before the court. In the instant appeal, the trial Court efficiently demonstrated its adjudicatory skills in the evaluation of the evidence placed before it. Part of the judgment of the trial Court went thus:-
“The Plaintiff, Pw3 lied when he claimed that he did not come from the same family with the Defendants. He told Court that he came from Umuokwaraku while the Defendants came from Umuokwraudu. The evidences of the Plaintiffs’ step father the P5 Obinura Okorom, ,the Pw4 – Chief Thomas Nwokeforeo, the Dw1 – Iwunwa Mbagwu and the D3 – Daniel Uzoho, all prove that both parties to this dispute come from one and the same family of Umuokwaraudu, thereby proving that Pw3 a liar.
Further the findings of the trial Court on the visit to the locus in quo is commendably evaluative. The Court found in these terms:-
“At the locus, Court was showed (sic) the land in dispute. The Plaintiffs did not show the relics of any building as claimed by them. Court observed that the whole area and its surrounding was a farmland area called Uhu Umuche by their respective owners, whether from the disputant family from other families kindreds; or villages. Even from the neighbouring village of Umuduruewuru Ebenator owning farmlands around the area, call their (sic) Umuche.
Both parties to the dispute named several boundary neighbours who are the same in each case”.
The Supreme Court and this Court have held severally that where a trial Court unquestionably evaluates the evidence and appraises the facts as presented before it, the appellate Court has no cause to interfere with same. (Refer Amda v. Oshoboja (1984) 7 SC p. 68 at 89).The customary appellate court appropriately guided itself with this principle and so shall this Court.
In this appeal, the trial court properly evaluated the evidence adduced before it and correctly made its findings, of fact in favour of the Respondents. This Court lacks the luxury to embark on a wasteful venture of a fresh appraisal of the evidence on appeal.
The appeal is without merit and is hereby dismissed.
The Appellants shall pay a cost of N5, 000.00 to the Respondents.
Other Citations: (2006)LCN/2118(CA)
