Mr. Kenechukwu Joseph Nwachukwu V. Awka Micro-finance Bank Ltd (2016)

LawGlobal-Hub Lead Judgment Report

TOM SHAIBU YAKUBU, J.C.A.

This appeal is against the decision of the Anambra State High Court of Justice, holden at Awka, which was delivered on 19th January, 2007. The appellant was the plaintiff at the aforementioned High Court, the Court below, for short. He had claimed:
(a) N5,000,000 (Five Million Naira) being general damages for trespass on his land and
(b) Perpetual injunction restraining the defendant, its servants, agents or privies from any further trespass on his land.

Pleadings were filed and exchanged between the parties. The respondent counter-claimed against the appellant and prayed for:
a. A declaration that the defendant is the person entitled to the statutory right of occupancy over the piece or portion of land verged Red in the plaintiff?s Survey Plan No. SSC/AN-D 10/2005.
b. Perpetual injunction restraining the plaintiff, his agents, servants and privies from further trespass on the defendant?s land.

The appellant had claimed that he inherited the land in dispute which was part of a large parcel of land, from his father and that in 2002, he sold the land in

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dispute to the respondent for the sum of Six Million, Five Hundred Thousand Naira (N6,500,000) only and thereafter, let the respondent into possession of the part of the land not in dispute. Furthermore, the appellant donated to the respondent, an irrevocable Power of Attorney in respect of the piece of the land not in dispute. However, the respondent later wrote to the appellant, to the effect that the latter is a tenant of the former over the land in dispute which is adjacent to the piece of land that the appellant had earlier sold to the respondent who now said that she bought the land in dispute from the real owner and not from the appellant. Hence, the claim by the appellant against the respondent at the Court below. The suit proceeded to trial and at the end thereof, the learned trial judge, found for the respondent, by dismissing the appellant?s claim and entering judgment for the respondent in her counter claim.

?The Further amended appellant?s brief of argument, settled by Amaka Ezeno, Esq., was dated and filed on 28th October, 2015. In it, four issues were distilled from the grounds of appeal, for the resolution of the appeal,

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thus:
01. Whether the appellant?s Certificate of Occupancy, Exhibit ?B? over the land in dispute and appellant?s various and numerous acts of ownership over the land in dispute and adjacent pieces of land not evidence of the appellant?s entitlement to the land in dispute;
02. Whether the respondent pleaded and proved all the ingredients of customary arbitration as to constitute estoppel and disentitle the appellant from maintaining his claim against the respondent;
03. Whether the respondent proved its counter claim to entitle it to judgment;
04. Whether the learned trial judge was right in law when it failed to consider and evaluate properly or to consider and evaluate at all, the evidence of the appellant and his witnesses on very vital issues before it and this has occasioned a miscarriage of justice.

The further amended respondent?s brief of argument settled by Emeka Nwankwo, Esq., was dated and filed on 10th November, 2015. He nominated four issues for the determination of the appeal, as follows:
1. Whether the appellant?s purported Certificate of Occupancy ? Exhibit B conferred

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title of the land in dispute on the appellant in view of the fact that the appellant has not proved before the trial Court the land in dispute was granted to him by his father.
2. Whether the arbitration of the Umuonachi larger family of the appellant in respect of the land in dispute constitutes estoppel.
3. Whether the appellant validly sold the land in dispute to the respondent and executed Exhibit Q in favour of the said respondent.
4. Whether the trial judge was right in entering judgment for respondent having found that the appellant did not prove his case as required by law.

This appeal shall be considered and determined upon the four issues formulated by the appellant?s learned counsel.
Issue 01
Referring to the five ways enumerated in Idundun v. Okumagba (1976) 9 ? 10 S.C. 227, (1976) 1 NMLR 200, which was followed by the apex Court in Eze v. Atasie (2000) 10 NWLR (pt. 676) 470 at 487 ? 488; Ajiboye v. Ishola (2006) 26 NSCQR 1399 at 1421 ? 1422, it is the submission of appellant?s learned counsel that the appellant?s acquisition of the land in dispute is predicated on the Certificate of

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Occupancy ? Exhibit B by which he is presumed to be the owner of the land to which the said Exhibit B relates, and that Exhibit B has not been effectively challenged or voided. He referred to Dantata v. Mohammed (2000) 7 NWLR (pt. 664) 176 at 204 and 213. He submitted that the appellant testified to the fact that he got the land in dispute from his father, with other pieces of land appurtenant to it, as his Ana Iruezi, being the first son of his father, in addition to the ?Obu?. He referred to the pieces of evidence proffered by the appellant at page 133 of the record of appeal. He contended that the Court below did not properly evaluate the appellant?s pieces of evidence and that in such a situation, the appellate Court has the power to intervene and interfere with the trial Court?s findings which are perverse. He referred to several authorities such as Okhuarabo v. Egbareba (2005) S.C. (pt. 1) 141, Uka v. Irolo (2002) 7 S.C. (pt. II) ?; Anthony Odiba v. Tule Azege (1998) 7 S.C.N.J 119 at 127; Ikiugbedi Edjekpo v. Iboyi Ithibri Osia (2007) 29 NSCQR 842 at 871; Ajiboye v. Ishola (2006) 26 NSCQR 1399 at 1427; etc. He insisted that

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the production of Exhibit B and numerous acts of ownership over the land in dispute and adjacent pieces of land to it, are evidence of appellant?s title to the land in dispute.

On his part, learned counsel to the respondent submitted that under Awka native law and custom, a man in his life time, cannot give his ?ana iruezi? to his son as testified to by the DW1 and DW2. He contended that the appellant failed to prove the customary law he asserted, to the effect that he acquired the land in dispute as his ?ana iruezi? from his father while the father was alive. He referred to Section 16 (1) of the Evidence Act, 2011; Onyenge v. Ebere 18 NSCQR (pt. II) 786; Oba R. A. A. Oyediran of Igbonla v. H. H. Oba Alebiousu II & Ors (1992) 7 SCNJ (pt. I) 187. He furthermore contended that the appellant?s root of title must first be established by him and which enabled him to procure Exhibit ?B? over the land in dispute.

Furthermore, the respondent?s leaned counsel contended that apart from the fact that the appellant could not establish by credible evidence that his father gave him the land in dispute in

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his father?s life time, the production of Exhibit B, in the circumstances of this case was suspect because according to him, whilst Exhibit B bears the name Nonyelu Joseph Chigbo Nwachukwu, Exhibit V which was a gazette published in respect of the land in dispute prior to Exhibit B, bears the name Nnonyelu Nwachukwu as No. 101 at page 644 thereof which was the name of appellant?s father who had applied for a certificate of occupancy in his life time before the Land Use Act, 1978 came into force. He referred to Dabo v. Abdullahi (2005) 5 M.J.S.C. 57 and insisted that Exhibit B did not pass the test of genuineness and validity, hence the appellant?s claim had no basis.

Resolution:
The law has remained well settled that in an action for a declaration of title to land, the plaintiff has the duty of establishing to the satisfaction of the Court, how he came into possession of the land in dispute. In doing this, the plaintiff, in his pleadings must aver and state the circumstances which brought him to the land, that is stating that he possessed the land in dispute, either through grant, sale, inheritance, settlement or conquest.

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Furthermore, the plaintiff has the obligation to lead evidence on hard facts to establish his title to the land before he can succeed in a claim for a declaration of title to such a land. It is trite that the plaintiff can establish his title to the land in dispute through any of the five ways, identified in Idundun V. Okumagba (1976) 9 ? 10 S. C. 227; Piaro V. Tenalo (1976) 12 S. C. 31; Fasoro V. Beyioku (1988) 2 NWLR (pt. 76) 236. Further see Olugbode V. Sangodeyi (1996) 4 SCNJ 1 at 13; Aigbobahi & Ors V. Aifuwa & Ors (2006) 2 SCNJ 61 at 70; Nwokidu V. Okanu (2010) 1 SCNJ 167 at 195; 2010 3 NWLR (pt. 1181) 362. The five ways for avoidance of doubt are:
(i) By traditional evidence or
(ii) By production of document(s) of title duly authenticated and executed or
(iii) By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of a true ownership or
(iv) By acts of possession and enjoyment of the land or
(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the

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owner of the land in dispute.

The law is firmly settled that:
?The first duty of a plaintiff who comes to Court to claim a declaration of title is to show the Court clearly the area of land to which his claim relates. (see Akinolu Baruwa V. Ogunshola & Ors. 4 WACA 159). It is also trite law that before a declaration of title is granted, the land it relates must be identified with certainty (see Udofia V. Affia 6 W.A.C.A. 216 at Kwadzo V. Adjei 10 W.A.C.A. 274) 76 if it is not so ascertained, the claim must fail and it must be dismissed (see Oluwi V. Eniola (1967) N.M.L.R. page 399? per Fatayi ? Williams, JSC (as he then was) in Okosun Epi & Anor V. Johnny Aigbedion (1972) LPELR ? 1151 (SC) at page 8; (1972) All N.L.R. 805; (1972) 10 SC 45. Further see Olufosoye & Ors V. Olorunfemi (1989) LPELR ? 2615 (SC) (1989) 1 SC (pt.1) 29.
The same principle was restated by the apex Court in Odiche V. Chibogwu (1994) 7 ? 8 SCNJ 317 at 323; to wit:
?In a claim for a declaration of ownership or exclusive possession of a piece of land, the first and foremost duty of the claimant is to

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describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt:-
(i) The boundaries of the area and location of the land he is claiming;
(ii) His neighbours and their names on all sides of the boundaries. Where some of the boundaries are marked by rivers, stream or road should be named;
(iii) Any other physical features on the land like rock, buildings, trees, etc, that may assist in its identification.?
Unarguably, this is so because:
?It cannot be over-emphasized that before a declaration can be granted, the area of land to which it relates must be ascertained with certainty and precision, the test being whether a surveyor can from the record produce an accurate plan of such land. See Kwadzo V. Adjei (1944) 10 WACA 274; Udekwu Amata V. Modekwe 14 WACA 580 and Ezeokeke V. Umunocha Uga and Ors (1962) 1 All NLR (pt. 3) 482? ? per Iguh, JSC, in Ugbo V. Aburime (1994) LPELR ? 3314 (SC) at P. 15; (1994) 9 SCNJ 23.? Therefore, a declaration of title to land cannot be made in respect of an unidentified land. Further see: Eigbejale v. Oke

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& Ors (1996) 5 NWLR (pt. 447) 128; (1996) LPELR ? 1057 (sc); Olusanmi V. Oshasona (1992) 6 SCNJ 282; (1992) LPELR ? 2629 (SC); (1992) 2 NWLR (pt. 245) 22.

?The appellant herein, at paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of his statement of claim averred, as follows:
?3. The land in dispute is part of a larger area of land measuring 856.876SQ. MTRS known as ANA IRU EZI which is attached to the compound (NGWULU) ofNnonyelu Nwachukwu, inherited by the plaintiff under Awka native law and custom.
4. The land in dispute is shown verged red on survey plan NO. SSC/AN-D 10/2005 filed along with this statement of claim and is bounded as follow:- on the first side by the Nnamdi Azikiwe Avenue Awka, on one side by the road leading from Zik Avenue to Umuogbunu village, on another side by land of plaintiff sold to the defts, and lastly by ugwu offufe shrine.
5. The land in dispute has always been part of the main compound shown verged yellow in the plaintiff?s survey plan NO. SSC/AN-D 10/2005 from time immemorial.
6. The compound was first established by Ezeoka the son of Onachi: Ezeoka enjoyed the compound with the

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?ANA IRU EZI? land part of which is now in dispute. Ezeoka was succeeded by his first son Onuorah who also enjoyed the compound together with the ?ANA IRU EZI? land. After Onuora his first son Okeke succeeded him and enjoyed the same rights, Nnadozie the first son of Okeke succeeded him and enjoyed the compound and son of Okeke succeeded him and enjoyed the compound and the attached ?ANA IRU EZI?. After Nnadozie his first son Nwachukwu succeeded him and enjoyed the compound together with the ?ANA IRU EZI?. After Nwachukwu his first son Nnonyelu (plaintiff?s father) succeeded him and enjoyed the main compound and the ?ANA IRU EZI?. The plaintiff succeeded his father Ogbuefi Nnonyelu Nwachukwu and inherited the compound together with the ?ANA IRU EZI?.
7. The plaintiff?s father during his life time divided his lands and gave living land (ANA OBU) to his sons and following the age long tradition of his ancestors, he gave the plaintiff his first son (Diokpala) the compound and the ?ANA IRU EZI? part of which is now in dispute. He gave Ndubueze the second son living

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land ?Ana Obu? at Umuogbunu village Awka. He gave Udoka his own living land (double plot at Iyiagu. Chukwujekwu did not get any living land, he instructed the plaintiff to give him one when the family land at INENZU is shared.
8. The plaintiff took possession and started using his land the compound and the ?ANA IRU EZI? in the lifetime of his father. To the happiness of his father he built many houses in the compound and developed the ?ANA IRU EZI? part of which is now in dispute.
9. The plaintiff applied for and obtained a building certificate of Occupancy for the said ?ANA IRU EZI? in 1982 and prominent members of the family wrote to the Ministry of Lands confirming that the plaintiff got the said land (ANA IRU EZI) part of which is now in dispute by inheritance. The said letter will be relied upon. The plaintiff was given the land even before the birth of Udoka his half brother and he has been in possession since then. The plaintiff?s father died in 1989. The said Certificate of Occupancy is registered as No. 7 at page 7 in volume 1037 Land Registry now at Awka and shall be relied upon at the

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trial.
10. The land in dispute has been in possession of the plaintiff who has exercised maximum acts of ownership over same without any interference from any quarter. The plaintiff sold part of his ?Ana Iru Ezi? measuring 334.121sq.m verged pink on his survey plan to Engr. E. N. Obijiofor. The plaintiff also sold part of his Ana Iru Ezi measuring 400.147Sq.m and verged blue in his survey plan to the defendant. All these acts were done by the plaintiff without anybody ever claiming to be joint owner. The receipts and relevant documents shall be relied upon at the trial?.

?In order to succeed in his claim, the appellant had the duty to lead hard evidence to the effect that the land in dispute was part of the ?ana iruezi? which he had customarily inherited from his father when the latter was still a life. The respondent denied the appellant?s assertions at paragraphs 3, 4, 5, 6, 7 and 8 of the amended statement of defence, which for ease of reference are reproduced, inter alia:
?3 The defendant in further answer to paragraphs 6, 7, 8, 9 and 10 of the statement of claim states that under the native law and

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custom of Awka people ?Ana Iruezi? land is never a built up area. The land in dispute is a fully developed or a built up area with a row of stores (structures) thereon which area is clearly shown in the plaintiff?s survey Plan filed with his statement of claim. The defendant agrees with the land in dispute as contained in the plaintiff?s said survey plan. Any land that is built up with buildings and other developments thereon can never be qualified as ?ana iruezi? under the native law and custom of Awka people.
4. The defendant states further that under the said native law and custom of Awka people, a person does not inherit ?ana iruezi? during the life time of his father but after the death of his said father. Under the same Awka native law and custom, a person does not inherit his father?s compound or ?Ngwulu? or any other entitlement or inheritance of the first son or ?diokpala? while his father is alive or during the lifetime of his father. The plaintiff under the native law and custom of Awka people couldn?t have inherited the ?ana Iruezi during the lifetime of

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his father.
5. The defendant states further that the row of stores on the land now in dispute were built by the plaintiff?s father while alive and not by the plaintiff himself. The said stores were built for the family of Ogbuefi Nonyelu Nwachukwu which includes the plaintiff and his brothers and other members of the family.
6. The defendant states further that once a piece of land is built up or developed, it is no longer qualified to be ?ana Iruezi?. The land in dispute was developed by the plaintiff?s father while alive and therefore no longer ?ana iruezi?. This is the Awka custom which is hereby pleaded.
7. That under the same native law and custom of Awka people, the entire land part of which is now in dispute is subject to be shared per stripes or per ?Mkpuke?, that is to say, between the two (2) branches of Ogbuefi Nonyeli Nwachukwu?s family. The plaintiff had sold two (2) portions out of the entire land without any reference to the other co-owner of the land (Udoka), remaining the land in dispute.?

?The appellant was substituted vide the order of this Court, for the initial

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appellant ? Joseph C. N. Nwachukwu, who testified as PW1 at the Court below. He testified to the fact that it was the Ana iruezi which he got from his father, in the latter?s life time, that he (PW1) built stores upon in 1988. Furthermore, that he was given his father?s compound ? Ngwulu and Ana Iruezi in his father?s lifetime. Under cross-examination by respondent?s learned counsel, the PW1 at page 131 of the record of appeal, denied the suggestion that a son cannot inherit his father?s Ana iruezi, in the father?s life time. Indeed, he said:
?The Okpala can be given property by his father in his life time. He may also inherit property on the death of his father.?

On her part, PW2 who was a wife to the late Nonyelu Nwachukwu, testified to the fact that her late husband, gave his compound ? Ngwulu and Ana Iruezi to his first son ? the PW1. And under cross-examination at page 138 of the record of appeal, PW2 said that her husband gave the Ngwulu and Ana Iruezi to PW1 at the same time, which was before the civil war.

?PW3 ? a son to the late Nonyelu Nwachukwu testified at

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page 140 of the record of appeal to the fact that before his death, his father gave his compound Ngwulu and Ana Iruezi to the PW1 and that he the PW3 was present when the said gifts were made to the PW1 and that, that was in 1975.

On the other hand, the pieces of evidence by the DW1 and DW2 were to the effect that under the Awka native law and custom, a man cannot give his Ana Iruezi, to his son, in the father?s lifetime. The DW2 was emphatic at page 158 of the record of appeal, that such a thing had never happened in the history of Awka people.

?The learned trial judge, in his evaluation of the pieces of evidence proffered by the PW2 and PW3, in support of thePW1 found that their pieces of evidence were at variance. This is how his Lordship appraised their pieces of evidence vis-a-vis those of DW1 and DW2, at page 199 of the record of appeal, to wit:
?The evidence the plaintiff and his witnesses appear to be at variance as to the time of the alleged grant. Whereas PW2 stated that the grant took place about five years before the commencement of the war, PW3 stated that the grant took place in 1975. Again the PW2 under

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cross-examination admitted that she did not witness the alleged grant. Aside from PW3 who is a brother of full blood to the plaintiff, there is no evidence as to those who witnessed the alleged grant. PW3 was born in 1964. If the alleged grant was made 5 years before the civil war as given in evidence by PW2, it follows that PW3 had not been born at the time of the alleged grant. Even if the grant was made in 1975, PW3 was then only 11 years old. I do not believe him that he witnessed the alleged grant. Like most customary land transactions, to prove grant of land under customary law, there must be evidence that the said grant was made in the presence of witnesses. See Ayinke vs. Ibidunni (1959) 4 FSC 280. DW1 and DW2 gave evidence that a man cannot grant Ana Iruezi to his son in his lifetime. DW2 was emphatic that such a thing has never happened in Awka town. In the light of the evidence of these witnesses, it is my view that plaintiff ought to have led evidence to show that such a grant can be made by an Awka indigene in his lifetime. I therefore hold that the plaintiff failed to prove the alleged grant made by his father to him.?

?Irrefutably, the

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appellant who pleaded and relied on native law and custom for his claim, was duty bound to lead evidence by an independent witness to establish it. Emmanuel Chijioke Olu v. Chief (Dr.) Mkpakaboari Agogo – Abite (2010) 1 SCNJ 322.

I am satisfied with the meticulous appraisal of the pieces of evidence laid before his Lordship, such that I do not find any perversity in it that would warrant my tampering with it. The findings were clearly borne out of the evidence placed before the Court below and not perverse. They are presumed correct. Isah Sokwo v. Joseph Daku Kpongbo (2008) 2 SCNJ 36 at 48; Isah Onu & Ors v. Ibrahim Idu & Ors (2006) 6 SCNJ 23 at 34; Williams v. Johnson (1937) 2 WACA 253.

I am afraid, the finding that the appellant failed to prove the alleged grant of Ana Iruezi to his father ? Joseph C. N. Nwachukwu ? PW1 at the Court below, had removed the rug from under his feet with respect to his reliance on Exhibit B, the vexed Certificate of Occupancy in respect of the land in dispute. For, it is unarguable that if a grant of a parcel of land is not duly established, any certificate of occupancy such as Exhibit B, erected or

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premised on the grant, would perforce be of no probative value. The Certificate of Occupancy that is, Exhibit B, though a prima facie evidence of title to the land to which it relates, can only be of use only if the holder thereof had demonstrated by evidence that he validly and legitimately acquired the land upon which he obtained the certificate of occupancy, which usually gives way to a better title. Jimoh Atanda v. Memudu Iliasu (2012) 12 SCNJ 173, Njoku v. Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 N.W.L.R. (pt. 1011) 239; Mani v. Shanono (2006) 4 N.W.L.R. (pt. 969) 132.

In the end, I resolve issue 01 in favour of the respondent, against the appellant.
Issue 02:
It is the contention of the appellant that he did not submit to any customary arbitration, hence he did not accept the verdict of the arbitrators not to talk of being bound by their decision. He referred to Okereke v. Nwankwo (2003) 9 NWLR (pt. 818) 139 at 152 ? 153; Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; Egesimba v. Onwuzurike (2002) 15 NWLR (pt. 791) 466 at 505. He furthermore contended that the decision of the arbitrators, not being a

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Court judgment, still needed the blessing of the High Court in an enforcement procedure to make it the judgment of a Court before the said arbitral award can create estoppel in favour of the respondent. He referred to Okpurunu v. Okpokan (1988) 4 NWLR (pt. 90) 55; Joseph Onwu v. Ezekiel Nka (1996) 7 NWLR (pt. 458) 17; Egesimba v. Onwuzurike (2002) FWLR (pt. 128) 1386) at 1435. He insisted that the respondent did not plead and prove all the ingredients of the alleged customary arbitration to estop the appellant from maintaining his action.

In his response, the respondent?s learned counsel submitted that the respondent at paragraphs 12, 13, 14, 15, 16 and 22 of her amended statement of defence copiously pleaded the customary arbitration by the Umuonachi larger family. And that the pieces of evidence proffered by the DW1 and DW2 were in consonance with the averments of the respondent in the amended statement of defence, aforesaid. He also referred to the pieces of evidence by the PW2 to the effect that Udoka Nonyelu took the plaintiff to Umuonachi family in respect of the land in dispute. He submitted that the pieces of evidence by the PW2 in support of

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the respondent on this point, adds to the respondent?s assertion in respect the question of the customary arbitration by Umuonachi larger family, in this matter. He referred to Ajao v. Alao (1986) 5 NWLR (pt. 45) 802; Piaro v. Tenalo & Anor (1976) 1 A.N.R. 299. He insisted that the decision of the customary arbitrators is binding on the appellant, placing reliance on Ndah v. Chionuokwu (2006) 17 NWLR (pt. 1007) 74.
Resolution:
The Nigerian law and jurisprudence clearly recognises and accepts the validity and bindingness/efficacy of arbitrations under customary law, if it is established that
(i) Both parties submitted to it;
(ii) The parties accepted the terms of the arbitration and
(iii) They agreed to be bound by the decision of the arbitrators.
Therefore, once pronounced, the decision or arbitral award cannot be resiled from by any of the parties thereto who had agreed to the arbitration and participated in it. Nwankpa v. Nworgu (2006) 2 NWLR (pt. 964) 251; Ndah v. Chianuokwu (2006) 17 NWLR (pt. 1007) 74; Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; Oparaji v. Ohanu (1999) 9 NWLR (pt. 618) 290 (SC); Onwu v. Nka (1996)

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7 NWLR (pt. 458) 1 at 17 (SC); Ozo Ejiofor Oline & Ors v. Jacob Obodo & Ors (1958) NLR 298 (SC); Opanin Kwasi & Ors v. Joseph Larbi (1950) 13 WACA 76 (PC); Equere Inyang v. Simeon Essien (1957) 2 FSC 39.
Indeed, the efficacy of a customary arbitral award or decision is that it has the same authority as that of any judicial tribunal and it without more, binds the parties thereto. Idika & Ors v. Erisi & Ors (1988) 1 NSCC 977 at 986; (1988) 2 NWLR (pt. 78) 563.

In the instant case, the learned trial judge, upon a dutiful evaluation of the pieces of evidence proffered by the respondent?s witnesses ? DW1 and DW2 vis-a-vis those of the PW2 which added prosperity to the respondent?s assertion as against that of the appellant?s PW1 and PW3 found that there was a customary arbitration conducted by the Umuonachi larger family in respect of the report to it by Udoka Nonyelu against the appellant?s father ? PW1, bordering on the land in dispute. His Lordship dealt with and critically analysed the pieces of evidence by the PW1, PW2 and PW3 vis-a-vis those of DW1 and DW2 at pages 192 ? 197 of the record

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of appeal, before arriving at the conclusion that the arbitration conducted by the Umuonachi larger family in respect of the report of Udoka Nonyelu against the PW1, was attended by the latter who according to DW1 and DW2 thanked the arbitrators at the end of their assignment and decision and even took steps of paying N1m in favour of his younger brother Udoka Nonyelu as his own compensation for the earlier sale of some portions of their father?s land, in which Udoka was not involved nor paid for. I am unable to impeach the findings of the learned trial judge in respect of the customary arbitration and its bindingness on the appellant. I am satisfied that the decision of the customary arbitration effectively created an estoppel against the appellant?s action.

?The rationale for the doctrine of estoppel is encapsulated in Section 169 of Evidence Act No. 18 of 2011 which is in pari materia with Section 151 of the Evidence Act, Cap. E. 14 Laws of the Federation, 2004 which provides, inter alia:
?When one person has, by his declaration, act or commission intentionally caused or permitted another person to believe a thing to be true and

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to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person?s representative in interest, to deny the truth of that thing.?
Hence, in Fred Egbe v. Hon. Justice J. A. Adefarasin (1987) All NLR 1, Oputa, JSC stated succinctly that:
?It is also to be noted that estoppel is but part of the law of evidence. It is no other than a bar to testimony and its sole office is either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail: estoppel is thus a mine layer or mine sweeper. It is never a capital unit.?
Put differently, estoppel can be employed by a defendant as a shield against any future litigation on the same subject matter and at an appropriate situation, estoppel can be employed by a plaintiff as a sword. Friday Abalogu v. The Shell Petroleum Dev. Co. of Nigeria (2003) 13 NWLR (pt. 837) 308 at 334 ? 335.

In the instant case, the arbitral award/decision of the Umuonachi larger family, resolved the question of the land in

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dispute between the appellant and Udoka Nonyelu as their family land. Therefore, the appellant cannot be permitted by law to approbate and reprobate with respect to the land in dispute. Therefore, I resolve issue 02 partially against the appellant with respect to Udoka?s interest in the land in dispute, only.

I shall take appellant?s issues 3 and 4 with respondent?s issue 3 together. The contention of the appellant is that he never executed an irrevocable power of attorney Exhibit Q with respect to the first sale of N6.5m, to the respondent. I do not think that the sale of the first parcel of land to the respondent by the appellant is of much significance in this matter. What to my mind, is the real issue is not the execution of the power of Attorney ? Exhibit P, which related to the payment of N6.5m by the respondent to the appellant, which the appellant does not deny. The appellant contends that he did not sell the land in dispute to the respondent, so he did not execute the power of attorney ? Exhibit Q.

Now, what is the effect of a power of attorney in the first place. The law is well settled to the effect that a

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power of attorney is merely a warranty to the donee to exercise certain powers on behalf of the donor thereof. It does not transfer interest in the land and alienates the land in favour of the donee automatically. See Ude v. Nwara (1993) LPELR ? 3289 (SC); (1993) 1 NSCC 236; (1993) 2 NWLR (pt. 278) 638; where it was succinctly stated that:
?A power of attorney merely warrants and authorises the donee to do certain acts in the stead of the donor and so it is not an instrument which confers, transfers, limits, charges or alienates any title to the donee, rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorises the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far as it is categorised as a document of delegation: It is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is an alienation. There is no evidence in this case that that stage had

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been reached?- per Nnaemeka ? Agu JSC.

The law is clearly well settled to the effect that a counter-claim is a separate and independent action. Therefore it must be proved based on the pleadings supporting it, just as the main claim/action. Ogli Oko Memorial Farms Ltd & Anor v. Nigerian Agricultural & Co-operative Bank Ltd & Anor (2008) 4 SCNJ 436.

In her counter-claim at page 80 of the record of appeal, the respondent averred at paragraph 34 thereof, to wit:
?34. The defendant will at trial rely on facts pleaded in paragraphs 1 ? 32 of its amended statement of defence to prove it (sic)(its) counter ?claim.?

?Paragraph 25 of the amended statement of defence is especially relevant to the counter-claim. From the averment thereof, the respondent asserted that the appellant ?accepted to sell the land in dispute to the defendant and in fact did sell the said land to it vide the deed (power of attorney) of 24/12/02 …..? And at paragraph 27 of the amended statement of defence, the respondent averred that:
?….. The said N1,000,000.00 (One Million naira) which the plaintiff

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received from the defendant as purchase price in respect of the land in dispute was refunded by the plaintiff to Udoka through the defendant ….?

?I understand from the quoted excerpts above, that is, from paragraphs 24 and 27 of the amended statement of defence that the appellant had sold the land in dispute to the respondent upon the payment of the purchase price of N1m by the respondent to the appellant and for which a power of attorney was executed on 24/12/02. Furthermore, it is my understanding too, that the appellant later returned/refunded the N1m which was paid to him by the respondent as the purchase price for the land in dispute, to the respondent, who in turn paid the said N1m to Udoka, for the land in dispute. That being the situation of things, it seems to me that the power of attorney ? Exhibit Q, executed between the appellant and the respondent on 24/12/02 in respect of the land in dispute, paled into insignificance. That is, since the purchase price of N1m to the appellant, for the land in dispute, was refunded to the respondent, there was no longer any consideration that passed between the appellant and the respondent, for

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the purchase of the land in dispute.

The learned trial judge in his judgment at page 205 of the record of appeal, while considering the respondent?s counter-claim, said:
?There is evidence before me that there was a transaction between the plaintiff and the defendant in respect of the land now in dispute and that the plaintiff was paid the sum of 1,000,000. There is also evidence that the defendant renegotiated and paid another N1,000,000 to Udoka for the sale of the land in dispute. I have also held that there was a valid customary arbitration between Udoka plaintiff?s half brother and the plaintiff. The effect of the said customary arbitration is that title to the land in dispute is now vested on Udoka who resold the said land to the defendant.?

?I am afraid, the finding by the learned trial judge to the effect that there is evidence that the respondent ?renegotiated and paid another N1,000,000 to Udoka for the sale of the land in dispute?, was not contained in any averment of the respondent in her amended statement of defence. Therefore, DW4?s evidence to that effect certainly went to no issue and the

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same is accordingly expunged as being inadmissible. Furthermore, I am unable to agree with his Lordship, when he concluded that:
?The effect of the said customary arbitration is that title to the land in dispute is now vested on Udoka who resold the said land to the defendant.?

In his evidence-in-chief at page 147 of the record of appeal, the DW1 who was a member of the Umuonachi family arbitration panel, testified to the fact that amongst their decisions on the dispute between the plaintiff and the half brother ? Udoka, was that:
?i.Mr. Joseph Nwachukwu should regard the land now in dispute not as Ana Iru Ezi but as family property.?

?On that premise, it cannot be said that the customary arbitration panel awarded the land in dispute to Udoka. No. The land in dispute, was adjudged to be family property and not Udoka?s property only/exclusively. Therefore, the said Udoka had no power to re sell the land in dispute to the respondent. In any event, the respondent never averred in her pleading that Udoka resold the land in dispute to her. All that the DW4 said with respect to the land in dispute as regards

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Udoka was that the respondent upon payment of an extra N1,000,000.00 to Udoka, ?demanded that Udoka should execute another irrevocable power of attorney in favour of the bank to be witnessed by the principal member of the family. The bank agreed to pay additional N1,000,000.00 because there was a threat that Udoka could sell the land to any person of his choice.? The question that props up for an answer which is unavailable, is did Udoka execute another irrevocable power of attorney, for what ever it was worth, in favour of the respondent as she demanded? And could Udoka have validly done that in respect of a family property? If the answer is in the negative, as it seems, then how could the respondent be declared to be entitled to the statutory right of occupancy over the land in dispute.

It is instructive, to restate the law that for a valid sale of land, under customary law, the names of the witnesses who witnessed the payment of the sale and who also witnessed the delivery of possession of the disputed land to the purchaser, must be pleaded by the claimant. Chief Adefioye Adedeji v. J. O. Oloso & Anor (2007) 1 SCNJ 397. Furthermore, it

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is the purchase receipt of the land and coupled with the delivery of possession to the purchaser which confers an equitable interest on the purchaser. Godwin Nsiegbe & Anor v. Obinna Mgbemena & Anor (2007) 4 SCNJ 359.

In the instant case, it is manifestly clear that none of the incidents of a valid sale of land under customary law, was proved by the respondent, in respect of the land in dispute.

For all I have been saying, I am satisfied that issues 3 and 4 be resolved and they are accordingly resolved in favour of the appellant.

In the end, the appeal with respect to the main claim is dismissed whilst the appeal with respect to the counter-claim, succeeded. Hence, the appeal is allowed, in part, accordingly.

The judgment of M. I. Onochie, J., in re Suit No. A/18/2005 delivered at the Anambra State High Court of Justice, Awka on 19th January, 2007, in respect of the main claim is affirmed. However, the same judgment in respect of the respondent?s counter claim, is set aside.

Each side to bear own costs.

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Other Citations: (2016)LCN/8944(CA)