RAPHAEL & ORS v. UKACHUKWU & ORS

CITATION: (2018) LPELR-43962(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON TUESDAY, 13TH FEBRUARY, 2018Suit No: CA/E/150/2014

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

Between1. RAPHAEL2. JOHN ULASI3. CHRISTOPHER ULASI4. EUGENE ULASI(For themselves and on behalf of other members ofOnochie family of Edoji Uruaga, Nnewi)

- Appellant(s)

And1. HYGENTH UKACHUKWU2. JOSEPH UDOYE3. GODWIN GINIKANDU4. JOSEPH NWAGBO5. EJIDIKE NWAGBO6. CHRISTIAN UKACHUKWU7. EMMANUEL UKACHUKWU8. MRS TOY AGBASI9. BERTRAM AZUBOGU OBI10. CHUKWUDI UDEZE EKWENIKE

- Respondent(s)

RATIO DECIDENDI

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1. CUSTOMARY LAW - FORFEITURE OFCUSTOMARY TENANCY: Effect of denial of alandlord's title by a customary tenant"But in cases where the tenants turn round notonly to dispute the over lordship of the titleholders but went out of their way to claim title,they forfeit their right as tenants and theirpossession of the land. In other words, the realbasis of the misconduct or misbehavior whichrenders the tenancy liable to forfeiture is thechallenge to the title of the overlord either byalienation of part of the land or refusal to payattribute. See MAKINDE v. AKINWALE (2000) 1SC 89 and ONIAH v. ONYIA (1989) 2 SC (Pt.1)69 at 84."Per SHUAIBU, J.C.A. (Pp. 18-19, Paras.F-B) - read in context

2. CUSTOMARY LAW - CUSTOMARY LANDTENURE SYSTEM: Methods of provingcustomary ownership of land"In the case of ONWUKA v. EDIALA (1989) 1 SC(Pt.11) 1 at 17, the apex Court held that theaccepted methods of proving customaryownership of land are: -(1) Traditional History of ownership,(2) Where the evidence in (1) above is found tobe inconclusive, then proof of acts ofoccupation and use of the land over aconsiderable long period without challenge ordisturbance from any other claimant, and(3) Where (2) above fails, proof of exclusivepossession without permission."Per SHUAIBU,J.C.A. (Pp. 20-21, Paras. F-B) - read in context

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3. EVIDENCE - ESTOPPEL: Nature and effect ofestoppel"By virtue of Section 169 of the Evidence Act,2011 a party who has, either by his declarationof act, caused or permitted another to believea thing to be true and to act upon such belief,neither he nor his representative in interestshall be allowed in any proceeding betweenhimself and such person or such person'srepresentative in interest, to deny the truth ofthat thing. In essence, such a person mustaccept the new legal relationship as modifiedby his own words or action whether or not it issupported by any point of law, or by anyconsideration but only by his word orconduct."Per SHUAIBU, J.C.A. (P. 7, Paras. C-F) -read in context

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4. E V I D E N C E - P R O O F O FCUSTOM/CUSTOMARY LAW: Whether hewho asserts the existence of a custom mustprove same"Generally, the burden of proof in a civil matteris on the party who alleges the affirmative. Andthat party could be the plaintiff or thedefendant, depending on the state of thepleadings. While the first burden is on the partywho alleges the affirmative in the pleadings,the second burden, the evidential burden, lieson the adverse party to prove the negative.Consequently, a party who alleges theexistence of customary law must prove thatcustomary law because the law of Evidenceregards it as a fact unless it can be noticedjudicially. See ONYENGE v. EBERE also reportedin (2004) 6 - 7 SC 52 at 60."Per SHUAIBU, J.C.A.(P. 8, Paras. B-E) - read in context

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5. E V I D E N C E - P R O O F O FCUSTOM/CUSTOMARY LAW: Whether hewho asserts the existence of a custom mustprove same"From the above, it was the appellants whoalleged the existence of the customary law vis-a-vis the customary arbitrations and therefore,the burden lies on the appellants because theirexistence cannot be judicially noticed. A partywho alleges that there was arbitration mustlead credible evidence to show that thearbitration which he claimed was held andsame was binding on the adverse party. SeeEGESIMBA v. ONUZURUIKE (2002) 9 - 10 SC 1at 55 and OHIAERI v. AKABUEZE (1992) 2NWLR (Pt. 221) 1. Also in ESUWOYE v. BOSERE(2017) 1 NWLR (Pt.1546) 256. The SupremeCourt has held that customary law is unwrittenand is a question of fact to be proved byevidence except it is of such notoriety and hasbeen regularly followed by the Courts thatjudicial notice would be taken of it withoutevidence required in proof thereof."PerSHUAIBU, J.C.A. (Pp. 14-15, Paras. E-C) - read incontext

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6. EVIDENCE - ESTOPPEL: What a party relyingon the decision of the customary arbitrators asan estoppel must adduce"It is also settled that before applying thedecision of a customary arbitration as anestoppel the party alleging arbitration mustshow that parties had voluntarily submitted tothe arbitration, consciously indicted theirwillingness after the pronouncement of thedecision, unequivocally accepted the award.While it may be sufficient to simply plead thefact of a previous judgment by a regular Courtas the basis of an estoppel, merely pleadingsuch a decision in respect of a customaryarbitration without pleading the ingredientsthat project it as creating estoppel will not beproper pleading because not every decision ofa customary arbitration, unlike that of a regularCourt, can create an estoppel. In other words,the party alleging customary arbitration willhave to adduce credible evidence of therelevant ingredients necessary to sustain thematerial plea of estoppel by customaryarbitration. The appellants having merely pleadcustomary arbitrations in paragraph (t) of thestatement of claim without pleading theingredients that project it as creating estoppelis not enough to sustain a customaryarbitration."Per SHUAIBU, J.C.A. (Pp. 15-16,Paras. D-C) - read in context

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7. EVIDENCE - BURDEN OF PROOF/ONUS OFPROOF: Whether a plaintiff can rely on theweakness of the defendant's case to prove hisown case in action for declaration of title"In a claim for a declaration of title, the onus isno doubt on the plaintiffs to satisfy the Courton evidence produced by them that they areentitled to the declaration sought. This meansthat they must rely on the strength of theircase and not on the weakness of thedefendants' case and if this onus is notdischarged, the weakness of the defendants'case will not help them and the properjudgment will be for the defendants' exceptwhere the defendant's case supports that ofthe plaintiff and contains evidence on whichthe plaintiff may rely on, the plaintiff is fullyentitled to make use of such evidence."PerSHUAIBU, J.C.A. (P. 18, Paras. C-F) - read incontext

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8. E V I D E N C E - T R A D I T I O N A LEVIDENCE/HISTORY: What is required of aperson relying on evidence of traditionalhistory in an action for declaration of title toland"It is settled law that a plaintiff who seeks titleto land and relies on traditional history must, tosucceed, plead and prove facts as to:-(a) Who founded the land,(b) How the land was founded and(c) Particulars of the ancestors through whomhe claims."Per SHUAIBU, J.C.A. (P. 20, Paras. B-D) - read in context

9. EVIDENCE - PROOF OF TITLE TO LAND:Whether evidence of traditional history is oneof the accepted methods of establishing title toland"Thus, traditional evidence which is notcontradicted and found by the Court to becogent can support a claim for declaration oftitle as traditional evidence is one of themethods of proving title to land. See IDUNDUN& ORS v. OKUMAGBA & ORS (1976) NSCC 445,MAGAJI v. CADBURY (NIG) LTD (1985) 2 NWLR(Pt.7) 393, AKANBI v. SALAWU (Supra) andEWO v. ANI (2004) 1 SC (Pt.11) 115."PerSHUAIBU, J.C.A. (P. 20, Paras. D-F) - read incontext

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10. E V I D E N C E - T R A D I T I O N A LEVIDENCE/HISTORY: How conflicts intraditional evidence of parties are resolved bycourt"Where the histories offered by both sides areplaced side by side weighed and found to beequally plausible or when there is difficulty ofresolving which is correct, then the question ofrecent acts of ownership shall becomerelevant. Thus, the Court is bound to firstdecide which of the stories is more plausible orprobable by reference to all surrounding factsand the circumstances and if both are equallyplausible and probable, then by reference torecent acts of ownership as established byevidence. See OGUN v. AKINYELU (2004) 1112SC 4 AT 18."Per SHUAIBU, J.C.A. (P. 22, Paras.B-E) - read in context

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MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the decision

of the High Court of Anambra State sitting at Nnewi

delivered on the 6th day of November, 2013. The appellants

as claimants before the lower Court claimed against the

respondents jointly and severally as follows:

(a) A declaration that the 1st - 7th Defendants being

customary tenants of the plaintiff have no legal capacity to

alienate, convey or sell any portions of lands the subject of

their customary tenancies situate at Edoji, Uruagu, Nnewi

whose annual rental value is N500, 000 (Five Hundred

Naira).

(b) A declaration that the 1st - 7th Defendants conducts of

challenging the plaintiffs and refusal to pay annual tribute

to the plaintiffs in respect of the land subject of customary

tenancies amounts to grievous customary misconduct the

penalty of which is complete forfeiture.

(c) An order of forfeiture against the 1st - 7th Defendant in

respect of the said lands.

(d) An injunction restraining the 1st - 7th Defendants from

further alienating, selling or conveying any portions of the

said lands to any person or group

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of persons.

(e) An order of Court setting aside the purported sales, or

conveyances of portions of the said lands by the 1st - 7th

Defendants 9th to 10th Defendants.

(f) Injunction restraining the 8th to the 10th Defendants

from further trespass into the said lands purportedly

conveyed to them by the 1st - 8th Defendants at Edoji

Uruagu, Nnewi.

(g) N20,000,000.00 (Twenty Million Naira) general

damages for trespass against the Defendants.

Parties filed and exchanged pleadings. At the hearing both

parties called witnesses and at the conclusion of which

their counsel filed and adopted their respective written

addresses. In a reserved and considered judgment

delivered on 6/11/2013, learned trial judge dismissed the

plaintiffs' claim its entirety.

Dissatisfied with the judgment, appellants appealed to this

Court via a notice of appeal filed on 15/01/2014 containing

eleven grounds of appeal at pages 300 - 309 of the record

of this appeal.

Distilled from the said eleven grounds of appeal, learned

Senior Counsel for the appellants O . A. Obianwu, Esq.

formulated four issues for the determination of this appeal

as follows:

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1. Was the learned trial judge correct in holding that

the decision of the customary arbitration (EXHIBITS

A & B) initiated by the Dependents but which

terminated in favour of the plaintiffs did not

constitute estoppels against the Defendants (Distilled

from ground 2).

2. Was the learned trial judge correct to have

dismissed the claimants' case (Distilled from grounds

1, 3, 4, 5, 6, 7, 8 and 9).

3. Was the learned trial judge correct in his

conclusion that the failure of the plaintiffs to file a

reply to the statement of defence amounted to an

admission of the new facts pleaded in the statement

of defence? (Distilled from ground 10).

4. Was the learned trial judge correct in declaring the

Defendants owners of the land in dispute in the

absence of a counter-claim. (Distilled from ground

11).

The respondents also formulated four issues for

determination thus: -

1. Whether having regard to the pleadings and

evidence before the Court. Exhibits A & B constitute

estoppel against the Respondents?

2. Whether the judgment is against the weight of

evidence?

3. Whether the failure of the plaintiffs to file reply to

the statement of

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defence amounted to admission of the new facts

raised therein having regard to the facts and

circumstances of the case.

4. Whether the finding by the trial Court that the

defendants are the owner of the land in dispute is on

the facts and circumstances of this case a grant of a

relief not sought in the suit in their favour.

The two sets of issues are seemingly the same but the first

two issues formulated for the respondents sufficiently

addresses the controversy leading to this appeal. In other

words, the said two issues are wide enough to subsumes all

the remaining issues formulated by both the parties. I shall

therefore adopt the said issues in determining this appeal.

For the sake of clarity the said issues are reproduced

hereunder as follows:

1. Whether having regard to the pleadings and

evidence before the Court, Exhibits A & B constituted

estoppel against the respondents.

2. Whether the judgment is against the weight of

evidence.

On the binding nature of the customary arbitrations

(Exhibits A & B), learned appellants' counsel contended

that the learned trial judge misconceived the law in

rejecting the customary

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arbitrations on the ground that the ingredients of the said

customary arbitrations were not pleaded and proved. He

submitted that where two parties to a dispute voluntarily

submit the issue in controversy between them to an

arbitration according to customary law and agreed

expressly or by implication that the decision of such

arbitration would be accepted as final and binding; then it

would no longer be open to either party to back out or

resile from the arbitration reached upon. Thus, the

respondents having took the matter to arbitration, cannot

be allowed to turn volte face and back out from their

voluntary submission to the two customary bodies simply

because the result did not favour them. He referred to

ONYENGE v. EBERE (2004) 13 NWLR (Pt.880) 20 at

40, UNILORIN V. ODULEYE (2007) ALL FWLR (Pt.

371) 165 and AGIDIGBI v. AGIDIGBI (1996) 6 SCNJ

105.

Still in argument, learned appellants' counsel submitted

that Exhibits A & B having been referred in the pleadings,

formed part of the plaintiffs' pleadings and therefore the

lower Court had a duty to give the said Exhibits their true

legal effect. He relied on LAWAL v. G.B. OLLIVANT

(NIG) LTD

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(1972) ALL NLR 211.

He submitted further that the question on whether there

was evidence of the ingredients of a valid customary

arbitration was suo motu raised and resolved against the

appellants without any input from the parties and to the

extent, the decision of the lower Court is unsupportable by

the facts and the applicable law and that same is

prejudicial to the appellants. He referred to the

REGISTERED TRUSTEES OF AMORC v. AWONIYI

(1994) 7 NWLR (Pt. 355) 154 and OJO OSAGIE v.

ADONRI (1994) 6 NWLR (Pt. 349) 131.

On the part of the respondents, learned counsel submitted

that it is not every arbitration that is binding and capable of

operating as Estoppel. And for a customary arbitration to

operate as estoppel, the appellants must plead and lead

evidence of the ingredients of customary arbitration. In

effect, customary arbitration cannot be inferred or

assumed.

Still in argument, learned counsel submitted that for a

decision of arbitrators to have a binding effect, the

following must be satisfied:-

(a) Both parties must have submitted to the arbitration;

(b) The parties must have accepted the terms of the

arbitration, and

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(c) They must have agreed to be bound by the decisions.

He referred to EGESIMBA v. ONUZURUIKE (2002) 15

NWLR (Pt. 791) 446, OKEREKE v. NWANKWO (2003)

9 NWLR (Pt. 826) 613 and AGU v. IKEWIBE (1991) 3

NWLR (Pt.180) 385.

Learned counsel submitted further that Exhibits A & B

were merely dumped without leading evidence of the

ingredient of a valid customary arbitration which they set

out to establish. Thus, the lower Court was justified in

holding that Exhibits A & B did not create estopped against

the respondents.

By virtue of Section 169 of the Evidence Act, 2011 a party

who has, either by his declaration of act, caused or

permitted another to believe a thing to be true and to act

upon such belief, neither he nor his representative in

interest shall be allowed in any proceeding between himself

and such person or such person's representative in interest,

to deny the truth of that thing. In essence, such a person

must accept the new legal relationship as modified by his

own words or action whether or not it is supported by any

point of law, or by any consideration but only by his word

or conduct.

The borne of contention in this appeal

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is whether the customary arbitrations, Exhibits A & B binds

the parties and that the respondents are estopped from

resiling or backing out from the decisions of the arbitrators

in the said Exhibits A & B.

Generally, the burden of proof in a civil matter is on the

party who alleges the affirmative. And that party could be

the plaintiff or the defendant, depending on the state of the

pleadings. While the first burden is on the party who

alleges the affirmative in the pleadings, the second burden,

the evidential burden, lies on the adverse party to prove the

negative. Consequently, a party who alleges the existence

of customary law must prove that customary law because

the law of Evidence regards it as a fact unless it can be

noticed judicially. See ONYENGE v. EBERE also

reported in (2004) 6 - 7 SC 52 at 60.

In the instant case, the appellants as plaintiffs claimed that

they were members of Onochie Dim Onochie family in Dim

Melugini larger family in Edoji Uruagu Nnewi wherein Dim

Melugini, the plaintiffs' fore bear got all the land

comprising Dim Melugini section of Edoji including the land

in dispute. They also claimed that the 1st - 7th

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Defendants' grandfather Ezennia and his children fled Ichi

their ancestral home and became Eze Anyim's domestics. In

effect, they were quartered in the Obi Eze Anyim and when

they increased in numbers, Eze anyim granted them

different residential lands including the land in dispute.

Upon settlement, Ezennia was made to pay tribute of four

yams, one gallon of palm-wine four kolanuts on yearly

basis. There was also another tribute which consisted in

delivering a portion of every animal slaughtered by the 1st -

7th Defendants' grandfather to his overload. In paragraphs

(h) - (t) of the statement of claim, the plaintiffs averred as

follows:

(h) Consequently, when Ezeikwubulu died, it was Nnakude

the first son of Ezennia that was the chief mourner as his

overlord.

(i) Ezennia faithfully and religiously paid those yearly

tributes throughout his life time to Ezeanyim.

(j) After Ezennia's death, Ezeikwubulu continued to pay

tribute to Ezeanyim until Ezeanyinis death, Ezennia was the

same person as Ukachukwu.

(k) Ezeanyim begat Ume Nnkude (first son) Ebigligbo and

Anachebe. When Ezeanyi died, his son Nnakude continued

to receive the tribute until his

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death.

(l) Ume Nnakude begat Micheal (first son) (John Ulasi 2nd

plaintiff) Christopher Ulasi (third plaintiff) David Ulasi,

Eugene Ulasi (4th plaintiff).

(m) The 1st Defendant paid tribute after the death of his

father to the said Micheal Ulasi son of Ume Nnakude.

(n) Micheal Ulasi begat innocent late (first son) Raphael

Ulasi Chukwuma as second son.

(o) The 1st Defendant after the death of Micheal following

the young age of the 1st plaintiff (about ten years) the first

Defendant ceased to pay the tribute rebelliously.

(p) The 1st - 7th Defendants began to assert rights

inconsistent with those of their over-lords.

(q) In 1996, the plaintiffs briefed a counsel who served

Recovery processes on the 1st Defendant who was planning

secretly to sell some lands of the plaintiffs. The family

actually arbitrated over the matter under the chairmanship

of Hon. Emeka Obi which found against the 1st Defendant

and restated his customary tenancy, warned him never to

sell any lands or would forfeit all the lands he was having in

Edoji Uruagu Nnewi. Charles Okeke was the vice chairman

of the said family meeting. The family secretary

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then Jonathan Okongwu also a migrant's descendant from

Ojoto, assisted the first Defendant to falsify family minutes.

(r) Charles Okeke - led family executive committee

arbitrated over the disputes that arose when the 1st

Defendant, continued to sell plaintiff family lands. Both

parties presented their respective cases and the family

ruled once more warning the 1st Defendant that as a

descendant of a customary tenant/stranger element from

Ichi, he should desist from selling further lands, he should

refund all expenses incurred by the plaintiffs in the police

action which first Defendant initiated and abate his crime

of reporting the plaintiffs to Ogwugwu - Isiula shrine in

Okija.

(s) About 2003 when the plaintiffs wanted to sell a piece of

land, the 1st - 7th Defendants knowing fully well that, it

was the plaintiffs' family that owned the land, raised no

objection and confessed that it was the plaintiffs that

owned all the lands thereon, no one sought 1st - 7th

Defendants' consent for access road, not entreated for

favours from them nor give him N500 or a bottle of drink

over-lords, the penalty for such misconduct is total

forfeiture of all the

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land subject of customary tenancies held by the 1st - 7th

Defendants and those to who they purported to convey

lands to got nothing whatsoever from such void

transactions.

(t) Obi uruagu and Isi Edigi arbitrated over this dispute and

found for the plaintiffs their verdict shall be found upon."]

The Defendants denied the above claim and insisted that

their forefathers have from time beyond human memory

been in peaceful and continuous possession of the land in

dispute thereby exercising acts of ownership without let or

hindrance. That Ezeana acquired his land by deforestation

and not by gift from the plaintiffs' ancestor. He Ezeana was

not a contemporary of Ezeana and would not have paid

tribute to him. The 1st - 7th Defendants also denied the

purported arbitrations in paragraphs 43 - 45 of the

statement of defence thus:-

43. The Isi Obi Edoji and Obi Uruagu Nnewi never

arbitrated in to matter and thus never delivered any

decision. The purported decision was procured by John Obi

by inducing the Isi Obi to give him a fake document in

which they anchor their case. The Defendants did not

appear before the Isi Obi Edoji at any time in respect of this

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matter and they did not deliver and decision. When the

Defendants became aware of the documents masquerading

as decision of the Isi Obi Edoji, the 1st - 7th Defendants

through their Solicitors wrote them a strong worded letter

condemning their despicable conduct in the matter. The

letter will be relied upon at the trial.

44. The Obi of Uruagu Nnewi was merely informed that

John Obi procured police men to arrest and detain the

Defendant at Police Area Command Nnewi, State C.I.D, A

WKA Force C.I.D Alagbo, Lagos. He invited the parties to

know what exactly happened and to settle the matter. Apart

from narrating to the Obi of Uruagu Nnewi how John Obi

has been using police to arrest and detain members of the

family, he disrupted the family meeting and thereafter

claimed that those opposed to him including the then

chairman were planning to kill him; there was no hearing

on the issue of ownership of the lands in dispute in this

suit. At the time of his purported arbitration, this suit was

already pending in the High Court as well as three other

civil matters and two criminal cases in the Chief Magistrate

Court, Nnewi.

45. The said Obi Uruagu, Nnewi

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did not seek or get the approval of either the High Court or

the Chief Magistrate to settle the matter and none was

granted. Even if the settlement is accepted by the parties.

Where settlement fails he informs the court accordingly

without usurping the judicial powers of the Court by

making far reaching, self serving and unreasonable

findings that are not supported by empherical evidence.

The purported decision of Uruagu Nnewi does not amount

to customary arbitration but deliberate attempt to bias the

mind of the Court by making of prejudicial statements

masquerading as facts. The purported decision of Obi

Uruagu was not pronounced in the presence of the

Defendants. They saw it for the first time from the

plaintiffs' depositions. The 6th - 10th Defendants did not

appear at any time before the said Obi Uruagu Nnewi and

thus did not take part in the purported and stage managed

arbitration."

From the above, it was the appellants who alleged the

existence of the customary law vis-a-vis the customary

arbitrations and therefore, the burden lies on the

appellants because their existence cannot be judicially

noticed. A party who alleges that there was arbitration

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must lead credible evidence to show that the arbitration

which he claimed was held and same was binding on the

adverse party. See EGESIMBA v. ONUZURUIKE (2002)

9 - 10 SC 1 at 55 and OHIAERI v. AKABEZE (1992) 2

NWLR (Pt. 221) 1. Also in ESUWOYE v. BOSERE

(2017) 1 NWLR (Pt.1546) 256. The Supreme Court has

held that customary law is unwritten and is a question of

fact to be proved by evidence except it is of such notoriety

and has been regularly followed by the Courts that judicial

notice would be taken of it without evidence required in

proof thereof.

It is also settled that before applying the decision of a

customary arbitration as an estoppel the party alleging

arbitration must show that parties had voluntarily

submitted to the arbitration, consciously indicted their

willingness after the pronouncement of the decision,

unequivocally accepted the award. While it may be

sufficient to simply plead the fact of a previous judgment by

a regular Court as the basis of an estoppel, merely pleading

such a decision in respect of a customary arbitration

without pleading the ingredients that project it as creating

estoppel will not be proper pleading because not

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every decision of a customary arbitration, unlike that of a

regular Court, can create an estoppel. In other words, the

party alleging customary arbitration will have to adduce

credible evidence of the relevant ingredients necessary to

sustain the material plea of estoppel by customary

arbitration. The appellants having merely plead customary

arbitrations in paragraph (t) of the statement of claim

without pleading the ingredients that project it as creating

estoppel is not enough to sustain a customary arbitration.

Issue No. 1 is resolved against the appellants.

Respecting issue No. 2, learned appellants' counsel

contended that the claim of the appellants at the lower

Court was not for declaration of title to the lands in dispute

but one for a declaration of the status of the Defendants as

customary tenants vis-a-vis the land in dispute. Thus, the

trial judge was in grave error in casting upon the plaintiffs

(now appellants) the burden of first establishing their title

to the lands and then subsequently prove the customary

tenancy of the Defendants. He relied on the authorities in

the cases of DADA v. BANKOLE (2008) 5 NWLR

(Pt.1079) 26 and BABATUNDE v.

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AKINBADE (2006) 6 NWLR (Pt. 975) 44 at 61 in

submitting that the main incident of a customary tenancy is

that the customary tenant pays tribute to the overlord and

he enjoys his holding in perpetuity subject to good

behavior. That had the trial Court took into account of the

plaintiffs' evidence that their foremost ancestor Edoji

deforested the parcels of land in dispute as well as the

intervening owners until they got to Ezeayini who granted

same to the 1st - 7th Defendants' forebears on payment of

agreed tribute, the trial Court would have come to the

conclusion that the plaintiffs have established their claim

that the Defendants were their tenants. He submitted

further that the trial judge suo motu raised and resolved

the issue of who could properly bring the action against the

drift of the pleadings and evidence before him that the

descendants of Ezeana do not pay tribute. Thus, the failure

to consider the totality of the evidence inclusive of Exhibits

A & B has caused a miscarriage of justice concluded

learned counsel for the appellants.

Learned counsel for the respondents submitted that the

question of customary tenancy and payment of tribute by

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a defendant to a plaintiff cannot arise without the plaintiff

first establishing his ownership of the land. He referred to

AKANBI v. SALAWU (2003) 13 NWLR (Pt.838) 65 to

the effect that there can be no question of customary

tenancy without the issue of title settled.

I have right from the onset reproduced the claims of the

plaintiffs before the lower Court which can best be

described as a hybrid comprising declaration, forfeiture,

injunction and damages for trespass. In a claim for a

declaration of title, the onus is no doubt on the plaintiffs to

satisfy the Court on evidence produced by them that they

are entitled to the declaration sought. This means that they

must rely on the strength of their case and not on the

weakness of the defendants' case and if this onus is not

discharged, the weakness of the defendants' case will not

help them and the proper judgment will be for the

defendants' except where the defendant's case supports

that of the plaintiff and contains evidence on which the

plaintiff may rely on, the plaintiff is fully entitled to make

use of such evidence.

But in cases where the tenants turn round not only to

dispute the over lordship of

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the title holders but went out of their way to claim title,

they forfeit their right as tenants and their possession of

the land. In other words, the real basis of the misconduct or

misbehavior which renders the tenancy liable to forfeiture

is the challenge to the title of the overlord either by

alienation of part of the land or refusal to pay attribute. See

MAKINDE v. AKINWALE (2000) 1 SC 89 and ONIAH v.

ONYIA (1989) 2 SC (Pt.1) 69 at 84.

In the instant case, the plaintiff claim was not solely for

forfeiture and even then the defendants had pleaded

against the forfeiture and there was no clear evidence of

title in the plaintiffs. At pages 287 and 288 of the record of

appeal, the learned trial judge found as follows:-

"As I said earlier, the plaintiffs and their witnesses

are of the view that the parcels of land in dispute

were deforested by Edoji and were granted to Ezeana

and his descendants who are the ancestors to the 1st-

7th defendants on payment of tribute. The defendants

and their witnesses disagreed and stated that the

parcels of land in dispute were deforested by Ezeana

when he came to settle at Edoji like other settlers and

on his death,

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his sons and descendants inherited them from him.

One thing is clear to me and that is that Edoji and

Ezeana cannot deforest the parcel of land in dispute

at the same time. The two sets of evidence adduced by

the parties cannot therefore be true. Having

painstakingly evaluate the evidence of traditional

history adduced by the parties in this case it is my

view that there is a sharp conflict in the traditional

evidence led by the parties."

It is settled law that a plaintiff who seeks title to land and

relies on traditional history must, to succeed, plead and

prove facts as to:-

(a) Who founded the land,

(b) How the land was founded and

(c) Particulars of the ancestors through whom he claims.

Thus, traditional evidence which is not contradicted and

found by the Court to be cogent can support a claim for

declaration of title as traditional evidence is one of the

methods of proving title to land. See IDUNDUN & ORS v.

OKUMAGBA & ORS (1976) NSCC 445,MOGAJI v.

CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393,

AKANBI v. SALAWU (Supra) and EWO v. ANI (2004) 1

SC (Pt.11) 115.

In the case of ONWUKA v. EDIALA (1989) 1 SC (Pt.11)

1 at 17,

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the apex Court held that the accepted methods of proving

customary ownership of land are: -

(1) Traditional History of ownership,

(2) Where the evidence in (1) above is found to be

inconclusive, then proof of acts of occupation and use of

the land over a considerable long period without challenge

or disturbance from any other claimant, and

(3) Where (2) above fails, proof of exclusive possession

without permission.

Examining the pleadings and the evidence in the instant

case, the learned trial judge as shown above has arrived at

the conclusion that there was a sharp conflict in the

traditional evidence led by both parties and thus depended

on the recent acts of possession shown by the parties and

concluded at pages 295 - 296 of the record of appeal thus:

"Accordingly, it is my considered view that the 1st –

7th defendants and their ancestors who have been in

possession of the parcels of land in dispute and who

have exercised the acts highlighted above on the

parcels of land in dispute are the owners of the

parcels of land in dispute. This is so because the acts

show that the persons who exercised them on the

parcels of the

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land..... I prefer the defendants' traditional history to

that of the plaintiffs. The defendants have

demonstrated events on the parcels of land in recent

years as established by evidence which show that

their traditional history with regards to the parcels of

land in dispute is more probable."

Where the histories offered by both sides are placed side by

side weighed and found to be equally plausible or when

there is difficulty of resolving which is correct, then the

question of recent acts of ownership shall become relevant.

Thus, the Court is bound to first decide which of the stories

is more plausible or probable by reference to all

surrounding facts and the circumstances and if both are

equally plausible and probable, then by reference to recent

acts of ownership as established by evidence. See OGUN v.

AKINYELU (2004) 1112 SC 4 AT 18.

In the instant case, the learned trial judge adopted the

proper procedure in his treatment of the traditional

histories given by the parties. I therefore find no merit in

appellants' complaints in respect of this issue which is also

resolved against them.

In the result, the lower Court was

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justified in dismissing the appellants' claims and that they

have not been able to demonstrate that the conclusion

thereby reached was clearly erroneous. This appeal lacks

merit and it is accordingly dismissed with N50,000.00 costs

in favour of the respondents.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of

reading in advance the judgment of my learned brother M.

L. Shuaibu, JCA. I agree with the eloquent reasoning

therein and conclusion that the appeal is lacking in merit

and should be dismissed. I also agree with the orders for

costs as stated in the judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the

opportunity of reading the draft of the Judgment of my

learned Brother MUHAMMED L. SHUAIBU, JCA just

delivered and I am in total agreement with his reasoning

and conclusions in dismissing the Appeal as lacking in

merit. I also abide by other consequential made thereto.

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Appearances:

O. C. Ajuzie For Appellant(s)

Chief G. O. Oseloka Osuigwe, with him, C. J.Nnmani For Respondent(s)

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