CORAM

---

JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA

UWANI MUSA ABBA AJI JUSTICE OF THE SUPREME COURT OF NIGERIA

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE OF THE SUPREME COURT OF NIGERIA

ADAMU JAURO JUSTICE OF THE SUPREME COURT OF NIGERIA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

---

PARTIES

---

1. CHIEF NELSON AMADI

2. MAXWELL EGBULEFU

3. CLEMENT OTAMIRI

4. MR. ISRAEL A. AMOKWURU

5. MR. EMMANUEL E. EMU

6. MR. FRANCIS AMADI (For Themselves And As Representing The Umuogo Family Of Umuechem In The Etche Local Government Area Of Rivers State)

 

APPELLANTS 

---

1. CHIEF RICHARD ORLU

2. CHIEF VICTOR AMAEWHULE

3. EMMANUEL EKWE

4. NYESO ORDU

5. GILBERT EZIHUO

6. IHENACHO EZIHUO (For Themselves And As Representing The Omuegwu Family Of Igwuruta-Ali, Igwuruta In The Ikwerre Local Government Area Of Rivers State)

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

---

SUMMARY OF FACTS

The Respondents claimed against the Appellants the customary right of occupancy over the land called IZOEKEGBU/MINIZU lying and situate at Igwuruta-Ali, Igwuruta in Ikwerre LGA of Rivers State, while the Appellants in a cross action also claimed against the Respondents the customary right of occupancy over all the parcel of land called EEGBELU-UMUOGO lying at Umuechem village in Etche LGA of Rivers State. The 2 suits were consolidated and heard.

The Respondents claim that the land in dispute was founded by their ancestor, Egwu, his children, Nwahia, Okechihea, Chimkpo as well as their families. They were said to have fled their ancestral home of Igwuruta-Ali in order to escape from slave raiders and that they exercised numerous acts of ownership, such as clearing and farming thereon.

The Respondents also claimed that sometime in 1964, Agbam and Nwajoku, both members of the Appellants’ family approached one Opurum Ogbuji of the Respondents’ family seeking for land to farm. This request was said to have been conveyed to the Respondents’ family who granted the request on the condition that the Appellants’ Umuogo family would pay tribute after which they were allowed to farm the land.

On the part of the Appellants, they claimed that their ancestor, Echem founded the land in dispute. The Appellants clearly denied being at any time customary tenants of the Respondents or having paid tributes to the Respondents in the past.

The trial Court found for the Appellants. The Respondents appealed, wherein the Court of Appeal allowed the appeal and gave judgment for the Respondents. The Appellants are dissatisfied by the decision of the Court of Appeal hence this appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether, having regard to the pleaded facts, and evidence led at the trial, the honourable Justices of the Court of Appeal were not right in reversing the judgment of the trial Court?

 

---

RATIONES DECIDENDI

---

LAND – MODES OF PROVING TITLE TO LAND

---

A convenient starting point is to state the well-known five methods of proving title to or ownership of land. They are:

(a) By traditional evidence;

(b) By production of documents of title;

(c) By acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner thereof;

(d) By acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land; and

(e) 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 owner of the land in dispute.

See IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200; OWHONDA V. EKPECHI (2003) 17 NWLR (PT. 849) 326; FALEYE & ORS V. DADA & ORS (2016) LPELR – 40297 (SC); THOMPSON V. AROWOLO (2003) 7 NWLR (PT. 818) 163; NKADO V. OBIANO (1997) 5 NWLR (PT. 503) 31; ATANDA V AJANI (1989) 3 NWLR (PT. 111) 511.

A party seeking to prove his title to land in dispute is free to do so by relying on any of the five modes listed above. One mode of proving title will suffice, if properly established to the satisfaction of the Court, but a party can also prove his ownership or title through more than one mode. Whichever method or mode relied on by a party seeking declaration of title to land, he bears the burden of proving entitlement to the declaration sought. See KAZEEM & ANOR V. MOSAKU & ORS (2007) LPELR – 1684 (SC); YUSUF V. ADEGOKE & ANOR (2007) LPELR – 3534 (SC); UCHENDU V. OGBONI (1999) 5 NWLR (PT. 603) 337. – Per Adamu Jauro, JSC

 

---

TRADITIONAL HISTORY – DUTY OF A PARTY RELYING ON TRADITIONAL HISTORY IN PROVING TITLE TO LAND

---

The law is that where a party relies on traditional history, he is duty-bound to prove by evidence the founder of the land, how the land was founded and the names of the persons who owned the land from the founder to the current title holder. See NKADO V. OBIANO (supra); ADDAH VS UBANDAWAKI (2015) ALL FWLR (PT. 775) 200; EWO V. ANI (2004) 3 NWLR (PT. 861) 610; ALLI VS. ALESINLOYE (2000) 6 NWLR (PT. 660) 177. – Per Adamu Jauro, JSC

 

---

TRADITIONAL HISTORY – THE DUTY OF A PARTY RELYING ON TRADITIONAL HISTORY AS A MODE OF PROVING TITLE TO LAND – THE NATURE OF TRADITIONAL HISTORY OF TITLE TO LAND

---

This Court has consistently held that pleading and leading evidence to establish how a piece or parcel of land was founded is one of the conditions to be satisfied by a person relying on traditional history as his root of title.

In the case of ISEOGBEKUN V. ADELAKUN (2013) 1 NWLR (PT. 1337) 140 at 165 Paras. A – E, Mukhtar, JSC, reasoned thus:

“The plaintiffs traced their root of title to the land to one Ajegun Bashua who begat their ancestors and their mother Suwebatu Adufe who built a corrugated iron sheet structure on the land and exercised several acts of possession which included renting out the property to one Gabriel Kehinde, the lease agreement of which was tendered in evidence and marked exhibit

‘A’. It is also their case that the 1st – 3rd defendants are descendants of Ajegun Bashua’s slave i.e. arota. The plaintiffs did not prove their root of title to the land, for they have not testified as to how the said land in dispute devolved on the said Ajegun Bashua. The position of the law is that a party who hinges his claim on declaration of title to land vide traditional history he must establish how his ancestor, the original owner acquired the land i.e. whether by settlement, conquest or grant. Authorities abound that a claim predicated on traditional history or evidence must be proved by any of these methods, and traditional evidence adduced must be cogent, uncontradicted evidence that must also be conclusive, if the party is to succeed”. (underlining mine for emphasis). Hence, it is important for a party claiming declaration of title to land through traditional history to plead and lead cogent and reliable evidence as to how the land was founded by the named founder, otherwise, his claim will fail. The reason for this is simple. By its nature, evidence of traditional history is hearsay upon hearsay in the sense that it recounts events that occurred long ago, often extending beyond living memory. It is history which has been handed down from one generation to another generation in an unbroken chain reaching the present generation. Being hearsay evidence, it would ordinarily be inadmissible, but it is elevated to the status of admissible evidence by virtue of Section 44 of the Evidence Act, 2011. That being the case, it must be established through uncontradicted, believable evidence. See ORDU V. ELEWA (2018) 17 NWLR (PT. 1649) 515; NWOKIDU V. OKANU (2010) 3 NWLR (PT. 1181) 362; OGBUOKWELU V. UMEANAFUNKWA (1994) 4 NWLR (PT. 341) 676. Where a party relying on traditional history or evidence fails to plead and prove it as required by law, it is bound to fail. – Per Adamu Jauro, JSC

 

---

ADJUDICATION – CONDUCT OF PARTIES AND THE COURT IN ADJUDICATION

---

A party in a suit has the duty to prove his case before the Court. A party who does otherwise and expects the Court to help him out by filling in yawning gaps in his case does so at his own peril as it is not part of the duties of a Court or Judge to assist a party to fill in any lacuna in his case. Any Judge who does so would be descending into the arena of conflict. See SUBERU V. STATE (2010) LPELR – 3120 (SC); AJUWON V. AKANNI (1993) 9 NWLR (PT. 316) 182. – Per Adamu Jauro, JSC

 

---

COURTS – CONDUCT OF COURTS WHERE EVIDENCE OF TRADITIONAL HISTORY RELIED ON BY BOTH PARTIES ARE INCONCLUSIVE

---

The lower Court was also right in holding that the evidence of traditional history relied on by both parties are inconclusive. Where this happens, it does not automatically disentitle the Plaintiff to the reliefs sought. Rather, in order for the Court to resolve the issue of ownership of or title to land, resort will be had to acts of ownership extending over a sufficient length of time, numerous and positive enough to properly infer that the Plaintiff is the exclusive owner.

See ARUM V. NWOBODO (2013) 10 NWLR (PT. 1362) 374. The next step is therefore to consider which of the parties has been able to prove their case through acts of ownership. – Per Adamu Jauro, JSC

 

---

CUSTOMARY ARBITRATION – MEANING OF CUSTOMARY ARBITRATION – CONDITIONS FOR A DECISION FROM CUSTOMARY ARBITRATION TO CONSTITUTE AN ESTOPPEL

---

Customary arbitration is an arbitration in a dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. See EKE & ORS V. OKWARANYIA & ORS (2001) LPELR – 1074 (SC); ANYABUNSI V. UGWUNZE (1995) 6 NWLR (PT. 401) 255; AGU V. IKEWIBE (1991) LPELR – 253 (SC).

… it is not automatic that a decision relied on as the outcome of a customary arbitration will create an estoppel. For such a decision to create an estoppel to bar further proceedings, the party relying thereon must satisfy the Court through his pleadings and evidence that the decision satisfies the following conditions:

(a) There has been a voluntary submission of the parties in the dispute to an arbitration of one or more persons;

(b) It was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding;

(c) The arbitration was in accordance with the custom of the parties or their trade or business;

(d) The arbitrators reached a decision and published their award; and

(e) The decision or award was accepted at the time it was made.

Unless the above conditions are met, any decision emanating from a customary arbitration will be incapable of being enforced in such a way that it creates an estoppel barring further proceedings in respect of the same subject matter. SeeOKEREKE V. NWANKWO (2003) 9 NWLR (PT. 826) 592; EKE & ORS V. OKWARANYIA & ORS (2001) LPELR – 1074 (SC). – Per Adamu Jauro, JSC

 

---

ESTOPPEL – WHETHER THE ACTIONS OF A THIRD PARTY MERELY ATTEMPTING TO SETTLE THE MATTER BETWEEN PARTIES CAN CREATE AN ESTOPPEL

---

Furthermore, in the case of AWOSILE V. SOTUNBO (supra), this Court held that where the intervention of a third party is merely an attempt to settle the matter between the parties, then it would not have the effect of creating an estoppel. It was further held at page 533, Paras. E – G thus:

“Learned counsel for the respondent was also right that the plaintiff by his conduct did not regard what transpired before the Akarigbo as a binding arbitration. It was he who referred the matter to the Akarigbo and it was he who later filed an action in Court. There is force in the argument of the learned counsel that his filing of a writ of summons in the High Court was a positive demonstration that he never believed there was a binding arbitration and of his abandonment of the “gentlemen’s agreement” reached between them. I must observe in this respect that the result of the fact that customary arbitration duly pleaded and proved can operate as estoppel is that, like that arising from a valid judicial decision, it deprives the Court of jurisdiction to adjudicate in the matter again. It is, in my view, a contradiction, for the plaintiff to say that the matter had been validly and finally determined in an arbitration by the Akarigbo and yet he resubmitted it to Court for adjudication”.

My understanding of this holding is that if a party truly believes that there is a binding customary arbitration in respect of a dispute in his favour, he will not submit the same dispute to a Court for litigation. He would, at best, seek judicial pronouncement on the award of the customary arbitral panel. After all, it is settled that the decision of a binding customary arbitration creates an estoppel like the decision of a Court, and no person who has the decision of a Court in his favour will submit the exact same dispute for adjudication all over again. – Per Adamu Jauro, JSC

 

---

EVIDENCE – WHERE EVIDENCE IS UNDISPUTED AND UNCHALLENGED

---

Their evidence in this regard is, in essence, undisputed and unchallenged. It is trite that evidence which is not inadmissible, is unchallenged and uncontradicted, which is in line with the party’s pleadings, and which is not manifestly incredible or unbelievable ought to be accepted and acted upon by a Court. See BOYE IND. LTD. V. SOWEMIMO (2022) 3 NWLR (PT. 1817) 195; KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26; PASCUTTO V. ADECENTRO (NIG.) LTD. (1997) 11 NWLR (PT. 529) 467. – Per Adamu Jauro, JSC

 

---

STANDARD OF PROOF – STANDARD OF PROOF IN CIVIL MATTERS – CONDUCT OF COURTS IN EVALUATING EVIDENCE

---

Civil matters are decided on balance of probabilities. This means that a Judge before whom evidence is led has a duty to put the totality of the evidence adduced by both parties on an imaginary scale by putting the evidence adduced for the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them against each other. He will then consider which side is heavier by the quality and probative value of admissible evidence led.

The case must then be decided in favour of the party on whose side the scale tilts. See Section 134 of the Evidence Act as well as the cases of INTERDRILL (NIG.) LTD. V. U.B.A. PLC (2017) 13 NWLR (PT. 1581) 52; HUSSENI V. MOHAMMED (2015) 3 NWLR (PT. 1445) 100; ISHOLA V. U.B.N. LTD. (2005) 6 NWLR (PT. 922) 422; OKEREKE V. NWANKWO (supra); OYEDIRAN V. ALEBIOSU II (1992) 6 NWLR (PT. 249) 550. – Per Adamu Jauro, JSC

 

---

LAND – WAYS OF PROVING TITLE TO LAND – DUTY OF THE CLAIMANT IN A CLAIM FOR DECLARATION OF TITLE TO LAND

---

The law is well settled that title to land may be proved by either of the following:

(a) Traditional evidence;

(b) By production of duly authenticated title documents;

(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;

(d) By acts of long possession and enjoyment;

(e) 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 owner.

See Idundun Vs. Okumagba (1976) 9-10 SC 224 at 227; (1976)1 NMLR 200.

It must be emphasized that a claimant for title to land does not need to prove all the above methods. Only one method creditably established is sufficient. See Peter Ojoh Vs. Owuala Kamalu (2005)12 SCM 332; (2005)18 NWLR (Pt.958)523 at 574-575. That being said, in a claim for declaration of title to land, just as in all civil actions, the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence. See Kodilinye vs Odu (1935)2 WACA 336; Onwugbufor vs. Okoye (1996)1 NWLR (Pt.424) 252; Aiyeola vs. Pedro (2014) LPELR – 22915 (SC); Arije vs. Auje (2018) LPELR – 44193 (SC); Shittu vs. Fashawe (2005)14 NWLR (Pt. 946) 671. – Per J. I. Okoro, JSC

 

---

RENT – THE PERSON ENTITLED TO RENT IN LAW

---

I dare say that in law, only a Landlord is entitled to rent and no one else. See Abioye Vs. Yakubu (1991) LPELR-43(SC). – Per J. I. Okoro, JSC

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

 

CLICK HERE TO READ FULL JUDGMENT