➥ CASE SUMMARY OF:
Alaegbu Duru & Ors. v. Nathan Duru & Ors. (CA/OW/412/2014, 2 June 2017)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Customary arbitration;
Kojo v. Bonsie.
➥ CASE FACT/HISTORY
This is an appeal against the decision of the High Court of Imo State in Suit No. HME/32/2004, delivered on 16/3/2012 by Hon. Justice T.E. Chukwuemeka-Chikeka, wherein the learned trial Judge granted the reliefs sought by the Plaintiffs now Respondents.
At the trial Court the Plaintiffs had sought the following reliefs: (a) Declaration that the Plaintiffs are entitled to the grant of Customary Rights of Occupancy to the pieces or parcels of land known as and called ALA EKWE NWA UME and IKPA UMUEKE situate at Umuduru, Mbano within the jurisdiction of Mbano Etiti Judicial Division with an annual value of N100.00 (One Hundred Naira) and verged in the Plaintiffs Survey Plan No. DS27621/IM131D/2004, dated 16th November 2004. (b) N1,000,000.00 (One Million Naira) general damages for trespass. (c) Perpetual injunction restraining the Defendants from committing further trespass or in any other way interfering with the rights of the Plaintiffs over the said lands.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the trial Court had properly evaluated the evidence adduced by the parties before coming to its conclusion, granting the reliefs sought by the Respondent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[‘I agree with the learned trial Court that the evidence of the CW2 and CW3 greatly helped the case of the Respondents, as the mode of the cross examination and answers thereto were convincing that the Respondents were in absolute possession of the land in dispute and could rent part thereof and pledge some to people outside the families/villages of the contending parties and the people farming for long periods, and the Respondents also recovered the portions at will. The evidence had also clearly shown that the parties were of the same ancestry and each side had rights to the portions of land inherited from their immediate ancestors and/or given to them and were enjoying their said portions undisturbed until about 2004, when the cause of action arose in respect of the disputed portion which was in the control and possession of the Respondents.’]
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.
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✓ DECISION:
Accordingly, the appeal is dismissed for lack of merit with cost assessed at Forty Thousand Naira (N40,000.00) to the Respondents.‘’
➥ FURTHER DICTA:
⦿ FIVE WAYS IN WHICH OWNERSHIP OF LAND MAY BE PROVED
The law is trite that ownership and title to land can be established in any of the five ways propounded by the case of Idundun V. Okumagba (1976) 9 10 SC 227; (1976) LPELR 1431 (SC), namely: (1) By traditional evidence (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership; (4) By acts of long enjoyment and possession of the land; (5) By proof of possession of adjacent lands, in circumstances which would render it probable that the owner of such adjacent lands would, in addition, be the owner of the disputed land. See also Atanda V. Ajani (1989) NWLR (pt.111) 5111; Obineche and Ors V. Okusobi and Ors (2010) 12 NWLR (pt.1208) 383; (2010) LPELR 2178 (SC); Ayorinde and Ors V. Sogunro and Ors (2012) LPELR 7808 (SC). Of course, it is not out of place for a claimant to rely on more than one of the separate ways of proving title to land to prove and consolidate his claim of title to land, though prove of a single way is enough. Onwubuariri and V. Igboasoyi and Ors (2011) LPELR 754 (SC). See also Awodi and Anor V. Ajagbe (2014) LPELR 24219 SC, where Fabiyi JSC said: Let me further mention it that the five ways of proving ownership of land, each of which suffices to establish title, have clearly been set out in the lead judgment. This Court has restated same in several decisions where in this Court affirmed that even though the evidence of tradition history put forward by the party was inconclusive, evidence of acts of ownership and possession, which was also relied upon, can be a leverage to find for the Plaintiff. — I.G. Mbaba JCA.
⦿ THE RULE IN KOJO II V. BONSIE II (ACTS OF RECENT POSSESSION) APPLIES ONLY WHERE TRADITIONAL HISTORY ARE CONFLICTING
Learned Senior Counsel for the Appellants had submitted and rightly in my opinion that, where two competing evidence of traditional history are before a Court, the Court, does not arbitrarily choose which one to believe and which one to reject; that the Court can look at acts of possession and ownership in recent times and resolve the dispute in favour of the party who is shown to have been performing acts of possession and ownership in recent times on the land in dispute. That appears to be the whole essence of the Rule in Kojo II v. Bonsie (1957) WLR 1223. The rationale behind the Rule, as Counsel for the Appellants rightly expounded is that traditional history are usually facts which date back to a time before living memory. In recounting same; that either of the parties is usually wrong or mistaken in his assertion, yet both may be honest in their belief and claim to the land in dispute; that in such situation demeanor therefore is of no assistance in ascertaining the truth. The Rule in Kojo II v. Bonsie is therefore meant to guide and assist the Court in resolving the conflicting claims. The rule cannot therefore apply where the Court believes only one of the traditional histories presented by the parties as cogent positive and conclusive. It applies where both accounts are conflicting and are inconclusive, or where both accounts are probable such that the Court cannot justifiably prefer one to the other. See Eyinnaya v. Otikpo (2015) LPELR – 25529 (CA); Ukachukwu and Ors. V. Ihejirika and Ors. (2014) LPELR 24102 CA Eyo v. Onuoha (2011) ALL FWLR (Pt.574) 1; Okoko v. Dakolo (2006) ALL FWLR (Pt.336) 201. — I.G. Mbaba JCA.
WHERE BOTH PARTIES KNOW THE LAND BEING TALKED ABOUT, ISSUE OF IDENTITY CANNOT ARISE
The law is that where the parties have identified the land in dispute, and each knows the land in contention, identity of the land cannot be an issue again. See Bachiawa V. Abdullahi (2016) LPELR 41170 (CA); Enyinnaya V. Otikpo and Anor (2015) LPELR 25529 (CA). the issue of identity of land cannot arise where the parties clearly knew the land they were talking about. See also Edjekpo V. Osia (2007) All FWLR (pt.361) 1617 at 648; Jimoh and Ors V. Akande and Ors (2009) LPELR 8087 (SC). — I.G. Mbaba JCA.
⦿ WHO IS RELYING ON CUSTOMARY ARBITRATION MUST PLEAD AND PROVE
Any party relying on a decision of customary arbitration must, as the Respondents stated, plead and establish by evidence the following: 1) A voluntary submission of the matter in dispute to an arbitration of one or more persons; 2) An agreement of the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding; 3) That the said arbitration was in accordance with the custom of the parties of their trade or business; 4) That the arbitrators reached a decision and published their award; and 5) That the decision or award was accepted at the time it was made. See the case of Okwaranyia V. Eke (1996) 3 NWLR (pt.436) 335; Ohiaeri V. Akabueze (1992) 2 NWLR (pt.221) 1 at 24; Iwuala V. Chima (2016) LPELR 40970 (CA). — I.G. Mbaba JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief (Mrs.) A.J. Offiah, SAN.
⦿ FOR THE RESPONDENT(S)
P.U. Nnodum Esq, SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
