Proof of customary law in relation to oath-taking in land matters
PIUS UMEADI & ORS v. VICTOR CHIBUNZE & ANOR (2020) LPELR-49566 (SC)
In the Supreme Court of Nigeria
ON FRIDAY, MARCH 13, 2020
Suit No: SC.395/2015
Before Their Lordships:
OLABODE RHODES-VIVOUR, JSC
MARY UKAEGO PETER-ODILI, JSC
CHIMA CENTUS NWEZE, JSC
AMINA ADAMU AUGIE, JSC
EJEMBI EKO, JSC
1. PIUS UMEADI
2. JONAS UMEADI
3. CLEMENT UMEADI
4. CHIGOZIE UMEADI
5. CHARLES UMEADI
7. TOCHUKWU ECHEZONA
8. OKECHUKWU ECHEZONA
9. ANTHONY ECHEZONA
10. MARCEL NWANA
11. NWANKWO NGENE
1. VICTOR CHIBUNZE
2. WILLIAMS CHIBUNZE
LEAD JUDGMENT DELIVERED BY CHIMA CENTUS NWEZE, J.S.C.
FACTS OF THE CASE
At the High Court of Anambra State, the respondents as plaintiffs took out a writ of summons against the appellants as defendants seeking the following reliefs: (a) A declaration that the land in dispute is the exclusive property of the plaintiffs and are entitled to the customary right of occupancy in and over the said land called “Ishiekpe”; (b) A mandatory injunctive order on the defendants to rebuild the damaged house of the first plaintiff which they destroyed; (c) N10, 000 (Ten Thousand Naira only) as damages for trespass; (d) A perpetual injunction to restrain the defendants by themselves, agents, privies, servants, workmen or whomsoever from further acts of waste and trespass on the land.
The respondents are members of the Chibunze family in Egbeagu village, Amansea in Awka Local Government area of Anambra State of Nigeria. They and the appellants are of the Umuofuonye kindred in Egbeagu village, Amansea. The respondents claimed to be the customary occupiers of the land in Amansea. They made the case that the land in dispute was part of the family land of Umuofuonye kindred when in about 1940, one Emmanuel Uba, a member of Umuogbocha kindred in Egbeagu village, Amansea, trespassed into the Isi-ekpe land of Umuofuonye kindred. Chibunze, the respondents’ father challenged Emmanuel Uba’s trespassory acts. The Egbeagu village intervened in the dispute and invited both Umuogbocha and Umuofuonye kindreds for arbitration.
The Egbeagu village decided that Umuogbocha kindred should bring a juju and place it on the land in dispute for the Umuofuonye kindred to swear by removing same. They further claimed that their father, Chibunze, without the support of Umuofuonye kindred – the other members of the kindred, because of the fear of being killed by the Ngene Olineru juju, stayed away – rose to the occasion. On account of this, their father, Chibunze, became the exclusive owner of the Isiekpe land. He, Chibunze, thereafter exercised diverse acts of possession on the land such as farming and planting agricultural palms thereon. Before his death, he, Chibunze, allotted portions of the land in dispute to his male children. In 2004, the appellants pulled down and burnt the bungalows of the first plaintiff, now deceased, bungalows allotted to him by their father, Chibunze. This prompted their action in the High Court.
The appellants on their part maintained that the land in dispute forms part of the entire land, which was founded by Ofuonye, the great ancestor of the appellants and the respondents. The said Ofuonye, during his lifetime, gave birth to sons who, in turn, gave birth to the present kindred known as Umuofuonye in Egbeagu village of Amansea. The land in dispute, according to them, known as and called Isiekpe is the family land of Umuofuonye kindred. They further maintained that sometime in 1940, a dispute arose between the Umuogbocha and the Umuofuonye families over the Isiekpe land. The Egbeagu village decided that Umuofuonye should take oath for Umuogbocha family. The appellants maintained that the other members of Umuofuonye family assisted the respondents’ father to remove the juju placed on the Isiekpe land by the Umuogbocha kindred. They averred that, after the oath-taking exercise, the respondents’ father never claimed exclusive ownership of the Isiekpe land as other members of the Umuofuonye family continued to farm on the land collectively unhindered.
Upon the settlement and exchange of pleadings. Five witnesses testified on behalf of the plaintiffs, while four witnesses testified for the appellants. The High Court, in its judgment, found for the respondents.
Dissatisfied, the appellants appealed to the Court of Appeal, Enugu Division, which dismissed the appeal, affirming the High Court’s judgment. Further dissatisfied, the appellants appealed to the Supreme Court.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: 1. Whether the respondents established by cogent evidence the custom that a family member who defends family land by oath taking automatically became the exclusive owner of such family land so as to entitle them to the declaration they sought? 2. Was the Court below right when it affirmed the decision of the Trial Court that burden of proof shifted to the appellants when the Respondent failed to discharge the initial burden of proof?
Arguing the 1st issue, counsel maintained that every member of the family has locus standi to institute an action in respect of any wrong or illegal dealings with the property. He stated that the respondent did not establish, by cogent evidence, the custom whereby they claimed that their father, Chibunze, by taking oath on behalf of Umuofonye family in respect of isi-ekpe land alone, became the exclusive owner of the dispute land.
He further submitted that the evidences of PW1, PW2 and PW4 as to whether the respondent’s father, Chibunze, took the oath in contention on his personal capacity or on behalf of Umuofuonye Family, were contradictory. Since the Court cannot pick and choose which of the contradictory evidences to credit and which to discredit, the Court must therefore reject the pieces of contradictory evidence as unreliable and of no probative value. He cited Asariyu v State  4 NWLR (pt. 67) 709 and Okonkwo v State  8 NWLR (Pt 561) 210 in support of his contention. He therefore submitted that the Court of Appeal erred in law when it affirmed the decision of the High Court, which was based on these contradictory evidences. He submitted that parties are bound by their pleadings and evidence. As such, evidence not pleaded goes to no issue, Ojiogu v. Ojiogu  3 SCNJ 418; Nwokorobia v. Nwogu  5 SCNJ 218.
On the 2nd issue, counsel submitted that it is a party that will lose if no evidence is adduced by both parties that owes the burden of proof. He cited Section 133(1) of the Evidence Act, 2011 as amended;Oyovbiare v Omamurhomu  FWLR (pt 68) 129, 129. He drew the attention of the Court to the respondents’ pleading which admitted that the land in dispute was part of the communal land of Umuofuonye kindred in Egbeagu Village. He further maintained that the onus of proof would not shift to the appellants when the respondents, who asserted that a family member who defends family land alone by oath – taking, automatically becomes the exclusive owner of such family land, have not established such custom. He contended that the respondents, having failed to discharge that primary burden of proof on them, the burden of proof cannot shift to the appellants.
On his part, counsel to the respondent contended that, where parties who believe in the efficacy of a juju resort to oath taking to settle a dispute, they are bound by the result, citing Onyenge and Ors v. Ebere 13 NWLR (pt. 889) 20, 40 – 41. He submitted that the rule of the custom of oath taking in Amansea Town, according to the evidence of the respondent, is that, if a person removed a juju placed on a disputed land and survives after a period of 12 days, he will barb his hair. If he survives after 21 days, he will go to the market to celebrate his survival and thereafter he will be declared to be the owner of the land in dispute. Thus, if one man takes oath and he survives exclusive ownership of the property goes to him. He pointed out that the respondent has established by cogent evidence the custom that a family member who defends family land by oath taking automatically becomes the exclusive owner of such family land so as to entitle the respondents to the declaration they sought.
On the 2nd issue, counsel contended that the respondents pleaded the customary arbitration of oath taking. They went about proving the existence of the said custom. This included the fact that one man can take oath in Amansea. They proved the custom, he pointed out, that if one man takes oath and survives the oath taking, he becomes the owner of the property in respect of which the oath was taken. If members of his family support him, the land will be family property. He pointed out that the appellants, on the other hand, pleaded that under native law and custom of Amansea town and Igbo Land in general, one man does not swear to a juju placed on the land in dispute. He submitted that the above averment is an assertion, which the appellants were bound to prove since he who asserts must prove. Simply put, the burden of proving any fact is on the party who asserts the affirmative of an issue. The burden of proving the alleged custom of the people of Amansea that one man cannot remove a juju placed on the land in dispute was on the appellants who alleged the existence of the said custom. He cited in support Section 16 (1) and (2) of the Evidence Act, 2011 and Iheanacho v Chigere  20 NWLR (pt.901) 130, 160.
RESOLUTION OF THE ISSUES
Resolving the issues, the Court held that the two lower Courts were right to hold that the respondents were the owner of the land because the appellants failed to prove their assertion that under customary law, one man does not swear to juju or oath alone in land matters. The Court held that it was wrong for the appellant to claim that the lower Courts shifted the burden of proof on them because they alleged the custom, which has not been judicially noticed by the Courts, and must thus prove same. On the other hand, the respondents had proven their assertion that under customary law, if a person takes oath alone to remove a juju placed on a land and survives it, such person becomes the exclusive owner of that land. This assertion was further proved by the evidence of an eyewitness who saw what transpired at the time, whose evidence shows that Chibunze, the respondents’ father, was alone when he took the oath. This is in contrary to the evidence of the appellants that Chibunze was supported when he took the oath, which the witnesses for the appellant admitted they were told by other people thus making it hearsay evidence. When such hearsay evidence is placed side by side with the evidence of the person who saw the event take place, and who saw the outcome of that event, the Court would prefer the latter piece of evidence.
In concluding the issues and finding in favour of the respondents, the Court quoted the holding of Tobi J.S.C. in Onyenge and Ors v Loveday Ebere and & Ors  6 SCNJ 126 as follows: “…where parties decide to be bound by traditional arbitration resulting in oath taking, common law principles in respect of proof of title to land no longer apply. In such situation, the proof of ownership or title to land will be based on the rules set by traditional arbitration resulting in oath-taking. In arbitration under customary law, the applicable law is customary law and not the common law principle with their characteristic certainty and ossification….”
Tobi J.S.C. further held in the same case that:
“It was wrong for the appellants who were instrumental to the exercise of the oath-taking to resile from it. Such a position is not available to them in law. In view of the fact that the respondents survived after taking oath, the parties were not bound by the niceties of the law as suggested by counsel for the appellants that possession is nine-tenths of ownership. That may well be so under common law but certainly not the position under the customary law under which oath was taken.”
The Court, following the above principle therefore held that the respondents established, by cogent evidence, the custom that a family member who defends family land by oath taking automatically becomes the exclusive owner of such family land. The respondents were therefore entitled to declaration of title to the land in dispute.
In conclusion, the Court held that the appeal lacked merit and dismissed.
Ifeanyi Obiakor, Esq. For Appellant(s)
Fidelis O. Anyanegbu, Esq. For Respondent(s)
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