Ade Ipaye reports a judgment of the Supreme Court
delivered on June 22, 2004
-------------------
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON TUESDAY, THE 22ND DAY OF JUNE, 2004
BEFORE THEIR LORDSHIPS
SALIHU MODIBBO ALFA BELGORE
SYLVESTER UMARU ONU
ANTHONY IKECHUKWU IGUH
DENNIS ONYEJIFE EDOZIE
NIKI TOBI
JUSTICES, SUPREME COURT
SC. 117/2000
BETWEEN:
John ONYENGE & OTHERS } APPELLANTS
AND
CHIEF LOVEDAY EBERE & OTHERS } RESPONDENTS
(JUDGMENT DELIVERED BY NIKI TOBI, JSC).
"This Court recognises oath-taking as a valid process
under customary law arbitration. In UME V OKORONKWO
(1996) 12 SCNJ 404, Ogwuegbu, JSC, held that
oath-taking was one of the methods of establishing the
truth of a matter and was known to customary law and
accepted by both parties. I am bound by that
decision."
So said the Honourable Justice Niki Tobi of the
Supreme Court of Nigeria who recently delivered the
lead judgment in the case of John ONYENGE & OTHERS V
CHIEF LOVEDAY EBERE & OTHERS (Suit No. SC. 117/2000).
Belgore, Onu, Iguh and Edozie, JJ.S.C. unanimously
agreed with him.
In this case, the Plaintiffs' had instituted the
action for themselves and on behalf of Umungede Family
of Uwaze in Ukwa Local Government Council of Abia
State. The Defendants were also in a representative
capacity for themselves and on behalf of the Ulogor
family of Owaza in the same Local Government Council.
The Plaintiffs (Respondents at the Supreme Court)
claimed against the Defendants (now Appellants) a
declaration that the Plaintiffs were entitled to the
customary right of occupancy in the piece of land
called Egbelu Ulogor. They also claimed N2,000 general
damages and an order of perpetual injunction to
restrain the Defendants and their privies from
committing further acts of trespass on the land.
The Plaintiffs' case was that they were descendants of
one Ulogo who deforested "Egbelu Ulogo," the land in
dispute. One Elechi, the 1st son of Ulogo, pledged the
land in dispute to one of the Defendants' ancestors,
Nwosu Nwokiri for 400 manilas. The pledge was not
redeemed by subsequent heads of the Plaintiffs' family
until when the 1st Plaintiff's father, Ebere Oforji,
as head of Ulogo family, approached the Defendants for
redemption of the pledge. 'Ebere Oforji tendered N6.68
as the equivalent of 400 manilas to the Defendants,
which they refused to accept claiming that the land in
dispute was not on pledge to the Defendants and
particularly that the Plaintiffs were not descendants
of Ulogo. For the refusal of the Defendants to accept
redemption of the pledge and their assertion of
ownership of the disputed land, the Plaintiffs, in
accordance with the custom of the parties, deposited
the redemption money of N6.68 with "Akpam Juju" at
Obuzo, Asa in Ukwa Local Government Area.
Nna Nwankpa, the Chief Priest of the "Akpam Juju" was
the second witness called by the Plaintiffs. He
testified that the parties appeared before the "Akpam
Juju" where both sides stated their case before the
Juju priests. However, the Defendants refused to take
oath. The juju priests then gave a decision that
Plaintiffs should go on and take oath there while the
Defendants should provide any juju of their choice for
the Plaintiffs, within eight days. The Defendants
eventually summoned the Plaintiffs before a foreign
juju, "Ogwugwu Akpu" of Okija in Anambra State,
demanding that the Plaintiffs should swear before the
juju that the land in dispute was the Plaintiffs'
family land and that the said land was pledged to the
Defendants' ancestor by the Plaintiffs' ancestor. The
Plaintiffs agreed to take the oath and the "Ogwugwu
Akpu" juju from Okija in Anambra State was brought
down to Ukwa and placed on the disputed land. The
Plaintiffs took the oath and survived the customary
one year of the oath taking, whereupon they celebrated
the survival in compliance with the custom of Asa-Ukwu
people to which the parties belong. According to the
Plaintiffs, they thereafter became entitled to the
exclusive possession of the land in dispute by the
custom of the parties.
On their own part, the Defendants asserted that they
were the owners of the land in dispute and that they
were on the land not as pledgees but in exercise of
their ownership rights. They admitted that the matter
now before the Court was referred to the "Akpam juju"
at Obuzo Asa for arbitration but that the arbitration
was inconclusive as they insisted that more than one
member of the Plaintiffs' family should swear of the
juju. As a consequence they referred the matter to the
"Ogwugwu Akpu" juju who ruled that seven members of
the Plaintiffs family should swear to an oath. As to
the actual process of oath taking, the juju priest
from Okija testified as follows:
"My name is Okonkwo Chukwueta. I live at Ubaha Ezike
Okija in Anambra State. I am a juju priest. The name
of my juju is Ogwugwu Akpu of Obaha Ezike in Okija. I
know the parties in this suit. The Defendants summoned
the Plaintiffs in 1981 before my juju. I did not judge
any case for them as plaintiffs did not come to Okija.
My duty was to come and administer the juju. I then
brought the juju to their place, Owaza. We took the
juju on the land in dispute. I came alone to Owaza.
Both parties were present. The villagers who decided
on the swearing of the juju including the Eze and his
Chiefs were there. I swore before administering the
juju that I never brought poison to Owaza. The Eze
asked me how many days this juju will last before
killing any defaulter. I replied that it has no
specific period. I told the Eze that as long as the
Plaintiffs had already sworn on the juju, that
Defendants who brought the juju can no more enter into
the land in dispute.' I warned the Eze that those who
swore should start farming on the land that year. I
told the Eze that if neither party entered into the
land, the juju will not kill anybody. After this the
plaintiffs swore to the juju. I do not know whether
either party has been farming on the land. After five
years ago I removed the juju at the instance of the
Defendants".
It is the Defendants' case that on the date of oath
taking, the juju priest from Okija made it abundantly
clear that the juju would not kill anyone unless those
who took the oath entered into the land to farm
thereon. The Defendants maintained that after the oath
taking the Plaintiffs never entered into the land in
dispute.
After the hearing, the trial Court gave judgment to
the Plaintiffs in terms of their claims, except the
relief on trespass where the Court awarded N700.00
damages. The Abia State Customary Court of Appeal
however allowed the appeal of the Defendants and
dismissed the case of the Plaintiffs. The Plaintiffs'
further appeal to the Court of Appeal was allowed.
That Court restored in full the judgment of the trial
Court. It is the judgment of the Court of Appeal that
the Defendants (as Appellants) took on appeal to the
Supreme Court.
At the Supreme Court, Learned Senior Advocate for the
Appellants, Chief Chris Uche, SAN submitted that the
arbitration could only be said to be conclusive if it
was shown that the Plaintiffs satisfied all the
conditions laid down by the juju priest from Okija. He
submitted therefore that the material point in issue
was whether the juju priest ever gave a condition that
the Plaintiffs should enter the land in dispute and
not necessarily the period the juju will last before
the Plaintiffs could be said to have survived the
oath. He finally submitted that the arbitration was
inconclusive and that the Plaintiffs failed to prove
ownership of the land in dispute by customary
arbitration.
On his own part, learned counsel for the Respondents,
Chief T.E. Nwanosike submitted that it was the
customary law of Asa-Ukwa people that governed the
oath taken by the Respondents. He argued that the
custom that was in evidence before the trial customary
Court was the custom of Asa-Ukwa clan of Abia State
and not the custom of Ubaha Okija in Anambra State.
Relying on UME V OKORONKWO (1996) 12 SCNJ 404, learned
counsel contended that oath taking was one of the
methods of establishing the truth of a matter and was
known to customary law and accepted by both parties.
In essence, it is the case of the Respondents that
they proved their case of title to the land in dispute
by the decision of the traditional or customary
arbitration arising from the exercise of oath-taking.
On the other hand, the Appellants contended that the
exercise of oath-taking was inconclusive and therefore
could not have given rise to a decision in favour of
the Respondents.
To start with, the Supreme Court had to decide on the
applicable customary law. The Court held (relying on
section 16(2)(d) of the Imo State Customary Courts
Edict (now law), 1984) that a customary law shall be
deemed to be binding upon a person where that person
agrees or is deemed to have agreed to be bound by the
customary law. In the instant case, it is obvious from
the decision of the Customary Court that the customary
law binding on the parties was Ukwa custom and that of
Okija in Anambra State to which the parties agreed.
This conclusion was upheld by the Supreme Court.
On the validity of oath taking as an aspect of
customary law arbitration, the court affirmed that
oath-taking was one of the methods of establishing the
truth of a matter and was known to customary law. See
UME V OKORONKWO (1996) 12 SCNJ 404, per Ogwuegbu, JSC.
The court concluded therefore that oath taking was a
valid process under customary law arbitration. On the
binding nature of customary law arbitration, their
Lordships of the Supreme Court held that where two
parties to a dispute voluntarily submit the issue in
controversy between them to an arbitration according
to customary law and agree expressly or by implication
that the decision of such arbitration would be
accepted as final and binding, then once the
arbitrators reach a decision, it would no longer be
open to either party to subsequently back out or
resile from the decision so pronounced: See OPARAJI V
OHANU (1999) 9 NWLR (Pt. 618) 290, per Iguh, JSC;
KWASI V LAVBI (1950) 13 WACA 76; OLINE V OBODO (1958)
SCNLR 298; NJOKU V EKEOCHA (1972) ESCLR 199; and
INYAMA V ESSIEN (1957) 2 FSC 39.
However, where parties so decide to be bound by
traditional arbitration resulting in oath taking,
common law principles in respect of proof of title to
land no longer applied. In such a situation, the proof
of ownership or title to land would be based on the
rules set out by the traditional arbitration resulting
in oath taking. As stated by Tobi JSC, "I find it
difficult to go along with counsel in his submissions
bordering on the common law. One of such submissions
is the rule, or should I say principle, that
possession is nine-tenths of ownership. The other is
on principles of law governing proof of title to land.
I think this is what counsel means by his submission
that the burden is squarely on a party claiming
declaration of title to adduce credible and admissible
evidence in support of the title. I think it is good
law that in arbitration under customary law, the
applicable law is customary law and not common law
principles with their characteristic certainty and
ossification."
Mr. Ipaye is Special Assistant (Legal) to the Governor
of Lagos State and the Editor of Monthly Judgments of
the Supreme Court of Nigeria