➥ CASE SUMMARY OF:
Chief Stephen Nwankwo Okonkwo & Anor V. Dr. Patrick Ikechukwu Okolo (SC.147/1986, 20 May 1988)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Title to land;
Hearsay;
Proof of land under native law and custom.
➥ CASE FACT/HISTORY
In 1941 one P.H. Okolo of Ogbeozala Village, Onitsha acquired a piece of land from one Menkiti Ikwuazom, the Okpala of Umuonogbo family of Onitsha, under Onitsha customary law. This family is also known as Umuozoma family of Onitsha. The parcel of land acquired is part of the Okpoko land. During his lifetime P.H. Okolo took possession of the land acquired and remained in and exercised undisturbed optimum possession and ownership till his death in 1957. Meanwhile Menkiti Ikwuazom also died in 1944. The said P.H. Okolo had three children, of which the Respondent is the oldest male. On the death of the said P.H. Okolo the said land became the property of his family. The said family of P.H. Okolo, like their father, also exercised undisturbed acts of ownership and possession by farming on the land. They have since 1966 surveyed the land and filed the plan of the land as surveyed with the Ministry of Lands and Surveys, Enugu. The family of the late P.H. Okolo have resisted the attempts made by the Appellants and other persons to dispute their title to the land acquired by the late P.H. Okolo. In September, 1975 1st Appellant relying and acting on a purported conveyance from the 2nd Appellant trespassed on the land acquired by the late P .H. Okolo and inherited by the children of P.H. Okolo. After this trespass was abated by voluntary withdrawal, the 1st Appellant again repeated acts of trespass on or about the 25th day of March, 1976, by driving caterpillar into the land, scraping off top soil, grass and felling trees. 1st Appellant, who is a business man in Onitsha, and claims to have bought the said land from the 2nd Appellant who is the last son of Ikwuazom Menkiti, deceased, from who late P.H. Okolo bought the said land. 1st Appellant has refused to withdraw from the said land despite repeated warnings from the family of the Respondents. On the other hand the Umuonogbo family have acknowledged in writing the title of Respondent to the land. It is the obduracy by the Appellants in denying the title of the Respondents to the land acquired by late P.H. Okolo from Ikwuazom Menkiti, that has resulted in the present action.
This appeal is against the judgment of the Court of Appeal Division sitting at Enugu. On the 23rd January, 1985, the appeal by the Defendants against the judgment of Awogu J (as he then was) of the High Court of Anambra State sitting at Onitsha was dismissed. The learned Judge had on the 14th April, 1980 granted all the claims by the Plaintiffs against the Defendants, which are as follows – “1. A declaration of title to that piece and parcel of land known as and forming part of OKPOKO lands, situate and lying on the left hand side at about Mile 3 1/2 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in Plan No.SE/ /76 filed by the Plaintiff in this Suit and therein verged PINK. 2. N1,000 (one thousand naira) damages for trespass on the said land. 3. Injunction restraining the Defendant, his servants and/or agents or anyone of them from interfering with the Plaintiffs ownership and possession of the said land.”
➥ ISSUE(S)
I. Was there a sale of the land in dispute by the father of the 2nd Defendant to the father of the Plaintiff in 1941?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANTS HAVE NOT ADDUCED SUFFICIENT REASON WHY THE COURT SHOULD INTERFERE WITH THE FINDINGS OF FACT
‘It is pertinent to point out that these are questions of fact in respect of which primacy of determination is given to the trial court. It is important to observe here that Appellants have not adduced sufficient reasons why this Court ought to interfere with the following findings of fact of the trial Court that (i) There was a transaction in respect of the sale of Okpoko land between late P.H. Okolo and late Ikwuazom Menkiti. (ii) The transaction was in accordance with Onitsha Customary law (iii) The land in dispute is the same as the land sold to late P.H. Okolo by late Ikwuazom Menkiti (iv) Ikwuazom Menkiti was at the time of the transaction, the Okpala of Umuonogbo family and was so held out by the Umuonogbo family.’
THE LAND WAS SOLD TO P. H. OKOLO;
‘It is now well settled that a declaration of title under customary law will be made when the court is satisfied of the precise nature of the title and there is evidence before it to establish the claim. Accordingly it is essential for the party seeking a declaration to state specifically the nature of the title and the terms of the grant. There is the pleading that the land in dispute was acquired under Onitsha native law and custom. The incidents of such custom are merely evidence of subordinate facts which are not necessary to be stated in pleadings. In the appeal before us Mr. Sofunde has contended that Respondent has not proved his title to the land in dispute. I do not think this is correct assessment of the evidence established before the trial judge. I agree with Mr. Okolo that the issue of the validity vel non of the sale of the land in dispute was not before the Court. What was before the Court was whether the land in dispute was sold to P.H. Okolo. This is an issue of fact in respect of which there have been concurrent findings in the two Courts below. The trial Court and the Court of Appeal have held that the land in dispute was sold to P.H. Okolo by Ikwuazom Menkiti in accordance with the customary law of Onitsha. There was abundant evidence before the court to justify such a conclusion. It is now well settled that payment of purchase price and delivery of possession are sufficient to effect a valid sale and a valid title by native law and custom – See Akingbade v. Elemosho (1964) 1 All N.L.R. 154. Mr. Sofunde has relied on Emegwara v.Nwaimo (supra) to submit that Respondent has not proved the nature of his title. I think this is a misunderstanding of the judgment in that case. The claim in that case was for “titular ownership” which obviously is a vague expression meaning “nominal ownership.” Of course a nominal ownership cannot ground a declaration is respect of title. The claim in the appeal before us is clearly different. In Emegwara v. Nwaimo, the learned judge did not have before him a claim or any evidence that will justify the making of a declaration. There is both a valid claim and evidence in the appeal before us. The finding of fact that Ikwuazom Menkiti was at the time of the sale of the land in dispute, the Okpala of Umuonogbo family and that the land in dispute was sold to late P.H. Okolo in that capacity and that late P. H. Okolo remained in undisturbed possession until his death is conclusive evidence of a valid transaction. It seems to me clear from the evidence that Ikwuazom Menkiti was held out as Okpala of Umuonogbo family as having authority to conclude transactions in respect of Okpoko lands on behalf of members of the family. In such a circumstance the transactions so made are valid and binding on the family – see Secretary L.T.C. v. Soule (1939) 15 NLR 72. Udo v. Melifonwu (1961) 5 ERLR.93 at p.98.’
PROOF OF TITLE BY WORD OF MOUTH IS ALLOWED FOR NATIVE LAW AND CUSTOM
‘Mr. Sofunde has impugned the transaction on the alleged ground that evidence thereof is hearsay. It is well settled that writing is unknown in customary transactions, hence evidence of such transactions can only be given by the parties themselves and/or the witnesses present. In the absence of such persons other persons to whom the story of the transactions has been told. It is because of this defect that the wise provision of section 44 of the Evidence Act was made to enable evidence of such transactions. Section 44 provides that – “Where the titles to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant”’
‘Although Traditional evidence seems to relate to transactions which have been made several years ago and has been aptly described in Alade v. Awo (1975) 4 S.C. at 223 as “hearsay upon hearsay,” it is unarguable that its origin is the recognition and acceptance of the story of transactions which has been handed down orally from father to son, and from generation to generation. It does not in my opinion cease to be traditional history merely because it is oral and that the first generation is relying on such oral account of the transaction. The indicia of “evidence as to rights alleged to have existed beyond living memory… “required in Abinabina v. Enyimadu 12 WACA at p.172 seems to me too restrictive. The true basis of and rationale for the admission of oral evidence of such transactions that is they are evidence of customary law, are not in writing and that the parties and witnesses to the transaction are most probably dead or no longer available. Antiquity is one, but not the only of the factors of the transaction that is to be considered. The fact that no witnesses can speak from personal knowledge of the transaction is a most persuasive and relevant consideration – See Alade v. Awo (1975) 4 S.C. at p.224. The Courts below were right in the view they took of the evidence of the transaction. This disposes of the 1st-4th issues for determination and grounds 1, 2, 3 and 5 of the grounds of appeal which are hereby dismissed.’]
.
.
.
✓ DECISION:
‘The judgment of the Court of Appeal affirming the decision of Awogu J (as he then was) of the High Court of Onitsha dated the 14th April, 1980 is hereby further affirmed. Appellants shall pay the sum of N500 as costs to the Respondent.’
➥ FURTHER DICTA:
⦿ ISSUES FOR DETERMINATION MUST ARISE FROM GROUNDS OF APPEAL FILED
It is important to emphasise that the formulation of the issues for determination should be based on the grounds of appeal filed and related to the judgment challenged. A formulation of issues for determination which ignores the grounds of appeal seems to me to be raising issues which do not fall within the scope of the grounds of appeal. An Appellant can only canvass issues covered by the grounds of appeal filed; and so will the issues formulated for determination. The appeal before this Court is against the judgment of the Court of Appeal. The judgment of the High Court is only an issue to the extent affirmed or rejected by the Court of Appeal. Accordingly, the first issue for determination in this appeal as formulated by Counsel for the Respondent cannot be an issue properly arising for determination before this Court. The 2nd and 3rd issues formulated seem to me to fall generally within the grounds of appeal filed. It is therefore convenient to discuss them under the general penumbra, in the issues formulated by Counsel to the Appellants. — A. G. Karibe-Whyte JSC.
⦿ WHERE IT IS SAID THAT A CUSTOM EXISTS FROM TIME IMMEMORIAL
Also paragraph 5 of the Plaintiffs Amended Statement of Claim averred that “late P.H. Okolo acquired the land in dispute from time immemorial”. He, from the evidence, bought he land in 1941. Can one really say that “was acquired from time immemorial”? The expression “time immemorial” has a specific meaning. It is time whereof the memory of man is not to the contrary. When a person alleges in legal proceedings that a custom or prescription has existed from time whereof the memory of man runneth not to the contrary, he is as much as saying that no man then alive has heard any proof of the contrary. This is what is called time or living memory. Time of legal memory runs from the commencement of the reign of Richard 1 (1189). Time immemorial is beyond the time of legal memory. What has Onitsha Customary law got to do with 1189, (when Onitsha town was not even settled), Richard] and “time immemorial”? In any event the date of the alleged sale of the land in dispute to the father of the Plaintiff/Respondent is known – 1941). Why not plead that? In an attempt to appear pedantic one may end up being either ridiculous or confusing. As I said before, I will again repeat – in their pleadings let the parties aspire to be concise, be at home with our own legal concepts and terminology and try to call a spade a spade. — Oputa JSC.
⦿ PROPER SALE OF LAND UNDER CUSTOMARY LAW
It is correct to say that to acquire title by sale/purchase under customary law, there should be satisfactory evidence that there was in fact a sale of the land in dispute. This can be proved by tendering a purchase receipt: see Ogunbambi v. Abowaba 13 W.A.C.A. 222 at p.225 or be proved aliunde. Ogunbambi’s case above is authority that payment of purchase money and delivery of possession are enough to establish title by purchase under customary law. Cole v. Folami (1956) 1 F.S.C. 66 added some new dimension to the requirement of proof of title by purchase of family land namely – there ought to be proof that the sale was with the consent of the family and that the transaction took place before witnesses. Erinosho v. Owokoniran (1965) NMLR 479 added a further requirement – not only that the sale should be concluded in the presence of witnesses (as postulated in Folami supra) but also that those witnesses should see the actual “handing over” of the property. — Oputa JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
A. G. Karibi-Whyte, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Sofunde.
⦿ FOR THE RESPONDENT(S)
Mr. Okolo.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
