Thomas Anozie V. Cajethan Emerenini & Anor (2016)
LawGlobal-Hub Lead Judgment Report
PETER OLABISI IGE, J.C.A.
This appeal is against the judgment of the Customary Court of Appeal Imo State delivered on 31st day of May 2001 dismissing the appeal of the Appellant to that Court from the Customary Court, Nwaoriebu, Mbaitoli Local Government Area of Imo State.
The Appellant had in 1989 commenced the action at the Customary Court Nwaorieubi, Mbaitoli Local Government against the original Respondent Dominic Emererenini seeking for:
(a) Court Order to compel the Respondent to accept ?IRI IHE ? ISE? or its equivalent of N10.00 as being the Redemption Fee for the said Lands known as ?UZU MBUTUKWU (1 & 2), AKPALA? ?UHU OTUBA? and NWAONYE respectively.
(b) Injunction restraining the Defendant, his servants or and agents from further entry into the said Lands till final disposal of the case.
The said Customary Court gave judgment against the Appellant on 14th day of July, 1997 whereupon he appealed to the Lower Court on six grounds. The appeal was duly heard and judgment was again given against the Appellant on 31st day of May, 2001 culminating into this
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appeal. The Appellant filed his Notice of Appeal containing four Grounds which without their particulars are as follows:
?GROUND 1
The Customary Court of Appeal Owerri erred in Law when it held that the Customary Court Nwaorieubi was properly constituted and therefore competent when it sat and delivered its judgment on 14th July, 1997.
GROUND 2
The Learned Justice of the Customary Court of Appeal Imo State erred in Law when they held that the Plaintiff?s evidence as to the existence of a Customary Pledge was not sufficient to give him judgment on the balance of probabilities.
GROUND 3
The Learned Justice of the Customary Court of Appeal, Owerri erred in Law in holding that the trial Customary Court was right in admitting and relying heavily on Exhibit ?A? as evidence of a Customary arbitration.
GROUND 4
The judgment is against the weight of evidence.?
The Appellant?s Brief of Argument dated 30th day of October, 2002 was filed on 31st day of October, 2002. The Respondent?s Brief of Argument dated 27th day of March, 2003 was filed on 3rd day of April, 2003 and was deemed
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properly filed on 18th day of June, 2003.
This appeal was heard on 12th day of April, 2016.
It must be noted that records show that the Original Respondent to this appeal was reported dead in 2008. It took the Appellant almost seven years before the sons of the Original Respondent (DOMINIC EMERENINI) were brought in to take the place of their father the Original Respondent. The two sons who are now Respondents to this appeal are CAJETHAN EMERENINI and CHUKWUMA EMERENINI. They replaced the Original Respondent by Order of this Court made on 2nd July, 2013.
The Appellant distilled three issues for the determination of the appeal viz:
1. Whether the Customary Court of Appeal Owerri was right in holding that the trial Customary Court had jurisdiction to determine the case even though there was evidence before it that the Customary Court has ceased to be properly constituted long before it delivered judgment.
2. Whether the Customary Court of Appeal, Owerri was right in holding that the Plaintiff/Appellant failed to prove his case on the balance of probabilities.
3. Whether the Customary Court of Appeal, Owerri was right in holding that
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the trial Court was justified in their reliance on Exhibit ?A? and ?B? tendered by the Defendant.
The Respondent adopted the three issues formulated by the Appellant. This appeal can be determined on the three issues formulated by the Appellant.
ISSUE 1
Whether the Customary Court of Appeal, Owerri was right in holding that the trial Customary Court had jurisdiction to determine the case even though there was evidence before it that the Customary Court has ceased to be properly constituted long before it delivered judgment.
The Learned Counsel to the Appellant J. E. Okodogbe Esq., stated that on 15th day of March, 2001, the Appellant?s Counsel tendered a letter from the Personnel Department of Customary Court of Appeal, dated 19th day of May, 1999 before the Customary Court of Appeal and the said letter was admitted as Exhibit ?A? on page 173 of the record of appeal. Thus, according to Learned Counsel to Appellant, there was evidence before the Customary Court of Appeal indicating that the tenure of MR. B. C. OGUEKE and Chief D. O. Nwaba as members of the trial Customary Court, Nwaorieubi expired on
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9th June, 1997 three days after hearing was concluded on 6th June, 1997. That as at 9th June, 1997, there ceased to be a properly constituted Court because the said Customary Court of trial is a creation of State. That the composition of the Court was regulated by Section 4(1) and (2) (i) (ii) of the Customary Court Edict No. 7 of 1984 as amended by Customary Court (amendment) Edict 1987 which Learned Counsel reproduced. That there is no provision in the Law establishing the said Court authorizing one member to sit and determine a cause of matter before Customary Court. That the Customary Court shall only be properly constituted by at least two Judges at all material times. That Exhibit ?A? admitted by Lower Court made it legally impossible for the Court to have been properly constituted on 14/7/97 when the trial Customary Court delivered the judgment. That the Customary Court lacked jurisdiction to determine the case. He relied on the case of MADUKOLU V. NKEDILIM (1962) 1 ALL NLR. 581 at 590 per BAIRAMIAN JSC. That the issue of jurisdiction is so fundamental that it can be raised at any stage of the proceedings. He relied on a case without
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citation as GAMBO VS. TURDAM. The Learned Counsel quoted extensively what he said was the ratio dicedendi of the said case. That the issue of jurisdiction is very substantial. He relied on the case of OBIANWUNA OGBUNYIYA & ORS. VS. OBI OKUDO & ORS. (1979) ALL NLR 105 to contend that the decision of the Customary Court of trial?s judgment is a nullity. That the said Court had no jurisdiction to deliver the judgment. He relied on the case of KPEMA VS. THE STATE (1986) 2 SC 41 per Obaseki, JSC. He urged this Court to resolve Issue 1 in favour of the Appellant.
In his response, the Learned Counsel to the Respondents E.C. UBAKONU Esq. contended that the so called Exhibit ?A? which was tendered by Appellant?s Counsel for the first time in the Customary Court of Appeal, Owerri was wrongly admitted and that the Customary Court of Appeal, Owerri was right in not giving any consideration to it in its determination of the appeal. On the way of bringing in a document to the attention of the Court and for it to be considered, he referred to the case of AHMAD V. SOKOTO HOUSE OF ASSEMBLY & ANOR. (2002) 44 WRN 52 AT 65. That the
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document tendered from the Bar was not a certified true copy of the purported document in reference and that it was not attached to any Affidavit. That the Appellant did not make any case on balance of probability.
He submitted that the trial Customary Court sitting at Nwaorieubi had jurisdiction and was properly constituted as at the time it delivered its judgment on 14th July, 1997. That there is no evidence to show in Law when the tenure of the Chairman and members of the Customary Court, Nwaorieubi would expire. That the judgment delivered was proper and Lawful.
Now jurisdiction of a Court is pivotal and vital in the adjudication of a cause or matter brought before a Court or Tribunal and where a Court is devoid or bereft of jurisdiction, the trial will be a complete nullity no matter how well conducted the proceedings might have been.
In other words, if there is no jurisdiction in a Court it means there is no case before the Court worthy of any adjudication. The importance of jurisdiction has thus been underscored in numerous cases. Suffice to refer to the cases of:
(1) SLB CONSORTIUM VS. NNPC (2011) 5 SCM 187 at 196 E ? H where
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ONNOGHEN JSC, who delivered the lead judgment said:
?In the case of Okolo vs. Union Bank of Nigeria Supra at page 108 this Court has the following to say on the importance of jurisdiction in adjudication: Jurisdiction is the pillar upon which the entire case before a Court stands. Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but it is entirely broken. In effect, there is no case before the Court for adjudication and therefore parties cannot be heard on the merits of the Case.?
What then are the conditions precedents to the exercise of a Court?s Jurisdiction? Or when is Court of Law said to be competent to hear and determine a Case? In Madukolu Vs. Nkemdilim (1962) 2 NSCC 374 at 379 ? 380, this Court stated that ?A Court is competent when:
1. It is properly constituted as regards the number and qualifications of its members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there no
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feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case coming up before the Court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.?
2. DR. OLUBUKOLA ABUBAKAR SARAKI VS. FEDERAL REPUBLIC OF NIGERIA (2016) 3 NWLR (PART 1500) 531 at 588 E-H to 589 A-C per MOHAMMED, C.J.N. who said:
?The appellant?s issue number one now under consideration is challenging the unanimous decision of the Court of Appeal that the Court was right in its decision that the Code of Conduct Tribunal was right in holding that it was properly constituted on 18/9/2015 when it sat and conducted its proceedings and ultimate ruling with only the Chairman and one other member. This in effect is a challenge on the jurisdiction of the tribunal as vested under the Constitution. The meaning of the word jurisdiction has been accepted as the authority which a Court or tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the
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present case may be prescribed, as it has been prescribed by statute under which the Court or tribunal was created. Concisely stated, jurisdiction means the authority which a Court or tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in National Bank (Nig.) Ltd v. Shoyoye (1977) 5 SC 181. To put it in another way, a Court or tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so. See Kalio v. Daniel Kalio (1975) 2 SC 15. Since it is the competence of the tribunal that is being challenged in this appeal, the law is that a Court or tribunal is only competent when.
?1. It is properly constituted with respect to the number and qualification of its members.
2. The subject matter is within its jurisdiction;
3. The action is initiated by the due process of law; and
4. The condition precedent to the exercise of jurisdiction has been satisfied.
as laid down by this Court in its leading decision on this subject in the case of Madukolu & Ors v. Nkemdilim & Ors (1962) 1 All NLR 587.
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(1962) 2 SCNLR 341 per Bairamain, JSC. The failure to satisfy anyone of these conditions is fatal to the exercise of jurisdiction and adjudication.?
The provisions of Customary Court Edict No. 7 of 1984 as amended by Customary Court (amendment) Edict 1987 relied heavily upon by Appellant read as follows:
?4(1) Every Court shall consist of a Chairman and two other members who shall be styled Customary Court members, all of whom shall be appointed by the judicial Service Committee.
(2) (i) For the purpose of hearing any cause or matter in the Court, the three members will be present.
(ii) Where it is absolutely unavoidable for the three members to be present, any two members shall lawfully constitute a full Court, and shall lawfully sit and hear and determine any cause or matter.?
The Appellant had stated that he tendered exhibit ?A? at the Customary Court of Appeal which is buttressed by the record on page 173 thereof, to contend that as at the time the judgment was given, the tenure of office of members except the chairman had expired. The same Appellant stated that hearing in the matter had concluded on
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6/9/1997 three days before the judgment was delivered on 9/6/97.
I am of the view that since the chairman of the Customary Court was not shown to have any impediment from performing his function in the Court as the chairman of the Customary Court, it cannot be said that the judgment of the Customary Court delivered along with a member whose tenure was alleged to have expired is null and void.
The Appellant has not said that the decision on the matter was arrived at by the members on the very day the judgment was delivered. There is nothing to show that the tenure of office of the said members were not reviewed and renewed by the Judicial Service Committee before the judgment was delivered.
?It also evident that letter did not emanate from Judicial Service Committee of Imo State. I also observe that the letter was addressed to one Chike Osuocha Esq of Nnaewa Law Chambers of 19 M.C.C. Road Owerri without showing in what capacity the letter was so addressed and the Appellant did not even tender the letter that gave birth to Exhibit ?A? which was admitted by Lower Court on 15/3/2001. I agree with the Lower Court that even if it could be
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said that the person who signed the judgment with the chairman of the Customary Court was no longer a member of the Customary Court, the judgment of the Customary Court cannot be vitiated.
I remain resolute in my mind that since Exhibit A WAS NOT written by Judicial Service Committee, it will be foolhardy to rely on it to nullify the judgment of the trial Customary Court.
Issue one is resolved against the Appellant.
ISSUE NO. 2
WHETHER THE CUSTOMARY COURT OF APPEAL WAS RIGHT IN HOLDING THAT THE PLAINTIFF/APPELLANT FAILED TO PROVE HIS CASE ON THE BALANCE OF PROBABILITIES.
The Appellant?s Learned Counsel J. E. OKODOGBE, Esq. stated that title to five (5) PIECES OF land was in issue before the TRIAL CUSTOMARY COURT. He stated the five recognized ways in which ownership of land may be proved as laid down in the case of IDUNDUN V OKUNMAGBA (1976) 9-10 SC 227 at 246 ? 250. That Appellant relied on evidence of traditional history and so did the Respondent who also relied on evidence of Customary arbitration. That in reading its decision, the trial Customary Court did not in any way evaluate the evidence of traditional history given by
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the parties as according to him, the trial Customary Court merely repeated the evidence of the parties. That the only attempt made was to discredit the case of the appellant on the ground that the evidence of Appellant?s witnesses concerning how much was the pledge money was contradictory. That the trial Customary Court also relied on Exhibit A (Arbitration Report) tendered before trial Court by Defendant along with Exhibit ?B? and found in favour of Defendant which according to appellant was without any reason whatsoever.
That the trial Customary Court was bound to have placed evidence of both parties side by side and test or weigh them against other evidence adduced by the parties to the case. The Appellant then narrated how his forefather deforested the land and went through the evidence of his witnesses vis-a-vis that of the Defendant. That evidence of DW4 supported the Appellant?s case and that evidence given by PW4 was not challenged under cross examination. He relied on NWOSU V. MMADUGHA (2000) 1 NWLR (Pt. 641) 486 at 495.
The Appellant?s Learned Counsel submitted that in the instant case and from the evidence
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adduced by the Plaintiff/Appellant, there is a reasonable probability that the land was pledged to EGBUJUONUMA. He urged the Court to hold that the Appellant proved the case on balance of probabilities.
In response to the above submission, the Respondent submitted that the trial Court and Customary Court of Appeal were right in its holding that the appellant did not prove his case on balance of probability to warrant any judgment in favour of Appellant. He submitted that the settled custom of the parties is that it is the person who buried a dead person and performed the burial and funeral rights that inherits the deceased property and estate.
That the Appellant testified that it was EGBUJUOMA, the grandfather of the respondent that buried ELUCHIE and performed the burial rites. That he failed to give evidence of the lands of the person he is claiming. On whether the trial Court made proper use of the exhibits, the Respondent contended the trial Court made proper use of the documentary evidence. That the trial Court made proper finding of facts and found that evidence of PW1 and PW2 contradicted themselves aside from the facts that there were a lot of
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discrepancies on the evidence of the appellant?s witnesses. That the Appellants and his witnesses were unable to state the exact amount for which the lands in dispute were allegedly pledged. That Appellant also failed to mention the names of persons that witnessed the pledge transaction. He urge the Court to dismiss Appellant?s appeal on this issue.
The totality of the evidence before and findings of a Customary Court whose decision is appealed against must be scrupulously examined. The Court of trial and the Lower Court must be liberal in its approach to evaluation of evidence and ascription of probative value to the Oral and documentary evidence before the trial Customary Court. This is because trial are not conducted on pleadings and Evidence Act at the Customary Courts and Area Courts. The Appellate Courts hearing appeals from the Customary Courts have been enjoined not to interfere with the findings of the Customary Courts except where a case of grave miscarriage of justice have been made out or proved to have occurred on the face of record of proceedings and conclusion of a Customary Court rendering its findings to be patently per
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versed. See:
(1) CYPRIAN ONWUAMA VS. LOTUS EZEAKOLI (2002) 5 NWLR (PART 760) 353 at 365 D ? F per UWAIFO JSC who said:
“It must be remembered that this case was tried in a Customary Court where pleadings are unknown. The proceedings in such Court are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties. In other words, appellate Courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure permitted by such Courts: See Dinsey v. Ossey (1993) 2 NWLR (Pt. 277) 510; Chukwueke v. Okoronkwo (1999) 1 NWLR (Pt. 587) 410; Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672.?
(2)ISAAC JITTE & ANOR. VS. DICKSON OKPULOR (2015) 2 NWLR (PART 1497) 542 at 559 C ? E per GALADIMA JSC who said:
?I cannot fault the finding of fact by the trial Court that the respondent rightly proved his claim that the old road was the boundary between
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the respondent?s Umuolu Family and appellant?s Umuapaku Family. The Court accordingly delivered judgment in favour of the respondent. The finding of fact came from the trial Court constituted by a panel of men who were better placed to appreciate the matter before them. They had the opportunity to watch the demeanour of witnesses. They visited the locus to ascertain the claim of the respondent herein. The appellate Courts frown upon disturbing concurrent findings of fact painstakingly made by Lower Courts which are not perverse.?
At page 570 E ? H of the report Kekere ? EKUN JSC, said:
?It is imperative to reiterate the fact that appellate Courts have always adopted a liberal approach to Customary Court proceedings. Attention is focused on substance rather than form. The aim is to do justice and reach a decision that is in accord with common sense and reasons, devoid of legal technicalities. See: Odofin v. Oni (2001) 3 NWLR (Pt. 701 488 @ 510, A ? B, (2001) 1 SCNJ 130. What the Court is concerned with is that the proceedings were conducted fairly and in accordance with the rules of that Court. It was held in:
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Nithah v. Bemieh (1931) AC 72; 2 WACA 1 @ 3 that:
decisions of the native tribunal on such matters which are peculiarly within their knowledge, arrived at after a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong.?
In Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12 @ 18, E this Court held per Uthman Mohammed, JSC:
?What is essential in examining the trials in a Customary Court is to look into the entire evidence in the proceedings in order to discover the precise nature and subject matter in controversy between the parties. The form of wording of the claim and the parties. Capacity should not be a germane issue for the impeachment of a Customary Court?s judgment.? (Italics mine).?
PW1 (Appellant) testified before the trial Court thus:
?I brought defendant to Court because he is having my lands. The number of my lands he is having is five. The names of the lands are ?Mbutu Ukwu 1 and 2, Akpala? Ihuotuba and Nworiyanu and they can be located at Umuomara Umutaku Ifeakala. These lands belong to me. I went to redeem these
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lands from Defendant and he refused that is why I brought him to Court. Defendant is farming on the land. These lands were deforested by Dim Anoruo, and he originally owned these lands. Dim Anoruo farmed on the land. Dim Anoruo was our ancestoral father. Dim Anoruo was survived by two sons named Durunuihe and Nduwuaku. Dim Anoruo is now late. Before his death he shared his landed properties among those his two children. The five piece of land now in dispute were inherited as his shares by Nduwuaku had three sons named Ezuruike, Ajukaefunobi and Eluchie. The three children of Nduwuaku inherited these lands in dispute. These sons farmed on these lands community. The three sons of Nduwuaku are not late. Among the three sons of Nduwuaku, only Ajukaefunobi had male issues. When the three sons of Nduwuaku died it was Anozie who inherited these lands now in dispute. Anozie was the son of Ajukaefunobi and he inherited his property. Anozie is now late. I know how Eluchie one of the sons of Nduwuaku was buried at his death. Eluchie was buried under native law and custom. It was the responsibility of Anozie to bury Eluchie. Egbujuonuma is the grandfather of Defendant and
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was the oldest in the family and he performed the tradition burial rites. When Egbujuonuma performed the traditional burial rites, my father gave him these pieces of land as pledge and which he would redeem when he got money. In Igbo Custom this amounts to pledge. The cost of the burial expenses incurred by Egbujuonuma was ?Tri-ihe-ato? or ?5 or N10.00.
It is the custom of Umuomara Umutaku Ifeakala that when the pledgor is ready he could redeem his land from the pledge. If he settles the pledgee, by paying him his money, the pledge is bound to leave the land for the pledgor. My father was not able to redeem these lands.
I have personally tried to redeem these lands myself. The lineage of Egbujuonuma that now inherited the lands in dispute is that of Defendant. Defendant?s father is called Emerenini. I have made several attempts by summoning Defendant before the Umunna, the Umutaku and the Chairman of the whole Town and Home/Abroad members but Defendant refused to respond to these complaints and summonses.
Under cross examination he said:
?It is true that up till today and from the time of Durumaihe,
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Egbujuonuma, Emerenini and Dominc these lands had been in possession of the lineage of Defendant who also farmed on them. I know the late Eze O. E. Ahaneku. It is true I sued Defendant before the Eze and his Cabinet but he did not settle the matter.?
?The PW2 is the wife of the Appellant who testified that the lands were being farmed upon by Defendant. She said further:
?My father in law, his sister and the Plaintiff told me that these pieces of land are on pledge and they belong to my husband i.e. Plaintiff and that he should redeem them whenever he is buoyant to do so. ?. The pledgee Emerenini isthe father of the Defendant.
was told that the pledge fee was ?Iri ? Ihe ? Ato? or ?5 now N10.00.?
PW3 is one JOSEPHINE ANUNINI who stated the Plaintiff is her full blooded brother. That the pledge fee was N10.00. She testified under cross examination this:
?It was Defendant?s father that was cultivating the land in my father?s life time and not the Defendant.?
The entire evidence of the PW4 which Appellant relied so much upon is as follows:
PW4 ? BERNABAS UMUNNAKWE- Sworn on the Bible and states in Igbo as follows:- My name is Bernabas Umunnakwe, I live at Umutaku Ifeakala. I am a welder. I know the parties. I know why they are in Court. The subject matter of action are lands. The lands are situate at Umutaku Ifeakala in Mbaitoli L.G.A. I have been involved in looking into this dispute between the parties. It is the Umuanyaku kindred meeting
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that looked into the matter. Before we under took into the matter both of the parties consented to our doing so. And when the parties consented we had to bind them to abide by our decision or else the dissenting party will have to be penalized. The parties took us to the lands for us to determined issues relating to the dispute. On inspection of the lands we discovered that each piece of the disputed lands had demarcations between Nduwuaku of the Plaintiff and Durumuihe of the defendant respectively. The surviving lineage of Durumuihe today is the defendant while the surviving lineage of Nduwuaku is the plaintiff. We found that the Defendant had a portion of land that cut into the portion farmed by the plaintiff. When we assembled on the next day of reach a decision, Defendant with ?.and informed us that this matter is better determined by the Court. In our custom if one is found farming a land that is not within his original share of lands, it is either that he bought it or the land is on pledge and could be redeemed when the pledgor feels like doing so. Based on our observations the land in dispute belongs to the
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plaintiff.
Cross-examination By Counsel for Defendant- It is true I stated there are five pieces of land in dispute. These pieces of land are in different locations. It is true I stated that the Defendant entered the middle of plaintiff?s land. All the land are involved and the buttings are inside the lands of the plaintiff. Wherever plaintiff has land, Defendant also owns land there because they have a common ancestors through whom they inherited their lands. Each of the pieces of land have two portions farmed by of the parties. It is true that Defendant exceeded his boundary with the plaintiff and entered the centre of plaintiff?s own boundary. It is true that the lands in dispute are each small in size. The Defendant farm these lands up to date. From the time I was knowledgeable, the Defendant had been farming the lands. I know late Eze C. E. Ahaneku of Ifeakala. I carry out my welding work in Ifakala. I have the knowledge when the plaintiff sued Defendant before the late Eze in respect of this case. It is true that the parties had appeared before the Eze in Council before they appeared before our own local
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arbitration. I was not told by the plaintiff that he .Eze-in-Council arbitration. I am not aware lost that this matter was pending in Court before our Umunna arbitration.
Put ? The plaintiff had no confidence in your arbitration panel.
Ans ? It is not true.
We had been looking into this matter for the past six years but there was no success before the parties went to the Eze of Ifeakala for arbitration. The Chairman of Umuonyalo kindred meeting Hyginus Onyeakazi. Aloysius Umejuru ? Chairman Lagos branch, myself, Iwuanyanwu Amaefule took part in the arbitration of the kindred level.?
The Defendant evidence (Original Defendant) DOMINIC EMERENINI. The evidence of DW1 is as follows:
?DW1 ? DOMINIC EMERENINI ? Sworn on the Bible and states in Igbo:- My name is Dominic Emerenini. I live at Umutalu Ifakala. I am a farmer. I know the Plaintiff, he comes from Umutalu Ifekala. We are related through our great grandfather. I know why I am in Court. It is because of land matter for the plaintiff sued me in Court. These are five parcels of land viz Akpala, Uzo Mbutu Ukwu, (Two
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parcels) Nworieanu, Uhu Etuba and these lands are situate at Umutaku Ifakala. My boundary neighbours in Akpala land are Iwuanyanwu Amaefule, Umunnakwe Umujuru, Akubuko Amajuoyi. In Uzo Mbutukwu 1 & 2 ? are money hard Amajoyi i.e. Akubuko, Matthew Nwogu, Fidelis Ejiogu, Andrew Umuzuzo. In No. 2 ? Uzo Mbutuukwu land are Iwuanyanwu Amaefule, Thomas Anozie (plaintiff). My neighbours on Nworieanu are Umunnakwe Umojuru Iwuanyanwu Amaefule. And on Uhu Etuba are Iwuanyanwu Amaefule, Raymond Nwaiwu, Ferdinard Ikpegbu & Eddy Osunkwo and plaintiff. I have been farming on these lands since my birth. I inherited these lands from my great grandfather. By my ancestors of the 3rd generation I mean Durunnuihe that is my great- grandfather. From Durunnaihe, the lands passed on to Egbujuonuma, and to Emerenini and finally to me. Throughout these generations they ancestors farmed the lands before inherited them. Dimanoruo begat Ajuka, Ajuka begat Durunnaihe and Nduwuaku. Nduwuaku begat Ajuka, Ajuka begat Anozie and Anozie begat the plaintiff. These parcels of land had never at any time been on pledge to anybody. The lands of the plaintiff?s have also
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never been on pledge. I was in Court when PW1 ? PW4 testified, my father never told any of the witnesses nor myself that any or allof the parcels of land in dispute was on pledge. I have not heard or known about N10.00 pledge fee over these lands. Plaintiff sued me before our kindred during the pendency of this suit and I declined to respond because the matter was already in Court. Plaintiff sued me before the late Eze Ahaneku of Ifakala. Some members of Eze?s Cabinet included Dennis Ekwuchiem, Ihenetu Igbjiokwu, Dominic Orugha etc. We appeared before the Eze and his Cabinet and stated our case. Eze and Cabinet decided that plaintiff should confine himself to his father?s own lands while I also should keep to mine. The Eze?s decision was documented and Dennis Ekwuchiem signed it while Ihenetu Igbojiokwu thumprinted. The Eze also signed the document. The plaintiff accepted the decision of the Eze in the matter. After I have received the decision in writing. I then farmed the lands for three consecutive years before the plaintiff sued me in respect of these lands in this suit. I want the Court to ask the plaintiff to confine himself to
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his own land while I remain on mine.
Case is adjourned to 29/8/96 for cross-examination of DW1.
(SGD)
Chairman & Member 16/8/96
RESUMED AT NWAORIEUBI, THE 29TH DAY OF AUGUST, 1996
BEFORE THEIR HONOURS:
1. SIR, H.A.C. ERONINI === CHAIRMAN
2. SIR, B. C. OGUERE ==== MEMBER
SUIT NO. CC/NV/55/89
BETWEEN:
Thomas Anozie ==== Plaintiff
AND
Dominic Emerenini ======= Defendant
Parties present. Chike Osuocha Esq. for plaintiff and V. O. Eronini (Mrs) for Defendant. The matter is for cross-examination of DW1.
Cross ? examination of DW1 ? Dominic Emerenini ? sworn on the Bible and states in Igbo. I testified in Chief on 16/8/96 and was not cross-examined that day. I am not the only surviving son of Durumaihe. I know Alban Azubuike, Paulinus Azubuike, Benedict Azubuike and Chinwendu Azubuike respectively and they are descendants of Durumaihe as they are the sons of Azubuike. Durumaihe. If the estates of Durumaihe is being shared today, the above names, as well as myself will benefit from the share. We have the Nduwuaku lineage and the Durumaihe lineage. Whose father was Duru
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Anoruo. It is true that the landed property of Duru Norue was shared by Nduwuaku and Durumaihe. It is not true that Nduwuaku begat Ajuka, Eluchie and Ezuzurike because I do not know them. I know Anozie Ajuka. Ajuka was the father of Anozie and Anozie is the father of plaintiff. It is true that from the lineage of Nduwuaku, the only surviving son is the plaintiff. By the custom I am not involved in the landed property of Nduwuaku lineage. If any member of the Nduwuaku lineage pledged lands, it devolves on plaintiff to redeem them. Egbujuoma is one of the sons of Durumaihe and Egbujuonuma begat Emerenini my father. It is not true that the plaintiff has approached me to redeem the five pieces of land now in dispute. It is not true that the father of the plaintiff pledged any lands to my father Egbujuoma for Nnu Ihe Iri now N10.00. I first knew of plaintiffs claim to redeem these lands when plaintiff sued me before the late Eze Ahaneku of Ifeakala. The only attempt by the plaintiff that talked about redemption of lands was at the suit before the late Eze of Ifakala. I am 50 years of age. I was mature enough when Anozie die. I did not know my grandfather
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Egbujuonuma (At this point it became noticeable that other witnesses were in Court and were then ordered out of Court and out of hearing). I do not know when the Aba Women Riot took place. I was born in the same month as the plaintiff. My father did not tell me that the pieces of land were no pledge for Egbujuonuma his father by the father of plaintiff. Durumaihe and Nduwuaku lineage do not have lands sharing boundary at mbutu Ukwu I but in all others they share common boundaries. It is not true as stated by PW2 that she was told by my father that these lands are no pledge to him.?
DW2 Dennis Ekwuehuciem confirmed that Appellant sued Respondents before the Eze at the material time and that the decision was in favour of Respondent. He said:
?Our arbitration decision was that the person who performed the burial rites of a person will inherit his property. And because the issue about the lands in dispute took place many years back we decided that the defendant should own these lands.?
The document was admitted as Exhibit ?A? under cross-examination. The said DW2 insisted the lands were adjudged in favour of the
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Defendant and he mentioned the lands adjudicated upon at the local Arbitration to be UHU, OKOHIA AKPALA, MBUTU UKWU and UHU OBORO Lands. DW3 did not testify about the land, was called to tender document marked Exhibit ?B?.
DW4 UMUNNAKWE UMEJURU was a boundary man to the land in dispute and was 85 years when he testified on 22/1/97. He testified that the lands have always being in possession of the Defendant and no one has ever challenged him. He confirmed the evidence of DW2. He was cross-examined but not on his evidence that the lands have always being in possession of the Defendant.
?I have gone to this length to lay bare the entire evidence before trial Court. I have calmly read the record particularly the oral and documentary evidence of the parties before the trial Customary Court as reproduced above and evidence at Locus in quo. I perused Exhibit ?A? which is also copied on pages 70 ? 71 of the record and I am of the solemn view that the trial Customary Court captured properly all the pieces of evidence led in the Courtroom and the evidence of witnesses and observations of the trial Court at the locus in quo. There
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was proper evaluation of all the oral and documentary evidence led and the conclusions of the trial Court is not perverse as they are amply supported by the evidence on record.
Consequently I hold that the Customary Court of Appeal, Owerri was right in holding that the Plaintiff/Appellant failed to prove his case on balance of probabilities.
ISSUE 3
Whether the Customary Court of Appeal was right in holding that the trial Customary Court was justified in their reliance on Exhibit A and ?B? tendered by The Defendant.
The complaints of the Appellant here are that the trial Customary Court admitted two documents as Exhibits ?A? AND ?B?. That the said Court held that exhibit ?A? is prima facie evidence of an alleged arbitration between the parties while exhibit B was admitted as PW1?s evidence in a previous proceedings in the same case but before previous panel of trial Customary Court.
The Appellant contended that Exhibit ?B? was tendered through DW3 and not through him (Appellant) and that his attention was not drawn to the content or any part thereof and was not tendered
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to contradict any part of his evidence. That the only use to which Exhibit ?B? could be put was to use it to discredit Appellant in the current proceedings as to his veracity and integrity in the witness box. He relied on the cases of JONAH EGESIE & ANOR VS ONUENSO ELELE (2001) 8 NWLR (PART 716) 582 at 590 and ALADA V ABORISADE (1960) SCNLR 398.
On Exhibit ?A? which was tendered through DW2, the Appellant stated that other pieces of evidence given by DW2 both under Examination in Chief and Cross Examination make it difficult for a Court to attach any weight to the document.
In reaction to the above submission under Issue 3, the Respondent Learned Counsel submitted that the trial Court was right in relying on Exhibits ?A? & ?B? to reach conclusion. That the trial Court was not bound by Evidence Act. He relied on Section (2) (c) of the Evidence Act, LFN 1990.
?That the Appellant was given opportunity to object or otherwise before Exhibit ?B? was admitted being certified True Copy of previous evidence of the appellant tendered by Court?s Registrar DW3. That the document speaks for
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itself. On Exhibit ?A? which the Appellant contended was signed by only two of the Arbitrators, Respondent submitted that DW2 through whom Exhibit ?A? was tendered is/was a signatory to Exhibit ?A?. That it does not matter whether the other two members signed. That the Appellant was the person who took the case before Customary Arbitration before Eze Ahaneku to which both of them submitted themselves. That the Appellant cannot now be heard to complain because the tide was against him. He urged the Court to affirm the decision of Lower Court.
?I consider it necessary to reproduce the entire contents of Exhibit ?A?. Exhibit ?A? reads:
?15th Nov. 1985.
DECISION ON A LAND DISPUTE BETWEEN MR. THOMAS ANOZIE (PLAINTIFF) VS. MR. DOMINIC EMERENINI (DEFENDANT) BOTH FROM UMUTAKU VILLAGE IN IFAKALA AUTONOMOUS COMMUNITY IN MBAITOLI LOCAL GOVERNMENT AREA.
THE LAND(S) IN DISPUTE IS/ARE KNOWN AND CALLED THE NAMES OR BEAR THE NAMES OF THEIR LOCATIONS.
PREAMBLE:
The Plaintiff Mr. Thomas Anozie summoned Mr. Dominic Emerenini before the Eze and his Cabinet for the possession of his
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lands. The case was first tried on 4th Nov. 1985 and was later disposed on 15th Nov. 1985.
COURSE:
The Plaintiff explained that he filed the case against Dominic Emerenini for holding their lands. He said that the lands are five in number and in the following different locations: 1 at Akpala, 2 at mbutukwu; 1 at Nwaonyeanu and the other 1 at Uhuotuba. He said that the late Emerenini father of the Defendant has been farming on the lands since long ago when his father, Anozie was still under the mother?s care. He added that he did not know the age at which his father died but pointed out that he died on 6th Nov. 1935, that is, about fifty years ago.
On a question to him by one of the Eze?s advisers if there is any person alive that can bear witness, he said that there is none.
In his own statement, the Plaintiff Mr. Dominic Emerenini said that he has no other lands since his life time apart from these ones. He explained that the whole family of Umudimanorue, Egbujuonuma ? his grandfather: Anozie ? father of the plaintiff; Igiriogu, his cousin and Azuwike had their respective shares on these disputed lands. He further
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explained that the lands were permanently shared during the life time of Durunihe and Nduwuaku by their great-grand-father. And that after them, their off-springs inherited their shares of the lands.
On a question if anyone knows of the lands in dispute, three members of the family Umunakwe, Umejuru, Iwuanyanwu Amaefule and Hyginus Onyeakazi said that they don?t know anything about the lands.
DECISION:
WHERE AS the Plaintiff has no evidence to substantiate his claim AND WHERE AS there is nobody even in Umutaku Village to give evidence regarding to lands in disputes, the Eze and his Cabinet members decided that Dominic Emerenini should continue to work on the lands and advised the Plaintiff to desist from false claims.
SGD.
CABINET MEMBERS: HRH EZE C. E. AHANEKU, MFR
1. Mr. Dominic Onugha .. (Eze Riohamma 1 Of Ifakala)
2. Nze Dennis Epuchiem sgd.
3. Nze Ihenatu Igbo
DATED AT EZE?S PALACE THIS
15TH DAY OF NOVEMBER, 1985.?
?It is glaringly evident that it was the Appellant that took the matter relating to the lands in dispute to the Native Arbitration. It was after the
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decision of the Arbitration did not favour him that he had recourse to the Lower Court. The Appellant should be held bound by the decision of the Arbitration to which he took the defendant. He cannot eat his cake and have it. He cannot wriggle out of the binding decision of the Native Arbitration which was duly signed by His Royal Highness EZE C. E. AHANEKU. The odds are against the Appellant. Exhibit ?A? cannot be impeached by him. An examination of Exhibit ?A? actually shows that the Eze (HRH) and Nze Dennis Epuchiem signed while Nze Ihanetu Igbo thumb printed Exhibit ?A?.
I fully agree with the submissions of Learned Counsel to the Respondents. There is no miscarriage of justice against the Appellant on the premium paid on Exhibits ?A? and ?B? which the trial Customary Court relied upon and found against the Appellant.
?I am of the view that Exhibit ?A? binds both the Appellant and the Respondent being report or decision of the Customary Arbitration before which Appellant took the Respondents. He cannot resile from the effect of the Native Arbitration decision which found the
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land to belong to Defendants.
With regard to Exhibit ?B? the Appellant was represented by Counsel at the trial. If he had found Exhibit ?B? inimical to his interest, he had every opportunity to be recalled and say something on Exhibit ?B?. This he did not do.
In any event there is abundance of other pieces of evidence before the trial Court and on the printed record which fully supported the findings and conclusion of trial Customary Court to the effect that the five parcels of lands belong to the original Respondent and now the Respondents. Therefore with or without these Exhibits ?A? and ?B? the findings that the lands belong to Defendant now Respondents cannot be faulted.
The Lower Court was/is right in affirming the decision of the trial Customary Court. The Customary Court and the Lower Court have demonstrated proper and sufficient appreciation of all issues in controversy between the parties which issues are peculiarly within the knowledge of the Customary Court members.
?In result the Appellant?s Appeal lacks merit. The Appellant?s appeal is hereby dismissed in
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its entirety. The judgment of the Customary Court of Appeal, Owerri delivered on 31st day of May, 2001 is hereby affirmed.
The Appellant shall pay costs assessed at N50,000.00 (Fifty Thousand Naira) to the Respondents.
Other Citations: (2016)LCN/8792(CA)
