William Pikibo Daniel-kalio & Anor V. Lemuel Daniel-kalio (2004)
LawGlobal-Hub Lead Judgment Report
MICHAEL EYARUOMA AKPIROROH, J.C.A.
This is an appeal against the judgment of K.D. Ugbuku, former Chief Judge of Rivers State, delivered on 28th February, 1995, in suit No.PHC/583/91.
In paragraph 15 of his statement of claim, the plaintiff now respondent claimed the following reliefs:
“(i) A declaration that the plaintiff is a co-owner of the property, known as No. 81 Victoria Street, Port Harcourt, otherwise known as Block No. 78 Plot A in lease of 12th November, 1930, with No. 17/17/303 with the defendants under Okrika customary law of inheritance.
(ii) Alternatively, a declaration that the said property belong to the Daniel-Kalio family of Okrika jointly under customary law.
(iii) A declaration that the Power of Attorney registered as No. 54 at 54 in Volume 139 at the Lands Registry, Port Harcourt, granted in favour of I.A. Adedina, Esq. cannot be used to issue notice and eject the plaintiff and is to that extent, illegal and void as against the plaintiff.
(iv) An order of perpetual injunction restraining the defendants whether by themselves or through their agents, attorney, privies and/or servants from harassing or molesting the plaintiff in his enjoyment of the property and/or from disposing of the said property without the prior consent of the plaintiff.
(v) Such further and/or other reliefs as this Honourable Court may deem fit to make.”
Briefly, the appellants’ case in the lower court was that the respondent is not the first son of late Michael Daniel-Kalio, but the son of Erasmus Daniel-Kalio. The respondent used to be known as Lemuel Amarvi until 1965, when he was assisted by Christopher Wokoma Daniel-Kalio (lst defendant now deceased) to change his name to Lemuel Daniel-Kalio by an affidavit sworn to by him.
The property in dispute originally belonged to late Chief Daniel-Kalio and not late Madam Henrietta Daniel- Kalio. Late Chief Daniel Kalio in his life time, erected a building on the land but when he died, his direct children themselves agreed that their sister, Henrietta should administer the property on their behalf and she obtained letters of administration to that effect hence, her name was used in the deed of lease.
The current building on the premises was erected from the money and materials realized from the Estate of late Chief Daniel Kalio by late Chief Johnson Kalio, the husband of late Madam Henrietta Daniel-Kalio.
As the surviving sons of late Chief Daniel-Kalio, they are the only ones entitled under Okrika, native law and custom to inherit the property in dispute as joint owners to the exclusion of any other person. Under the said custom, until all the natural and direct children of a man die, his grand children like the respondents cannot inherit. When they noticed that the respondent had occupied part of the property in dispute, they and the respondents’ father in their family meeting asked him to vacate the premises, but he refused and later sued them to court.
Briefly, the respondent’s case was that he is the 1st son of late Chief Michael Daniel-Kalio who was the 1st son of Chief Oju Daniel-Kalio of Kalio House Okrika. He is a product of “IYA” marriage which entitled him to inherit the property of his late father and also to enjoy any interest in the family property through his late father.
The property in dispute, No. 18 Victoria Street, Port Harcourt, originally belonged to late Madam Henrietta Daniel-Kalio, who was the eldest daughter of late Chief Oju Daniel-Kalio and was of the same father with his father, and the appellants on records. Henrietta Daniel-Kalio died intestate in 1979 without having any surviving male child and the property reverted to the Daniel-Kalio family and his late father Chief Michael Daniel-Kalio as the head of the family administered it even during the life time of Henrietta. His father, late Chief Michael Daniel-Kalio allocated to him one room which he used as an office and the facilities in the office were also used by the appellants any time they held family meetings.
Under Okrika native law and custom on inheritance, he as a product of “Iya” marriage and having performed the customary “Ash” to “Ash” of “Kenie Gwa” ceremony during the burial of his late father as the 1st son is entitled to succeed and inherit the right or share of his late father both as his first son and also a member of late Chief Daniel-Kalio family. It was also his case that the property in dispute on the death of Madam Henrietta Daniel-Kalio devolved on Daniel-Kalio family jointly and not exclusively for the biological children of late Chief Oju Daniel-Kalio, who was not the original owner. The appellants have been harassing him by issuing notices to him to quit the room he has been occupying in the property in dispute, hence he sued them to court.
At the end of the trial and in a reserved judgment, the learned trial Chief Judge granted the reliefs sought by the respondent. Dissatisfied with the judgment, the appellants have appealed to this court and formulated three issues for determination as follows:
Issues for determination
“(a) Whether the approach of the learned trial Judge does not amount to casting the burden of proof on the defendants instead of the plaintiff.
(b) Whether on the available evidence it could be said that the plaintiff had proved his case on the balance of probability to warrant a judgment in his favour.
(c) Whether the learned trial Judge was correct in rejecting the defence of the appellants having regard to the pleadings and evidence before him.”
They also filed a reply brief. The respondent raised the following issues for determination:
“(a) Was late Chief Daniel-Kalio the original owner of the property in dispute or was the original owner late Madam Henrietta Daniel- Kalio and whether the learned trial Judge properly evaluated the evidence on record before making his several findings of fact upon which he entered judgment for the respondent. This issue with respect covers additional grounds 1, 2, 3, 4, 5, 7 and 8.
(b) Whether the learned trial Judge’s findings on the disputing claims as to Okrika native law and custom was correct or not, and whether his conclusion on same is borne out of the evidence placed before him. This issue covers additional ground 6.
(c) Whether the learned trial Judge was correct in his declaration that the Power of Attorney was void and of no effect whatsoever having regard to the findings earlier made as to the ownership of the property in dispute and the applicable native law and custom of Okrika on inheritance. This issue covers additional ground 9 of the appeal.
Before raising issues for determination, the respondent raised a preliminary objection to the competence of the appeal.
I will first of all consider the preliminary objection before considering the issues framed by the parties for determination in this appeal.
Learned Counsel for the respondent in respect of his preliminary objection submitted in his brief of argument that this court lacked jurisdiction to entertain the appeal because the notice of appeal dated and filed on 8/3/95 is not valid as the only ground of appeal contained therein is incompetent in law and that being so, the additional grounds filed by the appellants pursuant to a motion granted on 1/3/2000 and the appellants’ brief therein are incompetent and invalid. He then referred to the ground of appeal at page 93 lines 25, 28 of the records.
He went further to argue that there is a distinction between omnibus ground of appeal in civil and criminal appeal, stressing that in a civil appeal, the omnibus ground is that the judgment is against the weight of evidence while in a criminal appeal it is that the verdict is unreasonable and cannot be supported having regard to the evidence. Reliance was placed on the cases of Ihewuezi v. Ekeanya (1989) 1 NWLR (Pt.96) 239 at 243; Innih v. Ferado A.C. Ltd. (1990) 5 NWLR (Pt.152) 604 at 614 and Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt.49) 267 and Ijahenda v. Iyau (1999) 11 NWLR (Pt.628) 686 at 689.
He further submitted that the situation is not saved by the additional grounds of appeal dated and filed on 25/6/98 which was granted on 1/3/2000 pursuant to the motion filed on 25/6/98, because the additional grounds of appeal must emanate from a valid notice of appeal. He further contended that if the only ground of appeal is incompetent as in this case, the question of an amendment in any form will not arise.
He finally submitted that the court has the power to strike out the entire appeal based on the preliminary objection since the hearing of the appeal has not even commenced let alone completed and that the situation is not saved by the fact that the court had earlier granted the appellants leave to file and argue additional grounds of appeal. Reliance was placed on Nsirim v. Innih (1997) 7 SC 57; and Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314 at 331.
In reply, learned Counsel for the appellants submitted that the original ground of appeal is competent and valid and relied on the case of Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534 and Inyang v. Ebongo (2001) 25 WRN 138. He also relied on Order 3 rule 2(4) of the Court of Appeal Rules, 1981.
He contended that in his view, the other words in the ground, “that is altogether unreasonable, unwarranted and cannot be supported having regard to” are mere surplusage and cannot invalidate the ground on the principle of falsa demonstrato non nocet (a false description does not vitiate a document) stressing that surplusage under rule 4 of Order 3 of the Court of Appeal Rules can be struck out and that even if it is not struck out, the omnibus ground of appeal as formulated in the notice of appeal is still a valid ground of appeal. Reliance was placed on Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534. He urged the court to overrule the preliminary objection.
The contention of learned Counsel for the respondent is that the omnibus ground of appeal is for criminal and not civil matters and such the court lacks the jurisdiction to entertain the appeal. At this stage, I would like to reproduce the omnibus ground of appeal.
It reads as follows:
“That the judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
Order 3 rule 2(4) of the Court of Appeal Rules, 1981 (which was the law at the time the notice was filed) enacts as follows:
“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted, under this rule may be struck out by the court of its own motion or on application by the respondent.”
In Inyang v. Ebong (2001) 25 WRN 138, the appellant filed a notice of appeal, wherein he alleged that:
“The judgment is unreasonable, unwarranted and cannot be supported, having regard to the weight of evidence, it was held that it was a good ground of appeal because it contains the general ground in civil maters that the “judgment is against the weight of the evidence”.
The other words in the ground of appeal that is altogether unreasonable, unwarranted and cannot be supported having regard to can be struck out under rule 4 (supra). See also the cases of Adeyeri v. Okobi (supra); Atuyeye & Ors. v.Ashamu (1987) 1 NWLR (Pt. 49) 267 and Akibu v. Opaleye & Ors. (1974) 11 SC 189.
From the foregoing, the preliminary objection is overruled and it is accordingly dismissed.
I will now proceed to consider the appeal on its merits.
On issue one, the substance of the submission of learned Counsel for the appellant was that the learned trial Judge failed to consider the case of the defendants at all and wrongly shifted the onus of proof on the appellants and that the procedure adopted by him occasioned a serious miscarriage of justice. He relied on a plethora of cases including the Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704; Kodilinye v. Mbanefo Odu (1935) WACA 336 at 337 and Woluchem v. Gudi (1981) 5 SC 291.
In reply, learned Counsel for the respondent submitted that the learned trial Judge properly evaluated the evidence led by the parties before making his findings and entered judgment in favour of the respondent.
I am unable to accede to the contention of learned Counsel for the appellants that the learned trial Judge failed to consider the case of the appellants at all and shifted the onus of proof on them. I will elaborate on this when considering the other issues formulated by the parties.
I will now take issues (b) and (c) formulated by the appellants together with issues (a), (b) and (c) formulated by the respondent. The submission of learned Counsel for the appellants on issue (b) is that the respondent failed to prove his case because the Okrika native law and custom on which he predicated his claim was not pleaded let alone proving it and relied on paragraphs 7, 8, 9, 10 and 12(a) of the respondent’s statement of claim to show that the averments do not constitute sufficient pleading of Okrika native law and custom of inheritance. On proof of custom, he relied on sections 14 and 59 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. He also relied on the cases of Liadi Giwa v. Bisiriyu Erinmilokun (1961) All NLR 294 at 296; (1961) 1 SCNLR 337 Adegboyega & 2 Ors. v. Igbinosun & 3 Ors. (1969) NMLR 9 at 13; Ogbah v. Akpede (1975) 1 NMLR 201.
It was also his submission that there are material contradictions in the evidence of the respondent, PW2 and PW3 and referred to pages 25 lines 22-24, 28, lines 29-33 of record of proceedings, stressing that it was wrong for the learned trial Judge to have entered judgment in favour of the respondent and relied on the cases of Adebayo v. Ighodalo (1996) 5 NWLR (Pt. 450) at page 507; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) page 393 and Oluma v. Onyuna (1996) 4 NWLR (Pt. 443) page 449.
On issue (c) he submitted that the learned trial Judge was wrong in rejecting the defence of the appellants having regard to the pleadings and the evidence led in support. In their defenses, the appellants pleaded the Okrika native law and custom on inheritance to show that the respondent’s case was misconceived, but the trial Judge rejected their defence and found fault with every aspect of their defence. He referred to his findings on exhibits E, F and G to show that the issues raised by the appellants were not considered by him and relied on the cases of Kemp v. Elisha (1918) 1 KB 228 and Re Boyees (1884) 26 CD 531.
On issues (a), (b) and (c), learned Counsel for the respondent submitted that the learned trial Judge properly evaluated the evidence led before him on the Okrika native law and custom of inheritance and came to the right conclusion that the property originally belonged to Madam Henrietta Daniel-Kalio as shown in exhibit A and that the learned trial Judge reviewed exhibits E, F and G and attached no weight to them.
He further submitted that the argument of learned Counsel for the respondent in his brief that, nobody testified that Madam Henrietta Daniel- Kalio was disqualified from administering the estate of her father, by reason of her sex is misconceived because counsel cannot in his address or brief make out a case not borne out from the pleadings and the evidence led in support.
He went further to argue that belief or non-belief of witnesses, assessment of such evidence and the ascription of probative value to such evidence are matters within the province of a trial Judge who had the opportunity of hearing and seeing them testifying, stressing that once a trial court discharged the above responsibilities, the Court of Appeal will not interfere with such findings of the court unless they are shown to be perverse or not supported by the evidence. Reliance was placed on the cases of Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370 and Akpule v. Agbeotu (1990) 10 NWLR (Pt. 621) 107 at 120.
The appellants relied heavily on exhibit F to show that the property originally belonged to late Chief Daniel-Kalio and not Madam Henrietta Daniel-Kalio.
The learned trial Judge examined exhibit F and came to the conclusion that it did not prove that the property originally belonged to Chief Daniel-Kalio. At page 82 of the records lines 10-19 the learned trial Judge held:
“It is trite law that neither exhibit F, a private letter, not any other evidence can alter, amend or contradict exhibit A, which is a title document. It is worthy to note that Madam Henrietta Daniel-Kalio died only in 1979. From 1930 to 1977, a period of 47 years, the defendants who are the male children of Chief Oju Daniel-Kalio did nothing to protect their interest in the property which they knowingly (sic) and (sic) against the custom of their land…”
Having admitted exhibit F, the court considered the weight to be attached to it in the con of the issues in controversy between the respondent and the appellants. This shows clearly that the learned trial Judge considered the evidence led before him by the parties before he came to his conclusion. He did not shift the onus of proof on the appellants. See the cases of Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 at 233.
In further discharge of the burden of evaluation of evidence properly, the learned trial Judge at page 83 lines 5-10 and page 84 lines 1-25 of the records evaluated the evidence of the appellants as to whether their claim that the property originally belonged to their father, late Chief Oju Daniel-Kalio was right. At page 83 lines 16-30 the learned trial Judge said:
“There is another serious lacuna in the defendant’s case and that is their late father root of title to the property. They neither pleaded nor gave evidence on Chief Oju Daniel-Kalio’s title to the property in dispute. There is no evidence on how Chief Oju Daniel-Kalio title to the property in dispute. There is no evidence on how their late father became the owner of the property. Had he a lease of the property or grant from any person or Government. The mere evidence that the property belonged to their late father does not suffice. It is trite law that whoever claims title to property must prove the title of that other person through whom he claims. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393 at 395…”
There was no iota of evidence led by the appellants as to how their late father Chief Oju Daniel-Kalio came to own the property. On the other hand, exhibit A proves conclusively that the property was leased to late Henrietta Daniel-Kalio by the resident of Owerri Province on behalf of the Excellency the Governor for 99 years. The learned trial Judge evaluated the evidence led by the parties and came to the conclusion that the property belonged to late Henrietta Daniel-Kalio. The evidence of the appellants that the property belonged to their late father, Chief Oju Daniel-Kalio is not enough to prove the title of their late father to the property.
They must go further to prove how their late father came to own the property. As the learned trial Judge said at page 34 in paragraph 6(v) (a) of the appellants’ amended statement of defence they pleaded as follows:
“The late Madam Henrietta was the eldest daughter and child of the late paramount ChiefDaniel-Kalio. On the death of the late paramount Chief, Madam Henrietta, on behalf of the other children of the late Chief Daniel Kalio, obtained a Letter of Administration for and on behalf of the other children to administer the estate of the late Chief by consent of the other children.”
On the Okrika native law and custom on inheritance, the learned trial Judge dealt exhaustively with it at page 78 lines 11-34 of the records:
“In the present case, the parties gave evidence on the custom as asserted and called a witness each in support. From the evidence so far led on the custom of inheritance, the following facts are admitted by both parties and therefore appear to have been proved.
1. It is only male children of Ya marriage that are entitled to inherit the father’s estate.
2. That female children of whatever marriage and of whatever age have no right of inheritance. Female children who are not married out only benefit from the share of their brothers.
3. That a beneficiary of an undivided estate cannot pass on any part of the said estate to his children. But where an estate is shared among the direct sons of the deceased, such shares or portions become personal and can be passed on to grand children.
4. An undivided estate remains the property of the whole family and is administered and enjoyed by all as agreed upon by members of the family from time to time.”
“I shall now relate this admitted custom to the facts of this case. Late Madam Henrietta Daniel-Kalio was the eldest of all the children of late Chief Oju Daniel-Kalio, but she was a female child
By the Okrika custom of inheritance, Henrietta Daniel-Kalio was disqualified by reason of sex to inherit or even administer the estate of their late father, Chief Oju Daniel-Kalio. DW2, William Pikibo Daniel- Kalio testified that after the death of their father, all the children met and appointed Henrietta as the Administratix of their father’s estate. What they did is obviously a negation to custom. DW1, Chief Ngeri Rolands, who gave evidence on the custom of inheritance expressed surprise under cross-examination at what the family of Daniel-Kalio was alleged to have done. The defendants neither pleaded nor gave evidence that what they did in this particular case was in ignorance of their custom.
It was a family of ten children, five males and five females at the time of their father’s death. It is again, neither pleaded nor given in evidence what special circumstances warranted their appointing Henrietta, a female to administer their father’s estate. It is a family of highly educated persons, who are also vast in the custom of Okrika. The defendants story without more is hard to accept as true.”
At page 79 of the records, lines 1-25 he continued:
“I shall now relate this admitted custom to the facts of this case. Late Madam Henrietta Daniel-Kalio was the eldest of all the children of late Chief Oju Daniel Kalio, but she was a female child. By the Okrika custom of inheritance, Henrietta Daniel-Kalio was disqualified by reason of sex to inherit or even administer the estate of their late father Chief Oju Daniel-Kalio. DW2, William Pikibo Daniel-Kalio testified that after the death of their father, all the children met and appointed Henrietta as the Administratix of their father’s estate. What they did is obviously a negation to custom. DW1, Chief Ngeri Rolands, who gave evidence on the custom of inheritance expressed surprise under cross-examination at what the family of Daniel-Kalio was alleged to have done. The defendants neither pleaded nor gave evidence that what they did in this particular case was in ignorance of their custom.”
In paragraph 6(v)(a) of the appellants’ amended statement of defence, they pleaded as follows:
“On the death of the late Paramount Chief, Madam Henrietta, on behalf of the other children of the late Chief Daniel-Kalio, obtained a letter of administration for and on behalf of the other children to administer the estate of the late Chief by consent of the other children. That was why the building lease of No. 81 Victoria Street came to be in the name of the said Madam Henrietta. A letter from Chief Johnson Kalio, the husband of Henrietta, dated 21st March, 1931, to the first defendant, informing him that everything about their late father was done in the name of Madam Henrietta Daniel-Kalio shall be relied upon at the trial of this suit.”
The letter of administration alleged to have been obtained by Henrietta for and on behalf of all the children to administer their father’s estate was not tendered in evidence and no reason was given for not tendering it. The only inference to be drawn from this is that, if they had tendered it, it could have been unfavourable to their case. Secondly, the lease of the property, exhibit A is in the name of Henrietta Daniel-Kalio as the Lessee. Exhibit A does not refer to any letter of administration. It is therefore, beyond argument that exhibit Aproves conclusively that the property in dispute originally belonged to Madam Henrietta Daniel-Kalio as I said earlier. On exhibit G, the minutes of the family meeting, the learned trial Judge compared the signature of late Michael Daniel-Kalio on it and his signature on exhibit E, the Power of Attorney and came to the conclusion that it was spurious and attached no weight to it.
He is entitled to make the necessary comparison for the purpose of ascribing the appropriate weight under section 108(1) of the Evidence Act.
The contradictions referred to by learned Counsel for the appellants are minor contradictions which do not vitiate case of the respondent. Suffice therefore to say that the appellants failed woefully to prove that the property belonged to their father in the face of exhibit A. As I said earlier, failure to tender the alleged letters of administration obtained by Henrietta with the consent of all the other children of the late Chief also goes to show that the property belonged to Madam Henrietta Daniel-Kalio.
On exhibit E, the Power of Attorney given to one Ifedayo Adedipe, the learned trial Judge said at page 86, lines 18-32, and page 87 lines 1-6 of the records as follows:
“Another signature credited to Chief Michael D. Daniel-Kalio appears on “exhibit E” the Power of Attorney donated to Mr. Ifedayo Adedipe. The signatures of Chief Michael D. Daniel-Kalio in exhibits “E and G” are not the same. The difference is clear. The court does not need the evidence of handwriting expert on it. The court has to be very cautious in considering the said documents and the signatures credited to a deceased, who has no opportunity of refuting either. The defendants did not tender any signature of Chief Michael, Daniel-Kalio in a document unconnected with the property in dispute. The signature of Chief Michael D. Daniel-Kalio in exhibit G in particular looks spurious and I am not moved to attach any weight to it.”
“I am convinced to hold from the facts and circumstances so far reviewed at length that the original owner of the property in dispute, No. 81 Victoria Street, Port Harcourt, is late Madam Henrietta Daniel-Kalio and not Chief Oju Daniel-Kalio as claimed by the defendants.”
It is my view that these findings are supported by the evidence led before the trial court. As I said earlier, the learned trial Judge compared the signature of late Michael Daniel-Kalio on the Power of Attorney, exhibit E with another signature on exhibit G which the appellants claimed was signed by him and arrived at his conclusion. Still on the Power of Attorney, exhibit E, the learned trial Judge, having found earlier that the property did not belong originally to the late Chief Daniel-Kalio but to late Madam Henrietta Daniel Kalio, the property on her death devolved on Daniel-Kalio family according to Okrika native law and custom of inheritance and as such the donors of exhibit E, having not donated it on behalf of Daniel-Kalio family, renders it null and void and of no effect whatsoever, in that you cannot give what you do not have (nemo dat quod non habet).
At page 88 lines 11-22 of the records, the learned trial Judge said:
“…The plaintiff and some members of Daniel-Kalio family, are living there as members of the said family. It is in evidence, which is not rebutted, that they were put in occupation by the then Chief and head of Daniel-Kalio family, Chief Michael Daniel-Kalio. It is wrong to castigate plaintiff as a squatter in the circumstances. The plaintiffs occupation of the one room can only be terminated by a decision of the whole Daniel-Kalio family and not by an act of the defendants, claiming through their father. See J.D. Manuel v. Chief Gladstone Bob Manuel 7 WACA 101.”
These findings are supported by the evidence led before the trial court. The appellants failed to prove that the property belonged to their father. It is quite clear from the findings of the learned trial Judge that the property originally belonged to Madam Henrietta Daniel-Kalio and after her death, it devolved on Daniel-Kalio family, according to Okrika native law and custom on inheritance. The evidence that other members of Kalio family live in the house was not challenged and as such the respondent as a member of Daniel-Kalio family is entitled to live in the one room he occupies and he can only be removed by a decision of the entire Daniel-Kalio family and not the appellants alone as found by the learned trial Judge.
From what I have said above, the appeal lacks merit and I hereby, dismiss it and affirm the judgment of the lower court. The appellants are to pay the respondent N5,000.00 costs.
PROCLAMATION: Hon. Justice S. A. Akintan who presided at the hearing, agreed with the decision reached above at the conference, held on the case before his appointment as Justice of the Supreme Court.
Other Citations: (2004)LCN/1559(CA)
