Christian Iroegbu V. Ndubuisi Amakulo Mpama & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
This is an appeal against the judgment of the Abia State Customary Court of Appeal, holden at Umuahia, in appeal No. CCA/UM/3/2001, coram/ J.I. Onuh PCCA; SMC Onyensoh and E.U. Onuoha , JJCCA, delivered on 18/11/2004.
On 12/01/98, the present Appellant (for himself and on behalf of Umudi Umuagwu family) filed a suit in the trial customary court of Abia State, Ikwuano Area customary court judicial Division, holden at Olori, seeking the following reliefs against the 1st, 4th and 5th Respondents:
- A declaration of the Hon. Court that the plaintiff is entitled to the Customary Right of occupancy over those 8 portions/parcels of land known and identified as “OLORI NKPA” situate and lying at Ahua Oboro at Annual rental value of N10.00.
- N2,000.00 special and General damages for trespass.
- An injunction restraining the defendants his(sic) heirs, servants, agents, privies and workmen from entry into the said land in dispute pending the determination of the suit.
- An order the Hon. Court compelling the defendants to accept from the plaintiff the redemption fee of sixteen shillings (16 shillings) now N1.60 for the redemption of the portion of land.
However, the Appellant filed a motion on notice on 02/2/98 seeking to join the 2nd and 3rd Respondents which was granted by the trial court on 11/02/98.
The suit proceeded to trial. The Appellant gave evidence as PW1 and also called two other witnesses who both testified as PW2 & PW3. On the other hand, four witnesses, including the 5th Respondent, testified for the Respondents as DW1 – DW4, respectively. At the conclusion of the trial of the said suit, the trial customary court delivered judgment, on 15/7 /99, to the effect, inter alia, thus:
From the evidence before us coupled with the above findings and the land inspection, we are satisfied the plaintiff Engr. Christian Iroegbu has proved this case as required by law…
… DW1 does not even known the traditional history of the land. He did not even refute the claim of pledge by Nwaonini to Nwanydinma Solomon Mpama. Above all, during land inspection DW1 discoed the other 7 portions of this land. Nor did we see any land belonging to Osuamanta or Agbara. In the circumstances, suit No. CC/IK/1/98 succeeds. We are satisfied that the one portion of this land on which DW1 has his house was pledged to Naunyidinma. The other portions were just seized because of greed. There (sic) Kinsmen have no land there. Plaintiff prayers are hereby granted. Customary Right over the 8 portions of land is granted to plaintiffs in perpetuity. DW1 to pay costs assessed at N500.00 plus summons fee of N540.00 total N1,040.00 to Plaintiff.
Certain consequential orders were also made by the trial customary court as follows:
- Plaintiff do redeem the land by refund of the pledge sum of N1.50 payment through court is sufficient evidence of redemption.
- Defendants, their heirs, agents etc. are permanently restrained from further trespass on this “Olori Nkpa” land which is hereby awarded to Plaintiff – Eng. Christian Iroegbu.
- For good neighbourliness, D.W.1. is given 12 Calendar months with effect from 15/7/99 to make alternative arrangement for accommodation and leave the land. If however, D.W1 wishes to continue living on that one portion of “Olori Nkpa’ land. He becomes a tenant of the plaintiff after the expiration of the 12 months grace. He could then negotiate with the plaintiff who is hereby granted customary Right of Occupancy over the 8 portions of land known and call ” Olori-Nkpa” or Efuruama Umusom”
- DW1 Silas Sam Mpama to pay cost assessed at N500.00 and refund summons fee of N540.00 – Total – N1,040.00 to plaintiff.
The present Respondent were, not unnaturally, dissatisfied with the trial customary court’s judgment in question. They accordingly field their appeal No. CCA/UM/3/2001 in the court below upon a total of three grounds of appeal. At the conclusion of the hearing of the said appeal, the court below delivered judgment on 18/11/2004, to the effect, in inter alia, thus:
In the instant appeal based on the printed records, I can not say the Plaintiff/Respondent up “a little more probable” case, not in the face of the fact that the defendant has been in possession for upwards of fifty years.
After all, possession is 9/10 of ownership. The recorded evidence of the Plaintiff on the question of pledge, as I have said earlier, is smoky and not reliable. I am not satisfied, on the recorded evidence, that the plaintiff/Respondent is entitled to the claims he made in his writ of summons and I dismiss them.
In the end result this appeal succeeds on the grounds 1 and 2. On the whole, it is the Defendant/Appellant who has shown a better title and I so declare him entitled to the customary right of occupancy over the disputed land.
The verdict, orders and costs made by the trial court are hereby set aside. I shall make no order as to costs.
It is needless to state that the judgment of the court below, prepared and delivered by J.I. Onuh PCCA, was unanimous, with both SMC Onyensoh and E.U. Onuoha JJCA, concurring therewith.
Not unexpectedly the Appellant was not satisfied with the decision of the court below. Thus, he has filed the instant appeal, which was originally predicated upon three grounds of appeal, thereby praying this court.-
“To allow the appeal and set aside the decision of the trial customary court (sic).”
It’s instructive, that parties have field and served their respective briefs of argument. The Appellant’s brief was filed on 16/01/2006, with the leave of court. The Respondent’s brief was filed on 02/8/06, but deemed properly filed and served on 12/6/07. In response to the Respondent’s brief, the Appellant deemed it expedient to file a reply brief on 26/6/07.
On 22/01/2009 when the appeal last came up for hearing, the learned counsel to the Appellant adopted both the brief and the reply brief thereof, and accordingly urged upon the court to allow the appeal, “and restore the judgment and orders of the trial court.” On the other hand, the Respondents’ learned counsel adopted the brief thereof and urged on the court to dismiss the appeal. Thus, the appeal was reserved to today for delivery of judgment.
The Appellant’s learned counsel, Dr. I.N. Ijiomah has formulated a total of five issues for determination in the brief thereof, to wit:
2.01. WHETHER THE CONCLUSION REACHED BY THE TRIAL COURT ON THE ISSUE OF PLEDGE OF PART OF THE LAND IN DISPUTE IS CORRECT (distilled from Grounds 3, 5 and 6).
2.02. WHETHER THE ISSUE OF TRADITIONAL HISTORY OF THE LAND IN DISPUTE WAS RAISED IN THE APPEAL BEFORE THE COURT TO WARRANT THE COURT BELOW EVALUATING THE EVIDENCE CONCERNING IT AND REACHING A DECISION ON IT (DISTILLED FROM GROUND 4).
2.03. ASSUMING THE ISSUE OF TRADITIONAL HISTORY OF THE LAND IN DISPUTE WAS RAISED IN THE APPEAL BEFORE THE COURT BELOW IS THE DECISION REACHED BY THE COURT BELOW ON THE ISSUE CORRECT, HAVING REGARD TO THE EVIDENCE BEFORE THE TRIAL COURT (DISTILLED FROM GROUND 4).
2.04. WHETHER THERE WAS ANY COMPLAINT IN THE APPEAL BEFORE THE COURT BELOW QUESTIONING THE EVALUATION OF EVIDENCE IN THE CASE OF THE TRIAL COURT TO WARRANT THE COURT BELOW EMBARKING ON EVALUATION OF EVIDENCE IN THE CASE. (DISTILLED FROM GROUND 2).
2.05. WAS THE COURT BELOW RIGHT IN GRANTING THE DEFENDANTS AS APPELLANTS IN THE COURT BELOW A RELIEF WHICH THEY NEVER CLAIMED EVEN IN THE TRIAL COURT (DISTILLED FROM GROUND ONE).
On the other hand, the Respondents’ learned counsel, Obasi Awa Esq; has equally raised five issues for determination in the brief thereof as follows:
2.01. WHETHER CUSTOMARY COURTS AND INDEED CUSTOMARY COURT OF APPEAL (THE LOWER COURT) ARE BOUND BY THE PRINCIPLE OF LAW WITH CONFINE PARTIES TO THEIR CLAIM(S) BEFORE THE COURT.
2.02. WHETHER THE LOWER COURT ERRED IN CUSTOMARY LAW WHEN IT EMBARKED ON THE RE-EVALUATINO OF THE EVIDENCE AS RECORDED BY THE TRIAL CUSTOMARY COURT.
2.03. WHETHER THE LOWER COURT IN CONSDIERING THE APPEAL FROM THE TRIAL CUSTOMARY COURT OUGHT TO DO SO IN THE STRICK SENSE OF LAW OR WHETHER GREAT LATITUDE MUST BE GIVEN TO CASES FROM CUSTOMARY COURTS.
2.04. WHETHER THE CONCLUSION REACHED BY THE LOWER COURT WAS PERVERSE AND THUS LED TO A MISCARRIAGE OF JUSTICE.
2.05. WHETHER THE QUESTION OF PLEDGE WAS NOT CANVASSED AT BOTH THE TRIAL AND LOWER COURTS THEREBY ROBBING THE LATTER THE COMPETENCE OF PRONOUNCE ON SAME.
ON RESPONDENTS’ NOTICE OF PRELIMINARY VIS-a-VIS THE APPELLANT’S REPLY BRIEF:
The Appellant’s counsel has in the brief thereof alluded to the Respondents’ notice of preliminary objection filed on 06/02/2006. According to the learned counsel, the Respondents’ counsel did not highlight his preliminary objection in his brief, thereby resulting in non-compliance with the procedure on raising preliminary objection. It is submitted, that although it’s permissible for a respondent to incorporate any preliminary objection in his brief, he should do so by heading it “Preliminary objection and dealing with it before the issues for determination. See SAM VS. ADEMILUYI (2003) 3 NWLR (Part 807) 381 at 402; MASHWARENS VS. ABDU (2003) 11 NWLR (Part 831) 403 at 413 paragraphs F – G. We have been urged to accordingly discountenance the said notice of preliminary objection.
It is settled law, that whenever a preliminary objection challenging either the competence of court to entertain a matter or appeal or the competence of a ground of appeal is raised, it is imperative for the court to first and foremost deal with that issue before proceeding to determine the appeal itself on the merits. See TIZA VS. BEGHA (2005) 15 NWLR (Part 949) 616; (2005) SC (Part 11) 1 at 12; UMAR VS. WGG (NIG.) LTD. (2007) 7 NWLR (Part 1032) 117 at 134 paragraph H; 135 paragraphs A – H, respectively.
The Respondents’ notice of preliminary objection, filed on 05/02/06, sought to strike out the entire grounds of appeal contained at pages 1 – 6 of the record on the grounds that:
The grounds of appeal tough couched in a manner that would give them customary law favour, do not raise questions of customary law, thereby denies (sic) the honourable court of the jurisdictional competence to entertain the appeal.
As rightly pointed out by the Appellant’s learned counsel, the said preliminary objection was not specifically highlighted or canvassed before delving into discussing the issues. It is evident from the record, that what the Respondents’ counsel actually did was to merely allude to the said preliminary objection at pages 4 & 5 of the brief thereof thus:
1.088. The respondents shall in course of this brief argue that the grounds on parts thereof are incompetent and that such grounds and issues accentuate from them be struck out as they do not confer jurisdiction on this court.
Notice is hereby given that the respondents shall by way of preliminary objection attack the grounds or part thereof for being incompetent.
After the above comment, the learned counsel immediately proceeded to raise five issues and argument thereupon. The notice of preliminary objection was thus left at large. Most certainly the preliminary objection has not been canvassed and it’s deemed abandoned. Consequently, the purported preliminary objection is hereby discountenanced.
It is a well settled principle, that where a Respondent is desirous of relying on a preliminary objection to the hearing of the appeal, he shall give the Appellant a three days notice prior to the hearing date, setting out the grounds of objection. See order 10 Rule 1 of the Court of Appeal Ru1es, 2007.
However, in practice, the court usually does accord a respondent the liberty to incorporate the preliminary objection in the brief thereof, provided that at the hearing of the appeal, he orally obtains leave of the court to move same before the adoption of briefs of argument. The essence of this all important principle is to guard against breaching the Appellant’s fundamental right of fair hearing. See section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; AIIDE VS KELANI (1985) 3 NWLR (part 12) 248; NSIRIM VS NSIRIM (1990) 3 NWLR (part 138) 285; AREWA ILES PLC VS ABDULLAHI & BROS MUSHWA LTD (1998) 6 NWLR (part 554) 508; UMAR VS W.G.G. (NIG.) LTD (supra at 135 paragraphs D -F.
In the instant case, there is no doubt that the Respondents’ learned counsel has failed to canvass any specific argument on the said preliminary objection in the brief thereof, as required by the rules and practice of this court. The preliminary objection is thus deemed to be at large, and same is hereby accordingly discountenanced.
In the same vein, I have discovered that both issues 2 & 3 of the five issues raised in the Appellant’s brief were distilled from a single ground i.e. ground 4 of the grounds of appeal, thereby resulting in proliferation of issues. It is trite that proliferation of issues is a fallout of a bad drafting technique, and thus antithetical to the rules and practice governing brief writing. In the circumstance, I have deemed it expedient to strike out issue No.3 of the Appellant in question. The appeal will be determined upon issues 1, 2, 4 & 5 of the Appellant’s brief reproduced above. The four issues in question are accordingly hereby renumbered as issues 1, 2, 3 & 4, for the purpose of the determination of this appeal. And they will be dealt with seriatim.
ON ISSUE NO.1
As alluded to above, issue No.1 of the Appellant raises the vexed question of whether the conclusion reached by the trial customary court on the issue of pledge of the part of the land in dispute was correct. It was distilled from grounds 3, 5 & 6 of the grounds of appeal. The argument on that issue is contained at pages 6 – 16 of the Appellant’s brief. In his submission, the Appellant’s learned counsel made copious references to pages 82 & 83 of the Record, to the effect that the court below in the judgment thereof rejected the findings of fact made by the trial court on the issue of the alleged pledge of a portion of the land in dispute to a member of the plaintiff’s (Appellant’s) family. B.O. Nwabuezes book, Nigerian Land Law, was also alluded to, most particularly at pages 276 paragraph 2,277 paragraph 3 & 278 paragraph 1, to the effect, inter alia, that lapse of time however long, can not constitute a bar to the pledgor to redeem the pledge.
On the dispute regarding the amount to be paid for (the redemption of) the pledge, the evidence of PWL, at page 100 lines 21- 23 of the Record, was referred to. According to the learned counsel, the court below erroneously called the redemption fee of 16/ – (sixteen shillings) a paltry sum, wondering why the Appellant who was able to raise 16/ – (sixteen Shillings) could not make up the extra 41. – as demanded by the Respondents. It was argued that the Appellant’s refusal to pay the extra 41- for the pledged land was contractually sound and good legal principle. That, the view of the court below is rather a “sociological approach to the issue,” and therefore irrelevant to the customary law on pledge.
It was likewise submitted, that the lower court’s conclusion that “no one can legally pledge land he has not shown to be the owner thereof,” is erroneous. See Black’s Law Dictionary 6th Edition at 53, to the effect that “under a pledge transaction it is only a possession right and not ownership that is transferred by the pledger to the pledge.”
On whether the pledge transaction was not an inter-family transaction or between two persons from two separate families, the counsel alluded to the evidence of PW2, at page 108 lines 15-17 of the Record, wherein she denied under cross- examination that there was never a time the Appellant’s family pledged any land to the Defendants. According to the counsel, the land was in PW2’s possession, through her father, she was sick and needed some money, so she pledged the land to a woman in the Defendants’ family.
It was argued that in reversing the findings of the trial court, the court below did not just rely on the assertion of the parties on the issue. Reference was made to the trial court’s findings regarding the visit to the locus inquo. It was contended that the mud building on the pledged land was not an act of ownership in the eyes of the law, having regard to the characteristics of the pledge under customary.
On the effect of the alleged plea of liability to the Appellant’s claim by the 2nd & 3rd Respondents, the findings of the trial court at pages 152, lines 8 – 19, 157, lines 14 – 19, 18 – 26 were copiously referred to. It was accordingly contended, inter alia, that “the principle of evidence against interest” applied by the trial court was correct, but which finding was reversed by the court below without taking into account the enormous facts from which the trial court came to the conclusion on the issue of pledge. It was submitted that the definite adverse finding of the trial court at page 157 lines 17-19 on the evidence of traditional history led by the DW1 to effect that –
“DW1 does not even know the traditional history of the land.”
was not appealed against to the court below. Thus, the counsel posed a question as to whether the court below had any judicial authority to revisit that finding on the evidence of traditional history of the land in question. That, the locus inquo had provided an opportunity for the trial court to assess the claims of the parties on the issue of pledge of the land in dispute, thereby correctly drawing an inference from the observations at the locus inquo and decision on the issue of pledge.
It was finally submitted, that in view of all the lapses committed by the court below resulting in reversing the findings of the trial court on the issue of pledge, the conclusion thereby reached by the said court below is perverse. The court has thus been urged upon to accordingly resolve issue No.1 issue in the negative, and accordingly allow the appeal.
On the other hand, the Respondents’ issue No.5 relates to the Appellant’s issue No.1 issue I alluded to above. The said Respondents, issue No.5 raises the question of whether the issue of pledge was not canvassed at both the trial and lower courts thereby robbing the later the competence to Pronounce thereupon. In the said brief thereof, the Respondents’ learned counsel has argued both issues 4 & 5 together at pages 14 – 18. The two issues were predicated on grounds 3, 5 & 6 of. the grounds of appeal. Issue 4 of course, raises the question of whether the conclusion reached by the lower court was perverse thus leading to a miscarriage of justice.
It was submitted that at the centre of this case, right from its inception the trial customary court, was the claim, from both sides that a portion of the land in dispute was on pledge – According to the Appellant, the land was pledged at 16/S – by one Nwaonini, a female member at their family to another woman Nwanyidinma from the Respondents family. On the other hand, the 4th and 5th Respondents, vide 5th Respondents, testified that part of the land of his father’s Sam, inherited from his larger father’s estate was the portion pledge Mbibi Oguma (male) by his in law Ochiobi (male). The land was later redeemed from Oguama following a resolution by the Oboio traditional council.
It was contended that the 4th & 5th Respondents’ version of the case was more plausible and compelling, thus acceptable to both the court below and the trial court. The evidence of the parties, contained at pages 99 – 133 of the Record, was referred to. In particular, the evidence of, the Appellant (PW1) was to the effect that the estate of Nwulu (the parties ancestor) was not shared. That, Jacob became the head of Nwulu’s family in 1967. That, the Appellant did not mention any women in tracing the family of Nwulu. That, the Appellant also failed to give evidence as to the relationship between the Person who pledged the land and the person who sought to redeem same.
It was further contended that, on the other hand, the 4th & 5th Respondents gave detailed evidence regarding the founder of the land, the sharing which allowed people to have control over their portions, and to the specifics of a member of their family, his grand father, and pledging [the land] to his in-law, Oguama. That, they also went up to Oboro traditional council. The case of CHAPMAN VS CFAO (1943) 9 WACA 181 was cited, to the effect that the community or family is personified by it’s chief or head. He represents it with regard to its rights in its lands. The evidence of the PW2, Nwachi Amavo of Ahuwa, Oboro, both in-chief and under cross-examination, was referred to regarding the “puzzle” surrounding the pledge issue. It was contended, that from the conflicting testimony of PW2, Nwaomini farmed on the land with the permission of her father, Azuonye. That, however, the Appellant (PW1) did not testify as to the relationship between Azuonye and the Iroegbu family. No evidence pointing at how the land devolved from Azuonye to Iroegbu and how the estate of Nwulu ended up being the property of Iroegbu family.
On the whole, it was contended that the question of pledge as raised by Appellant did not account for the lapse on how the respondents took possession of the other seven portions which constitute the land in dispute.
That, the account of pledge transaction, as presented by the Respondents, is more probable, more compelling for any arbitration body to lean on than the Appellant’s account. Thus, it was argued that the conclusion reached by the lower court in its judgment is not perverse. The court has been urged to accordingly disallow the appeal.
I have critically, albeit dispassionately, considered the submissions of the learned counsel in their respective briefs of argument, the various authorities referred to therein, as well as the entire record of appeal. There is no doubt that issues 1 & 2 of the Appellant are interwoven in the sense that a discussion on one would definitely led to discussing the other. That’s to say, in the present case, it would be extremely difficult, if not utterly impossible, to discuss the issue of pledge (issue No. 1) with out venturing into or touching the “traditional history” issue (issue No.2). Incidentally, as pointed out thereabove, both issues 1 & 2 of the Appellant are affirmatively related to issues 4 & 5 of the Respondents.
Instructively, at page 82, lines 22 – 35, and 83 lines 1 – 2 of the Record (referred to copiously at page 6 of the Appellant’s brief), the court below was reported as having observed, inter alia, thus:
I reject the finding of the trial court that there was a pledge. The finding is perverse, not in accord with the customary law of the parties. I do not believe that the plaintiff’s family could or should allow the defendant’s (sic) family to be possession of the area within the land in dispute occupied by Solomon Mpama for many years, as many as fifty years by reason only of their not having the mean (paltry) sum of 161 – redemption fee to pay him and when presumably through some extra ordinary efforts, they were able to raise the sum of 161, and tendered it to Solomon, who demanded an extra 41 – to make it 209 – they could not afford same.
It was said that the above conclusion reached by the court below was based on irrelevant consideration.
I agree with the submission of the Appellant’s learned counsel to the extent that a pledge remains a pledge irrespective of the length of time the pledged land has remained in the possession of the pledge. This supposition how long, is not a bar to the pledgee’s right to redeem the pledged property.
The above general principle, however, notwithstanding. It is a well settled principle of law that he who alleges a pledge under native law and taken place between of proving that such a pledge under native law and custom has the onus of proving that such a pledge transaction had indeed taken place between the pledgor, on the one hand, and the pledge on the other, otherwise the claim fails. In essence, the pledgor must prove, inter alia, that the alleged pledge-transaction actually took place in the presence of credible witnesses. See AKUCHIE V. NWAMADI (1992) 85 FCA 89; ATTA V. AMOA (1930) 1 WACA 15; K.S.U.D.B. VS. FANZ LTD. (1986) 5 NWLR (Pt.39) 74; EZEDIGWE VS. NDICHIE (2001) 12 NWLR (Part 726) 37; EGBUJO VS. MBAGWU (2008) ALL FWLR (Part 429) 569 at 591 paragraphs F – G, respectively.
In the instant case, it’s not in doubt, that the parties on both sides of the divide had claimed that a certain portion of the land in dispute was subject to a pledge. By the fourth relief of the Appellant’s claim, at pages 88 – 89 of the record, the Appellant had, inter alia, prayed to trial customary court, Olori for-
- An order of the Hon. Court compelling the defendants to accept from the Plaintiff the redemption fee of sixteen shillings (16/-) now N1.60 for the redemption of the portion of land.”
A part from the writ of summons alluded to above, and a “motion for joinder” of the 2nd and 3rd Appellants (Defendants) date 09/02/98 (and filed on that date), no pleadings were filed by the parties. This would not in any way be surprising, because the requirement of filing pleadings is not as a matter of principle, applicable to customary courts. Generally speaking, in matters of procedure and practice, the Evidence Act etc. is only but a guide to customary courts. Writs on customary courts should not have to be examined “microscopically or with the finery of a tooth comb.” See BEN IKPANG & ORS. VS. CHIEF SAM EDOHO & ANOR (1978) 6 – 7 at 221, in which the apex held, inter alia, per Aniagolu, JSC thus:
Great latitude must be given to and a broad interpretation placed upon native court cases so that the earlier proceedings the evidence of the parties and the judgment must be examined in order to determine what native or customary court case is all about (Ajaip v. Aina 16 NLR page 67). The conception and result of the proceedings will show what the parties were fighting for the matters upon which the issues are joined even if technically framed in an inappropriate language from the stand point of a legal technocrat, and the decisions of the native and customary court in those issues.
The above sentiments expressed and upheld by the apex court were undoubtedly predicated on the sole objective of sustaining the well cherished principle of substantial justice to the effect that simple practice and procedure should apply in customary courts throughout the country. See also CHIKE OGO VS. ADIDA OGO (1964) NMLR 117; AMADASUN & ORS. VS. OHENSO & ORS. (1966) NMLR 16; AOKO VS. FAGBEMI (1961) ALL NLR 400; SALATI VS. SHEHU (1986) NWLR (Part 15) 1981, respectively.
It was contended that evidence of the Appellant (PW1) was that the land was pledged for 16/ – (sixteen shillings) by the Nwonini (a female member of Azuokwu’s family) to Nwanyidinma from the Respondents family. The PW2 Nwachi Amaro said in her evidence that the land in dispute was called “Olori Nkpa” situate at Ahuwa Oboro. That, the whole of the area (land) belongs to her kinsmen – i.e. the Iroegbu lineage. She said her father i.e. Azuonye cultivated that land. He begat 3 daughters namely – (i) Nwaonimi; (ii) Nwanyidinma; and (iii) Nwachi (PW2). That, Nwaonini got married, but her husband soon thereafter died. She then returned home because her in-laws were maltreating her. Their father allowed Nwaonini (Widow) to cultivate a portion of the land. The rest of the farm land was cultivated by Azounye’s wives.
However, after her father’s death, Nwaonini fell sick and pledged a portion of the land to her sister Nwadinma Mpama for 16/ -. Later, Nwandinma died. According to PW2:
My people went to redeem the land from Uko. He refused saying the land is their own. As a result trouble started, because he gave her land to his brothers to build house. We protested against building a house on our land. But because we were all women, they Nwachi and so built house on our land. The land does not belong to Ezi Mpa. They are simple trouble shooters (sic).”
(Brackets added). Under cross examination, the PW2 was recorded as having respondent to the following questions.
Q.8. Has there been anytime the family of plaintiff pledged any land to defendants.
A. No.
Q.9 Do you know who deforested the land?
A. I don’t know.
Q.6. This land in dispute is it personal or communal.
A. It is communal.
Q.7. If the court gives this land to plaintiff to whom does it belong?
A. It will belong to the children of Iroegbu.”
In view of the pieces of evidence adduced by the parties witnesses, I am unable to appreciate, let alone uphold, the contention of the Appellants’ counsel that the issue of pledge of the land in question has been proved or established. It’s rather evident, that apart from merely alleging that the portion of the land in dispute was pledged for 16/- (sixteen shillings) by Nwaonini, no piece of evidence was adduced to establish the persons, that witnessed the pledge transaction in question. Not even, the Appellants star witness (PW2) could state the (i) names of the persons (if any) that witnessed the pledge transaction; (ii) and the year in which the pledge was made. As alluded to above, it’s trite and fundamental principle, that he who alleges to pledge under native law and custom must prove, inter alia, that the pledge actually took place in the presence of witnesses. see AKUCHI VS. NWAMADU (supra) et al.
It is indeed the rule, that when the question of whether any person is the actual owner of any property of which he is shown to be in possession, the onus of proving that he is not the owner thereof is squarely placed upon the Person who alleges or claims that he is not the owner. In the instant case, the Respondents have been shown to be in possession of the land in dispute for a period of over fifty years. Thus, the onus squarely lies on the plaintiff to prove that the land in dispute, or the portion thereof, was actually pledged thereto.
Unfortunately for the Appellant, he has failed to woefully discharge that onus of proof which is so vital to his case. It was said by PW1 (Appellant), in the examination in chief at page 100 of the record, that after Nwanyidinma died, Nwaonini went to Solomon Mpama to redeem the land, but he refused to collect the 16 sixteen shillings offered him, thereby demanding for ?1, instead. Thereafter the matter was taken to Chief Ibeji Nluma of Umuigu who also took it to Solomon Mpama and he also refused to take 16’91 insisting on. In due time Solomon died.
It should be pointed out that the person(s) that allegedly took the 16- to Solomon Mpama i.e. Chief Ibeji Nkama of Umuigu was never called to testify. No reasonable explanation was given as to why he was not called. It was also in evidence, that when the PW2 was asked under cross examination as to who and who of Eziukwu family owned land of their own, she has this to say-
“A. The whole of that place belongs to us except that many of the lands have been pledged out.”
Contrariwise, when the PW1 (Appellant) was asked under cross-examination as to whom the land in dispute would belong if it was eventually redeemed by him, he replied thus:
“A. If I redeem this land with my own money it belong to me.”
The above assertion no doubt contradicts the Appellant’s claim and evidence in Chief. His evidence in chief is to the effect, inter alia, thus:
I sued defendants because of land called Olori Nkpa situate at Ahuwa Oboro.
The land belong to Eziukwu Umuchu from their ancestors….
…The estates of Nwulu were not shared. They all of Nwulu continue to farm this land until my father, job Okoro became head of family. About 1967, this Job G Iroegbu went into the land to farm it but was chased out by the children of Mpama – namely Solomon Mpama Chiegeiro Mpama, Sam Mpama, Edward Uwajimgbn Mpama claiming the land as their own.
The PW3, on his part, told the trial court that the land in dispute belongs to Eziukwu Umudu”. He was asked under cross-examination thus:
Q.12 If an individual among your kindred claims ownership of the land, is he a truthful person or a liar? To which the PW3 relied-
A. He is a liar.”
It is needless to state that the sole purpose of the above line of cross-examination was to impugn the credibility of the PW1 as a witness, and the unreliability or baselessness of the claim thereof. Unfortunately for the Appellant, but fortunately for the Respondents, that line of cross-examination has, had the desired effect upon the Appellant’s case.
ON WAYS OF PROVING OR ESTABLISHING OWNERSHIP OF LAND
It is a trite and fundamental rule of law, that ownership of, or title to, land can be proved or established through any of the following ways:
(i) by traditional evidence;
(ii) by production of document of title;
(iii) by act of person claiming the land over a considerable period of time sufficient enough to warrant the inference that he is the true owner thereof
(iv) by acts of long possession; and
(v) by proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such adjacent or connected land would in addition, be the land in dispute.
Failure to prove ownership by any of the above ways or means will result in dismissing the claim. See IDUNDUN VS OKUMAGBA (1976) 9-10 SC 227; EZUKWU VS UKACHUKWU (2004) 17 NWLR (part 902) 227 SC; ODI VS IYALA (2004) 8 NWLR (part 875) 283; IBIKUNLE VS LAWANI (2007) 3 NWLR (Part 1022) 580 at 593 – 594 paragraphs G – E; 598 paragraphs C – D 600 paragraphs A – C.
In the instant case, the Appellant had failed to adduce cogent and sufficient evidence as to how the land devolved from Azuonye to Iroegbu; how the estate of Nwulu turned out to be Iroegbu’s property. The appellant made an effort to trace the genealogy thereof thus:
I sued defendants because of land called Olori Nkpa situate at Ahuwa Oboro. The land belong to Ezuiukwu Umuchu from their ancestors. This land Olori Nkpa was deforested by Nwulu. While Nwulu was on the land, nobody from Mkpama kindred ever challenged him. Nwulu begat 3 sons-Udu, Ejeagba and Oti. The sons cultivated that land with out challenge from anybody. The estates of Nwulu were not shared. They all continue to farm this land until my father, job Okoro became head of family. About 1967, this job O. Iroebu went into the land to farm it but was chased out by the children of Mpama namely Solomon Mpama, Chiegeiro, Sam Mpama, Edward Uwajimgbo Mpama claiming the land as their own. It would be recalled that one portion of this vast land was pledge to Nwanyidinma Solomon Mpama for 16/-by Nwaonini Azuenye our relation…
It is rather obvious, from the above narration of the Appellant’s evidence-in-chief, that there are missing links in the claim transmission of the genealogical or family tree thereof. It is a trite law, that in proving traditional ownership of land, its imperative for the claimant, (as in the present case, the appellant to narrate unequivocally the genealogical tree from the original, ancestor in generations appurtenant thereto, down to the line to the claimant himself. He must not only trace his root to a person or family, but he must also prove how that particular person or family came to have title vested therein. the principle is applicable to both parties.
Most certainly, the Appellant did not mention any woman in the family tree of Nwulu. The names of Nwaonini, Nwanyidinma and Nwuchi were mentioned just out of the blues. The Appellant claimed at page 102 of the record that-
The defendants belong to Umuson family and I am from Eziukwu Umuagwu.” Underlining added.
However, rather surprisingly, the Appellant the extent of the connection between his father job Okoro Iroegbu and Eziukwu Umuagwu, on the one hand, and his father and Nwulu, on the other. The Appellant (PW1) most unfortunately failed to load evidence regarding the relationship between Azuonye and the job Iroegbu family. No evidence pointing at or explaining how the land devolved from Azuonye to Iroegbu and most importantly how the estate of Nwulu ended being the property of Iroegbu family. There is no gainsaying the fact that the purported family or genealogical tree narrated by the Appellant in the evidence thereof as grossly distorted, to say the least. As natural fallout of that distorted genealogical tree, the Appellant’s claim must obliviously fail.
In the light of the foregoing reasoning, there is every reason for me to resolve the said issue 1 in favour of the Respondents. and I so hold.
ON ISSUE NO. 2:
This second issue raises the question of whether the issue of traditional history of the land in dispute was raised in the appeal before the court below to have warranted it to evaluate the evidence relating thereto and reaching a decision thereon. The issue was said to have been distilled from ground 4 of the grounds of appeal.
Without much ado, the Appellants’ learned counsel submitted, inter alia, that the court below was wrong in evaluating the evidence of traditional history of the land in dispute and reaching a decision thereupon. That, there was no ground of appeal filed in their appeal to the court below against the trial court’s decision on the issue. That, the unwarranted evaluation of the evidence in question formed the basis of allowing the appeal and setting aside of the trial court’s judgment by the court below. Reference was made to pages 81, lines 5 – 30, 82, lines 8 – 20, 187 – 189, of the record. Grounds 1, 2 & 3 of the grounds of appeal to the court below, showing that none of the grounds challenged the evaluation of evidence by the trial court’ or finding on the issue of evidence of traditional history of the land in dispute. It was submitted that the court below was wrong to have done so. See ZACCHEUS ABIODUN KOYA VS. UBA LTD. (1997) 1 SCNJ 1 at 11 lines 25 – 35; MELWANI VS. FSI LTD. (2002) NWLR 1 at 19 lines 35 – 40, BENUE STATE & ANR VS. DEACON DEV. CONSULTANT LTD. & ANOR. (1988) 3 NWLR (Part 83) 407 at 420.
That, none of the four issues raised by the respondents for determination from the grounds of appeal in question touched or questioned the issue of evaluation of the evidence of traditional history. See UNUAKALAMBA VS. NZE (2002) 28 WRN 53 lines 33 – 35; UKWULIZE & ORS. VS. GILBER ATASIE & ORS. (2000) 9 WRN 73 at 82 lines 44 – 45; 83 lines 1 – 10.
On effect of deciding an issue not forming part of case before the court, it was argued that a court is not a charitable organization. See TRTPATW VS. TR TT AA CC (2002) 38 WRN 73 at 95; MECWA NI VS. FSL LTD. (supra) at 19 lines 40 – 45.
It was finally submitted, that the court below lacked the competence to adjudicate on the issue not brought before it by the Appellants in the court below. The court was thus urged to resolve issue No. 2 in the negative.
On the other hand, the Respondents deemed it expedient to argue issues 2 & 3 thereof together. Issue 2 of the Respondents relates to Appellant’s issue 2. While issue 3 of the Respondents is related to Appellant’s issue 4.
In a nutshell, the submissions of the Respondents
In a nutshell, the submissions of the Respondents on this issue is that by virtue of the expression of section 1(2)(c) of the Evidence Act, customary courts and Customary Court of Appeal are excluded from the provisions of the Act. Thus, proceedings from any of such courts cannot be faulted on the basis of non-compliance with the provisions of the Evidence Act. It is contended that the trial court reserves the right to first evaluate the evidence of witnesses. See IWUOHA VS. NIPOST (2003) 110 LRCN 1622 at 1652. That, there are circumstances under which the appellate court can interfere with the findings of the trial court, thereby revaluate the evidence recorded by the trial judge. See NNDRODIM VS. EZEAN (2001) 84 LRCN 560 at 567; ADEYE VS. ADESANYA (2001) 84 LRCN 644; et al.
It is however contended that, the court below is completely out side the contemplation of the position of the law in the above authorities. That, the court below owes a duty to review the entire proceedings of the trial court, and make a decision that justifies the case before it. See AJAGUNJEUN VS. OSHO (supra).
Reference was also made to, inter alia, the pleas of 1st, 2nd & 3rd Respondents as Defendants at the trial which allegedly constituted the basis for the trial customary court to agree with the Appellant, that the land belongs malicious and fraudulent. That, it was a ploy to over-reach the Respondents who are the true and proper Defendants. Thus, the court below was right in not allowing itself to be blinded by such a mischievous ploy as hatched and executed by the Appellant. That, had the lower court failed to reevaluate the evidence adduced before the trial court, which was principally evidence of traditional history, it would have amounted to doing in justice to the case before it. The court is urged to accordingly disallow the appeal on these two issues.
I have considered the submissions of the learned counsel to the respective parties, and the authorities referred to therein. in the case of ZAIDAN VS. MOHOSEN (1973) 11 SC 1 at 21, the Supreme Court of Nigeria had aptly defined customary law thus:
“We are of the view that, in this con customary law is any system of law not being the common law and not being a law enacted, by any competent legislature in Nigeria but which is enforceable and binding within Nigeria between the parties subject to its way.”
It is trite that in matters of practice and procedure, customary courts are not strictly bound by the provisions of the Evidence Act. The provisions of the evidence are only but a guide to the customary courts. As authoritatively stated by the apex court.
Great latitude must be given to and a broad interpretation placed upon native court cases so that the earlier proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native or customary court case is all about. (Ajayi v. Aina 16 NLR page 67). The conception and result of the proceedings will show what the parties were fighting for the matters upon which the issues were joined even if technically framed in an inappropriate language from the stand point of a legal technocrat and the decisions of the native and customary court in those issues. See BEN IKPANG & ORS. VS. CHIEF SAM EDOHO & ANOR. (1978) 6 – 7 SC at 221 per Aniagolu, JSC. See also OGO VS. OGO (1964) NMLR 117; AMADASUN & ORS. VS. OHENSO & ORS. (1966) NMLR 179; SALATI VS. SHEHU (1986) NWLR (Part 15) 198; AOKO VS. FAGBEMI (1961) ALL NLR 400, respectively.
It is indeed the general rule, that the trial court has the exclusive duty to evaluate the evidence adduced by parties before it. See IWUOHA V. NIPOST (supra) at 1652. The trial judge, as authoritatively held by the Supreme Court in NIPOST’s case (supra), has the competence and duty to, first and foremost, evaluate the evidence of witnesses that testified before him. He does not, so to say, share that duty and power with the appellate court, or any one else for that matter. Where it is so obvious that the evaluation of the evidence by the trial judge is borne out from the evidence adduced in court, then the appellate court has no business whatsoever to, and cannot interfere with, the findings thereby reached.
However, the rule is also trite that in certain exceptional cases or circumstances, the appellate court can, and indeed has a duty to, interfere an reevaluate the trial court’s evaluation evidence. One of such notable exceptions to the general rule is where the issue of controversy is predicated on matters of inference to be drawn from established facts on record of the trial court not based on the credibility of witnesses as a result of their demeanour in court, or the impression of them by the court. As stated by the apex court in NNORODIM VS. EZEANI (2001) 84 LRCN 560 at 567 that-
Clearly, where such exception exists and an appellate court is in good a position as the trial court to evaluate evidence which has been given in a case, the appellate court must not hesitate to evaluate such evidence and the necessary irresistible interference (sic) that can be draw from the proved facts.
See also ADEYE VS. ADESANYA (2001) 84 LRCN 644; OLATUNDE VS. ABIODOGUN (2001) 92 LRCN 3214; ADELEKE VS. IYANA (2001) 88 LRCN 2162 AKINLOYE & ANR. VS. EYIYOLA & ORS. (1968) NMLR 92 at 95; AMADI VS. NWOGU (1992) 5 NWLR (Part 241) 273 at 280. Undoubtedly, the proceedings of customary courts and customary Court of Appeal, in contradiction to other regular courts like the High Courts, Court of Appeal and the apex court, could aptly be described as sue generic. By their special, distinctive nature, the customary court’s proceedings ought to be accorded very exceptional or special consideration. See AJAGUNJEUN VS SOBO OSHO (2002) 1, QCLRN 1, to the effect, inter alia, that customary court’s proceedings as well as native courts, ought to be accorded very special consideration by appeal courts in matters arising from such courts. Appeal Courts are thus enjoined to consider the entire record of proceedings of the trial courts, and then arrive at a decision that would appear to be reasonable, just and equitable; a conclusion or decision that would be in accord with or amenable to common sense. This is absolutely so, because justice in itself is fairness – i.e. fairness to each and every party involved in the case before the court. It is indeed axiomatic that denial of justice is bad and outrageous. It inflicts pain grief and untold hardship upon those desperate but rather helpless people who not unnaturally depend on and place so much hope in the court to impartially adjudicate upon their matters without fear or favour, affection or ill-will.
In the instant case, it’s rather obvious that at page 95 of the Record is contained a motion for joinder of husband and -wife Mr. Emmanuel Arnakulo Mpama and Madanu Finess Amakolu Mpama in the instant case as “2nd and 3rd Defendants. The motion was date 09/02/98 and filed the same day. On 11/02/98, when the case came up for the first time, the record of the trial court indicated that the 1st defendant was absent. The motion for joinder of 2nd and 3rd defendants was not mentioned at all. The content of the writ was however read and 2nd and 3rd admitted thus:
“2nd and 3rd defendants pleaded liable to all the four arms of the suit. 4th and 5th defendants pleaded not liable. Matter adjourned to 5/3/98 for hearing.”
The Appellants learned counsel did not deem it expedient to question thus rather irregular and perverse procedure.
It is not in doubt, that the pieces of evidence adduced by both parties at the trial were based on traditional history. It’s the position of the Respondents that their father’s estate, including the land in dispute, had been shared. The 4th & 5th Respondents not surprisingly denied the claim and adduced evidence to defend their right over the land in dispute. The later joining of the 2nd and 3rd Respondents as co defendants was rather suspicious to say the least, especially in view of the circumstances surrounding the case as a whole. There is every reason to believe that the 2nd and 3rd Respondents were joined as parties to the suit to merely plead liability to the claims, as they did. As rightly submitted by the Respondents learned counsel, the joining of the 2nd and 3rd defendants by the Appellant –
“Was a Ploy to undermine and over reach the respondents who are the true and proper defendants. That the lower court was right in not allowing itself to be blinded by such a mischievous ploy as hatched aid executed by the appellant.”
I think, I cannot agree more with the above submission. By virtue of the circumstances surrounding the case vis-a -vis, the justice of the case demands that the evidence adduced by both parties be reevaluated, as was rightly done by the court below. Thus, in view of the foregoing, I have no hesitation in resolving issue No. 2 in favour of the Respondents.
ON ISSUE NO. 3:
This issue raises the question of whether the decision thereby reached by the court below on the issue of traditional history was correct, having regard to the evidence before the trial court. This issue, like issue No. 2 preceding it, was distilled from ground 4 of the grounds of appeal. It was submitted, inter alia, by the learned counsel that the parties in this case gave evidence of traditional history of the land in dispute. That, the trial court did make a finding on the said evidence of traditional history of the land in dispute after properly evaluating same. That, the Respondents did not appeal against that finding in their appeal to the court below. But despite that, the court below delved into the issue and reversed the said finding of the trial court on the issue. That, the court below did not even properly evaluate the evidence, as it merely rehearsed the evidence of the PW1 and the DW1 on the issue. On that submissions, the learned counsel referred to pages 81, lines 17 – 30 and 82 lines 7 – 20 of the Record, regarding the testimonies said to have been rehearsed by the court below.
The case of OWUEGBU VS. OKOYE (1996) LRCN 24, said to have been cited and relied upon by the court below, was also alluded to by the Appellant’s counsel regarding the principle on proof of traditional history. Copious references were also made to various pages of the Record, regarding the evidence of the witnesses of the parties vis-a -vis the finding thereon by the two lower courts.
In a nutshell, the contention of the Appellant’s learned counsel is that if the issue of traditional history of the land in dispute was an issue in the appeal in the court below, the conclusion reached on the issue. That, the court below had (therefore) reached a perverse decision, and wrongly set aside the findings of the trial court on the issue. We were urged to answer issue No. 3 in the negative and accordingly allow the appeal.
On the other hand, the Respondents counsel’s response to this issue has been discussed under both issues two and three (pages 7 – 14 of the Respondent’s brief) which were argued together. I have earlier alluded to them in the course of the determination of issues 1 & 2 above. The submission of the Respondents’ counsel regarding this issue is that a careful juxtaposition of the pieces of evidence adduced by the Appellant and the Respondents, would compel the court to hold that (i) both parties basically relied on traditional history and also raised issue of pledge; and (ii) that the version of the Respondents is more probable as narrated by the Appellant. He accordingly urged on the court to hold that the court below arrived at the right decision to have set aside the decision of the trial customary court, and substituted same by entering judgment for the Respondents.
As alluded to above, most of the issues addressed or argued under the instant issue have been canvassed under both issues. Having thus already resolved both the 1st and 2nd issues above in favour of the Respondents, it goes without saying, that the instant issue ought also be resolved in favour of the Respondents.
From the totality of the evidence of the parties’ witnesses at the trial court, it is rather obvious that the case on both sides was basically predicated upon the evidence of traditional history pertaining to the land in dispute. My findings in both issues 1 & 2 above were to the effect, that the Appellant had failed to prove his genealogical or family tree, most especially as regards the extent to the consanguinity between his father (Job Okoro Iroegbu) and Nwulu the alleged ancestor thereof. As alluded to above, it’s a trite and fundamental principle, that when both the plaintiff and defendant anchor their respective cases upon traditional evidence in proving title or ownership of the land in dispute (whether expressly or consequentially), as in the instant case, the duty of the trial court is to weigh the evidence of both sides on an imaginary scale, and determine where pendulum titles i.e. which evidence is heavier or weightier than the other. In the instant case, there is no doubt that the totality of the evidence of both parties is based squarely on evidence of traditional history of the land in dispute, as pointed out above.
By the nature of the Appellant’s claims, the evidence of traditional history of the land in dispute goes beyond the question of pledge. It extends or overstretches to the root of title of the land based on inheritance from the Appellant’s alleged ancestors. This is so, because once the pledge is established, it presupposes that the Appellant has title to the land in dispute based on inheritance from the castors thereof. Thus, the case of parties has been anchored on evidence of traditional history of the land in dispute in question. Both the Appellant and Respondents have the onus of proving the names or histories of the chain of progenitors or ancestors; to narrate the genealogical or consanguinities tree, right from the original owners, the ancestor, ingeneration appurtenant down the line there to. That is to say, party, be it the Plaintiff or Defendant, must prove his root of title of ownership of land in dispute. Where the root of title is traced to a person or family, the party claiming must prove how that person or family came to have title vested in him or it. The principle is applicable to both the Appellant and the Respondents, as well.
As alluded to under issues 1 & 2, the Appellant had woefully failed to establish, with certainty and cogency, the root of his title vis-a-vis traditional history. Contrariwise, the evidence of traditional history proffered by the Respondents appears to be more probable and cogent, than that of the Appellant. The case of the Respondents, especially vide the DW1, was that the land in dispute descended from the founder of the land “Efuruama” i.e. Ahuwa. An account was given by the DW1, on how the land in dispute devolved from the founder to his father. That, from their “ancestral time” there had been no challenge over the land by anybody.
I think, if anything else, the evidence in-chief of E. Jacob Nnamerenwa of Ahuwa Oboro, ” above 100 years old, further fortified the Respondents’ case. He told the court that he did “not come to talk about land but Mission-The Apostolic Church in Ahuwa. Hear him-
When we started to grow in the Apostolic Church Ahuwa, the little house we were using at Umundara could not contain members. The Church delegated some people – Job Iroegbu – Father of the Plaintiff, Agbara Akpunku etc to negotiate and acquire land for new Church building. This delegation met and discussed with Iroh Nwokocha Igbojoionu Chigbu and Sam Mpama who collectively donated the land on which we built our new church. It was initially a mud building until I left for abroad. When eventually I returned from abroad, we then erected a permanent structure which now houses the Church.
The matter was adjourned from that date (02/9/98) to 19/10/98 for cross-examination of DW3, and continuation of defence. However, most ironically on that date, the Appellant declined to cross examination the DW 3. In my view, it was not surprising that the Appellant chose not to cross examine the DW3. The reason is not far fetched. The DW2, Moses Ukazu, had earlier testified that-
I recalled that in 1937 (sic) when the Apostolic Church wanted to build a Church in Ahuwa Ikoh Nwokocha (head of our family of Umuodnra) Sam Mpanu and Igbojionu Chigbu of Umundara donated land at that place for the Church building. Plaintiffs father who was deacon in the Apostolic Church was one of those that stamped the land.
Thus, from the above pieces of evidence of DW2 & DW3, it is very obvious that the fact that Sam Mpama freely donated a portion of the land in dispute to the Apostolic Church in question clearly confirms that he was in possession of the land as the real and indisputable owner thereof. It also goes to confirm that Job Iroegbu, the Appellants father had no claim whatsoever upon the land in dispute.
In the light of the above e postulations, I have no hesitation in resolving issue No 3 in favour of the Respondents.
ON ISSUE NO. 4:
The fourth issue of the Appellant raises the question of whether there was any complaint in the appeal before the court below questioning the evaluation of evidence in the case by the trial court to have warranted the said court to embark on evaluation of evidence in the case. This issue was said to have been distilled from ground 2 of the grounds of appeal.
It was argued that the court below acted with out jurisdiction when it proceeded to evaluate the evidence in the appeal before it, when there is no ground of appeal in the appeal filed before it complaining of improper evaluation of the evidence by the trial court. It was submitted that despite the restriction placed on it by the limited nature of the three grounds of appeal, and a fortiori, the issue for determination, the court below (still) embarked upon re-evaluation of the entire evidence in the case, even on issues on which there is no appeal by the Appellant.
I think, the Appellant’s learned counsel has attempted in this issue to also scrumptiously revisit his submissions or argument in the previous issues discussed, most especially issues 2 & 3 thereof. Having addressed the aspect of that argument in the other issues, it would be rather preposterous, to say the least, for the learned counsel to now seek to address same. I have addressed this issue above. The importance of customary law vis-a-vis customary courts to adjudication process or administration of justice system in Nigeria can not be over emphasized. The sui-generic natures of customary courts vis-a-vis the practice and procedure thereof have also been alluded to above. Regrettably, ever since the emergence of the sociological ideas of Roscoe Pound, with particular regard to the modern concept of law in a developing society, the most unreasonable and highly misplaced criticism about African law (customary and nature) is that it’s merely custom, and. Not law.
However, most cherishingly, concerted efforts have so far been made to sweep away the cobwebs, the myths, the prejudices, and philosophical doubts of those who have all along denied that there was any such thing as African law, customary or native law. Professor Allott formerly of the School of Oriental And African Studies, University of London, was most pertinent when he wrote, inter alia, thus:
“African law (customary Law) is, in short, reasoned: It is not arbitrary savage or non-existent. The difference between African and Western law is one of degree, not of kind.”
See law Quarterly Review, 1957, 106 – 110; Fundamentals of Nigerian Law 1989 at page 10 edited by professor MA Ajomo.
It is a cherishingly well settled principle, that proceedings of customary courts, nay the processes thereof, must not be examined microscopically or with the finery of a “tooth comb”. See BEN IKANG & ORS. VS. CHIEF SAM EDOHO & ANR. (supra), 221 in which the apex court, per Aniagolu, JSC stated thus:
“Great latitude must be given to and a broad interpretation placed upon native court cases so that the earlier proceedings, the evidence of the parties and the judgment must be examined in order to determine what native or customary court case is all about.”
In view of the foregoing, the issue No. 4 ought to be, and is hereby, resolved in favour of the Respondents against the Appellant.
ON ISSUE NO. 5:
The fifth issue was distilled from ground one of the grounds of appeal. It raises the question of whether the court blow was right in granting the Respondents a relief they never claimed for even in the trial court. The discussion or argument on this issue spans pages 30 to 32 of the Appellant’s brief. The four reliefs of the Respondents in their notice of appeal to the court blow were copiously reproduced at page 30 of the brief. Alluding to the findings of both courts at pages 189 lines 17 – 20, 84 lines 1-10 of the record, the Appellant’s learned counsel submitted that it’s evident that the court below had awarded to the Respondents a relief they never claimed in either of the two lower courts. The case of AKPA VS. ITODO (1997) 5 NWLR (Part 506) 589 at 604, to the effect that an appeal is generally regarded as a continuation of the original suit rather than the inception of a new one. Therefore, the court below “was wrong in its said attitude”. See NDIC VS. SAVANNAH BANK PLC. (2002) 51 WRN 19 at 70; EKPENYONG & ORS. VS. NYONG & ORS. (1975) 9 NSCC 28 at 32.
It was contended that the court below had therefore acted without jurisdiction by making the said unsolicited order, as the parties sought to have been heard. See AGBAKOBA VS. DIRECTOR SSS (1993) 7 NWLR (Part 305) 353 at 368. the court has urged us to answer issue 5 in the negative, allow the appeal, and accordingly restore the judgment of the trial court.
On the other hand, the Respondents’ issue No. 1 relates to the Appellant’s issue No. 5 under consideration.
It’s submitted that ground one from which the Appellant’s issue was distilled is a proposition of law which applies to courts where writ of summons and statement of claim are applicable. That by section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 appeals from Customary Court of Appeal to Court of Appeal must be based only on question of customary law. That, ground one in question has offended the provision of section 245(1) 1999 Constitution. We were urged to accordingly strike out same along with issue No. 5.
It was argued that the Appellant made a futile effort to frame the particulars of ground to fall within the ambit of section 245(1) of the Constitution (supra). That, it’s the law that evidence of custom and tradition shall be adduced by the party that seeks to rely on it. The Appellant did not adduce such evidence. See NSIRIM VS NSIRIM (2002) 94 LRNC 94.
The Respondent’s counsel, on the abundance of caution, further argued that the law is settled that proceedings from customary court and native courts should be given special consideration by appeal courts in matters arising from such courts. See AIAGUNJEUN VS SOBO OSHO (2002) 1 QCLRN L. It was finally submitted on the issue, that the lower court was right in awarding the customary right of occupancy over the land in dispute to the Respondents. That, if the lower court had failed to make such an order, it would have left the position of the parties over the land in dispute hanging and possibly would have led to re-litigating over the same subject matter.
The ground No.1 of the grounds of appeal in question is contained at page 2 of the record of proceedings of the court below thus:
“GROUND 1 ERROR IN LAW
The learned justices of Abia State Customary court of Appeal erred in customary law in granting to the Defendants/Respondents the reliefs which they neuer claim (sic) before the court.”
The provisions of section 245(1) of the 1999 Constitution are to the following effect:
‘245-(1) An appeal shall lie from decisions of a customary court of Appeal to the Court of Appeal as of right in any Civil proceedings before the customary court of Appeal with respect to any question of customary law and such other matters no may be prescribed by an Act of the National Assembly.”
The Appellant’s ground No.1 of the grounds of appeal copiously reproduced above is predicated upon a total of four particulars. Most especially, particulars (3) & (4) of the said ground No.1 are to the following effect:
(3) I is against the customary law of Ikwuano where the parties come form to grant to a party a relief which the party never claimed before the court.
(4) By the customary law of Ikwuano people i.e. the place of the parties, a court is without jurisdiction to grant to a party relief, which a party never claimed.
Most undoubtedly, particulars (3) & (4) of ground No.1- of the grounds of appeal are highly preposterous and utterly baseless on the – simple, but rather obvious, ground that no proof of “customary law of Ikwuano” was ever adduced by the Appellant to justify the allegation. A fortiori, the ground No.1 of the grounds of appeal predicated upon the two particulars is also contagiously grossly incompetent. Likewise, the said issue No.5 which was said to have been distilled, albeit surreptitiously, from the grossly defective ground No.1 is incompetent. The reason being predicated on the trite principle popularly propounded by the legendary Lord Denning MR (of most remarkable and blessed memory) that you cannot put something on nothing and expect it to remain there. It will most certainly collapse. See MACFOY VS. UAC (1962) AC. 152.
It is indeed a well established principle of law, that issues for determination must be predicated upon, or distilled from competent grounds of appeal; which must itself be based on the ratio decidendi of the decision being appealed against. Thus, where an issue is distilled form, or predicated upon, a defective and incompetent ground of appeal, as in the instant case, both the said issue and ground and appeal must be struck out.See: (sic)
Thus, both issue No. 5 and the ground of appeal No. 1 upon which it is predicated are deemed incompetent and hereby struck out.
Hence, in the light of the above postulations, it has become rather obvious that the instant appeal is gross unmeritorious, and it’s hereby dismissed by me. The judgment of the Abia State Customary Court of Appeal, delivered on 18/11/2004 setting aside the decision of the trial Ikwwuano customary court, holden at Olori dated 15/7/99, is hereby affirmed.
Parties shall bear their respective cots of litigation.
Other Citations: (2009)LCN/3133(CA)
