Benson Ebirim Duruchukwu V. Hilary Ntiashagwu (2002)

LawGlobal-Hub Lead Judgment Report

MICHAEL EYARUOMA AKPIROROH, J.C.A.

The Appellant herein by a Writ of Summons filed against the Respondent in the Customary Court of Ikeduru Local Government Area of Imo State claimed as follows:

“Declaration of title to Customary rights of occupancy over the piece of land known and called “Ala Okochia Duruchukwu” situate at Ikembara. Perpetual Injunction restraining the defendant, his servants, agents or privies from entering.”

At the end of the trial, the Customary Court gave judgment in favour of the Appellant. Dissatisfied with the judgment, the Respondent appealed to the Customary Court of Appeal of Imo State which ordered a retrial.

The Customary Court re-tried the matter and on 4/5/95 gave judgment in favour of the Plaintiff/Appellant but excluded part of the land in dispute from the judgment on the ground that the respondent had established res judicata as a result of the earlier proceeding tendered by him.

Dissatisfied with the judgment of the Customary Court of Appeal in Imo State, the Appellant has further appealed to this Court.

In accordance with the Rules of Court, the Appellant filed a brief of argument and formulated three issues for determination as follows:

1. “Whether the land excluded from the judgment given to the plaintiff is the same as the land over which the defendant obtained judgment in 1944/47.
In otherwords, did the Defendant establish res judicata

2. On whom did the onus of proof lie in this matter.

3. Did the Court properly evaluate the evidence before it.”

The Respondent filed a notice of Preliminary Objection on the competence of grounds of appeal and also adopted the brief of argument filed by the appellant.

I think the only live and vital issue that calls for my consideration in this appeal is predicated on the preliminary objection filed by the Respondent challenging the grounds of appeal filed by the Appellant at the Court below. Succinctly put, whether the grounds of appeal filed by the appellant at the Court below raise questions involving Customary Law so as to clothe the Customary Court of Appeal, Imo State with jurisdiction?

At this stage, I would like to reproduce the grounds of appeal filed by the appellant in order to determine whether or not they raise questions involving Customary Law. In SUBOR v. ASEMAKEME (1997) 4 NWLR (Pt. 502) 71 at 683), it was held that:
“Whether an appeal raises an issue or question of Customary Law or not is to be gathered from the grounds of appeal and their “particulars” and not from the arguments in the brief.”
See also GOLOK v. DIYALPWAN (1990) 3 NWLR (Pt. 139) 411. The grounds of appeal filed by the appellant are as follows:

“(1) GROUND ONE: ERROR IN LAW
The Customary Court of Appeal of Imo State erred in law when it upheld the decision of the Customary Court of Ikeduru L.G.A., that the defendant/respondent had proved or established RES JUDICATA, when indeed RES JUDICATA was not established.

PARTICULARS OF ERROR
1. The Defendant/Respondent had tendered Certified True Copies of 1944 and 1947 judgments.
2. The said judgments were over a piece of land situate at UMUARURUKE kindred of the Respondents; and not over the land now in dispute.
3. The land presently in dispute is situate at UMUAHUNANYA kindred of the Appellant.
4. UMUARURUKE kindred and UMUAHUNANYA kindred are two separate and distinct kindreds.
5. Before a plea of Res Judicata can be successfully made and upheld, it must be established that the Res in the present proceedings is the name as the Res in the earlier proceedings.
6. The trial court i.e. the Customary Court went on locus and found out, thus confirming the appellant’s case, that the land now in dispute is located at UMUAHUNANYA village of the Appellant.
7. The Trial Court also found out on inspection that the land in dispute is almost surrounded by the land of Duruchukwu family i.e. the appellant’s family.

(ii) GROUND TWO    MISDIRECTION IN LAW
The learned judges of the Customary Court of Appeal of Imo State misdirected themselves in law and thus came to a wrong conclusion when they upheld the decision of the Trial Court that “This decision does not include the area without agricultural palm at the Eastern border of the palm plantation….” and thus excluded part of the land in dispute from the judgment given in favour of the plaintiff.”

PARTICULARS OF MISDIRECTION
(a) The land sought to be excluded is part of the land in dispute.
(b) The Court excluded part of the land in dispute merely, because it erroneously held that Res Judicata has been established.
(c) The Court also excluded part of the land in dispute because the Respondent claimed there were palms on his land at UMUARURUKE kindred.
(d) The 1944 and 1947 judgments were over a piece of land at UMUARURUKE kindred.
(e) The land presently in dispute is at UMUAHUNANYA kindred
(f) There was evidence that the Plaintiff has palm trees on his land i.e. the land in dispute.
(g) The separate pieces of land can have the same or similar features.

(iii) GROUND THREE    MISDIRECTION IN LAW
The judges of the Customary Court of Appeal misdirected themselves in law and thus came to a wrong decision or conclusion which has occasioned a miscarriage of justice when they held that “…………… the onus of proof in this case is on the plaintiff” when the onus of proof is on the defendant. (See page 128 lines 18 – 19 of the Records of Appeal).

PARTICULARS OF MISDIRECTION
(a) He who asserts must prove. This is also a cardinal principle of Customary Law.
(b) The defendant raised the issue of res judicata. It was for the defendant to establish that the land excluded from the judgment given in favour of the plaintiff is the same as the one he claimed to be in dispute in Exhibits C and H i.e. Native Court proceedings of 1944 and 1947 respectively.
(c) The defendant did not discharge the onus. The land excluded from the judgment given in favour of the plaintiff which is part of the land in dispute at the trial court is situate at UMUAHUNANYA kindred of the plaintiff, while the land said to be in dispute in Exhibits C and H is located at UMUARURUKE kindred of the defendant.
(d) The mere rendering of records of earlier proceedings does not ground res judicata.
(e) Furthermore, the Defendant had conceded possession to the plaintiff.
(f) It is against equity and good conscience for the Customary Court of Appeal to hold that the onus of proof is on the plaintiff.
(g) The decision of the trial Court, upheld by the Customary Court of Appeal is not in accord with Customary Law.

(iv) GROUND FOUR:    MISDIRECTION IN LAW
The judges of the Customary Court of Appeal misdirected themselves in law and thus came to a wrong decision/conclusion which has occasioned a miscarriage of justice when they held that “The onus is now is now on the present Plaintiffs to state or explain how and when the same land turned to be theirs. This onus they are yet to discharge.” (See page 129 lines 5 – 7 of the Records of Appeal).

PARTICULARS OF MISDIRECTION
(a) Having raised the issue of res judicata, the onus is on the defendant to establish that.
(b) The defendant did not prove that the land excluded from the judgment given in favour of the plaintiff, is the same as the land in dispute in Exhibits C and H.
(c) The entire land in dispute at the trial Court is at UMUAHUNANYA KINDRED OF THE Plaintiff while the one earlier litigated upon by the defendant is situate at UMURURUKE kindred of the defendant.
(d) The decision of the Customary Court of Appeal, is an affront on the rule of Customary law that he who asserts must prove.
(e) The decision of the trial Court and Customary Court of Appeal is not in consonance with equity and good conscience.
(f) The onus of proof can only shift to the plaintiff when the defendant has established res judicata.

(v) GROUND FIVE        ERROR IN LAW
The judges of the Customary Court of Appeal erred in law when they failed or refused to evaluate properly the totality of the evidence before the Court.

PARTICULARS OF ERROR
(a) The decision reached by the trial court which was upheld by the Customary Court of Appeal is perverse and not supported by the evidence before the Court.
(b) For a Court to arrive at a just decision it must properly evaluate the totality of the evidence before it.
(c) By holding that “the Court may not have properly evaluated the evidence before it as far as it concerns the defendant’s case” shows that the evidence of the plaintiff was not considered.
(d) The decision of the lower court and the Customary Court of Appeal is not in accord with Customary Law.

(vi) GROUND SIX    ERROR IN LAW
The judges of the Customary Court of Appeal erred in law when they failed to uphold ground 3 of the Appellant’s Grounds of Appeal to that Court (i.e. that the judgment is against the weight of evidence) when same was not challenged by the respondent.

PARTICULARS OF ERROR
(a) The third issue raised by the appellant at the Court below was whether the trial court properly evaluated the evidence before it.
(b) The above issue arose from ground 3 of the Appellant’s ground of Appeal to the effect that the judgment of the trial court was against the weight of evidence.
(c) The Respondent did not challenge this either in his brief or in his argument in court.
(d) The Respondent was therefore deemed to have accepted same.
(e) The Court below was therefore in error to have failed to uphold that ground of Appeal as unchallenged.
(f) The Court below was further in error to hold that the trial Court “may not have properly evaluated the evidence before it as far as it concerns the defendant’s case” when the defendant never challenged the contention of the Appellant.

Learned counsel for the Appellant in his reply brief contended that the Respondent did not raise the issue of the competence of the grounds of appeal at the Customary Court of Appeal Imo State and urged the Court to discountenance the preliminary objection on the competence of the grounds of appeal because they are competent.

On the preliminary objection, learned counsel for the Respondent submitted that the original grounds of appeal filed at the Court below having not raised question involving customary law are incompetent before the Imo State Customary Court of Appeal and as such it had no jurisdiction to hear the appeal in the first instance and relied on Section 247(1) of the 1979 Constitution which is the equivalent of Section 282(1) of the 1999 Constitution. He also relied on the cases of OHAI v. AKPOEMONYE (1999) 65 L.R.C.N. 17 of 79. SUBOR v. ASEMAKEME (1997) 4 N.W.L.R (Pt. 502) 671 at 683 – 684. He further submitted that the issue of jurisdiction can be raised at any stage of proceedings and relied on the cases of AKANDE V. VALAGBA (2000) F.W.L.R. (Pt. 38) 1350 at 1369 and MADUKOLU v. NKEMDILIM (1962) ALL N.L.R. (Pt. 4) 397.

It was also his contention that grounds of appeal which complain of proof of Res Judicata or exclusion of part of a parcel of land do not raise any question of Customary Law and relied on the case of PAM v. GWOM (2000) F.W.L.R. (Pt. 1) 1.
It was also his contention that as at 27/10/99, there were no valid grounds of appeal upon which the additional grounds could be added and relied on the case of MACFOY v. U.B.C. (1962) A.C. 152 at 160 and urged the Court to strike out the appeal.

It is pertinent to point out here that the matter in which the Customary Court of Appeal of a State can exercise jurisdiction has been prescribed under Section 224(1) of the 1979 Constitution (as amended).
It reads as follows:
“An appeal shall lie from decisions of the Customary Court of Appeal of a State 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 as any be prescribed by an Act of the National Assembly.”
It is therefore crystal clear from above that the Court of Appeal is limited to hearing an appeal from the Customary Court of a State in the following two classes of cases:
(i) “any question of customary law,
(ii) and such other matter as may be prescribed by the Federal Legislature.”

A look through the two original grounds of appeal filed by the Appellant against the judgment of the Court below do not fall within the two classes of cases reproduced above.

For example, ground one of the additional grounds of appeal which raises the issue of res judicata or exclusion of part of a parcel of land do not raise any question of Customary Law. Apart from the fact that additional grounds 3, 4, 5 and 6 are not valid grounds of appeal as the two original grounds of appeal are not valid, they do not raise issue involving question of Customary Law or such other matter as may be prescribed by the State Assembly. Thus, the present appeal before this Court from the Customary Court of Appeal Imo State is in my view incompetent, having failed to satisfy the provisions of Section 224(1) of the 1979 Constitution, (as amended).

The preliminary objection is well founded and based on a solid rock. It therefore succeeds. Consequently, I agree that this Court has no jurisdiction to entertain the appeal filed by the Appellant from the judgment of the Customary Court of Appeal Imo State.

In the result, this appeal fails and it is hereby struck out for lack of jurisdiction.
There will be costs of N5000.00 in favour of the respondent against the Appellant.

Other Citations: 2002)LCN/1248(CA)