Boniface Okoro V. Paul Nwachukwu (2006)
LawGlobal-Hub Lead Judgment Report
THOMAS, J.C.A.
This is an appeal against the decision of Customary Court of Appeal, Owerri, delivered on 5th March, 1994 in appeal No. CCA/0W/A/111/93.
The brief facts of the case is that, the plaintiff/respondent/respondent, now simply to be referred to as respondent, instituted a suit No. CC/EZ/IK/65/90 at the court of first instance namely Customary Court, Ikeduru against the defendant/appellant now simply to be referred to in this appeal as the appellant. The claim was as follows:
“An order asking the defendant to allow the plaintiff redeem his grand father’s land with them which was pledged by his late uncle which land was known as and called Ofe Owerri Ihunyeraku land in Amaugo Oziri Inyishi Ikeduru.”
The court of first instance, heard the parties and their respective witnesses and also visited the locus in quo and heard more witnesses to identify the land in dispute. The court delivered its decision granting the respondent the claim that he should redeem the land with the sum of N1.00 (One Naira).
Dissatisfied with the decision of the Customary Court, the appellant filed an appeal to the Customary Court of Appeal Owerri.
The appeal was dismissed and the decision of the court of first instance was affirmed. Still dissatisfied with the decision of the Customary Court of Appeal, the appellant appealed to this court by filing 7 grounds of appeal and later by the leave of this court amended six grounds of appeal. After compilation and settlement of the records of appeal and pursuant to the provisions of Order 6 rules 2, 3 and 4 of this court, same were complied with, whereby, both parties exchanged their briefs of argument in which appellant’s issues were formulated for determination. They read as follows:
“1. Whether from the plaintiff/respondent’s claim and the defendant/appellant’s plea thereto, the title to the land in dispute was in issue and if answered in the affirmation, did the plaintiff establish any title to the land in dispute.
- Whether the learned Judges of Customary Court of Appeal were right in upholding the decision of the trial Customary Court upon the unresolved issue of the amount of the pledge and the actual parties thereto.
- Whether the plaintiff/respondent’s claim was competent.
- Whether the evidence led at the trial court by both parties were properly evaluated and if the answer is in the negative, whether the Customary Court of Appeal was right in not disturbing the findings of fact by the Customary Court.”
The respondent followed and adopted appellant’s 4 issues as his own issues for determination in the appeal.
Issue 1
Appellant’s argument on issue 1, is that, the respondent did not prove his title to the land in dispute. That respondent’s mere plea to redeem the land without first establishing his root of title, was enough for the trial court of first instance to have dismissed respondent’s claim. That the trial court of first instance’s reliance on the evidence of PW2 was mainly due to PW2’s relationship with appellant which was prejudicial, a miscarriage of justice and sentimental and that the reliance of PW2 is unknown to law. Counsel urged this court to hold that the respondent did not prove his title to the land he wanted to redeem. He relied on section 146 of the Evidence Act.
Respondent’s first line of attack by reply argument in connection to issue 1, is that:
Title to the land as an issue, was never raised at the lower court (Customary Court of Appeal) and that for the appellant to raise and argue title to land, the appellant should have sought leave to raise and argue before this court, which he failed to do. Counsel urged this court to discountenance appellant’s issue and the argument on same.
Respondent’s further argument is that:
The respondent by his plea to redeem the land, he had put the title to the land in issue and that infact, the respondent had given credible evidence as to ownership of the land by calling witnesses who testified in the court as well as to the visit to the locus in quo where his witnesses confirmed that he owns the land in dispute.
Respondent’s counsel contends that mode of hearing in Customary Court is completely different from hearing in the High Court and that Evidence Act, 1990 is not applicable in Customary Court as argued by the appellant. The respondent submitted that the trial Customary Court was not wrong in relying on the evidence of PW2 because the appellant did not challenge evidence of PW2 who clearly stated that the respondent owned the land. It was further contended that the appellant himself had admitted that the respondent had sold IROKO trees on the land and that appellant had shares from the sale of the tree. That the land in issue belonged to the respondent’s father, which was not related to the family land shared with other relations.
Respondent urged this court to hold that the respondent had established his title to the land at the court of first instance based on which he was given judgment to redeem his land.
Issue 2
Appellant’s argument is that the amount of the pledge and actual parties and their witnesses were not resolved by the trial Customary Court which was affirmed by the Customary Court of Appeal.
Issue 2 reply on the part of the respondent, as per their brief of argument is that this issue was properly canvassed at the court of first instance.
I am of the considered view that issues 1 and 2 can be conveniently determined to dispose the appeal.
Now to determine issue 1, the first question to ask is, whether the appeal of the appellant is competent by argument on an issue that was never raised at the lower court, and not only that there is no leave granted by this court to argue or raise a new issue. It is pertinent to note that the appellant had applied to this court by motion on notice dated 24-05-2000 seeking for an order:
“1. Granting leave to the appellant/applicant to file and argue additional grounds of appeal.
- Granting leave to the appellant/applicant to file and argue afresh point of appeal to wit – ISSUE OF TITLE to the land in dispute.
- …
- Granting the appellant/applicant leave to adduce further evidence.
- …”
and upon reading the application with supporting affidavit of the appellant Boniface Okoro, along with the further affidavit of Lynda Nnubia and counter-affidavit of the respondent- Paul Nwachukwu, sworn and filed on 07-05-96, 29-09-97 and 19-06-96 respectively, and after hearing parties’ counsel for applicant and the respondent respectively, the Presiding Justice, J. O. Ogebe, (JCA) declared as follows:
“It is ordered that the motion filed on 07-05-76 is hereby struck out with N2,000.00 costs to the respondent.”
But to my utter surprise, the same appellant has continued by filing his brief of argument on 18-06-2002 and formulated 4 issues as stated above. Issue 1 is identical to prayer 2 in his motion on notice which was for leave to file and argue a fresh point of appeal to wit – ISSUE OF TITLE to the land in dispute, which was refused and struck out with cost. This court cannot discredit its earlier decision on an order as made per Coram J. O. Ogebe (JCA), who was presiding. Now, from a careful examination of the appellant’s additional grounds 1, 2 and 3, it is very clear that the grounds do not relate to the decisions of the Customary Court of Appeal, Owerri. Moreover, a ground of appeal must stem from the ratio decidendi of the judgment appealed against. See Livestock Feeds Plc v. Funtua (2005) 17 NWLR (Pt.955) 549, 562 D-G, Babalola v. The State (1989) 4 NWLR (Pt. 115) 264, 294.
From the above provisions of the law of grounds of appeal, being related to the ratio decidendi, issues formulated from the distilled grounds 1, 2 and 3 of the appellant are absolutely incompetent. It is settled law that where issues for determination are not predicated on the grounds of appeal, the issues then become incompetent and are liable to be struck out or discountenanced, see Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637; Osinupebi v. Saibu (1982) 7 SC 104. I am therefore of the considered decision that in the appeal at hand, as correctly argued by the learned counsel for the respondent in his briefs at page 4, para. 4.01 there is no leave of this court to argue an issue that did not form part of the judgment of the Customary court of Appeal.
For further emphasis, appeal from Customary Court of Appeal to the Court of Appeal is of right if the notice of appeal is against Customary Law, see Iyamu v. Aigbiremwem (1992) 2 NWLR (Pt. 222) 233, 241 – 242 H-I, where Ogundare (JCA) as he then was, stated:
“After a careful consideration of these grounds, I have come to the conclusion that none of them (party) raises any question of customary law, they complain only or mainly against the findings of the Customary Court of Appeal as to facts on the root of title, identity of the land in dispute and whether inheritance was the main issue in the case.
These complaints do not put in issue what the customary law on a particular point ought to be which; to my mind is the purport of section 224(1). It follows that the plaintiff’s appeal to this court is incompetent.”
Now in the appeal at hand, it is crystally clear that the appellant did not raise any question of customary law at the Customary Court of Appeal. Before this court, he complained only about title to the land in dispute; interest to the land; affirming of decision of the court of first instance; link to the land etc, etc. I am of the view that the appellant as per his amended grounds of appeal (from which he distilled and formulated irrelevant issues for determination) are incompetent and are not in conformity with section 245(1) of the Constitution of Nigeria 1999 which says that 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. From the foregoing, issues 1 and 2 having struck out, appellant has failed in his futile effort to allow the appeal.
Issues 3 & 4
The remaining issues to be considered are issues 3 and 4.
Appellant’s argument to issues 3 and 4 is that the respondent’s claim at the court of first instance was not competent. Appellant’s contention is that the respondent who was also PW 1, had a weak nexus or connection to the land in dispute; that the weakness was because the respondent said it was his uncle who pledged the land to appellant’s grandfather; that the respondent did not prove how the land had devolved to him from his uncle, nor did the respondent establish how he became the administrator of his uncle’s property, or that the land was given to him as a gift from his uncle. That the respondent did not establish his competence to institute the suit. To support his submission that the respondent did not establish his root of title and right to institute the suit, appellant’s counsel referred to the case of Ogunsanya v. Dada (1990) 6 NWLR (Pt. 156) 347, 349. 1, 2, 3 and section 6(6)(b) of Constitution of Nigeria, 1999. Appellant’s counsel contends that the respondent was only a speculator and that the evidence of PW2 was contradictory to the respondent’s evidence, and that the Customary court, being court of first instance, was wrong by relying on erroneous, misleading and conflicting evidence of PW1 and PW2 and gave judgment in favour of the respondent. Appellant further submitted that the trial court’s reliance on contradictory evidence of PW1 and PW2 was wrong because it is not the duty of the trial court to substitute its own version of evidence against the evidence of the claimant.
Counsel relied on the case of Okolo v. U.B.N. Ltd. (1998) 2 NWLR (Pt. 539) 618, 628 R26; State v. Edo (1991) 7 NWLR (Pt. 201) 98, 101. Counsel contends that the contradictory evidence of PW1 and PW2 was so glaring to be left under the carpet; and he urged the court to resolve issues 3 and 4 in their favour and set aside the judgment of the trial court which was affirmed by the lower Customary Court of Appeal and thus to dismiss the suit filed by the plaintiff/respondent.
On the part of the respondent on his issues 3 and 4 is that his claim at the court of first instance was the redemption of his grand father’s land pledged by his uncle. That the above issue was never raised by the appellant at any point in the two lower courts. That right from the two lower courts, up to this appeal, the appellant has not proposed who should have been the claimant other than the respondent himself. He then submitted that he had established a nexus between himself and his grand father’s land and he urged this court to hold that the appellant issue 3 had failed.
Respondent’s argument on issue 4 is that the trial Customary Court had properly evaluated both parties’ evidence before granting judgment in favour of the respondent; and that it was proper and lawful for the Customary Court of Appeal not to disturb but affirmed the evaluation of the first lower court. Learned counsel for the respondent referred to the findings of the Customary Court of Appeal at page 66 – page 68; that present appellant’s issue 4 is in pari material with same appellant’s issue 2 which he raised at the lower court. In other words, the respondent is contending that the issue as to evaluation of the evidence of parties at the lower court is still repetition of the same issue raised and resolved at the lower court.
Learned counsel for the respondent urged this court to hold that the lower two courts had properly evaluated the evidence of witnesses of both patties and that an appellate court should not interfere with findings of fact made by the lower courts.
Now I have to look at the claim made by the respondent at the trial court to ascertain if the claim was competent as made in issue 3. The claim of the respondent is made at page 3 of the record and it reads:
“Seeking court’s order asking the defendant to allow the plaintiff redeem his grandfather’s land with them which was pledged by his late uncle. The land is known as and called Ofe Owerri Ihunyereaku …”
Now looking at the claim made before the Customary Court, there is nothing wrong or unlawful with the right to claim or to sue the defendant whose possession on the land is said to be on a pledge. A pledge is a pledge. As pronounced by the learned President of Customary Court of Appeal, a pledge can never mature to right of occupancy by effluxion of time. I agree in toto. A pledge is a serious promise between the parties that they will abide with their agreement entered into. A pledge means either a sum of money or something valuable that one leaves with somebody to prove that the other person will do something or pay back money that is owed. In customary system, a pledge means that someone has handed his property (in the appeal at hand, the pledge) to another person pending the time of paying back the loan to the money owner. In evidence law, it is settled that hearsay evidence is excepted in proofs of land matters before Customary Courts.This was what happened at the Customary Court proceedings when parties called their witnesses in the court as well as the movement and corroborative evidence of the respondent at the locus in quo. The respondent was PW1 and PW2 Jonathan Okoro, a close relation and family head of the appellant, strongly supported the claim of the respondent that the land in dispute was on pledge. Bethiel Duruaku, a neighbour farm owner of the respondent also at the locus in quo, corroborated the claim of the respondent that the land was on pledge. Still at page 15 of the record, the trial court vividly recorded their proceedings at the locus in quo where John Emeruem called by the appellant said that he heard about the pledge before filing of the case between the parties. It is to be noted that when PW2 testified in favour of the respondent, the appellant was in court. Yet the appellant could not discredit the evidence of PW2 who stated as follows:
“The plaintiff is my relation, we have a common grand father. The defendant is my nephew. They are in court over a land matter called Ohia Owerre Ihunyereaku …”
The land is on pledge with our family from Nwaneshindo to my father Okoro. The defendant is a close relation. This Nwaneshindo was the father of the plaintiff. The pledge money is 10% or N 1.00 … during time we were sharing our family lands, this disputed land was not shared and again our mother told us that the disputed land was on pledge with our family.”
From the above, there is no doubt that the appellant failed to challenge the vital corroborative evidence of PW2 in favour of the respondent.
It is still very important to note, that the land claimed by the respondent is known and called as “Ofe Owerre Ihunyereaku”; and PW2 and DW2 also identified the same land claimed by the respondent. But to the contrary, the appellant called the land in dispute as” ala Udara Ofor”. The appellant still called DW2 named John Emeruem, but instead of supporting the appellant, DW2 agreed with the respondent that the land is called “Ihunyereaku” and thus, not “ala Udara Ofor”. The above evidence show that the appellant was just on his own. He could not even call his mother DW3 to come to the locus in quo to identify the land in dispute. From the totality of evidence at the trial court in connection with the pledge, and the identity of the land in dispute, I am fully satisfied that the findings of fact that the land was on pledge from the grand father and uncle of the respondent to the grand father of the appellant is well established by the credible evidence of respondent, PW2 and DW2.
The respondent had established his link or nexus to the land through his father Nwaneshindo from his grand father Okoro. This evidence was clearly established by PW2 – Jonathan Okoro.
From the above findings, I am satisfied that the respondent’s claim to pledge the land in dispute was competent and in fact, the trial Customary Court had properly evaluated the totality of evidence adduced by the parties before it. The Customary Court of Appeal was perfectly right in not disturbing the findings of the trial court as shown on pages 66 – 68 of the record of appeal. In effect, issues 3 and 4 are resolved against the appellant.
Appellate court has no duty to disturb the findings of fact established by the lower courts unless the trial court failed to evaluate the evidence adduced before its decision.
Issues of facts in respect of which there have been two concurrent findings by the Customary Court and the Customary Court of Appeal, the attitude of the Court of Appeal is that in the absence of special circumstances, this court will not allow a question of fact to be re-opened where there have been two concurrent findings of fact. In the instant appeal before this court, there is no special circumstance shown by the appellant to justify a reconsideration of the two lower courts’ findings. See Sule Oladejo Asariyu v. The State (1987) SC 62, 72; (1987) 4 NWLR (Pt.67) 709; U.B.A. Plc v. B.T.L Ind. Ltd. (2004) 18 NWLR (Pt.904) 180; Otun v. Otun (2004) 14 NWLR (Pt.893) 381; Ibori v. Agbi (2004) 6 NWLR (Pt.868) 78.
In conclusion, it is adjudged that this Appeal is of no merit as all issues formulated by the appellant failed. I dismiss the appeal and affirm the decisions of the lower Customary Court and Customary Court of Appeal delivered on 05-05-1994. I award costs of N10,000.00 in favour of the respondent against the appellant.
Other Citations: (2006)LCN/1909(CA)
