Chief Edmund Obi V. Chikezie Uzoewulu (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is yet another of the recurring litigation over chieftaincy dispute in Anambra State in the South-Eastern part of this Country.

This appeal originated from the dispute as to the person entitled to occupy, after the incumbent Isi-obi, the stool of Isi-Obi of Nsunano/Ezekwuabo village in Otolo Quarters, in Nnewi town, Nnewi North Local Government Area of Anambra State.

On the 28th December 1995, the plaintiff (herein referred to as ‘the appellant’) issued a writ of summon against the defendant (herein referred to as ‘the respondent’) in the Anambra State High Court (herein referred to as ‘the trial Court) sitting in Nnewi Judicial Division, claiming Declaratory reliefs and Injunctions against the eligibility of the respondent’s family to the office of Isi-Obi of Ezekwuabo.

Pleadings were ordered. The appellant filed his statement of claim which was later amended with the leave of the trial Court. The respondent also filed his own statement of defence and counter-claim which was replied by the appellant.

On receipt of the amended statement of claim the respondent also amended his statement of defence and counter claim upon which the appellant filed his amended reply to the defence and counter-claim. It follows that at the close of pleadings, the parties joined issues, the appellant’s claim is, as postulated in his amended statement of claim and on the other hand, the respondent relied upon his amended statement of defence and counter-claim.

The reliefs sought by the appellant is as per his amended statement of claim set out below:

(1) A DECLARATION that the defendant and his members of Dim Onyenagolum family are not entitled and cannot occupy the Obiship of Umui – Ikeogu/Ezekwuabo/Nsunnano

(2) A DECLARATION that the plaintiff is by the Nnewi native law and custom of paterlineal inheritance, the person solely entitled to occupy the stool of Isi Obiship of Nsunano/Ezekwuabo Village in Otolo quarter, in Nnewi Town.

(3) A DECLARATION THAT the plaintiff is the recognized and incumbent Isi-Obi of Nsunano/Ezekwuabo village in Otolo quarter of Nnewi Town and that the attempt by the defendant to constitute himself a rival/parallel Isi Obi of Ezekwuabo Village and/or so parades himself, is contrary to Nnewi custom and therefore is illegal and unlawful.

(4) AN INJUCTION restraining the defendant, his servants, agents privies, associates or workmen from breaching the custom of the Nnewi Town by constituting himself a parallel Isi-Obi of Umu-Ikeogu/Nsunano/Ezekwuabo Village or in any manner whatsoever parade himself or lay claim to the said stool of Isi Obi Umu-Ikeogu/Nsunano Ezekwuabo Village or do any act or perform any function directly or indirectly bearing or touching on the Isi Obiship of Umu-Ikeogu/Nsunano Ezekwuabo Village..

In proof of his claim and to justify grant of the reliefs sought, the appellant testified on his own behalf and called one witness. The respondent did not testify but called two witnesses. The third witness was Igwe Orizi III of Nnewi, who instead sent his Special Assistance to represent him in Court and gave evidence on his behalf. Some documents were also tendered and admitted as Exhibits in the course of the trial.

For the Plaintiff appellant his case is that, Ezekwuabo established an Obiship known as Isi-Obi. Under Nnewi Customary Law, inheritance to the stool of Isi-Obiship is paterilineal. When – Ezekwuabo died his stool was inherited by his first son called Ezeomu. The stool remained and continued in Ezeomu lineage following the same custom of paterilineal inheritance until came to a descendant of Ezeomu known as Dibia-Agu. While he was the Isi-Obi of Ezekwuabo village, the said village was faced with series of wars with it’s neighbours. The then Obi could not control the situation, so he handed over the mantle of Obiship to one of the descendants of Ezekwuabo called Ezekpo who was a great warrior and strategist, to lead the people in the war. Since then the title of Isi-Obi Ezekwuabo remained in the lineage of Ezekpo. The plaintiff/appellant is a descendant of Ezekpo and is the present incumbent of Isi-Obi of Ezekwuabo. The defendant/respondent who is claiming the title is not even a descendant of Ezekwuabo family because his ancestor called Dim-onyenagolum was brought into the Ezekwuabo family called Dim-Mbaniogu. The said Dim-Onyenagolum became assimilated into Ezekwuabo village. That the plaintiff/appellant has no blood relationship with the defendant/respondent. The defendant/respondent continues to claim the office of Isi-Obi of Ezekwuabo, hence the plaintiff/appellant took out this action.

To the defendant/respondent, he descended from the same great ancestor Ezekwuabo just like the plaintiff/appellant. The ancestor begat Ikeogu and other sons. Ikeogu in turn begat Dim-onyenagolum, the ancestor of the defendant/respondent and Dim-Ughanwa was the ancestor of the plaintiff/appellant. The first son of Ezekwuabo was Ezeomu who died during the life time of his father Ezekwuabo. Ikeogu, therefore, became the Okpala and successor to the office of Isi-Obi of Ezekwuabo when Ezekwuabo died.

During the reign of Agulebo, a descendent of Ikeogu, called Ezekpo, an ancestor of the plaintiff/appellant usurped the Isi-Obiship because Agulebo was a minor. He refused to hand it back when Agulebo becames of age. His (Ezekpo’s) descendents retained it since then down to the plaintiff/appellant who is a descendent of Ezekpo. The defendant/respondent now wants the Isi-Obi of Ezekwuabo to come back to his family of Umudim Onyenagolum after the reign of the plaintiff/appellant.

In his judgment the learned trial judge having found that the appellant/plaintiff not worthy of reliefs refused and dismissed them, and all the other hand granted the defendant/ respondent’s counter-claim.

It is against this judgment that the plaintiff/ appellant have appealed to this court, filing 7 (seven) grounds of appeal on 28/3/2006.

While the appeal was pending the appellant died. By application for substitution, this Court on 23/3/2007 granted an order for substituting late Mr. Chikezie Uzoewulu for Augustine Uzoewulu in this appeal.

In accordance with the rules of this court the parties filed and exchanged their respective briefs.

The appellant’s brief contained two issues formulated for consideration of this court and they are as follows:

(i) Whether having regard to the pleadings and evidence, the learned Trial Judge was right to hold

that Ezekpo held the position of Obi Ezekwuabo as a Regent and that the Obi can now revert to the Defendant, after the reign of the plaintiff.

(ii) Whether having regard to the pleadings, the evidence and the parties before the Court below, the decision of that Court dismissing the plaintiff’s suit and sustaining the Defendant’s counter-claim is supportable.

On the respondent’s part, one issue have been distilled from the grounds of appeal as having arisen for determination on the appeal. The issue reads:

“Whether on the totality of the evidence (both oral and documentary) placed before the Court, the verdict (conclusions) arrived at can be justified,”

Looking at the issues as formulated by both counsel in this appeal, it is very clear that the lone issue as formulated by the respondent is apt and direct and is sufficient to dispose of the appeal. I shall therefore determine this appeal on the issues formulated by the respondent.

The main complaint of the appellant under this is that, the conclusion arrived at by the trial court, that Ezekpo took over and held the Isi-Obi stool only as a Regent and was reversible, was the product of the trial court’s conjuncture, imagination and hindsight, because of lack of traditional history, The learned counsel for the appellant submitted that parties in this case gave evidence which happened beyond their time, dating back minimum of six (6) generation ago, and the evidence is conflicting. What ought to be the attitude of the Court to conflicting traditional history dating back to times beyond living memory has been stated by Lord Denning in Twimahelle Kojo II Vs. Opanin Bonsie (1957)1 WLR 1223 and the principle stated therein was adopted in Nigerian jurisprudence through consistent approval by the courts over the years since 1957. To buttress this contention the case of Okafor Vs. Idigo (1984) 6 S.C. 1 at 27 L.12-24 was relied upon.

It was also submitted on behalf of the appellant that, if evidence of traditional history is inconclusive, the case must rest on question of fact as the Supreme Court warned in Sonar Limited v. Nordwind (1987) 3 NWLR (Pt.66) 520 at 536 D – E. It was submitted that, court works on evidence presented and not on conjectures. It was further submitted that the trial court had serious misgivings about the evidence of traditional history presented in relation to how Ezekpo attained the position of Obi, because the trial court disbelieve the appellant when he testified as PW2 that, Dibia-Agu was the son of Ezeomu who handed over the Obi title to Ezekpo. That the trial court again disbelieved the appellant simply because the name of Dibia-Agu did not appear in the appellant’s pleadings, even though the facts about him were clearly pleaded by the appellant. It was further submitted that the trial court disbelieved the respondent and held that the respondent contradicted his family history in EX.H1 produced by the respondent, and contradicted the respondent’s pleading as it relates to Ikeogu and Ezekwe, when he pleaded that Ezekwe was the and in Exh.1 said Ikeogu begat Ezekwe.

Based on the trial court’s misgiving in this circumstance, it is not proper for the trial Court to substitute its own imagination and hindsight to hold that if Ezekpo became Obi during the minority of the incumbent, then the only inference is that Ezekpo took over as a Regent, during a time of war and the conclusion to be reached is that the incumbent was a weakling and could not lead his people in time of war, and then hand over was involuntary and is reversible. This amounts to offering of its own point of view as to what may have happened six generations ago in a community to which it does not belong, and this act of the trial court is not a proper judicial approach. That the proper judicial approach in the circumstance is to test the traditional history by reference to the facts in the recent years established by evidence to see which of the two competing histories is more probable.

In response, the respondent did not in any way support the submissions of either conjuncture, imagination or use of mere hindsight by the trial court in reaching its conclusion. It was further contended that the principles of law out-lined by Lord Denning M.R. in the cases cited and relied on in the appellant’s brief were infact meticulously adhered to by the trial court before reaching its conclusion.

On the alleged lack of witness it was submitted on behalf of the respondent that there were a surfeit of materials placed before the court to justify those conclusion of the alleged lack of witnesses notwithstanding. Finally, it was contended that non of the alleged complaints of the appellant has been made out on this score, and the respondent most humbly urges this court to resolve the issue raised, against the appellant.

The fundamental issue of this appeal raises is undoubtedly, which party’s case, on a preponderance of credible evidence, has more weight.

It is right to say that the task of evaluation of evidence and ascription of probative value to the evidence led in proof of pleadings, is primarily that of the trial court. This pragmatic concession is made to the trial court because of the advantage it had in seeing, hearing and assessing the witnesses in the course of their testimonies before it. In assessing the evidence adduced by the parties to a case, and in order to decide which party should succeed on the preponderance of its evidence, a trial judge should figuratively put evidence given for each party on each side of the proverbial scale of justice and decide which side weighs more than the other. The party whose evidence weighs more than the other, in relation to the relevant law, succeeds. See Mogaji & Ors. Vs. Odofin & Ors. (1978) 4 S.C. p.91 at pages 93-95 per Fatai Williams, J.S.C (as he then was).

It is appropriate to look at the pleadings and relevant parts of the evidence on record and the law to determine which party is entitles to succeed.

The facts crucial to the appellant’s claim are, as pleaded more specifically in paragraphs 11 – 18 of the Amended statement of claim, and read as follows:

11. In Nnewi Town, the selection of the Isi Obi and/or Obi for short of each quarter, sub-quarter, village and family, follows the Nnewi traditional paterlineal custom of inheritance. There are, however, exceptions to this custom whereby the person entitled to the Obiship is denied that entitlement.

The circumstances are as follows-

(a) Where the person entitled to it is a weakling and is incapable of leading his people.

(b) Where he committed an abomination like having sexual inter-course with the father’s wife.

(c) Where the person entitled to it voluntarily gives same out.

12. The plaintiff avers that in Ezekwuabo, the Obiship, by the custom of paterlineal inheritance, fell on Ezeomu who was the eldest son of Ezekwuabo and after him, on his descendants.
13. The plaintiff avers that the above was the position until the time of Ezekpor, when Ezekwuabo was faced with series of conflicts by their surrounding neighbours, which really threatened the continued existence of Ezekwuabo.
14. It was at this time and under the then prevailing conditions of uncertainties that the then Obi of Ezekwuabo, a descendant of Ezeomu feeling that the crisis was beyond his control, handed over his office to Ezekpor who was a great warrior, a strategist and respected by every body.
15. It was Ezekpor that led his people through the nine wars with their neighbours, the wars were popularly referred to as Mgbuagha teghete.
16. The plaintiff avers that when the war became very intensive and challenging, Ezekpor, being a strategist and for strategic reasons, led the Ezekwuabo from their original place of abode to the present place where they now occupy having defeated and driven away the original inhabitants and re-settled his people.
17. The plaintiff avers that since then, the Obiship has descended on the descendants of Ezekpor in the following order. Ezekpor, Dim Onyido, Ezeifeukwu, Ezeaghaigbo, Ndupu Obi and the present plaintiff Chief Edmund O. Obi.
18. The plaintiff avers that the defendant and his ancestors never had any thing to do with the Obiship of Ezekwuabo nor do they have any blood relationship with the plaintiff.

The summary of these above pleadings accepts that succession to the Isi-Obi stool is based solely on the policy of patrilenial tradition i.e. primogeniture.

In answer to the appellant’s claims above, the respondent made replies in paragraphs 11 and 12 of his Amended Statement of defence and counter-claim as follows:

11. In answer to paragraph 11 and 12, the defendant says that the custom as therein stated is generally the practice but in the case of the plaintiff obiship claimed got into his family through an act of USURPATION. The 1st son of Ezekwuabo was Ezeomu who died before his father consequent upon which the Obiship moved unto the next or 2nd son of Ezekwuabo named Ikeogu. In line with the said operative patrilineal custom of inheritance, the obiship after Ikeogu descended to his son Ezejimofor, who in turn had 3 sons, Dim Onyenagolum, Dim Ughanwa and Ilodu, and Dim Onyenagolum succeeded their father Ezejimofor as ISI-OBI. At the death of Dim Onyenagolum his 1st son Dim Aguluebo whose turn it was to assume the Isi-obi of the family, was a minor and Ezekpo (the 1st son of Dim Ughanwa) who was of age at that time stepped in and acted as a Regent. Thence on, the Ezekpo line (of the plaintiff usurped the family Isi-Obi by the successions of Eezufeukwu (Ukatu), Ezeaghaigbo (Obiadimbugha), Chief Ndupu Obi and now Chief Edmund Obi (the plaintiff) in that order. The defendant further states that the family afair which is a necessary complement of Obiship status in Nnewi town has all through the ages up till the present, remained in the defendant’s Dim Onyenagolum lineage inspite of Ezekpo’s usurpation. By Nnewi custom if Ezekpo and his successors were entitled to the Isi-Obi each of them would have at the same time officiated over the Ofor Ezckwuabo, which was never the case.
12. Paragraphs 12, 14, 15, 16, 17 and 18 of the statement of claim are utterly untrue and are hereby denied in the premises of the foregoing paragraph of this defence. Ezeomu’s line never ascended the Isi-Obi of Ezekwuabo for the simple reason that he died in the lifetime of or before his father-Ezekwuabo. The defendant will contend that the continued run of Isi-Obi in the Ezekpo line of the plaintiff is contrary to the traditions and custom of Nnewi town community. In particular answer to paragraph 18, the defendant says that Dim Onyenagolum enjoyed the full measure of his tenure as Isi-Obi of Ezekwuabo and rightfully too and the descent of that office ought to have persisted in his line under the Nnewi customary law, down to the present defendant as indicated above.

And in paragraph 13 thereof, the respondent went on to rely on certain traditional rites accorded his family in recognition of that right to the Isi-Obi stool In the appellant’s Reply to the defence and counter-claim so advanced, the only reference made to the said defence pleading on the accession of Ezekpo to the stool is “Ezekpo never usurped the obiship of Ezekwuabo and never acted as a Regent.”

From the above reproduced pleadings it is clearly shown that there was a joinder of issues between the parties and that while the respondent contended that Ezekpo led the family in wars at a time when the rightful Isi-Obi; Dim Agulebo was a minor and thereafter usurped the stool, which now over the years remained with his (Ezekpo’s) line despite the agitation of the respondent for it’s restoration.

The appellant’s version on the other hand was that the stool was voluntarily handed over to Ezekpo by one Dibia-Agu (from Ezeomus line) and is not reversible.

I now come to the evidence.

In a civil case, the law is that the plaintiff is obliged to prove his case by preponderance of evidence. It is upon the strength of his case only he will succeed, not upon the weakness of the defendant’s case. See Olowu Vs. Oluwo (1985) 3 NWLR (Pt.13) 372. Where a plaintiffs evidence is unsatisfactory, the judgment of the court should be in the defendant’s favour on the grounds that it is the plaintiff who seeks relief but failed to prove that he is entitled to what he claims. Thus even where a defendant has not testified, a plaintiff who has failed to establish his case at the trial court is still not entitled to judgment. See Olasope v. National Bank (1985) 3 NWLR (Pt.11) 147, and Nwabuoku Vs. Otti (1961) 1 All NLR (Pt.2) 487.

Civil suit, as in this case, is determined on balance of probabilities and preponderance of evidence. See Newbreed Organisations Ltd Vs. Erhomosole (2006) 5 NWLR (Pt.974) 499 at 527 S.C.; Owie Vs. Ighini (2005) 5 NWLR (Pt.917) 184 S.C. at p.217 per Tobi J.S.C..

It seems to me after thorough consideration of the briefs of arguments of the appellants and of the respondent, as well as the judgment, including the finding of the trial court, I see no preponderance of the evidence in the appellant’s case on record. Rather, I see and there certainly is a lacuna in the evidence placed by the appellant before the trial Court in the following areas:

His claim is intended to be that his family (Dim Ughanwa family) is, by the Nnewi Native law and custom of patrilineal in heritance, the family solely entitled to occupy the stool of Isi-Obiship of Nsunano/Ezekwuabo and that the respondent’s family (Dim-Onyenagolum family) are not entitled and cannot occupy the Isi-Obiship of Umu-Ikeogu/Ezekwuabo/Nsunano.

It is to be noted that, from the record, it is not in dispute that parties agreed on the custom and tradition of Nnewi Community on succession to the Isi-Obi.

Both parties agreed that inheritance to the Obiship is based on the of primogenitor.

Both parties agreed that at a point in the history of Ezekwuabo family, Ezekpo was the Isi-Obi of Ezekwuabo family. Both parties also agreed that the title of Obi did not get to Ezekpo on the agreed or accepted principle of primogenitor, as his direct father was not Isi-Obi of Ezekwuabo.

How then did he get it and from whom. First, from whom did Ezekpo get the office of Isi-Obiship?

In evidence before the trial Court, PW1 said:

“Ezekpo led the people of Ezekwuabo through the 9 wars because the incumbent Obi (unnamed) then was not able to lead the people. So the incumbent Obi voluntarily gave the mantle of leadership to Ezekpo ….. …From that time till now his descendents continued to be the Isi-Obi of Ezekwuabo. ”

See page 95 L.4-5 of the record.

This witness denied that Ezekpo usurped the Obiship, claiming that it was “a handing over”, from the descendants of Ezoomu to the descendants of Ezekwe during crisis- See p.204 L.12-15 of the record. He repeated this claim at p.I05 L.22-23, p.111 and 119 L.6-20 of the record. He also significantly admitted that Ezekpo was not entitled to the seat of Isi-Obiship by the customs and traditions of Nnewi people, see p.127 L. 15-22 thereof.

It is to be noted that this witness did not named any of the descendants of Ezeomu who became the Isi-Obi of Ezekwuabo family because he did not know any.

Then the appellant, as PW2 gave evidence and is contained from pages 128-148 of the record. At p.129 L.21-24 of the record, he claimed that Dibia-Agu of Ezeomu – line handed over the Isi-Obiship to Ezekpo because he could not lead his people a t the time of the crisis. He, however, denied the suggestion of any usurpation or that the stool was taken-over by Ezekpo from Agulebo. He also admitted the operative principle of primogeniture, see p.138 L.9-10 of the record, and page at 145 L.16 – 19. Under cross-examination the witness admitted that his (the witness’s) family (of Dim-Ughanwa) was never entitled to the stool of Obiship under the Nnewi customs and traditions. He repeated this admission in his evidence at page 147 L.12-14 of the record, where he said; “I agree that my lineage falls into the second son’s position in Ezekwuabo because Ezekwe is the second son while Ezeomu was the first son.”

On the alleged ‘surrender’ or ‘handing-over’ the evidence of PW2 which is at pages 145, L.24 and 14G L.1-3 of the record was to the effect that, there is no record anywhere in Nnewi history saying that, ‘Dibia Agu’ who they claim so handed over the Obiship to Ezekpo ever existed, especially in the light of the recorded history of Nnewi town by Dr. Alutu which was tendered by PW1 as Ex. ‘C’ (see also p. 103).

From the records of evidence the defence, it is shown that DW1 and DW2 gave evidence for the respondent. DW1 whose evidence is at p.148-157 of the records. At p.151 L. 17-18 thereof, he set the pace on the non-contentious issue of the appellant’s incumbency, where he said:

“The plaintiff (appellant) is the incumbent of the Isi-Obi of Nsunano/Ezekwuabo. But he is not entitled to be so.”(italics mine).

He had earlier at p.150 L.1-16 of the records outlined the story of how Ezekpo got into that stool of Isi-Obi and at P.156 L.19-14 thereof said:

“It is in evidence that Agulebo was entitled to the Obiship but because he was a minor Ezekpo took over the obiship as a Regent. Agulebo later became of age. He took Ozo title when he came of age.

During his life time Agulebo made attempts to get it back (Obiship) from Ezekpo. But Ezekpo threatened to kill him.” (italics mine).

After DW1 then DW2 gave evidence which starts from p.157 to 182 L.8 of the records. This witness confirmed the evidence of DW1 thus:

“When Dim-Onyenagolum died, his first son who should have succeeded him was a minor Ezekp, the son of Dim-Ughanwa was acting as Regent for Dim-Agulebo the minor. When Dim-Agulebo grew up, he asked of the obi to come back to him as it belongs to him. Ezekpo refused to return the obiship to Dim Agulebo and threatened to kill him. Since then we have been demanding for the Isi-obi or obi till the time of Ezekpo’s son called Ukatu or Ezeifeikwu. We continued to demand it till the time of Ezeaghaigbo the son of Ezeifeikwu. Ezeifeiukwu was the first son of Ezekpo …. ” (italics mine) See p.158 L.19-end and p.159 L. 1-3 of the record ..

This witness then tendered Ex. ‘J’ to buttress that trend. Continuing his evidence, at p.169 L.17 – 19 of the record, DW2 said;

“Edmund Obi is now the Isi obi of Ezekwuabo because he descends from the second son of Ezekwuabo. But they snatched the Isi-Obi from us.

They usurped it from us” (italics mine).

At page 180 L.6-12, this witness explained the circumstances of EX.A & D to affirm that this tussle for the restoration of Isi-Obiship was not in issue ever raised before the Igwe of Nnewi. Further at lines 13-20 of same, the witness denied that the name, ‘Dibia-Agu’ (who the appellants PW2, claims to have handed over the Isi-Obiship to Ezekpo) ever existed in the history of Ezekwuabo family. He said:

“There is no person called Dibia -Agu in Ezekwuabo family” (italics mine).

The last defence witness was DW3 who was the representative of the traditional rule of Nnewi, HRH Igwe Orizu III, and whose evidence on this score was most instructive. At p.184 LA-17, the witness outlines the general applicability of Nnewi community’s customs and traditions governing succession to the Isi-Obi.

At p. 186-187 L.1-17 the origins and true purport of Ex. ‘A’ was explained by the witness to confirm the fact that the Ezekpo’s intervention was a usurpation of power.

This witness, however, was taken to task in cross-examination on a letter he wrote dated 21/1/97 pertaining to this matter and his explanation was that those views were the personal views he held until the crucial determination/pronouncement of the Igwe of Nnewi council on a similar issue. See p. 193 L.1-10 of the records. Finally, at p.198 L. 8-13, the witness dealt with the significance of Ofo – Ochi-chi, the title held by the appellant and which title was put forward in his case to indicate his entitlement to that stool of Isi-Obi.

The above is all the evidence on both sides in respect of from whom Ezekpo got the title of Isi-Obi.

It is important to note that from the pleadings of the parties, the respondent named the person (in his amended statement of defence and counter-claim) from whom Ezekpo got the mantle of leadership of Ezekwuabo, as Dim-Agulebo, while the appellant, even in his amended Reply to statement of defence and defence to counter-claim failed to plead the name of this important person in their history.

PW 1 admitted, under cross-Examination, that he did not know the name of this person, and did not even know any of the sons or descendants of this Ezeomu who was alleged at one time to be Isi-Obi.

The trial court therefore was right to have concluded that PW 1 was not to be very sure whether the change-over was family – family or between two individuals.

The appellant, however, in his evidence not only gave the name of this person (Ezeomu) but also named his descendants who, at one time or the other, were Isi-Obi of Ezekwuabo. These names, as important as they are, did not appear, not even in the Reply to the respondent’s amended statement of defence and counter-claim. On this ground the trial Court, rightly in my view, decided that the name of Dibia Agu given by the appellant in his evidence is a fictitious name brought in to fill the gap appeared in the testimony of his witness – PW1. For if these names existed the appellant would not have failed to plead them in his Reply to statement of defence and counter-claim faced with the respondent’s giving the name of the person in the amended statement of defence and counter-claim.

The trial court, on the totality of the evidence of the parties adduced before it, prefers and accepts the evidence given for the respondent by DW1 and DW2 because they are consistent with the pleadings of the respondent. It decided that the said Ezekpo got the title of Isi-Obi from Dim-Agulebo. I also holds so.

Having decided that Dim – Agulebo handed over the Isi-Obiship to Ezekpo, then, how the title of Isi-Obiship passed over to the Ezekpo?

By paragraphs 13 and 14 of the appellant’s amended statement of claim, it was, inter-alia, averred as follows:

13… When Ezekwuabo was faced with series of conflicts by their surrounding neighbours, which really threatened the continued existence of Ezekwuabo.

14. It was at this time and under the then prevailing conditions of uncertainties that the then Obi of Ezeomu feeling that the crisis was beyond his control, handed over his office to Ezekpo who was a great warrior, a strategist and respected by every body.

In summary, the above averments, accept that at a point in the history of Ezekwuabo family, the community was faced with a series of conflicts which threatened the existence of the family. At that point and in their history the Isi-Obiship of Ezekwuabo, who was then a weakling felt that the crisis was beyond him and then “handed over” the Isi-Obi to Ezekpo.

The above pleading under paragraphs 13 and 14 was supported by the evidence of PW1 and PW2.

The defence, under paragraph II of the amended statement of defence and counter-claim, pleaded that Ezekpo “usurped” the Isi-Obi from Dim-Agulebo who was then minor. The evidence of DW1 and DW2 supported this pleading. But what is not clear both from the pleading and the evidence in support was whether the defence agrees that there was this time of crisis in their Ezekwuabor Community history. There was no denial of the existence of such crisis in their family history. However, it is a fact and this fact was supported only by evidence of PW1 and PW2 that there was such a crisis existed in their family history and it was during this time of crisis that Isi-Obi of Ezekwuabo passed to Ezekpo.

No independent witness or witnesses from the other two branches of the families in support of this fact.

From the pleading and the evidence in support, the case of the appellant is that the then Isi-Obi, called Dibia Agu, being a weakling ruler, then Ezekpo led the community through the 9 wars that threatened the existence of Ezekwuabo family and thus became the Isi-Obi.

But when this fact was put to DW3, his answer is that:

“I wouldn’t know that Dibia Agu was a weakling and it was Ezekpo who led them in that war. It was not true that it was because Ezekpo led them in that war that he became then Isi-Obi. There are many people in our history who had led in war and did not became the Isi-Obi. ”

Under cross-examination this DW3 agreed that in time of war if the incumbent Isi-Obi is incapable of meeting the obligations relating to war, such as providing enough gunpowder the Isi-Obiship can pass to some one else. He, however, added that in all these situations when the office of Isi-Obi can pass, it is for the incumbent Isi-Obi to voluntarily hand over to the next person.

Now the question is Did the then incumbent Isi-Obi voluntarily handed over the Isi-Obi to Ezekpo? From the evidence of PW1 and PW2, it was voluntarily handing over to Ezekpo, and the person who handed over the Obiship was from the Ezeomu family (one of the branch of Ezekwuabo family). Nobody from this family that came forward to support the appellant’s case that their ancestor voluntarily handed-over the Isi-Obiship to Ezekpo. Under the customs and traditions, if the office of Isi-Obi passed over due to the fact that the incumbent was a weakling then it would have passed over to his next brother in seniority in a normal situation. See the evidence of PW1 where he said:

“If the incumbent is a weakling the brother next to him in seniority takes over the Obiship.

This above is the exception to their customary devolution of Isi-Obi. Had the then Isi-Obi no brothers or indeed, was there nobody from Ezeomu family to take over from the weakling Isi-Obi? The answer is that, it is not in evidence that the then Isi-Obi had no brothers or that there was nobody from Ezeomu family to take over from weakling Isi-Obi. Then why did the Isi-Obiship went to a great warrior from another family? The only explanation as evidence is that, the said handing over happened during crisis and such a great warrior in the person of Ezekpo was the person the whole community would in time of difficulty accept to be their Isi-Obi to save them from extinction.

By the evidence of DW1 and DW2, it says, at that point, and in the family history, the then incumbent Isi-Obi was a minor and thus, Ezekpo, being a well accepted and recognized great warrior, would be accepted to lead the people. Under cross-examination DW1 when told that Ezekpo was a strong man and “Usurped” the Isi-Obiship, he said:

“That is not true. There was no usurpation. The whole village agreed to the handing over because Ezekpo was a well known warrior”

In evaluating the above pieces of evidence the trial Court concluded that:

1. The change over to Ezekpo was generally accepted in the Ezekwuabo family.
2. The change over happened during the weakling/minority of the then incumbent Isi-Obi, hence the family of Ezekwuabo accepted Ezekpo to take over in order to lead them through the crisis.

Taking into consideration of the above two factual situations the trial court asks, could that change-over be a voluntary change over, and the court answered negative. That being so, the trial court in conclusion decided that Ezekpo had taken over the mantle of leadership as a regent. This conclusion is supported by the evidence of DW1 and DW2.. This conclusion in my view is right, and I so hold.

Having reached this decision, the next question in this judgment to be examined is whether Isi-Obi is reversible after it has been passed.

In his pleadings and evidence adduced before the trial Court, it is the case of the appellant that Isi-Obiship can pass under certain enumerated conditions and when it does, it remains there permanently and. It will not come back to the former incumbent’s lineage. The conditions given were as follows:

1. If the incumbent is a weakling.
2. If the incumbent committed abomination it will go to his brother next to him in seniority.
3. If the incumbent voluntarily hands over to his brother.

The evidence is that once any of the condition is present, the title of Isi-Obiship cannot go back, meaning it is irreversible. But the evidence of DW3 was that, once it is ‘voluntarily’ handed over it is irreversible otherwise the title of Isi. Obiship is reversible no matter how long lasted. Sec p. 184 L.18-1.9 of the records where he said:

“During regency no matter how long it lasts, nothing happens to the, right of the rightful person,” (to the obiship).

The witness gave the example of a case decided by the Igwe Orizu with his (Igwe’s) Council in which the appellant was present in attendance, See p, 189-190 L.1-20 of the records. He stated how a regency is created under the customs and traditions of the community and that during regency no matter how long it last, nothing happens to the right of the rightful person – meaning, regency, no matter how long it takes, it remains a regency and as soon as the person entitled is in a position to assume the Isi-Obiship the regency terminates. He gave an example of a regency cases out of which some lasted 90 years and yet it terminates infavour of the rightful person to the obiship. See page 18.

This piece of evidence is incumbent with the pleading of the respondent and the trial court accepted it because it is from a person with great credential, very truthful and reliable.

In it’s judgment, the trial court, decided that what happened during the time of Ezekpo was an involuntarily handing over. Being so Ezekpo was therefore a regent and the title is reversible no matter how long it lasts. This court, in my view, reached the conclusion based on the evidence adduced before it and recorded in the record of this appeal.

The trial court was, in my view, right in its findings, and I so hold. Arising from this is the question, what are the duties of a Court of Appeal as regards the findings of fact by a trial Court and the conclusions and inferences there from?

It is established law that a Court of Appeal cannot take over the work of assessing the credibility of a witness from the trial court and I see no exceptional circumstances in the argument of the learned senior Advocate for the appellant to depart from that rule. For as shown in this judgment, the appellant did not establish by evidence the vital facts of his case, which would have entitled him to judgment. A party who fails to adduce evidence or only adduced scanty and insufficient evidence at the trial is certainly not entitled to judgment, while the respondent counter-claim succeeded.

In effect therefore, the issue is resolved infavour of the respondent, and the appeal lacks merit and is dismissed. The judgment of the trial court is affirmed N20,000.00 as costs infavour of the respondent.

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Other Citations: (2008)LCN/2775(CA)