Chief Joseph Ozoemena & Anor V. Chief Joseph Nwokoro & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

Four suits Nos. COK/83/91, COK/92/91, COK/99/91 and COK/126/91 were brought before the Customary Court of Imo State sitting at Abo-Umulolo, Okigwe. The suit No. COK/92/91, filed by one Timothy Chukwu on behalf of Okoro Eze Okpuwe family of Okpala village of Amuro, Okigwe was later dismissed for want of prosecution. The remaining suits proceeded to trial and judgment as consolidated suits.

The suit No. COK/83/91 was between Chief Joseph Ozoemena and another of Umulo village, Amuro Okigwe, as Plaintiffs, and Samson Eze and Another of Amaikpa village, Amuro okigwe. The Plaintiffs of Umulo village claimed against the Defendants of Amaikpa village seeking a declaration of customary right of occupancy of over a piece of land, perpetual injunction and the sum of N1,400.00 value of 400 heads of palm fruits allegedly harvested at Ulu-Okporikpo by the Defendants of Amaikpa village.

In the suit No. COK/99/91 – Chief Joseph Ozoemena and another, on behalf of Umulo village of Amuro Okigwe sued Timothy Chukwu of Okpala village, Amuro Okigwe.

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The Plaintiffs of Umulo village were in the said suit claiming against the Defendant of Okpala village a declaration that the Plaintiffs were entitled to the customary right of occupancy to the piece or parcel of land known as UHU-OKPORIKPO lying and suitate at Umulo, Amuro Okigwe. They also claimed perpetual injunction restraining the Defendant from further entering and/or interfering howsoever with the said Uhu-Okporikpo land.

Chief Joseph Nwokoro and another representing Amaikpa village, Amurookigwe, were the Plaintiffs in COK/126/91. They had sued Chief Joseph Ozoemena and two others including Timonthy Chukwu (Plaintiff in COK/92/91, and the Defendant in COK/99/91), claiming to be declared as persons entitled to the customary right of occupancy to the piece or parcel of land known and called UHU-OKPORIKPO situate at Amaikpa village Amuro Okigwe. They also sought N250.00 as damages for trespass and perpetual injunction restraining the Defendants from further acts of trespass into the said land.

In all the three suits – COK/83/91, COK/99/91, and COK/126/91, the core dispute was over the customary ownership of the right of occupancy to the piece of land known as and called UHU-OKPORIKPO.

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In COK/83/91 and COKl99/91, the Plaintiffs were the Umulo people while Amaikpa people were the Defendants. In COK/126/91, the Amaikpa people were the Plaintiffs while the Defendants were Umulo people.

The Customary Court at Abo Umulolo entered final judgment in the consolidated suits in favour of the Amaikpa people (Defendants in COK/83/91 and COK/99/91, but plaintiffs in COK/126/91) against the Umulo people (the plaintiffs in COK/83/91 and COK/99/91 but Defendants in COK/126/91). On Appeal of the Umulo people (Defendants in COK/126/91 to the Customary Court of Appeal in Appeal No. CCA/OW/A/54/200L, the Customary Court of Appeal allowed the Appeal, set aside the judgment of the Customary Court and entered judgment for the Umulo people (the Plaintiffs in COK/83/91 and COK/99/91 and Defendants in COK/126/911).

The Amaikpa people further Appealed to the Court of Appeal. Their Appeal No. CA/PH/290/2003 was allowed on 24th November, 2003, and the decision of the Customary Court of Appeal (CCA/OW/A/54/200I) was set aside, on facts, and the decision of the Customary Court was restored.

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This further Appeal to this Court, brought upon leave of the Court of Appeal (hereinafter called the “Lower Court”) granted on 14th February, 2006, is at the instance of Chief Joseph Ozeomena and another for themselves and representing Umulo village, Amuro Okigwe, as the Appellants. The first set of Respondents are Chief Nwokoro and another (for themselves and as representing Amaikpa village, Amuro, Okigwe). Timothy Chukwu of Okpala village, Amuro Okigwe is the second set of the Respondents.

This Appeal is premised on three grounds of Appeal that complain against the handling of 3 named grounds of Appeal (that is grounds, 2, 3 and 6) at the lower Court. The 3 grounds of Appeal, shown of their particulars are as follows:

1. The Court of Appeal erred in law when it held that ground 2 of the Respondents’ ground of Appeal was competent in that it raised issues of customary law and proceeded to entertain their on the same among others i.e grounds 3 and 5 and allowed the same.
2. The Court of Appeal erred in law when it held that ground 3 of the grounds of Appeal in the said Court was competent and that the same raised question(s) of customary law and thereby proceeded to determine the Appeal on the same among other grounds i.e grounds 2 and 6.

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The Court of Appeal erred in law when it held that ground 6 of the Respondents’ ground of Appeal was competent and that the same raised question(s) of customary law.The 3 grounds of Appeal at the lower Court (i.e grounds 2, 3, and 6) the subject of attack in this Court were introduced and or brought in, by way of amendment, upon leave of the lower Court granted for them inter alia to substitute the original grounds 2, 3, and 4. The lower Court, on 21st September, 2004, granted leave to the Appellants before it (now the 1st set of Respondents) inter alia;

to amend the notice of Appeal by deleting grounds 2, 3 and 4 of the Notice of Appeal and substituting therewith new grounds 2, 3, 4, 5, 6 and 7 as shown in EXHIBIT A annexed to this motion.

In all, the 1st of Respondents, as the Appellants at the lower Court, canvassed a total of seven (7) grounds of Appeal, from which they raised and argued four issues for the determination of that Appeal. Only grounds 2, 3 and 6 survived the preliminary objection of the present Appellants.

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Grounds 1, 4, 5 and 7 were struck out by the lower Court “for being incompetent” (page 336 of the Record). The Appeal was eventually determined on the following three issues, adjudged competent, by the lower Court:

B.1(a) Whether from the evidence tendered at the trial the Plaintiffs/Respondents discharged the burden of proof in law to entitle them to their claim

(b) lf the answer is in the negative, did the Appellants prove their entitlement to the land-in-dispute as per their claim

B.2 Whether the lower Court properly evaluated the evidence tendered before the trial Court by the parties

B.3 Whether the specific finding made by the trial Court on the local arbitration which was a live and material issue between the parties was proper

The present Appeal turns on whether the lower Court was right in holding, upon partly allowing the preliminary objection, that grounds 2, 3 and 6 of the grounds of Appeal before it were competent. Though the judgment of the lower Court based on issues formulated from the disputed grounds 2, 3 and 6 before it decided the merits, upon evaluation of the facts before it, this Appeal, questioning only the competence of those 3 grounds of Appeal, will not in

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actuality decide directly the question as between the parties herein: who is the person actually entitled to the ownership of the customary right of occupancy over the piece of land known as and called UHU-OKPORIKPO.

The disputed grounds 2, 3 and 6 at the lower Court read thus

2. The Customary Court of Appeal erred in law by holding that the Plaintiffs (Respondents proved their entitlement to the land-in-dispute known as and called UHU-OKPORIKKPO.

PARTICULARS

a. The Plaintiffs/Respondents failed to prove any grant of portion of the entire UHU-OKPORIKPO to the Appellants or their forebears.

b. The Plaintiffs/Respondents did not trace or Proffer any traditional evidence of ownership of the land or any acts of possession numerous and Positive.

c. PW.1’s evidence of his title dating from Ukaegbu had serious gaps, mysterious linkage or nexus.

d. The Plaintiffs/Appellants admitted that “Okporikpo” was a human being and made no effort to connect or link their ownership to him.

e. The assertion that Defendants/Appellants were their tenants was not proved.

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The lower Court finding at page 230 lines 10 – 14 that Plaintiffs successfully proved by traditional history their root of title was not borne out of the records.

3. The lower Court erred in law in dismissing Appellants suit against the Plaintiffs/Respondents when the evidence led in proof of their case was cogent consistent and unshaken.

PARTICULARS

a. Plaintiffs/Respondents admitted that the Appellants live on part of the land in dispute.

b. Plaintiffs/Respondents failed to prove by cogent evidence as found by the trial Court that Appellants were their tenants or any grant thereof was made to them: S.137 Evidence Act.

c. The area the Appellant live and the disputed area are one piece or parcel of land known as and called Uhu-Okporikpo and both parties called it the same name.

d. There is evidence that Appellants are in possession of the land called Uhu-Okporikpo and the Plaintiffs/Respondents came to the land only in 1991.

e. Onus is on Plaintiffs/Respondents to show that Appellants established to be in possession of the land are not owners: S.146 Evidence Act.

f. Acts of Possession and enjoyment of land is (sic) evidence (in this case) of ownership not only of

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the particular area of residence of Appellants but also of the remaining portion of Uhu-Okporikpo: S.46 Evidence Act.

b. Traditional evidence of Appellants was not faulted as they traced how the land devolved from their ancestors to them.

6. The lower Court erred in law in holding that the trial Court relied heavily on the local arbitration to justify its dismissal of the plaintiffs/Respondents case, when the trial Court in discharge of its duty made specific finding of fact on the issue of arbitration which was a material issue in controversy between the parties.

PARTICULARS

a. The decision of the trial Court was not based on the findings of the local arbitration.

b. The trial Court commented on the custom of Amuro Okigwe on oath-taking and came to the conclusion that the custom prescribes that the man in possession of the land swears the oath and not the challenger. In this case, Appellants as found by the local arbitration should swear for the Plaintiffs/Respondents.

c. In the verdict of the trial Court at page 142 lines 10 – 23 of the record, it only said that a Court of Justice should support a good decision by local arbitration.

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The case of Plaintiffs/Respondents failed woefully with or without the arbitration panel judgment.

e. The parties Appeared and participated fully at the arbitration, each side claiming that the arbitration decided in their favour.

f. The trial Court had a bounden duty in making a finding on the issue of whether the arbitration reached a decision, published it to the parties and what was the finding of the arbitrators.The sole issue formulated by the Appellants in this Appeal is:

Whether the Court of Appeal had the jurisdiction to entertain the Respondents’ Appeal from the judgment of the Customary Court of Appeal.

The Respondents, on the other hand, also formulated a sole issue but differently thus:

Whether grounds 2, 3 and 5 as contained in the notice of Appeal of the Respondents at the lower Court raised question or questions of customary law as to make the Appeal competent before the Court.

I prefer the Respondents’ issue to the Appellants’ sole issue. Clearly, the Appellants’ sole issue does not capture and bring out the graveman of the Appellants’ grouse reflected

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by their grounds of Appeal to this Court. The three grounds of Appeal brought to this Court, which I earlier reproduced (shorn of their particulars) do cumulatively complain that grounds 2, 3 and 6, held by the Court of Appeal to be competent and on which the said Court based its decision (the subject of this further Appeal), are not competent and that the Court of Appeal erred in so holding.

The Appellants relying on USMAN v. UMARU (1992) 7 S.C.N.J. (Pt. 2) 388; GOLOK v. DIYALPWAN (1990) 3 S.C.N.J. (Pt. 139) 411, and OGOLO v. OGOLO (2003) 18 N.W.L.R. (Pt. 852) 494 submit that the said grounds 2, 3, and 6, not raising any issue of customary law, are not competent. They submit also, citing HIRNOR v. YONGO (2003) 9 S.C.N.J. (Pt. 824) 77, OKEREKE v. NWANKWO (2003) 4 S.C. (Pt. 1) 16 and PAM v. GWOM (2000) 1 S.C.N.J. 36; (2000) 2 N.W.L.R. (Pt. 644) 322 that where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not a question of customary law. They rely, for these submissions, on Section 245(1) of the Constitution of the Federal Republic of Nigeria (C.F.R.N.), 1999, as amended.

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In TIZA v. BEGHA (2005) 5 S.C.N.J. 168, the Appellants further submit, this Court pointed out that there is not yet any Act of the National Assembly, pursuant to Section 245 of the C.F.R.N. extending the jurisdiction of the court of Appeal to entertain an Appeal from the Customary Court of Appeal on any ground, other than grounds raising issues of customary law.

In response, the Respondents’ Counsel submit that grounds 2 and 3 before the lower Court raise complaints of traditional ownership of land and customary grant. Ground 6, Counsel submits, raise the issue whether the customary arbitration relied upon by the trial Customary Court was an arbitration in conformity with the customary laws of the parties. Counsel further submits that the parties are ad idem that oath-taking, being one of the methods of determining ownership of land in Amuro, is a matter within the customary law of the area the disputed land is situated. PAM v. GWOM (supra) relied on by the Appellants, Respondents Counsel submits, was decided by this Court on grounds of Appeal similar to grounds 2, 3 and 6 now in dispute. Accordingly, Respondents’ Counsel reasons that by virtue of Section 245(1) of the C.F.R.N., 1999, the Court of Appeal can competently exercise jurisdiction to entertain grounds 2, 3 and 6 before it.

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Grounds 2, 3 and 6 before the Court of Appeal in the notice of Appeal against the decision of the Customary Court of Appeal of Imo State are very clear and unambiguous. I reproduced them earlier.

When the said grounds 2, 3 and 5 (including their particulars) are read together and related to the reliefs the parties claimed in their various suits consolidated at the trial Customary Court – the obvious issue therefrom raises questions as to whether the Plaintiffs/Respondents proved their title to the customary right of occupancy over the disputed UHU OKPORIKPO land, under the rules of customary law (including traditional history and evidence, resort to oath-taking as a means of resolving disputes or establishing title, and customary arbitration) prevailing in Amuro area of Okigwe. The grounds raising, as they do, “any question of customary law” are in my view competent grounds of Appeal which the Plaintiffs/Respondents, as the Appellants the Court of Appeal aggrieved by the decision of the Customary Court of Appeal of lmo State, are entitled to

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Appeal “as of right” on those grounds of Appeal to the Court of Appeal under Section 245(1) of the Constitution.

The learned Counsel for the Respondents submit relying on PAM v. GWOM (supra) that the instant grounds 2, 3, and 6 are on all fours with the grounds of Appeal adjudged competent in PAM v. GWOM (supra), and further, and I agree that proof of ownership of land in accordance with the principles of customary law is an incidence of customary law. Any ground of Appeal to the Court of Appeal from the decision of Customary Court of Appeal raising such question of customary law is Appealable “as of right” under Section 245(1) of the Constitution. This point was correctly appreciated by the Court of Appeal when at pages 334 – 335 it stated-

In GOLOK v. DIYALPWAN (supra) at pp. 419, 420, 421 and 424 the Supreme Court unequivocally pronounced that the proof of a case is undoubtedly a matter of law and since Area Courts administered customary law, failure to prove a case therein means failure to prove it in accordance with customary law. Any ground of Appeal encapsulating the like of traditional inheritance of land or customary grant of same will be competent…..

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Borrowing of land or customary grant and traditional inheritance of land are obviously issues of customary law complaints in such realm will, no doubt, be competent.

The learned Counsel to the Appellants appears to me not to properly appreciate the tenor of Section 245(1) of the Constitution viz-a-viz the disputed grounds 2, 3 and 6 and ‘thereby misdirected himself in the submission that “an Appeal from the decision of the Customary Court of Appeal, Owerri, to the Court of Appeal must per force be limited to a complaint with respect to a question of customary law, and in the absence of complaint by a ground or grounds of Appeal as in the instant case, raising any issue or issues of customary, the Appeal will be incompetent, and the Court of Appeal will have no jurisdiction to adjudicate on Appeal.” I have demonstrated sufficiently, that in the instant Appeal, grounds 2, 3 and 6 at the Court of Appeal were competent and Appealable “as of right” under Section 245(1) of the Constitution.

The learned Appellants’ Counsel seems to have mixed up the right to Appeal as of right under Section 245(1) of the Constitution with the right guaranteed under Section 240 of

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the same Constitution to any person aggrieved by the decision of the Customary Court of Appeal to Appeal to the Court of Appeal. Section 240 provides inter alia:

240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear, determine appeals….. from the Customary Court of Appeal of a State..

The substantive right of Appeal, or the exclusive jurisdiction vested in the Court of Appeal to hear and determine Appeals from the Customary Court of Appeal, vested by Section 240 of Constitution and the procedure laid out in Section 245 of the same Constitution for the exercise of the right of Appeal vested by Section 240, are, no doubt, two different rights. The former (Section 240) is a substantive right, while the latter right (Section 245) is procedural. Having reproduced Section 240 of the Constitution, it is necessary that I also reproduce Section 245 of the Constitution for proper appreciation of this point. Section 245 provides thus:

245(1) An Appeal shall lie from decisions of Customary Court of Appeal to the Court of Appeal as of

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right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.

(2) Any right of Appeal to the Court of Appeal from the decision of a Customary Court of Appeal conferred by this Section shall be –

(a) exercisable at the instance of a party thereto or, with leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other party having an interest in the matter;

(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

The Court of Appeal Act, 2004 is one such Act of the National Assembly that Section 245(2)(b) makes reference to. Section 24 of the Court of Appeal Act is in Part V there of dealing with procedure of exercising the right of Appeal to the Court of Appeal from the decisions of Courts from which Appeals against lie to the Court of Appeal. The Customary Court of Appeal is one of such Courts.

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For the present discourse Section 24 of the Court of Appeal is most germane and it provides thus in Sub-Sections (1) and (3)-

24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of Appeal or notice of his application for leave of Appeal in such manner as may be directed by the rules of Court within the Period; prescribed by the provisions of Sub-section (2) of this Section that is applicable to the case.

(2)…

(3) Where the application for leave to appeal is made in the first instance to the Court below, a person making the application shall, in addition to the period prescribed by Sub-Section (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

Order 6, Rules 2 and 7 of the Court Appeal Rules also make provisions for the procedure the person applying for leave to Appeal to the Court of Appeal from any decision of the Courts below the Court of Appeal, including the Customary Court of Appeal, to follow. The party Appealing “as of right in any civil proceedings before the Customary Court of Appeal”

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to the Court of Appeal from any decision of “the Customary Court of Appeal with respect to any question law” is spared the ordeal of applying, either to the Customary Court of Appeal or the Court of Appeal for leave to Appeal Court of Appeal on any question other than “any question of customary law.” The clear intent of the Constitution, as manifested in Section 245 thereof, is that:

i. The person complaining, by his ground(s) of appeal that raise(s) “any question of customary law” against the decision of the Customary Court of Appeal in any civil proceedings, to the Court of Appeal is vested imbued with the right “to Appeal as of right “against decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to Appeal to the Court of Appeal against the decision of the Customary Court of Appeal.

ii. A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than “any question of customary law” and who intends to Appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal.

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The right of Appeal, or right to Appeal, to the Court of Appeal from the decision of the Customary Court of Appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. The right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way, Section 245 merely provides for the means or procedure for exercising the right of Appeal guaranteed by Section 240- Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution.

The Constitution does not intend the absurdity of denying any right of Appeal, or the right to Appeal, to the Court of Appeal, to a party aggrieved with the decision of the Customary of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to Appeal to the Court of Appeal for redress.

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He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of Appeal raise(s) “any question of customary law or such other matters as may be prescribed by an Act of the National Assembly.”

I agree, as submitted by the learned Appellants’ on authority of TIZA v. BEGHA (supra) that there has not been any Act of the National Assembly, yet vesting on any person the right to Appeal, as of right to the Court of Appeal from the decision of the Customary Court of Appeal on any “other matters” than “any question of customary law.” The absence of such an Act of the National Assembly, in regards to Section 245(1) of the Constitution does not however foreclose or put in abeyance the right of Appeal from the decision of the Customary Court of Appeal, in any civil proceedings to the Court of Appeal under Section 240 of the Constitution.

All I have been trying to say is that there is no substance in this Appeal and it is accordingly hereby dismissed. The Court of Appeal was right in holding that grounds 2, 3 and 6 brought before it were competent. I find nothing wrong with the procedure the Plaintiffs/Respondents, as Appellants at the Court of Appeal, adopted to ventilate their grievance or

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dissatisfaction with the decision of the Customary Court of Appeal of Imo State, sitting in Owerri, in the Appeal No. CCA/OW/A/54/2001.

Appeal dismissed. Parties shall bear their respective costs.

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SC.233/2006