Eleazar Okoli V. Reginald Okoli & Anor (2002)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment of Okoli, J. delivered on 14th December, 1998 while sitting at the High Court of Justice, Ekwulobia, Anambra State of Nigeria.
At the trial court, the appellant as plaintiff thereat, claimed as follows:
“(1) A declaration that the 1st defendant having denied the title of the plaintiff to the piece or parcel of land known as and called “Ana Okoli” situate and being in Ndioha Village, Ndiokpalaeze Town, Orumba North Local Government Area, has forfeited his right to be on the land.
(2) Possession of the said land.
(3) Injunction restraining the defendants, their servants or agents from continuing with any building on the land in dispute; putting any more building materials thereon, moulding blocks thereon, occupying any building put on the said land, or entering the land in dispute for any purpose.”
As ordered by the trial court, parties filed and exchanged pleadings. In paragraph 10 of the statement of claim, the plaintiff alleged that he granted the land in dispute to the 1st defendant under native law and custom to live upon before Land Use Act, 1978. He maintained that the 1st defendant thereby became his customary tenant but failed to fulfil his obligation to pay customary tribute and observe the conditions relating to a customary tenant. Further, the plaintiff asserted that the 1st defendant claimed that the land was not granted to him by the plaintiff but was his own and that he gave a portion of same to the 2nd defendant.
The 1st defendant denied that the plaintiff made any grant of land to him. He maintained that the land was granted to him in 1950 by Godwin Ekemezie Okoli – the then head of Okoli Ezeokolo family. He denied giving the 2nd defendant any portion of the land in dispute.
The plaintiff, in his bid to prove that the 1st defendant is his customary tenant, said he granted the 1st defendant the land on which he lives. The land is called “Ana Okoli.” The plaintiff said that the 1st defendant refused to fulfil the custom of presenting a goat and five yam tubers to him. The plaintiff stated that the 1st defendant denied that it was not the plaintiff who made the grant to him but that it was his elder brother who did same.
The plaintiff said that he granted land to Godffery Okoli and the 1st defendant when his father died. This was over one hundred years ago. The plaintiff admitted that he was 85 years old. The plaintiff said his father had four sons – Godwin, Josiah, Eleazar (plaintiff) and Godffery. The plaintiff denied that Godwin died in 1955. He said that Godwin did not grant the land in dispute to the 1st defendant in 1950.
The 1st defendant, on his own part, testified that as a member of Okoli Ezeokolo family, he was allocated the piece of land in dispute by Godwin Ekemezie Okoli, the then head of the family in 1950. He built his first house in 1951 on the land and lived therein with members of his family and his mother – Elemetere. He built a storey building on the land which was completed in 1993. When his mother died in December 1988, she was buried in the compound without anyone’s permission.
He said he is a product of Nrachi custom carried out between his great grand father Okoli Ezeokolo and his mother – Elemetere.
The evidence of the 1st defendant was, in the main, supported by D.W.1, wife of Godwin Okoli, head of family as at 1950 as well as D.W.2 – Steven Nwankwo who said Godwin confirmed same to him on the day he borrowed bicycle from him for his wedding. He confirmed that the 1st defendant built his first house on the land in 1951 and that Godwin Okoli died in 1955 or 1956. The 3rd witness – Samuel Onuoha said Okoli Ezeokolo had seven sons of which his father was the most senior. He confirmed that the 1st defendant, as one of the sons of Okoli Ezeokolo, was granted a parcel of land by the then head of the family. He confirmed that D.W.1 – Rosaline Okoli was the wife of Godwin Okoli.
The learned trial Judge was duly addressed by counsel on both sides. In his reserved judgment, the trial Judge found that the plaintiff’s claim, principally hinged on his alleged customary grant of the land in dispute to the 1st defendant, was not proved. He thereafter dismissed the said claim.
From hence, the plaintiff in this judgment shall be referred to as the appellant while the defendants shall be called respondents.
The appellant felt dissatisfied with the stance taken by the learned trial Judge. He duly filed his notice cum grounds of appeal.
On page 4 of his main brief of argument, three issues were couched for the due determination of the appeal. They read as follows:
“1. Whether the court properly evaluated the evidence before the court having regard to the pleadings and
evidence led.
- Whether the court decided all the issues material to a just determination of the suit.
- Assuming that even on the evidence led, ‘Nrachi’ ceremony was performed for the 2nd defendant’s (sic) mother, the court can apply such ceremony to declare that the 2nd defendant (sic) is a son of Okoli Ezeokolo.”
On page 1 of the respondents’ brief of argument, three issues were for the determination of this appeal. And they read as follows:
“1. Whether the High Court arrived at the correct decision having regard to the evidence and circumstances of the suit.
- Whether the court decided all the material issues in the suit having regard to the pleadings of the parties.
- Whether it would be wrong under the native law and custom of Ndiokpalaeze to regard the 1st defendant as a son of Okoli Ezeokolo having regard to the evidence, circumstances of the case and the Constitution of Federal Republic of Nigeria.”
Arguing the first issue, appellant’s counsel submitted that the trial court had a legal duty to evaluate the evidence before it before coming to a decision on the issues raised. He referred to the case of Chukwu v. Nneji (1990) 6 NWLR (Pt.156) 363 where it was stated that it is the primary duty of every trial court to review the evidence given at the trial, evaluate it, giving reasons in regard thereof, before making findings. Learned counsel submitted that where a trial court failed in this duty, the Court of Appeal will intervene. He referred to the cases of Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182; Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93.
Learned counsel submitted that the learned trial Judge failed to discharge his duty properly and such resulted in injustice. He felt that the trial Judge ought not to have believed the evidence of D.W.1 and those who supported her.
Arguing the first issue, the respondents’ counsel initially observed that the case of the appellant was that he made a grant of the land in dispute to the 1st respondent and that the 1st respondent having denied the title of the appellant to the piece of land has forfeited his right to remain thereon. The 1st respondent denied the allegation that the appellant made a customary grant of land to him.
He maintained that grant was made to him in 1950 by Godwin Ekemezie Okoli, the then head of Okoli Ezeokolo family.
Learned counsel felt that the onus was therefore on the appellant to prove that he made the grant to the 1st respondent and that the 1st respondent was his customary tenant. He observed that the appellant failed to discharge this onus as he did not state when he made the grant and the people who were present when he made the grant to the 1st respondent. He simply said that he made grants of portions of his father’s land to Godfrey Okoli and the 1st respondent when his father died 100 years ago. The appellant admitted that he was 85 years old.
Learned counsel further observed that Godwin Ekemezie Okoli was once the head of Okoli Ezeokolo family. After Godwin, Rev. Josiah Okoli became the family head. After Josiah Okoli, the appellant became the head of the family.
Learned counsel observed that the 1st respondent gave evidence under cross-examination that Rev. Josiah Okoli died in 1980 and his last place of work as a priest was at Adazi-Enu. Same was not controverted.
Learned counsel submitted that the plaintiff/appellant must succeed on the strength of his own case and not on the weakness of the case of the defendants/respondents. He cited the cases of Ojo v. Azama (2001) 4 NWLR (Pt.702) 57 at 71; Nwankpa v. Ewulu (1995) 7 NWLR (Pt.407) 269.
It was observed that the court found that the grant of the land in dispute was made to the 1st respondent in 1950 by Godwin Ekemezie Okoli, then family head of Okoli Ezeokolo family.
Learned counsel submitted that the finding was supported by evidence and is not perverse. He maintained that this court should not interfere with the findings. He cited the case of Ukwaptoe v. Tsenyi (1999) 4 NWLR (Pt.600) 571.
The appellant’s claim at the trial court hinged mainly on the allegation of his customary grant of the land in dispute to the 1st respondent. The burden of proof lied on him to prove the customary grant. This is the tenor of Section 135(1) & (2) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.
The trial Judge had the legal duty to evaluate the evidence before him adequately. The evidence adduced must be considered on the balance of probabilities vide S. 137 of the Evidence Act which has been equated to weighing the evidence of both parties on an imaginary scale as propounded in the case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93.
Since the tap root of the appellant’s claim was the customary grant of the land which he said he made to the 1st respondent, he must succeed on the strength of his own case and not on the weakness, if any, of the defendants/respondents’ case. See Ojo v. Azama (supra) at page 71; Nwankpa v. Ewulu (supra).The vital question as at now is – what transpired at the trial court as regard the customary grant which the appellant said he made to the 1st respondent? The resolution of this appeal rests mainly on the answer to the above question.
The appellant merely said he made the customary grant of the land in dispute to the 1st respondent. He merely relied on his ipsi dixit. He did not state the time he made the grant. He did not mention the names of members of Okoli Ezeokolo family or even outsiders when he made the customary grant. He said he made the grant after the death of his father 100 years ago and that he was 85 years old.
By this fact, he cast a slur on his status. I need not press this point too far here. In paragraph 10 of his statement of claim, he said he made the grant before the Land Use Act, 1978. But it was shown that Rev. Josiah Okoli, appellant’s senior brother, was still head of Okoli Ezeokolo family until when he died in 1980. So the appellant could not have made the customary grant of the land in dispute to the respondent before 1978 when he was not the family head.
From the appellant’s own poor showing, will any reasonable tribunal take him seriously over his alleged customary grant of the land in dispute to the 1st respondent herein? I think not. In my considered view, the appellant failed to adduce cogent evidence which ought reasonably to satisfy the trial court that the customary grant sought to be proved had been established.
On the contrary, the 1st respondent as D.W.5 gave evidence that he was granted the land in dispute by Godwin Ekemezie Okoli the then family head in 1950. The evidence was supported by D.W.1, Godwin’s wife who was present; D.W.2, an outsider who said he was informed by Godwin when he went to borrow bicycle for his wedding; and D.W.3 – son of Onuoha Okoli.
As directed in the case of Mogaji & Ors. v. Odofin & Ors. (supra) at p.94, the learned trial Judge at page 119, lines 14 – 26 of the record found as follows:
“Having put the evidence adduced by the plaintiff in an imaginary scale and weighed them with the evidence of the 1st defendant and his witnesses on this issue of customary grant of land made to the 1st defendant, I hold that the evidence of the 1st defendant weighed more. I find as a fact that the plaintiff did not make any customary grant of portion of family land of Okoli Ekeokolo to the 1st defendant. It is my finding also that a grant of family land was made to the 1st defendant in 1950 by Godwin Ekemezie Okoli who was then the family head of Okoli Ezeokolo family of Ndioha Village in Ndiokpalaeze town.”
The above findings do not have any trace of perverseness. They are in conformity with the current of evidence. I cannot see how same occasioned any miscarriage of justice. I shall not interfere with the findings of the trial court as regard the alleged customary grant which the appellant said he made to the 1st respondent. See Kwaptoe v. Tsenyi (supra).
Since the pivot of the appellant’s claim – to wit – customary grant of the land in dispute crashed, the status of the 1st respondent appears to be a non issue. I agree with the learned trial Judge that it does not really arise. After all, the appellant did not claim that the grant made to the 1st respondent by Godwin Ekemezie Okoli in 1950 be set aside. And based on the above, the appellant’s claim should have been rightly dismissed.
On the 3rd issue, the appellant’s counsel referred to Section 18(1) of the High Court Law, Cap. 66, Vol. 5, Laws of Anambra State, 1991. He opined that the custom of Aro people relating to ‘Mbubu’ and ‘Nrachi’ encourages prostitution and as such, repugnant to natural justice, equity and good conscience and ought not to be observed or enforced by the courts as urged by the respondents. He referred to the case of Muojekwu v. Ejikeme (2000) 5 NWLR (Pt.657) 413.
On behalf of the respondents, it was submitted that by virtue of Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria, the circumstance of the birth of the 1st respondent should not be a bar to his legal rights. He also referred to Muojekwu v. Ejikeme (supra) at page 439.
Coincidentally, I took part in the hearing of appeal in Reuben Muojekwu v. Ejikeme (supra). Therein, Reuben had two daughters Comfort and Virginia. As he had no son, he performed ‘Nrachi’ customary ceremony for Comfort; not for Virginia. Comfort died childless. Virginia gave birth to Uzoamaka out of wed-lock. The trial Judge therein found that since ‘Nrachi’ ceremony was not performed for Virginia like Comfort, her off-spring could not inherit the estate of Reuben. The estate was to be inherited by 1st son of Reuben’s brother under another custom known as ‘lli-Ekpe’. To us, such custom relating to Nrachi appeared discriminatory and we had no hesitation in declaring it as repugnant to natural justice, equity and good conscience. On my part, I said that a female child does not need the performance of Nrachi ceremony on her to be entitled to have her rightful share of her deceased father’s estate.
I still stand by my above stance as I strongly feel that law should be operated for social engineering with a view to attaining social regeneration and/or rebirth.
I advocated that customs fashioned to cheat the women – folk should undergo some sort of evolution. I maintained that the old order should change and become new. But products of an old order like Nrachi abound in plenty. Section 39(2) of the 1979 Constitution of the Federal Republic of Nigeria which is the same as Section 42(2) of the 1999 Constitution provides an antidote. It provides as follows:
“39(2) No Citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
The makers of our Constitutions have very large hearts. They are very accommodating. They know the peculiarities of our polity. So, the circumstance of the birth of the 1st respondent in this appeal cannot be a bar to his legal and properly proven rights. See Muojekwu v. Ejikeme (supra) at page 439. In a similar fashion, the custody of a child born out of wed-lock follows that of the mother in the absence of any person claiming custody of the child on the basis of being the natural father. And they cannot be subjected to any disability or deprivation. This must be so since the child must belong to a family and should not be rendered homeless. He was not present when the situation was created. See Ben Enweonwu v. Spirra (1965) 2 NLR 233. His plight is akin to an Nrachi product in my own view. He can quietly employ the provisions of the Constitution as a shield from being discriminated against or subjected to disability or deprivation.
Evidence abound in the transcript record of appeal that Okoli Ezeokolo gave birth to Mgbafor Egbuchi who married Mr. Ufele in another village. She returned to her father without issue. Okoli Ezeokolo repaid the dowry to Mr. Ufele and vide ‘Mbubu’ custom, Mgbafor became her father’s ‘wife’. They gave birth to Elemetere. Okoli Ezeokolo did ‘Nrachi’ for Elemetere and their union produced the 1st respondent. To an outsider, the degree of consanguinity appears too close to call. But Steven Nwankwo, D.W.2, who is well versed in Aro custom said the setting above is in tune with Aro custom. The 1st respondent is a product of Nrachi custom who should not be subjected to any disability or deprivation as regard a properly acquired portion of his family land.
The 1st respondent was granted a portion of family land by Godwin Ekemezie Okoli, the then family head in 1950. He put up his first house in 1951 and lived therein with members of his family and mother – Elemetere. When she died in 1988 December, she was buried in 1st respondent’s compound. The appellant who said he made a customary grant of the land in dispute failed to prove same.
And yet he prayed for declaration that the 1st respondent has forfeited his right to remain on the land. Such was a wishful thinking which appeared to have been borne out of malice. Declaratory orders must be based on adequate exercise of discretion judicially and judiciously. Discretion is the art of being circumspect. See Eronini v. Iheuko (1989) 3 SC (Pt.1) 30; (1989) 2 NWLR (Pt. 101) 46; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. The learned trial Judge was in order in the manner in which he exercised his discretion.
The appellant’s suit was, no doubt, rightly dismissed.
I come to the conclusion that the appeal is devoid of any iota of merit. It is hereby dismissed as the judgment of the trial court remains inviolate. It is hereby affirmed. The appellant shall pay N5,000 costs to the respondents.
Other Citations: 2002)LCN/1152(CA)
