Emmanuel Ogunnmgbuaja Ohiara V. Gabriel Ohiara (2002)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

): The 2nd defendant before the High Court of the old Imo State, has brought this appeal. He was not a party to the action that gave rise to this appeal at the commencement of that action. The respondent, as plaintiff, had brought the action against the 1st defendant as the sole defendant.

The appellant and two other persons were, on their application, joined as 2nd – 4th defendants after the plaintiff/ respondent had concluded his evidence-in-chief.

The plaintiff’s/respondent’s claim was for a declaration of title to certain parcels of land, damages for trespass to the parcels of land, and perpetual injunction restraining the defendant from further trespass to them. His case against the 1st defendant, who was his elder brother of the full blood, was that the parcels of land constituted his (plaintiff’s) share of the many parcels of land owned by their late father, Ohiaraumunna, after same had been shared out between the 1st defendant and himself. The 1st defendant had, however, been attempting to take them from him, claiming that their father’s landed property had never been shared out and that he, as the elder brother, had the power under their custom to take charge of the entire parcels of land and allocate parts thereof to members of the family as he saw fit. The plaintiff complained about this conduct on a number of occasions, before to the elders of both their father’s and mother’s communities. The elders had on each occasion found that the parcels of land had indeed been shared out and that the 1st defendant was interfering with the plaintiff’s share. On each occasion they had warned the defendant to be a good elder brother and obey the tradition by desisting from such interference.

As against the appellant and the 3rd defendant, the plaintiff’s case was that they were not the sons of his father but of his brother, the 1st defendant. According to him, after their father’s death his estate, including his wives, except of course, the mother of the plaintiff/respondent and the 1st defendant, was shared out by the elders between the two of them. The wife called Ugodiya or Ugodia or Ugadie, as she was variously referred to in the record of proceeding, who had gone to the 1st defendant as part of his inheritance, cohabited with the latter as wife and the appellant and the 3rd defendant were the result of that union. It was the plaintiff’s contention, therefore, that these two defendants, not being the children of his father, were not, under their custom, entitled to any shares directly from the property of his father. If they were entitled to anything at all it would have been from the share of their father, the 1st defendant.

With regard to the 4th defendant his case was that the father of the former did not own any land within the disputed areas. He, being the cousin of the father of the plaintiff and the 1st defendant, was brought by their father to live with him. At one point, however, their father drove him away for misconduct. He lived the rest of his life elsewhere. It was during the pendency of this action that the 1st defendant instigated his son, the 4th defendant, to lay claim to a portion of one of the plaintiff’s parcels of land. Since this defendant has not appealed against the judgment of the lower court, no more will be said about him, except where absolutely necessary for the purpose of getting a more complete picture.

The plaintiff testified as PW1 and called four other witnesses. He put in evidence a survey plan, showing the parcels of land in dispute, and a number of other documents, including exhibit E, the deliberation and decision of the elders on one of the occasions that he had reported the 1st defendant to them. The 1st defendant testified as DW1. He died part way into his evidence-in-chief and so was not cross-examined. The 2nd defendant testified as DW2. The 3rd defendant did not testify. Four other witnesses testified on their behalf. They put their own survey plan and other documents in evidence. The 4th defendant testified as DW7 and called one witness. The court adjourned to take addresses from counsel.

Before the date to which addresses were adjourned, however, the old Imo State was split into Imo and Abia States by the States (Creation and Transitional Provisions) Decree, No. 41 of 1991. The parcels of land in dispute and the parties, all located/resident within the Aba Judicial Division, fell on the Abia side of the new divide, while the trial Judge, C. U. Mbachu, J., who hailed from Imo State, fell on the other side. He was indeed immediately re-assigned from Aba to Aboh Mbaise in Imo State. With the agreement of the Chief Judges of Imo and Abia States, however, the Judge took the case with him to his new duty post, as it had reached the address stage. The Chief Judges had each issued an assignment order to him to that effect.

On the order of the trial Judge counsel submitted written addresses, the defendant’s reaching him during the vacation of 1993.

He eventually delivered his judgment on 14/12/93, finding for the plaintiff. He concluded the judgment with the following observation and orders:

“All things and issues raised in this proceeding duly considered, I come to the conclusion that the plaintiff’s case succeeds on the balance of probabilities and judgment is hereby, entered in his favour as follows:

1. That he is entitled to the customary right of occupancy of the land in dispute shown delineated in exh. ‘A’.
2. N500.00 general damages for trespass.
3. Perpetual injunction restraining the defendants by themselves, and servants, agents and or workman from entering the lands in dispute in this suit without the consent of the plaintiff.

Costs of N1,000.00 (one thousand naira) to the plaintiff.”

Aggrieved, the 2nd defendant alone has appealed to this court. Mr. J. A. Uba, filed a brief of argument on his behalf, formulating therein the following four issues for determination:

(a) Whether the learned trial Judge properly evaluated the evidence led at the trial as to enter judgment for the respondent.

(b) Is it permissible for the trial court to award damages in excess of the respondent’s claim.

(c) Whether the learned trial judge, who upon the creation of the Abia State on 27/8/91, became a Judge of Imo State High Court, could conclude this matter pending in the Aba judicial division of Abia State High Court, and deliver judgment on 14/12/93 (27 months and 13 days).

(d) Whether the delay of the learned trial Judge in delivering judgment in this case outside the stipulated constitutional period of three months after final addresses of counsel occasioned a miscarriage of justice on the appellant.”

Chief C. O. Ezekwesiri identified four identical issues on behalf of the plaintiff/respondent.

I shall take the third issue first. It was Mr. Uba’s submission that “The territorial jurisdiction of the learned trial Judge was confined or limited to his new State, i.e., Imo State. He had no more jurisdiction over the part-heard case pending in the High Court of Abia State.” Neither the Chief Judge of Imo State nor that of Abia State, counsel contended, had power to issue an assignment order to enable the trial Judge adjudicate on the matter after the splitting of the old Imo State. Counsel cited in support Ogbunyiya v. Okudo (1979) 6 – 9 SC 32 and Obayogie v. Oyowe (1994) 5 NWLR (Pt. 346) 637, at 646. It was counsel’s further submission that since the subject matter of the action was land located in Abia State only the High Court of that State and the Judges thereof had jurisdiction over it. He referred to section 6(2), 234(1) and 236 of the 1979 Constitution. In his view, section 6 of Decree 41 of 1991 did not save the judgment appealed from. For this contention, counsel relied heavily on a passage from the judgment of Akpabio, JCA, in Obayogie’s case.

On behalf of the respondent, Chief Ezekwesiri, submitted on this point that section 6 of Decree 41 of 1991, clothed the trial Judge with the requisite jurisdiction to continue with the case to judgment.

I must agree with him here entirely. The section provides:

“6. Any proceeding pending before any Court of a State immediately before the commencement of this Decree may, after such commencement, be continued before that Court and shall not be adversely affected by the provisions of this Decree.” (Italics mine).

There is no doubt at all in my mind as to what this section was meant to achieve and what it did achieve. The intention, which could not have been expressed in clearer language, was to save proceedings pending in any of the courts of a State affected by the states creation exercise from suffering any setback in their early disposal by reason only of the states creation exercise. The words of the section, in my view, clearly and unequivocally implemented this intention. The section provided in effect that such pending proceedings could be continued as if the Decree creating states had not come into force. In other words, it suspended the operation of the Decree as it related to pending proceedings. Such proceedings were to continue or proceed as if the State to which the court dealing with matter belonged remained what it had been before the promulgation of the Decree. That was the clear effect of the provision that such proceedings may be continued before that court, the term “that court” clearly, meaning “any court” of a State immediately before the commencement of this Decree”. This was further underscored by the further stipulation that such proceedings “shall not be adversely affected by the provisions of this Decree”.

Now, what does all this mean in relation to the case before us on appeal? As we have seen, the trial Judge was a Judge of the old Imo State. We saw that he had reached the address stage when the Decree was promulgated. The proceedings were thus pending before him. If the Decree had not been promulgated nothing would have prevented him from sitting either in Aba or Aboh Mbaise, as the Chief Judge of the old State saw fit to direct, to conclude the case. Since, as we have seen, the effect of section 6 of Decree 41 was to suspend the operation of the Decree and leave the territories covered by the new Imo and Abia States as the old Imo State, I see nothing stopping the trial Judge from continuing the case to conclusion as he did. Moreover, we have to take, as we are bound to do, account of the stipulation in section 6 that pending cases should not be adversely affected by the provisions of the Decree. The case now on appeal before us would surely have been adversely affected had all concerned not co-operated as they did to see that Mbachu, J., continued it as he did. The writ of summons was taken out in March, 1976. Hearing of evidence commenced on 27/09/82 and was not concluded until 12/11/91, some 15 years after the writ of summons was taken out. If hearing of evidence had to start afresh there would be no knowing how many more years it would take. Such fresh start would not only cause hardship to the plaintiff but would clearly run counter to the express stipulation of section 6 of the Decree. Such fresh starting would not properly come within the meaning of the word “continued” envisaged by the section. It would have been more like starting de novo. The expression “may… be continued” used in that section must, to make any real sense, be read to be synonymous with the term “may be carried on from where it was interrupted”, not “start almost from scratch” as to start taking evidence afresh would imply.

Ogbunyiya’s case did not call for any consideration of the effect on the powers of Judges of the courts of a State on the creation of states. The Judge in that case did not lose his powers as a result of state creation. No states had been created. He was a Judge of the Anambra State High Court who, at the time he delivered judgment in the case he had been hearing as such a Judge, had, unknown to him, been elevated to the Court of Appeal Bench, a Federal institution. There was no provision of law similar to section 6 of Decree 41 of 1991, providing him with the authority to continue to exercise the powers of the Judge of the High Court of that State. Although Obagie’s case arose out of a state creation exercise under Decree 41, it does not, in my view, assist us in this appeal. The decision in that case was not based on the interpretation or critical analysis of section 6 of the Decree. Rather, it was based on and followed, the earlier decision of this Court in Sodeinde v. The State (1978) 2 FCA 39, which had arisen out of the 1976, states creation exercise. It did not fully address the question of the effect on the powers of Judges of the High Court of a State on the creation of states. Mr. Justice T. A. Aguda, was, prior to the splitting up of the old Western State, the Chief Judge of that State. Sometime after the splitting of that State, the Federal Military Government formally appointed him the Chief Judge of Ondo State, carved out of that old State, and Mr. Justice K. Eso, the Chief Judge of Oyo State, also carved out of the old Western State. Without any reference to Justice Eso or any authorisation from the Federal Military Government, either by administrative or legislative directive to that effect, Justice Aguda went back to his old station in Oyo State to conclude a case he had started before the states creation exercise. The Ibadan Judicial Division of this court unanimously held that having ceased to be a Judge of the Oyo State High Court and having no authority to do so, he lacked the power to exercise the jurisdiction of the High Court of Oyo State.

Having regard to the state of the law at the time, I cannot fault this decision. The States (Creation and Transitional Provisions) Decree, No. 12 of 1976, did not contain the equivalent of section 6 of Decree 41 of 1991. The latter Decree went beyond the provisions of section 5 of the former and introduced the provisions in section 6, which must be given effect to. The case giving rise to this appeal could, under this section, as has been demonstrated, be continued, in the sense of proceeding from the stage it had reached before the states creation exercise, by the High Court of either Imo or Abia State. In this sense, the only Judge who could meaningfully continue it would be the Judge who started it and heard all the evidence. Of course, another Judge could also hear the case. He would, however, have to start all over, taking evidence afresh. That is not what was intended by the promulgation of section 6. As I said before, the intention, clearly expressly, was to see that the proceedings were not adversely affected. A case in which lengthy proceedings have to be repeated just because states have been created cannot be said not to have been adversely affected.

Having regard to the clear language of the provisions of section 6 of the Decree, I have no difficulty whatsoever in resolving this issue against the appellant. The trial Judge had the requisite authority and powers to continue the case to conclusion as he did.

The second issue, however, must be resolved in favour of the appellant. His complaint that the learned trial Judge awarded more to the respondent than the latter had asked for as damages is clearly well founded. Both in his writ of summons and the statement of claim, the respondent stated the amount he claimed as damages to be N400.00. He amended the statement of claim twice, but on each occasion he maintained N400.00 as the amount he claimed as damages. The learned trial Judge had no power to award more than that amount. This is trite law.

But then, Chief Ezekwesiri, for the respondent, has contended that the total amount claimed by the respondent was in fact N800.00. The N500.00 awarded to him by the Judge, being well below that amount, was competently awarded. Counsel arrived at the sum of N800.00 as the total amount claimed by making reference to p.77, lines 12 – 28 (I would continue to p. 78, line 3) of the record of proceedings, where the 2nd defendant, as DW2, testified in cross-examination that-

“I told the court that the plaintiff sued us in the Magistrate’s Court in 1978 -suit No. MA/123/78, we the defendants, in the suit applied that the suit be transferred to the High Court. This is the case file in the said suit No. MA/123/78 tendered, no objection, admitted and marked exhibit ‘G’. The plaintiff filed his statement of claim in exhibit ‘G’. We the defendants in the suit filed a statement of defence. The person named Josiah Ohiara was not my father, he was our father’s first son. When we came to the High Court in the present suit pleadings were ordered.

It is not true that in exhibit ‘G’, we admitted in paragraph 6 thereof that the plaintiff had completed his house on the land in dispute.”

According to learned Counsel, the suit in the Magistrate’s Court was transferred to the High Court “and consolidated with the present suit No. N87/96”. According to him, the respondent also claimed N400.00 in the Magistrate’s Court case that was consolidated with the present one. Therefore, counsel asserted, “the total sum claimed by the plaintiff as damages was N800.00.”

With all due respect to learned Counsel, his contention in this regard is untenable for many reasons, the most serious being that there is no evidence that the suit allegedly transferred from the Magistrate’s Court was consolidated with the present suit. The 2nd defendant (DW2) never said in his testimony highlighted that the two suits were consolidated. Chief Ezekwesiri in his address on behalf of the plaintiff in the court below never made any reference to consolidation. He addressed the court and presented his client’s case only in respect of the High Court case now on appeal. The learned trial Judge opened his judgment by setting out the claims to which the judgment related. He never made reference anywhere in the entire judgment to any other suit, consolidated or otherwise, to which his judgment related or might relate. There is, therefore, absolutely no basis for Chief Ezekwesiri’s conclusion, or, rather, assumption, that the judgment from which this appeal has come was judgment in consolidated suits.

From all that I have said, if I hold the appellant liable to the respondent in trespass, I would interfere to reduce the amount awarded as general damages from N500.00 to N400.00.

Before I come to the issue relating to evaluation of evidence (Issue (a) I will dispose of the issue of the delay in the delivery of judgment (Issue (d). Relying on the combined effect of section 258(1) and (4) of the 1979 Constitution, Mr. Uba submitted that the judgment appealed from was a nullity, having been delivered outside the three months time limit. Counsel also relied on a number of decided cases. Counsel complained that the delay had occasioned a miscarriage of justice, the Judge having lost the impression he had had of the witnesses.

Chief Ezekwesiri, for the respondent, denied that the judgment was delivered out of time. It was his further contention that even if it had, there was no miscarriage of justice, as the defendants had caused all the delay. Counsel drew attention to the Judge’s findings to this effect.

Having regard to the facts on record, I must agree with Chief Ezekwesiri that this judgment ought not to be nullified on account of having been delivered out of time. As Chief Ezekwesiri pointed out, the defendants caused the delay. They delayed the hearing of evidence many times and for long periods. The appellant has not disputed the findings by the Judge to this effect. See p. 140, lines 10-13 and p. 14, line 36 – p. 141, line 13 of the record. Most importantly, the record shows that the learned Judge did not receive the defendants’ written address, until during the period of the 1993 long vacation. See p. 141, lines 2 – 8 of the record.

As we saw before, the judgment was delivered on 14/12/93. It is a matter for judicial notice that the vacation period of the old Imo State was between August and September. See Order 48, rule 4(2) of the High Court (Civil Procedure) Rules. So that, even if the Judge had received the defendants’ address on the 1st day of August, the judgment would have been delivered only about four months after final address, not 27 months as claimed by Mr. Uba in his issue (c).

The complaint that a miscarriage of justice has been occasion is not well founded for other reasons. It is not enough to allege that there has been a miscarriage of justice. The nature of the miscarriage and the manner in which it has been occasioned must be shown. In the present case counsel on behalf of the appellant has not shown any of this. He just relies on the mere fact of the judgment having been delivered out of time. He should have gone ahead to show that the Judge’s memory of the facts and his impression of the witnesses had been dimmed by the effluxion of time.

I shall now see if indeed the passage of time had adversely affected the Judge’s memory of the facts of the case before him. This takes me to the first issue formulated on behalf of the appellant, namely, whether or not the learned trial Judge had properly evaluated the evidence before him.

Mr. Uba correctly, in my view, identified the two main factual issues that the Judge had to resolve. They were (1) whether or not the landed property and wives of the father of the 1st defendant and the plaintiff had in fact been shared between the two of them, and (2) whether or not the 1st defendant cohabited with the mother of the appellant and the 3rd defendant as husband and wife and begot the two. Learned counsel stated the law, also correctly, in my view, when he pointed out that “where there are two competing assertions by parties before a trial court, it is the duty of such court to consider both assertions carefully and to decide on the balance of probabilities which of the two assertions the Court will accept.” It was counsel’s complaint, however, that the learned trial Judge in the case now on appeal failed to apply this principle of law in resolving the issues before him. According to counsel, the Judge did not look as critically, as he ought to have, at the evidence of the plaintiff and his witnesses. Had he done so, counsel pointed out, he would have encountered material contradictions that would have made him see that the scale of justice tilted in favour of the defendants. Counsel pointed to three specific areas in the evidence of the plaintiff where according to him, the plaintiff contradicted himself or PW2. First, counsel considered the evidence-in-chief of the plaintiff (PW1) that-

“After the funeral, the Amalas of Amaufuru, Umuagbai, and Umumba shared our father’s lands, wives, yams and other household properties,”

to be in conflict with his evidence in cross-examination that-

“If my father’s lands are to be shared, the sharing must be done by members of the Umuikosiama and elders of Amaufuru village.”

It was counsel’s submission, therefore, that “the respondent was not certain as to who shared his father’s house and properties between him and the 1st defendant’.

With all due respect to learned Counsel, I do not see the point here. In the first place. I fail to see the alleged contradiction. In the portion of the evidence-in-chief highlighted the witness specified the areas from where the amala who participated in the sharing exercise were drawn. In his evidence in cross-examination he merely answered a question as to which villages would normally produce those to supervise the sharing exercise. I fail to see how the two statements highlighted could have led to the conclusion that the plaintiff/respondent was not certain as to who had shared out his father’s estate between his elder brother and himself.

Learned Counsel also saw a conflict between the evidence of PW2 and the plaintiffs pleading regarding the number of persons who had participated in the sharing exercise. Counsel observed that, “A good number of names not mentioned by the respondent in the said paragraph 9 of his amended statement of claim have been slotted in by PW2 as members of the Amala that took part in the said sharing”. Based on this observation counsel submitted that “the variance between the pleading and the evidence… cast a serious doubt on the credibility of PW2…”

“To further expose the PW2’s want of credibility”, as counsel put it, counsel pointed out that PW2 contradicted himself when in evidence-in-chief he stated that John Erne and Elder Ogbonna Wokoma, were not of age to participate in the sharing of the plaintiffs father’s estate, but in cross-examination stated that the 1st defendant, who was younger than the two named persons, had reached adulthood before his father died. Counsel reasoned that-

“…if John Eme and Ogbonna Wokoma were older than Josiah Ohiara 1st defendant, and if the 1st defendant was already an adult and married at the time of his father’s death, the PW2 could be lying when he said that John Eme and Ogbonna Wokoma were not of age as to take part in the sharing of Ohiaraumunna’s properties in 1944, between the respondent and the 1st defendant”.

On this point, counsel also saw contradiction between the evidence of PW1 and PW2. According to him, whereas the one said that at the time of their father’s death the 1st defendant had not attained adulthood the other said he had.

Learned Counsel also picked out contradictions in the evidence of the plaintiff and his witnesses regarding whether or not the plaintiff’s father’s wives were shared. First, as between PW2 and PW4, whereas one said two of the three wives went to the 1st defendant while one went to the plaintiff, the other said only two wives were shared.

With the profoundest respect to learned Counsel, I think he is guilty of the very thing he is trying to accuse the trial Judge of. As has been seen, his complaint against the Judge is that he concentrated on only part of the evidence before him. That is exactly what counsel has done in the appellant’s brief of argument. He concentrated on what he considered to be contradictions in the evidence of the plaintiff and his witnesses. He failed to put everything in a broad perspective to see which way the overall conclusion should go. The mere presence of one or two inconsistencies in the evidence proffered by a party does not necessarily lead to his case failing. As learned Counsel himself observed, the Judge is to consider all the evidence together to see whether or not the inconsistencies and contradictions notwithstanding, the story as put forward by one party is more probable than that put forward by the other.

That was exactly what the Judge did in this case. Apart from the oral evidence, he took into account the documentary evidence before him. As to whether or not there had been a sharing of their father’s lands between the plaintiff and 1st defendant he found enough evidence in exhibits A, B, C and E to convince him that the plaintiffs claim that there bad been a sharing of their father’s lands between him and 1st defendant was more probable than the latter’s that there had been none. He handled this question thus at pages 142-145 of the record:

“The first evidence of sharing clearly shown in exh. A. and B. For instance in exh. A, those lands as named by the plaintiff are all partitioned the parcels verged yellow are those given to the 1st defendant, the ones verged Pink are the ones given to the plaintiff. The instances are the Azulo Chiaraumunna, the Ala Oji Isinkpa, the Okpulo Ndikomine and the Okpulo Wowo. As a matter of detail the parcel of land the plaintiff calls Okpulo Ndikomine is not given that name in the defendants’ plan exh. B but it requires no expert to show that that it is the same land. So also the parcel plaintiff named Azulo or Okpulo, Ohiaraumunna, is, its features, the same land shown in defendants’ plan exh. B. In these two parcels of land there are features showing that the plaintiff and the 1st defendant occupy separate parcels of the same land. Exh. E in the proceeding constitutes a veritable proof of the sharing between the plaintiff and his brother the 1st defendant. It is dated 19th February, 1967 and contains the judgment of a parcel of 22 persons made up of maternal relations and in-laws of the parties…

The said exhibit E was signed by Mr. D. W. Ubandikegu as Secretary and Josiah Umachi as Chairman of Umuagwu Amaise people, who mediated in the dispute. It is the verdict of dispassionate and impartial persons. It has survived the passage of time over a period of longer than two decades, it was easily identified and put in evidence by its writer and Secretary of the Panel named Dickson Ubadilogu, the PW5 in the present action. That judgment so recorded and put in evidence by the same person should and does constitute an estoppel per rem judicatam in the present suit between the same parties, over the same subject-matter and in respect of the same cause of action as to the sharing or otherwise of the real and personal estate of late Ohiaraumunna between the plaintiff and the 1st defendant. It strengthens the evidence of the plaintiff himself and his witnesses in particular. PW2 the most senior member of their Ikoriama kindred, the oldest man and head of Amaufuru village by virtue of which he is the holder of OFONAOGU a revered traditional status. PW2 is the undisputed living elder who took part in the sharing between Josiah and Gabriel. That same judgment in exh. ‘E’ given by 22 persons went further to settle the other issues raised in the present case as to the practice of sharing a deceased’s estate according to tradition and custom in Ngwa Land and indeed in most other parts of Igbo Land.”

With the way the Judge considered the matter, I do not think that its mattered that he ignored what learned Counsel referred to as contradictions, that is, if indeed he had ignored them. As it turned out, however, he had not ignored them. He considered them and came to the conclusion that they were not material, in view of the other pieces of evidence, both oral and documentary. I shall come to that later.

The documents before the court, considered together, supported the Judge’s view that the question, whether or not their father’s land had been partitioned had cropped up as far back as 1967 and 1960, and had been resolved in favour of the plaintiff. exh. E was one such document.

It must be noted that the appellant’s counsel does not claim that exhibit E, i.e., the proceedings before the elders, had not been made. His contention is that its contents do not support the Judge’s conclusion that there had been a sharing of the lands between the 1st defendant and the plaintiff. According to counsel,

“A calm view of exhibit E will show that the maternal relations and in-laws of the respondent and the 1st defendant merely demarcated boundaries between respondent and the 1st defendant in respect of only a portion of the various lands in dispute, where the parties have their dwelling houses called OHIA AZULO by the respondent and OKPULO AMAOCHIE by the defendant.

4.16 Exhibit E has nothing to do with the sharing of the entire lands in dispute and is no evidence of any such sharing.”

In view of these submissions, it is perhaps necessary here to set out the entirety of exh. E. It reads:

“JUDGMENT BY UMUAGU-AMAISE PEOPLE IN A DISPUTE BETWEEN JOSHUA OHIARA AND GABRIEL OHIARA ON 19TH FEBRUARY, 1967”

On receiving a report from Aliche Nworu of Umuagu that our daughter, Nwaeke Onwubiko’s sons- Josiah Ohiara and Gabriel Ohiara are in violent quarrel about to cause blood-shed, we their mother’s people have come today to mediate in the matter.

We have now heard from both parties to the dispute, their mother Nwaeke and others and we are satisfied with the evidence before us in arriving at our judgment.

It is a matter for regret that we came here on 13th November, 1960, to settle dispute between you over land, erection of houses, and Azulor boundary and today we are here again over the same issue and area. Ngwas as a people have a very strong custom and traditional ways of doing things which no individual has a right to change merely to suit his own purpose, for example;

1. When a man dies, his properties including lands, wives, yams and other house-hold properties are shared among his individual sons by the Amalas, not in maternal groups but as individuals. And it is not a thing of the FIRST son giving out shares to his brothers according to his will.
2. Whatever shares given to or allocated to any son by the Amalas becomes that persons bona -fide property, which no other member in the family has the right to interfere with.
3. Okpulor land in Ngwa land means a homestead or compound where a person or persons once lived but have vacated completely. It should be noted that Okpulo does not exist in a compound or homestead where a person or persons are still living.
4. When a person or persons, quit a compound, while others are still living there, the people who left the compound automatically loses their right to Azulo land, there in the homestead to those, who are still living there who then re-adjust or re-plans the compound to suit them.

Those who left now owns a new Azulor or Ohia Azulo at the new site.

5. Azulo or Ohia Azulo, means land or area surrounding a person’s house given to a person at the discretion of the village. One does not own Ohia Azulo where one’s house does not exist at the material time.

JUDGMENT: With the present matter before us, we your mothers people, together with the Amalas, in-laws, Okeres Josiah’s age grade and friends present have weighed the evidence before us and in accordance with Ngwa custom and tradition have come to the following decisions:

(a) That it is a clear fact that all your father’s properties including lands have been shared long before now by the Amalas. We are distressed to see that Josiah is trying to ignore the decision of the Amulet and to impose his own will on his brother. This is contrary to our custom.

(b) That Josiah flouted custom by leaving his lawful place “ISHIELU” to live at “ISHIALA” being Gabriel’s own area or site. This caused trouble for which we came here on 13th November, 1960 and persuaded Gabriel to accept Ishielu and its environs in exchange which he accepted.

(c) That the boundary between Josiah Ohiara and Gabriel Ohiara is at ANWARINWA TREE near Josiah’s block fence to the pear tree on the right extreme and to the tall palm tree on the left extreme.

(d) That Josiah Ohiara should own from the main road (OBOHIA) to this boundary on both side of Ama, where he lives with Ugadia Ohiara. While Gabriel Ohiara owns from this boundary on both side to the main compound and to Ishielu boundary, where he lives with their mother.”

(e) We appeal to Gabriel to forgo that strip facing Adimoha Street, which Joshua claims he has sold and could not afford to refund and that every other shares should remain as the Amala did it.

N. B.: This judgment was delivered on behalf of the panel by Jonah Amachi (Italics mine for highlight).

It beats me flat, how counsel could still make the bold assertions, in paragraphs 4.15 and 4.16 just highlighted, in the face of the clear words of exh. E that “it is a clear fact that all your father’s properties, including lands have been shared long before now by the Amalas.” It is true that exhibit E did not affect the sharing of the two parties’ father’s parcels of land. It however, bore unequivocal testimony that such sharing had long since been done. It supported the evidence of the plaintiff and PW2 to that effect.

As to whether or not the mother of the appellant and the 3rd defendant was inherited by the 1st defendant and whether or not she had born them to the 1st defendant, the Judge made the following observations and findings at pages 145 – 149 and 161 – 163 of the record:

“It should not be out of con at this stage of the judgment to consider the status of the woman named Ugadia after the death of her husband, Ohiara-Umunna… Her husband Ohiaraumunna was dead. Whether she remained in the family or whether she remarried in the family, she like her widowed co-wives had to belong to any of the sons of her late husband who under the custom spelt out in exhibit E, a custom that prevails in other parts of Igbo land, inherited her. I am not sure SHARING is the appropriate word in Igbo land, in some areas the word used is NKUCHI a concept that involves cohabitation with the widow as husband and wife. In other words the NKUCHI does not entail “remarrying” in the sense of paying the dowry, or bride price unlike “remarried” which involves a second husband, who has to pay or repay the former husband’s bride price. The latter is what the other widow of Ohiaraumunna named Oyidia’s second husband paid or repaid to the plaintiff who during the sharing by the Amalas became entitled to inherit or “Kuchie” her (Oyidia). The evidence of plaintiff and PW2 (Elijah Ekpem) was on his mettle, while testifying in-chief and under cross examination revealing thereby their active participation in the acts pertaining to the vital issues in this case…

The 2nd and 3rd defendants, were born long after the death of Ohiaraumunna and the sharing of landed properties and chattels. Their mother Ugadia, was not remarried to any person from outside the Ohiaraumunna family after the death of her husband hence, nobody refunded the bride price or dowry to any of the two sons of Ohiaraumunna as was the case with Oyidia, whose bride price or dowry was refunded to the plaintiff, who inherited her. The refund of the bride price to the plaintiff from the said Oyidia’s second husband is not controverted. If therefore, she did not remarry, none of the sons of her first husband could have claimed a refund of the bride price paid by the first husband.

In so far as there is no evidence of remarriage of Ugadie, outside the Ohiaraumunna family, after her husband’s death, there was no question of the refund of the bride price as was the case of Oyidia. It seems to me therefore, that she remained or remarried in the Ohiaraumunna family after her husband’s death. As I stated earlier, it is misconception to talk of remarriage in the family. Inheritance or “NKUCHI” yes but “re-marriage” in the family I would say No. With respect, I am of the view that the woman’s continued stay in the family, after her husbands death is consistent with the evidence of her co-habitation with the first defendant as husband and wife, having been inherited by him (1st defendant) in the same manner as her co-wife Oyidia, was inherited by the plaintiff. Exh. ‘E’ confirmed the betrothal of Ugadie to the 1st defendant. The custom of inheriting the wife of a deceased husband cannot be held inapplicable to Ugadie, nor can the assertion that she simply remained in the family on her own as a feme sole be acceptable under the Ngwa/Igbo custom and traditional practice. Conferring on her such status of a spinster living alone without being attached to one of the sons of her late husband would be repugnant to the moral sense of the community, into which the woman was alien to the customary practice of polygamy in Ngwa and Igbo communities generally. Evidence of that custom was given by PW2, the village head of Amaufuru, it was not refuted by the defence in this case. The fact of the 1st defendant co-habiting with Ugodia is suppressed in exh. ‘B’ defendants’ plan, but it is revealed in exh. ‘A’ and confirmed by the oral evidence of the plaintiff and PW2 and also in the judgment of the panel embodied in exh. E. There is satisfactory evidence of the woman’s continued stay in the

Ohiaraumunna’s family after her husband’s death, and that she cohabited with the 1st defendant as husband and wife…

… In the same issue of sharing the proximity of the house occupied by Ugodiya, points to the relationship between her and the 1st defendant. Her dwelling house is shown in both exhs. A and B as within the premises of the 1st defendant highly suggestive of their co-habitation as husband and wife. In the same vicinity, is shown the house of the 2nd and 3rd defendants. This shows that the 1st defendant brought them close to him, within the same compound thereby, confirm his deposition in exh. ‘C’. Why earmark parcels of land within the area known as Azulo Josiah as distinct from the Azulo Gabriel? I feel sure this is evidence of the 1st defendant’s acceptance of their paternity.

There had been constant disputes over lands between the plaintiff and the 1st defendant; there was one in 1960, when PW3, a member of 1st defendant’s Age Group called OCHUNGA NOKO intervened and demarcated the boundaries. In 1967, when a panel of maternal relations of the plaintiff and the 1st defendant intervened to pacify the two brothers and embodied their decision in exh. ‘E’.

In Ebosie v. Ebosie (1974) 4 ECSLR p. 140 Oputa, J. (as he then was) stated that among the facts that were common ground between the parties was that –

‘Each wife of late Philip O. Ebosie and her male children, constitute a single unit or kitchen.’

That statement of fact, equally applies to the instant case in the matter of sharing in the sense that each kitchen in a polygamous family constitutes a unit for sharing the estate including the wives of a common husband deceased, hence as in this case the plaintiff recovered the bride price paid on his late father’s wife, named Oyindia, who left the Ohiaraumunna family and remarried elsewhere. Had Ugadiya remarried another man outside the Ohiaraumunna family, the 1st defendant could have been entitled to collect the bride price, repaid by her late husband. Ugadiya of Josiah, must have got on well and cohabited so there was nobody to repay the bride price and they begot the 2nd and 3rd defendants long after the death of Ohiarawnunna.” (Italics mine)

At pages 157-159 he continued:

“By claiming to be entitled to share the lands of Ohiaraumunna with the plaintiff and the 1st defendant, the 2nd and 3rd defendants put their paternity in issue. The plaintiff and the PW2 said they were born by Ugadiya at least 10 (ten) years after the death of Ohiaraumunna, the 2nd defendant in 1954, the 3rd defendant some years later. The defendants’ case is that under the custom of Ngwa land they rank among the children of Ohiaraumunna in the sharing of their father’s estate. The plaintiff says they are not posthumous children of Ohiaraumunna but the grandchildren by reason of their mother having been inherited by the 1st defendant. Their mother did not remarry after her husband’s death. She remained in the family as the wife of the 1st defendant with whom she begot the 2nd and 3rd defendants. 1st defendant was not mincing words, he meant it, when in exh. C, he deposed on oath, that the 2nd defendant, is his son. The customary practice whereby the wives of a deceased person are inherited by the immediate relations is not peculiar to Ngwa land; it is (was) prevalent in other parts of Imo State of Nigeria.

It is not an unreasonable practice in that the woman remains and feels secure in the family unless she is not wanted by the person entitled under the custom to inherit her in which case she may opt to return to her maiden home or remarry as did the woman named Oyidia who was inherited by the plaintiff. The evidence is that the bride price recovered at the second marriage of Oyidia was paid to the plaintiff. This lends weight to the assertion of sharing not only lands but also of the wives between the 1st defendant and the plaintiff in or about 1944, by the numerous Amalas from the three villages known by a group name AMATO. I feel sure that Ugadiya was inherited (Nkuchi) by the 1st defendant. For that matter, I prefer the evidence of the PW1 and PW2 to that of DW3 Mrs. Hanna Alozie and DW6 both of whom, I saw as biased witnesses judging by the manner DW3 hesitated to answer simple question, the latter – DW6 had an encounter in litigation with the plaintiff. Mrs. Hanna Alozie DW3 under cross-examination said-

‘I do not know that if the lands of Ohiaraumunna were shared at the time of his death, the sharing would have been between Josiah and Gabriel.’

That to say the least, is a curious and clever answer to a question she could have easily answered to the effect that the sharing should have been between the two brothers Josiah and Gabriel bearing in mind her evidence that the 2nd and 3rd defendants were born after the death of Ohiaraumunna…”

Exh. C, referred to by the Judge in this passage, was a counter-affidavit sworn to by the 1st defendant on 11/11/76 when he was the sole defendant. The plaintiff had alleged in an affidavit that the defendant and his wives and one of his sons, who would later become the 3rd defendant, were interfering with his (plaintiffs) surveyor in work preparatory to producing his survey plan. In reaction to the allegation the defendant filed the counter-affidavit in paragraphs 11 and 12 of which he deposed:

“11. That Chimaeze Ohiara is my son doing class five at National High School, Aba.

12. That he Chimaeze, informed me and I believe him that on 3rd September, 1976, he was attending classes in his School, although he returned to my house as usual about 4 p.m. or 5 p.m.

I now revert to the complaint that the learned Judge overlooked the contradictions in the evidence proffered by the plaintiff. As a matter of fact he did not overlook them. He considered the points that the defendants’ counsel had highlighted in his address as contradictions and decided that they were not material, having regard to all the evidence before him. He dealt with them at pages 160-161 thus:

“Mrs. Ezeugwa, Esq. of counsel for the defendants in his address said that the plaintiff’s evidence should not be acceptable in that it is contradictory as to who did the sharing between him and the 1st defendant; that the plaintiffs evidence is contradictory because he said that the lands were shared by Amalas from three named villages but on being cross-examined he said that:

“if our father’s lands are to be shared it is by members of Umukosiama family and elders of Amaufuru…”

Another contradictory evidence, according to learned Counsel is that the plaintiff is inconsistent in that in one breadth he said the 1st defendant is entitled as the head of the family upon their father’s death to hold the lands in trust for members of the family, until they are shared whereas he had earlier said that the 1st and eldest son of a deceased father, does not hold the lands on trust for all the male children. The plaintiff did not categorically direct his mind to the question of the eldest son holding the lands in trust for other male sons, rather, he meant and was understood to mean that the lands of a deceased father are shared by the Amalas for the children. His case is that the lands of their father had been shared and it was to that issue he adverted his mind, that is the main issue for determination in this case. The evidence of PW1 and PW2 is quite precise on that issue, they named those who took part in the sharing, elders drawn from all the three villages of Amaufuru, Umugba and Umuagbai, otherwise known by the group name of Amato. I disagree with the contention by the defence that all the adult males in the three villages must turn out for the sharing. There is uncontroverted evidence of numerous elders who did the sharing. DW4 and DW5 come from a village Umuagbai that was well represented by some persons older than those two. A close look at exh. A shows a relatively large area of land given to the 1st defendant at the sharing. It is called OKPULU UKANGWA or UHIAOFU, being the head of the Ohiaraumunna family. This parcel of land belongs exclusively to the 1st defendant in that there is no boundary line showing that it was partitioned for the 1st defendant and the plaintiff as in other parcels of land shown delineated in both exhibits A and B. In these other parcels of land inherited from Ohiaraumunna both exh. A and exh. B show distinctly areas in dispute between the plaintiff and the 1st defendant. I do not see that the defence has succeeded in dismissing the persuasive force of the evidence of sharing that took place long ago according to the plaintiff as depicted in these two survey plans. In some of them the 1st defendant’s share, appear larger than that of the plaintiff.”

On the evidence before him, I think the Judge was perfectly justified in making the observations and findings that he made. He was perfectly justified in his conclusion that all the property of the father of the 1st defendant and the plaintiff, including his wives, were shared out between the two of them. He was also justified in his conclusion that the appellant and the 3rd defendant were born to the 1st defendant by the wife he inherited. Added to all this was the fact that the appellant and the 3rd defendant were born many years after the father of the 1st defendant and the plaintiff had died. On the effect of the finding that the lands had been shared before the appellant and the 3rd defendant were born and that they were born to the 1st defendant, the Judge commented and held at pages 163-164:

“The defendants included among their weapons of defence the practice whereby a child born by a widow becomes the child of the deceased husband. The plaintiff insists that such custom is inapplicable to the circumstances of the birth of the 2nd and 3rd defendants.

The defence rely for this claim on the evidence of DW1, DW2, DW3, DW4, DW5 and DW6, but their evidence as individual witnesses and in its totality is not convincing. No chief, traditional ruler or any other person, who is competent and knowledgeable in the matter of such custom was called to prove its existence. In my view, with respect if such custom exists in Ngwa land it cannot be misled or applied to the peculiar facts of this case the plaintiff and the 1st defendant having shared their father’s lands before the birth of the 2nd and 3rd defendants. The plan was hatched for the purpose of cheating the plaintiff; it was an afterthought in that the 1st defendant did not raise it until after 9 (nine) years after the inception of this suit when the defendants filed the motion for joinder.

The Judge was justified in his conclusion on the effect of the findings on the appellant’s claim. How can a child born to the brother of the plaintiff after the death of the plaintiff’s father and after the plaintiff’s father’s lands had been shared between the plaintiff and his brother claim any direct share of his grandfather’s lands?

Considering everything, I must hold that the learned trial Judge did proper justice to the evidence before him and that his decision on the two main issues canvassed before him was justified by the evidence. Accordingly, I resolve this issue also against the appellant.

All the major issues having been resolved against the appellant, his appeal must fail. Accordingly, I dismiss it as it relates to the complaint against the decision of the trial Judge making the declaration and the order of injunction sought. I affirm both orders. As to the complaint against the award of N500.00, I allow the appeal. I set aside the order and, in its place, I order the appellant to pay only N400.00, which the plaintiff/respondent had claimed as damages. The appellant shall pay costs of N5,000.00 to the respondent.

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Other Citations: (2002)LCN/1194(CA)