Isaac Jitte Vs Dickson Okpulor (2015)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal is against the decision of the Court of Appeal, Port Harcourt Division, delivered on the 11th day of November, 2004 wherein the judgment of the Customary Court of Appeal, Abia State delivered on 1st day of November 2000, was set aside and the judgment of trial Customary Court of Appeal Ukwa was upheld. The three Courts below shall be referred to as the court below, “Customary Court” of Appeal” and “the court of first instance” respectively in the course of this judgment.

At the Court of first instance, the Respondent herein as plaintiff sought for the following reliefs.

“(1). A declaration that the plaintiff is entitled to the Customary Right of Occupancy over the piece or parcel of land known as and called “Agbaraukwu land” situate at Umuelechi Obuzor Asa, Ukwa LocalGovernment Area within the jurisdiction of this honourable court”.

(2). One Thousand Naira damages for trespass

(3). Perpetual injunction restraining the defendant, their children, servants, agents, and privies from further entry into the said land.”

After careful evaluation of the evidence of

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the witnesses for both parties, the trial customary court found that the claim of Respondent revolved around the issue of boundary upon which the parties laid claim to the ownership of some portion of the land. The Court however considered what the appropriate boundary was and entered judgment for the Respondent.

The Appellants, who were the Defendants appealed to the Customary Court of Appeal. They raised issues ranging from the lack of locus standi of the Appellant, the incompetence of the suit, as fundamental defect. The court allowed the appeal and set aside the judgment of the Customary Court with N1,000.00 costs in favour of the Appellants.

Dissatisfied with this judgment, the Respondent herein appealed to the Court of Appeal. The court heard the appeal and set aside the judgment of the Customary Court of Appeal.

The Respondents have now appealed to this Court. With leave of this Court, they filed a Notice of Appealcontaining Six Grounds of Appeal. With leave of this Court granted on the 31st March, 2014, the Appellants filed their joint Brief of Argument. They submitted the following two issues as arising for determination.

In

2the brief of argument filed on behalf of the Respondent by his counsel the two issues formulated by Respondent are as follows:

“1. Whether the Respondent had proved his locus standi and entitlement to the land in accordance with established principles of law to be entitled to Judgment

Distilled from grounds 1, 3, 4, & 5.

2. Whether the Court below was not in grave error when it held that the main contention between the parties was the boundary of the land and consequently held that a case of trespass had been established by the Respondent and on the other hand awarded the Right of Occupancy over Agbaraukwu land to Umuolu family

Distilled from Ground 2 & 6.”

On the 29th day of October, 2015 when the appeal came up for hearing, learned counsel for the Appellants A. A. Ibrahim Esq. adopted Appellants’ Brief of Argument and without further amplification of the issues raised therein, urged the court to allow the appeal.

Similarly, the learned counsel for the Respondent, Chief Ogbonna O. Igwuenyi identified the Respondent’s Brief of Argument and without further amplifications of the argument already contained in the said

3brief, simply urged the court to dismiss the appeal.

In this judgment I shall adopt the sequence of argument of the respective counsel as made out in their Briefs of Argument. On the first issue it is the submission of the learned counsel for the Appellants that, on the authorities of this court in the cases of PRINCE ODENEYE v. PRINCE EFUNUGA (1990) 11-12 SC.185; (1990) 12 SC NJ 1 at 7; OWODUNI v. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 6 SC (pt.3) 60 at 62 and OJUKWU v. OJUKWU AND ANOR (2008) 12 SC (pt.3) p.1 at p.17, that all the party who has initiated the proceedings in court, needs to prove or show in establishing locus standi is to demonstrate his sufficient interest in the action, and that his civil right and obligations have or are in danger of being infringed. It is submitted that the Respondent lacks the requisite competence, the suit having been commenced without a condition precedent required by Order 5 Rule 2 of the Customary Rules of Imo State, 1989 and applicable to Abia State. Reliance was placed on the very nature and con of the claim filed at the trial court, which was clear that the Respondent herein was claiming for

4 a declaration that he is entitled to the Customary Right of Occupancy over “the piece or parcel of land known and called Agbaraukwu land situated at Umuelechi Obuzor Asa in Ukwa Local Government of Abia State.” Relying on the evidence adduced by the Respondent particularly as captured at page 119 of the record, learned counsel further submitted that, contrary to what the Appellant Respondent was demanding, it was disclosed in evidence that the land in dispute is a family land, but nowhere was it disclosed that the Respondent, who initiated the suit was the head of the family, a principal member, or indicated that he was suing in a representative capacity. It is the position of the Appellants that for the Respondent to succeed, he must satisfy the court as to the precise nature of the title claimed by him, that is, whether it is vested with the title of the land by virtue of original ownership, customary grant, conveyance long possession or otherwise. The learned counsel submitted that in the absence of any cogent piece of evidence of title to land, as enunciated in IDUNDUN v. OKUMAGBA & ORS. (1976) 10 SC.277, and other authorities, it would be erroneous

5 for the court below to declare that the Respondent is entitled to the Customary Right of Occupancy over the disputed land.

On the decision of the court below to vary the order of the Customary Court of Appeal, learned counsel submitted that the court ought to have taken into consideration the nature of the relief sought by the Respondent, which was on declaration for title. That he did not claim for disturbance of his possessory right.

Learned Counsel for the Respondent has posited that the Respondent has shown that the land in dispute is a family land which particular portion he had cultivated since 1980 as a palm plantation. That he brought the action at the trial court to protect incessant trespass into the land through the common boundary between him and the Appellants’ family.

It was the contention of the Respondent’s counsel that the Respondent did not mince words at the earliest stage of the proceeding, when he stated that he had a locus standi to defend a case of trespass into his family land.

Relying on the authorities of OJUKWU v. OJUKWU supra AGBAGEDELE v. LAYINKA & ORS (1993) 3 SCNJ 39, NWANEZIE v. IDRIS & ANOR (1993) 2

6 SCNJ 139, SAPO v. SUMONU (2010) ALL FWLR (Pt.531) 1408 at 142, learned counsel contended that a member of a family can himself alone or with others sue in defence of the family land in his possession.

Learned Counsel in urging this court to look beyond the technicality upon which the customary court of Appeal reversed the trial court, submitted on the authority of GARUBA v. YAHAYA (2007) ALL FWLR (Pt.357) 862 at 871, that appellate courts are required not to be unduly strict or rigid with matters of procedure when dealing with appeals from the Native, Customary or Area Courts. This is mainly because pleadings are not filed in those courts and technicalities have no place with their adjunclation of cases.

It was contended that the dispute between the parties was purely boundary dispute which had received several arbitrations, and for that reason had necessitated the visit to locus in quo for the trial court to ascertain the truth or otherwise of the various testimonies of witnesses.

One must observe that the learned counsel for the Appellants dwelt so much on the issue of the principle locus standi and stretched it beyond its elasticity. In this

7 case the Respondent has shown that he has locus to defend a case of trespass into his family land held by him since 1980. The Appellants, like the Umuolu family, to which the Respondent belongs knew that the Respondent was in court to protect that section of AGBARAUKWU land of the family in his possession.

In the instant case, the Respondent had established interest in the matter and therefore had locus standi to institute the action.

It is the law that in ascertaining in what capacity a party initiates or defends an action in the Customary Court, the whole proceedings must be carefully looked into and considered with greater latitude and broad or wide interpretation being placed in the proceedings and the judgment of that court. See AJUWON v. AINA (1990) 2 NWLR (Pt.132) 271; ALAGUJEUN & ORS v. SOBO OSHO OF YERU & ORS (1972) 5 SC 9.

The learned counsel for the Respondent has made a point here and I agree with him. Both parties at the trial court presented their case without the representation of counsel. The panel of three men who heard the case was made up of laymen whose only claim to expertise was their knowledge of their local custom

8 and tradition. Hence the court below stated at page 213 of the record thus:

“Undue reliance an (Sic) on technicalities is not one of the specialty of the Customary Court, submitted counsel who reminds us that at the trial, the parties were not represented by learned counsel. They could not therefore reasonably be expected to know the details of the rules of court other than stating their respective cases in the best way they could.”

We agree with the learned counsel that by the judgment of the trial Court recorded on page 131-139, the issues were very clearly spelt out by the Court. The Customary Court of Appeal however ignored all that part of the judgment preferring rather to act on technicalities which have little relevance in a trial before the Customary Court see Iyaji v. Eyiugbe (187) 2 NWLR (Pt.61) 523 and Udeze v. Chidebe (1990) 1 NWLR Pt.125 p.141 at 151.

The general principle has always been that the Customary Court should be guided by the rules of Court. Such Courts are however not bound to apply the rules blindly once the case of the parties makes it clear, what the nature of the claim before the Court is.

It is our humble

9 opinion that the trial Court displayed a dispassionate comprehension of and adequately evaluated the evidence before it in arriving at its decision. At page 137-138 of the records, part of the judgment of the trial court display this appropriate appraisal of issues:

In endorsing absolutely the decision of the trial court, the court below had this to say on page 215 lines 3-13 of the record thus:-

“It is our considered opinion that the issue was judicially, judiciously and competently determined by the trial Court. I am unable to fault the decision of the trial Court part of which is hereby reproduced for purpose of emphasis:

“After a careful review of the evidence of both parties …. Court is of the opinion that the vital issue ….. to determine is…. the boundary of the land, as both parties admitted in their evidence on oath that the Umuolu, Umuelechi, Obuzor, Asa share a common boundary on the land in dispute….

During the inspection of the land both parties admitted that the beginning of the old road is the same, and they (sic) PW1 claims is the boundary.”

I cannot fault the finding of fact by the trial court that the

10 Respondent rightly proved his claim that the old road was the boundary between the Respondent’s Umuolu Family and Appellant’s Umuapaku Family. The court accordingly delivered judgment in favour of the Respondent. The finding of fact came from the trial court constituted by a panel of men who were better placed to appreciate the matter before them. They had the opportunity to watch the demeanour of witnesses. They visited the locus to ascertain the claim of the Respondent herein. The Appellate courts frown upon disturbing concurrent findings of fact painstakingly made by Lower Courts which are not perverse.

It is in the light of the foregoing that I resolve this issue in favour of the Respondent but against the Appellants.

On the second issue, the contention of the appellant is that there is no traditional history, incidental or factual evidence of ownership of land given by the Respondent, herein to necessitate the grant of Customary Right of Occupancy over the portion of land in dispute known and called Agbaraukwu land. That since there was no evidence of boundary was given, the court below ought not to decide to repose the Agbaraukwu land on

11 Respondent’s Umuolu family kindred. To do this is to speculate, which the court of law does not do. That there was no evidence led to show that the Appellants entered into Agbaraukwu land or that the old road (Uzo Ochie) is the recognized boundary between Umuolu and Umuopaka and therefore the decision of the court below to restore the affirm decision of the trial Customary Court is perverse and cannot stand. Relying on ATOLAGBE v. SHORUN (1985) I.N.S.C.C 472; IWUOHA v. NIPOST LTD (2003) (Pt.60) FWLR p.1535 at p.1562.

The Respondent on the other hand, has contended that both parties agree that their dispute is on boundary between their various portions of Agbaraukwu land. That is why the Respondent said it is the old road, and the Appellants on the contrary said it is not; and that the trial courts resolved the issue after a visit to locus in quo, in favour of the Respondent.

Going through the evidence placed before the trial court, it is crystal clear that the dispute between the parties was boundary conflict and this has led to several police interventions and several local arbitrations. Hence the court below did not hesitate to conclude that the

12 trial court competently determined the matter “judicially and judiciously”. In other words with regard to the evidence before it, the trial court was competent and correctly pronounced on the issue before it.

The Respondent, as plaintiff (PW1) had testified on cross-examination at page 120 – 121 of the record as follows:

Q: Who is your father

Ans: Okpulor is my father.

Q: Where is Okpulor from

Ans: He is from Umuolu.

Q: How many kindreds make up Umuolu

Ans: There are three kindreds.

Q: Does Agbaraukwu land belong to you alone or to the whole of Umuolu

Ans: It belongs to Onumara Umuolu.

Q: Is it customary for one person alone to sue for land l belonging to a kindred

Ans: One man can sue. I have other people with me.

Q: Do you know one Waluo Worgu

Ans: I do not know him in person. He died before I was born.

Q: Do you know one Ogbonna Nwakolo

Ans: I know him.

Q: Do you know Nwagwu of Umuapaka

Ans: Yes, I know him.

Q: Do you know Oforji Ekeke Obeji

Ans: I know him.

Q: Who pledged land to Peter Nwachukwu

Ans: It was Nwankwo from your family.

13Q: Was Nwachukwu farming up to the area you sued me or is it I who trespassed on your land.

Ans: You trespassed over the land

Q: What did we use to make boundary on the land

Ans: There were no trees. We use Ukpo to make boundaries. But for this, he old Road Marked the

boundary.

Q: Does this Agbaraukwu which you have talked about contain an old forest

Ans: There is a forest there, so also water (pond).

Q: Who farm round the stream

Ans: Both Umuapaka and Umuolu farm round the stream, each on their own side.

Q: Have you ever had case with us over this land for which you sued me

Ans: There was no case. The police case from it was settled at home.

For the umpteenth time, with emphasis, I have said that the Respondent did not claim that he is the sole owner of the land in dispute; rather that the land he is claiming includes the land in dispute and that he had brought the suit to protect same.

It is preposterous for the learned counsel for the Appellants to contend that the evidence led at the trial was only tailored towards requesting the court to grant him declaration of title and no more. The

14 Respondent did not only require the court to grant him declaration to title he did claim also for disturbance of his possessory right. Evidence led at the trial perspicaciously shows this.

As to the evidence of his possessory right the Respondent had this to say in his evidence-in-chief at page 119- 120 thus:

“In 1988 when I entered into our portion of the land for farming, defendants summoned me at Igu Ama people. I have my palm trees which I planted in 1980 and has (sic) been harvesting same undisturbed by anybody ever since. Defendants continued entering into my land to farm. That is why I summoned them and claim as per writ. They have no Ukpo on the land to show that whatever they have was given to them.”

Else where as shown, the Respondent has shown that he is not only protecting his own portion of the land but Umuolu people.

It is in the light of the above, the court in its judgment rightly held at p.216 of the record thus:

The crux of the matter is clearly conveyed in the testimony of PW1. He lays no personal claim to the title of the land. He only desires to protect the portion of the family land which has been entrusted to

15 him and which he cultivated unperturbed for twenty-four years since 1980.

It is instructive to note that it was not the Respondents who challenged the Appellant who had been cultivating the land for 24 years. It was the Appellant, who sought a definition of boundary to curtail the encroachment of the Respondents. Boundary was indeed the main stake of the suit.”

Finally, on the issue of variation order made by the court below, learned counsel for the Appellants contended that the decision was perverse and inequitable as there was no evidence of who founded the land in dispute and record of original ownership. It would appear to me that the court below met the justice of the matter in the circumstance. The court rightly decided that:

“It would in my humble opinion be equitable, in the interest of justice, harmony, peace and end to litigation that the Customary Right of Occupancy be reposed in Appellant’s family as a group rather than the Appellant as an individual.”

The court below therefore, rather than reverse the decision of the trial customary court, I varied it. This is for the general interest of the entire family as against that of the

16 individual. The court pursuant to the provisions of Order, Rule 19 (3) of the Court of Appeal Rules 2002 accordingly set aside the decision of the Customary Court of Appeal but affirmed that of the trial court and varied same, and reposed in the UMUOLU FAMILY in UMUELECHI OBUZOR ASA, the portion of the land in dispute known and called “AGBARAUKWU” LAND, I endorse this variation order.

On the whole, having resolved the two issues in favour of the Respondent, the appeal is adjudged unmeritous and same is accordingly dismissed. I make no order as to costs. This is to encourage harmonious co-existence of the waring family and the community in general. No order as to costs.

CLARA BATA OGUNBIYI, J.S.C.: The appeal before us came by leave of this court granted on the 31st March, 2014. The respondent was the plaintiff at the trial Customary Court and prayed for three reliefs a, b and c which are all reproduced in the lead judgment of my learned brother.

The Customary Court found in favour of the plaintiff and the defendants therein appealed to the Customary Court of Appeal, Umuahia, Abia State, and it allowed the appeal basically on the

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ground that the respondent now herein did not sue in representative capacity as the disputed land is owned by his family the Umuolu.

The judgment of the Customary Court was therefore set aside. The Court of Appeal in turn set aside the judgment of the Customary Court of Appeal and hence the appeal now before us.

The facts briefly are that the respondent herein as plaintiff is from the Umuolu family Umuelechi. In 1980, his family gave him the disputed land for planting agricultural palms. The disputed land called Agbaraukwu has common boundary with the land of the appellants, family. That the two lands derive their names from a common source – the Agbaraukwu shrine.

In 1964 there was boundary dispute over the land pledged to one Peter Nwachukwu by the relatives of the appellants herein. The matter was resolved at that time and each party was stuck by their own section of the land. The respondent, without any let or hindrance remained in possession of their own portion of the Agbaraukwu land and harvested his own agric palm plantation until the appellants trespassed into the land from their own portion of Agbaraukwu land. Hence this action by the

18respondent for purpose of protecting the family inheritance now in his possession.

The two issues formulated by the appellants are:-

1. Whether the Respondent has proved his locus standi and entitlement to the land in accordance with established principles of law to be entitled to judgment
2. Whether the court below was not in grave error when it held that the main contention between the parties was the boundary of the land and consequently held that a case of trespass had been established by the Respondent and on the other hand awarded the Right of Occupancy over Agbaraukwu land to Umuolu family

On the 1st issue raised, the concept of locus standi denotes the legal capacity to institute proceedings in a court of law. See Owodunni v. Registered Trustees (2000) 79 LRC 2406 at 2429. The law is trite and well settled by this court therefore that, what the plaintiff needs to show in order to establish that he has locus standi in a case is, sufficient interest in the matter in controversy. See again the case of Owodunni v. Registered Trustees (supra).

It is on record that the Plaintiff/Respondent as Pw1 testified before the trial court in

19 chief that the disputed land belonged to his family, the Umuolu in Umuelechi. That he also planted agric palm plantation in the land and without any let or hindrance had been in possession of his palm estate; page 120 lines 10 – 17 of the record is in reference. It is in evidence also by the said witness that the Agbaraukwu land belongs to Umuolu people who shares boundary with Uzuaku and Okolua people. At the earliest opportunity therefore, he (plaintiff) made it clear that the action was initiated in the corporate interest of the Umuolu people.

It is significant to mention that the action in point was not initiated by counsel which would have made the requirement of Order 5 Rule 2 of the Customary Court Rules, Imo State 1989 and applicable to Abia State, inevitable in the circumstance. In his cross examination, PW1 in answer to the question:

“Is it customary for one person alone to sue for land belonging to a kindred” – the witness in response to the question said:

“One man can sue. I have other people with me.”

It is in point to restate that the action was fought between the parties at the trial level without counsel. It is trite to say

20 therefore that the appellate court stands in a position to correct certain procedural irregularities manifesting rather than basing its evaluation of facts on form against the warning of the law establishing Customary Court in Abia State. In otherwords, the law is clearly stated that a mistake in form shall never vitiate any judgment by the trial court: – thus, Section 21 of the Customary Court Edict No.7 of 1984 has this to say:-

”No proceedings in Customary Court and no summons warrant process, order or decree issued or made thereby shall be varied or declared void upon appeal solely by reason of any defect in procedure or want of form but every court or authority exercising powers of appeal under this edict shall decide all matters according to substantial justice without undue regard to technicalities.”

Also and in support of the Edict supra, is the decision of this court when it was faced with similar situation interpreting a document Exhibit A, which was a native court judgment that did not express upon the face of the writ that it was fought in representative capacity but which, in evidence was infact a representative action and the court had this

21 to say:,

“Although representation was not expressed on the summons, a study of the proceedings confirms that Exhibit ‘A’ was sought in a representative capacity by the defendants therein.”

Continuing further the court also said:-

“The dispute between the parties was clearly an inter-family or intra-family dispute and was fought as such. It was not personal to the parties but was prosecuted and defended in a representative capacity between the two families concerned respectively. ”

See the case of Oyah & Ors. V. Ikalile & Ors. (1995) 7 NWLR (Pt.406) Page 150 at 163 – 164.

PW4 in person of Mr. Friday Amachi (Ide) whose name was mentioned severally in evidence testified in favour of the plaintiff. The witness is from Umuolu, the family represented in this suit by the plaintiff/respondent. I seek to say therefore that if the respondent had intended a secret action to appropriate family property to himself he definitely would not have exposed himself by calling a member of his family (Pw4) to confirm his authority. The said witness, evidence in chief is at page 126 of the record.

In a further advise by this court in the case of

22Okukuje v. Akuido (2001) 2 SCM 113 at 119 – 120 it was held thus:-

“In trials in native courts, it is sufficient if he (Plaintiff or Defendant) states that he is defending for himself and the persons he represents some of whom will testify and confirm his authority.”

(Bracket supplied by me)

In the case before us, the plaintiff/respondent has been in possession of the land since 1980, and this was a fact proved at the trial court. As a person in possession therefore, he has the right to sue and defend the estate against intruders. Thus it was held in I. Engbi v. Imade (1959) WNLR 325 that:-

“A plaintiff as an allottee in possession of family land has a right to institute an action for damage for trespass in respect of such land. This principle was applied in the case of Agbaneje v. Bakeew (1998) 61 LRCN 4741.

As rightly held by the Lower Court, the respondent herein who was the appellant before them, has shown sufficient interest and disclosed unequivocally, that the suit he initiated was on behalf of his family members, being the person directly responsible for the land which was his immediate possession and which was trespassed into

23 by the appellants. Issue No.1, I hold the circumstance resolved against the appellants.

The 2nd issue is whether the court below did not err on the issue of boundary of land when it held that a case of trespass had been established and thereby awarded the Right of Occupancy over Agbaraukwu land to Umuolu family.

It is the submission on behalf of the appellants that, from the evidence led at the trial, the court below endorsed the view held by the trial court and found that boundary is the crux of the case; that since no evidence of boundary was given, the court below ought not to have decided to repose the Agbaraukwu land in Respondents Umuoha family kindred; that a court of law does not speculate. Counsel submits further that the decision of the Lower Court is perverse because there was no material or necessary fact to sustain the case as proved; that the available evidence is a clear indication that the appellants and respondent shared land in common or jointly; that to repose the land in the respondent’s family alone as did by the court below, is tantamount to divesting the appellants of their own portion of the land. The decision, counsel submits

24 is perverse and ought not to stand.

In summary, the respondent submits the established position of law on decisions of trial customary courts, which are disturbed on appeal only where it is found that the court had departed from pronouncing correctly on Customary Law established before it or is unable to give effect to it in its evaluation of evidence- Counsel argues that, this is not the situation with the case at hand and which this court is urged to dismiss the appeal in its entirety.

It is clearly stated on the record that both parties agree that their problem is centred on the boundary between their various portions of Agbaraukwu land. While the respondent claimed that it the old road, the appellants in turn claim that it is not. The trial court resolved the issue following a visit to locus in quo and by its judgment, it made an order that the old road is the boundary between the Respondent’s section of Agbafaukwu and that of the Appellants’.

The question as to whether the trial customary court misled itself on the issue before it which also occasion the Lower Court falling into the same trap can best be answered by the view adopted by the

25 Lower Court itself when it endorsed the opinion held by the trial customary court at page 215 of the record and said:-

“It is our considered opinion that the issue was judicially, judiciously and competently determined by the trial court. I am unable to fault the decision of the trial court, part of which is hereby reproduced for purpose of emphasis:-

‘After a careful review of the evidence of both parties……… Court is of the opinion that the vital issue ……… to determine is ……. the boundary of the land, as both parties admitted in their evidence on oath that the Umuolu, Umuelechi, Obuzor, Asa share a common boundary on the land in dispute…… During the inspection of the land both parties admitted that the beginning of the old road is the same, andey (sic) Pw1 claims is the boundary.’ ”

I have no reason to depart from the view held by the Lower Court but same is also endorsed by me.

The law is trite and well settled that facts admitted are no longer issues between the parties. The declaration by the court that the whole issue for determination being a question of boundary between the parties was therefore born out of the

26 evidence before it and the result of the visit to locus in quo. The fact which, as rightly submitted by the respondent’s counsel, cannot be impugned easily unless there is contrary evidence that the court failed to take cognizance of facts before it or made wrong evaluation of the same thereof. In the absence of such failure shown on the record, the contrary cannot be in its place, The Lower Court, in my view was in order and had no other just alternative but to align itself with the trial court in giving judgment to the respondent inclusive of the variation made.

I have no hesitation in endorsing that decision and therefore resolve the 2nd issue also in favour of the respondent.

On the totality of this appeal, I am in full agreement with the lead judgment of my learned brother Galadima (JSC) that the appeal lacks merit and is dismissed. I also abide by all orders made in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading before now the judgment of my learned brother, Suleiman Galadima, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and

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should be dismissed. I shall make a few comments in support of the judgment.

This case originated at the Customary Court of Abia State sitting at Ubehe in Ukwa Local Government Area wherein the plaintiff (respondent herein) sought the following reliefs against the defendants (now appellants):

1. A declaration that the plaintiff is entitled to the customary right of occupancy over a piece or parcel of land known as and called “AGBARAUKWU LAND” situate at Umuelechi Obuzor Asa, Ukwa Local Government Area within the jurisdiction of this honourable court.
2. N1,000 (One Thousand Naira) being general damages for trespass into the said land.
3. A perpetual injunction restraining the defendants, Children, Servants, Agents/Privies from further entry into the said land.

PARTICULARS OF CLAIM

1. The plaintiff is a native of Umuolu compound in Umuelechi Obuzor Asa, Ukwa Local Government Area, within the jurisdiction of this honourable court.
2. The defendants are natives of Umuakapa compound in Umuelechi Obuzor Asa, Ukwa Local Government Area all within the jurisdiction of this honourable court.
3. The land in dispute known as and

28 called “AGBARAUKWU LAND” is the bonafide property of the Umuolu family and it is situate, lying and being at Umuelechi Obuzor Asa in Ukwa Local Government Area, within the jurisdiction of this honourable court.

4. Sometimes in February 1991 the defendants trespassed into the said land by clearing same for farming.
5. The plaintiff inherited the land in dispute from his forefathers and had been exercising maximum act of possession and ownership such as farming, harvesting palm fruits and other economic trees on the land without hindrance from anybody until defendants resolved recently seized the land. WHEREFORE the plaintiff has been damnified and claim as per writ.

It is significant to note that the parties conducted the case at the trial court without legal representation. The panel that heard and determined the claim was made up of laymen knowledgeable in the customary law of the area. After hearing the parties and visiting the locus in quo, the court held that the main issue in controversy between the parties was the boundary of the land in dispute and entered judgment on 10/2/1992 in favour of the plaintiff.

The appeal of the defendants

29 (present appellants) to the Customary Court of Appeal sitting at Umuahia was allowed on the ground that the respondent had no locus standi to sue either on behalf of the Umuolu family or on his own behalf and that he was not entitled to be declared the owner of the land, which he admitted belongs to the Umuolu family jointly. The court also held that the respondent failed to comply with the provisions of Order 5 Rule 2 of the Customary Court Rules by failing to indicate on the summons that he sued in a representative capacity.

On further appeal to the Court of Appeal, Port Harcourt Division by the respondent, that court set aside the judgment of the Customary Court of Appeal and affirmed the decision of the trial court. The court held that the appellant (respondent herein) had locus standi to institute the action to protect family land in his possession, that non-compliance with the rules of the Customary Court was not fatal to the claim and that the trial court was right in holding that the boundary of the land was the main issue in contention between the parties. The court also agreed with the trial court that the plaintiff (respondent in this appeal)

30 had disclosed at the earliest opportunity that he held a portion of family land and had never claimed exclusive title thereto. However, in affirming the decision, the court below varied the trial court’s order by granting a customary right of occupancy in favour of the entire Umuolu family kindred of Umuelechi Obuzor Asa in place of the exclusive grant made in favour of the plaintiff.

Clearly dissatisfied with this development, the appellants have further appealed to this court.

With regard to the first issue for determination, it is the appellants’ contention that the respondent failed to prove his locus standi to institute the action and also failed to prove his entitlement to the land in dispute. On the issue of locus standi, the appellants’ contention is that while in his claim the respondent sought for a declaration that he (alone) is entitled to the customary right of occupancy over the disputed land, it was revealed in evidence at the trial that the land in dispute is family land. The appellants’ grouse is that it was never disclosed, in compliance with Order 5 Rule 2 of the Customary Court Rules, that the respondent instituted the action in

31a representative capacity or that he was the head of the family or a principal member thereof.

It is imperative to reiterate the fact that appellate courts have always adopted a liberal approach to customary court proceedings. Attention is focused on substance rather than form. The aim is to do justice and reach a decision that is in accord with common sense and reason, devoid of legal technicalities. See: Odofin v. Oni (2001) 3 NWLR (Pt.701) 488 @ 510 A – B; (2001) 1 SCNJ 130. What the court is concerned with is that the proceedings were conducted fairly and in accordance with the rules of that court. It was held in: Nthah v. Bennieh (1931) AC 72; 2 WACA 1 @ 3 that:

“decisions of the native tribunal on such matters which are peculiarly within their knowledge, arrived at after a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong.”

In Dadi v. Garba (1995) 8 NWLR (Pt.411) 12 @ 18 E this Court held per Uthman Mohammed, JSC:

“What is essential in examining the trials in a customary court is to look into the entire evidence in the proceedings in order to discover the precise nature and

32 subject matter in controversy between the parties. The form of wording of the claim and the parties’ capacity should not be a germane issue for the impeachment of a customary court’s judgment.”

(Emphasis mine)

Applying the above principles to the facts of this case, it is quite clear that notwithstanding the wording of the claim drafted by a layman, the respondent, in his evidence in chief and also under cross-examination, stated categorically that the land belongs to “Umuolu people”. That he was given a portion of the family land upon which he planted palm trees as far back as 1980 without let or hindrance from anyone until the appellants trespassed thereon. He also stated under cross-examination that he had the support of other members of the family in bringing the action. The Lower Court was quite right, in my view, when it held that the respondent had not only shown sufficient interest in the land in dispute, he had disclosed unequivocally that he sued on behalf of his family, being the person directly responsible for the portion trespassed upon. The appellants have not advanced any cogent reasons to disturb this finding.

On the second

33 issue, the appellants contend that the Lower Court erred in holding that the main contention between the parties was the boundary of the land and consequently finding that a case of trespass had been made out against the appellants and yet proceeded to grant a right of occupancy over Agbaraukwu Land to the Umuolu family.

As stated earlier, for an appellant to succeed in setting aside the decision of a customary court, he has the onerous task of proving that the proceedings were conducted in breach of the principles of fair hearing or that the decision is wrong. On the nature of the controversy between the parties, the court below held at page 215 of the record:

”It is our opinion that the issue was judicially, judiciously and competently determined by the trial Court. I am unable to fault the decision of the trial court, part of which is hereby reproduced for purpose of emphasis:

”After a careful review of the evidence of both parties court is of the opinion that the vital issue … to determine is … the boundary of the land, as both parties admitted in their evidence on oath that the Umuolu, Umuelechi, Obuzor Asa share a common

34 boundary on the land in dispute During the inspection of the land both parties admitted that the beginning of the old road is the same, and they (sic) PW1 claims is the boundary.”

It is instructive to note that it was not the Respondents who challenged the appellant who had been cultivating the land for 24 years. It was the appellant who sought a definition of boundary to curtail the encroachment of the respondents. Boundary was indeed the main stake of the suit.”

The finding is unassailable. The trial court was right when it held, after conducting a visit to the locus in quo, that the main issue between the parties was the boundary of the land. The court below was also right in upholding this finding of fact. I also agree that in the circumstances of this case, the Lower Court was right in its decision to vary the order of the trial court by granting the right of occupancy in respect of the land in dispute called Agbaraukwu Land, to the Umuolu family/kindred in Umuelechi Obuzor area, in the interest of justice, peace and harmony and in discharge of its duty to ensure that there is an end to litigation.

For these and the more detailed

35 reasons, well advanced in the lead judgment, I also find the appeal to be lacking in merit. I accordingly dismiss it and abide by the consequential orders made in the lead judgment.

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SC.295/2005