Michael Romaine Vs Christopher Romaine (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the defendant who was the successful party in the High Court. But the Court of Appeal reversed the High Court decision and entered judgment for the plaintiff in terms of his claim.

In an Onitsha High Court, the plaintiff who sued as head of George Romaine’s family claimed the following reliefs:-

“1. A declaration that all that piece and parcel of land (plan of which will be filed in Court) being and situate at Onitsha within jurisdiction, known as and called No.20, Emejulu Street, Onitsha (formerly known as No.16, Emejulu Street, Onitsha) is the communal property of the sons of late George Romaine of Onitsha.

2. 300pounds general damages for trespass in that the Defendant in or about the year 1966 broke into and entered into the Plaintiff’s land aforesaid and started to harass the Plaintiff’s tenants living on the land and to collect rents from them. Further, between the year, 1970 and 1971, the Defendant unlawfully broke into and entered the land and knocked down the walls of Plaintiff’s dilapidated buildings on the said land and threatened to erect some building on the land in furtherance of the said trespass.
3. Perpetual injunction to restrain the Defendant, his servants, agents workmen from continuing or repeating the said trespass.”

It was common ground that the radical title to No.20 Emejulu Street, Onitsha (hereinafter to be referred to as the land in dispute) resided in Mgbelekeke Family of Onitsha who made a grant of it to one Tom Elo Romaine, long deceased, as a kola tenant. The bone of contention in this case is who, of the plaintiff and the defendant, has inherited the land in dispute.

According to the plaintiff, his father, George Chukwuka Romaine was the son of Tom Elo Romaine by his first wife, Madam Ajuma Romaine. On the death of Ajuma, Tom Elo Romaine married one Ma Lucy Musa Romaine who begot three children – Comfort, Esther and Emmanuel. Emmanuel died without an issue. Comfort had two sons, the defendant (born of an unknown father) and Julius. According to the plaintiff when Tom Elo Romaine died in 1917, plaintiff’s father, George, as the only male issue of Tom Elo Romaine inherited the land in dispute according to Onitsha native law and custom. Under that, persons of the female line cannot inherit land. When plaintiff’s father died in 1965, the land in dispute should be inherited by the plaintiff and his brother, Eric Romaine (P.W.4) and other children of George Romaine. In 1961, his father had gone blind. As a result of the discussions he had had with his father in 1962, he went to Mgbelekeke Family to pay the “Kola” for the land in dispute. There he was informed by the lawyer to the family that the defendant had paid the “kola” and had had a document of title executed in his favour and in his name. When he reported this to his father, the latter protested to Mgbelekeke Family. This led to a series of correspondences and discussions culminating in the request of the solicitor to Mgbelekeke Family demanding of the defendant that he should return the document of title made out’ in his name for rectification. It is useful to set out in full Exhibits 3 and 9. Exhibit 3 reads as follows:-

“OBANYE & CO.

(Solicitors & Advocates)

MGBELELEKE

CHAMBERS

64, FRANCIS STREET

P.O. BOX 378

ONITSHA, NIGERIA

11th August, 1970

Ref: R/70/1

Mr. Michael Romaine,

Ministry of Works,.

Abakali

Property situate at No. 16 Emejulu Street, Onitsha

We have to call your attention to the decision reached in 1967 by you, your cousin and the Mgbelekeke family.

2. Grateful let us have the Agreement covering the above land for rectification as agreed to.

Yours faithfully,

Sgd. B,C.I. Obanye

for Obanye & Co, Solicitors

FOR MGBELEKEKE FAMILY, ONITSHA,”

Exhibit 9 also runs thus:

“OBANYE & CO,

(Solicitors & Advocate)

B.C.I. OBANYE, M,A., LL.B., (Hons,) D,P,A,

I, Ekwerekwu, LL.B, (Hons.) MBELEKEKE CHAMBERS

Barrister-at-law, 64, FRANCIS STREET

P.O, BOX 378

ONITSHA, NIGERIA,

1st February, 1967,

Mr. M.C. Romaine,

Mechanical Workshop,

Ministry of Works & Transport,

Warri.

Sir,

Re: Agreement/or 16, Emejulu Street, Onitsha

At the meeting of the members of the Mgbelekeke Family of Onitsha held on the 23rd January, 1967, at the Mgbelekeke Chambers, No,64, Francis Street, Onitsha we were instructed to write to you that owing to fresh circumstances which have arisen in connection with the above property, you are required, without fail, to forward the agreement given to you by the said family in respect of No. 16, Emejulu Street, Onitsha, Please note that it should be promptly dispatched to reach this office on or before the 15 February, 1967,

Yours affectionately,

………………….

ISAAC EKWEREKWU

for OBANYE & Co, Solicitors

for Mgbelekeke Family,”

In spite of these, the defendant refused to return the document of title for rectification. ‘He also traced how the defendant from 1966 started to interfere with the plaintiff’s enjoyment and management of the property in dispute.

Save that the property in dispute was that of Tom Elo Romaine, the defendant joined issues with the plaintiff on most of the material averments in the statement of claim. His case was that George Chukwuka was not the son but a servant of Tom Elo Romaine. As a reward for long and faithful service, Tom Elo Romaine settled George Chukwuka in a building being and situate at No.35, Ajassa Street, Onitsha. Plaintiff’s mother, Ifeonu., was married into the Iyaji Akaya’s family and the plaintiff was born into and grew up in that family. He was not the son of George Chukwuka, When Tom Romaine died in 1905 he was survived by three children Comfort, Emmanuel and Esther Romaine. Tom Elo Romaine married only one wife – Mrs. Lucy Musa Romaine who died in 1942. He admitted that on the death of his grand mother, Mrs. Lucy Musa Romaine, his aunt, Esther sent him and his brother, Julius to go and live with George Chukwuka (Romaine). He stated that in 1961, on his application and after due investigation by Mgbelekeke family they made a grant of a kola tenancy of the land in dispute to him and his brother Julius. The deed of grant was tendered as Exhibit 11. He denied that he cheated George Chukwuka Romaine by the grant or that the latter who knew of the grant protested against it. He has been managing the property as of right. He pleaded that Tom Elo Romaine was of the Kissy Tribe in Sierra Leone, and that by the custom of Kissy, he, as the son of Comfort Romaine, was entitled to inherit the property in dispute, as, by that custom, the child of an unmarried mother belongs to the family and the mother. Onitsha native law and custom also recognizes inheritance according to the personal law of the deceased.

After hearing, the learned trial Judge found that the plaintiff’s case was unsatisfactory and that defendant’s case was no less porous. I shall refer to those findings by him which are necessary for the determination of this appeal in due course. Suffice it to say that he relied so heavily on the grant of kola tenancy to the defendant by Mgbelekeke family. After highlighting the weakness in the cases for both sides, he commented:-

“Against this deplorable impasse, there is however, a grant from the Mgbelekeke family in favour of the defendant, – Exhibit 11. The family is bound by the grant until it is set aside – see Ezeugo v.Ohanyere (1978) 6 & 7 S.C. 171. The Plaintiff cannot claim a better title than that conferred by the Mgbelekeke family -” See SannialiasAderibigbe v. Oki (1971) 1All NLR 116. If a grant was procured from the Mgbelekeke family, it was for the said family to sue to set aside the fraudulent grant and until it is set aside,they are bound by it- See lgbinosa v. Aiyobagbeigbe (1969) 1 All NLR 99. The learned counsel for the plaintiff has raised again the admissibility of Exhibit 11. I do not think that the issue can again be canvassed before me in view of the ruling of the Court of Appeal in the interlocutory appeal concerning the said document. In a situation such as this, it is the plaintiff who is required by the law to prove his case. Where he fails, he cannot rely on the weakness of the case for the defendant; and must fail in his action. That being the case herein, I have no option but to dismiss the plaintiff’s claims.”

Dissatisfied with the dismissal of his claim, the plaintiff appealed to the Court of Appeal. That Court, per Uwaifo, J.C.A., in his lead judgment, held that the real issue was which of the two contending parties had the right to inherit the property in dispute and that the question of a grant of kola tenancy to the defendant by Mgbelekeke family was merely peripheral. In the end, the Court of Appeal found that the learned trial Judge was in error to have placed heavy premium on the grant and that the plaintiff proved his entitlement to inherit the property. Then that Court coram: Katsina-Alu, Macaulay and Uwaifo, JJ.C.A. allowed the appeal and entered judgment for the plaintiff in terms of his claim.

The defendant has appealed to this Court. Seven grounds of appeal, attacking several conclusions and findings by the learned Justices of the Court of Appeal upon which they hoisted the judgment were filed. From those grounds the learned Senior Advocate for the appellant, Mr. Egonu, formulated the following issues:-

“(a) Was there any onus on the defendant/respondent appellant to prove his title to the land in dispute and should his failure to prove the Kissy Customary law deprive him of his rights and interests in the land in dispute as a grantee of the Kola Tenancy of the said land by the Mgbelekeke Family of Onitsha.

(b)Was the Court of Appeal right in holding that the learned trial Judge.

(i) Was wrong in referring in his judgment to the Supreme Court decision in Augustine Udensi v. Alice Mogbo (Nee Udensi) (1976) 7 S.C. 1.

(ii) Made use of the evidence in Udensi’s case (supra) in arriving at his decision in this case

(c) (i) Did the plaintiff/appellant/respondent prove his case

(ii) Was the Court of Appeal entitled to make out for the plaintiff/appellant/respondent a case which he never pleaded nor proved to wit, the custom of inheritance allegedly relied upon by the plaintiff/appellant/respondent and the alleged invalidity of Exhibit11

(iii) Did the Court of Appeal correctly and properly direct itself on the findings of the learned trial Judge on the questions of the possession of the land in dispute, that George Romaine never applied to the Mgbelekeke family for the Kola Tenancy of the land in dispute and never protested to the grant of the Kola Tenancy of the land in dispute to the defendant/respondent/appellant and that the grant of the Kola Tenancy of the land in dispute was not obtained by any fraud by the defendant/respondent/appellant.

(iv) Was the Court of Appeal right to set aside the judgment of the High Court dismissing the plaintiff/appellant/respondent’s case by holding that with the existence of Exhibit 11 the plaintiff/appellant/respondent’s case must fail when there was no appeal against that aspect of the decision

(v) Was the Court of Appeal right in holding that the cases of Michael O. Igbinosa v. Cole E. Aiyobagbiegbe (1969) 1 All NLR 99 and Raimi Sanni alias A.A. Aderibigbe v. Jimoh Olarewaju Oki & Anor (1971) 1 All NLR 116 had no application to the present case

(vi) Did the trial Court place on the plaintiff/appellant/respondent greater onus of proof than was required of him by law.

(d) Was the fact that the land in dispute was held under Mgbelekeke Kola Tenancy a matter of mere “Cosmetic incidence” and was the Court of Appeal right in entering judgment for the plaintiff/appellant/respondent having regard to the nature of the holding and the facts and circumstances of this case

Learned Senior Advocate for the respondent, Chief Onyiuke, formulated the issues thus:-

“(1) Whether the Court of Appeal was in error when it held that the introduction of the right of an illegitimate child in the case was unwarranted and not an issue for determination in the case.

(2) Whether the Court of Appeal was in error when it held that it was inevitable that the plaintiff/respondent should have been declared the person at the fore front of those who directly qualify to inherit the property in question.

(3) Whether the Court of Appeal was in error in condemning the use made by the trial Court of the evidence in Udensi v. Udensi (1976) 7 S.C. 1.

(4) Whether the Court of Appeal was in error in holding that the Mgbelekeke Family had not made any valid grant of Kola Tenancy to the defendant/appellant and that the case of Michael O. Igbinosa v. Cole Aiyobagbiegbe (1969) 1 All NLR 99 and Raimi Sanni v. Jimoh Olarewaju Oki (1971) 1 All NLR 71, were distinguishable from the facts of this case on appeal.

(5) Whether the Court of Appeal was in error in holding that the plaintiff/respondent had discharged the onus on him in proof of acts of ownership and possession exercised by him and or his predecessor in title, and that the trial Court had placed on him the onus which far exceeded what was required of him considering the state of the pleadings.

(6) Was there any onus on the defendant/appellant to prove his title to the land in dispute, and should his failure to prove the so-called Kissy Customary law deprive him of his rights and interests in the land in dispute (if any) as a grantee of the Kola Tenancy of the said land by the Mgbelekeke Family of Onitsha.”

I shall wherever possible try to marry and consider the issues as formulated by both Senior Counsel together and deal with others which are relevant.

It is convenient to deal first with those issues which deal with the nature of the case between the parties. This is the issue numbered (d) by the appellant.

Learned counsel for the appellant attacked that part of the judgment of the Court

of Appeal where it held:

“The action is essentially one founded on inheritance of property which has a cosmetic incidence (in the circumstances of this case) of a kola tenancy. The property was formerly known as No.16 Emejulu Street but later as No.20 Emejulu Street, Onitsha.The question was who between the plaintiff and the defendant was entitled to the said property. The plaintiff, suing as head of George Romaine’s family of Onitsha, says he is entitled and therefore claimed against the defendant (a) a declaration to the said property as the communal property of the sons of late George Romaine,'(b) (N600) damages for trespass and (c) perpetual injunction.

Learned Senior Advocate on behalf of the appellant submitted that this was a misdirection, as it demonstrated a misunderstanding of the whole case by that Court, as the whole case was wholly rooted in the Mgbelekeke Family Kola Tenancy tenure. He submitted that as that family had granted the Kola Tenancy of the properly in dispute to the defendant and his brother, Julius that was the end of the matter unless the said grant could be, or was, set aside. As it was not set aside, the Court of Appeal was wrong to have set aside the judgment of the Court of trial and entered judgment in favour of the plaintiff (respondent) in spite of Exhibit 11. Learned Senior Counsel on behalf of the respondent submitted that the case was clearly rooted on inheritance.

Now as I pointed out above, it was common ground that the radical title of the properly resided in Mgbelekeke Family. It was also agreed that that family made a grant of a kola tenancy of it to Tom Elo Romaine, who died in 1905 or 1917. It was not a part of the appellant’s case that on the death of Tom Elo Romaine the property in dispute reverted to Mgbelekeke family who consequently acquired once more the power to make a fresh gram of it to anybody else and therefore made the grant, Exhibit 11, to him and his brother, Julius. Rather it was his case that he was rightly granted the property in dispute by virtue of his being a successor to Tom Elo Romaine. The plaintiff (respondent) asserted the contrary and contended that Exhibit 11 was fraud on the real successors of Tom Elo Romaine and that by Exhibit 11 the appellants got nothing.

I may pause here to observe that one of the recognized ways of proving title to land is by production of a valid instrument of grant: See Idundun v. Okumagba (1976) 9-10 S.C. 227; Piara v. Tenalo (1976) 12 S.C. 31, p.37; Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:

(i) whether the document is genuine and valid;

(ii) whether it has been duly executed, stamped and registered;

(iii) whether the grantor had the authority and capacity to make the grant;

(iv) whether the grantor had in fact what he purported to grant; and

(v) whether it has the effect claimed by the holder of the instrument.

In this case, the questions (i), (iv) and (v) above were clearly raised. Respondents maintained that at the time of execution of Exhibit 11 their father, George Romaine, who was then the head of the family was blind and senile; that he took the appellant with him to Mgbelekeke Family to get a recognition of their tenancy; but that instead of the intended document in favour of the family the appellant procured Exhibit 11 whereby the property in dispute was granted personally to him and his brother, Julius; that on their father realising this, he protested to Mgbelekeke Family who, after discussions, ordered the appellant to produce Exhibit 11 to them for rectification or destruction. P.W. 11, Akunwata Philip Dbanye, a member of Mgbelekeke Family and their lawyer, Isaac Ifeayichukwu Ekwerekwu (P.W.8) testified to these and tendered Exhibits 3 and 9, set out above.

It is instructive to read Exhibit II itself. It runs thus:

“THIS AGREEMENT is made the 14th day of June 1962 BETWEEN Chief Peter Onwuta Osuma, J.O. Ononye and Thomas Abomeli all members of the Mgbelekeke Family of Onitsha for themselves and on behalf of the said Mgbelekeke Family (hereinafter called the Landlords which expression shall where the con so admits include their heirs and successors) of the one part AND Michael Romaine and Julius Romaine (hereinafter called the Kola Tenants which expression shall where the con so admits include their heirs and successors) of the other part.

WHEREAS the Landlords are the owners of the piece and parcel of land hereinafter described and have negotiated grant for the same for an estate under the Kola tenancy system of land tenure of Onitsha to the Kola Tenants for the sum of 45.00 (Forty five pounds). NOW THIS DEED WITNESSETH that in pursuance of the said negotiation and in consideration of the covenants by the Kola Tenant hereinafter contained and of the sum of 345.00 (Forty five pounds) now paid by the Kola Tenant to the Landlords (the receipt whereof the Landlords hereby acknowledge) the Landlords AS BENEFICIAL OWNERS hereby agree to grant unto the Kola Tenants and the Kola Tenants to take ALL AND SINGULAR the piece and parcel of land situate at and known as No. 16 Emejulu Street, in the Township of Onitsha which parcel of land is bounded on the North by Emejulu Street and measuring 112 feet on the South by Mba’s premises and measuring 124 feet, on the East by Emejulu Street and measuring 52 feet and on the West by Mba’s premises and measuring 52 feet which parcel of land contains a total area of approximately 700.00 square yards.

TO HOLD the same unto the Kola Tenants in Kola tenancy system of land tenure of Onitsha.

The Kola Tenants covenant with the Landlords that they the Kola Tenants during the tenancy,

Will not transfer the said piece of land to any new incoming Tenant or Tenants unless they shall have obtained the Landlords’ written consent thereto and shall have introduced to the Landlords such new incoming Tenant or Tenants who shall pay the customary transfer kola to the Landlords.

IN WITNESS WHEREOF the said parties hereto have hereunto set their respective hands and seals the day and year first above written.”

SIGNATURE OF THE LANDLORDS

Signed, Sealed and Delivered

by Chief Peter Onwuta Osuma (Sgd.) Chief P. Onwuta Osuma

For Okwuora Branch of the

Mgbelekeke Family.

In the presence of: (Sgd.) F.O. Obanye

Signed, Sealed and Delivered

by J. O. Ononye

For Ofili Branch of the (Sgd.) Joe C. Ononye

Mgbelekeke Family

(Nnaemeka-Agu, J.S.C.)

In the presence of :

Signed, sealed and Delivered

by Thomas Abomeli

For Ezechina Branch of the (Sgd.) Thomas Abomeli

Mgbelekeke Family

In the presence of: (Sgd.) J. O. Abomeli

SIGNATURE OF THE KOLA TENANT

Signed, sealed and Delivered

by the Kola Tenants 1. Michael C. Romaine 1. Michael C. Romaine

2. and brother Julius Romaine

In the presence of:

Vincent O. Nwanolue.”

No reference was made to the subsisting grant to Tom Eta Romaine. In spite of the pleading and heavy evidence that the procurement and execution of Exhibit 11 were fraudulent, the learned trial Judge made no finding on that aspect of the case. I am not quite clear whether I can do so now in view of the fact that it must entail the issue of credibility of witnesses whom 1 was not opportune to hear or see myself. But quite apart from this, I feel entitled to advert to a few points about Exhibit 11. Ex facie it is a grant by Mgbelekeke Family to the appellant and his brother, Julius, personally and not on behalf of the estate or other descendants of Tom Elo Romaine, the admitted original grantee of the kola tenancy. By law, kola tenancy, like other forms of customary tenancy, is not determinable upon or by the death of the grantee but by an action for forfeiture. It is an interest which should descend upon his successors. See: Oshidi v. Dakolo (1930) A.C. 667, p.668; also Ovie v. Onoriobokirhie (1957) W.R.N.L.R. 169. At least from the evidence of P.W.11, the representative of the grantor family and their lawyer (P.W.8) the consent of the grantors for the descendants of Tom Elo Romaine to remain in possession was conceded. The big question raised by exhibit 11 is, therefore, how the interest of Tom Elo Romaine which should descend upon his heirs and successors after his death became a proper subject of a personal grant to the appellant and his brother, Julius to the exclusion of other descendants of Tom Elo Romaine. The other question is this: as the Mgbelekekes had made a customary grant of the property in dispute to Tom Elo Romaine, had they any such interest to grant to the appellant . I do not think so because all that they retain is their reversionary interest. If I am right, as I believe I am, the maxim being: nemo dat quod non habet (no one can grant what he had not got), it seems to me to follow that Exhibit 11 was not worth more than the paper it was written upon. It granted I nothing. The learned trial Judge was wrong to have made such a heavy weather of it: so the Court of Appeal was right to have said so in terms. It was also right to have held that the decisive question ought to have been which of the two, appellant or the respondent, was entitled to succeed to the property in dispute as successor to Tom Elo Romaine – and that the learned trial Judge was in error to have placed so much premium to the purported grant to the appellants under Exhibit 11.

This brings me to a consideration of the relevance or otherwise of some decided cases relied upon by the learned trial Judge in part of his judgment set out above. The Court of Appeal held that they were not in point. Their relevance or otherwise was made an issue in this appeal by learned Senior Advocate for the appellant in paragraph (c) (v) and the learned Senior Advocate for the respondent in paragraph (4) of the issues for determination in this appeal. The case of Ezeugo v. Ohanyere (1978) 6 & 7 S.C. 171 was an unsuccessful plea of non est factum raised by a party to a deed after its due execution. No such plea was raised in this case. The present case was based on a contention by the plaintiff who was no party to the deed, Exhibit 11, that Mgbelekeke Family had not the capacity to make the grant to the defendant/appellant of land which they had granted to Tom Elo Romaine. Also they had expressly told the defendant/appellant to return the deed of grant for rectification. I also find it difficult to see the relevance of the case of Sanni alias Aderibigbe v. Oki (1971) 1 All NLR 116 on the principle for which it was cited. This is because no question arose as to any claim by the plaintiff/respondent to a better title than what was purportedly granted to the appellant by Exhibit 11. Rather the respondent’s case was based on a more fundamental principle of nemo dot quod non habet (no one can grant what he has not); that is to say that Mgbelekeke Family having granted the land in dispute to Tom Elo Romaine, they had not the capacity to grant the same land to the appellant and Julius in their own right, as if it was still vested in them. Appellant could only have claimed it through Tom Elo Romaine. As for the case of Igbinosa v. Aiyobagbiegbe (1969) 1 All NLR 99, it relates to a conveyance of land executed by the Oba of Benin in which he later said that he did not intend to convey the land. Fraud was not alleged. The principle in Hunter v. Walters (1871) L.R. 7 Ch. App. 75 was invoked. It was held that as the deed was voidable and not void, it enured until it was validly set aside. This case is different.

The thrust of the argument of learned Senior Advocate for the appellant in this aspect of the appeal makes it necessary to restate the law as it relates to leases and other conveyances which are nullities and those which are irregular and so voidable. He submitted that Exhibit 11 remains valid until it is set aside. With respects, I believe that such would have been the case only if Exhibit 11 was not a nullity. For when a lease or a conveyance is voidable it remains in full force and effect until it is set aside: see -Igbinosa v. Aiyobagbiegbe (supra). In that case, only a party to the deed can institute an action to set it aside: see – Eric Odor v. James Nwosu & Anor (1974) 12 S.C. 103. On the other hand, as a legal concept, an act, a document, or an instrument which is a nullity, is incurably bad and is characterized by want of force or efficacy. Just as parties to a null marriage are treated as though they were never married (for which see Re Wombwell’s Settlement (1922) 2 Ch. 298, p.305), parties to an instrument of grant which is a nullity are treated as though such an instrument never existed. Any person affected thereby can seek a declaration that the instrument is a nullity or can in any other appropriate action prove it to be so. In the instant case what the Court of Appeal has found, and I agree with their Lordships, is that Exhibit II conveyed nothing and is a nullity. A deed of conveyance which is a nullity is absolutely without any effect and there is often no need to formally take steps to set it aside: I should ignore Exhibit 11. The issue raised by the appellant in Issue Number C(v) must be resolved against him

So, I shall next consider the major issue of which of the defendant/appellant and plaintiff/respondent is entitled to inherit the property of Tom Elo Romaine, in dispute. Respondent, as plaintiff, claims the property in dispute as head of George Romaine’s Family of Onitsha. It is his case that George Romaine was the son of Tom Elo Romaine and, being his only surviving son at the latter’s death in 19I7, George succeeded to the property in dispute. According to him, the defendant is son of Comfort Romaine, a daughter of Tom Elo Romaine and sister of George Romaine. Defendant was the son of one Titus Davis Robinson. He pleaded that by Onitsha customary law a person’s daughter and descendants of such a daughter cannot inherit the person’s real property.

The appellant, as defendant, countered by maintaining that plaintiff’s father George Romaine, was not a son to Tom Ela Romaine at all. He was a servant of Tom Romaine and his true name was George Chukwuka. Plaintiff himself and one Johnson Obiekwe, were sons of Ifeonu Iyaji and were born into Iyaji Akaya’s Family. He is not of Romaine’s Family at all. Defendant’s mother, Comfort, at the time the only surviving child of Tom Elo Romaine, as her brother Emmanuel, died in 1939 and her sister, Esther died in 1948. He maintained that Tom Elo Romaine died at Onitsha but was a Sierra Leonean of Kissy tribe and that by the Customary law of Kissy tribe females and their descendants were entitled to inherit real property. Further, he averred that the custom of Onitsha where the property in dispute was situate recognized that succession of property of non-indigenes of Onitsha would be in accordance with the personal law of the owner. Hence he was entitled to succeed to the property in dispute and had been rightly granted it by Mgbelekeke Family as per Exhibit 11.

For better understanding of the issues that arise in this aspect of this appeal, I consider it helpful to refer to some of the relevant findings of fact made by the learned trial Judge. On the crucial issues as to whether George Romaine was a servant or a son to Tom Elo Romaine and whether the plaintiff was a son to George Romaine, the learned trial Judge did not find that George Romaine was a servant to Tom Elo Romaine. Rather at page 130 of the record he found as follows:-

“However, from the intimacy between the plaintiff and members of the Romaine family including the defendant himself, I am more inclined to accept that the plaintiff is an illegitimate son of George Romaine but was accepted into his family and was considered as a member thereof.”

However, at p. 138 he held:-

“But in the main, the plaintiff has not established that he is a son of George Romaine or that George Romaine was a son of Tom Elo Romaine. It appears to me that in each case, the party was born outside lawful wedlock and hence illegitimate. The right of illegitimate children has not been canvassed before me,”

I must confess that I find it difficult to reconcile these clearly conflicting findings – how plaintiff could be not a son and an illegitimate son of George Romaine at the same time. What is more disturbing is that the issue of illegitimacy did not arise on the pleadings: it was raised by the learned trial Judge suo motu. It was quite unnecessary on the pleadings and evidence because the plaintiff himself testified as follows:-

“My father George Romaine had seven wives. He had five sons and five daughters. Two daughters died in his life time”

So it was not his case that he was a product of a monogamous marriage. Plurality of wives has little or no room for illegitimacy. In my view, the above finding of the learned trial Judge should be shorn of the unwarranted reference to illegitimacy, leaving the only legitimate findings, which were supported by the evidence of P.W.2, David Onyejekwe, a man of 82 years in 1976, P.W.3, Elizabeth Ifeonu Romaine, the mother of the plaintiff, P.W.4, Eric Romaine, P.W.6, and James Romaine a retired administrative officer and the oldest member of Romaine’s family alive at the time of the hearing. I believe that the law is clear that a Judge of trial is in a pre-eminent position to make findings of fact based on the evidence before him. When this exercise is properly done an appellate Court cannot interfere to change the finding. But when a trial Judge abdicates this sacred duty or when he demonstrates that he has not taken proper advantage of his having heard and seen the witnesses testify the matter is at large for the appellate Court. If the evidence is of such a nature that the appellate Court cannot make a finding, it must order a retrial. See Okoye v. Kpajie (1972) 6 S.C. 176. Where, however, the Trial Court made conflicting findings of fact, the appellate Court would be entitled to choose whichever of the findings that appears to be supportable on the evidence given at the trial. This was what the Court of Appeal did. Indeed there was a specific finding, based on the evidence of the plaintiff’s mother (P.W.3) that she had plaintiff as a son to George Romaine. But there was scarcely any evidence in support of the defendant’s assertion that George Romaine was not the son of Tom Elo Romaine or that the plaintiff was not the son of George Romaine. In addition, D.W. 1, Mrs. Maria Romaine admitted under cross-examination that plaintiff was older than Emmanuel who was older than Comfort. The implication of this admission is that even if Comfort and the plaintiff were entitled to inherit the property, the plaintiff would have remained the head. So, clearly plaintiff was the son of George Romaine, the son of Tom Elo Romaine.

As for the defendant/appellant’s position, the learned trial Judge found:

“He is the self-admitted grandson of Tom Elo Romaine without a lawful father. He claims to be the son of the said gentleman by virtue of this misfortune.” as follows:-

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“I am, therefore, inclined to accept the defendant’s story that his mother was unmarried. This does not advance his case any where. The defendant based his claim to the property on Kissy’s customary law.”

Then the learned trial Judge found that this customary law was not proved.

He then concluded:

“That being the case, the basis of the defendant’s claim to the property in dispute cannot in law be maintained.”

In my view, on the above state of the findings the only logical thing to expect was a verdict for the plaintiff. For this being a claim of title to land the issue ought to have been decided on the relative strengths of the claims of the two parties in litigation. See on this: Arase v. Arase (1981) 5 S.C. 33, p.35, Anukanti v. Ekwanyeaso (1980) 1 L.R.N. 346, p.351. It must be borne in mind that this is a case in which both parties sought to trace their respective titles to an admitted original owner, to wit: Tom Elo Romaine. Once, as by the above findings, the respondent was able to trace his title to Tom Elo Romaine, the onus shifted to the defendant to prove a better title. See: Thomas v. Holder (1946) 12 WACA 78 Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Mogaji v. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393.

A different situation, therefore, arose in this case – different from the proposition in Kodilinye v. Odu (1935) 2 WACA 336 in which the onus was on the plaintiff to prove his case, and the defendant could in fact win without uttering a word. Where in such a case the defendant shows that he is a stranger to the property in litigation, he is out of the race. So, having found that the plaintiff was the son of George Romaine who was the son of Tom Elo Romaine but that the defendant’s case was not maintainable in law there should have been no alternative hut to find for the plaintiff. For, a judgment of a Court ought to represent and demonstrate a full and dispassionate consideration of the issues properly raised and heard in the case and the final conclusion manifestly seen to be a logical outcome of such an exercise. I must, therefore, resolve the first issue raised on behalf of the appellant against him. It also follows that, by failing to advert to the shifting of the onus on the defendant in such a case, the learned trial Judge placed too heavy an onus on the plaintiff, as the Court of Appeal pointed out.

In fairness to the learned trial Judge, after coming to the above conclusions, he thought that the defendant’s case had two saving graces. First that he had a grant (Exhibit 11) from Mgbelekeke Family. I have held that Exhibit 11 granted nothing to him. Secondly, he held:

“But in matters about succession to Mgbe1ekeke Family kola tenancy, the Supreme Court has held that the applicable law was the Mgbelekeke customary law of kola tenancy and not even Onitsha customary law,. -because of the special peculiarity of this form of tenancy. As to whether a woman can succeed to Mgbelekeke kola tenancy, the issue was contended in Udensi v. Udensi (1976) 7 S.C 1. A member of the same Mgbelekeke gave evidence as to their custom of kola tenancy: He testified that women could succeed to kola tenancy. That being so, the evidence of P.W. 10, P.W.11. D.W.3 and D.WA are irrelevant. P.W.11 himself was very unsure of himself. In any event, the family cannot blow hot and cold as it is pleased on this issue. That a woman can succeed to an Mgbelekeke kola tenancy has been established by the above case.”

While the learned Senior Advocate for the defendant/appellant Mr. Egonu .has striven to uphold the above views, learned Senior Advocate for the respondent, Chief Onyiuke, has submitted that it does not represent the law. I must state that I do not agree with Mr. Egonu that the learned trial Judge simply cited Udensi’s case (supra) as an authority on the issue and that he did not use the evidence in that case in deciding the instant case. He clearly used it as a basis for disbelieving or not considering the evidence of P.W.10, P.W.11, D.W.3 and D.W4.

Dealing with the matter, the Court of Appeal, per Uwaifo, J.C.A., stated:

“This view of the trial judge was not only uncalled for and constituted a platform for confusion as the parties did not put forward the Mgbelekeke custom of kola tenancy as the basis of their claim to succeed to the said property. but also reference to the case of Udensi was a grave error. The evidence in that case is totally irrelevant in the circumstances of this case. It can only be used in cross-examination of the witness who gave it if she appeared as a witness in the present case to give a contrary evidence. It is of no higher value: see Alade v. Aborishade (1960) 5 FSC 90 at 173: (1960) SCNLR 398; Folarin v. Durojaiye (1988) 1NWLR (Pt.70) 351 at 369 S.C.

Evidence in the previous proc’80eedings does not constitute evidence in the present case: see Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 250 S.C.”

In my view this is a correct statement of the law, as it is basic that evidence given in previous proceedings cannot be evidence in the instant case. It can only be used for purposes of cross-examination as to credit. See further on this: George Obi Ikenye & Anor. v. Okpala Ofune & Ors. (1985) 2 NWLR (Pt.5) 1; I.B. Folarin v. Oyewole Durojaiye (1988) 1 NWLR (Pt.70) 351 Omorhirhi & Ors. v. Enatevwere (1988) 1 NWLR (pt.73) 746.

But the learned Judge missed the point on another fundamental point: i.e. the view that one decision of the Supreme Court on a question of custom settled the matter for good to such an extent that it could be judicially noticed and applied in subsequent cases. With respects, this is not correct. In our law, a custom is a matter of evidence unless it qualifies for judicial notice. It can qualify for judicial notice only if it has been so often proved, pronounced upon and acted upon by a Court of superior or co-ordinate jurisdiction in the same area to such an extent that it can be said that it has acquired notoriety. All the cases decided before and, some decided after, the inception of the Evidence Act on 1st June, 1945, show that the invariable rule was that a custom could be judicially noticed only after frequent proof of and pronouncements on the custom by the Courts. See on this: Larinde v. Afiko & Anor., (1940) 6 WACA 108. Many of those earlier cases followed the pronouncement to the same effect by the Privy Council in Kobinah Angu v. Cudjoe Allah, P.C. Appeal No. 78 of 1915 (unreported). In 1945, the Evidence Ordinance (Act) was enacted. Now section 14(2) provides as follows:

“(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co- ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

In Liadi Giwa v. Bisiriyu Erinmilokun (1961) 1 All NLR 294, at p. 296; (1961) 1 SCNLR 377 the Supreme Court without any express reference to section 14(2) of the Evidence Act came to the conclusion that customary law could not be judicially noticed “unless it is of such a notoriety and has been so frequently followed by the Courts……….. .” On the other hand, the case of Cole & Anor. v. P. A. Akinyele & Ors. (1960) 5 F.S.C. 84; (1960) SCNLR 192 has sometimes been referred to as authority that a single binding decision is enough. In my view; this is no authority for such a proposition particularly in this case. In the first place, Alake & Ors. v. Pratt & Ors. (1955) 15 WACA 20 which the Federal Supreme Court regarded as judicially noticeable in Cole’s case (supra) was not an isolated decision on the Yoruba custom of legitimation by acknowledgment of paternity which was the basis of the decision. As Dr. S.N.C. Obi rightly pointed out in his “Modem Family Law in Southern Nigeria” (1st Edition) at p.6, before the decision in Alake v. Pratt (supra) there were numerous decisions by the High Court of Western Region that such a custom existed. Even the West African Court of Appeal in Appeal No. 3552: In the matter of the estate of Herbert Samuel Heelas Macaulay, reported at p.11 of WACA Cyclostyled Reports (October-November 1951) accepted that such a custom existed among the Yorubas but held that it was repugnant to equity and good conscience. It was only in Alake v. Pratt (supra) that the Court held that a custom so generally accepted by the people could not be jettisoned under the repugnancy doctrine. Before Udensi’s case such a custom had never been known to have been canvassed or pronounced upon relating to Mgbelekeke custom. It was, therefore, only right that it should be settled by evidence. Secondly, in Cole v. Akinyele (supra) the plaintiff pleaded the custom and invited the Court to take judicial notice of it. But, above all as the Court of Appeal pointed out, rightly in my view, the appellant pleaded Kissy custom which he did not prove. The respondent pleaded Onitsha custom on which he called credible evidence, including that of Chief Isaac Mbanefo, the Odu of Onitsha (P.W.10). None of the parties pleaded or relied on the particular custom of Mgbelekeke family. There is therefore no basis for the invocation of the principle.

Also, if we take the view that a single decision of the Supreme Court could be regarded as sufficient and be judicially noticed, one may ask what is the significance of the words:

“to an extent which justifies the court asked to apply it in assuming that the persons or class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

in section 14(2) In my view, those words import the necessary requirement of notoriety into the concept. One decision of the Supreme Court on an important issue can easily pass unnoticed. But several, especially when applied by various Courts in the judicial hierarchy cannot escape attention. It is only then that one can say that the custom decided upon has become notorious. It is then that it can be judicially noticed, not before.

I do not believe that possession of the property in dispute is a live issue in this case. Any possession found in favour of the appellant on the above facts which is adverse to that of the true owners is tortious trespass.

From all I have said above, this appeal fails, and is dismissed with costs of N1,000.00 in favour of the plaintiff/respondent.

M. L. UWAIS, J.S.C: I have had the opportunity of reading in draft the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I entirely agree that the appeal has no merit and that it should be dismissed.

With regard to the application of the provisions of section 14subsection (2) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990, I wish to add the following recent decision of this Court – Olagbemiro v. Ajagungbade III. (1990) 3 NWLR (Pt.l36) 37 at pp. 59D; 66B and 68B.

In the result the appeal fails and it is hereby dismissed with N1,000.00 costs to the respondent.

S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal should be dismissed. The plaintiffs pleadings and the evidence adduced at the trial show quite clearly that the plaintiff’s case was rooted essentially on the inheritance of the property in dispute as they sought declaration to the said property “as the communal property of the sons of late George Romaine.” I too will also dismiss the appeal with N1,000.00 costs in favour of the respondents.

A. B. WALI, J.S.C.: I have the privilege of reading in advance a copy of the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. and I agree with his reasoning and conclusions for dismissing this appeal.

For those same reasons ably stated in the lead judgment and which Thereby adopt as mine, I also dismiss the appeal with N1,000.00 costs to the plaintiff/respondent.

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Other Citation: (1992) LCN/2538(SC)