Obi V. Uzoewulu (2021)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C. 

This appeal against the decision of the Court of appeal Enugu Division (herein referred to as the Court below), delivered on the 22nd of May 2008, dismissing the Appellant’s appeal.

The Appellant herein was the Plaintiff at the High Court of Anambra State (hereafter called the Trial Court). By a Writ of Summons and an Amended Statement of Claim dated the 27th of October, 1997, the Appellant claimed the following reliefs:

1. A DECLARATION that the defendant and his members of Dim-Onyenagolum family are not entitled and cannot occupy the Obiship of Umui-Ikeogu/Ezekwuabo/Nsunano.
2. A DECLARATION that the plaintiff is by the Nnewi native law and custom of patrilineal inheritance, the person solely entitled to occupy the stool of Isi-Oblsblp of Nsunano/Ezekwuabo village in Otolo quarter in Nnewi town.
3. A DECLARATION that the Plaintiff is the recognized and incumbent Isi-Obi of Nsunano/Ezekwuabo village in Otolo quarters of Nnewi town and that the attempt by the defendant to constitute himself a rival/parallel Isi-Obi of Ezekwuabo village and/or so parade himself, is contrary to Nnewi

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custom and is therefore illegal and unlawful.

4. AN INJUNCTION restraining the defendant, his servants, agents, privies, associates or workmen from breaching the custom of the Nnewi town by constituting himself a parallel Isi-Obi of Umu-Ikeogu/Nsunano/Ezekwuabo village or in any manner whatsoever parade himself or lay claim to the stool of Isi-Obi Umu-Ikeogu/Nsunano Ezekwabo village or do any act or perform any function directly or indirectly bearing or touching on the Isi-Obiship of Umu-Ikeogu/Nsunano Ezekwabo village.

See pages 45-46 of the record.

At pages 75-88 of the Record, the Respondent filed a 19-paragraph amended statement of defense and a counter claim, and he sought for the following reliefs:

1. A DECLARATION that the traditional office of Isi-Obi Ezekwuabo family of the plaintiff and the defendant resides in the defendants Dim-Onyenagolum lineage of Umu-Ikeogu under the custom of Nnewi town community.
2. A DECLARATION that in accordance with the aforesaid custom, the Isi-Obi of Ezekwuabo was usurped by the plaintiff’s Dim Ughanwa lineage of Umu-Ikeogu and shall terminate/abate immediately on the present tenure of the plaintiff.

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AN INJUNCTION restraining all and/or any member of the plaintiff’s Dim Ughanwa line immediately on the cessation of the plaintiff’s present tenure from holding, interfering or continuing to usurp the office of Isi-Obi of Ezekwuabo except in accordance with the tradition of the Nnewi town community practices for the transmission of the office or failure of succession in the Dim Onyenagolum lineage.The story of the Appellant, is that Ezeakwuabo established an Obiship known as Isi-Obi. That under Nnewi Customary Law, inheritance to the stool of Is-Obi is patrilineal. When Ezekwuabo died, his stool was inherited by his first son called Ezeomu. The stool remained and continued in Ezeomu lineage following the same custom of patrilineal inheritance until it came to a descendant of Ezemuo, called Dibia-Agu. According to the Appellant, while Dibia-Agu was the Isi-Obi, of Ezekwuabo village, the said village was faced with series of wars (the war of nine fronts, popularly called Mbu Agha Teghete), with its neighbors. The then Isi-Obi could not control the situation so he handed over the mantle of Obiship to one of the descendants of Ezekwuabo

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called Ezekpo who was a great warrior and strategist, to lead the people in the war. Since then, the title of Isi-Obi Ezekwuabo remained in the lineage of Ezekpo up to the present day and time, with the Appellant as the present/incumbent Obi. He stated that the Respondent who is claiming the title is not even a descendant of the Ezekwuabo family, because his ancestor, Dim Onyenagolum was brought into the Ezekwuabo family from Dim Mnaniogu family and was assimilated into the Ezekwuabo family.

The story of the Respondent however is that the he descended from the same great ancestor Ezekwuabo, just like the Appellant. According to him, the ancestor begat Ikeogu and other sons. Ikeogu in turn begat Dim Onyenagolum, the ancestor of the Respondent, and Dim Ughanwa, Appellant’s ancestor. The first son of Ezekwuabo was Ezemuo, who died during his father’s lifetime. Ikeogu thus became the okpala and successor to the office of Isi-Obi Ezekwuabo when Ezekwuabo died. He said that when Dim Onyenagolum died, his son, Dim Aguluebo, was a minor and Ezekpo then stepped in and acted as a Regent, and that thence on, the Ezekpo line of the Appellant usurped the family Isi-Obi.

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The Appellant called in two witnesses PW1 and PW2. PW1’s evidence is from the record from pages 90 to 127 of the Record, while PW2 is the appellant himself and his testimony can be seen from pages 128 to 149. In defense and in proof of the counter claim, the Respondent called in three witnesses. See pages 128 to 200 of the Record. Parties filed their respective addresses, and in its judgment, the learned trial Judge at Pages 288 to 321 of the Record, dismissed the Appellant’s claim and entered judgment for the Respondent in respect of his counter claim.

Dissatisfied with the judgment of the Trial Court, the Appellant appealed to the Lower Court via a Notice of Appeal dated 27th day of March 2006, as can be found at Pages 322 to 330 of the Record.

While the appeal was ongoing, the initial Respondent at the Lower Court passed away and was substituted by the current Respondent before this Court. The Lower Court, in a unanimous decision dismissed the Appellant’s appeal.

Still aggrieved, the Appellant filed a four ground Notice of Appeal which is contained at pages 427 to 430 of the Record. After the record of appeal was

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transmitted, the Appellant filed his brief of argument on the 27th day of January, 2009. The Respondent thereafter filed his Respondent’s brief dated 17th day of March, 2010. The said Respondent’s brief was accompanied with a Notice of Preliminary Objection urging this Court to strike out ground 2, 3, and 4 of the Appellant’s notice of appeal alongside all arguments rendered in relation to the grounds. The Appellant in his reply brief filed on the 17th March, 2011, responded to the issues raised in the Preliminary Objection.

I shall deal with the preliminary objection first, before delving into the substance of the appeal.

As stated, the Preliminary Objection is inviting this Court to strike out the aforesaid grounds having been raised in contravention with the Section 233 of the 1999 Constitution, as amended. The Respondent argued that ground 2, 3 and 4 are imagined jurisdictional issues and no such issue was raised at the Courts below and while raising it at this Court, leave of either this Court or the Court below is required.

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The Respondent contended that failure to obtain such leave is detrimental to the grounds raised and is liable to be

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struck out. He placed reliance on the case of AKAAER JOV v. DOM (2004) 25 WRN 33 @ 41.

In opposing the Preliminary Objection, learned Senior Counsel for the Appellant argued that it is not always easy to determine the difference between a ground of law and a ground of fact. He posited that a proper appreciation of grounds 2, 3 and 4 of the amended notice of appeal would reveal that it would be misconceived to suggest that the grounds raise issues of concurrent findings of fact. He submitted that the issues are issues of law and the Respondent’s arguments ought to be discountenanced. He relied on the case of OGBECHIE AND ORS v. ONOCHIE & ORS (1986) 3 SC 54 @ 58.

I have perused the grounds of appeal in contention, which for ease of reference, are reproduced as follows:

GROUND TWO

Their Lordships the learned Justices of the Court of Appeal below (sic) erred in law when they totally misconstrued the issues in the suit and held in effect that the fundamental issue of this appeal raises {sic} is undoubtedly, which parties case on a preponderance of credible evidence has more weight.

GROUND THREE

​The learned Justices of the

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Court of Appeal erred in law when they held that the Respondent’s counter claim succeeded without first of all resolving the jurisdictional issues raised in respect thereof by the Appellant.

GROUND FOUR

The learned Justices of the Court of Appeal misdirected themselves in law and occasioned a gross miscarriage of justice when they held thus:

“the trial Court rightly in my view decided that the name Dibia Agu given by the appellant in his evidence is a fictitious name brought in to fill the gap that appeared in the testimony of his witness – PW1. For if these names existed, the appellant would not have failed to plead them in his reply to the statement of defence and counter claim faced with the respondent’s giving the name of the person in the amended statement of defence and counter claim”

In NNPC v. FAMFA OIL LTD. (2012) 17 N.W.L.R. (Part 1328) S.C. 148, this Court, while faced with a similar objection to the grounds of appeal, went ahead to deal extensively with the criteria for identifying when a ground of appeal is one of law, of fact, or of mixed fact and law. Rhodes-Vivours J.S.C., at Pp. 175 – 176, Paragraphs C – H, as follows:

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“…. In Nwadike v. Ibekwe (Supra), this Court explained further that:

(a) It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion.

(b) Several issues that can be raised on legal interpretation of deeds, documents, terms of arts and inference drawn there from are grounds of law.

(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law.

(d) Where a tribunal states the law in point wrongly, it commits an error in law.

(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.

(f) If a Judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law…..”

Flowing from the above, I find that the grounds of appeal under review raise issues of law.

I am fortified in my view by this Court’s decision in ENTERPRISE BANK v. AROSO (2014) 3 N.W.L.R.

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(Part 1394) S.C. 256, where it was held as follows:

“…The ground of appeal is not contesting settled facts. What the ground is saying is that the judge made a wrong inference from established facts that are apparent on the record of appeal… What the judge did according to the ground of appeal amounts to failure to ascribe proper weight to relevant materials and established facts… This is a ground of law…”

Having established the competency of the grounds of appeal, the preliminary objection fails in its entirety and it is hereby dismissed.

The Appellants formulated two issues for this Court’s determination, which are as follows:

1. Whether the Court of Appeal below (sic) was justified when it affirmed the judgment of the Court of first instance to the effect that what happened during the time of Ezekpo was an involuntary handover and therefore, Ezekpo was a Regent and the title is reversible no matter how long it lasts.
2. Whether having regards to the pleadings, the evidence, the finding made by the Court of first instance and the parties before the Court of first instance, the decision of the Court of Appeal sustaining

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the judgment of the Court of first instance is sustainable.

Learned Senior Counsel to the Respondent adopted the two issues formulated by the Appellant for this Court’s determination. In my view, both issues are one and the same as the outcome of each is geared towards answering the same question, which is whether the decision of the Court of Appeal sustaining the judgment of the Court of first instance, is correct. I therefore consider the two issues together.

It is submitted for the Appellant that what happened during the time of Ezekpo was not an involuntary handover and that Ezekpo was not a Regent rather he was the Isi-Obi Ezekwuabo. He invited this Court’s attention to Exhibits A, B, N and M as well as the evidence of DW3.

Learned counsel for the Appellant argued that the Respondent did not plead Regency at the trial Court and led no evidence of such.

It is his view that the two lower Courts disbelieved the Appellant’s evidence of Dibia Agu led by the Appellant simply because it did not appear in the pleadings even though facts in relation to him were pleaded.

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Learned Counsel for the Appellant contended that the position taken by

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the trial Court and affirmed by the Court of Appeal, that the Isi-Obi passed to Ezekpo during the minority of the incumbent, hence the Ezekwuabo family encouraged Ezekpo to take it, in order to lead them through the crisis, thereby making Ezekpo a Regent; was speculative and not supported by the evidence on record. He referred this Court to the case of ITESHI ONWE v. THE STATE (1975) 1 ALL NLR (PT II) 16 @ 22.

It is further argued for the Appellant that the evidence of DW3 clearly demonstrates that in the event of Regency, the minor becomes the Obi and as soon as he comes of age, he declares he is of age and he takes the Obiship. If it is refused to him, he reports the matter to the Igwe Nnewi.

Learned counsel invited this Court’s attention to Exhibits A, B, D, M and N and submitted that from the summation of facts and the evidence led at the trial, there was no doubt that the Ezekpo was the Obi and not a Regent and the two Court below, erred in holding otherwise.

He concluded by submitting that in handling the evidence of traditional history, a Court must not substitute its own conjecture in place of evidence. He relied on the case of Sonar Ltd v Nordwind (1987) 3 NWLR (Pt. 66).

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This Court is urged to resolve the issues raised in favour of the Appellant, and allow the appeal.

In response to the above, it is submitted for the Respondent that the crucial determination of this issue is how the Appellant’s ancestor Ezekpo came into the stool. He contended that the Appellant in his pleadings and evidence, while accepting the principle of succession to the Isi-Obl, was not in doubt that none of his lineage had any right under the custom and tradition of Nnewi to become the Obi.

Learned counsel for the Respondent posited that the contest between the parties was on the propriety of the continued run of the Isi-Obi with regards to second son’s (Ezekpo’s) lineage. He contended that the issue of Regency and usurpation which counsel for the Appellant had argued were not pleaded, were duly pleaded in the Respondent’s amended statement of defense. He referred this Court to Paragraphs 11 and 12 of the Respondent’s Amended Statement of Defence, at pages 19 – 20 of the Record, as well as Exhibits N, M, and J in confirming that the Obiship had at all times been in the Respondent’s lineage.

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This Court is urged to resolve this issues in favour of the Respondent and dismiss the appeal.

The pith of this appeal, in the main, is whether the decision of the Trial Court which was affirmed by the Court of Appeal, that the Appellant is a Regent, whose tenure is reversible, no matter how long it took, is as borne out by the Record and evidence adduced at trial.

It is apposite therefore, to look at the pleadings, and the evidence adduced, in the determination of this appeal.

The facts crucial to the Appellant’s appeal are as pleaded more specifically in Paragraphs 11 – 18 of the Appellant’s amended statement of claim, to wit:

11. In Nnewi Town, selection of the Isi-Obi and/or Obi for short of each quarter, sub quarter, village and family, follows the Nnewi traditional patrilineal custom of inheritance. There are however, exceptions to this custom, whereby the person entitled to the Obiship is denied that entitlement. The circumstances are as follows:

(a) where the person entitled to it is a weakling and is incapable of leading the people;

(b) where he committed an abomination like having sexual intercourse with his father’s wife;

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(c) where the person entitled to it voluntarily gives same out.

12. The Plaintiff avers that in Ezekwuabo, the Obiship by custom of patrilineal inheritance, fell on Ezeomu who was the eldest son of Ezekwuabo and after him, on his descendants.
13. The Plaintiff avers that the above was the position until the time of Ezekpo, when Ezekwuabo was faced with series of conflicts by their surrounding neighbors, which really threatened the continued existence of Ezekwuabo.
14. It was at this time and under the then prevailing conditions of uncertainties that the then Obi of Ezekwuabo, a descendant of Ezeomu, feeling that the crisis was beyond his control, handed over his office to Ezekpo who was a great warrior, a strategist and respected by everybody.
15. It was Ezekpo who led his people through the nine wars with their neighbors, the wars were popularly referred to as Mgbu agha teghete.
16. The Plaintiff avers that when the war became very intensive and the challenging, Ezekpo, being a strategist and for strategic reasons, led the Ezekwuabo from their original place of abode to the present place, where they now occupy, having defeated and driven

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away the original inhabitants and re-settled his people.

17. The Plaintiff avers that since then, the Obiship had descended on the descendants of Ezekpo in the following order: Ezekpo, Dim Onyido, Ezeifeukwu, Ndupu Obi and the present Plaintiff, Chief Edmund O. Obi.
18. The Plaintiff avers that the defendant and his successors never had anything to do with the Obiship of Ezekwuabon or do they have any blood relationship with the Plaintiff.

In answer to the above claim, the Respondent pleaded as follows at Paragraphs 11 and 12 of his Amended Statement of Defence and Counter Claim:

11. In answer to paragraphs 11 and 12, the defendant says that the custom as therein stated is generally the practice but in the case of the Plaintiff, the obiship claimed got into his family through an act of USURPATION. The 1st son of Ezekwuabo was Ezeomu who died before his father, consequent upon which the Obiship moved to the next or 2nd son of Ezekwuabo named Ikeogu. In line with the said operative patrilineal custom of inheritance, the obiship after Ikeogu descended to his son, Ezejimofor, who in turn had three sons, Dim Onyenagolum, Dim Ughanwa and Ilodu.

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and Dim Onyenagolum succeeded their father Ezejimofor as Isi-Obi. At the death of Dim Onyenagolum, his 1st son Dim Aguluebo whose turn it was to assume the Isi-Obi of the family was a minor and the Ezekpor (the 1st son of Dim Ughanwa) who was of age at that time stepped in and acted as a Regent. Thence on, the Ezekpo line (of the Plaintiff), usurped the family Isi-Obi by the successions of Eze Ufeukwu (Ukatu), Ezeaghaigbo (Obiadimbugha), Chief Ndupu Obi and now Chief Edmund Obi (the Plaintiff), in that order. The defendant further states that the family Ofo, which is a necessary complement of Obiship status in Nnewi town has through the ages up till present, remained in the Defendant’s Dim Onyenagolum lineage inspite of Ezekpo’s usurpation. By Nnewi custom, if Ezekpo and his successors were entitled to the Isi-obi, each of them would have at the same time officiated over the Ofor Ezekwuabo, which was never the same.

12. Paragraphs 12, 14, 15, 16, 17 and 18 of the Statement of Claim are utterly untrue and hereby denied in the premises of the foregoing paragraphs of defence. Ezeomu’s line never ascended the Isi-Obi of Ezekwuabo for the simple reason that he

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died in the lifetime of or before his father Ezekwuabo. The defendant will contend that the continued run of Isi-Obi in the Ezekpo line of the Plaintiff is contrary to the traditions and custom of Nnewi town community. In particular answer to Paragraph 18, the defendant says that Dim Onyenagolum enjoyed the full measure of his tenure as Isi-Obi of Ezekwuabo and rightfully too and the descent of that office ought to have persisted in his line under the Nnewi customary law, down to the present defendant as indicated above.

The above capture the pertinent paragraphs of the parties wherein they joined issues. For the Appellant, it is his contention that the Obiship was voluntarily handed over to Ezekpo, by one Dibia-Agu, and is not reversible. The Respondent however contends that Ezekpo led the family in wars, at a time when the incumbent (Dim Agulebo) was a minor and thereafter usurped the stool, which now remained with the Ezekpo lineage, over the years, despite the agitation by the Respondent for its restoration.

What evidence was led in proof of these pleadings? In proof of his pleadings, the evidence adduced by PW1, on behalf of the Appellant, inter

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alia, is as follows:

“Ezekpo led the people of Ezekwuabo through the 9 wars because the incumbent then was not able to lead the people. So the incumbent Obi voluntarily gave the mantle of leadership to Ezekpo….. From that time till now, his descendants continued to be the Isi-Obi of Ezekwuabo.

See page 95 of the Record.

According to him, the Obiship of Ezekwuabo did not get to Ezekpo through usurpation. He stated that it was a voluntary handover. During cross examination at pages 122 – 123, he stated as follows:

“the Plaintiff does not descend from Ezemuo…… The descendants of Ezeomu abandoned the obiship. A descendant of Ezekpo who was the obi then handed over the obiship to Ezekpo after many generations. I do not know the name of the descendant who gave away the obiship. I do not know when in Nnewi history this happened. I cannot tell the number of years this happened… The obiship was handed over to Ezekwe family where Ezekpo came from…”

In considering the evidence adduced at the trial, the Court below held as follows:

“………. The Appellant as PW2 gave

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evidence and is contained from pages 128 – 148 of the Record…. He claimed that Dibia Agu of Ezeomu line handed over the Isi-Obiship to Ezekpo because he could not lead his people at the time of the crisis. He however denied the suggestion of any usurpation …. he also admitted the operative principle of primogeniture … under cross examination, the witness admitted that his family (of Dim Ughanwa) was never entitled to the stool of Obiship under the Nnewi customs and traditions. He repeated this admission in his evidence ….where he said: “I agree that my lineage falls into the second son’s position in Ezekwuabo because Ezekwe is the second son while Ezeomu was the first son…” on the alleged surrender or handing over the evidence of PW2 …was to the effect that there is no record anywhere in Nnewi history saying that Dibia Agu who they claim to have handed over the obiship to Ezekpo ever existed, especially in the light of the recorded history of Nnewi town by Dr. Alutu which was tendered by PW1 as Exhibit C. From the record of evidence of defence, it is shown that DW1 and DW2 gave evidence for the

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Respondent. DW1 …..at page 156 thereof said:

“It is in evidence that Agulebo was entitled to the Obiship but because he was a minor, Ezekpo took over the obiship as a Regent. Agulebo later became of age. He took the Ozo title when he came of age. During his life time, Agulebo made attempts to get it back (the Obiship) from Ezekpo but Ezekpo threatened to kill him.”

DW2 confirmed the evidence of DW1 this:

“When Dim Onyenagolum died, his first son who should have succeeded him was a minor. Ezekpo, the son of Dim Ughanwa was acting as Regent for Dim Agulebo, the minor. When Dim Agulebo grew up, he asked for the Obi to come back to him as it belongs to him; Ezekpo refused to return the obiship to Dim Agulebo and threatened to kill him. Since then, we have been demanding for the Isi Obi or Obi till the time of Ezekpo’s son called Ukatu or Ezeifeukwu. We continued to demand it till the time of Ezeaghaigbo, the son of Ezeifeukwu. Ezeifeukwu was the first son of Ezekpo. The witness then tendered Exhibit J to buttress that trend. Continuing his evidence, DW2 said;

“Edmund Obi is now the Isi Obi of Ezekwuabo because he descends from the

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second son of Ezekwuabo. But they snatched the Isi-Obi from us. They usurped it from us……”

The last defence witness was DW3, who was the representative of the traditional Ruler of Nnewi, HRH Igwe Orizu III, and whose evidence on this score was most instructive …. the witness outlined the general applicability of Nnewi community customs and traditions governing succession to the Isi Obi. The origin and the true purport of Exhibit A was explained by the witness to confirm the fact that the Ezekpo intervention was a usurpation of power. The witness was however taken to task in cross examination on a letter he wrote dated 21/1/97, pertaining to this matter, and his explanation was that those views were the personal views he held until the crucial determination/pronouncement of the Igwe of Nnewi council on a similar issue…… it is important to note that from the pleadings of the parties, the Respondent named the person (in his amended statement of defence and counter claim) from whom Ezekpo got the mantle of leadership of Ezekuabo, as Dim Agulebo, while the Appellant, even in his amended reply to the statement of defence and

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defence to counter claim failed to plead the name of this important person in their history. PW1 admitted under cross examination that he did not know the name of this person and did not even know any of the sons or descendants of this Ezeomu who was alleged at one time to be the Isi-Obi…… The Appellant however, in his evidence not only gave the name of this person (Ezeomu) but also named his descendants who, at one time or the other, were Isi-Obi of Ezekwuabo. These names as important as they are, did not appear, not even in the Reply to the Respondent’s amended statement of defence and counter claim. On this ground, the trial Court, rightly in my view, decided that the name Dibia Agu given by the Appellant in his evidence is a fictitious name brought in to fill the gap that appeared in the testimony of his witness – PW1. For if these names existed, the Appellant would not have failed to plead them in his Reply to the statement if defence and counter claim faced with the Respondent’s giving the name of the person in the amended statement of defence and counterclaim….. The Trial Court, on the totality of the evidence of the parties

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adduced before it, prefers and accepts the evidence given for the Respondent by DW1 and DW2, because they are consistent with the pleadings of the Respondent. It decided that the said Ezekpo got the title of Isi-Obi from Dim Agulebo. I also hold so… The Trial Court in conclusion decided that Ezekpo had taken over the mantle of leadership as a regent. This conclusion is supported by the evidence of DW1 and DW2. This conclusion in my view, is right, and I so hold…. In its judgment, the trial Court decided that what happened during the time of Ezekpo was an involuntary handing over. Being so, Ezekpo was therefore a Regent and the title is reversible no matter how long it lasts … ”

See pages 418 – 421 of the Record

This is the thrust of the judgment of the trial Court, which was affirmed by the Court below.

I agree with the Justices of the Court below that the Trial Court’s decision, is unimpeachable. The reasoning and conclusions arrived at in determining the veracity of the evidence of traditional history is above board. I find these concurrent decisions of the Trial Court and the Court below, to be in consonance

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with evidence (both oral and documentary), adduced at the trial.

The Appellant herein has canvassed that the Court below misdirected itself and failed to advert to the principles governing the resolution of conflicting account of traditional history. According to him, the trial Court, having found the evidence of traditional history on both sides, inconclusive and unsatisfactory, and as affirmed by the Court below, the decision in KOJO II v. BONSIE (1957) 1 WLR 122 will be applicable.

The principle in KOJO II V. BONSIE establishes that where there is conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. The best way is to test the traditional history by reference to the fact in recent years as established by evidence and see which of the two competing histories is more probable.

In line with the principle of law enunciated above, the Trial Court after considering the evidence adduced held, and the Court of Appeal affirmed as follows:

“…. On issues of traditional history, recent realities and practices seem to me to be better sign posts or guides to the truth. That was why I

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decided therefore to consider other parameters which were pleaded and extensively contested during the trial, apart from genealogy. I considered the issue of Ofo and held that the Plaintiff is the holder of Ofo Ochichi of Ezekwuabo being the incumbent Isi Obi. I also held that Nathan Nwangwu holds the more important Ofo Ogwugwu Ezekwuabo. I finally held that in Ezekwuabo, the defendant is entitled to two parts of cow in Ezekwuabo, one of which can only go to an Okpala.”

I find that the Court below did not misdirect itself but properly evaluated the evidence on record.

The fundamental thing to be considered in this issue is whether on the preponderance of evidence adduced by three Respondent’s witnesses and exhibits tendered, the Respondent has satisfied the provisions of the law worthy of the reliefs sought for in the counter claim, granted by the Trial Court and affirmed by the Court below.

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It is the duty of the Trial Court to assess the evidence adduced by the parties. This pragmatic concession is based on the fact that only the Trial Court has the advantage of seeing the witnesses, assessing their demeanor while testifying. See the case

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of MAGAJI & ORS v. ODOFIN & ORS (1978) 4 SC P. 91.

In line with the above, the testimony of DW3 is most instructive.

According to him, the mere fact that a warrior within a family took over to lead in a war would not automatically work to shift the Isi Obi line of the family to such a warrior. At his examination-in-chief, he testified inter alia thus:

Q – How many principal chief priests officiate Okwu Oyo?

A – Six of them with their ofos. The Igwe is also there.

Q – What role does Okonkwo Nwangwu play?

A – He presents the Ofo Ogwugwu Ezekwuabo.

Q – That ofo is Ogwugwu Ezekwuabo?

A – Yes

Q – Does the Plaintiff in this case have any function in this ceremony?

A – I have not seen him perform any under cross examination

Q – Under your custom, you agree that if an okpala is a weakling, or commits an abomination, the Isi Obi can shift. Do you agree?

A – If there is an abomination, the man has to say so, until then, there is no abomination.

Q – I suggest to you that it was because Ezekpo led his people in war that he became the

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Isi Obi?

A – It is not true. Many warriors In Nnewi never became Isi Obi of their various families.

Q – You are aware that power shifted to the Plaintiff family in the instant case?

A – I am not aware that power shifted in the instant case.

On a question from the Court on his evidence on power shifts:

Q – What is the position now?

A – What I know is that power never shifted from Dim Onyenagolum family to Dim Ughanwa’s family.

Further under cross-examination:

Q – Under your custom, if a minor is entitled to an obi, can that be allowed?

A – Yes, but a Regent is appointed to assist him.

Q – Who is then in possession of Obi Ochichi?

A – The minor

Under re-examination

Q – You referred to ofo ochichi and ofo Ezekwuabos, do you know where they are now?

A – They are with Dim Onyenagolums who bring it out during ceremonies.

Q – Where is it now?

A – The ofos are with Dim Onyenagolums family in their Obi.

These pieces of evidence adduced at the trial establish the averments in Paragraph 11 of the

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Amended Statement of Defence and Counter Claim of the Respondent that:

11. In answer to paragraphs 11 and 12, the defendant says that the custom as therein stated is generally the practice but in the case of the Plaintiff, the obiship claimed got into his family through an act of USURPATION. The 1st son of Ezekwuabo was Ezeomu who died before his father, consequent upon which the Obiship moved to the next or 2nd son of Ezekwuabo named Ikeogu. In line with the said operative patrilineal custom of inheritance, the obiship after Ikeogu descended to his son, Ezejimofor, who in turn had three sons, Dim Onyenagolum, Dim Ughanwa and Ilodu, and Dim Onyenagolum succeeded their father Ezejimofor as Isi-Obi. At the death of Dim Onyenagolum, his 1st son Dim Aguluebo whose turn it was to assume the Isi-Obi of the family was a minor and the Ezekpor (the 1st son of Dim Ughanwa) who was of age at that time stepped in and acted as a Regent. Thence on, the Ezekpo line (of the Plaintiff), usurped the family Isi-Obi by the successions of Eze Ufeukwu (Uketu), Ezeaghaigbo (Obiadimbugha), Chief Ndupu Obi and now Chief Edmund Obi (the Plaintiff), in that order. The defendant

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further states that the family Ofo, which is a necessary complement of Obiship status in Nnewi town has through the ages up till present, remained in the Defendant’s Dim Onyenagolum lineage inspite of Ezekpo’s usurpation. By Nnewi custom, if Ezekpo and his successors were entitled to the Isi-obi, each of them would have at the same time officiated over the Ofor Ezekwuabo, which was. never the same.

I agree with the decision of the Trial Court, and as affirmed by the Court below that the Respondent established his case. The Trial Court believed the testimony of DW3 and held that he was a witness of truth.

The Appellant herein has argued that the Respondent’s counter claim had been extinguished since the time of Ezekpo, many generations ago, by virtue of SECTIONS 12(C) and 36 of the ACTIONS LAW, CAP 3, LAWS OF ANAMBRA STATE OF NIGERIA 1991. He contended that the Court below lacked the requisite jurisdiction to grant reliefs claimed by the Respondent, in a suit to which members of the Ezekwuabo village are not parties.

The Respondent in opposition, stated that the issues of limitation of action, joinder of parties, fair hearing and onus of proof,

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are issues not canvassed at the trial Court, or at the Court of Appeal. Being fresh issues therefore, leave of this Court is required to raise them and failure to obtain the leave of this Court, is fatal to the issues raised.

Order 6 Rule 5 (b) Rules of the Supreme Court is a rule designed to ensure that this Court has the benefit of the opinion of the Lower Court on issues before volunteering its final and determinative decision on them hence, where such issues were not canvassed before the Lower Court, this Court would generally, not be disposed to allow an Appellant to take them before it for the first time.

This is the rationale for the prescription that a party who seeks to file and argue a fresh issue, which was not canvassed at the Lower Court, whether the issue pertains to law or procedure, must seek and obtain the leave of this Court first else such an issue must be struck out. See: CORPORATE IDEAL INSURANCE LTD. v. AJAOKUTA STEEL COY LTD AND ORS (2014) LPELR 22255 (SC) 23 – 24; G – C, OBIAKOR AND ANOR v. THE STATE [2002] 10 NWLR (PT. 776) 10

​From my perusal of the record, I am minded to endorse the submission of the

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Respondent’s counsel that Ground Three, neither emanated from the decision of the Lower Court nor from that of the trial Court. In effect, the issue of the Action Laws of Anambra State, which derives from that Ground is a fresh issue before this Court – it was not canvassed either before the Lower Court or before the trial Court. Worse still, the Appellant did not seek leave to canvass it before this Court. Need I remind the Appellant’s counsel that it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, as he tried to do in this appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out.

In effect, where, as in this appeal, there has been no leave sought and obtained by the Appellant to argue his new issue, and there are no special circumstances disclosed to warrant it being entertained, such a new issue would be incompetent and liable to be struck out by this Court.

The Appellant has not disclosed any special circumstances to warrant the introduction of the new issue. Regrettably, the fresh issue in this appeal is

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caught by the prescription, eloquently, enunciated in cases cited above and must therefore fail.

Consequently, I find that this appeal is devoid of merit, and must be dismissed. I accordingly dismiss it.

The judgment of the Court of Appeal, affirming the decision of the Trial Court, is hereby affirmed.

Parties to bear their respective costs.

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SC.242/2008