Ogbero Egri v. Ededho Ukperi (1973)
FATAYI-WILLIAMS, J.S.C.
This case originated in the Oleh Customary Court in the Mid-Western State of Nigeria where the plaintiff (now respondent) claimed against the defendant (now appellant) as follows:
“Return of plaintiff’s wife called Lucky Onumerulu Ukperi detained at Emede by the defendant since December, 1968, despite demands for her return.”
It is common ground that Lucky Onumerulu Ukperi is the daughter of the defendant who disputed the claim in his testimony before the Customary Court. After considering all the evidence adduced before it, the Customary Court made the following observation with respect to the testimony of the plaintiff and his witnesses:
“It is court’s opinion that before marriage can be established according to Isoko general custom, consent of the girl and the parents must be first of all sought and gained by son-in-law for some number of days through a middleman or representative who must be a native or chief of the area with which the plaintiff pretended to marry.
The bride price must be fixed properly accompanied with big ceremony of drinks. Over 10 to 15 years ago, marriages in Isoko are always represented by Union members or good representative of the village. The village in which the plaintiff claims to have been married is no exception. Court did not believe plaintiff’s story in that he negotiated for the girl personally.
Court is also in doubt of the 1st witness statement as he is a friend from Uhio in Udu Clan to represent plaintiff in such ceremony. Bride prices for Isoko since over 7 years has been reduced to 60 pounds and not 120 pounds as plaintiff stated. The area in which the plaintiff claim married was even reduced to 40 pounds. It is a clear matter that little addition must be made to strangers and not double it to be 120 ponds as alleged by the plaintiff. The varieties in which the instalments were paid are questionable, Le. 60 ounds, 40 pounds and 20 pounds for only a distance of one month. The plaintiff failed to ask for a written document for all these fabulous amounts he spent in so called marriage.”
The court then dismissed the plaintiff’s claim after finding finally as follows:
“The plaintiff did not show cause why he failed to gain consent from the girl nor her parents or why no representative from the town and no other middleman from outside except his member of his family. There is no evidence adduced to establish marriage or to pay that heavy amount of 120 pounds for a lady he doesn’t like.”
The plaintiff then appealed against this decision to the Magistrates’ Court, Oleh. The learned Magistrate, after hearing arguments, dismissed the plaintiff’s appeal and confirmed the decision of the Oleh Customary Court.
Still dissatisfied with the decision, the plaintiff appealed to the Ughelli High Court. The only ground of appeal filed and argued before the High Court was that the judgment was against the weight of evidence. In a reserved judgment allowing the appeal, the learned judge observed as follows:
“It is important at this stage to state that the essence of a claim for return of wife in a Customary Court is to determine the validity of the marriage contracted under the particular customary law and practice prevalent in that area when a wife fails or refuses to return to the husband. Such claims are justifiable and the general opinion of the judges in this area is that it is impossible to limit by construction the beneficial jurisdiction of the Customary Court to grant a sort of mandatory relief to a husband against the parents of the wife where it is just and convenient to do so. When such a relief is granted and the parents fail to return their daughter to the husband on any ground, the only right open to the aggrieved husband is to claim a refund of the bride price as the Customary Court cannot enforce the observance of the order. The court cannot compel a wife to return to her husband as any attempt to do so will be an infringement of her fundamental rights under the Constitution of this country. ” After stating that the customary court did not sufficiently and properly evaluate the whole evidence before it before entering judgment for the defendant, the learned judge finally found as follows:
“It is my view that the Oleh Customary Court did not properly take advantage of seeing and hearing the witnesses in this case and I consider that the whole evidence was at large before the learned Magistrate on which he could form an independent opinion. I am satisfied in my mind that both the Customary Court, Oleh and the learned Magistrate were certainly wrong in holding that no marriage was validly negotiated and concluded between the appellant and respondent’s daughter. In my view, when the bride price was fixed and paid and the girl was escorted to the house of the appellant a valid marriage under native law and custom was contracted. In no part of its judgment did the Customary Court ever state why the appellant had decided to initiate these proceedings against the respondent. On a proper assessment of the evidence given in the case, judgment should have been entered for appellant in the Customary Court. It is therefore my judgment that the appeal succeeds, and the plaintiff’s claim against the respondent for the return of his wife Onumerulu is hereby allowed.”
The learned judge then ordered that the bride price which he then proceeded to fix arbitrarily at 100pounds should be refunded to the plaintiff. The reason which he gave for making this order is:
“to avoid another action being instituted by the appellant against the respondent, especially when it is shown that the panel of the Customary Court, Oleh, which entered judgment for the respondent, has not changed and there is the likelihood of a conscious bias by that Court against the appellant in the amount of the bride price to be refunded to him.
He then observed that it would be difficult to get an unbiased evidence if the appellant should again go to the Oleh Customary Court to ask for his bride price. After setting aside the concurrent judgments and orders of both the Oleh Customary Court and the Oleh Magistrates’ Court, the learned judge finally ordered that;
“1. The respondent is to return the appellant’s wife, Lucky Onumerulu Ukperi to the appellant at Iyede within thirty days from the date of judgment.
- On the failure of the respondent to return the said woman to the appellant within the time herein stated, the respondent shall pay the sum of 100pounds to the appellant which is refund of the bride price paid by the appellant to the respondent for the respondent’s daughter which he gave in marriage to the appellant.” In the appeal now before us against this judgment, a number of complaints were made by the learned counsel for the defendant/appellant. Firstly, it was contended that the learned trial judge was in error in ordering payment of the bride price of 100pounds when no claim for payment of that amount was made even in the alternative. Secondly, the learned judge did not explain how he arrived at the amount of 100pounds especially as the case of the defendant/appellant in the Oleh Customary Court which that court accepted, was that there was no marriage and that the question of repayment of bride price could not, therefore, have arisen in the circumstances. Thirdly, it was submitted that the learned trial judge should not have substituted his own view of the customary law of the area for that of the Oleh Customary Court which heard all the witnesses and which is empowered by the provisions of section 6 of the Mid-Western State Customary Courts Edit (No. 38 of 1966) and of Order 10 rule 6 (5) of the Customary Courts Rules, 1966 (M.N.L.N. 37 of 1967) made thereunder, to state what is the appropriate customary law applicable without evidence being adduced. Lastly, learned counsel pointed out that since the only ground of appeal argued before the learned judge was that which complained that the judgment was against the weight of evidence, it was not open to the learned trial judge to state what he believed to be the appropriate customary law and then to proceed, albeit erroneously, to apply it.
For the plaintiff/respondent, learned counsel conceded that, ordinarily, the view of the customary court in the area as to the appropriate customary law should have prevailed, but submitted, nevertheless, that having regard to the evidence adduced in support of the plaintiffs case at the trial, the learned judge was quite in order in stating that the customary court did not take advantage of seeing and hearing the witnesses particularly as there was detailed evidence as to the ceremony of marriage. For this reason, learned counsel then urged us not to disturb the findings of the learned judge.
There are many disturbing observations and conclusions in the judgment of the High Court in this case. In the first place, the learned judge seemed to have completely overlooked the provisions of sections 6 (1) (c), 22 (a), 23 (3) (b) and 23 (5) of the Customary Courts Edict of the Mid-Western State (No. 38 of 1966). Moreoever, he did not appear to have adverted to the provisions of Order X rule 6 (3) and (5) of the Customary Courts Rules which were made by virtue of the powers conferred on the Chief Justice of the Mid-Western State by section 69 of the said Edict. If he had taken time to consider the scope and implications of the provisions of the above Edict and of the Rules made thereunder, he would have realised that in the circumstances of the case in hand and having regard to the fact that the customary court for the area is the Oleh Customary Court, the view of that court as to the appropriate customary law, subject only to certain exceptions, which do not apply here, is paramount. For ease of reference, the provisions are reproduced hereunder.
It is provided in section 6 (1) (c) of the Edict as follows: “6 (1). A person shall not be qualified to hold office as President or member of a Customary Court unless.
(c) he is a native of the area of jurisdiction of the Customary Court.” Following this are the provisions of section 22 (a) which read
“22. Subject to the provisions of this Edict, a Customary Court shall administer
(a) the appropriate customary law specified in section 23 in so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force.”
The relevant portion of section 23 to which reference is made above provides, inter alia, that in civil causes and matters where the parties are natives of the area of jurisdiction of the court, the appropriate customary law shall be the law of the area of jurisdiction of the court. Sub-section (5) of the same section 23 also provides that
“(5) Evidence of customary law shall be adduced in a customary court in all such cases as may be provided in the Rules made under secion 69.”
The appropriate rules made under section 69 will be found in Order X rule 6 paragraphs (3) and (5) of the Customary Courts Rules which read:
“6 (3) Where in any cause or matter before a customary court any party wishes to rely on the customary law of the area of jurisdiction of the court there shall be no need to prove the customary law before the court.
(5) Any customary law which the court in its judgment states to be the appropriate customary law shall subject to the provisions of section 22 (a) of the Customary Courts Edict 1966 be presumed to be correct until the contrary is proved except where the stated customary law conflicts with any previous subsisting judgment of the High Court or the Supreme Court. ”
The effect of the above provisions of both the Edict and the Rules made thereunder is that the finding of the Oleh Customary Court as to what is the customary law of marriage in force in its area of jurisdiction is presumed to be correct until the contrary is proved either by conclusive evidence or by a previous subsisting judgment of either the High Court or the Supreme Court. The trial Court’s view of the customary law of marriage was confirmed by the Oleh Magistrates’ Court. Without any shred of evidence or proof before it to the contrary, and without any reference to any particular and subsisting decision of the High Court or of the Supreme Court, the learned judge set out on a voyage of discovery which ended by his finding, without any scintilla of evidence or authority in support, that the President and members of the Oleh Customary Court were in error in stating what the Isoko customary law of marriage is and in holding that there was no marriage in accordance with that customary law between the plaintiff/respondent and Lucky Onumerulu Ukperi. We think that the learned judge was in error in substituting, without any justification whatsoever, his own statement of the customary law for those of the Oleh Customary Court, who, as we have shown above, is presumed to know what the law is and to state it without requiring that any evidence should be led before it to that effect.
Furthermore, we agree with the submission of the learned counsel for the defendant/appellant that, as the only ground of appeal argued before him was that which stated that the judgment was against the weight of evidence, it was not open to the learned judge to give effect to what he considered to be the appropriate customary law.
We also think that what the learned judge referred to as a proper evaluation of the evidence adduced before the customary court was, in fact, not an evaluation, but a clear substitution of his own views for the views of the customary court which saw and heard the witnesses. As we have stated on a number of occasions, it is not the business of a court of appeal to substitute its own views for the views of the trial court which is in a much better position to assess the credibility of all those who testified before it. In the case in hand, the Oleh Customary Court, in the course of making its findings of fact, has rejected the testimony of the plaintiff/respondent and his witnesses as to his marriage to Lucky Ukperi; that should have been the end of the matter and the learned judge should not have allowed that issue to be reopened before him, let alone consider it. As we have pointed out in Ogundulu & ors. v. Chief Emmanuel Olabode Phillips & ors. (1973) 2 SC. 71 at p. 80, the duty of appraising evidence given at a trial is preeminently that of the trial court which saw and heard the witnesses. It is the right of that court to ascribe values to such evidence; therefore, a court of appeal may not disturb a judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by the evidence rightly accepted by that court.
The learned judge, in our view, was also in error in awarding the sum of 100 pounds as bride price to the plaintiff/respondent. In the first place, we do not think he has any right, having regard to the claim before the trial court and to the basis on which the claim was resisted, to make an order which the plaintiff/respondent neither asked for nor canvassed at the hearing. Secondly, in proceedings, before a customary court, an order for the repayment of bride price or dowry, assuming that one was paid by the husband (and the Oleh Customary Court found that none was paid in the instant case), is usually made subsequent to an order for the dissolution of a customary marriage. Here, there is no claim for the dissolution of the marriage. On the contrary, the plaintiff/respondent’s claim throughout is for the return of his “wife” to him.
There was no other claim in the alternative. That being the case, we do not see how, in the absence of any finding, that there was a marriage and of any order dissolving the marriage, an order for repayment of any sum paid as bride price can be made. To say the least, we are also rather perturbed by the observation of the learned judge that he made the order for the refund of the bride price instead of sending the case back to the trial court because there was a likelihood of bias on the part of the Oleh Customary Court.
There is not a shred of evidence in support of this observation which seems to us to be indicative of a solution looking for a problem. Any allegation of bias or likelihood of bias is very serious and should not be made lightly particularly by a court of appeal which has the power and, indeed the duty, in appropriate cases, to order that the case be retried by another court without giving any reasons for the desirability of a change of venue.
There is one final point. In the course of his judgment, the learned judge observed that any attempt by the court to compel a wife to return to her husband would be an infringement of the wife’s fundamental right guaranteed by the Constitution of this country. He, nevertheless, proceeded to order the return of the defendant’s daughter to the plaintiff/respondent. However, as this point was neither raised nor canvassed before him, we think that his views should not have been so crystalised. For our part, all we can say, and we will put it no higher than that, is that it is arguable whether any order, whether made by a customary court or by any other court, that a wife should return, against her will, to her husband would not be inconsistent with her freedom of association as guaranteed by the provisions of section 26 (1) of the Constitution of the Federation. It is also arguable whether such an order would not be contrary to the principles of natural justice, equity and good conscience. However, as these points were not argued before us in this appeal, we do not propose to express any views about them.
Be that as it may, we came to the conclusion, for the reasons, which we now give earlier in this judgment, that the judgment of the learned judge should not be allowed to stand. We therefore allowed the appeal of 13th November, 1973 and set aside the judgment in Suit No. UHC/13A/70 delivered in the Ughelli High Court on 29th December, 1970 including the order made therein as to costs. The judgment of the Oleh Customary Court in Suit No. OCC/99/69, delivered on 23rd September, 1969 wherein the plaintiff/respondent’s claim was dismissed, and which was later confirmed by the Oleh Magistrates’ Court in Suit No. MCO/29A/69 on 21st September, 1970 including the order for costs made by this court is restored.
The sum of 100 pounds (N200.00) which the learned judge ordered the defendant/appellant to pay to the plaintiff/respondent as bride price, if already paid, should be refunded to the defendant/appellant within thirty days.
Costs in favour of the defendant/appellant are assessed in the High Court at N63.00 (sixty-three Naira) and in this court at N123.00 (one hundred and twenty-three Naira).
Other Citation: (1973) LCN/1663(SC)
