Rev. Paul Nwachukwu Ohakpougwu V. Callistus Iwuji & Anor (2016) LLJR-CA
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PETER OLABISI IGE, J.C.A.
This appeal is against the Judgment of Customary Court of Appeal delivered on the 28th day of February, 2007.
The Appellant as Plaintiff had on 3rd day of March, 1995 instituted an action CCA/AH/15/95: REV. PAUL NWACHUKWU OHAKPOUGWU VS. CALLISTUS IWUJI and Another at the AHIAZU MBAISE CUSTOMARY COURT wherein he claimed against the Defendants now Respondents for the following reliefs viz:
CLAIM
The Plaintiff claims against the defendants as follows:
1. Declaration of the Honourable Court that the Plaintiff is the person entitled to the customary right of occupancy over and in respect of those five (5) parcels of land known as and traditionally called:
(i) Ala Uhu Egbu (comprising of 4 portions thereat);
(ii) Ala Owerre;
(iii) Ala Ulo Ohakpuugwu (comprising of 4 portions thereat);
(iv) Ala Ogidid-Ala- Duru Owerri (comprising of 2 portions thereat);
(v) Ala Nkukoro (comprising of 2 portions thereat); all being situate and lying at Umulolo Ihitte Ubi, Ahiazu Mbaise within the jurisdiction of this Honourable Court.
2. N500.00
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being damages for trespass committed by the said defendants upon the said lands.
3. Perpetual Injunction, restraining the defendants, their heirs, assigns, privies, workmen, agents, representatives and/or servants from entering into the lands or any of them or repeating any act of trespass therein.?
The said Customary Court found in favour of the Appellant as follows:
?JUDGEMNT: Based on evidences before this Court on this matter, Court has found out that there was no remarriage of Mrs. Cyrina DW2 by late Sylvester Amajuoyi Ohakpougwu.
2. There was no valid, authentic ?WILL? made for DW2 and women do not inherit their husband, talk less of an illicit lover.
3. Evidence before this Court on this matter prove that the Plaintiff is the rightful person to inherit late Sylvester Amajuoyi without a wife or even male issue. Court hereby orders that the Plaintiff is entitled to his Customary Right of Occupancy of the lands mentioned in his writ above;
1. Ala Uhu Egbu (four portions).
2. Ala Owerre.
3. Ala Ulo Ohakpougwu (four portions).
4. Ala Ogidi Ala Duru Owerre (2 portions).
5. Ala Nkukoro (2
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portions).
Perpetual Injunction restraining the defendants, their heirs etc. from trespass. The defendants are to pay the Plaintiff three hundred naira for trespass committed upon the said lands by the defendants. After reading the judgment, the defence counsel gave a Notice of Appeal.
Signed:
(1) C. C. Nwagwu (JP) (Chairman)
(2) A. A. Enwere (JP) (Member)
29th September, 2004.?
The Respondents (Defendants at Customary Court) appealed to the Customary Court of Appeal Imo State Nigeria vide their Notice of Appeal filed on 18th day of October, 2004. The said Notice was amended at the Lower Court and the grounds of appeal to the Court below was increased to five grounds which are as follows:
?GROUNDS OF APPEAL:
1. ERROR IN CUSTOMARY LAW
The Customary Court erred in law when it awarded lands belonging to the 2nd Appellant?s 1st husband and those belonging to late Sylvester Amajuoyi all to the respondent.
PARTICULARS OF ERROR
The 2nd defendant was first married to one Iwuji Chukwuocha. After the death of the said Iwuji Chukwuocha, she allegedly remarried one Sylvester Amajuoyi, the
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husband?s cousin. After the death of Sylvester Amajuoyi, the appellants (mother and son) were in possession of both the lands of Iwuji Chukwuocha and Sylvester Amajuoyi. The Respondent sued for all the lands in possession of the Appellants claiming that he is the rightful person to inherit Sylvester Amajuoyi. The Court disinherited the Appellants by awarding all the lands including that of Iwuji Chukwuocha to the Respondent.
2. ERROR IN CUSTOMARY LAW
The Customary Court erred in law when it held that the Customary WILL of Sylvester Amajuoyi is not binding, it held: ?onye nwuru anwu kee oke ndi din du ekegharia ya?.
PARTICULARS OF ERROR
Late Sylvester Amajuoyi, at the gathering of his kinsmen, declared that the Appellants should bury him and at his death should inherit him. Pursuant this oral will, the appellants buried the said Sylvester Amajuoyi and performed all the traditional rites and thereafter took possession of his landed property. The Court by its judgment denied the Appellants the lands of Sylvester Amajuoyi under his WILL, after they had buried Sylvester Amajuoyi as decreed of the WILL.
3. ERROR IN CUSTOMARY LAW
The Customary Court erred in Customary Law when it held that none of the defence witnesses mentioned the oral WILL of late Sylvester Amajuoyi in evidence.
PARTICULARS OF ERROR
Despite the abundant evidence in Court of DW1, DW2 and DW3 to the fact that late Sylvester Amajuoyi declared that the 2nd Appellant and her son, the 1st Appellant, should bury him when he dies and inherit him at death, the Court held that none of the defence witnesses mentioned the oral WILL in evidence.
4. ERROR IN CUSTOMARY LAW
The Customary Court erred in Customary Law when it held: ?Even DW2 and DW3 never mentioned re-marriage in their evidence. Therefore this evidence is not corroborated with any evidence of the witnesses?.
PARTICULARS OF ERROR
The DW2, both in evidence in Chief and under cross-examination, gave evidence in support of the marriage of the 2nd Appellant to late Sylvester Amajuoyi. The Court of trial could not therefore rightly say that DW1?s evidence of re-marriage was not corroborated.
5. ERROR IN CUSTOAMRY LAW
The Customary Court erred in Customary Law when it omitted from the Records
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evidence of witnesses favourable to the Appellants.
PARTICULARS OF ERROR
The evidence of 2nd Appellant on Oath at the Locus with regard to ALA UHU EGBU was omitted from the records.
The confirmation, on Oath, of the 2nd Appellant?s evidence by DW2 with regard to this Ala Uhu Egbu was omitted from the Records.
Again the evidence on Oath by Nze Sylvanus Njoku with regard to Ala OWERRE was omitted from the Records and likewise other pieces of evidence favourable to the Appellants?.
The appeal was duly heard by the Lower Court which set aside the judgment of the aforesaid Customary Court Ahiazu, Mbaise on the 28th day of February, 2007.
The Lower Court found against the Appellant thus:
?In the final analysis this appeal succeeds in its entirety. I make the following Orders:
(1) The Judgment of the Lower Customary Court Ahiazu, Mbaise holden at Afor- Oru delivered on 25/5/2004 is hereby set aside. (sic)
(2) The Appellants who have been in possession of all the lands mentioned in the Writ excluding Ala Ogidi- Ala Duru Owerri. Shall remain the Customary Owners in possession.
(3) That the Respondent,
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his agents, privies, relations or those acting on his behalf are perpetually restrained from ever entering Ala Uhu Egbu
(2) Ala Owerre.
(3) Ala Uzo Ohakpugwu.
(4) Ala Nkukoro all being situate and lying at Umulolo Ihitte Ubi Ahiazu Mbaise.
I assess costs of N10,000.00 (Ten Thousand Naira) against the Respondent in favour of the Appellants.?
Aggrieved by the above decision of the Customary Court of Appeal, the Appellant appealed to this Court vide his NOTICE OF APPEAL dated 5th day of March, 2007 and filed on 6th day of March, 2007 containing five grounds as follows:
?3. GROUNDS OF APPEAL
(i) The Learned Customary Court of Appeal erred in law when it gave judgment to the Respondents herein when all their grounds of Appeal were deemed abandoned.
PARTICULARS OF ERROR
(a) The Respondents as Appellants in the Lower Court filed 5 grounds of appeal.
(b) The Respondents did not proffer any argument in support of any of the grounds.
(c) Grounds which have no argument in support is deemed abandoned.
(d) It is not duty of Court to proffer arguments for parties.
(ii) The Customary Court of
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Appeal erred in law when it assumed jurisdiction to hear and determine this Appeal despite the grounds of Appeal being incompetent.
PARTICULARS OF ERROR
(a) The jurisdiction of Customary Court of Appeal over decisions of the Customary Court lies only on questions of Customary Law vide S. 282(1) CFRN? 1999.
(b) None of the 5 Grounds of Appeal raised by the Respondents herein borders on question of Customary Law.
(iii) The Customary Court of Appeal erred in law when it allowed ground 5 of the Respondents? appeal when the ground questioned record of appeal.
PARTICULARS OF ERROR
(a) An Appeal Court is bound by the record of Appeal on the printed record as compiled and forwarded to it by the Lower Court.
(b) Party seeking to impeach the record has to depose to an affidavit not mere argument in the brief.
(c) The Respondents herein did not file an affidavit to impeach the record but raised same in their brief.
(d) The Court below relied on this substantive irregularity to up turn the sound judgment of the trial Customary Court.
(iv) The Customary Court of Appeal erred in law when it was not dispassionate
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in its judgment.
PARTICULARS OF ERROR
(a) A Court should be an impartial arbiter.
(b) A Court should hear both sides of the cases before it in order to arrive at a decision.
(c) The Lower Court only considered the brief of the Appellants (Respondents herein) without considering the issues raised by the Respondent (Appellant herein) in arriving at its decision.
(d) The Court without any evidence held that the Appellant herein is planning to forcefully snatch the land of a widow from her.
(v) The Customary Court of Appeal erred in law when it without any compelling evidence and/or facts on record displaced the dispassionate decision of a Customary Court on facts.
PARTICULARS OF ERROR
(a) The Customary Court has the singular privilege of hearing and listening to the parties.
(b) The Customary Court found out as a fact that there were neither re-marriage between the 2nd Respondent and one Sylvester Amajuoyi nor that the land belong to Barnabas Iwuji.
(c) The Customary Court also found out on fact and evidence that there was nothing like Customary WILL nor Oath taking by the 2nd Respondent (being against the custom
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of Mbaise people).
(d) The Lower Court (Customary Court of Appeal upturned those finding of facts without any reason.
The Appellants Brief of Argument which is not dated was filed on 13th day of August, 2008 but was deemed properly filed on 5th day of November, 2012. There is no evidence on record showing that the Respondents filed Brief of Argument. The appeal came up for hearing on 17th day of February, 2016 when the Learned Counsel to the Appellant adopted the Appellants Brief.
I must say that the failure of the Respondents to file a Respondents Brief of Argument does not put the Appellant at an advantage. The Appellant must still show in his Brief of Argument that there is strength in his appeal to enable this Court set aside the judgment of the Imo State Customary Court of Appeal delivered on 28th day of February, 2007. See:
(1) STABILINI VISION 1 (NIG) LTD. VS. SANDER- ON VENTURES LTD. (2011) 8 NWLR (PART 1249) 258 at 272 H to 273 A per OKORO JCA now JSC who said:
Let me quickly add that it is not the Law that where a Respondent fails to file his brief, judgment must be entered for the Appellant,
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for be it, An Appellant in such circumstance still has the duty of convincing the Court that he is entitled to judgment. Therefore, though the Respondent has not filed brief in this appeal, I shall treat the issues raised by the Appellant in line with the relevant laws and authorities available for the purpose of reaching fair decision.
(2) CAMEROON AIRLINES VS. MR. MIKE E. OTUTUIZU (2011) 4 NWLR (PART 1238) 512 at 532 E F per RHODES VIVOUR JSC who said:
By virtue of Order 6 Rule 9 of the Supreme Court Rules, this Court will proceed with the hearing of the appeal if the respondent failed to file his respondent?s brief and also failed to appear in Court on the hearing date (as is the case in this appeal). Not filing Respondent?s Brief in no way puts the appellant at an advantage, since the judgment of the Court of Appeal is in favour of the respondent. The appellant still has to show that the judgment of the Court of Appeal was wrong.
(3) UNITY BANK PLC & ANOR. VS. MR. EDWARD BOUARI (2008) 2 SCM 193 at 212 per OGBUAGU JSC.
The Learned Counsel to the Appellant formulated two issues for the
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determination of this appeal viz:
1. Whether it is not perverse or wrong for the Customary Court of Appeal to use and rely extensively on the purported evidence of witnesses not part of the record of appeal before it in determining the ownership of the lands in dispute especially after disallowing ground 5 of the grounds of appeal that wrongly sought to introduce the evidence. (GROUND THREE).
2. Whether it was right in the circumstances of this case for the Customary Court of Appeal to disregard the findings of facts and assessments/evaluation of the evidence of the witnesses before it by the trial Customary Court and substitute its own views when the findings of facts have not been found to be wrong perverse, repugnant to natural justice or based on wrong conclusion. (GROUND FIVE).
ISSUE 1
Whether it is not perverse or wrong for the Customary Court of Appeal to use and rely extensively on the purported evidence of witnesses not part of the record of appeal before it in determining the ownership of lands in dispute especially after disallowing ground 5 of the grounds of appeal that wrongly sought to introduce the evidence. (GROUND 3).
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The Learned Counsel to the Appellant C. C. Nwanegbo Esq. stated that the Customary Court of Appeal allowed ground 5 of the grounds of appeal to the Lower Court by the Respondents which said ground was an attack on the record of the Customary Court through the Respondents Brief of Argument after the Lower Court had ruled against the Respondents as Appellants at the Lower Court, that it will be wrong and perverse to do so. That it thus mean that the Lower Court fell into grave error of approbating and reprobating which Appellant contended had occasioned a miscarriage of justice due to wrong use of evidence that was not part of the record of appeal in determining the ownership of the parcels of land in dispute between the parties.
?That the Respondents? Counsel at the Lower Court complained that the evidence of 2nd Appellant (now 2nd Respondent) on Oath at the Locus with regard to Ala Uhu Egbu was omitted from the record. That the Respondents as Appellants at the Court below also complained that the confirmation on Oath of 2nd Appellant?s evidence by PW2 with regard to the said Ala Uhu Egbu was omitted from the record of Customary Court.<br< p=””
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That the method employed by the Respondents? Counsel at the Lower Court to challenge the Customary Court?s record inside his brief was challenged by the Respondent?s Counsel now Appellant and Lower Court agreed that the Respondents as Appellants at the Court below adopted wrong procedure to contend that the record of appeal from Customary Court was incomplete. Appellant relied on the finding of the Lower Court on page 175 of the record.
That it was surprising that the Lower Court then in the later part of the judgment made use of the purported evidence at locus omitted from the record of appeal to the Lower Court from Court of first instance to determine the ownership of the parcels of land in dispute.
Appellant too is now complaining that the evidence given by four of his witnesses at locus in quo including neighbours were not recorded by the Customary Court and that the Customary Court only made brief reference to the evidence on page 82 of the record.
?That the Court of first instance totally omitted from the record of its proceedings all pieces of evidence given in favour of both the Appellant herein and the Respondents in
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the record of the Customary Court complied and transmitted to the Court below.
That is was wrong for the Lower Court to make use of the Appellants Brief (Now Respondents) wherein the evidence which the form record of appeal was imported. That the vague reference made to the evidence at the locus by Customary Court were equally relied upon by Lower Court as recollections by Court of first instance of what happened at the locus. He relied on pages 104 ? 105 of the record.
?That the Lower Court committed errors in crediting to the 2nd Respondent evidence which he did not give and that Lower Court was relying on wrong pages of the record thereby mixing up the evidence given by the parties at the Customary Court.
That the Lower Court relied on evidence omitted from the record allegedly given at the Locus in quo but not recorded by trial Customary Court in choosing the evidence purportedly given at Locus ONLY when it supported the case of Respondents herein and refusing to consider the same evidence where it favours the Appellant worked injustice on the Appellant. That the Customary Court mentioned on page 82 of the record that Appellant called
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boundary neighbours at Locus to corroborate his claim to the lands in dispute.
That Lower Court conveniently left out such facts and instead stated on page 172 of the record that the Appellant who was claiming five parcels of land strangely called one witness who testified in part in favour of 2nd Respondent as Appellant at Lower Court.
That the Lower Court also said that at Locus, 2nd Respondent (as 2nd Appellant at Lower Court) swore to an Oath for Appellant herein and his mother in respect of the Ala Owerre but conveniently omitted the Statement of Customary Law as pronounced by Customary Court that in Igbo land Women do not swear Oath in land matters.
That the Lower Court was wrong and its judgment is perverse because the Lower Court relied on pieces of evidence not contained in the record of evidence of the witnesses at the trial Customary Court in determining the appeal and in reversing the judgment of trial Court which was in favour of Appellant as Plaintiff at the trial Court. That the Lower Court thereby to the detriment of Appellant awarded ALA UHU EGBU and ALA OWERRE to the Respondents herein.
The Appellant further submitted that
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the selective use of the unrecorded evidence at the Locus by the Customary Court of Appeal only when it favours the case of the Respondents worked hardship and injustice on the Appellant in this Court.
The settled position of the Law is that an Appellate Court will not ordinarily disturb or tamper with the findings of trial Court particularly where such findings are in Consonance with the evidence on record. The appraisal and evaluation of oral evidence given at the Court of trial is pre-eminently that of the trial Court which saw and heard the witnesses. An Appellate Court will only in appropriate circumstances set aside the judgment of Lower Court where the findings leading to the judgment is perverse and are at variance with the evidence proffered by the parties. See:
(1) MOHAMMED HUSSEIN VS. M. N. MOHAMMED & ORS. (2015) 3 NWLR (PART 1445) 100 at 134 D ? E per RHODES VIVOUR JSC.
(2) ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 571 D where ARIWOOLA JSC said:
It has been held that it is trite Law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the
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appellate Court should reconsider the materials before the trial Court and should not hesitate to overrule its decision even on facts where, after giving due regards to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See Okhuarobo & Ors. V. Aigbe (Supra).
The main contention here is that the Lower Court allowed the Respondents to attack the record of the trial Court concerning the evidence of the 2nd Respondent which the Respondents said were omitted from the record of appeal to the Lower Court. That the Respondents made the complaints in their Brief of argument to the Lower Court to the effect that trial Court failed to record or write down the evidence of Respondents and their witness PW2. That after the Lower Court had agreed with the Appellant that the Respondents adopted a wrong procedure for attacking the record of trial Court, the Lower Court later on in their judgment agreed with the Respondents and brought in evidence which did not form part of the record and used same to award the parcels of land in dispute to the Respondents.
Ground No. 5 of the Respondents Notice of Appeal to
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the Lower Court reads thus:
ERROR IN CUSTOAMRY LAW
The Customary Court erred in Customary Law when it omitted from the Records evidence of witnesses favourable to the Appellants.
PARTICULARS OF ERROR
The evidence of 2nd Appellant on Oath at the Locus with regard to ALA UHU EGBU was omitted from records.
The confirmation, on Oath of the 2nd Appellant?s evidence by PW2 with regard to this Ala Uhu Egbu was omitted from the records.
Again the evidence on Oath by Nze Sylvanus Njoku with regard to ALA OWERRE was omitted from the records and likewise other pieces of evidence favourable to the Appellant.?
The Lower Court while Ruling on the Preliminary Objection of Appellant to the entire five grounds of appeal filed by Respondents to the Lower Court that they did not raise question(s) of Customary Law found as follows:
I therefore hold that all the five grounds are competent and come within the orbit of Section 282 of the 1999 Constitution. Secondly, find it difficult to come to the same reasoning as learned Counsel for Respondent that the appellants brief did not argue the issues raised arising from the
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five grounds of appeal. I hold that the issues were argued and that the Appellants Brief was not a mere reproduction of evidence of Defence witnesses in the Court below.
On the attack of the Learned Counsel to the Respondents (as Appellants in the Court below) that certain evidence favourable to the Respondents herein were not recorded by trial Court, the Court below had this to say:
I do not intend to dwell on this issue as learned Counsel for the Appellants should follow the proper procedure for attacking Records. I agree with Learned Counsel for the Respondent that Records cannot be attacked through the brief of argument where a Court makes reference to evidence not borne out by the Records, such references are perverse and land no credit to the Court (sic).
I am of the view that the learned Counsel to the appellant grossly misrepresented the facts when he baselessly submitted as follows in paragraph 5 1- 3 of his Brief
Surprising this same Customary Court of Appeal went ahead in another part of the judgment to use and rely extensively on that purported evidence at the locus which was
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omitted or not recorded by the trial customary Court as part of evidence given in the Suit in determining ownership of the lands in dispute and in fact, issue No.1 before it,?
I have carefully read the evidence given by the parties before the trial Customary Court and the judgment given by the trial Court (pages 82-83) of the record and I have no doubt in my mind that the Lower Court relied extensively on the pieces of evidence given by the parties before the Customary Court and found that the judgment of the trial Customary Court as contained on pages 72-83 of the record was not in tanden with the evidence (oral and documentary) led before the trial Customary Court. The evidence given by the Respondents in this appeal and their witnesses clearly overwhelmed the evidence given by the Appellant and his witnesses. The Lower Court made copious references to the pieces of evidence that are favourable to the Respondents which the trial Court for reasons not borne out of the record failed to utilize in favour to the Respondents. What the Lower Court found on pages 170 line 17 to 22 and 171 line 13 ? 17 are in consonance with the evidence on record.
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The evidence of the Respondent both in the Court room of Customary Court and at the locus in quo amply supported the judgment of the Lower Court. The trial Court deliberately went into extraneous issues to give judgment against the Respondents. Even the evidence at the locus in quo as contained in the judgment of the Customary Court (Pages 78-79 thereof) is instructive viz:
?Evidence at Locus in quo. At the locus inspection the Plaintiff called boundary neighbours who were present in person and corroborated his claim that the lands in dispute belong to late Sylvester Amajuoyi Ohakpougwu. Of the 4 portions, the defendants claim that two of the four portions belong to Barnabas Iwuji, while the two remaining portions belong to Sylvester Amajuoyi. In respect of his Owerre, one Sylvernus Njoku (DW3) who was neither a boundary neighbour there nor a member of Amajuoyi Family of the parties gave evidence to the effect that the land belongs to the defendants and that DW1 swore on oath for it and that he was the one who brought the oath material. Court noted that this man?s presence at the locus caused tempers of the plaintiff?s family members both
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male and female to rise to the point that they could have lynched him as a meddlesome interloper but for their respect and regard for the Court. DW1 Cyrine Iwuji told the Court that one of the Uhu Egbu lands belonging to Barnabas Iwuji was retrieved from one Godfrey Onuoha through Amala arbitration. This was confirmed on oath at the locus by the said Godfrey Onuoha (DW3). Ala Ola Ohakpugwu (4 portions). The defendant called this land OKPU NWANJOKU of the 4 portions, the defendants claim that 2 of the 4 portions belong to Barnabas Iwuji while the remaining 2 belong to Sylvester Amajuoyi.
In respect of Ala Ogidi, Ala Duru Owerre, she DW1 told the Court that neither Barnabas Iwuji nor Sylvestser Amajuoyi owns or has any interest in these 2 portions of land. Ala Ala Nkukoro (2 portions). DW1 called the first portion of this land Ala Uhu Okata. The defendants say it belongs to Sylvester.The second portion of this Ala Nkukoro, the defendants call ?Ala Ahajamu. The defendants claim the land as theirs through inheritance from Barnabas Iwuji. DW1 told Court that it was in this pieces of land that Barnabas Iwuji and her five children were buried.?<br< p=””
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There are other pieces of evidence on record showing that when Sylvester Amajuoyi died he was buried by the Respondents and which burial the Respondents also relied upon that as per Igbo Custom that whoever buries a man will inherit his properties.
The Lower Court?s findings setting aside the judgment of the customary Court is actually supported by the evidence on record and NOT omitted evidence that is not on record as Appellant erroneously postulated in his argument. All the pieces of evidence relied upon by the Lower Court emanated from the evidence in the Court room and evidence at locus in quo as recorded by the trial Court and as contained in their judgment.
For example on whether 2nd Respondent took an Oath to confirm that the lands belonged to Respondents and that it was confirmed by DW3, the trial Court reflected it in its record on page 79 of the record. The trial Court said women do not swear on Oath about land in Igbo land hence the story was false.
The Lower Court overruled the trial Court on its findings. It must be made clear to Appellant, that where there is a visit to locus in quo by a Court, as in this case both the
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evidence given in the Court room and at locus in quo and observations of the trial Court at the locus in quo will all be treated as evidence in the case for or against any of the parties. Whether or not such evidence was recorded at the locus in quo once the judgment of the trial Customary Court reveals what transpired at locus in quo and it is found that the trial Court misused the evidence the Appellate Court, like the Lower Court and indeed this Court can intervene to set aside the judgment and give judgment in favour of the party the evidence on record supports. The appellant’s complaints that Lower Court only made use of evidence at locus in quo favourable to Respondents cannot hold sway. All the pieces of evidence relied upon were all in evidence before the trial Court.
The Customary Court of Appeal did not go outside the precincts of the record and evidence in arriving at its decision which I have adjudged to be consistent with the evidence on the printed record.
Issue One is resolved against the Appellant.
ISSUE 2
Whether it was right in the circumstances of this case for the Customary Court of Appeal to disregard the findings
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of facts and assessment evaluation of the evidence of the witnesses before it by the trial Customary Court and substitute its own view when the findings of facts have not been found to be wrong, perverse, repugnant to natural justice or based on Wrong conclusion. (Ground Five).
The Appellant is contending here that the Lower Court usurped the primary role of the Customary Court by unduly evaluating the evidence led at the trial Court and ascribing probative value to such evidence and also substituting its view for that of the trial Court when it was not shown that the findings made by trial Court were perverse wrong or not borne out by the evidence before it. He relied on numerous cases including ENDURANCE ALOBA VS FRN (2002) 14 WRN 45 at 54 and AGBEJE VS AJIBOLA (2002) 8 WRN 1 SC.
That an Appellate Court will only interfere with findings of Lower Court when it is perverse or not supported by the record. That an Appellate hearing appeals from Customary Court must bear in mind that trials are conducted and presided over by laymen. He referred to SUBOR VS ASSIEMAKEME (1997) 4 NWLR (Pt. 502) 671 at less.
The Appellant again made reference to the
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evidence by 2nd Respondent who claimed (according to Appellant) that she swore a native Oath in respect of ALA IME OWERRE and that Customary Court ruled there was no such Custom enabling a woman to swear to an Oath in land matters in Igbo land. That the Lower Court did not fault the customary Court that women don?t take Oath in land matters in Igbo land and that the Lower Court never declared the custom to be regnant to natural justice, equity and good conscience or that it is against public policy. That Customary Court of Appeal just ignored the findings and went ahead to give the land to Defendants/Respondents.
That the Lower Court erroneously stated that only one witness testified for appellant in respect of five parcels of land, when Lower Court was not a Court of five instance. That Appellant called PW2 one Godfrey Onuoha, family head of Respondents who testified for Appellant as their boundary neighbours who also gave evidence to support Appellant?s case at locus in-quo.
On whether 2nd Respondent was married to late Sylvester Amajuoyi Ohakpougwu he stated that the customary Court preferred Appellants evidence. He relied on pages 80 –
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81 of the record. That no dowry was paid by Sylvester Amajuoyi Ohakpougwu on the head of 2nd Respondent. That Barnabas Iwuji and NOT Sylvester Amajuoyi Ohakpougwu was 2nd Respondent?s husband. That there was no issue from 2nd Respondent for Sylvester Amajuoyi Ohakpougwu.
On the resolution of the issue whether there was a Native will (Oral Will) by Sylvester Amajuoyi Ohakpougwu. The Appellant relied on the findings of Customary Court that it was a fabrication by the Respondents. That it was wrong for the Customary Court of Appeal to overrule the findings of the trial Court when they are not perverse. That the Customary Court went into extraneous issues and awarded Appellant?s lands to Respondents.
The Appellant also contended that the Lower Court fell with error in paying attention to a statement made by the Customary Court in Igbo adage which the appellant considered to be a chance remark by Court of first instance and which did not, according to Appellant, affect the findings of the trial Court. That the Court below was unnecessarily influenced by what the trial Court said in Igbo adage. That the trial Court was right in all its findings
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in awarding the five parcels of land to the Appellants.
That the Lower Court usurped the finding of the trial Court by unduly substituting its views for the findings of facts and evaluation of evidence made by the Customary Court which saw and heard from the witnesses. C.C. Nwanegbo Esq., therefore urged the Court to set aside the Judgment of the Customary Court of Appeal and restore the judgment of the trial Customary Court.
Now the subject matter of this appeal was an offshoot of trial by Customary Court AHIAZU MBAISE which held at AFOR ORU in IMO State of Nigeria.
The Customary Court of Appeal and indeed this Court have always been enjoined not to lightly interfere with the findings of Customary Court save in exceptional circumstances and where it is glaring that miscarriage of justice had occurred in the determination of the trial Customary Court. The appellate Court must also bear it in mind that trial by pleadings and evidence in accordance with Evidence Act is not applicable or amenable practice in Customary Court Proceedings. The evidence at the Customary Court is always based largely on the custom or customary law governing the parties
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to the action and subject matter before such Customary Courts. Tendering of documents is not common as in most cases evidence in Customary Court is always based on traditional history or Custom. See
(1) CYPRIAN ONWUAMA VS LOTUS EZEKOLI (2002) 5 NWLR (PART 760) 353 at 365 D – F where UWAIFO JSC said:
It has also been argued that the evidence led by the respondent was not satisfactory. It must be remembered that this case was tried in a Customary Court where pleadings are unknown. The proceedings in such Court are to be considered upon a broad view as to whether they were conducted in pursuit of the justice of the case presented by both parties. In other words, appellate Courts are to consider the substance of the proceedings of Native, Customary or Area Courts liberally and this is done by reading the record to understand what the proceedings were all about so as to determine whether substantial justice has been done to the parties within the procedure permitted by such Courts: see Dinsey v. Ossey (1939) 5 WACA 177; Jumai Alhaji Zaria v. Yar Maituwo (1966) NMLR 59; Ikpang v. Edoho (1978) 6 ? 7 SC 221; Ibero v. Ume ? Ohana (1993) 2
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NWLR (Pt. 277) 510; Chukwueke v. Okoronkwo (1999) 1 NWLR (Pt. 587) 410; Duru v. Onwumelu (2001) 18 NWLR (Pt. 746) 672.
(2) NWANKWO OGUANUHU & ORS VS DR. EMMANUEL CHIEGBOKA (2013) 6 NWLR (PART 1351) 588 at 605 A- F per GALADIMA JSC who had this to say:
Strict rules of pleadings and application of provisions of the Evidence Act are not observed in those Customary or Native Courts. Their decisions however, must be based on common sense and reasonableness of their finding. See: Efi v. Enyinful (1954) 14 WACA 424; Chief Asuquo Ekpa & Ors. v. Chief Etim Akpan Utong (1991) 6 NWLR (Pt. 197) 258 at 278; Ogunsina v. Ogunleye (1994) 5 NWLR (Pt 346) 625.
Findings made by the trial Court is based on the evidence adduced before it. It is the primary duty of the Court to ascribe due probative value on the evidence placed before it, when the trial Court fails to perform this duty, then an appellate Court can step in to perform such function. Even so, the appellate Court is cautious when performing this function and can only do so when the demeanour of witnesses is not in question. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Narumal
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& Sons Ltd., v. N.B.T.C. Ltd., (1989) 2 NWLR (Pt. 106) 730; Okafor v. Idigo (supra).
Otherwise, the corollary to the above principle is the presumption that the decision of a trial Court on facts is correct. An appellate Court cannot and it ought not to substitute its own view of fact for those of the trial Court which heard evidence and watched the demeanour of witnesses as they testified. See: Ohanaka v. Achugwo (1998) 9 NWLR (Pt. 564) 37.
However, a trial Court in the course of evaluating evidence must put all evidence with probative value adduced by each side on an imaginary scale to see which side the scale tilts. See: Mogaji v. Odofin (1978) 4 SC 91; Bello v. Eweka (supra).
Now as to whether in Igbo land women are forbidden from taking Oath in respect of land in dispute, the Customary Court held against the Respondents as follows:
DW1 claimed she swore for Ala Owerre. This evidence is false as in Igbo land women do not take Oath over land. Therefore, Court holds strongly that the defendants claims to ownership of the Ala Owerre is false. It belonged to Sylvester Amaqjuoyi.
The Customary Court of
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appeal found in respect of the just quoted finding of the trial Court thus:
?In respect of Ala Owerre, 2nd Appellant testified she swore for the Plaintiff/Respondent and his late mother in respect of this land. This piece of evidence was confirmed by DW3 NZE Sylvanus Njoku. He testified that as Juju Priest of Duru Owerre he prepared the Oath material with which the 2nd Appellant swore.
Ala Ogidi ? Ala Duru Owerre the Appellants laid no claim to them as contained in paragraph (iv) of the claim. In ala Nkukoro, 2nd Defendant/Appellant showed the Court where her late husband and five children were buried yet the Lower Court awarded this land to the Respondent.?
I am of the firm view that the observation of the Customary Court of Appeal is correct. The evidence of the DW1, the 2nd Respondent in this appeal at the Customary Court that she swore over that land was amply corroborated by evidence of DW3 at the locus in quo. The trial customary Court said concerning the evidence on page 79 of the record thus:
?In respect of Ala Owerre, one Sylvanus Njoku DW3 who was neither a boundary neighbor there to nor a member of the
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Amajoyi family of the parties gave evidence to the effect that the land belongs to the defendants and that DW1 swore an Oath for it and that he was the one who brought the Oath material.?
There was no plausible reason given by the trial Customary Court for rejecting the unchallenged evidence of the Respondent and their witnesses at the trial Court. The only reasonable inference one can draw from the account of the evidence given before the trial Customary Court as contained on pages 78 – 79 is that the four parcel of lands adjudged to be in possession of the Respondents as their inheritance as found by the Lower Court cannot be faulted.
The Customary Court of Appeal which is established pursuant to Section 280 of the Constitution of the Federal Republic of Nigeria 1999 as amended has appellate and supervisory jurisdiction over proceedings involving questions of Customary law and the Customary Court of Appeal must be presumed to know better, the Customary law relating to its area of jurisdiction which in this case is Imo State as a whole in matters pertaining to customary laws and their application. So where a trial Customary Court falters, the
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Customary Court of Appeal has right to declare what the Custom is in such circumstance.
The findings of the Customary Court of Appeal to the effect that the deceased owner of the two parcels of land in dispute, SYLVESTER AMAJUOYI OHAKPOUGWU actually made an oral will in accordance with the custom of the parties in this appeal is also firmly supported by evidence on record.
There is also evidence on record which confirmed that 2nd Respondent married to late SYLVESTSER AMAJUOYI OHAKPOUGWU a close relation of her first husband late Iwuji and that before the said late Sylvester Amajuoyi Ohakpougwu died, he orally willed his landed properties to the two Respondents herein. There is over whelming evidence on record, which attests to the fact of the said marriage.
The Customary Court of Appeal justifiably interfered with and rightly set aside the judgment of the Customary Court. The findings of the trial Customary Court contained comedy of errors which make the finding of trial Court faulty and perverse. The judgment of the Customary Court of Appeal has carefully put the law and the facts in their proper perspective and application. There was absence of proper
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evaluation of evidence by the trial Court and there was failure to draw logical inferences from the evidence laid before the trial Court by the trial Court. An Appellate Court will be failing in its duties if it fails to intervene and redress the situation in such a case. The best remedy is to interfere and set aside the findings of trial Court and give judgment and justice in favour of the party or parties who rightly deserve to win. That is precisely what the Customary Court of Appeal, the Lower Court herein has done by setting aside the judgment of trial Court.
The Appellant also made loud fuss that the Customary Court of Appeal fell into error in making decree of declaration of title in favour of the Respondents who have no counter claim before the trial Court.
It would be wrong to declare title or statutory or customary right of occupancy in favour of a Defendant who has no counter claim before the Court. A Court does not give to any litigant that which he did not seek. See E. IKOKU & ORS. VS. REUBEN EKEUKWU & ORS. (1995) 7 NWLR (PART 410) 637.
I have perused the reliefs the Appellant is complaining about. There is nothing therein
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declaring title to land in favour of the Respondents other than stating the obvious. The Customary Court of appeal having set aside the judgment of the trial Court in respect of four of the five parcels of land in dispute and also found that Ala Ogidi Ala Duru Owerre was never in possession of the Respondents but that they are entitled (Respondents) to remain in possession of the remaining four parcels of lands known as ALA UHU EGBU comprising of 4 portion thereat ALA OWERRE, ALA ULO OHAKPUGWU comprising of 4 portions thereat and ALA NKUKORO comprising of 2 portions thereat which were already in possession of the Respondents.
The Orders made in respect of those parcels of land by the Customary Court of Appeal are in Order. Issue 2 is also resolved against the Appellant.
Consequently I find no merit in the appeal of the Appellant and the appellants appeal is hereby dismissed in its entirety.
The judgment of the Customary Court of Appeal Imo State delivered on 28th day of February, 2007 is hereby affirmed.
The Appellant shall pay costs assessed at N50,000.00 (Fifty Thousand Naira) to the Respondents.
Other Citations: (2016)LCN/8596(CA)
