Udhude Emarieru & Anor V Samuel Ovirie & Ors (1977)
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SIR UDO UDOMA, JSC.
This is an appeal from the High Court of Mid-Western, now Bendel State. It is against the judgment on appeal of the High Court in which the judgment of the Magistrate’s Court, Oleh, from the Uzere Customary Court was set aside and a re-hearing ordered.
In the Customary Court Suit No. UCC/5/72 Udhude Emarieru and Okporo Isodhe for themselves and on behalf of Osomero Family sued Samuel Omoyouzou Ovirie, Okoro Ovirie and Odeji Agbadaku for a declaration that the defendants therein are non-members of Osomero Family, and an injunction to restrain the defendants from participating in Owhe (Oweh) bush. And in Suit No. UCC/6/72 Okoro Ovirie, Samuel Omoyouzou Ovirie and Odeji Agbadaku turned round and also sued Udhude Emarieru alone for a declaration that the defendant therein is also a non-member of the Osomero Family, and an injunction to restrain the defendant from participating in anything in Owhe (Oweh) bush.
Both suits were consolidated and tried together by the Customary Court, the plaintiffs in the first suit being treated throughout the proceedings as the plaintiffs, and the defendants in the first suit also throughout as defendants, although there was only one defendant in Suit No. UCC/6/72. In its final order, however the Customary Court drew appropriate distinction between the two suits and made two separate and distinct orders, making it clear that its judgment affected the two suits, which had been consolidated for the purpose of the hearing.
After due hearing, the Customary Court reviewed the whole of the evidence and found as a fact that the cases were sparked off by a claim to compensation in respect of Osomero Family land which had been paid by Shell BP, resulting in the scramble for Osomero Family Land by the parties in both suits and attempts to expel one another from the family. It considered and rejected the oral testimony of the genealogy traced by both parties as unsatisfactory, but preferred and accepted the evidence of contemporary acts and events and acts and events within living memory.
It came to the conclusion that it was satisfied that the first and second plaintiffs had been leasing out the Emodhe land to various persons for building purposes; and that the first plaintiff had been enjoying Osomero property long before the emergence of court cases between the first plaintiff and the defendants; and similarly, that the defendants had been enjoying Osomero property long before the emergence of court cases between them and the first plaintiff. It believed that both Othobero and Erueme were sons and descendants of Osomero.
The court then rejected the evidence of certain witnesses whom it declared to be biased and found as a fact and declared that the first plaintiff in Suit No. UCC/5/72, Udhude Emarieru, is the head of Osomero Family. It also declared that Othebero, Erueme and Avue were all members of Osomero Family and that all descendants of Othobero, Erueme and Avue are the rightful persons entitled to enjoy by native law and custom Osomero’s property and that all the parties in Suits Nos. UCC/5/72 and UCC/6/72 are members of Osomero Family. In the circumstances, it dismissed both suits and awarded neither party costs. Thereupon the defendants in Suit No. UCC/5/72, who would naturally be regarded as having succeeded in that suit, appealed against the judgment of the Customary Court to the Magistrate’s Court. There was no indication in the Notice of Appeal that the appeal was also against the order made in respect of Suit No. UCC/6/72 in which they were plaintiffs and had lost. At the hearing before the Magistrate, confusion set in. The matter was treated as if it were an appeal against the judgment of the court in both suits. No distinction was drawn between the two suits, the appellants being referred to throughout the proceedings on PAGE| 3 appeal as defendants. That situation continued even before the learned Judge on appeal.
As both parties were represented by counsel both before the Magistrate and the learned Judge on appeal and both the Magistrate and the learned Judge on appeal had treated the appeals before them as affecting both suits tried by the Customary Court, it seems to us right and proper in the interest of justice that this court should also treat the present appeal as affecting both suits in the Customary Court of Uzere, particularly, as neither cousel before us has complained. For otherwise, one would get the invidious position of a successful party in a suit appealing against a judgment wholly in his favour. The appeal was fully argued before the learned Magistrate who, in a reserved judgment, allowed the appeal on the ground that the decision of the Customary Court was meaningless because, according to him, the Customary Court had found both claims proved and had declared both parties winners. He thereupon set aside the judgment; and ordered that the suits be reheard in the Customary Court in order that the issues as to the proper descendants of Osomero might be determined. He made no order as to costs.
From that judgment and order, the defendants in Suit No. UCC/5/72, still feeling dissatisfied, appealed to the High Court, Ughelli Judicial Division. The learned Judge on appeal (Ovie-Whiskey, J., (as he then was), affirmed the decision of the learned Magistrate allowing the appeal and setting aside the judgment of the Customary Court; but he set aside the order for re-hearing. He held that the Customary Court had failed altogether to assess the evidence before it, and that instead it had done what the learned Judge on appeal held was impossible for a court to do, namely, to accept the evidence of the plaintiffs and that of the defendants in a consolidated suit and to find for both parties therein. The learned Judge on appeal then proceeded to make his own findings of fact on the recorded evidence. He held that it was a proper case in which the findings of the Customary Court should be disturbed “because the finding of fact of Uzere Customary Court was erroneous and not supported by the credible evidence given before it at the trial”.
Having set aside the order for re-hearing made by the learned Magistrate, the learned Judge then ordered as follows:- “(1) The plaintiffs/respondents/ respondents’ claim in suit No. UCC/5/72 against defendants/”appellants/appellants in Uzere Customary Court is hereby dismissed. (2) In Suit No. UCC/6/72 where the appellants are the plaintiffs and the first plaintiffs/respondent/respondent alone is defendant the appellants’ claim for a declaration that the first plaintiff/respondent/respondent in the consolidated cases and the only defendant in Suit No. UCC/6/72 is not a member of Osomero Family of Igbide and so not entitled to inherit the said Osomero’s landed property and other properties succeeds.”
An order for injunction was refused. Thus in Suit No. UCC/5/72 judgment was entered in favour of defendants/appellants/appellants, who are the plaintiffs in Suit No. UCC/6/72 for a declaration that the defendant in Suit No. UCC/6/72 is not a member of Osomero Family of Igbide and that he is not entitled to inherit the real and personal property of Osomero Family. Costs of N280.00. were awarded against the plaintiff/respondent/respondent in Suit No. UCC/5/72.
This appeal is from that judgment and order and has been brought by the plaintiffs in Suit No. UCC/5/72 and the only defendant in Suit No. UCC/6/72. The main ground argued before us was that the learned Judge on appeal erred in law when he substituted his views for the views of the Customary Court and dealt with the issues of fact and credibility of witnesses without regard to the views of the trial court, which had properly fully evaluated the evidence and made specific findings of fact on the issues properly contested before it.
In his submissions, learned counsel for the plaintiff, Mr. Aka-Basorun, contended that it was not competent for the learned Judge on appeal to have embarked upon the exercise of resolving what he termed contradictions in the evidence given by witnesses in the Customary Court. That was a function properly ascribed by law to the court of first instance; in this case, the Customary Court which had the advantage of hearing and seeing the witnesses give their evidence.
It was further submitted by learned counsel that the learned Judge on appeal was wrong in law to have disturbed the findings of fact of the Customary Court; that the judgment of the Customary Court should not have been disturbed; and that the same be now restored. We think these submissions are sound. The matter in controversy turns on issues of fact as to custom. It concerns family inheritance, right of succession to property and membership of Osomero Family in accordance with customary law for the determination of which the Customary Court is the most competent tribunal. It has not been easy to appreciate the view taken by the learned Judge on appeal that the Customary Court had failed to assess and evaluate the evidence before it in the suits. With due respect to the learned Judge on appeal, we do not think that was a fair assessment; nor do we think that the conclusion arrived at by the Customary Court was appreciated by the learned Magistrate on appeal, who took the view that by its judgment the Customary Court had found both cases proved and declared both parties winners and that therefore the judgment was meaningless.
That view was, of course, erroneous. So too, was the view of the learned Judge on appeal that the Customary Court had “found both cross-claims proved and found for the plaintiffs in each of the two consolidated cases. So there was no loser in the two cross-actions.”
That view of the learned Judge was also erroneous because the Customary Court had in fact dismissed both suits when it came to the conclusion that both plaintiffs and defendants in both suits were members of Osomero Family, and, in particular, that the defendant in Suit No. UCC/6/72, Udhude Emarieru, is the head of the Osomero Family having been acting in that capacity for many years without any objection until the dispute over the sharing of compensation to be paid by Shell BP.
It ought to be pointed out that in instituting both actions, both sides wanted to expel each other from Osomero Family. The plaintiffs in Suit No. UCC/5/72 were denouncing and seeking to expel the defendants therein from the Osomero Family; and the plaintiffs in turn also sought in Suit No. UCC/6/72 to expel the defendant therein named from the said family so that whoever was successfully expelled from the said family would not, as stated in the writs, “participate in anything in Oweh bush and in any property owned by Osomero Family of Igbide”.
If the view taken by the learned Judge on appeal that the court had found both cross-claims proved and also for the plaintiffs in each suit, then the result would have been that the three defendants in Suit No. UCC/5/72 and the single defendant in Suit No. UCC/6/72 would have been declared non-members of Osomero Family and expelled therefrom.
The injunction sought would also have been granted. That indeed was far from what the Customary Court in fact did. Evidence given before the Customary Court fell into two categories, namely, traditional evidence as to genealogy; and evidence of contemporary acts and events and acts and events within living memory.
The Customary Court, after a thorough examination of the traditional evidence which it naturally treated as hear-say, describing the same as oral stories handed down from father to son, rejected it as unreliable. It then considered the evidence of contemporary acts and events and acts and events within living memory, which it accepted and thereupon found as a fact that the first plaintiff in Suit No. UCC/5/72 and the only defendant in Suit No. UCC/6/72 “is the head of Osomero Family; and that all parties to the said suits are members of the said family.
We do not agree with Mr. Munu, learned counsel for the respondents, that in those circumstances, the learned Judge on appeal was right in setting aside the findings and the judgment and order of the Customary Court. On the contrary, we are satisfied that he erred in law in holding that the decision of Uzere Customary Court “was wholly unreasonable and against the weight of evidence”. He was equally wrong in law to have assumed the functions of the Customary Court by embarking upon the task of assessing and evaluating the evidence afresh and making entirely new findings of facts not justified by the evidence and resolving what was termed “contradictions”.
These functions were quite adequately discharged by the Customary Court, which arrived at what we consider a reasonable conclusion, after having given full consideration to the evidence before it. Suffice it to say that in our view the Customary Court showed proper and sufficient appreciation of the issues in controversy between the parties, which issues may accurately be described as peculiarly within its knowledge, and its judgment in such matters, should not have been disturbed. Indeed that was the view long ago expressed by the Privy Council in Abakah Nthah v. Bennieh, 2 WACA 1, when their Lordships said at page 3: “It appears to their Lordships that decisions of Native Tribunals on such matters which are peculiarly within their knowledge, arrived at after fair hearing of relevant evidence, should not be disturbed without very clear proof that they are wrong.” And we can find no such proof in the present cases on appeal.
This appeal therefore succeeds. It is allowed. Both the judgment of the learned Judge on appeal together with the order for costs and the judgment of the Magistrate’s Court also on appeal are hereby set aside. If the costs awarded by the learned Judge on appeal have been paid, the same to be refunded.
The decision of Uzere Customary Court dated 25th April, 1972, declaring Udhude Emarieru head of Osomero Family and all parties in Suits No. UCC/5/72 and No. UCC/6/72 members of Osomero Family is hereby affirmed. It is hereby further ordered that the judgment of the Customary Court in Suit Nos. UCC/5/72 and UCC/6/72 be and it is hereby accordingly restored. There will be no order as to costs in the circumstances disclosed in these consolidated suits.
Other Citation: (1977) LCN/01767(SC)
