NWOSU v. ONWUKA & ANOR (2020)

NWOSU v. ONWUKA & ANOR

(2020)LCN/15235(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/93/2008

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

UCHECHUKWU NWOSU APPELANT(S)

And

1. MR. INNOCENT ONWUKA 2. SUNDAY EZEANYIKA RESPONDENT(S)

RATIO

WHETHER OR NOT JUDGMENTS EMANATING FROM THE CUSTOMARY COURT ARE TREATED DIFFERENT FROM THOSE OF REGULAR COURTS

As a general rule, judgments emanating from customary Courts are treated with some latitude as different from those of regular Courts bound by strict rules of procedure. An appellate Court would rather examine the substance of the issues in contention and not the form or technical fine points. This position was abundantly stated by AKPATA, JSC thus:
“It has long been recognized that Customary, District or Native Courts’ Judgments are not to be dealt with in the same manner that any appellate Court would normally handle a judgment from the High Court where pleadings are invariably ordered. In dealing with Judgments from Customary, District or Native Courts an appellate Court should not limit the scope of the issue in controversy to what appears on the writ, but should go beyond it and ascertain from the entire evidence before that Court what was really the nature of the dispute and land involved. See Musa Iyaji v. Sule Eyigebe (1987) 3 NWLR (Pt. 61) 523 at page 530. See EKPA & ORS VS UTONG & ORS (1991) LPELR-1084(SC)at 22.”
The same position was stated by AKINTAN, JSC as follows:
“The attitude of Appellate Courts to the decision from those Courts are-
(i) it is not the form of an action but the substance of the claim that is the dominant factor.
(ii) the entire proceedings in such Court have to be scrutinized to ascertain the subject-matter of the case and the issues raised therein.
(iii) It is permissible to look at both the claim as framed, the findings of fact and even evidence given before such Courts to ascertain what the real issues are. “See JIMOH GARUBA VS. ISIAKA YAHAYA (2007) 3 NWLR (PART 1021) 390.” PER OYEWOLE, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBABTIVE VALUE TO IT

The evaluation of evidence and the ascription of probative value to evidence is the mainly the function of the trial Court which heard, saw and assessed the demeanor of the witnesses. However, this Court is empowered to only review such evidence. Where the evidence is documentary evidence, this is Court is in as good a position as the trial Court to evaluate such evidence. I call in aid the case of MOMOH V. UMORU (2011) 15 NWLR (Pt. 1270) 217 at 244, where the Apex Court posited as follows;
“It is the primary function of a trial Court that sees and hears a witness to assess the credibility of witnesses and to believe any of them. The issue of evaluation of evidence of the parties and their witnesses and the ascription of probative value to their evidence as received by the trial Court is an area in which the trial Court has the pre -eminence as it sees, hears and watches the demeanour of the witnesses and so in a better position to believe or disbelieve them. An appellate Court does not have the opportunity. But as regards documentary evidence, an appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them. “Per GALADIMA, J.S.C. PER DONGBAN-MENSAM, J.C.A.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Anambra State, sitting in appellate capacity in Aguata Judicial Division holden at Ekwulobia, presided over by ONWUAMAEGBU J. as he then was, delivered on the 18th May, 2006.

The judgment of the lower Court took its roots from an appeal against the judgment of the Customary Court of Mbamisi delivered on the 8th March, 1999. Before that Court, the predecessors of the present Respondents were Plaintiffs, the 1st Respondent was the original plaintiff while the 2nd Respondent was joined as co-plaintiff by the trial customary Court at the instance of the predecessors of the present Appellant as defendants who had a counter-claim against the said 2nd Plaintiff who however had no common interest in the reliefs sought by the 1st Plaintiff.

The reliefs sought by the then 1st Plaintiff before the trial customary Court, were as follows:
1. Declaration that the plaintiff is entitled to a Customary Right of Occupancy over his “Ugwu Ala Ocha” or “Mgbogo” land situate at Umeze Village, Uga and verged green on Plan No. FALS/DL42/93.
2. N2,000.00 general damages.
3. An order of injunction restraining the defendants, their servants and agents from entering or remaining on the Plaintiff’s “Ugwu Ala Ocha” or “Mgbogo” land of from farming thereon or doing anything on the said land or from in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession of the said land verged verged on the Plan No. FALS/AN/DL 42/93.

After taking the testimonies of the various witnesses, the trial customary Court conducted a visit to the locus in quo and thereafter gave a considered judgment using the dispute survey plan of the defendants, wherein portions of land identified therein were awarded to the respective parties.

The 1st Plaintiff was dissatisfied with the said judgment and appealed to the Court below. After taking the arguments of the learned counsel for the various parties, the lower Court allowed the appeal. Consequently, the judgment of the trial customary Court was set aside and the reliefs sought by the Appellant as 1st Plaintiff at trial, were granted. Unhappy at this turn of events, the predecessors of the present Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 22nd May, 2006 containing 4 grounds. Due to the demise of the original parties, substitutions were made necessitating amendment of the processes and resulting in the present parties in this appeal.

For the Appellant, Mr. Ajuzie adopted the Amended Appellant’s brief as well as the Amended Appellant’s Reply brief both filed on the 2nd October, 2018 as the arguments of the Appellant in furtherance of the appeal while Mr. Obi-Obiora adopted the 1st Respondent’s Amended brief filed on the 3rd October, 2018 as the arguments of the 1st Respondent in contesting the appeal. The 2nd Respondent opted not to appear or file processes notwithstanding service of the various processes on him.

The Appellant formulated four issues for determination as follows:
1. Whether the Learned Appellate Judge was correct when she embarked on re-evaluation, re-appraisal and ascription of probative value to the evidence led by the parties which exercise was exhaustively done by the trial Customary Court which saw the parties and their witnesses testify and visited the locus in quo with the parties and their respective survey plans and made findings of facts based on evidence before the trial Customary Court.
2. Whether the learned Appellate Judge of the High Court was right when she set aside the judgment of the trial Customary Court, granted 1st Plaintiff/Respondent’s claims and made no order as to the counter-claim of the Appellants.
3. Whether the learned Appellate Judge was correct when she held that the appeal of the 1st Plaintiff/Respondent was competent before the High Court.
4. Whether the learned Appellate Judge was correct in holding as she did that the joinder of the 2nd Plaintiff/Respondent in this matter as a party was wrongful and unsustainable.

The 1st Respondent equally formulated four issues for determination thus:
1. Whether the appellate Court was right, having regard to the reliefs/claim and totality of evidence in this case in ensuring that there was no miscarriage of justice due to perverse findings and wrong approach to the evidence by the trial Court in the in the determination of this matter.
2. Whether the appellate Court was right in holding that the trial Court had no jurisdiction to grant the reliefs that was not the subject of any claim before the Court and granting the reliefs of the 1st Respondent based on the proper approach of evidence before the Court.
3. Whether the appellate Court was right in holding that the appeal of the 1st Respondent was proper before the appellate Court, the same issue having being resolved earlier by the Court in the matter without any appeal on it by the Appellant. (sic).
4. Whether the appellate Court was right in holding that the trial Court was wrong in joining the 2nd Plaintiff-Respondent in this matter since he did not have the same interest with the 1st Plaintiff-Respondent.

The two sets of issues address basically the same subject-matters and in that regard I shall adopt the version formulated by the Appellant in determining this appeal. I shall take the issues seriatim.

Arguing the first issue, Mr. Ajuzie submitted that the Court below wrongfully interfered with the findings of the trial customary Court notwithstanding that those findings were well supported by the adduced evidence, which wrongful interference according to the learned counsel occasioned miscarriage of justice. He highlighted areas of the alleged wrongful interference and referred to AKAAER JOV VS KUTUKU DOM (1999) 7 SCNJ 27 at 29.

For the 1st Respondent, Mr. Obi-Obiora argued that while evaluation of evidence was the primary duty of a trial Court, an appellate Court would justifiably interfere where evaluation was improperly done to prevent miscarriage of justice due to perverse findings. He referred to FEDERAL COMMISSIONER FOR WORKS AND HOUSING VS R. LABADEBI & ORS (1977) 11-12 SC 15 at 24.

He outlined the evidence adduced by the 1st Respondent at trial, in support of his entitlement to the land in dispute which pieces of evidence on boundaries of the land in dispute and applicability of the customary arbitration award, exhibit H, according to the learned counsel, were not properly evaluated by the trial customary Court and in respect of which the lower Court was in as good a position to evaluate. He referred to NARUMAL & SONS NIG. LTD VS.NIGER BENUE TRANSPORT COMPANY LTD (1989) 2 NWLR (PT 106) 730 at 742-743, COGHLAN VS CUMBERLAND (1898) 1 CH. 704 and OLADIPO MAJA VS STOCCO (1968) 1 ALL NLR 141 at 149.

In the Reply brief, it was contended for the Appellant that the 1st Respondent misapprehended his case as presented at trial and that the findings of the trial customary Court were wrongly interfered with by the Court below.

The position of the law is trite with regards to evaluation of evidence. Evaluation of evidence and ascription of evidential value thereto is the primary responsibility of a trial Court which had the privilege of seeing and hearing the witnesses directly and could perceive their demeanors. An appellate Court would only interfere where such evaluation was improperly done as to have resulted in miscarriage of justice. See ABISI & ORS VS. EKWEALOR & ANOR (1993) LPELR-44 (SC).

On pages 162-163 of the record of appeal, his lordship of the Court below, stated thus:
The trial Customary Court in its judgment on page 54 of the record held:
“Each party claimed that they gave Uzoekwe Onyekonwu, the disputed land, but none of the parties could invite anybody from the family of Uzoekwe Onyekonwu to testify on their behalf… However the Court discovered on inspection that Uzoekwe Onyekonwo lived in the portions of 2nd Plaintiff and that of the defendants own portion of the said land, see Exhibit “G” the defendant’s plan.”
In arriving at this conclusion it would appear that the Customary Court which had observed that parties failed to call witnesses from Uzoekwe Onyekonwu”s family, itself, failed to consider Exhibit “C” which clearly shows that 1st Plaintiff granted land to Uzoekwe Onyekonwu on the location shown in his survey Plan Exhibit A and bounded by 2nd Plaintiff’s land. What this in effect means is that Exhibit C showed that the other part of land which Uzoekwe Onyekonwu used, was granted by the 1st Plaintiff as shown on the 1st Plaintiff’s Plan.

I have no doubt that had the trial Customary Court considered Exhibit C along with the testimony of the 1st and 2nd Plaintiffs and their witnesses as well as Exhibits B and D, it would have come to an entirely different conclusion. The said Court like the arbitration before it decided to give every party a bite at the cherry irrespective of the evidence before it.

It is well settled that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial Court which saw, heard and assessed the witnesses- see the cases of Ejilemele V Opara (2003) 9 NWLR (PT 826) 536, Akinloye V Eyinyole (1968) NWLR, Fasikun II V Olurouke II (1999) 2 NWLR (PT 589) 1.
The foregoing represents one of the exceptions in which the appellate Court will interfere to properly evaluate the evidence of the parties at the trial Court on the preponderance of evidence in consonance with the standard of proof in civil matters. I am therefore of the view that the trial Customary Court did not correctly and properly evaluate the evidence before it and thereby came to a wrong conclusion.

Before us, the learned counsel for the Appellant vigorously challenged this intervention, insisting that the initial evaluation of the trial customary Court accorded with the justice of the case. The arguments of learned counsel however failed to disprove the palpable fact that the trial customary Court failed, as well pointed out by the Court below, to consider valuable evidence adduced before it which led to a wrong conclusion.

The circumstances did justify the intervention of the Court below and I therefore resolve this issue in favour of the Respondents and against the Appellant.

On the second issue, the contention of the Appellant was that while the Court below made substantially the same grant in favour of the 1st Respondent as was done by the trial customary Court, the Court below erroneously failed to make any pronouncement on the counter-claim of the Appellant which covered a larger portion of land which necessitates the intervention of this Court.

Contrariwise, the 1st Respondent argued that the Court has no jurisdiction to award to any party a relief they did not claim. His learned counsel pointed out that while the 2nd Plaintiff at trial had no claim before the Court, the 1st Defendant now Appellant was from a different family from the 2nd-4th Defendants at trial and they did not have common land. The learned counsel then submitted that the trial customary Court erroneously shared the land in dispute as put forward by the 1st Respondent among the four contending parties using the plan of the 1st Defendant, now Appellant and proceeded to make orders of injunction not sought by the Defendants thereby justifying the intervention of the Court below. He referred to a long line of judicial authorities including U.N.T.H.M.B. VS NNOLI (1994) 8 NWLR (PT 363) 376 at 406 and TAIYE OSHOBOJA VS ALHAJI SURAKATU I. AMUDA & ORS (2000) 13 NWLR (PT 685) 427 at 444.

Learned counsel further argued that the judgment of the trial customary Court was based on the claim of the 1st Respondent and did not include the counter-claim of the present Appellant who however failed to appeal against the said judgment before the lower Court and are accordingly precluded from doing so for the first time before this Court. He referred SHONEKAN VS SMITH (1964) 1 ALL NLR 168 at 173 andDJUKPAN VS OROVUYOVBE & ANOR (1967) 1 ALL NLR 134.

He concluded on this issue by submitting that the 1st Respondent adduced sufficient evidence in support of his claims and that the judgment of the lower Court was in order.

In his Reply brief, the Appellant submitted that the contentions of the 1st Respondent in this regard had no bearing with the grounds of appeal and could not be sustained in the absence of a cross-appeal or Respondent’s Notice.

His learned counsel further submitted the judgment of the trial customary Court accorded with substantial justice based on the evidence adduced by all the parties and should not have been subjected to the standards of Court applying rigid rules of procedure.

The contention of the Appellant in this regard challenges the failure of the Court below to make any pronouncement on the counter-claim. The 1st Respondent while answering to this sought to introduce his grouse against the award made in favour of the 2nd Respondent. He failed to file a cross-appeal and did not file a Respondent’s Notice as well. As well argued for the Appellant, this omission has fatal implications for his arguments in this regard as it is trite that a Respondent to an appeal can only raise arguments challenging the judgment where he has filed a cross-appeal or a respondent’s notice on intention to contend.

I however agree with the learned counsel for the 1st Respondent that the failure to pronounce on the counter-claim of the Appellant did not emanate from the Court below but rather from the trial customary Court and having failed to raise the issue at the Court below, the Appellant is precluded from doing so before this Court.

I therefore resolve this issue as well in favour of the 1st Respondent and against the Appellant.

Moving to the third issue, the learned counsel for the Appellant submitted that the trial customary Court was not legally competent to grant extension of time to appeal in the circumstances presented by the 1st Respondent and that accordingly the Court below was in error to have ruled that the appeal of the 1st Respondent was competent. He referred to EZENWOSU VS NGONADI (1992) 3 SCNJ 39 at 60-61.

On this issue, the 1st Respondent contended that the interlocutory ruling of the lower Court dismissing the motion filed by the Appellant on the issue was never appealed against the said ruling and cannot competently argue the said issue.

It was further argued that pursuant to Section 51(2) of the Customary Courts Law, 1991 of Anambra State the trial customary Court was in order in granting the extension of time and leave to appeal, that the claim for general damages exceeded the sum of N100.00 and that Section 20 of the Customary Courts Law (supra) dispenses with all impeding technicalities in the appellate jurisdiction of the High Court thereby validating the appeal adjudicated upon by the lower Court.

In his Reply argument, Mr. Ajuzie responded that it was proper to have taken the interlocutory decision in the final appeal especially as the earlier position was readopted in the final judgment. He reiterated his earlier contentions and submitted that that where statutes do not donate a right of appeal, none exists.

Section 51(2) of the Customary Court Law of Anambra State, 1991, Cap. 38, Laws of Anambra State provides thus:
Notwithstanding the provisions of subsection (1), the Customary Court may, where the justice of the case requires, allow leave to appeal out of time upon such terms and conditions as it deems just.
It is an accepted cannon of interpretation that where words of a statute are unambiguous, they would be accorded their ordinary grammatical meaning.
The words used in the above quoted statute permit the trial customary Court to grant leave for a party to appeal outside the statutory period and in that wise, the appeal entertained by the Court below was properly enabled and therefore valid.

I resolve this issue as well in favour of the 1st Respondent and against the Appellant.

On the fourth and final issue, it was submitted for the Appellant that the joinder of the 2nd Respondent as 2nd Plaintiff was necessary as he was a necessary party based on the counter-claim of the Appellant and that the misnomer in describing him as 2nd Plaintiff when he had no claim should be discountenanced as a customary Court is not bound by rigid rules of procedure and its decision would only be set aside if found to be clearly wrong. He referred to OYAH VS IKALILE (1995) 7 SCNJ 122 at 124.

The learned counsel for the 1st Respondent on his part countered that the two Plaintiffs did not share any common interest or claim in the land in dispute as contained in the claims of the 1st Respondent and that the said 2nd Respondent gave evidence in support of the 1st Respondent as boundary neighbor.

The learned counsel then argued that the joinder of the 2nd Respondent as 2nd Plaintiff created a needless confusion which led the trial customary Court into the error of giving his unsolicited reliefs.

The final response of the learned counsel for the Appellant was that the issue of joinder of the 2nd Respondent was necessitated by the Appellant’s counter-claim and that it is not an issue for appeal in respect of customary Courts unless such a Court has clearly written rules of procedure. He referred toAGBEKONI VS KAREEM (2008) 15 WRN 117 and HALADI DADI VS IDI GARBA (1995) 9 SCNJ 232; (1995) 8 NWLR (PT 411) 12.

That however would not detract from his relevance to the said action as a defendant to the counter-claim.

I therefore agree with the Appellant that the joinder of the 2nd Respondent was proper in the circumstances.

Notwithstanding the outcome of the fourth issue, I must dismiss this appeal as unmeritorious and I do so.

The judgment of the Court below is hereby affirmed.

Cost of N100,000.00 is awarded in favour of the 1st Respondent and against the Appellant.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA dismissing this appeal.

The learned appellate Court was right when it evaluated the evidence adduced at trial, taking into consideration Exhibit “C” which was neglected by the learned trial Court. The learned trial Court failed to consider a very material piece of evidence which would have changed the course of its judgment. The evaluation of evidence and the ascription of probative value to evidence is the mainly the function of the trial Court which heard, saw and assessed the demeanor of the witnesses. However, this Court is empowered to only review such evidence. Where the evidence is documentary evidence, this is Court is in as good a position as the trial Court to evaluate such evidence. I call in aid the case of MOMOH V. UMORU (2011) 15 NWLR (Pt. 1270) 217 at 244, where the Apex Court posited as follows;
“It is the primary function of a trial Court that sees and hears a witness to assess the credibility of witnesses and to believe any of them. The issue of evaluation of evidence of the parties and their witnesses and the ascription of probative value to their evidence as received by the trial Court is an area in which the trial Court has the pre -eminence as it sees, hears and watches the demeanour of the witnesses and so in a better position to believe or disbelieve them. An appellate Court does not have the opportunity. But as regards documentary evidence, an appellate Court has as much the same forensic leverage as the trial Court to form its own opinion on them. “Per GALADIMA, J.S.C.

In the circumstance, I agree with the lead Judgment which I hereby adopt wholly as mine. I too hereby dismiss this appeal and endorse all the orders made in the lead Judgment.

IGNATIUS IGWE AGUBE, J.C.A.: I had a preview of the leading judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with the reasons adumbrated therein and conclusions reached thereat to the effect that the appeal lacks merit and should be dismissed. The issues distilled by both sides of the divide have been adequately and admirably dissected in the said leading judgment. I humbly and respectfully adopt the same as mine. The appeal is thereby dismissed. I endorse the order made in the leading judgment with regard to costs.

Appearances:

Mr. O. C. Ajuzie For Appellant(s)

Mr. H. U. Obi-Obiora for the 1st Respondent For Respondent(s)