EMERIBE & ORS v. OPARA & ANOR (2022)

EMERIBE & ORS v. OPARA & ANOR

(2022)LCN/16474(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, November 29, 2022

CA/OW/60/2015(1)

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. RAPHEAL EMERIBE 2. GEORGE UNEGBU 3. RAYMOND UGWUANYA 4. CHUKWUEMEKA EJIMOFOR (For Themselves And On Behalf Of Okorocha Family Of Umuoba Umuokochi, Umuezeawula Ihiagwa In Owerri West L.G.A) APPELANT(S)

And

1. CHIEF CHARLES OPARA 2. NATHAN OPARA (For Themselves And On Behalf Of Umuoba Umuokochi Umuezeawula Ihiagwa In Owerri West L.G.A) RESPONDENT(S)

RATIO:

THE INTENTION OF THE CONSTITUTION IN RELATION TO THE RIGHT TO APPEAL

The Constitution does not intend the absurdity of denying any right of appeal, or the right to appeal, to the Court of Appeal, to a party aggrieved with the decision of theCustomary of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to appeal to the Court of Appeal for redress. He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of appeal raise(s) “any question of customary law or such other matters as may be prescribed by an Act of the National Assembly.” OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A

THE ESSENCE OF A SUIT IN REPRESENTATIVE CAPACITIES IN A REPRESENTATIVE ACTION

The essence of a suit filed and fought in representative capacities is that in a representative action both the named Plaintiffs and/or Defendants, and those they represent, are parties to the action. However, the law permits only the named representatives as Plaintiffs or Defendants, who are the DOMINUS LITIS (the masters of the suit), to sue or be sued in a representative capacity until when the suit is determined. Those represented are deemed bound by whatever decision the Court gives for or against their representatives. Any decision given for or against the representative is a decision for or against those other persons, individuals, groups etc, they represent. SeeIn Re: Apeh (2017) 11 NWLR Part 1576 Page 252 at 292-293 Para D-D per I.T. Muhammad JSC (as he then was); Mbanefo v. Molokwu (2014) 6 NWLR Part 1403 Page 377 at 425 Para C-D per Okoro JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A

THE COMPLAIN OF BREACH OF RIGHT TO FAIR HEARING

This issue, I note, was raised as a ground of appeal before the lower Court, which Court, while agreeing with the Appellant that “recording of evidence, where contravened will relate to fair hearing if one side is not properly accorded the right of having his evidence recorded” held however that “Counsel has not shown any miscarriage of justice in his argument. More so the judgment showed what happened at the locus. The statement that the Appellants know about the locus, actually saw the Court and the Respondent, was not denied in this appeal and is detrimental to the case of the Appellants.” The Court therefore resolved this issue against the Appellants.
Whenever a party has been given ample opportunity to ventilate his grievances in a Court of law but chooses not to utilize same, he cannot be heard to complain of breach of his right to fair hearing, as what the Court is expected to do by virtue of Section 36 of the 1999 Constitution is to provide a conducive atmosphere for parties to exercise their right to fair hearing. See Compact Manifold & Energy Services Ltd v. Pazan Services Nigeria Limited (2020) 1 NWLR Part 1704 Page 70 at 95 Para E-F per Okoro, JSC; Military Governor Lagos State v. Adeyiga (2012) 5 NWLR Part 1293 Page 291 at 320 Para B-C per Adekeye, JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A

IT IS THE DUTY OF A PARTY WHO FILES A PROCESS IN COURT TO BRING IT TO THE ATTENTION OF THE COURT

The Court below, in resolution of this issue referred to the dictum of Aniagolu, JSC in Afolabi v. Adekunle (1983) 2 SCNJ 142 where His Lordship held;
“Justice is not a fencing game in which parties engage themselves inan exercise of out smarting each other in a whirligig of technicalities to the detriment of the determination of the substantial issues between them”
The lower Court, in agreement with this decision, held:
“I agree with the view of the Supreme Court. The Court below is not a slave to time. There was no evidence to the knowledge of the Court below of the pendency of the application for transfer…I hold that the Appellants were not denied fair hearing. They deliberately refused to come to Court”
I am in absolute agreement with the lower Court. It is the duty of a party who files a process in Court to bring the same to the attention of the Court and the opposing side. If he fails to do this, he has nobody but himself to blame. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A

THE FINDINGS OF TWO LOWER COURTS SHOULD NOT BE DISTURBED UNLESS THERE IS AN ERROR

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Customary Court of Appeal of Imo State, presided over by Hon. Justice P.I. Okpara, with Hon. Justice F.C. Abosi and Hon. Justice V.U. Okorie (hereinafter referred to as “the lower Court”). The lower Court, in its judgment delivered on the 20th day of March, 2012 affirmed the judgment of the Customary Court of Imo State, Ohaji, Umuapu District (hereinafter referred to as “the trial Court”) delivered on the 20th day of April, 2005 by Hon. PGSM Ekkeh (Chairman) and Hon. F. U. Uchegbulam (Member). Aggrieved, the Appellant filed a Notice of Appeal on 28/5/2012, variously amended, the extant one being Further Amended Notice of Appeal filed on 30/1/2018 but deemed properly filed on 21/2/2018.

FACTS OF THE CASE:
The Respondents herein commenced an action on the 27th day of March 1998 at the Customary Court of Imo State, holden at Umuapu (hereafter referred to as “the trial Court”) in Suit No CC/OU/49/98. The suit was filed in a representative capacity, for themselves and on behalf of members of Oparaukwuoma Manuahaotu Obaa family Umuoba, Umuokochi Umuezeawula Ihiagwa in Owerri West Local Government Area, wherein they sought a declaration that they are entitled to the Customary Right of Occupancy over the land known as “Ishi Ezi” Obaa, lying and situate at Umuoba Umuokochi Umuezeawula Ihiagwa in the Owerri West LGA of Imo State. They also sought general damages for trespass and a perpetual injunction. The Appellants similarly filed Suit No: CC/OU/23B/2002 also praying for a declaration that they are entitled to the Customary Right of Occupancy over the same land in dispute, referred to by them as Ishiezi Okorocha, situate at Okorocha’s Compound Umuokba Umuokochi Umuezeawula Ihiagwa in Owerri West LGA of Imo State. They also sought damages for trespass and a perpetual injunction. By the order of the Customary Court of Appeal, Imo State, both suits were transferred to the Customary Court, Ohaji District, holden at Umuapu and assigned Suit Nos: CC/HJ/7/2004 and CC/HJ/3/2004 and consolidated. The Respondents herein became the Plaintiffs and the Appellants became the Defendants.

Following hearing, the trial Court delivered its judgment, holding in favour of the Respondents (Plaintiffs therein). Aggrieved, the Appellants appealed to the lower Court who dismissed their appeal and upheld the judgment of the trial Court. Still aggrieved, they appealed to this Court.

During the pendency of this appeal, the Court was notified of the death of the 1st, 2nd and 3rd Appellants, leaving the 4th Appellant as the sole surviving Appellant representing his family, the Okorocha Family of Umuoba, Umuokochi, Umuezeawula Ihiagwa in Owerri West LGA.

BRIEFS OF ARGUMENT/ISSUES FOR DETERMINATION
In the Appellant’s Amended Brief of Arguments, settled by A.S. Kolawole Esq. and filed on 30th January, 2018, six (6) issues for the Court’s determination were distilled, to wit:
1. Whether the lower Court did not err in law when it confirmed the reliefs awarded by the trial Court notwithstanding that the trial Court lacked the jurisdiction to grant the said reliefs? (Grounds 7 & 8)
2. Whether the lower Court was not wrong in law when it affirmed the decision of the trial Court on the issue of visits to the locus which decision breached prescribed customary rules? (Ground9).
3. Whether having regard to the failure of the claim of the Respondents that the Appellants are strangers in their Community the lower Court was not wrong in law to have affirmed the judgment of the trial Court? (Ground 10).
4. Whether the lower Court was right in law when it held that the fact there was no evidence to the knowledge of the trial Court of the pendency of an application for transfer meant that there was no breach of the Appellants’ right to fair hearing? (Ground 2).
5. Whether the lower Court was right in law in relying on what the trial Court claimed that transpired during the visits to the locus in affirming the judgment of the said trial Court and in consequence breached the Appellants’ right to fair hearing? (Grounds 3 and 5).
6. Whether the lower Court did not deny the Appellants’ right to fair hearing when it struck out Ground 3 in the Appellants’ Notice of Appeal together with the issue distilled therefrom? (Ground 6).

The Respondent’s Further Amended Brief of Arguments, settled by J. I. Ogamba Esq. and filed on 18th February, 2022 adopted the six issues for determination distilled by the Appellants.

Appellants also filed a Reply Brief to the Respondent’s Brief of Argument on 15th October, 2020.

The Respondents’ Counsel, J.I. Ogamba contended in the Respondent’s Further Amended Brief of Arguments that no issue was derived from Grounds 1 and 4 of the Further Amended Notice of Appeal and urged this Court to strike them out as they are deemed to have been abandoned. The Appellants’ Counsel, conceded to this in his Reply Brief, however stating that no issues were formulated therefrom. Grounds 1 and 4 of the Further Amended Notice of Appeal having been abandoned are accordingly struck out.

PRELIMINARY OBJECTION
The Respondent’s Counsel filed a Notice of Preliminary Objection on the 15th day of September, 2020, urging this Court to dismiss this appeal for being incompetent in that the Further Amended Notice of Appeal does not contain any Ground(s) of Customary law. He submitted, in a Written Address filed in support, that none of the six issues distilled for the Court’s determination is competent, having been distilled from grounds of appeal which do not raise any question of customary law or the application of the customary law so ascertained to the questions in controversy. He argued that all of the grounds are on facts, questions of procedure, procedure at the locus in quo, evaluation of evidence and so on, which have nothing to do with issues of Customary law. He cited Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the cases of Pam v. Gwom (2000) 1 WRN 56 at 59-60; Golok v. Diyalpwam (1990) 3 NWLR (Part 137) Page 182; Duru v. Okoro (2015) LPELR-24483 CA, inter alia, in support of his arguments.

APPELLANT’S REPLY TO THE PRELIMINARY OBJECTION
Learned Appellant’s Counsel, responded however, that Grounds 7 and 8 of the Further Amended Notice of Appeal expressly deal with jurisdictional issues while Grounds 2, 3, 5, 6 and 9 complain of breach of right to fair hearing, which are also issues of jurisdiction. Ground 10, he said, raises questions of customary law. Counsel cited the cases of Customary Court of Appeal Edo State v. Chief (Engr) E. A. Aguele (2017) LPELR – 44632 (SC); Elumeziem & Ors v. Amadi (2014) LPELR – 22459 (CA).

RESOLUTION OF THE PRELIMINARY OBJECTION
Section 245 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:
Section 245
(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
This provision was eminently expounded in a brilliant judgment of the Supreme Court in the case of Ozoemena v. Nwokoro (2018) 17 NWLR Part 1648 Page 203 at 219 Para C-H per Ejembi Eko, JSC as follows:
“The clear intent of the Constitution, as manifested in Section 245 thereof, is that:
i. The person complaining, by his ground(s) of appeal that raise(s) “any question of customary law” against the decision of the Customary Court of Appeal in any civil proceedings, to the Court of Appeal is vested imbued (sic) with the right “to appeal as of right “against decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to appeal to the Court of Appeal against the decision of the Customary Court of Appeal.
ii. A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than “any question of customary law” and who intends to appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal.
The right of appeal, or right to appeal, to the Court of Appeal from the decision of the Customary Court of Appeal is guaranteed in general terms, by Section 240 of C.F.R.N. 1999 as amended. The right under Section 240, I repeat, is a substantive right as against the procedural right under Section 245 of the same Constitution. Put the other way, Section 245 merely provides for the means or procedure for exercising the right of appeal guaranteed by Section 240.
Accordingly, Sections 240 and 245 must be read together in order that anything meaningful be made of or out of Section 245 of the Constitution.
The Constitution does not intend the absurdity of denying any right of appeal, or the right to appeal, to the Court of Appeal, to a party aggrieved with the decision of the Customary of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from provisions of the Constitution above highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to appeal to the Court of Appeal for redress. He appeals “as of right,” by dint of Section 245(1) of the Constitution, if his ground(s) of appeal raise(s) “any question of customary law or such other matters as may be prescribed by an Act of the National Assembly.”
This pronouncement of their Lordships was further deconstructed by this Court in the case of Ewurum v. Iwuanyanwu (2021) LPELR-54909 (CA) where this Court, after setting out the pronouncement of their Lordships above, held, at Pages 17-19 Para A-A, per Amina Audi Wambai, JCA, reading the leading judgment, as follows:
“Therefore, the pertinent question is no longer whether the Appellant can appeal on any ground against the decision of the Customary Court of appeal to this Court but whether his grounds of appeal raise question of customary law in which case he appeals as of right or the grounds raise questions or issues other than question of customary law in which case he requires leave to appeal against same and where leave is not sought and obtained, the ground or grounds becomes/become incompetent and the Court (the Court of Appeal) deprived of jurisdiction to enquire into the merits of the complaints therein.
Thus, the question worthy of resolving here is whether the five grounds of appeal complained of, raise questions of customary law, and if they do not, whether the Appellant obtained either the leave of lower Court or of this Court before making them grounds of appeal in the amended notice of appeal.
To answer this question, it is necessary to take a critical and perspicuous examination of the grounds of appeal with a view to determining whether any or all the grounds raise or involve a question of customary law and if the answer is in the negative, whether leave of the lower Court or this Court was obtained before including them in the amended notice of appeal.”

The eight grounds of appeal left, having struck out grounds 1 and 4, shorn of their Particulars, are thefollowing:
GROUND 2: ERROR IN LAW
The lower Court erred in law when it held that the Appellants were not denied fair hearing, since there was no evidence to the knowledge of the trial Court of the pendency of an application for transfer.
GROUND 3: ERROR IN LAW
The lower Court erred in Law when it held follows;
Recording of evidence where contravened will relate to fair hearing if one side is not properly accorded the right of having his evidence recorded. Counsel has not shown any miscarriage of justice in his argument. More so the judgment showed what happened at the locus. The Statement that the appellants knew about the locus actually saw the Court and the Respondent was not denied in his appeal and is detrimental to the case of the Appellants.
GROUND 5: ERROR IN LAW
The lower Court erred in law when it held it relied on the evidence of visit to the Locus as contained in the judgment when there is no evidence that the Appellants had notice of the visit to the locus in breach of their right to fair hearing.
GROUND 6: ERROR IN LAW
The lower Court erred in law and when it denied the Appellants fair hearing when itstruck out the Appellants Grounds 3 of their Amended Notice of Appeal and the issue distilled therefrom and thereby denied them fair hearing.
GROUND 7: ERROR IN LAW
The lower Court erred in law and when it confirmed the reliefs awarded by the trial Court notwithstanding that the trial Court lacked the jurisdictional competence to grant the said reliefs.
GROUND 8: ERROR IN LAW
The lower Court erred in law and when it affirmed the reliefs granted against a non-party by the trial Court.
GROUND 9: ERROR IN LAW
The lower Court erred in law and when it affirmed the decision of the trial Court on the issue of visit to the locus and which decision breached customary rules.
GROUND 10: ERROR IN LAW
The lower Court erred in law and when in spite of the failure of the Respondents’ claim that the Appellants are strangers in their community, the lower Court still confirmed the judgment of the trial Court.

Grounds 2, 3, 5, 6, 7, 8 and 9 of the Notice of Appeal above, complain largely of a breach of the Appellants’ right to fair hearing, I note.

On the question whether appeals complaining of breach of fair hearingrequires the leave of the Court, the Supreme Court, in the case of Customary Court of Appeal Edo State v. Chief (Engr) E.A. Aguele& ORS(2017) LPELR-44632(SC) at Pages 45-46 Para A-B held, per EjembiEko JSC as follows:
“The Customary Court is a Court of record established by statute. It is imperative, by virtue of Section 36 (1) of the 1999 Constitution that the Customary Court, established by law, for the Customary Court in its adjudicatory function to observe and make affordable to all parties in every proceeding the right to fair hearing. It is a right the Customary Court cannot deprive any party to in any proceedings before it.
Fair hearing, whether in the context of customary natural justice principles or under the express provisions of Section 36(1) of the Constitution, is inseverable from any proceedings before the Customary Court. It is now dictated and driven by Section 36(1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and goodconscience.
I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles.”
A consideration of these Grounds of Appeal show that they are largely a complaint about the deprivation of the rights of the Appellants to fair hearing, I note. Being Constitutional issues, they do not require the leave of this Court but are grounds of appeal that can be instituted as of right, I hold.

Ground 10, however is not a Constitutional issue, I hold, neither is it a complaint against customary law. It is in substance a complaint against the evaluation of evidence. It is settled law that where the decision of the Customary Court turns purely on facts or on questions of procedure, such decision is not a question of customary law, notwithstanding that the applicable law is customary law. See Pam v. Gwom (2000) 2 NWLR Part 644 Page 322 at 335-336 per Ayoola, JSC; Ewurum v. Iwuanyanwu Supra at Page 20 Para A-B
I thus strike out Ground 10 and Issue No 3 formulated therefrom.

The Preliminary Objection therefore succeeds with regardto Ground 10 but is overruled as relate to the other grounds.

MAIN APPEAL:
I note, in the determination of the issues that arise for determination, that Issues Nos 2 and 5 formulated by the Appellant are similar. Issue 5 shall thus be subsumed under the 2nd issue.

In consequence, the issues under which this appeal shall be determined shall be the following:
1. Whether the lower Court did not err in law when it confirmed the reliefs awarded by the trial Court notwithstanding that the trial Court lacked the jurisdiction to grant the said reliefs?
2. Whether the lower Court was not wrong in law when it affirmed the decision of the trial Court on the issue of visits to the locus which decision breached prescribed customary rules and which visit was a breach of the Appellants’ right to fair hearing?
3. Whether the lower Court was right in law when it held that the fact there was no evidence to the knowledge of the trial Court of the pendency of an application for transfer meant that there was no breach of the Appellants’ right to fair hearing?
4. Whether the lower Court did not deny the Appellants’ right to fairhearing when it struck out Ground 3 in the Appellants’ Notice of Appeal together with the issue distilled therefrom?

The 1st issue for determination is:
Whether the lower Court did not err in law when it confirmed the reliefs awarded by the trial Court notwithstanding that the trial Court lacked the jurisdiction to grant the said reliefs?
APPELLANT’S SUBMISSIONS:
It is Counsel’s submission that the trial Court had no jurisdiction to grant a declaration of title over land that contains houses not in dispute and which belong to persons who are not parties to the suit; he cited Babatola v. Aladejana (2001) 12 NWLR (Part 728) Page 597 at 615 Para C-D per Mohammed JSC; Plateau State V Attorney General of the Federation (2006) 3 NWLR (Part 967) Page 346. He alleged that PW1 testified that the Appellants were strangers in the land and that portions of the land were granted to one Damian Unegbu and one Longinus Nwaneri and that Damian Unegbu is a member of the Okorocha family and thus one of the Appellants who gave authority to the Appellants to sue on their behalf; and that Longinus Nwaneri was not a party before the trialCourt. The trial Court in its judgment declared that the Respondents are “entitled to the customary right of occupancy over Ishi-EziObaa land in dispute” and awarded an injunctive relief in the following terms “The Defendants, their agents, servants, workmen and/or privies are hereby perpetually restrained from further acts of trespass into the Ishi-EziObaa land”. He contended that the trial Court cannot grant declaratory reliefs over land, out of which two houses are said to belong to the said Damian Unegbu and Longinus Nwaneri. The Court can thus not grant a declaration of title and injunctive reliefs over land that encompasses portions of land not in dispute.

RESPONDENT’S SUBMISSIONS
J.I. Ogamba, in response, submitted that this suit was brought and defended in a representative capacity and, in consequence, the judgment is binding on all the members of the represented families, including family members whose names were not expressly included. Damian Unegbu and Longinus Nwaneri, being members of the Appellant’s family are therefore bound by the trial Court’s judgment, which means that the proper partieswere before the trial Court. He however conceded that these portions of land granted to them by the Respondent’s family whereupon they built their houses are not caught by the Court’s injunctive order. He submitted further that there was no evidence from the Appellants at the trial Court challenging the Respondents’ claim and the law is trite that a Court is entitled to rely on the unchallenged or uncontroverted evidence before it. He cited Ogunyade v. Oshunkeye& Anor (2007) LPELR- 23550 (SC).

RESOLUTION
This issue, in substance, is complaining of the non-joinder of some parties, thus divesting the trial Court of jurisdiction to entertain the action.

The suits of the parties, which as above stated, were consolidated on the order of the Customary Court of Appeal, Imo State, were brought and defended in representative capacities, seeking declaration of title over the land in dispute. The Respondents sued for themselves and on behalf of members of OparaukwuomaManuahaotuObaa family Umuoba, UmuokochiUmuezeawulaIhiagwa in Owerri West Local Government Area while the Respondents sued for themselves and on behalf of OkorochaFamily of UmuobaUmuokochi, UmuezeawulaIhiagwa in Owerri West L.G.A).

The trial Court, in its judgment, after a consideration of the evidence before it, declared that the Respondents (Plaintiffs before it) are “entitled to the customary right of occupancy over Ishi-EziObaa land in dispute” and that “The Defendants, their agents, servants, workmen and/or privies are hereby perpetually restrained from further acts of trespass into the Ishi-EziObaa land”.

It was thus not necessary, I hold, to have joined the said Longinus Nwaneri and Damian Unegbu as parties to the suit before the lower Court, so long as they are members of the families represented by the named parties. As it has not been contended by the Appellant’s Counsel that the trial Court did not have the jurisdictional competence to entertain the suit founded on customary ownership of land, the lower Court, I hold, was right to have affirmed the reliefs granted. I accordingly resolve this issue against the Appellants.

The 2nd issue for determination, is:
Whether the lower Court was wrong to have affirmed the decision of the trial Court on the issue of visits to the locus and if this decision breached customary rules?

APPELLANT’S SUBMISSIONS
Learned Appellant’s Counsel contended that the trial Court is mandatorily enjoined to comply with the provisions of the Customary Court Rules which it failed to do by not properly recordingthe evidence of the witnesses at the locus in quo contrary to Order X Rules 1 and 4 (1), (2) of the Customary Court Rules 1989. He argued that other controversies and flaws trailed the trial Court’s visits to the locus in quo such as the fact that after the first visit on 15/04/2005 the trial Court adjourned the suit, on record, to 20/05/2005 for delivery of its judgment only for the second visit to have been held on 18/4/2005; and the fact that the Appellant had no notice or knowledge of either of the visits to the locus in quo.

It is also the contention of the Appellants that their right to fair hearing was breached, owing to the failure of the trial Court to issue hearing notices on the Appellant even when it was clear that the Appellants were absent on the last date of sitting which preceded the date of the visit to the locus in quo. Notwithstanding this lack of notice to the Appellants, the lower Court still placed heavy reliance on the evidence adduced at the locus in affirming the trial Court’s judgment; he cited UBA Plc v. Effiong(2011) 16 NWLR (Part 1272) Page 84 at 103 Para D-E; Ogboru v. Ibori (2005) 13 NWLR (Part 942) Page 319 at362 and 399 Para A – B; Idakwo v. Ejiga (2002) 12 NWLR (Part 783) Page 156.

RESPONDENTS’ SUBMISSIONS
The Respondents’ Counsel submitted that the Appellants’ submissions surrounding the locus in quo, are arguments on form and technicality and have nothing to do with the substance of the case. Moreover, the evidence of PW1, PW2 and PW3 already on record, settles the case for the Respondents. Thus, even if the evidence of the visit to the Locus is expunged, it will still not tilt the pendulum in favour of the Appellants, he submitted, the Respondents having proved their case on the pedestal of inheritance and traditional history.

He submitted further that the trial Court did not place much reliance on the visit to the Locus in Quo, as contended by the Appellants counsel but on the unchallenged evidence of the Respondent’s witnesses; PW1, PW2 and PW3 whose evidence was neither attacked nor discredited. The trial Court merely went to the Locus to confirm the unchallenged evidence already on record. Thus the visit to the Locus in Quo did not occasion any miscarriage of justice to the Appellants.

RESOLUTION
Thisissue, I note, was raised as a ground of appeal before the lower Court, which Court, while agreeing with the Appellant that “recording of evidence, where contravened will relate to fair hearing if one side is not properly accorded the right of having his evidence recorded” held however that “Counsel has not shown any miscarriage of justice in his argument. More so the judgment showed what happened at the locus. The statement that the Appellants know about the locus, actually saw the Court and the Respondent, was not denied in this appeal and is detrimental to the case of the Appellants.” The Court therefore resolved this issue against the Appellants.

The visit of the trial Court at the locus is captured at Pages 181-183 of the Record, where the Court noted as follows:
“On 15/4/2005 the Plaintiffs and their Counsel appeared in Court. The Defendants did not come in Court. The Court moved on locus in quo to UmuobaUmuokochiUmuezeawulaIhiagwa to see the land in dispute. Court arrived at the land by 10 am.”

Thereafter the Court recorded that the witnesses present were sworn on oath and it proceeded to record theproceedings at the locus. Subsequently, in its evaluation of the case of the parties noted, at Page 187 of the Record, as follows:
“On 18/4/2005 Court went on locus in quo to the land in dispute which situate right in the heart of Umuokachi village. The Defendants were aware and they even saw the Court and the Plaintiffs inspecting the land yet they could not show any sign of concern. On this score, one may therefore have the belief that the land in dispute does not belong to them or that they have sensed defeat after hearing the evidence of PW1, hence their gradual withdrawal from the case….”

The lower Court, from the proceedings at the locus and the evidence taken, complied substantially, I hold, with the procedure to be taken at the locus in quo, as prescribed in Section 127 of the Evidence Act 2011, I hold. It must be remembered that Customary Courts, by their nature, are created to dispense substantial justice without regard to undue technicality.
The Supreme Court, reiterating this principle, held in the case of Okereke v. James (2012) 16 NWLR Part 1326 Page 326 at 339 Para A-C held, per Rhodes-Vivour JSC, as follows:

“Rules of procedure and practice in superior Courts of record are not strictly followed in Customary Courts. It follows naturally that proceedings from Customary Courts should be examined in detail. This entails identifying the issues before that Court. The substance of the matter, and not the form it was presented. After such a diligent examination of proceedings before the Customary Court it becomes easy categorizing the proceedings as either civil or criminal”

I note that the Appellant surreptitiously subsumed his contentions under his issues 2 and 5 and which I have condensed under issue 2 above, as a complaint against lack of fair hearing. This, it is clear, is to avoid seeking the leave of Court before filing these grounds. These grounds are not in fact on Constitutional issues but merely so couched for the purpose above.

Their lackadaisical attitude in their defence of the suit at the trial Court, was captured in the judgment of that Court in its evaluation of the case before it.

The trial Court, noted, as follows:
“….the Defendants and their Counsel abandoned this case midway after hearing the evidence ofPW1 and his cross examination… They failed to come and defend their claim in the consolidated suit.. In spite of all the opportunities offered them to prove their case they still absented without writing even when the Court served them with hearing notice yet no improvement”.

Thereafter the Court recorded ten instances when both the Appellants and their Counsel were absent in Court, concluding:
“…the Court did its best to wake the Defendants up from their slumber by allowing them series of adjournments to do their case yet they ignored the pleasant offer by Court. Must this case continue AD INFINITUM? The Court believes that any litigation must have an end. This is a very old case that has suffered for long in different customary Courts.”

There was no breach of the Appellants’ right to fair hearing by the trial Court, I hold. A Court is under no obligation to continue to indulge a Counsel and litigants who have opted out of their case. A litigant who is aware of proceedings cannot allege denial of his right to fair hearing. See Ezechukwu v. Onwuka(2016) 5 NWLR Part 1506 Page 529 at 554 Para A-D per M.D.Muhammad JSC.
Whenever a party has been given ample opportunity to ventilate his grievances in a Court of law but chooses not to utilize same, he cannot be heard to complain of breach of his right to fair hearing, as what the Court is expected to do by virtue of Section 36 of the 1999 Constitution is to provide a conducive atmosphere for parties to exercise their right to fair hearing. See Compact Manifold & Energy Services Ltd v. Pazan Services Nigeria Limited (2020) 1 NWLR Part 1704 Page 70 at 95 Para E-F per Okoro, JSC; Military Governor Lagos State v. Adeyiga (2012) 5 NWLR Part 1293 Page 291 at 320 Para B-C per Adekeye, JSC.

The Appellants thus have nobody but themselves to blame if they chose not to avail themselves of these opportunities, yet complaining contrarily of lack of fair hearing. I hold that the lower Court was right to have affirmed the decision of the lower Court taken at the locus on quo. I again resolve this issue for determination against the Appellants.

The 3rd issue for determination, is:
Whether the lower Court was right in law when it held that the fact that there was no evidence to the knowledge of the trialCourt of the pendency of an application for transfer meant that there was no breach of the Appellants right to fair hearing?

APPELLANTS SUBMISSIONS
It is learned Counsel’s submission that it is wrong for the lower Court to have affirmed the decision of the trial Court that there was no evidence of the pendency of an application for transfer, as the law does not impose any further obligation on a party after the filing of the requisite processes. The obligation to bring the processes to the knowledge of the Court and the opposing party lies squarely on the bailiff of Court; whose shortcomings and inadequacies cannot be visited on the litigant. He cited the cases of R.M.A.F.C v. Onwuekpeikpe (2009) 15 NWLR (Part 1165) Page 592 at 608 Para B-D; Fidelity Bank Plc v. Monye (2012) 10 NWLR (Part 1307) at 35-36 Para G-B.

RESPONDENTS SUBMISSIONS
On the issue of the Motion for transfer, the Respondents’ Counsel contended that a Motion for Transfer can only operate to stay the proceedings of the Court when the Motion has been filed and served on the Respondents and is properly before the Court, in the Court’s file. Counsel contendedthat throughout the Record of Appeal, there is no iota of evidence showing that a Motion for transfer was filed, served on the Respondents or brought to the attention of the Court. Since it is the duty of a diligent litigant to ensure that his processes are appropriately filed, served and brought to the Notice of the Court and the Respondents, the Appellants, having stayed away from the proceedings, cannot be allowed to turn around to lay blame on Court officials. He cited Obiozor v. Nnamua (2014) LPELR-23041 (CA); Ibator&Ors v. Barakuro&Ors (2007) ALL FWLR (Part 37) Page 1669 at 1695.

RESOLUTION
It has not been suggested by the Appellants that the order for transfer of the case was brought to the attention of the Respondent or the trial Court. Indeed, the Respondents’ Counsel, at the lower Court, at Page 251 of the Record, denied that the motion for transfer was served on either them or the trial Court.
The Court below, in resolution of this issue referred to the dictum of Aniagolu, JSC in Afolabi v. Adekunle (1983) 2 SCNJ 142 where His Lordship held;
“Justice is not a fencing game in which parties engage themselves inan exercise of out smarting each other in a whirligig of technicalities to the detriment of the determination of the substantial issues between them”
The lower Court, in agreement with this decision, held:
“I agree with the view of the Supreme Court. The Court below is not a slave to time. There was no evidence to the knowledge of the Court below of the pendency of the application for transfer…I hold that the Appellants were not denied fair hearing. They deliberately refused to come to Court”
I am in absolute agreement with the lower Court. It is the duty of a party who files a process in Court to bring the same to the attention of the Court and the opposing side. If he fails to do this, he has nobody but himself to blame.
It was held by this Court in the case of MT “DELMAR” & ANOR v. MT “ANE (EX MT LESTE”) & ORS (2016) LPELR-40067(CA) at Pages 20-21 per Iyizoba JCA that:
“a Party who files a process and pays the necessary service fees is not at liberty to go to bed after filing but is duty bound to follow up on service and the matter generally. Ajayi v. Omoregbe (1993) 6 NWLR (Pt. 301) 512 AT 534.”
The Supreme Court, in the case of Ibator v. Barakuro (2007) 9 NWLR Part 1040 Page 475 had occasion to castigate the attitude of Counsel who file processes and without bringing it to the attention of the Court turn round to accuse the Court of failing to hear and determine the application.
It held, per Ogbuagu JSC at Page 502 Para A-G, as follows:
“Wonders, it is said, will never end. The records on the hearing date or even before the judgment or even on the date of the judgment have not shown where the appellants’ said motion/application was ever mentioned to the Court below/Justices, how much more to talk of their failing to hear the said application. If the learned counsel for the appellants, in his wisdom, had decided as the “master” of their appeal before the Court below, to abandon their said motion and not even to mention it, how does the Court below or the Justices come in? I or one may ask. It should have been a different matter, if the learned counsel for the appellants had mentioned their said motion and the Court below refused to hear the same and insisted on going on or ahead with the hearing of the appeal. Then,there and then, the complaint of the learned counsel for the appellants and not even the appellants personally, should have been understandable and considered. To now blame the blameless or “shift the buck” – so to say, of the failure or refusal of the learned counsel or his neglect to mention their motion or move it to the learned Justices of the Court below and blatantly accuse them of refusal to hear and determine the said application, to me, is unfair and not justified to say the least and it is unacceptable to me, with the greatest respect to the learned counsel to the appellants. Instead of graciously accepting or conceding his fault or negligence and blame this on perhaps, inadvertence, he now shifts non-hearing of the motion on the learned Justices of that Court.”
I hold likewise. If indeed, there was any order for transfer, which the Respondents’ Counsel has denied, and which was never brought to the attention of the trial Court, the Appellants can hold nobody but themselves culpable, I hold. The lower Court was thus right to hold that “there was no evidence to the knowledge of the Court below of the pendency of an applicationfor transfer”.
I again resolve this issue against the Appellant.

The 4th issue for determination is:
Whether the lower Court did not deny the Appellants’ right to fair hearing when it struck out Ground 3 in the Appellants’ Notice of Appeal together with the issue distilled therefrom?

APPELLANTS’ SUBMISSIONS
The Appellants’ Counsel has submitted that the lower Court breached the Appellants’ right to fair hearing when it struck out Ground 3 of the Appellant’s Notice of Appeal together with the issue formulated therefrom. He argued that contrary to the ratio of the lower Court that the said Ground relates to an issue of evaluation of evidence and as such was not an issue of customary law, Ground 3 of the Appellant’s Notice of Appeal raises a substantial issue of customary law.

RESPONDENTS’ SUBMISSIONS:
Respondents’ Counsel submitted that Ground 3 of the Notice of Appeal is not a ground of Customary Law as stipulated by the Constitution. He cited Nwaigwe v. Okere (2008) ALL FWLR (Part 431) 843 at Page 866; Pam v. Gwom (2000) 1 WRN 56 & 59-60.

RESOLUTION:
Ground 3 before the lower Court is as follows:
“The judgment was against the weight of evidence. The trial Court erred in law by giving judgment in favour of the Respondents against the weight of evidence, contradiction and lack of corroboration”

The lower Court held, at Page 254 of the Record:
“Ground 3 relates to the issue of evaluation of evidence and not therefore an issue of Customary Law. The Ground and the issue distilled therefrom are hereby struck out”.

On whether a ground that the judgment is against the weight of evidence is a question of customary law, the Supreme Court, in the case of OdoemenaNwaigwe&Ors v. Nze Edwin Okere (2008) LPELR-2095 (SC) held, at Pages 26-27 Para G-B, per Onnoghen JSC (as he then was):
“… the complaint that a decision of a Court is against the weight of evidence or is unreasonable, unwarranted and cannot be supported having regards to the evidence, is purely a complaint on facts with no connection whatsoever to law, Customary or otherwise. For the Question of Law raised under Sections 224(4) and 247(1) of the 1979 Constitution, (Section 245 of the 1999 Constitution) to bevalid, it must relate to some aspects of the Customary Law that the relevant customary Court applied or had the jurisdiction to apply”.

Ground 3 before the lower Court I hold, from the authority above, is not a ground of customary law as contemplated by the Constitution and was rightly struck out by the lower Court, I hold. I again resolve this issue against the Appellants.

Indeed, it is well settled that the concurrent findings of two lower Courts should not be disturbed unless there is a substantial error apparent on the record: that is, the findings have been shown to be perverse, or there is miscarriage of justice or some material violation of a principle of law or of procedure is shown. See Fayemi v Oni (2020) 8 NWLR Part 1726 Page 222 at 248 Para A-B, per Galumje JSC; Nigerian National Petroleum Corporation v. Roven Shipping Ltd (2019) 9 NWLR Part 1676 Page 67 at 90 Para C-D per Peter-Odili JSC.
No such circumstances have been shown to exist in this case. Having resolved all the issues against the Appellant, this appeal fails, being entirely unmeritorious and is accordingly dismissed, with costs of N100,000 to be paid by the Appellants tothe Respondents. The judgment of the Customary Court of Appeal of Imo State, presided over by Hon. Justice P. I. Okpara, with Hon. Justice F. C. Abosi and Hon. Justice V. U. Okorie, delivered on the 20th day of March, 2012 in Appeal No. CCA/OW/A/83/2009 is accordingly affirmed.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions.

The appeal fails. The judgment of the Customary Court of Appeal of Imo State delivered on the 20th of March 2012, in Appeal No: CCA/OW/A/83/2009 is hereby affirmed.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read in advance, the draft of the judgment read by my learned brother O. A. Adefope-Okojie, JCA. The reasoning and conclusion as elucidated in the judgment are convincing. I am in total agreement with his decision. I adopt them as mine.
I abide by the consequential Orders made.

Appearances:

A.S. KOLAWOLE, with him, K.O. OGOKO For Appellant(s)

J.I. OGAMBA For Respondent(s)