PATRICK GODDY EKWUNO & ORS. v. BOSAH EKWUNO
(2011)LCN/5062(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of July, 2011
CA/E/299/2008
RATIO
THE GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
The grant of an application for enlargement of time within which to appeal is at the discretion of the court, which, of course, must be exercised judicially and judiciously. However, the discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court. See Akinpelu v. Adegbore (2008) 10 N.W.L.R. (Pt.1096) 531 at 554 paras F – H; Akinyede v. The Appraiser (1975) 2 SC 39; Obikoya v. Wema Bank (1989) 1 N.W.L.R. (Pt.96) 157. This is so because Order 7 Rule 10(2) of the Court of Appeal Rules reproduced above clearly requires an Applicant to file an affidavit in support of the application which must give satisfactory explanation for the delay. Put differently, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. Such materials as would enable the court to exercise its discretion in favour of the Applicant must be made available in the affidavit. Secondly, the Grounds of Appeal must show good cause why the appeal should be heard. Once the Grounds of Appeal prima facie show good cause why the appeal should be heard, and the reason for the delay is reasonably explained, the application will be granted. It is not the duty of the court at this stage to consider whether the appeal will succeed’ This aspect is to be left for consideration at the hearing of the appeal. See Ibodo Ogbu v. Urum (1991) 4 SC 1; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Shittu v. Osibanjo (1988) 3 N.W.L.R. (Pt.83) 483; Ukwu v. Bunge (1997) 8 N.W.L.R. (Pt.518) 527; Ikenta Best Nig. Ltd. v. Attorney General of Rivers State (2008) 6 N.W.L.R. (Pt.1084) 612. PER. ABDU ABOKI, J.C.A.
THE POSITION OF THE LAW WHERE AN ISSUE OF PRELIMINARY OBJECTION IS RAISED IN AN APPEAL
It is a general rule that once an issue of Preliminary Objection is raised in an appeal, the Appellate court must entertain it first before taking on the issues raised in the Appeal. This is because if the objection is sustained, the appeal would automatically be terminated. See Ngige v. Obi (2006) 14 NWLR Pt.999 page 1. Abiola v. Olawoye (2006) 13 NWLR pt 996 page 1. UBA Plc v. ACB Nig Ltd (2005) 12 NWLR Pt.939 page 232. National electric Power Authority v. Ango (2001) 5 NWLR pt 737 page 627 at 646. PER. ABDU ABOKI, J.C.A.
THE PURPOSE OF PRELIMINARY OBJECTION TO AN APPEAL
The purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which, if it succeeds would put an end to the Appeal. See N.E.P.A. v. Ango (2001) 15 NWLR pt.737 page 627 at 645-646. It follows therefore that a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of dismissing the hearing of the Appeal. An objection to qualify as a preliminary objection must involve serious argument and consideration on a point of law which if decided one way or the other is going to bring an end to the matter. PER. ABDU ABOKI, J.C.A.
THE DUTY OF COURT TO REJECT OR DISREGARD EVIDENCE AT VARIANCE WITH THE PLEADINGS OF THE PARTIES.
The court as well as the parties to a case are bound by the pleadings. A court adjudicating in a case governed by pleadings should only decide on the issues which the parties have put forward by their pleadings. Consequently, the parties cannot lead evidence at variance with their pleadings, or set up a case different from that in their pleadings. The court is bound to reject or disregard evidence at variance with the pleadings of the parties. See: Lateef Akoni & 2 Ors v. Prince Nojin Odejide & 3 Ors (2004) 9 NWLR pt 879 page 575 at 597-598. SCOA Nig Ltd v. Vaughan & Ors (2003) 1 NWLR pt.800 page 210 at 219. Osafile v. Odi (No.1) (1990) 3 NWLR pt 137 page 130. PER. PER. ABDU ABOKI, J.C.A.
LAW OF EVIDENCE: ON WHOM LIES THE BURDEN TO PROVE AN ASSERTION
By virtue of section 137 of the Evidence Act 1990, in civil cases the burden of proof is on the party who asserts a fact to prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. See Agbi v. Ogbeh (2006) 11 NWLR pt 990 page 65. Longe v. F. B. N. Plc (2006) 3 NWLR pt.967 page 228. Mani v. Shanono (2006) 4 NWLR pt 969 page 132. Imam v. Sheriff (2005) 4 NWLR pt 914 page 80. Akani v. Odejide (2004) 9 NWLR pt 879 page 575. Andi v. Grita (2004) 4 NWLR pt 864 page 463. Okiri v. Ifeagha (2001) FWLR pt 73 page 140. PER. ABDU ABOKI, J.C.A.
THE POSITION OF THE LAW ON CONTRADICTION IN THE EVIDENCE
Contradiction in the evidence of the Plaintiffs witness is disastrous and has the effect of destroying the case of the Plaintiffs. See Audu v. Guta (2004) 4 NWLR pt.864 page 463. It is also well established that where a witness gives evidence against the party that called him, such evidence will be regarded as one against interest unless explanations are given to the satisfaction of the court, that such admission should not be regarded or due weight given to it. See Odi v. Iyala (2004) 1 NWLR pt 875 page 283. Omisaodu v. Elewuju (2006) 13 NWLR pt.998 page 517. PER. ABDU ABOKI, J.C.A.
THE POSITION OF THE LAW WHENEVER THE QUESTION OF OWNERSHIP OF A THING IS IN ISSUE
By virtue of section 146 of the evidence Act, whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of such thing. The burden of proving that he is not the owner is on the person who contests that ownership with the person in possession. See Okhnardbo v. Aigbe (2002) 9 NWLR pt.771 page 29.
THE POSITION OF THE LAW ON CUSTOMARY LAW AND TRADITIONAL EVIDENCE
In cases of customary law and traditional evidence it is good law that it is desirable that a person other than the person asserting it, should also testify in support thereof. Since native law and custom must be strictly proved, it is therefore unsafe to accept the statement of the only person asserting the existence of a custom as conclusive. See Adio Serekan & Anor v. The Military Governor, Ogun State (1995) 26 LRCN 110. Ekpenga v. Ozogula II (1962) 1 SCNLR 423, (1962) 1 ALL NLR (pt.1) page 264. PER. ABDU ABOKI, J.C.A.
Before Their Lordships
AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria
ABDU ABOKIJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
Between
1. PATRICK GODDY EKWUNO
2. STANLEY EKWUNO
3. CHRISTOPHER EKWUNO
4. CHUKWURAH EKWUNO
(for themselves and on behalf Of the rest members of the Family of the Late Akunne Mark Anirah Ekwuno of Umuikem Village, Onitsha excluding the Defendant Bosah Ekwuno)Appellant(s)
AND
BOSAH EKWUNORespondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the decision of D. O. C. Amaechina J. of the Anambra State High court, Onitsha Judicial Division, sitting at Onitsha delivered on Tuesday 19th February, 2008.
The Plaintiffs in their Amended Statement of Claim dated and filed on 20th April 2006 claimed the following reliefs thus;
“47. WHEREFOR the plaintiff claim against the Defendant as follows:-
(a) A declaration that the part/portion of the landed property shown verged Red and the building shown verged yellow within the said Red verge in the plaintiff’ survey Plan No. EZ/ANLD22/200 which land is situate at No.1 Umuikem Road, Onitsha within jurisdiction, is the Iba compound and Iba house respectively of the late Akunne Ekwuno.’
(b) A declaration that the succession thereto and therefore it occupation to wit, the said Iba under the native law and custom of Onitsha resides in or is vested only in the plaintiff who are potential heads of the family of the late Akunne Ekwuno as against the Defendant whose father predeceased the late Akunne Ekwuno.
(c) N5000.00 (five thousand naira) being general damages for trespass over the said Iba compound and Iba house.’
(d) Order of perpetual injunction restraining the Defendant whether by himself or his agents/privies howsoever named/described from continuing to occupy the said Iba house or building or the compound or in any manner or way interfering with the plaintiffs’ rights over the disputed property.”
The defendant filed his Statement of defence before the Plaintiffs’ Amended statement of claim was filed.
The Amended Statement of defence was filed nearly 3 years before the Amended Statement of Claim was filed.
The Defendant joined issues with the Plaintiffs in the said Amended Statement of defence dated 16/10/2003 but filed 4/11/2003
Both parties on 21/11/07 adopted and relied on their written addresses.
The lower court in a considered judgment dismissed the Plaintiffs’ case. The Plaintiffs dissatisfied with the said judgment appealed to this court vide their notice of Appeal containing seven grounds.
The Plaintiffs now Appellants before this court formulated three issues from the seven grounds of appeal and they are as follows:-
1. Did the Plaintiff/Appellants prove their case and was the trial judge not wrong to have to dismissed the Appellants’ case.
2. Did the Defendant/Respondent discharge the onus on him of proving gift inter – vivos of the disputed property by extension that the property had ceased to be a family property as at 1992.
3. Did the learned trial judge properly evaluate the evidence before him.
The Defendant now the Respondent distilled two issues for determination from the seven grounds of appeal filed by the Appellants.
The issues are reproduced as follows:-
(i) Whether or not the Plaintiffs’/Appellants’ case was admitted by the Respondent at the close of pleadings in the court below as to remove the onus of proof on the Appellants.
(ii) Whether or not the findings of fact made by the court below can be faulted when the Plaintiffs/Appellants did not Appeal against them. The Respondent had earlier filed a notice of Preliminary Objection dated 5/8/09.
The notice of Preliminary Objection was brought pursuant to order 6 Rule 6 of the court of Appeal rules 2007 and under the inherent powers of the court and seeking for the following reliefs:-
“i. An order of court striking out grounds 1, 2, 3 and 4 of the grounds of appeal on the grounds that they are incompetent as they do not relate to issue No. l formulated by the Appellant in this Appeal
ii. For such further order or orders as this Honourable court shall deem fit to make in the circumstances of this suit”
The notice was supported by a five paragraph affidavit. Paragraph 3, 4 and 5 are pertinent and are hereby reproduced thus:-
“3. That Chief Ikenna Egbuna told me and I verily believed him that issue No.1 framed in this suit by the Appellant does not relate to ground I to 4 of the Notice of Appeal.
4. That Chief Ikenna Egbana told me and I verily believed him that the fact deposed in paragraph 3 above makes the grounds of Appeal incompetent and liable to be struck out.
5. That I make this affidavit in good faith believing the contents to be accordance with the Oaths Acts.”
The Appellants filed a counter – affidavit of five paragraphs. Paragraphs 3, 4 and 5 are pertinent and are adumberated as follows:-
“3. Paragraphs 3 – 5 of the affidavit in support of the Notice of Preliminary Objection are not true.
4. The said facts contained in the said paragraphs of the affidavit ought to be disregarded for the reasons given in the Reply to the Respondent’s Brief.
5. I make this affidavit bonafide in accordance with the Oaths Acts in force.”
The Respondent argued his Preliminary Objection at pages 5 – 7 of the Respondent’s Brief of Argument.
The Appellants’ reply to the Preliminary Objection is contained on pages 2 – 7 of the Appellants’ Reply Brief.
It is a general rule that once an issue of Preliminary Objection is raised in an appeal, the Appellate court must entertain it first before taking on the issues raised in the Appeal. This is because if the objection is sustained, the appeal would automatically be terminated. See
Ngige v. Obi (2006) 14 NWLR Pt.999 page 1.
Abiola v. Olawoye (2006) 13 NWLR pt 996 page 1.
UBA Plc v. ACB Nig Ltd (2005) 12 NWLR Pt.939 page 232.
National electric Power Authority v. Ango (2001) 5 NWLR pt 737 page 627 at 646.In the instant case, it is the submission of the Respondent on the Preliminary Objection that issue No.1 framed by the Appellants did not flow from grounds 1 to 4 of the grounds of Appeal. It was argued that the issue has no foundation and is therefore incompetent. Learned counsel for the Respondent Ikenna Egbuna submitted that there is a complete and total failure to relate grounds I to 4 of the Notice of Appeal to the issue framed and that there is no claim link relationship. He contended that a look at grounds 1 to 4 of the notice and ground of appeal at pages 283 to 288 of the Record of Appeal will bear out this assertion.
Learned counsel argued that ground I of the Notice of Appeal complained that the learned trial judge erred in law in dismissing the Plaintiffs’/Appellants’ case despite the fact that their case had been admitted in paragraph 17 of the amended statement of defence, and went ahead in the particulars to state paragraphs of the Amended Statement of claim that were not denied and therefore deemed to be proved.
Learned counsel further argued that ground 2 of the grounds of Appeal complained of the error of the trial judge in the finding he made, and that in the particulars he stated that the error was because the Plaintiffs’ case had been admitted following the Defendants’ non denial in his Amended Statement of defence.
Learned counsel contended that in ground 3 the Appellants’ complained of error in law and in the particulars he stated that the error was occasioned as a result of the failure of the learned trial judge to take into consideration the admission of the plaintiffs’ case following non denial by the Defendant.
He further contended that ground 4 complains of error in law and fact and that the particulars (b) and (c) complained of admission following non denial. Learned counsel maintained that this ground also suffers an additional vice as error in law and misdirection cannot be lumped together. He argued that there is nothing in our jurisprudence known as error in law and fact.
Learned counsel submitted that the said grounds 1 – 4 complained that at the end of pleadings it was clear that the Appellants case had been proved following the non denial of their case by the Respondent in his pleadings. He argued however that issue No. I framed by the Appellants talks of whether the Plaintiffs/Appellants proved their case. Learned counsel submitted that the High Court Law of Anambra State made specific provisions for admission and proof in a case at the trial. He referred the court to Order 19 rule 1 of the High court of Anambra State (civil procedure) Rules 2006, and that Order 32 rules 1 (1) to (a) provides for the procedure for proof in cases where there is no admission. Learned counsel argued that it is clear from the provisions of the High Court (civil procedure) Rules of Anambra State 2006 that there is a difference between an admission in a case and facts proved and that the procedure for both admission and proof are different. Learned counsel maintained that while grounds 1 to 4 of the Notice and grounds of Appeal complained about admission, issue I framed from the grounds complained of proof.
Learned counsel for the Respondent prayed the court to strike out grounds 1 – 4 of the Notice and grounds of Appeal.
In reply to the Preliminary Objection, learned counsel for the Appellants Mike Uchenna Ikem Esq referred the court to Order 32 rule 1 of the High Court of Anambra State (civil procedure) Rules 2006 and submitted that proof of fact under the said rule is also subject to any enactment relating to evidence. He maintained that the proof of fact in a proceedings under the High Court of Anambra State (civil Procedure) Rules 2006 is not limited/restricted solely to the observance of the provision in Order 32 rule 1 (1) – (4) but is extended to observance of any other enactment relating to evidence to be led in proof of fact at the trial. He referred the court to the provision of section 75 of the Evidence Act 1990 and Order 19 rule 1 of the Anambra High Court (civil procedure) Rules 2006 and submitted that prove of fact in contention can be heard/sustained where the opposite party admits those facts in his pleadings. Learned counsel referred the court to the works of the learned author of Obi Okoye on civil procedure Rules vide Article 276 at page 284, where the learned author stated that “admission is the strongest form of proof. What is admitted need no further proof and the party admitting a fact cannot appeal against that fact” , while order 19 rule I stipulates that any party to a proceedings may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of the other party.
Learned counsel contended that the Appellants had alluded to paragraphs 27 – 31 of their Amended Statement of claim wherein they had pleaded the fact of the particulars of their father’s land at No.1 Umuikem Road, Inland Town Onitsha and the fact that the Survey Plan which they had filed along with the said Statement of claim is reflective of the true and correct feature of the partitioned state in the disputed land. He maintained that these facts contended/submitted by the Appellants were admitted in paragraph 17 of the Respondent’s Amended Statement of Defence. Learned counsel argued that the Respondent by his pleadings had admitted the said fact and same need no further proof ordinarily, but for the fact that a declaratory relief was being sought by the Appellants at the court below.
Learned counsel maintained that at the lower court, the Appellants after dealing with other relevant facts such as the exhibit F tendered in the court and the oral evidence of Pw1, Pw2, Dw1 and Dw2 respectively on the said facts which supported the Appellants’ case. The Appellants referred the court to the case of Akininwo v. Nsirim (2008) All FWLR (pt 410) page 610 to show that they were aware of the legal burden on them to lead oral evidence which they contended they had done.
He urged the court to hold that the civil procedure rules of Anambra State High Court 2006 does not support the Respondent rather the said Rules support the Appellants in what they did in regard to the issue framed and the grounds of Appeal 1 – 4.
Learned counsel argued that the Respondent’s submission that there is difference under the civil procedure Rules of Anambra State 2006 between an admission and facts proved in a case and that the procedure for establishing admission and proof are different, is a misconception. He submitted that having regard to the provisions of section 75 of the Evidence Act and Orders 19 rule 1, order 32 rule 1 (1) – (4) of the Anambra State High Court (civil Procedure) Rules 2006, there is no such difference. Learned counsel argued that a party who by his pleadings had admitted facts put across by the opposite party is estopped from denying same for he cannot blow hot and cold at the same time.
He submitted that if the court finds as submitted that there is no dividing line between proof and admission, courtesy of section 7 5 of the Evidence Act, then the court will be urged to hold that issue No 1 which speaks of proof, clearly had nexus with grounds 1 – 4 of the Notice and grounds of Appeal which in various ways dealt with the proof of the case of the Appellants.
Learned counsel for the Appellants submitted that the High Court of Anambra State (civil Procedure) Rules 2006 being a state enactment cannot over ride a Federal Act and that if there is a conflict between this two legislations (which he however did not admit) the (civil Procedure) Rules of High Court of Anambra State 2006 to the extent of the said conflict shall be disregarded, discountenanced and shall be regarded as of no effect. He urged the court to uphold the Appellants submission and to dismiss the Preliminary Objection as lacking in merit in every respect.
The purpose of preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective which, if it succeeds would put an end to the Appeal. See N.E.P.A. v. Ango (2001) 15 NWLR pt.737 page 627 at 645-646. It follows therefore that a preliminary objection can only be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of dismissing the hearing of the Appeal. An objection to qualify as a preliminary objection must involve serious argument and consideration on a point of law which if decided one way or the other is going to bring an end to the matter.
Order 10 Rule 1 of the Court of Appeal rules 2007 stipulates the obligation placed upon a Respondent intending to rely upon a preliminary objection to the hearing of an Appeal. The rule provides that the ‘Respondent shall:
a. give the Appellant three clear days notice before the hearing.
b. set out the grounds of objection
c. file such notice together with twenty copies thereof with the registry within the same time.
In the instant case the Respondent’s notice of preliminary objection dated and filed on 5th August 2009 did not set out the grounds of the objection. A Respondent relying on a preliminary objection cannot be said to have complied with the provisions of the Rules where he fails to set out the grounds of his preliminary objection.
Further more the preliminary objection only attacks four out of the eight grounds of appeal identified by the Appellant. The preliminary objection even if upheld is not capable of disturbing the hearing of the Appeal.
I have carefully read grounds 1-4 complained of in the notice of preliminary objection which the respondent said are not competent as they do not relate to issue No.1 formulated by the Appellants.
A ground of appeal cannot be both errors in law and of the fact at the same time.
See Aniekwe v. Okereke (1996) 6 NWLR pt 452 page 60.
First Bank of Nig. Ltd v. Njoku (1995) 5 NWLR pt 384 page 457.
Brogon v. Awan (1995) 7 NWLR pt.410 page 692.
Anibire v. Womiloju (1993) 5 NWLR pt.295 page 623.Ground 4 of the Appellants’ notice and grounds of appeal which complains of error in law and on the fact is incompetent and is hereby struck out.
Ground 1, 2 and 3 all complain of error in law by the lower court in entering judgment for the Respondent despite the admission in his pleadings of a vital fact to the case of the Appellants. The Respondent has complained in the preliminary objection that issue 1 is unrelated to grounds 1, 2, 3 and 4 from which it was distilled.
An issue which is unrelated to the ground of appeal under which it is formulated may not be struck out if it is found that it relates to any of the other grounds of appeal.
See: G Cappa Plc. v. Ambine & Sons (Nig.) Ltd. (2001) 10-11 SC 87.
In the instant case, the remaining grounds 1, 2 and 4 in my opinion relate to issue No. 1 and are capable of sustaining it.
This preliminary objection succeeds in part.
Having disposed of the preliminary objection, attention will now be focus on the three issues formulated for the determination of this Appeal.
Issue 1 and 2 as formulated by the Appellants are very closely linked and same will be examined together.
Issue 1.
‘Did the plaintiffs/Appellants prove their case and was the trial judge not wrong to have dismissed the Appellants’ case.’
Issue No.2
‘Did the Defendant/Respondent discharge the onus on him of proving gift inter-vivos of the disputed property and by extension that the property had ceased to be family property as at 1992.
It was submitted by learned counsel for the Appellants Mike Uchenna Ikem that by their amended statement of claim dated and filed on 20/4/06, the Appellants as Plaintiffs pleaded in paragraphs 27 -31 inter-alia that the property of their late father Akunne Mark Anirah Ekwuno was partitioned and shared and a portion thereof shown verged red in the Survey plan No. EZ/AN/LD22/01 within which situated the bungalow room verged yellow was carved out as the Iba house of the late Akunne Ekwuno by the family with the help of members/elders of their Umuikem village who took part in the said partition exercise.
Learned counsel argued that by paragraph 17 of the Amended Statement of defence dated 16/10/03 and filed 4/11/03, the Respondent admitted the said paragraph 27-31 of the Amended Statement of claim. He further argued that in proof of the said averment he tendered Exhibit A, their survey plan to buttress their case.
He further argued that instead of finding for the Appellants premising same on the admission made by the respondent in paragraph 17 of he Amended Statement of defence and on the documentary evidence, the learned trial judge went on to find erroneously in favour of the Defendant.
Learned counsel submitted that contrary to the finding of the lower court, there was ample of evidence by PW1 which was not dislodged to support the claim that the Iba was in use through out from 1992 to 2001 when the dispute arose.
He argued that the evidence of PW1 as to the use of the Iba after the carving out of same was never challenged and that the finding of the trial court can not be supported having referred to the evidence of PW1.
Learned counsel contended that what was lost in the court below was the real question in dispute whether the Iba was indeed carved out in 1992 and whether Iba once carved out cannot be taken away from its beneficiaries.
He argued that the Plaintiff pleaded in paragraph 45(e) of their Amended Statement of claim that once Iba has been created, it can not be shifted. It was averred on behalf of the Plaintiffs that any decision contained in the document (Exhibit F) tending to deny the Plaintiffs of their claim or right is incompetent, over reaching, null and void, and cannot avail the Defendant. He maintained that in support of the said averment, PW2 Chief Albert Ikem Adadan the Esagba of Onitsha gave an unchallenged evidence and was never cross examined by the defence.
It was contended that paragraph 45(e) of the Amended Statement of claim came by way of amendment to the statement of claim and was never responded to by further Amended Statement of defence even though leave was given to the defence to file consequential amendment.
Learned counsel submitted that it is trite law that in civil cases at the High Court, issues are joined on pleadings and that if the Defendant failed as in the instant case to amend his Amended Statement of defence notwithstanding the new paragraph 45(e) of the Amended Statement of claim he will be deemed to have admitted the new paragraph. The court was referred to section 45 of the evidence Act and the case of Mobil Oil (Nig) Plc v. I.A.L. 36 INC (2000) 6 NWLR pt 659 page 146 at 171.
Learned counsel maintained that by the reason of the failure to meet the plaintiffs on the averment in the new paragraph 45(e) of the Amended Statement of claim, the defendant had admitted that once Iba always Iba and same cannot shift.
He submitted that it took the Defendant nine years before going to a new village panel to arbitrate on the point already settled in 1992 and that the 2001 arbitration was incompetent and invalid.
Learned counsel contended that it was not the right of the arbitral body set up during the pendency of the case in 2001 to make a decision or review the case of the parties one way or the other and for the court to accept such decision. He argued that it was the duty of the said panel to attempt to settle the dispute out of court which decision the parties are free to accept or reject. It was submitted that the decision ought not be admitted in court in the first place and if admitted as in this case it ought to be expunged by the court in its final decision. The court was referred on the point to the provisions of section 91(3))4) and (5) of the evidence Act and the cases of
G. U. O. Okeke & Sons Ltd. v. Usifor (2005) ALL FWLR pt 428 page 290 at 300.
Owuala Kamalu & Ors v. Peter Ojoh (2000) 11 NWLR pt 679 page 505 at 512-513.
R. Oneh v. Obi (1999) 7 NWLR pt 611 page 487 at 499.
Learned counsel maintained that the 2001 panel was decidedly biased in favour of the Defendant. He insisted that aside the provision of section 91 (3)-(5) of the evidence Act, 1990, the court ought to have refused to be influenced by the decision in paragraph 10(v) and 10(vii) of Exhibit F. He argued that the panel gave decision in the case that is before the court and that was sub-judice. Learned counsel argued that the court below fell into an avoidable error in relying on the said Exhibit F the product of the said incompetent forum. He submitted that the judgment of the court below was therefore perverse as it was uncalled for having regard to the evidence before the court.
Learned counsel submitted that it is trite law that in land cases where declaratory reliefs are sought by the plaintiffs that they must lead oral evidence in prove of the claim notwithstanding the admission of the claim by the Defendant in his statement of defence. He referred the court to the case of Akaninwo v. Nsirim (2005) ALL FWLR pat 410 page 610 at 649
Learned counsel insisted that the Defendant cannot be heard to admit paragraphs 26-31(b) of the Amended Statement of claim vide paragraph 17 of the Amended Statement of defence at the same time deny same vide paragraphs 16 and 18 of the Amended Statement of defence and in his oral evidence. Learned counsel maintained that the plaintiffs tendered Exhibit A their survey plan EZ/ANLD22/2001 in which the area carved out as the Iba compound and house was clearly depicted and verged Red and Yellow respectively but that the defendant tendered no survey plan of his own as an Exhibit even though he filed and served one on the Plaintiffs.
Learned counsel submitted that section 149(d) of the Evidence Act 1990 applies in this regard against the Defendant and in favour of the Plaintiffs. He maintained that the Plaintiffs led oral evidence on the said survey plan through PW1, who testified clearly on the position of the said Iba in Exhibit A and that the Defendant never cross examined PW1 on the said piece of evidence and it is therefore deemed admitted in law under section 75 of the Evidence Act 1990.
It was contended that the dispute concerns parties who are all indigenes of Onitsha and that the custom being disputed is Onitsha custom and not Umuikem village custom as such. It was argued that Umuikem is one of the villages in Onitsha and the Onitsha native law and custom apply to all communities/villages comprised in Onitsha.
It was argued that PW2 being one of the custodians and repositories of Onitsha custom being a member of Obi-in-counsel (Igwe’s cabinet) is well positioned to give evidence on Onitsha custom as he did for the Plaintiffs.
Learned counsel submitted that it is not the member of witnesses fielded/called by a party in a case that matters, but the probative and quality of the evidence led. He referred to the cases of
Olubadan v. LAwal (2008) All FWLR pt 434 at 1468.
Ozomene v. H. H. Momodu II (1983) 3,SC 173.
He further argued that an admission by the defendant through exhibit (counter affidavit) coupled with the oral evidence of PW1 and PW2 satisfied the law and ought to have persuaded the court below to enter judgment for the Plaintiffs. Learned counsel submitted that the plaintiffs did prove their case in accordance with the law as set out in the case of Idundun v. Okumagba (1976) 1 ALL NLR 200. He maintained that the Plaintiffs relied solely on their own evidence as is required by law to prove their case, but only relying on the weakness in the defence case to support and give more teeth to same. He referred the court to the case of
Kodilinye v. Odu (1935) 2 WACA 336.
Mike Uchenna Ikem Esq. urged the court to resolve this first issue in favour of the Plaintiffs.
In reply to the submission of the Appellants on this issue for determination, learned counsel for the respondent Ikenna Egbuna Esq. submitted that to determine whether the case of the Plaintiffs/Appellants was admitted, the court should look at the Amended Statement of defence filed nearly three years before the Amended Statement of claim, to find out whether there are facts in the Amended Statement of defence which traversed those facts in the Amended Statement of claim. Learned counsel referred the court to paragraph 27, 28, 29, 30, 31 and 45(e) of the Amended Statement of claim and paragraphs 6, 7, 16 and 29 of the Amended Statement of defence.
He submitted that paragraphs 31 (a) and (b) and paragraph 45(e) which were the bases of the Plaintiffs/Appellants case were traversed specifically and in every material particular in paragraph 6 at page 69 of the record, paragraphs 7 at page 71 and paragraph 29 at page 79 of the record of Appeal.
He submitted that all material averments in the Amended Statement of claim were repudiated, denied and controverted and that the averment of the Plaintiff were met fontally and categorically.
He insisted that the Defendant/Respondent did not admit the Plaintiffs/Appellants material depositions but also properly traversed them and joined issues with the Plaintiffs/Appellants.
Ikenna Egbuna Esq. contended that a Statement of defence of a party can be likened to a written annour against the allegation in the Plaintiffs pleadings. It is a form of plea for justification, which when viewed seriously and carefully is meant to afford a slicing rebuttal or bulwark against a verbal onslaught unleashed by the Plaintiff on the Defendant. He referred the court to the cases of Nigeria national Petroleum Corporation (NNPC) v. Chief Stephen Sele & 2 Ors (2004) 5 NWLR pt 866 page 379 at 412-413.
Nigeria Bottling Company Plc. v. NL. Demola Olarenwaju (2007) 5 NWLR pt.1027 page 265 at 265-266.
Mr. Jihoh Bode Babalola v. Osogbo Local Government (2003) 10 NWLR pt.829 page 465 at 465,483-484.
G. N. Nwolka v. Paschal Nwabufoh (2004) 9 NWLR pt 879 page 507 at 522.
It was submitted on behalf of the Respondent that the findings of facts made by the court below can not be faulted as the Plaintiffs/Appellants have not appealed against them.
Learned counsel contended that any finding of fact not challenged by an appellant in any ground of appeal, remains rightly or wrongly to have settled that issue in controversy as between the parties. He referred the court to the case of Josadeq Nigeria Ltd & Ord v. NDIC (2005) 9 NWLR pt 929 page 167 at 181.
He submitted that an appellate court has no jurisdiction to review or interfere with the findings of a lower court that has not been appealed against or challenged by a ground or grounds of appeal. Learned counsel referred this court to the following cases.
Emmanuel E. Atuge v. Efemini Oghamienor (2004) 13 NWLR pt 890 page 327 at 345.
Chief Joseph Adolo Okotie -Eboh v. Chief fames Ebiowo Manager & 2 Ors (2004) 18 NWLR pt 905 page 242 at 284.
Alhaji M. Mohammed Abubakar v. Bebeji Oil and Allied products Ltd. & 2 Ors (2007) 18 NWLR pt.1066 page 319 at 381.
Learned counsel contended that a look at the findings of fact made by the court below showed that it completely debunked the case set up by the plaintiffs/Appellants at the court below.
Ikenna Egbuna Esq. submitted that contrary to the argument of the Appellants at page 18 of the Appellants brief of Argument, the judgment in this case was not against the weight of evidence. He argued that the judgment is rightful and was arrived at after a calm view and consideration of the facts of the case. He maintained that apart from the clear findings of fact, the learned trial judge saw the witnesses observed their demeanor and assessed them.
Ikenna Egbuna Esq. contended that assuming though not conceding that the Plaintiffs/Appellants had appealed against the findings of fact of the court below, the court can only set aside those finding upon the fulfillment of certain conditions. He referred the court to the case of Buraimoh Popoola v. Jayeola Balogun & 2 Ors (2007) 8 NWLR pt.1037 page 574 at 598.
Learned counsel urged the court to resolve the issue in favour of the Respondent and to dismiss this appeal.
The court as well as the parties to a case are bound by the pleadings. A court adjudicating in a case governed by pleadings should only decide on the issues which the parties have put forward by their pleadings.
Consequently, the parties cannot lead evidence at variance with their pleadings, or set up a case different from that in their pleadings. The court is bound to reject or disregard evidence at variance with the pleadings of the parties. See: Lateef Akoni & 2 Ors v. Prince Nojin Odejide & 3 Ors (2004) 9 NWLR pt 879 page 575 at 597-598.
SCOA Nig Ltd v. Vaughan & Ors (2003) 1 NWLR pt.800 page 210 at 219. Osafile v. Odi (No.1) (1990) 3 NWLR pt 137 page 130.At the centre of the dispute between the parties in this Appeal is the land situate at No.1 Umuikem Road, Onitsha which the Appellants claimed to be Iba compound and Iba house of the late Akunne Ekwuno and that by Onitsha native law and custom it is vested only in the Appellants who are potential heads of the family of the late Akunne Ekwuno, as against the Respondent whose father predeceased the late Akunne Ekwuno.
The Appellants pleaded and gave evidence through PWI that under the Onitsha native law and custom when a first son predeceased his own father and his second funeral rites are performed in the lifetime of his said father, he is regarded as having forfeited three things i.e
1. rights to the Diokpalaship/Headship of the family
2. right to ascend his father’s ukpor or Iba
3. right to inherit his landed property including the Iba land and building.
The case of the Appellants at the lower court was that because the Respondent’s father (Felix) who was the first son of Akunne Mark Anirah Ekwuno died in the life time of his father he had lost his right to any share in Akunne Mark Ekwuno’s estate and therefore the Respondent who is the son of Felix had no right to occupy the land situate at No.1 Umuikem Road in dispute which is the Iba of the late Akunne Mark Anirah Ekwuno.
Contesting the claim of the Appellants the Respondent Bosah Ekwuno who is the son of late Felix Ekwuno and a grandson of late Akunne Mark Anirah Ekwuno pleaded and gave evidence that the land in dispute which consist of a house with a two room bungalow was built and given to them (family of late Felix Ekwuno) by Akunne Mark Anirah Ekwuno after the death of Felix Ekwuno. He claimed that under Onitsha native law and custom, what his father (Felix) would lose for having predeceased his own father (Akunne Mark Anirah Ekwuno) was only his spiritual rights as the Diokpala or head of family but not his property rights as his father (Felix) had begotten a son (himself the Respondent) before he (Felix) predeceased his own father.
Parties joined issues on this central area of the dispute. The Appellants gave evidence to establish their claim through PW2, the first Appellant and PW2 Chief Albert Ikem Abadom the Esagba of Onitsha.
The Respondent called two witnesses to establish his defence DW1 is Oninnaka R. I. Chukwurah the head and Diokpa of Umuikem village to which both parties belong and DW2 Akunwata Barrister Michael Ifeanyi Ojiba, the head of all the Diokpas or spiritual heads in Onitsha, and the Chief Priest of the shrine of Obi Dei the great ancestor of Onitsha Umunezechima.
By virtue of section 137 of the Evidence Act 1990, in civil cases the burden of proof is on the party who asserts a fact to prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. See
Agbi v. Ogbeh (2006) 11 NWLR pt 990 page 65.
Longe v. F. B. N. Plc (2006) 3 NWLR pt.967 page 228.
Mani v. Shanono (2006) 4 NWLR pt 969 page 132.
Imam v. Sheriff (2005) 4 NWLR pt 914 page 80.
Akani v. Odejide (2004) 9 NWLR pt 879 page 575.
Andi v. Grita (2004) 4 NWLR pt 864 page 463.
Okiri v. Ifeagha (2001) FWLR pt 73 page 140
Itaumo v. Akpe-Ime (2000) 7 SC (pt.II) page 24.On the issue whether a first son who predeceased his father has any right to inherit any landed property of his father under Onitsha native law and custom.
It is the evidence of PW1 Patrick Goddy Ekwuno the 1st Appellant in answer to question put to him under cross-examination at page 250 as follows:-
Q: Under Onitsha native low and custom, is the defendant not entitled to the share of his father?”
“A: He is not because properties are shared according to the Usokwu when a first son predeceased his father, he has lost the headship of the family including the inheritance of his father’s property. Therefore, the defendant is not entitled to my father’s property”.
PW2 in answer to question put to him under cross-examination with regard to the position of the Onitsha customary on the matter in dispute said at page 257
“XX: According to native law and custom, can a bonafide member of a family be denied of his right to the sharing of the property during partition, just because his father died in the life time of his grand father?”
“A: Any person who dies before his father without issue is not entitled to any landed property. But if the deceased had any issue, that issue would be entitled to the share of his father who predeceased his grand father”
However PW2 earlier in his statement on oath at pages 99-101 he had deposed on paragraphs 19, 20 and 21 at pages 100-101 as follows.
“19 That specifically in regard to the position of late Felix Ekwuno the father of the Defendant whose funeral rites were performed in the presence of his father the late Akunne Ekwuno, according to Onitsha native law and custom has lost the right to inherit the right to succeed to the Headship of the family of the late Akunne Ekwuno”
“20 That the above disability also affects and extend to his son the Defendant in this case”
“21 Under the native law and custom of Onitsha a son who predeceased his father bat whose 2nd funeral rites were not performed before the 2nd funeral rites of his deceased father will succeed his father both in regard to father’s landed property and headship of his family for without the performance of the 2nd funeral rites, the son is regarded as notionally alive and surviving his said father”
Contradiction in the evidence of the Plaintiffs witness is disastrous and has the effect of destroying the case of the Plaintiffs. See Audu v. Guta (2004) 4 NWLR pt.864 page 463. It is also well established that where a witness gives evidence against the party that called him, such evidence will be regarded as one against interest unless explanations are given to the satisfaction of the court, that such admission should not be regarded or due weight given to it. See Odi v. Iyala (2004) 1 NWLR pt 875 page 283.
Omisaodu v. Elewuju (2006) 13 NWLR pt.998 page 517.It is clear from the deposition on oath of PW2 reproduced above that PW2 contradicted himself and also contradicted the testimony of PW1. However PW2’s evidence on the succession of the two rooms bungalow supports the claim of the Respondent. The Appellants never provided any explanation to the lower court for the contradiction in the evidence of PW2.
The defendant invited two witnesses who deposed on oath to the facts they knew about the dispute.
The statement on oath of DW1 – Ojinnaka Reginald Ikemefuna Chukwura is contained on pages 106-108 of the record of Appeal.
Paragraphs 10, 11, 12, 13, 14, 16, 17, 18 and 19 are pertinent and are hereby reproduced.
“10 That the plan No E2/ANL022/2001 made by the plaintiffs does not reflect the features on the land while plan No. FALS/AN/DL/10/2002 made by the defendant adequately describes the features on the land.
11. That the father of the defendant, Ekwuno Felix is the 1st son and Diokpa of Akunne Mark Ekwuno but dies in the life time of Akunne Ekwuno.
12. That consequent upon this Akunne Ekwuno built a two room bungalow to accommodate the widow of his son and her children at Umuikem Road Onitsha
13 That under Onitsha native law and custom applicable to Umuikem village, Felix Ekwuno did not cease to be Diokpa of Akunne Ekwuno because he died in the life time of his father rather he lost only his right to succession to Ukpo. His son will also not succeed to the Ukpo or spiritual headship of the family as his father never got there. The property rights of Felix Ekwuno and his defendants are not affected. Both the customary law Manual of Anambra State and the booklet on Onitsha native law and custom will be relied upon.
14. During the Nigerian Civil War the main house of Akunne Ekwuno at No. 1 Umuikem Road was completely destroyed His house at Out was also destroyed.
15 That the mother of the defendant then allowed Ofili Ekwuno to share one room with the defendant who was already an adult while she stayed in the other room with her other children.
16. That the place where late Akunne Ekwuno built his house and live in under Onitsha native law and custom is his Iba.
17. That when the second funeral ceremony of Akunne Ekwuno was performed his “Nmuo Ofu” or spirit in accordance with Onitsha custom retired to his home, that is the house built by Duaka. (Under Onitsha custom that house is deemed to be his Iba, as Akunne Ekwuno’s successor.
18. That under Onitsha native law and custom, if a man makes a gift inter vivos, at his death that gift is no longer part of his estate.
19. that the gift of two rooms made by Akunne Ekwuno to the widow of his son Felix and her children can no longer be taken into consideration during the partition of the estate of Akunne Ekwuno.”
The statement on oath of DW2 – Akunwata Barrister Michael Ifeanyi Ojiba is contained on pages 109 – 111 of the record of Appeal. Paragraphs 7, 8, 9, 10, 11 and 12 are relevant to this proceedings and they are hereby adumberated as follows:
“7 That No.1 Umuikem road, the subject matter of this suit is situate in (Imuikem village and any decision taken on it by the Diokpa and other elders is final.
8. That under Onitsha native law and custom if an adult male who is already married with children died in the life time of his father, his descendants will not succeed to the Iba or spiritual headship of the family hut they will not forfeit their property rights- They are still members of the family with every other right and privilege.
9. That Bosah Ekwuno the defendant in this case will not forfeit his property rights in the family of Akunne Ekwuno because his father Felix died in the life time of Akunne Ekwuno.
10. That under Onitsha native law and custom applicable to Umuikem village, if a man makes a gift inter vivos to any of his sons, that gift is as usually not taken into consideration when the assets and liabitities of the deceased are shared.
11. That the house in which o man lived and died in is regarded as his Iba.
12. That during the 2nd burial ceremony of a deceased Onitsha man his “Nmuo Ofu” or spirit comes out and retires to any place deemed to be his Iba”.
The Statement on oath of the two witnesses of the Respondent supported his claim. They said that under Onitsha native law and custom, if a first son already married with children died in the life time of his father, his descendants will not succeed to the Iba or spiritual headship of the family but they will not forfeit or lose their property right.
DW1 further said that the property in dispute which used to be a bungalow of two rooms was built by Akunne Ekwuno the grandfather of the Respondent and given to the defendants mother to accommodate her and her two children (the respondent and his sister) after the death of Felix, the respondent’s father.
The lower court made the following finding of fact on the evidence of DW1 and DW2 on pages 279-280 thus:
“the evidence of the defendant is more credible in that it flowed from the mouth of witness as DW1 & DW2) who are persons of considerable standing in Onitsha. I was impressed by their bearing and demeanour in the witness box”.
The lower court also made finding of fact on the Appellant’s and their evidence at page 279 of the record thus:-
“I saw them in the witness box. I was not impressed by his bearing and demeanor in the witness box. The edgy, resistant, shaky and evasive manner in which he responded to question under cross-examination gave him away us a witness who would not score very highly in the credibility stakes. This is confirmed by the fact that he (PW1) claimed that the defendant cannot inherit any property right but PW2 called by him completely debunked that while answering questions under cross-examination…..Moreover, the decision of the Umuikem village in Exhibit F confirmed by their chairman (DW1) showed and affirm that the land in dispute was given to the defendant’s father when Akunne Ekwuno was alive.”
The Appellant did not appeal against these findings of facts by the lower court. The findings are therefore deemed to be valid and subsisting. See Zekere v. Alhassan (2002) 14 NWLR pt.786 page 52.
It is trite that an appellate court will generally not interfere with the finding of fact of the lower court where there is sufficient evidence in support of such finding and where there is no substantial error apparent on the record of proceedings, such as miscarriage of justice or violation of some principles of law or procedure. See
Ezeonwu v. Onyechi (1996) 3 NWLR pt 438 page 449.
Shitti v. Egbeyemi (1996) 6 NWLR pt 457 page 650.
Babuga v. State (1996) 7 NWLR pt 460 page 279.The Appellants in the instant case have not presented anything cogent or useful enough to warrant this court disturbing these findings of fact of the lower court. I therefore hold that the findings of fact are valid and subsisting. See: Josadeq Nigeria Ltd. & Ors v. NDIC (2005) 9 NWLR pt 929 page 167 at 781.
By virtue of section 146 of the evidence Act, whenever the question of ownership of a thing is in issue, the person in possession is presumed to be the owner of such thing.
The burden of proving that he is not the owner is on the person who contests that ownership with the person in possession. See Okhnardbo v. Aigbe (2002) 9 NWLR pt.771 page 29.In the instant case the burden of proving that the Respondent was not the owner of the land on which the two room bungalow was situate inside No.1 Umuikem Road Onitsha rests on the Appellants and they were through out the trial unable to discharge that burden. The lower court made the following finding of fact on the matter thus:-
“The plaintiff case may be summed up in a very short sentence. Their case was short on substances and credibility but long on verbiage and bare assertions. That is why I have not given credence to the claims of the plaintiffs in this case. Since I have found that the plaintiff have not proved their case and the defendant had been living in the possession of the property in dispute, there is no way the claim for trespass can succeed in this case.”
I have also carefully read the proceedings of the lower court and also examined the exhibits tendered before the lower court and I have also come to the same conclusion as the lower court that the Appellants have not proved their case at the lower court. The Respondent made a better showing with his witness and in the evidence presented. The first and second issues are resolved in favour of the Respondent.
ISSUE NO.3
“Did the learned trial judge properly evaluate the evidence before him.”
The plaintiffs had pleaded in paragraphs 27-31 of their Amended Statement of claim that the property of their late father Akunne Mark Anirah Ekwuno was partitioned and shared and a portion thereof shown verge Red in the survey plan No.EZ/ANLD22/2001 within which situate the bungalow room verge yellow was curved out as the Iba premises (compound) and Iba house of late Akunne Ekwuno by the family with the help of members/elders of their Umuikem village who took part in the said partition exercise.
The plaintiffs’ maintained that the Respondent in paragraph 17 of his Amended Statement of defence dated 16/10/03 and filed 4/11/03 admitted paragraph 27 – 31 of the amended statement of claim.
Paragraphs 27, 28, 29, 30 and 31 of the said Amended Statement of claim are reproduced for ease of reference.
27. To be able to exercise the right supra, the family resolved same 1992 to retrieve the remains of the late Akunne from Ose-Akwa Ihiala for burial at Onitsha. Following the performance of the 1st and 2nd funeral rites for Akunne at his compound No.1 Umuikem Rood, Onitsha being his Iba, the members of the family attempted to partition and share his said properties but met with disagreement amongst themselves.
28. To resolve the misunderstanding/impasse, the members of the family had to invite the assistance of the members of Umuikem village/community who helped them to partition and share same, in accordance with the native law and custom of Onitsha.
29. The properties of late Akunne were partitioned and shared into the number of wives who had male issues for him namely into four in accordance with native law and custom of Onitsha which custom is hereby pleaded.
30. No, 82 Sannize Street, Onitsha was partitioned into three parts/partions for the share respectively of the Ogoanusi, Agbommo and Aniagudo sections/kitchen of the late Akunne’s family.
31. The other property No.1 Umuikem Road, Onitsha was partitioned into two parts/portions to wit:
a. the one part which comprises of the area on which Duaka built in 1972 and the back/rear room of the bungalow all of which one part is shown within the Blue verge in the plaintiff Survey Plan No.EZ/ANLD22/2001 became the share of the Nwaguluchiekweta section of the Akunne’s family.
b. The other part/portion shown verge Red in the Plaintiffs’ said Survey Plan within which situates the bungalow room verged Yellow was carved out as the Iba premises (compound) and Iba house of the late Akunne by the family and the members of the Umuikem village who took part in the partition exercise. The rear/back bungalow room which fell to the share of the Nwaguluchiekweta section is shown within the Blue verge and is specifically edged Brown in the Plaintiff Survey Plan.”
It must be pointed out from the onset that the relief claimed by the Appellants are declaratory.
It is trite that in a declaratory action, the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence, except where the case for the defence supports the plaintiff s case. See
Ilehe v. Eke (1998) 9 NWLR pt.564 page 24.
Nkwo v. Iboe (1998) 7 NWLR pt.558 page 354.
Adebayo v. Adusei (2004) 4 NWLR pt 562 page 44.
Abasi v. Ondo (1998) 5 NWLR pt 548 page 89.Section 75 of the evidence Act referred to by the Appellants is not applicable to this case. On the issue of the alleged partition of No.1 Umuikem road Onitsha the plaintiffs in paragraphs 3 I (a) and (b) and 45 (e) of their Amended Statement of claim joined issues with the Defendant in paragraphs 6, 7 and 10 of his Amended statement of defence.
Having traversed specifically in every material particular the paragraphs 3l (a) & (b) and 45 (e), the Respondents cannot be said to have admitted the plaintiffs’ averment in the said paragraphs of the Amended Statement of Claim.
In a case such as the one at hand which is a dispute over family property under customary law in which the Appellants had claimed that the property has been partitioned they have a duty to present evidence to show those who were present at the time of the partition and prove the extent of the land partitioned. See Akinloye v. Eyiyiola (1965) NMLR 92. Okerengwo v. Imo Education Board (1989) 5 NWLR pt 121 page 295.
In cases of customary law and traditional evidence it is good law that it is desirable that a person other than the person asserting it, should also testify in support thereof. Since native law and custom must be strictly proved, it is therefore unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.
See Adio Serekan & Anor v. The Military Governor, Ogun State (1995) 26 LRCN 110.
Ekpenga v. Ozogula II (1962) 1 SCNLR 423, (1962) 1 ALL NLR (pt.1) page 264.In the instant case except the PW1 the 1st plaintiff in his deposition on oath there is no other independent witness who testified that he witnessed the partition. Infact there was no witness from Umuikem village who had been invited by the Plaintiffs even though they claimed in their pleadings that the villages/elders of Umuikem assisted them in partitioning the land in dispute.
The lower court again made a finding on the evidence presented by the Appellants in support of their case at page 277 of the Record of Appeal thus:
“Apart from the mere Ipse dixit of PW1 (the 1st plaintiff) there is no other independent witness who gave evidence to say that he witnessed or took part in the event of 1992 alleged by the plaintiff.”
DW1 Reginald Ikemefuna Chukwurah whose title is Oguefi Ojinnaka and the Diokpa of Umuikem village Onitsha said at pages 260 -265 that both parties to the dispute are from his village and that he was not at any meeting in 1992 where concession was made to the plaintiffs and that by his position, he would have known about the concession, if there was such a concession.
He said that because the case came to them afresh in 2007, they wrote in Exhibit ‘F’ that if there was such a concession in 1992, the Plaintiffs should have utilized it, but that the Plaintiffs did not. The witness said that no place was conceded to the plaintiffs, since there was no such Iba in the first place and that his knowledge about the agreement is not important.
When learned counsel to the plaintiffs at page 260 put it to him that he was very biased in favour of the defendant. DW1 said it is not true and that there was no reason to be biased in the matter because both parties are his people. The trial court which observed the demeanor of DWI said at page 280 that it was impressed by his demeanor in the witness box. I have no reason to fault this finding of the lower court. It was also the finding of the lower court at page 281 that
“In this case it is not probable that the property in dispute was carved out in 1992 as the Iba because if it were so it would have been in use as Iba since then. It was only in 2001 when the defendant started construction on the site of the property in dispute that the plaintiffs started laying claim to it. What the plaintiffs seemed to be claiming was that by custom the Umuikem village carved oat the property in dispute as Akunne Ekwuno’s Iba. I agree with learned counsel for the defendant that the PW1 cannot succeed on that claim based on his evidence alone. This is because a party who alleged custom of a particular community cannot rely on his evidence Alone. He must hove evidence of witness who hail from that community. In this case, the community in question is the Umaikem village of Onitsha but the plaintiffs called no witness from Umuikem village unlike the defendant. See Daramola v. Governor of Osun State (2003) 14 NWLR pt.839 page 275.”
I am satisfied from the facts and evidence contained in the record of appeal which I have thoroughly read, examined and digested that the lower court properly evaluated the evidence before it and its findings that the Appellants have not proved their case is very correct.
The third issue for determination in this appeal is also resolved in favour of the Respondent. This appeal fails as it is lacking in merit and it is hereby dismissed. The decision of the lower court delivered on 19/2/2008 is hereby affirmed. There shall be no order as to costs.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother,
Aboki, JCA, and I agree with him that the appeal lacks merit. Findings on primary facts are matters within the province of the Court of trial, and there is a rebuttable presumption that the trial Court’s findings and conclusions on the facts are correct. The duty of this Court to interfere with improper findings or correct any erroneous conclusions would only come into play where a trial Court fails to properly examine and evaluate the evidence before the Court – see Sanni V. State (1993) 4 NWLR (Pt.255) 99 & Nwankwoala V. State (2005) 12 NWLR (pt. 940) 637.
Evaluation of evidence entails the assessment of evidence so as to give value or quality to it, and there must be on record how the Court arrived at its choice of preferring one piece of evidence to the other – see Alake v. State (/992) I NWLR (pt. 265) 260 SC.
In this case, there is no question that the trial Court did a good job of evaluating the evidence before it, and the presumption that its findings and conclusions on the fact are correct have not been rebutted in any way by the Appellants. Consequently, I also dismiss the appeal, and I abide by the orders in the lead Judgment, including that as to no costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the lead judgment written by my learned brother, ABDU ABOKI JCA just delivered and I agree that this appeal lacks merit and ought to be dismissed.
My learned brother has quite admirably set out the facts and resolved all the salient issues submitted for determination of this appeal in accordance with the law.
For the reasons and conclusions in the lead judgment which I hereby adopt as mine, I also dismiss the appeal. I abide by all the consequential orders made therein.
Appearances
M. U. IkemFor Appellant
AND
Ikenna Egbuna with C. N. Osakwe, Chikaodi Okwuonu and Azuka OkwuliluFor Respondent
