CHRISTOPHER MANUKAJI V. LINUS OGAZI
(2012)LCN/5567(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2012
CA/OW/276/2011
RATIO
EVIDENCE: BURDEN OF PROOF
Custom is a matter of evidence. Whoever asserts must prove what he asserts. It was the duty of the Appellant to prove the custom which he alleged, and that he has failed to do.See: Ojemen V. H.H. Momodu 11 (1983) 3 SC 173 at 223. PER MOJEED ADEKUNLE OWOADE, J.C.A
APPEAL: WHETHER AN INCOMPETENT GROUND CAN BE ARGUED WITH A COMPETENT GROUND OF APPEAL
I do agree with the learned counsel for the Respondent that an incompetent ground of appeal cannot be argued with a competent ground of appeal. That, when this happens, it is not mere technicality as the appellant contends; the court frowns on it and must strike out the argument.
See, Akuchie v. Nwamadi (1992) 8 NWLR (pt. 258) 214 at 224. Chief T.G. Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372. PER MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER MANUKAJI Appellant(s)
AND
LINUS OGAZI
(For Himself and as representing the Members of Ogazi Family Umualum Obiokwu, Umuehihie Uzoagba) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Imo State delivered on 2nd day of June, 2011, in Appeal No. CCA/OW/A/15/2010. By a writ of summons dated 11th day of March, 2004 and filed on the same day, the Respondent, as plaintiff instituted Suit No. CC/EZ/IK/15/2004 at the Ikeduru Customary Court, Eziama against the Appellant, as Defendant claiming as follows;
(1) Declaration of the Honourable Court that plaintiff is entitled to customary Right of Occupancy to all that piece or parcel of land called “ALA UMU OHAKWE” which situate at Umualum Obilokwu Umuehihie Uzoagba, within jurisdiction.
(2) N10, 000.00 General Damages for trespass into the aforesaid land in that the defendant wrongfully cleared part of the aforesaid land and started erecting a wall fence there, day and night from the 2nd week of March, 2004.
(3) Perpetual Injunction restraining the defendant by himself, his privies, agents, servants or workmen from any further trespass into the aforesaid land.”
The Respondent gave evidence as PW1 and called two other witnesses PW2 and PW3. Appellant also testified in his defence as DW1 and called two other witnesses DW2 and DW3. After hearing the parties, the trial court visited the locus in quo with the parties and their counsel in attendance.
The case of the Respondent is that he owns the land in dispute by inheritance. He said he had common ancestry with the Appellant and that their foremost ancestor who owned the land by deforestation, in line with their custom was one Arimnachefu. According to him, Arimnachefu had four sons, namely Mbata, Ohakwe, Okoroike and Ekezie. Arimnachefu shared his estate to his children before his death. Along the line, Ekezie died extinct and was buried by his other three brothers who shared his estate. Ohakwe got this piece of land in dispute. When Ohakwe died, his son Ogazi inherited him. It is this portion which Ohakwe got when the estate of Ekezie was shared, as distinct from the share Ohakwe got from his father Arimnachefu that is in dispute.
It is further the case of the Respondent that at a point in time when the Appellant and his mother started quarrelling with his uncle whom they were living with, they approached Respondent and his mother to give them a place to live. Respondent and his mother granted their request on the understanding that when they moved into their land, the Respondent would take back his land. Appellant has built his own house on his own land “over 20 years ago” but has refused, despite Respondent’s repeated demands, to give back Respondent’s land to him.
On the other hand, Appellant claims ownership of the land by inheritance. He denied having any ancestral relationship with the Respondent. He also denied having any other house anywhere apart from the mud house he built on the land in dispute.
On the 21st day of January, 2009, the trial court delivered its judgment in the suit in favour of the Respondent. The trial court found from the evidence of parties, their witnesses and observations at the locus that:
“(i) The Honourable Court noted that the plaintiff brought this suit in a representative capacity and filed an authority for same.
(ii) There was a court order dated 2nd day of September, 2004 restraining the Defendants/Respondents from erecting or continuing to erect a fence wall on the disputed land. The Honourable Court observed on locus that the fence-wall was completed or almost completed.
(iii) It was also found out that the defendant has another building elsewhere, close to the plaintiff’s compound out with a make-shift occupation of the mud-house he built on the land in dispute.
(iv) It is the finding of this Honourable Court that Arimnachefu is the father of Mbata, Ohakwe, Okoroike and Ekezie.
(v) That ohakwe is of the plaintiff while Okoroike is of the defendant.
(vi) That Ekezie is a son of Arimnachefu. He died extinct.
His three surviving brothers shared his estate into three. This land in dispute is the share of Ekezie from the estate of Arimnachefu which became the share of Ohakwe after the estate of Ekezie was shared by his three brothers.
(vii) Both Mbata, Ohakwe and Okoroike got their own share of this land of the extinct Ekezie.
(viii) It is the share of Ohakwe from this re-shared land of Ekezie that is in dispute.
(ix) This share of Ohakwe was inherited by his son Ogazi which passed on to the plaintiff, Linus Ogazi.”
Based on the above findings, the trial court was satisfied that the plaintiff (Respondent) presented a more reliable and credible evidence than the defendant (Appellant) “whose statements were unclear and often contradictory.”
The trial court held that the plaintiff (Respondent) made out a case to grant him the reliefs sought.
Dissatisfied with the said judgment, the appellant appealed to the Customary Court of Appeal, sitting at Owerri by a Notice of Appeal filed on 4th February, 2009 containing three grounds of appeal. By leave of that court granted on 11/2/2010, the Appellant filed two additional grounds of appeal.
Before the court below (customary Court of Appeal) learned counsel for the Respondent raised a preliminary objection to the competence of issues numbers 2 and 3which were distilled from grounds 2 and 3 of the Notice of Appeal which he contended are incompetent.
Learned counsel for the Appellant failed or neglected to reply to the preliminary objection. On this score, the court below held at pages 96 – 97 of the record of appeal as follows:
“I am in complete agreement with the submissions of learned counsel for the Respondent, that having regard to the jurisdiction of the Customary Court of Appeal as provided for under Section 282 (i) of the 1999 Constitution, an omnibus ground of appeal is not a competent ground before this court as it complains of improper evaluation of evidence on the facts and does not raise questions of customary law. See Madukaji v. Aguocha (2009) LRCCA 377 at 380, 381; Udeze v. Chidebe (1999) 1 NWLR (pt. 125) 141 at 158, Nwaigwe v. Okere (2008) All FWLR (pt. 431) 843 at 862.
In the circumstance, I uphold the first limb of the preliminary objection and hereby strike out ground 3 of the appeal for being incompetent. I also strike out Issues Number 2 and 3 for determination distilled from this incompetent ground of appeal and all the arguments made there-under for being incompetent.
In like manner, since the appellant formulated issues Nos. 2 and 3 from a competent ground 2 and an incompetent ground 3 and argued them together, the vice of incompetence which tainted ground 3 has incurably rendered ground 2 equally incompetent, making it liable to be struck out. The same and all arguments made thereunder are accordingly hereby struck out.
Having struck out Issues Numbers 2 and 3, we are now left with Issues Number 1, 4 and 5 respectively for consideration in this appeal.”
On the substance of the appeal, the court below accepted the argument of the learned counsel for the Respondent that the evidence of the respondent which is clear on the point is that the appellant entered into the land in the first place by the consent and permission of the Respondent and that in accordance with the custom of their people as established by the Respondent and corroborated by the DW2, the land reverted back to the Respondent when the Appellant vacated the place. The court below resolved in favour of the Respondent and accordingly dismissed the Appellant’s appeal. Again, dissatisfied with the judgment of the court below the Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this court on 7/7/2011.
Appellant’s brief of argument was filed on 17/01/2012. Respondent’s brief of argument dated 3/2/2012 was filed on 14/3/2012. Appellant filed a reply brief dated 29/3/2012 on 30/3/2012 and a list of Additional Authorities on 30/5/2012.
Learned counsel for the Appellant nominated three (3) issues for determination. They are:
“(a) Whether the Plaintiff/Respondent proved his title to the land in dispute and the alleged customary gift of part of the land to the Defendant/Appellant.
(b) Whether the court below was right in rejecting the unchallenged evidence of custom of Umuehihie Uzoagba that the Respondent’s refusal to swear to an oath over the land in dispute amounted to an abandonment of Respondent’s claim over the land.
(c) Whether the striking out of issue Nos. 2 and 3 in the Appellant’s brief of argument by the court below is not improper and in infringement of the Defendant/Appellant’s right of fair hearing.”
On issue No.1, learned counsel for the appellant submitted that the Respondent traced his root of title from one Arimacheku Nwanwa who he claimed deforested the land. That Arimnachefu had four sons namely Mbata, Ohakwe, Okoroike and Ekezie. That Arimnachefu his ‘foremost ancestor’ shared the land to his four sons and that Ekezie Ogazi (sic) who is the son of Ohakwe inherited him. Enwenonu Okoroike inherited his father while the Appellant’s father Manukaji inherited Okoroike his father. Respondent further stated that he was the son of Ogazi and that he inherited him (Ogazi). The respondent further gave evidence that Ekezie had no surviving son as he never married. He further stated that the three brothers of Ekezie namely Ohakwe, Okoroike and Mbata buried Ekezie and shared his land. That, Ohakwe got this land now in dispute.
Learned counsel for the Appellant submitted that from the above, the following questions or issues stand out begging for a rational explanation.
“(i) Who was the father of Ogazi whom the Respondent claim was his father? Was it Ekezie who the Respondent said died extinct or was Ogazi the father of Ekezie? The Plaintiff/Respondent called him “Ekezie Ogazi” See page 10 line 18 of the Record. Can any court or tribunal reasonably grant a declaration of title on the basis of this quality of evidence? What did the persons through whom he claimed the land do on it in exercise of their alleged rights of ownership and possession? This was glaringly lacking in the plaintiff/Respondent’s evidence. It is fatal to it.”
Learned counsel for the Appellant submitted that because of the “mysterious linkages” in the traditional history offered by the Respondent his claim ought to be dismissed.
He noted that the Appellant did deny that the said Arimnachefu was their forebear and that he was not the original owner of the land in dispute. He maintained that he has no common heritage or ancestry with the Respondent.
Appellant’s counsel referred to the cases of Ikegbunam v. Onwubiya (2007) All FWLR (pt. 345) 379, Ugwunze v. Adeleke (2007) All FWLR (Pt. 408) 327 and submitted that the onus of proof remained with the Respondent who did not discharge it.
In proving his title to the disputed land, said counsel, the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. He referred to the case of Gbadamosi v. Dairo (2007) All FWLR (Pt. 357) 812.
Learned counsel for the Appellant, asked rhetorically – Having failed to establish his title in the first instance, can he give what he does not have?
Nemo dat quod non habet. He answered in the negative.
Appellant’s counsel further submitted that the Respondent sued the Appellant over a piece or parcel of land called “ALA UMU OHAKWE” see page 3 of the Record. In his evidence in Chief as contained at page 10 of the Record, the Respondent called it “UHU UHU OHAKWE”. The PW2 (Mr. Linus Uka) called it “Oru Obi”. It is not therefore certain which land the Respondent said was in dispute.
Furthermore, said counsel, the Respondent said he gave part of the land in dispute to the Appellant for residence. PW2 stated that the Respondent and his mother Onyeberechi gave the land to the Appellant and Appellant’s mother, about 1940s. See page 16 of the Record. That, testifying before the trial court on 3/12/2007, the PW3 (Mr. Ignatus Chukwu stated that the respondent gave a portion of the land in dispute to the Appellant’s mother. Counsel asked, who did the respondent allegedly give the land? Was it given to the appellant and his mother or the appellant’s mother atone or the appellant alone. Who made the gift? Was it the Respondent alone or the respondent and his mother? Those questions, said counsel were not answered and the trial court did not make any finding on it.
Learned counsel continued, what was the extent of the allegedly given? Who were witnesses to the customary gift alleged? Was there any traditional rites performed and obligations by the grantee as required by custom. If there was a gift (which is denied) was it revocable? The respondent, said counsel made no effort to supply answers to these crucial questions.
Learned counsel for the Appellant referred to Dr. T.O. Elias book on “Nigerian Land Law” 4th Edition at page 149 and Professor B.O. Nwabueze’s treatise on “Nigerian Land Law” pages 367 – 368, the first for the definition of ‘gift of land’ as “…….An out-and-out transfer by the grantor having enough land to spare, to the grantee or grantees who usually enjoy perpetuity of tenure ………”
The second to show that in constituting a ‘gift’, there “must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift…”
Based on the above, learned counsel for the appellant submitted that the evidence of the Respondent and his witnesses on the purported gift of the land far felt short of what is required to prove a valid gift of land under native law and custom.
Counsel urged that we hold that the appellant is on the land as of right and was not put in possession by the Respondent. The Respondent admitted that the Appellant built a house on the land in dispute in 1949 and the house is still there. The trial court found at the visit to the locus in quo that “the Defendant has a house of about a room or two on the land in dispute with a concrete fence wall. This house was a mud house originally.” From the foregoing, said counsel, there was no basis for applying the alleged custom that where a grantee abandons the land granted to him, the grantor gets the reversionary interest thereon. This is because no gift was proved by the Respondent.
Secondly, according to appellant’s counsel, it is clear that the Appellant is still in possession of the land. It was totally out of place for the court below to have applied the alleged custom in the circumstance. The mere fact that the court purportedly ‘believe’ (though erroneously) the Respondent’s evidence does not suffice or justify the decision which was reached in error.
Counsel referred to the case of Runsewe v. Odutola (1986) 4 NWLR (Pt. 441) 143 at 158 and submitted that an appellate court is in as good a position as the trial court in relation to conclusions or inferences to be drawn from primary findings or evidence on record.
In response to Appellant’s issue No. 1, learned counsel for the Respondent submitted that the Respondent proved his title to the land in dispute at the trial court, and the ,court below was right in affirming the judgment of the trial court. He said by a long line of cases, the Supreme Court has laid down the five methods of proving ownership of a piece of land, each of which is independent of the others and can suffice. One of such methods is through traditional history of ownership of land. He referred to the cases of Idundun 4 Ors. v. Okumagba & Ors. (1976) 9 – 10 SC 227 at 246, Onwuka v. Ediala (1989) 1 NWLR (Pt. 90) 182 at 186 (SC), Awe v. Ipaye (1990) 2 NWLR (Pt.132) 279 at 301 (SC).
Learned counsel for the Respondent submitted that in the trial court, the Respondent relied on traditional history and proved same. That, contrary to the contention of the appellant, Respondent gave a graphic description of his line of inheritance and the land in dispute. Mbata begat Enwenonu who inherited him. Ohakwe begat Ogazi who inherited him. Ogazi begat the Respondent. Okoroike begat Manukaji who begat the Appellant. Ekezie died extinct. Thus, the family tree of the parties as given by the Respondent in the trial court is as follows:
Arimnacheku Nwanwa
Mbata Ohakwe Okoroike Ekezie
Enwenonu Ogazi Manukaji died extinct
Linus Christopher
(Respondent) (Appellant)
According to the Respondent, at the trial court, when Ekezie died, his three brothers (Mbata, Ohakwe and Okoroike) buried him and shared his estate, and Ohakwe got this land in dispute (from Ekezie’s estate). Learned counsel for the Respondent furthered that the Appellant’s counsel on page 3 paragraph 2.02, line 5-7 of his Brief of Argument referred to what appeared at page 10 lines 17-20 of the Record of Appeal where it is stated as follows:
“Arimacheku Nwanwa had four sons namely Mbata, Ohakwe, Okorie and Ekezie. Before he died, he shared his land to his four sons. By this sharing, this land was the share of Ekezie Ogazi who is the son of Ohakwe inherited his father.” (Underlining supplied).
That, Appellant’s counsel then proceeded to pose questions on page 4 paragraph 2.03 of his Brief of Argument to show that the plaintiff (Appellant) did not prove his genealogy or traditional history.
Learned counsel for the Respondent, submitted with due respect that the questions and submissions made by the appellant are misconceived. That, he based his argument on “Ekezie Ogazi” which unfortunately were wrongly typed together in the Record of Appeal without a full stop between them. He submitted that a reading of the totality of the evidence at page 10 of the Records would reveal that there should have been a full stop between “Ekezie” and Ogazi”. Thus, the correct sentence would be:
“By this sharing this land was the share of Ekezie, Ogazi who is the son of Ohakwe inherited his father.”
Counsel said, in order not to leave any doubt the Respondent has filed an affidavit challenging the records, to the effect that what appeared in it on the line in question is a minor clerical mistake.
The affidavit, said counsel, has a certified true copy of the proceedings contained on page 10 of the Record of Appeal. On this, he referred to the case of Zommer V. Federal-Housing Authority (1992) 1 CSCD 19 at 20.
Learned counsel for the Respondent submitted with due respect, that the argument of the Appellant here is calculated attempt to rely on a minor clerical error to do mischief. The Appellant knows that “Ekezie” and “Ogazi” are two different people and that there should be full stop between “Ekezie” and “Ogazi” to bring out this fact, in line with the totality of the evidence of the Respondent as the PW1 in the trial court.
Finally on this point, learned counsel for the Respondent drew our attention to the fact that the question of “Ekezie Ogazi” was not raised in the two courts below. It cannot, therefore, be raised here for the first time without leave of court.
Still on the “correct” or “corrected” version of the record of appeal in relation to “Ekezie Ogazi” the learned counsel for the Appellant in further response to the Respondent fired an Appellant’s Reply Brief which he virtually devoted to the argument that the appellant is invariably making a case different from what is on record. That, the argument of counsel no matter how strong, cannot take the place of legal proof nor affect the quality of evidence on record. And, that it is improper for counsel to attempt to import new facts into the trial court’s record on appeal.
By this account, the purported certified true copy of Page 10 of the record of appeal does not form part of the record and does not bind the parties and the court.
On this, learned counsel for the Appellant referred to the cases of Ajao Ajadi Adam v. Babatunde Umar & ors. (2010) All FFWLR (Pt.513) 1289 at 1376, Olufegba v. Abdul-raheem (2010) All FWLR (Pt. 512) 1033. He said the case of Sommer V. Federal Housing Authority (supra) cited by the Respondent is irrelevant and does not avail him.
Learned counsel for the Appellant contended further that the question of “Ekezie Ogazi” is not a new issue. That, in one of the grounds of appeal against judgment of the trial court, it was averred that the Respondent did not prove his case. The fact that he did not prove the traditional history of the land which is the basis of his claim is therefore not a new issue. That there was no nexus between the Respondent and the said “Ekezie Ogazi” is a point to buttress the non proof of the Respondents case.
On the second limb of Appellant’s issue No.1, learned counsel for the Respondent submitted that there is sufficient evidence of the grant of the land in dispute by the Respondent to the Appellant. That, Respondent named those who were witnesses to the grant as Appellant’s mother (Ngekomam) and the Respondent’s mother (Onyebeuchi) that, through PW2, Respondent supplied the date of the customary grant as in the 1940s which tallies with the evidence from both the Appellant and Respondent that Appellant built a mud house in the land and started living there in 1949.
Learned counsel for the Respondent submitted that these pieces of evidence constitute full proof of the grant in question. Whether it was the Respondent and his mother or Respondent alone that gave the land to the Appellant or Appellant’s mother or both of them go to no issue. The most important evidence is that the Appellant came with his mother and both Respondent and his mother were present when the land was given. Counsel further submitted that all the -book principles cited by the Appellant on pages 6 and 7 of his Brief of Argument do not apply to this case.
In deciding the first leg of Appellant’s issue No.1, it must be realized that the main plank of the Appellant’s submission as to the Respondent having not proof his title to land lies in the recording of “Ekezie Ogazi” at page 10 of the record of appeal. In other words, if the recording of Ekezie Ogazi proved to be a typing error as alleged by the Respondent, the submission of the Appellant on the first limb of issue No. 1 breaks down.
I have carefully gone through the records of proceedings in this case including the original page 10 and the corrected and certified true copy of page 10 of the record. I do agree with the learned counsel for the Respondent that the argument of the learned counsel for the Appellant on this score is calculated attempt to rely on a minor clerical error to do mischief.
Indeed, that the learned counsel for the Appellant knows or ought to know from the totality of the records of proceedings that “Ekezie” and “Ogazi” are two different people and that there should be a full stop between “Ekezi” and “Ogazi” to bring out this fact in line with the totality of the evidence of the Respondent as the PW1 in the trial court. A holistic view of the records of proceedings in this case shows that no one is misled by the fact that there ought to be a full stop between “Ekezie” and “Ogazi” at page 10 of the record of appeal. Put, in another way that no one is misled by the fact that “Ekezie” and “Ogazi” are two different people as stated in the entire record of proceedings.
Starting from page 10 of the record of appeal itself which was the beginning of the Examination-in-chief of PW1, Lines 12-16, where the error was noted, it recorded as follows:
“…By our custom, the person who deforested a piece of land owns it. Arimacheku Nwanwa had four sons namely Mbata, Ohakwe, Okoroike and Ekezie. Before he died, he shared his land to his four sons. By this sharing, this land was the share of Ekezie Ogazi who is the son of Ohakwe inherited his father…”
On the next line following the above, the PW1 was recorded correctly when he said he is the son of Ogazi. Lines 17 – 22, therefore reads:
“I am the son of Ogazi and I inherited him Enwenonu Mbata inherited his father Mbata. Okoroike was inherited by his son Manukaji, the father of the defendant. Ekezie had no surviving son. He never married. The three brothers of Ekezie buried him when he died and shared his land when the estate of Ekezie was shared; Ohakwe got this land now in dispute.”
The Examination-in-chief of PW1 continued on 18/4/2005 and lines 4 – 12 of page11 recorded him correctly as saying:
“….I last testified on 10/3/2005, I said that the portion of land Ohakwe got his share is the one in dispute now. The share of Okoroike is in the possession of his son Manukaji. The sons of Mbata namely Lawrence and Enwenonu are in possession of Mbata’s share. The land I got through Ekezie is where I am residing. I am residing on the entire land with some portions not occupied with buildings. The area not occupied by building, I gave to Christopher Manukaji…”
Also at page 12, PW1 was recorded clearly from Lines 3 – 12 on the subject matter as follows:
“I want the order of the court that the land is mine and the court to grant the second and third arms of my claims…
Ohakwe is one of the four sons of Arimanachefu. Ohakwe had four sons namely Ogazi, Emeribe, Arisukwu and Abaraonye. Ogazir had two sons namely Linus and Cletus. The other brothers of Ogazi had no surviving male children.
I inherited this land from my father Ogazi.”
The evidence of PW2 corroborated that of PW1 more especially at pages 17 -18 of the record of appeal to show that “Ekezie” and “Ogazi” are two different people and also that Ogazi is the father of the Respondent at page 17, Lines 5 – 8, the PW2 said:
“The land in dispute is part of Ekezie’s estate that was shared by his brothers. Ohakwe got this part in dispute. After Ohakwe, Ogazi got this land. Ogazi is the son to Ohakwe. The plaintiff is the son of Ogazi…”
And, at page 18 lines 6 – 10, PW2 witnesses inter alia
“I am not a boundary neighbor to the land in dispute. I mentioned Mbata, Okereke, Ohakwe, and Ekezie in my evidence. Ohakwe is the eldest of the four persons mentioned. The land in dispute belongs to Ekezie but was later shared in three portions…”
Also, the review of the evidence of the parties in the judgment of the trial court shows clearly that the trial court was in no way misled by the typing error contained on page 10 of the record and had no misgivings that “Ekezie” and “Ogazi” are different persons: For example at page 32 lines 12 – 15 of the record, the trial court observed that:
“The land in dispute is part of Ekezie’s land that was shared by his brothers. Ohakwe got this part and after it was inherited by Ogazi, his son. The plaintiff is Ogazi’s son…”
And at page 38 lines 22-30, of the record, the trial court further observed:
“Contrarily, the plaintiff holds that he is related to the defendant hence both the plaintiff and defendant had shares of the estate of Ekezie, one of the sons of Arimachefu, who died extinct. He, the plaintiff, deduced the statement that the other three sons of Arimnachefu i.e. Mbata, Ohakwe of the plaintiff and Okoroike of the defendant, shared the estate of the extinct Ekezie into three. The plaintiff further holds that the son of Okorike is Manukaji who is the father of Christopher Manukaji the defendant on record.”
From the above exposition of the records of proceedings, it seems to me that only the learned counsel for the Appellant would still be left in doubt as to the fact that “Ekezie” and “Ogazi” are two different persons in the facts established by the Respondent in the instant case. He is probably the only one that would still be left in doubt that the recording of Ekezie Ogazi in page 10 of the record of appeal arose from the failure of the typist to put a full stop after “Ekezie” does creating a wrong impression that “Ekezie” and “Ogazi” are one and the same person.
I think the applicable rule here is Ex tota material emergat resolution. The construction or explanation should arise out of the whole subject matter.
I repeat that from a holistic construction and/or explanation of the records of proceedings in this case, it is clear that “Ekezie” and “Ogazi” are two different persons. Furthermore, it is clear that Ekezie is one of the four sons of Arimnachefu the Respondent’s forbear, that Ogazi is the son of Ohakwe and that the Respondent inherited the land in dispute (a part of the estate of extinct Ekezie) from his own father Ogazi.
It will also be recalled in relation to the 1st leg of Appellant’s issue No.1 that the learned counsel for the Respondent, perhaps ex abundant cautella took the trouble to file an affidavit by which he submitted a fresh certified true copy of the page 10 of the record of appeal to this court. Despite this effort, the learned counsel for the Appellant urged us not to treat the corrected line 18 of page 10 of the record as part of the record of appeal. In this respect, learned counsel for the Appellant in his list of Additional Authorities inundated us with a list of cases on how to invoke the jurisdiction of the court to correct the records of proceedings. The cases referred to include Kwashi v. Pursmut (2010) 1 NWLR (Pt. 1176) 518, Amogun v. Adesina (1994) 4 NWLR (Pt. 339) 503 at 509, UBA Plc. V. Samuel Ujor (2002) FWLR (Pt. 88) 1014 at 1029, Sommer v. F.H.A. (1992) 1 NWLR (Pt. 219) 548, Ogun v. Akinyela (1999) 10 NWLR (Pt. 67) 692. Akinyede v. Obene (1967) 1 All NLR 302 at 306, EhIkioya v. C.O.P. (1992) 4 NWLR (Pt. 233) 622 at 633.
Here, I think the learned counsel for the Appellant got it wrong. The Respondent in this case filed an affidavit to usher in a certified true copy of page 10 of the record of appeal dated 15-2-2012 from the trial court.
Respondent was not trying to invoke the jurisdiction of this court to correct record. A corrected version of the part of the record was only brought into this Honourable court through an affidavit deposed to by the Respondent Linus Ogazi who in paragraphs 5 and 6 of the affidavit deposed as follows:
“5. That I believe that whoever typed the Record of Appeal inadvertently omitted a full stop between “Ekezie” and “Osazi” on page 10 line 18 the Records or Appeal.
6. That I have applied for and obtained a Certified True Copy of the proceedings of 10th March, 2005, as they ought to be on page 10 of the Record of Appeal…”
Now, in the absence of a challenge to the certified true copy of page 10 of the record of proceedings as corrected, I do not see any reason why this court would not act on it or take the corrected certified true copy as part of the record of proceedings. The position now as I understand it in law is that there is a presumption of regularity for the corrected certified true copy of page 10 of the record of appeal, which can only be challenged and/or impeached by a burden now placed on the Appellant. By Section 146 (i) of the Evidence Act 2011, this court is obliged to presume the certified copy of page 10 of the record of appeal which post-dated the original page 10 of the record to be genuine. And, by Section 147 of the same Evidence Act, any statements as to the circumstances in which it was taken, purporting to be made by the person signing it are true.
In the instant case, the corrected proceeding of the trial court of 10th March, 2005 lines 8 -16 properly read as follows:
“By our custom, a person who deforested a piece of land owns it. Arimacheku Nwanwa had four sons, namely Mbata, Ohakwe, Okoroike and Ekezie. Ogazi who is the son of Ohakwe inherited his father. I am the son of Ogazi and I inherited him. Enwenonu Mbata inherited his father Mbata. Okoroike was inherited by his son Manukaji, the father of the defendant. Ekezie had no surviving son. He never married. The three brothers of Ekezie buried him when he died and shared his land. When the estate of Ekezie was shared Ohakwe got the land in dispute.”
With the above, taken together with other pieces of evidence on record, the Appellant could no longer be heard to say that the Respondent did not prove his title to the land in dispute by traditional history under the rule in Idundun v. Okumagba (supra).
Also, the Respondent not only adduce evidence of a conditional gift of land to the appellant but also supplied sufficient materials to show that the conditional gift of land to the appellant reverts back to him (the Respondent) when the land became abandoned by the Appellant under the custom of the parties. PW1 witnessed at page 30 of the record as follows:
“…..The land I got through Ekezie is where I am residing.
Some part of this land is not occupied with building.
Sometime, the Defendant, Christopher Manukaji had a disagreement with his brother John Anugwom Okoroike and he Christopher approached me to allow him a residential portion of land so that he can move away from his brother. I obliged him. Christopher, the Defendant, came with his mother Ngokomam. My own mother Onyeberechi was witness. Christopher built a mud house there. Now he has vacated the land about 20 years ago. I built my own house about 50 years ago. The Defendant has refused to release the land to me after he has vacated it. I reported him to Umuehihe 1 Amala.”
Also, Evangelist Linus Uka PW2 witnessed at page 32 of the record as follows:
“…Ekezie died extinct and his three brothers inherited him. Ekezie got this land in dispute as his share of the estate of Arimnachefu. The defendant has a two-room house on a portion given to him and his mother by the plaintiff about 1940s. The defendant was living in this house until he built his own house and left the two-room house uninhabited since over ten years ago…”
In the circumstance, the court below was right when it held at page 102 of the record that:
“In the case at hand, the facts upon which the Appellant claims long possession and of ownership are as follows:
(a) That he has lived on the land for a long time, infact since 1949.
(b) That he cut an iroko tree on the boundary line with the rand of Jude Anozie and shared the proceeds of it with Jude Anozie. Learned counsel for the Respondent had however referred us to the evidence of the Respondent which is clear on the point that the Appellant entered into the land in the first place by the consent and permission of the Respondent and that in accordance with the custom of their people as established by the Respondent and corroborated by the DW2, the land reverted back to the Respondent when the Appellant vacated the place…..”
Issue No. 1 is resolved against the Appellant.
On issue No. 2, learned counsel for the Appellant submitted that the Appellant gave unchallenged evidence that when the Respondent laid claim to the land in dispute he asked him to swear to an oath to assert his alleged right but that the Respondent refused to do so. This implied an abandonment of the right.
Appellant’s counsel submitted further that the court below was carried away by the Respondent’s counsel submission that before the refusal to swear to the oath can be invoked against the Respondent there must be an arbitration and the terms of the oath stated. There was no evidence offered by the Respondent to support this counsel’s submission.
The law, says counsel is settled that the address of counsel no matter how erudite cannot take the place of legal evidence. – Inyang v. Chukwuogor (2007) All FWLR (Pt. 344) 165, Union Bank of Nigeria Plc. V. & Sons (Nig.) Ltd. (2007) All FWLR (Pt. 383) 1.
Learned counsel for the Appellant submitted that in a situation such as this, the court ought to have held the Respondent’s refused to swear to the oath and dismiss the claim. He, referred to the case of Egbuchulam Ogbonna v. Kano Okereke (1977) 2 IMSLR 13 and said the cases of Obaji V. Okpo (1978) IMSLR 258 and Ofomata v. Anoka (1974) 4 ECSLR 251 relied upon by the court below did not support its decision and the facts of the case.
In response to issue No. 2, learned counsel for the Respondent submitted that there was no legally prescribed oath taking for the Appellant over the land in dispute, which the Respondent refused, failed or neglected to take.
Counsel submitted that the matter of oath taking is never a private thing. There must always be witnesses to an oath taking. There must be prescribed instrument of oath, that is whether by juju or bible. There must as well be a date of oath-taking and period of time that is, whether it is for one day or one year within which a party taking the oath would be said to have survived the oath. More importantly, said counsel, there must be a body of persons prescribing the oath to break an impasse or determine the truth between two contesting individuals.
Learned counsel for the Respondent submitted that before oath can be used to claim ownership of a piece of land, there must be an oath taking properly prescribed, taken and survived, taken and died, or total refusal to take oath on a day and on an instrument prescribed. All these, said counsel, are legal requirements, and not merely evidence proferred by counsel in argument.
Learned counsel for the Respondent submitted that in all known cases where oath taking or failure to take oath has been applied in land disputes; there was a properly constituted arbitration body which prescribed oath taking. He referred to the cases of Obaji V. Okpo (1978) 1 MSLR 133 and Ofomata v. Anoka (1974) 4 ECSLR 251.
Counsel said, the question is, “was there any prescribed oath in respect of this land in dispute which the Respondent refused to take”? Counsel submitted that there was none. That, it was the Appellant who said in his evidence that when the Respondent came to ask for the land, he asked him to swear to an oath but he refused. He submitted that it would be stretching the sense out of the word “oath taking” to imagine that the scenario painted by Appellant amounts to prescription of oath-taking and failure to take it, this is more so when the Appellant himself insisted that:
“this matter has not been looked into by any local arbitration.”
Learned counsel for the Respondent urged the court to note that there was no evidence from the appellant that it is the custom of Umuehihe Uzoagba people that when someone comes to you in respect of his parcel of land and you tell him to swear to an oath, but he leaves and sues in court (as he claims), that translates to prescription of oath taking and refusal to take same, for which one may own or lose a piece of land.
Custom is a matter of evidence. Whoever asserts must prove what he asserts. It was the duty of the Appellant to prove the custom which he alleged, and that he has failed to do.See: Ojemen V. H.H. Momodu 11 (1983) 3 SC 173 at 223.
Learned counsel for the Respondent urged us to hold that:
(i) There was no prescribed oath taking which the Respondent refused to take
(ii) The Appellant did not prove or show that the Respondent breached any custom, particularly as to oath taking.
(iii) The story of refusal to take oath for the Appellant by the Respondent is an afterthought.
In deciding issue No.2, I agree with the learned counsel for the Respondent that assuming without holding that the alleged suggestion of oath taking between the Appellant and the Respondent were true, it fell short of the standard procedural requirement of oath-taking. Oath-taking is not based on such informal precepts but based on formal requirements usually prescribed consequent on arbitration.
The question in this case as equally recognized by the court below is whether there was an oath-taking properly prescribed by any arbitration body which the Respondent failed to take? What were the terms of the oath?
What was the instrument on oath-taking and who prescribed the oath? In my opinion, the court below was absolutely well guided and right when it held at page 99 of the record that:
“There is nothing at all on the face of the record to show that any arbitration body ever prescribed any oath which the Respondent failed to take, talkless of the terms and instrument of any such oath-taking. It was only the Appellant himself who said in his evidence-in-chief at page 25 lines 20-22 of the records that when the Respondent came to him with some people to ask for the land, that he asked the Respondent to swear to an oath but he refused.
Incidentally, the same Appellant had asserted emphatically at lines 19-20 of the said page 25 of the records of appeal that “This matter has not been looked into by any local arbitration.”
The court below concluded:
“No one in his wildest imagination would come to the conclusion from the above quoted pieces of evidence of the Appellant, that there was an oath prescribed for the Respondent which he failed to take as to adversely affect his claim of customary Right of Occupancy.”
Issue No. 2 is resolved against the Appellant.
On issue No. 3, learned counsel for the Appellant submitted that the court below struck out Issues Nos. 2 and 3 in the Appellant’s brief of argument which is contained at pages 65 -66 of the record. That, the reason given by the court below for so doing was that it was argued together with ground 3 of the grounds of appeal (an omnibus ground).
Learned counsel for the Appellant submitted with the greatest respect to the Honourable Court that the arguments in the issue No. 2 flowed from a competent ground. That, mere reference to ground 3 in the outline for issues for determination did not justify the striking out of the issue and the arguments contained in it. In the circumstances, the court ought to have considered the competent arguments from the competent ground.
He referred to the case of Olunwesan V. Ogundepo (1996) 2 NWLR (Pt. 433) 628 at 644.
Learned counsel for the appellant submitted that the court below dwelt on technicality by striking out Issues 2 and 3 of the Appellant’s brief of argument in the court below. He argued that the days of technicalities are gone; the court’s present attitude is to do substantial justice.
He referred to the cases of Odoh v. Federal Republic of Nigeria (2008) All FWLR (pt. 424) p. 1590 and Kumalia v. Sherrif (2008) All FWLR (Pt.431) P.1032.
Finally, on this score, learned counsel for the Appellant submitted that the striking out of the issue was erroneous and made the court below not to consider a vital aspect of the Appellant’s case,thus infringing the Appellant’s right of fair hearing.
Learned counsel for the Respondent on the other hand submitted that the court below was right in striking out Issues Nos. 2 and 3 on the Appellant’s brief of argument and all the arguments there. What the court did was what the law required it to do. It is not in dispute that Ground 3 of the Grounds of Appeal filed by the Appellant at the court below was an omnibus Ground of Appeal. It has been held over and over again that omnibus ground of appeal is not a competent ground of appeal in the customary court of appeal in that it does not raise any question of customary law. He referred to the case of Golok v. Diyalpwan (1990) 2 NWLR (Pt. 139) 411 at 417 (SC) and Section 282 (i) constitution of the Federal Republic of Nigeria, 2011.
Learned counsel for the Respondent also submitted that it is settled that every issue for determination, must be formulated from, or based upon and related to or distilled from a competent ground of appeal.
He cited the case of Magit v. University of Agriculture, Makurdi & 3 Ors. (2006) 133 LRCN 46 at 77.
The Appellant, at the court below, said counsel, formulated Issues Nos. 2 and 3 from competent Grounds 2 and incompetent Ground 3 (Omnibus Ground), argued them together.
Counsel submitted that an incompetent ground of appeal cannot be argued with a competent ground of appeal. When this happens, it is not mere technicality as the Appellant contend here. The court frowns at it, and must strike out the argument.He referred to the cases of Akuchie v. Nwamadi (1992) 8 NWLR (pt. 258) 214 at 224 Chief T.G. Bereyin & 5 Ors. V. Gbobo (1980) 1 NWLR (Pt. 97) 372.
Learned counsel for the Respondent further submitted that when the issues and argument are struck out, the grounds of appeal are deemed to have been abandoned, because it is not the business of court to formulate issues or present argument for an appellant. It is also not the duty of court to speculate on which argument relates to the competent ground or issue argued with the incompetent ground or issue. When a ground of appeal is abandoned, it is liable to be struck out.
He referred to the cases of Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 296 (SC) and Igwe v. Alozieuwa (1990) 3 NWLR (Pt. 141) 735 at 749 and urged that the issue be resolved in favour of the Respondent. Grounds 2 and 3 of the Appellant’s grounds of appeal devoid of particulars are as follows:
2. Error in Law
The members of the customary court erred in law in holding that the land subject matter of the suit belonged to the plaintiff when the evidence before the court overwhelmingly shows that the said piece of land belongs to the defendant.
3. The judgment is against the weight of Evidence.
Based on the above two grounds, the Appellant formulated issues Nos. 2 and 3 amongst others in the following terms.
2. Whether the trial court dispassionately evaluated evidence before it (Grounds 2 and 3)
3. Whether, having recourse to the evidence before the trial court, the Respondent had discharged the onus required of him as to entitle him to his claim (Grounds 2 and 3).
In the court below, learned counsel for the Respondent raised a preliminary objection on Issues Nos. 2 and 3. He argued that they were formulated from a competent ground 2 and an incompetent ground 3, and argued together in the Appellant’s brief of argument. He then urged the court below to strike out issues 2 and 3 as incompetent. He also urged that ground 3 of the grounds of appeal be struck out and to treat ground 2 as abandoned and liable to be struck out.
The court below noted that the appellant did not furnish any reply to the Respondent’s Notice of Preliminary Objection and in upholding the Respondent’s arguments, it held at pages 96 – 97 thus:
“I am in complete agreement with the submissions of learned counsel for the Respondent, that having regard to the jurisdiction of the Customary Court of Appeal as provided for under section 282 (1) of the 1999 constitution, an omnibus ground of appeal is not a competent ground before this court as it complains of improper evaluation of evidence on the facts and does not raise any questions of customary law. See Madukaji Aguocha (sic) (2009) Udeze v. Chidebe (1999) 1 NWLR (Pt. 125) 141 at 158 Nwaigwe V. Okere (2008). All FWLR (Pt. 431) 843 at 862.
In the circumstance, I uphold the first limb of the preliminary objection and hereby strike-out ground 3 of the appeal for being incompetent. I also strike out Issues Numbers 2 and 3 for determination distilled from this incompetent ground of appeal and all the arguments made there under for being incompetent.”
Still at page 97 of the record, the court below further held that:
“In like manner, since the Appellant formulated Issues Nos. 2 and 3 from a competent ground 2 and an incompetent ground 3 and argued them together, the vice of incompetence which tainted ground 3 has incurably rendered ground 2 equally incompetent making it liable to be struck out. The same and all arguments made there under are accordingly hereby struck out…”
The crux of the argument of the learned counsel for the Appellant on this score is that issue No. 2 flowed from a competent ground and that the mere reference to ground 3 in the outline for issues for determination did not justify the striking out of the issue and the arguments contained in it.
Quite, contrary to the above argument by the Appellant’s counsel, the implication of the decision of the court below is that Appellant’s issue No.2 was pre-supposedly distilled from a competent ground 2 and an incompetent ground 3 of the Notice of Appeal.
I do agree with the learned counsel for the Respondent that an incompetent ground of appeal cannot be argued with a competent ground of appeal.That, when this happens, it is not mere technicality as the appellant contends; the court frowns on it and must strike out the argument.
See, Akuchie v. Nwamadi (1992) 8 NWLR (pt. 258) 214 at 224. Chief T.G. Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372. In the instant case, the court below was right when it struck out not only the incompetent ground 3 of the Appellant’s Notice of Appeal but also in deeming ground 2 of the Notice of Appeal has abandoned.
In the case of Chief T.G. Bereyin Gbogo (supra), it was held by the Port Harcourt Division of the Court of Appeal (per Kolawole, JCA) at page 380 that:
“But assuming the ground 4 meets up all the requirements of order 3 Rule 2 (2), the ground was argued together with ground 5 and 6. It is therefore a futile exercise to take the grounds which are incompetent and sift that which is competent therefrom because the three grounds were argued as one ground. It is not possible when two incompetent grounds of appeal are argued in the brief of argument with a competent ground of appeal for the court to be able to examine in the light of the grounds of appeal whether the judgment appealed from is wrong or right.”
This decision was followed in the case of Ambrose Akuchie v. Maria Nwamadi & 2 ors. (supra) at 224, where it was held that an incompetent ground of appeal cannot be argued with a competent ground of appeal. In the light of the above, the decision of the court below to strike out grounds 2 and 3 of the Appellant’s Notice of Appeal cannot be faulted.
Issue No. 3 is also resolved against the Appellant.
Having resolved the three (3) Issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed. N30, 000 cost of this appeal is awarded to the Respondent as against the Appellant.
UWANI MUSA ABBA AJI, J.C.A: I was privileged to read in advance the lead judgment of my learned brother, M. A Owoade, JCA, just delivered.
I agree entirely with the reasoning and conclusion of my learned brother that this appeal is devoid of any merit and it is also dismissed by me.
I abide by the consequential order as to costs.
HARUNA M. TSAMMANI, J.C.A: I had the advantage of reading before now, the lead judgment delivered by my learned brother Mojeed A. Owoade; JCA.
I agree with the reasoning and conclusion arrived at by my learned brother. I have nothing else useful to add. In that respect, I too agree that the appeal lacks merit and should be dismissed. It is hereby dismissed by me.
I abide by the order on costs.
Appearances
C. E. Amaukwu, Esq.For Appellant
AND
Chief E. T. C. Ogbusu, Esq.For Respondent
