ISRAEL IHEBIE v. THEOPHILUS NWOBA
(2013)LCN/6362(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2013
CA/OW/106/2011
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
ISRAEL IHEBIE Appellant(s)
AND
THEOPHILUS NWOBA
(For himself and as representing Umuobasha family of Umuahum Ndegwu excluding the plaintiff) Respondent(s)
RATIO
AN OMNIBUS GROUND OF APPEAL
A cursory perusal of these grounds of appeal merely state that the judgment of the trial court on the omnibus ground is against the weight of evidence. It is not to my mind a complaint against a finding or non-finding of fact on any specific issue by the trial court. The said ground is only used as a general complaint against the entire evidence that had been adduced at the trial court. See the case of AKINLAGUN v. OSHOBOJA (2006) 12 NWLR (Pt. 993) 60 where the Supreme Court stated thus:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.” PER EKPE,J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
In the case of EBBA v. OGODO (2000) 10 NWLR (Pt. 675) 387 The Supreme Court held thus:
“Though it is settled law that an appellate court would not easily interfere with the judgment of the court below, yet where the judgment of the court below was reached either upon erroneous inference drawn from findings of facts or that its application of the law to properly found facts is perverse and/or erroneous, then the appellate court has a duty to intervene to correct injustice so caused.” PER EKPE,J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Hon. Justice Ngozi Opara of the High Court Owerri, delivered on the 11th day of June, 2007 in which the learned trial Judge dismissed the Appellant’s case in favour of the Respondent’s.
The Appellant as plaintiff in the trial court had sued the defendant/respondent claiming the following reliefs:
“(a) N400.00 (Four hundred naira) being damages for trespass to the land in dispute.
(b) Perpetual injunction restraining the defendants his servants, agents from further trespass on the said pieces of land.”
The said suit was filed on the 7th day of May, 1974. The Respondent being dissatisfied with the outcome of the case appealed to the court of Appeal then in Port Harcourt which set aside the decision of the High Court, Owerri and ordered a re-hearing of the case. After a protracted hearing of the matter de novo which spanned several years, the trial court finally set aside the earlier decision of the trial court, hence this appeal.
The facts of the case briefly stated are as follows: The lands in dispute were once owned by a certain MARK NWIGBA, a descendant of Ogbaso of Umuahum Ndegwu whom both the Appellant and the Respondents claim was related to them. These lands were once pledged by Mark Nwigba to Obinanwa N. Nwoba, the father of the Respondent. In 1996, Mark Nwigba redeemed these lands from Nwoba with the sum of ?74.00 supposedly provided by Daniel Ihebie of the Appellant’s descent. That after the said redemption, Mark Nwigba then made an outright gift of the said redeemed lands to the Appellant who purportedly became the owner of the land in dispute,
The Respondent however, denied any knowledge of such customary gift claiming that the Appellant’s father was not a member of the family of the Respondents. After the death of Mark Nwigba, the Respondent demanded to redeem the lands in dispute which had been pledged to the Appellant but which the Appellant now claims were given to him by Mark Nwigba as an outright gift and refused the redemption by the Respondent who offered to pay back the redemption fee of N74.00
The Respondent claims that the said sum of ?74.00 was then deposited with the Elders according to custom and proceeded to enter the said lands as of right. The appellants then sued the Respondent in the High Court for the claims aforementioned and lost, hence this appeal.
The Appellant filed his notice of appeal on the 26th of July 2007 with an omnibus ground of appeal and with leave of court he then filed 7 additional grounds of appeal. The grounds of appeal shown of their particulars are as follows:
(i) GROUND ONE:
The judgment is against the weight of evidence.
(ii) GROUND TWO:
The trial court erred in law when it held that the plaintiff filed to prove his case and dismissed the same with costs.
GROUND THREE
The trial court erred in law when it failed to make any finding of fact on the issue of pledge to and redemption of the lands in dispute from the plaintiff’s forebear as alleged by the defendant which failure led to miscarriage of justice.
GROUND FOUR
The trial court erred in law when it relied on unpleaded and unproven custom to hold that Mark Nwigba did not make an outright gift of the land to the plaintiff’s forebear.
GROUND FIVE
The trial court erred in law when it believed the evidence of defendant that the plaintiff is an ‘Osu’ after holding that it is virtually impossible to find modern evidence to buttress the assertion.
GROUND SIX
The trial court erred in law when it held that detail of the burial rights and who did what given by the defendant are more believable and straight forward than that given by the plaintiff and his witnesses.
GROUND SEVEN
The trial court erred in land when it held that it is the defendant who is more related by blood to Mark Nwigba than the plaintiff
GROUND EIGHT
The trial court erred in law in failing to observe the principles of fair hearing while hearing the case which failure led to miscarriage of justice.
The Appellant in his brief of argument has formulated 7 issues for determination as follows:
“(1) Whether the trial court was right to have held that the appellant failed to prove his case and dismissed the same with cost.
(2) Whether the failure of the trial court to consider and make finding of fact on the issue of pledge of the lands in dispute to, and their redemption from, the appellant’s forebear did not lead to a miscarriage of justice in this case.
(3) Whether the trial court was right to have relied on unpleaded and unproven custom to hold that Mark Nwigba did not make an outright gift of the lands in dispute to the appellant’s father.
(4) Whether the trial court violated the principle of fair hearing during the proceedings which led to miscarriage of justice in this case.
(5) Whether the trial court was right in believing the respondent’s assertion that the appellant is an ‘OSU’ (outcast) after holding that it is virtually impossible to find modern evidence to buttress the assertion.
(6) Whether the trial court was right to have held that the detail of the burial rites and who did what given by the respondent are more believable and straight forward than that given by the appellant.
(7) Whether the respondent proved that he is more related by blood to Mark Nwigba than the appellant.”
The Respondent on the other hand has adopted all the issues formulated by the Appellant and I intend to anchor my decision in this appeal on the issues as couched by the Appellant. I shall take issues 1, 2, and 3 together and thereafter merge issues 6 and 7 and treat them as one. To begin with, learned counsel for the Respondent has raised a preliminary objection to Grounds (1), (2) and 8 of the Grounds of Appeal and consequently on ISSUE ONE (1) relied upon by the Appellant to argue his grounds (1) and (2) of his Grounds of Appeal.
Learned counsel argued that the omnibus Ground of Appeal is meant for a situation where the trial judge did not weigh the evidence on an imaginary scale. He cited the case of LEYLAND (NIG.) LTD v. DIZENGOFF W.A. (NIG) LTD (1990) 2 NWLR (Pt. 134) 610. That the omnibus ground should not be used to question any specific finding or issue. He further argued that a complaint against a finding on a specific issue by the trial court should be raised as a substantial ground of appeal. See BHOJSONS PLC v. GEOFREY DANIEL KALIO (2006) 5 MJSC 136. He concluded that Ground 1 of the Grounds of appeal is incompetent and ought to be struck out. Also that since grounds 1 and 2 are argued together under ISSUE ONE and ground one is incompetent; issue one is also incompetent as it is supposedly derived from ground one. He further argued that there is no issue to sustain ground two and it is therefore deemed abandoned and ought to be struck out. See OGIGE & 3 ORS. v. A. OBIYAN (1997) 10 NWLR Pt. 524 179 at 196.
Learned counsel’s next objection relates to Ground 8 from which the appellant has raised ISSUE 4. Counsel stated that an appeal ought to be as the Judgment of a court and not ancillary matters like injunctions etc. That these do not form part of the judgment appealed against and thus ISSUE 4 predicated on ground 8 is incompetent. See ADEDIRAN v. NPA (2004) 7 NWLR (Pt. 872) 230.
In his reply, learned counsel for the Appellant argued that neither grounds one nor ground two of the grounds of appeal is a complaint against a finding of fact on a specific issue by the trial court. That it is rather ground 3 of the Appellants Ground of Appeal, that raised such a complaint. That learned counsel has misread the issues for determination at page 3 of the appellant’s brief by regarding Issues 1 and 2 therein as Grounds 1 and 2 of the Grounds of Appeal. Counsel further submitted on Issue 4 and ground 8 as raised, that the Appellant is appealing on the breach of his constitutional right to fair hearing arising from the failure of the court to dispose of pending applications before judgment, failure of which leads to a miscarriage of justice. That an issue of Fair Hearing can be raised at any time even at the appellate or court of last resort without leave being an issue of law. He then urged the court to disregard all authorities cited therein by Respondent’s counsel and dismiss the preliminary objection.
It is well settled that when the competence of a procedural step or if an appeal is challenged the court is duty bound first to consider the competency and rule on it. If it holds that the step taken or appeal is competent, it shall pronounce so and reserve its reasons in the decision where the preliminary objection is taken along with the issues brought before it in the appeal. See TIJANI AMOO & ORS. v. ALHAJI ALABI & ORS (2003) 12 NWLR (Pt. 835) 537.
Nevertheless, I shall take the preliminary objection and make my pronouncement on it before I proceed to the main appeal. The Respondent has argued that the omnibus ground of appeal should not be used for the purpose of questioning any specific issue or finding as the Appellant has done, but should rather be raised as a substantial ground of appeal. For the purpose of clarity, I shall again reproduce grounds 1 and 2 of the grounds of appeal which read as follows:
GROUND ONE:
(1) The judgment is against the weight of evidence
(2) GROUND TWO: ERROR IN LAW
The trial court erred in law when it held that the plaintiff filed to prove his case and dismissed the same with costs.
A cursory perusal of these grounds of appeal merely state that the judgment of the trial court on the omnibus ground is against the weight of evidence. It is not to my mind a complaint against a finding or non-finding of fact on any specific issue by the trial court. The said ground is only used as a general complaint against the entire evidence that had been adduced at the trial court. See the case of AKINLAGUN v. OSHOBOJA (2006) 12 NWLR (Pt. 993) 60 where the Supreme Court stated thus:
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.” Again, ground two of the Appellant’s grounds of appeal is merely on the fact that the trial court dismissed the plaintiff’s case on lack of proof. There was no specific finding of fact on this ground of appeal and no specific issue was raised. I therefore hold that the argument of learned counsel for the Respondent on grounds one and two is misconceived and ought to be discountenanced.
On the issue of learned counsel’s argument on ground 8 of the Appellant’s grounds of appeal, learned Respondent’s counsel anchored his argument on the fact that an appeal ought to be against the judgment of the court and not on ancillary matters like injunctions etc, which is an interlocutory matter from which Appellants ISSUE 4 is predicated. He then urged the court to discountenance both ISSUE 4 and the said ground 8 from which it is predicated.
Appellant’s answer to that issue is that the Appellant is appealing on the breach of his constitutional right to Fair Hearing as the court failed to dispose of pending applications in the proceedings before judgment. Ground 8 reads thus:
“The trial court erred in law in failing to observe the principles of fair hearing while hearing the case which failure led to miscarriage of justice.”
From my observation the main grouse of the Appellant on that ground is that the trial court failed to observe the principles of fair hearing by not delivering its ruling before proceeding to judgment. Ground 8 as couched by the Appellant did not go into the substance of the applications which the trial court allegedly failed to rule upon. Learned counsel for the Appellant was merely harping on the fact that the Appellant was denied his constitutional right to fair hearing by that omission. I have failed to see how the said Ground 8 hammered on the issue of interlocutory injunction, rather than the principle of fair hearing, I would consider it mischievous on the part of learned Respondent’s counsel in trying to high light issues which were not raised in ground 8 or even in the particulars of error.
It is however my firm view that since the issue of fair hearing can be raised even at this stage, the argument of Respondent’s counsel as regards Ground 8 of the Appellants grounds of appeal is misconceived and it is hereby discountenanced. Consequently the Respondent’s preliminary objection is without merit and it is accordingly dismissed.
I shall now consider the main appeal. Learned counsel for the Appellant formulated 7 issues for determination as follows:
“(1) Whether the trial court was right to have held that the appellant failed to prove his case and dismissed the same with cost.
(2) Whether the failure of the trial court to consider and make finding of fact on the issue of pledge of the lands in dispute to, and their redemption from, the appellant’s forebear did not lead to miscarriage of justice in this case.
(3) Whether the trial court was right to have relied on unpleaded and unproven custom to hold that Mark Nwigba did not make an outright gift of the lands in dispute to the appellant’s father.
(4) Whether the trial court violated the principle of fair hearing during the proceedings which led to miscarriage of justice in this case.
(5) Whether the trial court was right in believing the respondent’s assertion that the appellant is an ‘OSU’ (outcast) after holding that it is virtually impossible to find modern evidence to buttress the assertion.
(6) Whether the trial court was right to have held that the detail of the burial rites and who did what given by the respondent are more believable and straight forward than that given by the appellant.
(7) Whether the respondent proved that he is more related by blood to Mark Nwigba than the appellant.”
The respondent on his part adopted all the issues as formulated by the Appellant and proceeded to argue them accordingly on Issue No. 1, the Appellant’s counsel argued that he had exclusive possession of the lands in dispute. That he gave evidence to support his claim and tendered Exhibit 3 which is the receipt of payment of the redemption money issued by the respondent having been written by one Sidney Nwoba, a relation of the Respondent. He further argued that an action for trespass lies at the suit of a person in possession and any form of disturbance of that possession amounts to trespass and renders the trespasser liable in damages. He then cited the case of OLUBODUN v. LAWAL (2008) 51 WRN 1. SC. and further argued that having admitted that the Appellant was in possession of the lands in dispute by pledge, the onus now shifts unto the Respondent to prove redemption which he has failed to do.
The Respondent’s argument on this issue is that since the appellant pleaded the fact of customary right of the said land which gift according to him was made before some witnesses it behoves on the Appellant to call witnesses to prove such gift which he failed to do. That the main consideration of the trial judge was; who was to inherit the property of Mark Nwigba who died childless as custom demands. That the issues canvassed at the trial court cannot be changed in the Court of Appeal. See KWAJAFFA v. BANK OF THE NORTH LTD (2004) 13 NWLR (Pt. 889) 146.
On Issue No, 2, the Appellant argued that Mark Nwigba pledged the lands in dispute to the Respondent for ?74 but that in 1966 the said Mark Nwigba had asked the Appellant to redeem all his lands including the ones pledged to the Respondent and that the Appellant had produced the ?74 with which the lands in dispute were redeemed from the Respondent and that the Appellant’s family had been in possession of the lands since after the customarily gift of the lands to the Appellant by Mark Nwigba. Appellants again argued that if there was a repledge and not an outright customary gift of the said lands by Mark Nwigba, the respondent has not redeemed the said lands from the appellant. That the trial Judge overlooked these vital issues and made no findings of fact on them which failure led to a miscarriage of justice in this case.
In reply the Respondent contended that since Mark Nwigba died childless, the Respondent was the rightful person to redeem his lands which he did by depositing the redemption money with the elders. The Respondent further argued that it was his right customarily to inherit Mark Nwigba’s lands since the said Mark died childless. Issue No. 3 also dealt with the fact that Mark Nwigba redeemed all his lands in dispute and put them in possession of the Appellant before he died as claimed by the Appellant. The Respondent however refuted this claim stating that there were indeed no witnesses to support the Appellants allegation that the lands in dispute were handed over to the Appellant as a gift according to custom.
On Issue No. 4, learned counsel for the Appellant stated that the trial court failed to deliver rulings on the two applications argued by both learned counsel and that failure to rule on the applications was a breach of the Appellants constitutional right to fair hearing and cited the cases of PEPPLE v. GREEN (1990) 4 NWLR (Pt. 142) 108 at 121 among others and urged the court to resolve this issue in favour of the appellant.
Learned counsel for the Respondent argued that no doubt, arguments were taken in both applications but that the court felt that the interest of justice would be better served if the case proceeds to judgment and the issues canvassed therein put to rest once and for all in the final judgment. That both parties were well aware of that fact and did nothing to bring it to the notice of the trial judge until the final judgment.
On Issue No. 5, learned Appellant’s counsel stated that the Respondent in his 4th amended statement of defence pleaded that the Appellant is an “OSU”, outcast, whose father Ihebie, was procured by Obosha and dedicated to the OZURUMBA SRINE of Ndegwe. That the Appellant has in very strong terms denied this effort to denigrate him and applied that the said offending paragraphs be struck out for being scandalous but that the trial court failed to rule on this issue even after hearing arguments on both sides. That the trial court found in his judgment that there was no evidence to prove that assertion but that the court went on to import same into his judgment. That the trial court failed to take into consideration the fact that the Appellant provided the redemption money of ?74 for Mark Nwigba to redeem this lands and that thereafter the said lands were handed over to the Appellant to possess, all to the knowledge and consent of the respondent,
Learned counsel concluded on that point that the position of the trial court violates the provisions of the existing laws of the land having been based in an alleged custom that is not only discriminatory but repugnant to natural justice, equity and good conscience. See S.42(1) (2) OF THE 1999 CONSTITUTION.
See – SECTION 42 (1)(2) OF THE 1999 CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA
S.14(3) OF THE EVIDENCE ACT CAP. E14 LAWS OF FEDERATION OF NIGERIA 2004.
S.20(1) HIGH COURT LAW OF EASTERN NIGERIA 1963, APPLICABLE IN IMO STATE.
S.3 OF ABOLITION OF OSU SYSTEM LAW CAP. 1, 1963 LAWS OF EASTERN NIGERIA APPLICABLE IN IMO STATE.
In his reply to the above assertion the Respondent referred to paras. 3 – 11 of the 4th amended statement of defence of the Respondent and the evidence of DW1 and DW2 particularly that of DW1 where he gave his ancestral history on pages 102 – 103 of the records.
The Respondent then urged the court to consider the disabilities of the Appellant as an “OSU” and concluded that such a person can neither hold the title of “OFO” in the community of Umuobosha nor inherit land from a free born. That the court below was wrong to have believed the evidence of the defence on this issue.
ISSUES No. 6 and 7 as argued by the parties are based mainly on the circumstances surrounding the Appellants genealogy and also on the fact that the Appellant being what the respondent claims that he is cannot hold certain customarily titles as well as inherit lands from a free born. The Appellant referred to the testimony of PW1 in the lower court where he thus stated:
“Mark is now dead. He was buried customarily. The expenses were borne by my father Ononiwu Ihebie. I said that it was Ihebie family that performed the funeral rites of Mark Nwigba. When Mark Nwigba was being buried the defendants never showed up. This was because they were not in good terms and he instructed that they should not see his corpse. While he was alive he had no dealings with them. He had a dispute with them…” Under cross-examination he reiterated that Ononiwu Ihebie and his children performed the customary burial rites and not the defendants.
That the above evidence was supported by the independent and unchallenged testimonies of PW2 & PW3. He further stated that the Appellant was the one who actually performed the burial rites of Mark Nwigba and also bought the coffin, which was used to bury him. That the trial court taking all the circumstances into consideration failed to properly evaluate the evidence adduced by the parties before him, and that this approach by the court below has occasioned a grave miscarriage of justice on the Appellants. Appellants counsel further submitted that although the Respondent pleaded their genealogy in para. 3 of his 4th amended statement of defence, he deliberately attempted to ascribe an inferior status of “OSU” to the Appellant without any proof of the fact that the Obosha family procured the Appellants from elsewhere. That during the hearing the Appellants applied to the court below to strike out the offending paragraphs but that the court declined to deliver any ruling on that issue. It was however further averred that even though the Appellants never held the OFO family title, it was not because of any inferior status of the Appellant but simply because the said title never devolved on the Appellant as the oldest man at any given time. He concluded that the finding of the trial court was based on evidence of unpleaded facts and is thus consequently perverse. He then cited the following cases:
– OYENIRAN v. AJANI (2008) 38 WRN 174
– SOKOTO v. KPOMGBO (2008) 34 WRN 1
– OGUNLEKE v. OYELAKIN (2003) 27 WRN 127
– ODONIGI v. OYELEKE (2001) 11 WRN 1
In answer to Issue 6 and 7 as argued by the Appellant, the Respondent stated that both parties pleaded that each performed the burial rites to the exclusion of the other. That the trial court analyzed and evaluated the evidence before him and disagreed with the submissions of the Appellant. That the Appellant and his witnesses gave conflicting pieces of evidence before the lower court which cast doubts on the mind of the judge. That the sum total of all that is that the evidence of the Respondent was given probative value by the court below having not been successfully challenged or contradicted with enough material as to sway the mind of the court in his favour. He then urged the court to be reluctant in disturbing the findings and conclusions of the lower court.
I have painstakingly perused the briefs and submission of both learned counsel in this appeal and I have also given careful consideration to all the issues raised herein. From all the issues raised in this appeal, the salient points to be considered are as follows:
1. Whether the lands in dispute were ever pledged and/or redeemed.
2. Whether the Appellant was given fair hearing by the lower court in his decision.
3. Whether the issue of “OSU” outcast is recognized by any law.
4. Whether the order of perpetual injunction avails the Appellant including damages for trespass to the land in dispute.
To begin with both parties are ad idem to the fact that the lands in dispute which originally belonged to Mark Nwigba had been pledged to the Respondent for ?74. In the year 1966, the said Mark Nwigba sought to redeem his lands from the Respondent and the Appellant then offered to pay the redemption fee of ?74. One thing is clear, that the said lands in dispute had once been pledged to the Respondent and later redeemed with the help of the Appellant. The Appellant now claims that after redemption, the said lands were given to him as an outright gift by Mark Nwigba. The Respondent has not denied the fact that the Appellant had provided the redemption fee of ?74 but has refuted the fact that the said lands were handed over to the Appellant as a gift. It is on record that at the time of the death of Mark Nwigba, the Appellant was in possession of the said lands living and farming on it. The Respondents have admitted that they made several attempts to redeem and re-possess the lands but the Appellant refused, claiming that the said lands were at the time rightfully his as a gift. The Respondent admitted that several attempts were made to pay back the redemption fee of ?74 to the Appellant and finally this money was handed over to the elders as custom demanded. The Respondent now claimed that at this point in time the lands had been thus redeemed and proceeded to enter the said lands in 1974. This attempt was resisted by the Appellant which culminated in the suit in which judgment was delivered in 2007 dismissing the Appellants case with cost of N5,000.00
The learned trial Judge took the evidence of PWS 1, 2 and 3, assessed all the pieces of evidence before him and chose to believe the evidence of the defendant/Respondent. PW2 however had categorically stated in his testimony in court that Appellant’s father was the half brother of Mark Nwaigba and that he provided the money for the redemption of the said land in dispute. He further testified that he was present when Mark Nwigba died in September 1970 and that his father and other relations performed the burial rites since Mark had died childless. He reiterated the custom that he who buries a childless man inherits his property. PW3 also testified to the fact that he was physically present when Mark Nwigba died and that he and Appellant’s father went on two bicycles to buy the coffin for ?0.5.0. and performed other burial rites for the late Mark Nwigba.
The Defendant/Respondent rejected all that and DW1 in particular alleged that the father of the Appellant is an “OSU” outcast who was bought by the Obosha family and used as a sacrifice to the shrine of Ozurumba and so was not in any position to inherit the property of Mark Nwigba who was not a slave but a free born. The Respondents were challenged to prove this assertion and the learned trial Judge decided that since such a belief was handed down from “the olden days” he was not in a position to disturb or repute such a custom being a sensitive issue.
I have earlier stated that both parties agree that the said lands which were pledged to the Respondent were later redeemed by the appellant. It is my view on this point that at the time of the death of Mark Nwigba, the said lands which had been redeemed were no longer available for a further redemption since Mark had made a gift of them to the Appellant before his death. The Respondent could not successfully repute this claim but merely harped on the fact that the Appellant could not inherit the said land being on OSU outcast, To further expatiate on this issue I shall invoke Section 42(1)(2) of the 1999 Constitution which clearly states as follows:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person.
(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions are not made subject; or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
I shall also make reference to S.14(3) of the Evidence Act and S.20(1) of the High Court Laws of Eastern Nigeria 1963 Applicable in Imo State. Reference is also made of S.3 of ABOLITION OF OSU SYSTEM LAW CAP 1 1963 Laws of Eastern Nigeria, Applicable in Imo State.
I have not come in contact with any extant laws of the land based on an alleged custom that discriminates against a fellow Nigerian. I personally abhor any custom or tradition that seeks to subject a Nigerian to discrimination and deprivation merely because of the circumstances of his birth. This custom to my mind is not only barbaric and repulsive but is also repugnant to natural justice, equity and good conscience and, of course incompatible with local statutes presently in force.
The learned trial Judge on page 143 of the record in believing the testimony of DW1 stated that the purchase of the ancestor of the plaintiff and the sacrificial rituals dedicating him to the shrine of Ozurumba took place in the “olden days.” The trial court made a lame attempt at interpreting “the olden days” and stated erroneously that since one cannot lay hands on any modern evidence to buttress such facts it ought to be established as true and held as such. He stated thus:
“Having come to this conclusion I am constrained to disagree with the submission of learned counsel to the plaintiff that the defence is in law bound to lead evidence in court surrounding the dedication or the year or event which took place then;
I wish to make it categorically clear that this assertion by the trial court is to my mind, totally devoid of any sound reasoning. If the trial court considered this such a sensitive issue, that touches on the status and personality of the Appellant and his standing in his society, then he ought to have made a definite pronouncement on it backed by any law in force. Such a belief cannot be swept under the carpet simply because it had been the belief in the olden days. Modern laws and statutes have since put that matter to rest and I believe the learned trial Judge ought to have towed that line instead of attempting to fan the ambers of discrimination and segregation in believing the Respondent.
The issues of redemption of the pledged lands in dispute and the OSU outcaste belief having been laid to rest, I will then avert my mind to the issue of lack of fair hearing as canvassed by the Appellant.
The Appellant has alleged that the lower court did not grant him fair hearing when he applied that some offending and scandalous paragraphs be expunged from the pleadings of the Respondent. Both parties made copious submissions to that effect and the trial Judge even visited the locus to ascertain certain facts but declined to deliver any ruling on those matters. In the case of EGHAREVBA v. OSAGIE (2009) 18 NWLR (pt. 1173) 299, the Supreme Court held that any issue properly raised and canvassed before a trial court or an appellate court must be given a fair hearing and considered. This is so in order to avoid a miscarriage of justice. The learned trial Judge heard the arguments of both learned counsel but declined to decide on the issues raised. This, to my mind is a denial of fair hearing. The Appellant had earlier filed a motion on 3rd day of October 2000 seeking the leave of court to strike out some scandalous and offending paragraphs in the respondent pleading. Secondly, in the course of the proceedings, at the lower court, the Respondent filed a motion seeking to restrain the Appellant from building on the land in dispute called “Uhu Mark Nwigba” which was not a subject of dispute as can be gleaned from the particulars of claim of the Appellant. The trial court however, visited the locus and took evidence from all the parties and their witnesses and reserved Ruling for the 1st day of December 2003. Both rulings were not delivered even though the Respondent claims that the said Rulings had been thus subsumed in the final judgment, I have carefully perused the judgment of the court below and I have since discovered that no reference was made to the pending rulings before judgment. The trial court ought to have made definite pronouncements on those pending issues before the final judgment or even in the body of the judgment so delivered.
Failure to do so is to my mind occasions a denial of fair hearing on the part of the Appellant. I agree with learned counsel for the Appellant that failure to rule on the applications amounted to a denial and breach of the Appellants constitutional right to fair hearing under the 1999 Constitution. The case of SALIM v. IFENKWE (1996) 5 NWLR (Pt. 450) 564 at 585 is hereby referred to. Also reference is made to the case of AGBU v. AGBU (2007) 9 WRN 195. From the totality of all of the above it is my firm view that the Appellant has proved his exclusive possession on the land as he and the late Mark Nwigba lived on the said land after it had been redeemed until the death of Mark. The fact that the lands were given to the Appellant as an outright gift was never successfully debunked or contradicted by the Respondent. Again the Respondent did not deny any acts of trespass on the said lands having not proved successfully exclusive possession of the said lands. The trial court also failed to appreciate, settle and resolve the pending issues based on the claim of the Appellants before him.
In the case of EBBA v. OGODO (2000) 10 NWLR (Pt. 675) 387 The Supreme Court held thus:
“Though it is settled law that an appellate court would not easily interfere with the judgment of the court below, yet where the judgment of the court below was reached either upon erroneous inference drawn from findings of facts or that its application of the law to properly found facts is perverse and/or erroneous, then the appellate court has a duty to intervene to correct injustice so caused.”
This principle clearly applies to the case at hand and I so hold accordingly. Consequently, it is my considered view that this appeal is meritorious and I hereby allow the appeal. The judgment of the lower court delivered on the 11th day of May 2007 is hereby set aside. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, PHILOMENA MBUA EKPE, JCA, just delivered. I am in agreement with her reasoning and conclusion, allowing the appeal.
The facts of this case is to the effect that the land in dispute which originally belonged to one Mark Nwigba was pledged to the respondent for the sum of ?74. In 1966, late Mark Nwigba sought to redeem the land from the respondent but he had no money. He approached the appellant who provided the sum of ?74 for the redemption of the land. It is appellant’s claim that after the redemption of the land, the said Mark Nwigba made an outright gift of same to him. The respondent said he made several attempts to pay back the ?74 to the appellant but he refused to collect. He then handed over the money to the Elders as custom demands. Thereafter, the respondent proceeded to enter the land in 1974, hence the suit giving birth to this appeal. The learned trial judge dismissed the claim of the appellant who was the plaintiff at the court below. The respondent said that the father of the appellant was an “OSU” (an outcast) who was bought by the Obosha family and used as a sacrifice to the shrine Ozurumba and was not in a position to inherit the property of Mark Nwigba who was not a slave but a free born.
My learned brother has in the lead judgment dealt with all the issues in this appeal but I wish to comment on the decision of the court below that the appellant could not own land because he is an “OSU”.
As was rightly pointed out by the learned counsel for the appellant, the respondent failed woefully to lead evidence to show who the father of the appellant was or where he was bought from or the year he was dedicated to the Ozurumba Shrine. In view of the fact that the appellant denied that he was an OSU, the respondent had the duty to call the Chief Priest of the Shrine to prove his allegation against the appellant. The learned trial judge held that since this incident took place in “the olden days”, there was no modern evidence to prove same. And yet he believed such a story. I had thought that he ought to have rejected the said evidence as there was not even an iota of truth in it.
And in any case, if the appellant is an OSU unworthy of association with “normal” human beings, why did Mark Nwigba redeem the land in dispute with money provided by the appellant and gave appellant possession of the lands to the knowledge of and without objection from the respondent and his kinsmen, only for the respondent to now claim that the appellant was forbidden to even see Mark Nwigba’s corpse. As I said, the conclusion of the trial court on these issues was not supported by any credible evidence before it and is perverse. See OYENIRAN v. AJANI (2003) 38 WRN 174; AKANDE v. OYEWOLE (2003) 6 WRN 36.
Again, by Section 42 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth. It is trite that no law or custom in this country can set aside the provision of the Constitution of the Federal Republic of Nigeria. Thus, the position of the respondent which was upheld by the learned trial judge violently violates the provisions of the Constitution of the Federal Republic of Nigeria and other extant laws of the land having been based on an alleged custom that subjects the appellant as a Nigerian to discrimination, disability and deprivation merely by reason of the circumstances of his birth. It is not only repulsive, archaic, barbaric, but also repugnant to natural justice, equity and good conscience. This custom, I must say, which was used in “the olden days” to subjugate some categories of Nigerians, is no longer fashionable being incompatible with both local and international statutes in force in this country. I am ready and prepared to strike down such barbaric customs whenever and wherever they rear their ugly head. See Section 3 of Abolition of OSU System Law, Cap I, Laws of Eastern Nigeria, 1963 (applicable in Imo State).
For the few reasons I have stated above and the fuller ones in the lead judgment, I hereby allow this appeal and abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother.
MY learned brother, PHILOMENA MBUA EKPE, J.C.A. has admirably considered and resolved all the germane issues that arose for determination in this appeal. I have no hesitation in concurring with his reasoning and conclusions therein. I therefore agree that this appeal has merit and should be allowed. Accordingly, I hereby allow this appeal and set aside the judgment of the lower Court delivered on the 11th day of May, 2007.
I abide by the order on costs.
Appearances
M. O. Igwe, Esq.For Appellant
AND
B. C. Ofoegbu, Esq. with
M. U. Ofoegbu, Esq.For Respondent
