AMOS OKPARA & ORS v. NWAUBANI NWACHI & ORS (2013)

AMOS OKPARA & ORS v. NWAUBANI NWACHI & ORS

(2013)LCN/6632(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/OW/93/2011

RATIO

WHETHER A COURT OF APPEAL CAN INTERFERE WITH YOU THE DECISION OF A TRIAL COURT

WHETHER IT IS THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVIDENCE

Evaluation of relevant and material evidence before court and ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses while they testified. Where the trial Court unquestionably evaluates the evidence and justifiably appraises facts, it is not the business of the Appellate Court to substitute its own view from the views of the trial court. See the case Anyo vs. Awawa (1998) 1 NWLR (PT 532) 146 CA.. Per UWANI MUSA ABBA AJI (PJ), J.C.A..

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. AMOS OKPARA
2. NWALOZIE OKPARA
3. EPHRAIM OKPARA
(For themselves and as representing the members of Okpara’s family, Owaze Asa Ukwa West L.G.A. ) Appellant(s)

AND

1. NWAUBANI NWACHI
2. IHEANYI NWANDICHE
3. EMMANUEL NWOKONKWO
(For themselves and as representing the members of Umuokereano family, Owaza Asa, Ukwa West L.G.A ) Respondent(s)

UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Customary Court of Appeal, Umuahia delivered on 22nd October, 2008, Appeal No. CCA/UM/A/11/2007.

The Respondents as Plaintiffs at the trial court Obehie, Asa, Ukwa West Local Government Area of Abia State commenced this suit against the defendants now Appellants seeking a declaratory relief for a Customary right of occupancy over a parcel of land known as and called “Uzo Anya Agu” damages for trespass and injunction.

The trial Customary Court took evidence of the parties, their witnesses, visited Locus in quo, and admitted exhibits tendered by the parties in support of their evidence. The trial Customary Court on 3rd May, 2006, gave judgment in favour of the Respondents.

The Appellants being dissatisfied with the judgment of the trial Customary Court filed an appeal to the Customary Court of Appeal, Umuahia, Abia State, on only one ground which states thus:
“That the judgment and decision of the Customary Court, Ohehie Asa delivered on the 3rd of May, 2006 cannot be supported in Customary law having regard to the weight of evidence therein”

At the hearing of the appeal, the Customary Court of Appeal, Umuahia on 22nd October, 2008 in dismissing the appeal stated that the lone ground of appeal does not relate to the questions of Customary law, rather it raised purely question of fact and are incompetent and should be struck out.

It further held that the Appellants have not been able to impeach the finding of facts by the trial court. It relied on the case of Babang Golok vs. Mambok Diyalpwan (1990) 3 NWLR (PT 139) 411 at 414 to 415.

Being dissatisfied with the said judgment of the Customary Court of Appeal, the Appellants filed a Notice of Appeal dated 27th April, 2010 at pages 3-5 of the records of appeal on two (2) grounds namely:
A. ERROR IN LAW
“The Customary Court of Appeal was in error when it held that the appeal of the Appellant did not raise issue of customary law and therefore incompetent before it.”
B. MISDIRECTION
“The Customary Court of Appeal misdirected itself in law and facts when it refused to fully evaluate customary evidence put before the trial court on the ground that the appeal lacked competence thereby engendering a miscarriage of justice.

Both parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument settled by Chief Ogbonna O. Igwenyi, nominated two (2) issues for determination as follows:
1. Whether the Customary Court of Appeal was correct when it held that the grounds of Appeal formulated by the Appellants’ counsel did not raise questions of Customary law and therefore incompetent.
2. Whether the Customary Court of Appeal judgment can stand when it failed in its duty to fully evaluate the evidence placed before it.

The Respondents brief of argument settled by Chief Onyema Chris Madu nominated the following issues for determination to wit:
1. Whether the grounds of appeal relate to any question of customary law within the contemplation of Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria as to make the Notice and grounds of appeal competent to enable the Court the requisite jurisdiction to hear this appeal.
2. Whether the Customary Court of Appeal, Abia State was right in law when it held that the sole ground of appeal stating thus:
“That the judgment and decision of the Customary Court Obehie Asa delivered on the 3rd day of May, 2008 cannot be supported in Customary law having regard to the weight of evidence therein” on the basis that the said ground did not raise question of customary law and therefore incompetent.

At the hearing of the appeal on the 14th October, 2013, O. O. Igwenyi, Esq. adopted the Appellants’ brief of argument dated and filed on the 7th May, 2012 but deemed filed on the 25th February, 2013 and urged the Court to allow the appeal. O. C. Madu, Esq. for the Respondents adopted and relied on the Respondents’ brief of argument filed on the 14th May, 2013 but deemed filed on the 16th May, 2013 and urged the court to dismiss the appeal.

For the purpose of determining this appeal, I shall adopt the issues raised in the Appellants’ brief which basically averred the two issues formulated by the Respondent and respond to Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria as canvassed specifically by the Respondent in his issue 1.

Under issue 1, the learned counsel for the Appellants relying on the authority of Babang Golok vs. Mambok Diyalpwan (1990) 3 NWLR (PT 139) 411 at 414 to 415 contended that Customary law in itself is a question of fact to be proved by evidence unless the custom has received judicial notice. He further argued that since the appeal complains of error in the application of customary law to prove facts or evidence before the trial court, the ground is no doubt a ground of error in law which by Section 282 (1) of the 1999 Constitution is maintainable at the Customary Court of appeal.

The Appellant counsel further contended that in the determination of whether a ground of appeal is one of the law, mixed law and facts or facts alone, appeal court no longer restricts itself to what counsel called it but would examine the ground in line with the complaint to decide whether it is a ground of law or that of facts or both. And in cases where it is clear on the record that grave injustice will be occasioned by strict application of the law or rules of court, the appeal court normally aligns itself to substantial justice. He relied on the case of Amuda vs. Adelodun & Anor (1994) 8 NWLR (PT 360) 23.

The Respondent Counsel in opposition relied on Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria which states thus,
“An appeal shall lie from decisions of a customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the customary court of appeal with respect to any question of customary law and such other matter as may be prescribed by an Act of the National Assembly.”

He further submitted that appeals are creation of statutes and failure to comply with the statutory requirements prescribed by the relevant creative laws under what each appeal may be competent and proper before the appellate court will deprive the appeal court of jurisdiction to entertain same.

It is the contention of the Respondents’ counsel that the law is settled that the Court of Appeal shall only exercise jurisdiction over appeals or matters emanating from the Customary Court of Appeal only on complaint relating to any question of customary law. He relied on the case of Golok vs. Diyalpwan (Supra).

After considering the above contention of both counsel and having carefully perused through the record of proceedings of both the trial Customary Court and the Customary Court of Appeal, the question then is what constitutes a question of customary law?
In answering the above question, I shall rely on the Supreme Court decision in the case of PAM vs. Gwom (2000) 2 NWLR (PT 644) 322 SC per Ayoola, JSC which stated that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is to the application in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationships of the parties having regard to facts established in the case, a resolution of such dispute can be regarded as a decision with respect to a question of customary law.

It is on record that these facts were agreed by both parties.
i) That the Respondents pledged their land to one David Okpara who is an uncle to the Appellants and the said pledged land was redeemed by the Respondents.
ii) That by Suit No. MUK/I/84, Nwaubani Ogbonna & 3 ords vs. David Okpara which Suit was filed by the Respondents at the Magistrate Court Ohehie Ukwa L.G.A. against David Okpara while he was alive for him to take the redemption money of the pledged land which he did and relocated out of the subject matter.
iii) That the direct children of the said David Okpara never challenged this Suit till date.
iv) That there was visit to locus in quo and the only contradiction is with respect to difference in name of the said land in dispute i.e. “UZO ANYA AGU” and Okpulo Umuekekeuche”.

Having not controverted the above facts, I am particularly impressed with the decision of the trial court and satisfied with the views of the Customary Court of Appeal that the grounds of appeal does not raise the question of customary law.

Further to the above, by virtue of Section 14 of the Evidence Act, Customary law must be established in either of two ways namely:
(a) By the court taking judicial notice of its existence.
(b) By leading evidence in the particular case See Egbuta vs. Orunna (2007) 10 NWLR (PT 1042) 298 CA.

Further to the Respondents issue 1 with relation to Section 245 (1) of the 1999 Constitution, courts are creation of statutes and it is the statute that created a particular court that will confer on it, its jurisdiction. Jurisdiction may be extended not by the courts but by legislation, See Okulate vs. Awosanyo (2000) 2 NWLR (PT 696) 530 at 550 – 551. Apart from the jurisdiction spelt out in Section 245 (1) of the 1999 Constitution, no any other matter or matters have been prescribed by the National Assembly or legislature in line with the above section. While Section 240 of the 1999 Constitution confers general powers on the Court of Appeal to exercise appellate jurisdiction over other courts, Section 245 (1) of the 1999 Constitution has restricted and limited the area of jurisdiction of the Court of Appeal over Customary Court of Appeal of a State in a civil proceedings to be on any question of customary law only and such other matters as may be prescribed to it by an Act of the National Assembly.

In the circumstance and by the intendment of the above provisions of the 1999 Constitution I uphold the decision of the Customary Court of Appeal that the issue of customary law does not arise. This issue is resolved against the Appellant.

Issue No. 2
On whether the Customary Court of Appeal judgment can stand when it failed in its duty to fully evaluate evidence placed before it.

It is the Appellants contention that where the trial court or the intermediate appeal court abandoned its duty of evaluating and drawing the right inference from facts elicited from witnesses, the appeal court has a call to duty in taking on the task. He relied on the cases of Ukatta vs. Ndinaeze (1997) 4 NWLR (PT 499) 251. He further argued that the locus in quo done by the trial court was a sham and cannot be used to support any judgment. That the trial court knew or ought to know that the only issue to be resolved by it in the matter was whether the ancient compound of Okpulor Umuekeuche at Umueme Owaza was part of the Uzo Anya Agu land belonging to the Respondents or a bounding land. He place reliance on the case of Adesanya vs. Aderonmu (2000) 9 NWLR (PT 672) 370.

The Respondent in opposition submitted that the Customary Court of Appeal did evaluate all findings of the trial customary court not minding the fact that the said court held that the only ground of appeal did not raise questions of customary law. He went further by quoting pages 54 lines 27-30 and pages 55 lines 1-3 of the records thus,
“This appeal would have ended here, but for the purposes of doing substantial justice to the parties…, I will proceed to consider whether findings of the trial court on facts bears the sting of being perversed or there is a miscarriage of justice.”

The Respondent counsel further submitted that the Customary Court of Appeal was right in law to have affirmed the decision of the trial customary court by confirming and concurring to the findings of facts as made by the trial Customary Court, as An Appellate Court will not substitute its view for the views of the trial court when that court has properly evaluated the evidence and made findings of fact. He relied on the case of Odumade vs. Ogunnaike (2010) 39 WRN 1 – 128.

In considering the above arguments of the learned counsel on both sides, I ask the question, what is the position of the law on evaluation of evidence by trial courts?

The position of the law is that once there is proper evaluation of evidence by a lower court, an Appellate Court has no business interfering unless the decision is perverse and has occasioned miscarriage of justice. See the cases of Nwachukwu vs. Nwosu (1990) 7 NWLR (PT 160) page 72 and Balogun vs. Agboola (1974) 1 ALL NLR (PT 2) Page 66. I shall also refer to the case of Sunday Nwachukwu vs. Benson Egbuchu (1990) 3 NWLR (PT 139) 435 where it was held that a trial judge who heard and saw a witness give evidence in court is best suited to ascribe probative value to the evidence of such witness and he is entitled to believe part of the evidence of such witness and disbelieve others.

Further to the above case, it was stated
“whether a trial judge considered the evidence of the parties before him and placed same on an imaginary scale of justice as required by law before arriving at a conclusion is to be discerned from reading the judgment and he need not expressly state that he has done so.”

In the instant case, I have further looked through the judgment of the trial court and ask the question, did the trial court profer a proper assessment and evaluation of evidence placed before it? As a general rule when the question of the evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non-evaluation or improper evaluation of the evidence tendered before the court, an Appellate Court is in a better position as the trial court to do its own evaluation. See Oloshe vs. Ogunbode (2002) 1 NWLR (PT 749) 611 at 631. The trial court in its judgment at page 120 of the record of proceedings stated thus,
“having read the evidence of both parties, their witnesses, exhibits, locus report and the addresses of both counsel, court is convinced that the land in dispute as shown to court during locus in quo is the subject matter of litigation, although Plaintiff and defendants gave it differed names Uzo Anya Agu land and Okpulo Umuekekuche respectively.”

After a proper evaluation of the entire evidence before the trial court and the way the learned trial judge had considered, accepted or rejected the evidence adduced by parties, after weighing the evidence on either side, it is my view that the learned trial judge and the Customary Court of Appeal had come to the right conclusion by giving judgment to Respondents and dismissing the case of the Appellants respectively.

Further to the above, in determining whether a trial judge gave reasons for his belief or disbelief, an Appellate Court has to look at the totality of the judgment and not pockets of it. A trial judge is entitled to sum up his belief or disbelieve by the totality of the act or conduct of the witnesses at the stage of sitting or evaluating the evidence. Therefore, whether a trial judge gives reason, which is all embracing an Appellate judge can fault the findings of the trial judge.

Based on the foregoing, both the learned trial judge and the Customary Court of Appeal gave reasons for the disbelief of the Appellants’ case highlighted in issues 1 and 2 which are inter-alia that the Appellants case does not involve the issue of Customary law, the trial customary court determined the issues between both parties by a proper evaluation of evidence and ascribing probative value to the evidence therein. It is in view of this, that I find the appeal devoid of any merit and accordingly dismiss same and affirm the judgment of the Lower Court delivered on the 22nd day of October, 2008. Costs of N30,000.00 awarded in favour of Respondents.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) JCA. This appeal has emanated from the lower court where the Customary Court of Appeal gave judgment in favour of the Respondents. My Lord has most painstakingly and comprehensively dealt with all the issues raised herein. I agree with his reasoning and conclusions that this appeal lacks merit. I too dismiss it accordingly. The judgment of the lower court delivered on the 22nd day of October 2008 is hereby affirmed. I too assess costs at N30,000 in favour of the Respondents.

PETER OLABISI IGE, J.C.A.: I agree with the judgment just delivered.
I too hereby dismiss the appeal as lacking in merit. I endorse the order as to costs as contained in the leading judgment of my Noble Lord the Presiding Justice, UWANI MUSA ABBA AJI, JCA/PJ.

Appearances

O. O. Igwenyi, Esq.For Appellant

AND

O. C. Madu, Esq.For Respondent