CHIEF CHUKWUDEBERE OKOLIE (EZE AMURANAMA) & ORS v. PROF. PETER EBIGBO & ORS
(2016)LCN/8391(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/OW/436/2013
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. Chief Chukwudebere Okolie (Eze Amurunama)
2. Aloysius Obiadimbugha
3. Paulinus Onyeka
4. Sylvanus Ahibufu
5. Cletus Ihenemekere
(For themselves and on behalf of other members of Agwaonye ruling house) Appellant(s)
AND
1. Prof. Peter Ebigbo
2. Alex Nnadiekwe
3. Bona Agwunobi
4. Ichie Thaddeus Mgbe
5. Dominic Ezenagu
6. Ichie Raphael Uzoigwe
7. Sabastine Ezenagu Respondent(s)
RATIO
EVIDENCE: BURDEN OF PROOF; WHO HAS THE BURDEN OF ROOF ESPECIALLY WHERE THE CLAIMS ARE DECLARATORY RELIEF
The law on the subject as I have always known it is that the burden of proof resides with the person who asserts the existence of anything in law, especially where his claims are declaratory reliefs. In deed he has a bounden duty to establish his claim on the strength of his case and cannot rely on the weakness on the case of the defense. The nature of the burden is even more severe when it is further realized that declaratory reliefs are not granted on admissions by the defendant where the Claimant fails to establish his entitlement to the declaration by his own evidence. See the case of AG.-CROSS RIVER vs. AG.- FED. (2012) 16 NWLR (PT. 1327) 489; NWAGU vs. FADIPE (2012) 13 NWLR (PT. 1318) 564. Usually the only time the Claimant relies on the case of the defendant is where the case of the defense supports the case of the Claimant?s case. See the cases of ABASI vs. ONIDO (1998) 5 NWLR (PT. 548) 89; NKWO vs. IBOE (1998) 7 NWLR (PT. 558) 354 and UCHE vs. EKE (1998) 9 NWLR (PT. 564) 24. In essence, a declaratory relief is a discretionary remedy and it is for this reason that a Claimant has therefore the legal burden of proof as well the evidential burden under Sections 135 to 137 of the Evidence Act that is proof on the balance of probability or preponderance of Evidence. See ADEBAYO vs. ADUSEI (2004) 4 NWLR (PT. 862) 44. PER. FREDERICK OZIAKPONO OHO, J.C.A.
PRACTICE AND PROCEDURE: CROSS EXAMINATION; THE PURPOSE OF A CROSS EXAMINATION
The purpose of a cross examination is to discredit a witness and demolish the case of the opposing party. It also intended to project the case of the case of the party conducting the cross examination. See the case of OMISORE vs. AREGBESOLA (2015) LPELR-24803 (SC). PER. FREDERICK OZIAKPONO OHO, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE CAN BE USED TO ASSESS ORAL EVIDENCE
The position of this Court on the issue must be clearly guided by law. Documentary evidence is the yardstick or hanger upon which oral evidence is assessed. The usual thing is that oral evidence by a party or his witnesses proffered in relation to a document which has been admitted as an Exhibit at the instance of the party must in simple terms clearly agree with the document which cannot be varied, altered or tinkered or even amended in any way by oral evidence except to throw more light on the documentary evidence or exhibit. There are so many decisions of Court on this issue. See UNION BANK PLC vs. OZIGI (1994) 3 SCNJ 42; ADEGBAYI vs. ISHOLA (2003) 11 NWLR (PT. 831) 343; SCOA vs. BOURDEX LTD (1999) 3 NWLR (PT. 138) 380. PER. FREDERICK OZIAKPONO OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): In Suit No: HOU/5/2009 the Plaintiff?s Statement of Claim at Paragraphs 32 (1), (2), (3) and (4) was endorsed with the Plaintiff’s Claim as follows; Wherefore the Plaintiff claims against the Defendants as follows;
1. A Declaration that by the custom of the and tradition of the people of Amaofuo, it is the Plaintiffs Agwaonye Ruling House, as the most senior member and holder/custodian of Ofo (staff of Authority) of the founding father of Amaofuo, in Amaofuo Autonomous Community that is entitled to produce the Traditional Ruler (EZE) of the Autonomous Community .
2. A Declaration that by the custom and tradition of the people of Amaofuo the right to identify, select and appoint Eze-Elect for Amaofuo Autonomous Community for the Traditional Rulership (EZE-SHIP) throne is the traditional prerogative of the Plaintiff?s Umuagwaonye family.
3. A Declaration that the purported presentation of the 1st Defendant as the Eze-Elect of Amaofuo Autonomous Community in Oru West Local Government Area of Imo State by the 2nd to 11th Defendants is wrongful, contrary
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to custom and tradition of the people of Amaofuo and therefore null and void, and of no effect whatsoever.
4.Perpetual Injunction restraining the Defendants, their servants, agents cronies and cohorts from holding out or parading the 1st Defendant as the Eze-Elect or Traditional Ruler (EZE) of Amaofuo Autonomous Community in Oru West LGA of Imo State.
Pleadings were ordered, duly filed and exchanged by between parties. The facts of the case as disclosed by the pleadings may be summarized from the view point of the Appellant as follow:
The parties are natives of Amaofuo Autonomous Community in the Oru West L.G.A. of Imo State. As Claimants, the Appellant?s case is that right from the beginning of Amaofuo as a Community, there had been an age long custom and tradition which placed the Claimants? Agwaonye Ruling House as the most senior family unit and the holder/custodian of ofo (Staff of Authority) of the founding fathers of Amaofuo, makes them exclusively entitled to produce the Traditional Ruler (EZE) of the Autonomous Community. When therefore, the 1st Defendant was presented as Eze-Elect, this action now on Appeal to this Court
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was instituted by the Claimant to declare the presentation of the 1st Defendant as the Eze-Elect of the Community as wrongful, contrary to custom and tradition of the people of Amaofuo and therefore null and void and of no effect whatsoever. The Appellant?s as Claimants, in the course of trial insisted that as a result of the premier position of their family in Ubaha, the Colonial Masters appointed Onyeka of their lineage as the Warrant Chief of the Community and Chief for Ubaha village of Amaofuo. The inference which the Appellants wanted the Court to draw from the above fact is that Amaofuo has long been in existence before acquiring its autonomous status in 1978 and that prior to 1978 it is the Claimants family as the most senior family in Ubaha that has been saddled with the responsibility of producing the EZE of their Amaofuo Community.
On the part of the Respondents as Defendants the Appellants? case at the Court below presented remarkable features to wit: Jumble of improbabilities, material inconsistencies and contradictions which no Court or Tribunal worth its salt will believe. Counsel contended that there were contradictions between
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the Appellants? witnesses and their pleadings and between their witnesses. Worthy of mention too is that each witness contradicted himself on material facts. At the trial of the matter, the Appellants as Claimants called a total of five witnesses and tendered six (6) Exhibits marked as Exhibits C, D, D1, D2, F and G while the Defendants called three witnesses and tendered three (3) Exhibits marked as Exhibits A, B and H. Thereafter Counsel for both parties submitted their written addresses in which they addressed Court extensively and cited a plethora of authorities. The trial judge in his judgment dismissed the claims of the Claimants on the 16th day of September, 2013.
Dissatisfied, the Appellant as Claimant before the lower Court has appealed to this Court vide a Notice of Appeal filed on the 24th day of September, 2013. There are two (2) Grounds of Appeal which are reproduced without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial Judge misdirected himself in law and thereby came to a wrong Judgment when he held that the intelligence reports did not buttress the fact that ?Oniaka? or
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?Onyiaka? is from that of the Claimants?/Appellants? lineage.
2. That the judgment of the lower Court is totally against the weight of evidence.
The Appellant nominated two (2) issues from the two (2) Grounds of Appeal for the Court?s determination as follows;
1. Whether or not the lower Court fully appreciated the case as presented by the Appellants.
2. Whether or not the lower Court misdirected itself in Law when it held that the intelligent reports Exhibit C did not fully buttress the fact that ?Oniaka, ?Aniaka? or ?Onyiaka? as used interchangeably in the said document is not traceable to the Appellants lineage having regard to the evidence as well laid in the matter.
?On the part of the Respondents, learned Counsel also nominated two issues for the Court?s determination as follows;
1. Whether the learned Court below was right when he held that oral testimony is inadmissible to vary and or take away from the content of a document.
2. Whether the learned Court below was right in dismissing the suit on the ground that it was not only self defeating but riddled
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with inconsistencies, improbabilities and contradictions.
Learned Counsel in their briefs of argument addressed Court extensively and cited plethora of authorities. At the hearing of the appeal on the 2-2-2016 the Appellant?s brief of argument dated the 23-2-2015 but filed on the 12-3-2015 was settled on behalf of the Appellant by J. U. ONWUNEME Esq. The Respondent?s brief of argument dated the 12-10-2015 was filed on the 15-10-2015. This brief was settled on behalf of the Respondent by B. J. ADIGWE (CHIEF MRS.).
This Appeal shall however be determined on the basis of the issues identified by learned Appellants? Counsel despite the fact that the issues nominated by learned Respondents? Counsel appears to be, but not necessarily at variance with the issues discussed by learned Appellants? Counsel. The mere fact that the issues raised cuts across almost on all issues raised by parties in their respective briefs of arguments is enough.
ARGUMENTS BY LEARNED APPELLANTS? COUNSEL;
ISSUES ONE & TWO;
Whether or not the lower Court fully appreciated the case as presented by the Appellants
Whether or
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not the lower Court misdirected itself in Law when it held that the intelligent reports exhibit C did not fully buttress the fact that ?Oniaka, ?Aniaka? or ?Onyiaka? as used interchangeably in the said document is not traceable to the Appellants lineage having regard to the evidence as well laid in the matter.
Learned Appellants? Counsel argued the two issues jointly and began by contending that where a party is seeking declaratory reliefs from the Court, he has to establish same by leading credible evidence in this regard. Credible evidence, Counsel further argued, suffices as the onus which the party has to establish that indeed such party is entitled to the reliefs being sought. Counsel cited the case of C.B.N vs. AMAO (2010) 16 NWLR (PT. 1219) 271 at page 300 Paragraph B in support and also the case of KODILINYE vs. ODU (1935) 2 WACA 336 as authority for the fact that a party is entitled to take advantage of his adversary?s case if same strengthens his case. Against this background, Counsel invited the Court?s attention in examining the Appellants? statement of claim, which is the process upon
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which the trial was taken in relation to the evidence laid at the trial. He said that at Paragraph 8 of the statement of claim the Appellant narrated how Amaofuo came into existence through its founder called Otubuihe Nnachi. And that in Paragraphs 9, 10, and 11 the Appellants averred that as a result of their progenitor being the second settler in their community hence the Ubaha village in Amaofuo reflecting their progenitors Ubaha native home in Okija.
Learned Counsel argued that what could be deduced from the above fact is that the traditional Rulership of Amaofuo resides in Ubaha village as the most senior village out of the four villages that made up the community. He further argued that it was the Appellants in this regard through CW1 at page 174 of the records that led evidence on how the name Ubaha came to be in Amaofuo. Counsel further explained that ?Nnumiemu was the second settler after Okpotu who came from Ubaha Okija and that, that accounts for the reason Ubaha Amaofuo is known as Ubaha?.
It was further argued by Counsel that Amaofuo has long been in existence before acquiring its autonomous status in 1978 and that the
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Appellants? progenitor Nnumiemu being the second settler after the founder Otubuihe Nnachi also known as Okpotu was buried by the Appellants progenitor. He added that, that gave rise to the Appellants? premier position as the most senior family unit in Ubaha. Counsel also argued that this fact was equally established by CW1 at page 73 of the records thus establishing its position as the most senior family unit in Ubaha. This fact, Counsel further said was equally established by CW1 at page 73 of the records thus; ?Okpotu was not a member of Umuagwaonye family but because Okpotu did not begat any son in Amaofuo, Nnumiemu the father of Agwaonye and the second settler in Amaofuo was the one that inherited the estate of Okpotu. He said that, that is why Ubaha village is known as ?Ubaha Nnumiemu?. According to Counsel, the DW1 affirmed this fact of his familiarity with the word ?Ubaha Nnumiemu? at page 131 of the records.
It was further contended by Counsel that the premier position of Ubaha village as the head village in Amaofuo and the premier position of the Appellants family as the head family in Ubaha clearly
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explains why the colonial masters appointed Onyeka of the Appellants lineage as the Warrant Chief of the Community and Chief for Ubaha in Amaofuo. It was also argued by Counsel that because of the unfamiliarity with the spelling of Igbo names the colonial masters referred to the said person interchangeably as ?Aniaka?, ?Oniaka? or ?Onyiaka? in Exhibits D, D1, D2. In this regard, Counsel referred Court to the testimonies of DW2 at page 146 of the records where he said thus; ?The said Onyeka who was a warrant Chief for Ubaha is a relation of the Claimants?. On this note, Counsel said that based on what has been admitted no more proof is required to establish it. He cited the case of UNILORIN vs. ADESINA (2010) 9 NWLR (PT1199) 331 in support.
Counsel told Court that the Appellants gave evidence to show who the founder of the community is and from where he migrated, which DW2 at page 144 of the records affirmed thus; ?Okpotu as you call him and called Otubuehi Nnachi by Claimants migrated from Uli to settle in Amaofuo?. It was therefore submitted by Counsel that evidence of traditional history is
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nothing short of evidence of historical fact transmitted from generation to generation in respect of a family and may in appropriate cases be given by any witnesses who by virtue of their peculiar and special relationship and circumstances before them and their ancestors and are in a position and knowledgeable enough to testify on the traditional evidence in question. He cited the case of KOJO vs. BONSIE (1959) 1 NWLR 1223 pg 416 Paragraph G-H and also AROWOLO vs. OLOWOOKERE (2012) ALL FWLR (PT. 606) 398 in support.
Against this backdrop, Counsel explained that the above fact clearly explains why both CW1 and CW2 under cross examination in relation to Exhibit B refused to accept the state of facts contained therein as being correct. He said that the CW1 at page 80 of the records said thus; ?I do not agree with the deposition of the 6th Claimant in the said affidavit because either the writer of the document made a mistake or that it escaped the memory of the deponent.? That he still further stated thus; ?I also do not agree with the deposition of the 6th Claimant in the said affidavit that Eze Onyeka died about 1911?. In the case
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of the CW2 at page 92 of the records, Counsel said that he said that; ?Onyeka reigned about 1911 and that the deposition that he died in 1911 is typographical error?. In addition he was said to have further stated at page 96 of the records that; ?It is not true that when Eze Onyeka died in 1911 there was no adult male from Agwaonye family to take over from him. As a result, the averment by Cletus Ihenemekere in Exhibit B at Paragraph 7, Counsel said was a typographical error and it being an answer elicited under cross-examination, Counsel said that it lays the said issue in Exhibit B to rest.
Arising from the foregoing, Counsel submitted that it clear that the burden placed on the Appellants were duly and that the Appellants in further discharge of this burden of proof laid evidence to establish that the four villages as contained in Exhibits D1 and D2 reflects the actual villages that would be found in Amaofuo in its traditional ranking which accounts for why Ubaha as the premier village is bestowed with the traditional prerogative of producing the Eze of the Community.
It was further submitted by Counsel that having regard to the
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evidence laid at the trial by the Appellants in relation to the pleadings which was the process upon which the trial was taken, the facts required to be proved by the Appellants can be summarized as follows:
(i) That Amaofuo has long been in existence before acquiring its autonomous status in 1978.
(ii) That the community had been ruled by previous traditional rulers before its recognition by government in 1978 as an autonomous community.
Counsel asked rhetorically whether the Appellants succeeded in establishing the above facts before Court or not? In answer and specifically in respect to (i) above Counsel submitted that the law is settled that there is no necessity to prove any fact admitted by the parties. He cited the case of CHINDO WORLD WIDE LTD vs. TOTAL (NIG.) PLC (2001) 16 NWLR (PT 739) 291 AT PAGE 321 Paragraph F in support. Counsel said in addition, that the DW1 at page 131 of the records admitted that Amaofuo has long been in existence when asked whether ?Amaofuo came into existence about 100 years ago?, that he answered that Amaofuo started when Uli and Isseke towns came into existence and that he cannot say the time
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Amaofuo actually came into existence. As a result of this Counsel said that there is no need for the Appellants to prove that point. But that however, with respect to (ii) there is a divergence of views. That while it is the case of the Appellants that it was due to their premier family status in Ubaha village that made it possible for Onyeka of their lineage to be appointed Warrant Chief and Chief of Ubaha by colonial masters, that the Defendants held a contrary view. According to learned Counsel, rather than resolve this piece of controversy between the parties, the trial Court abdicated its responsibility. In order to resolve this knotty issue, and as well as the issue of whether the Appellants discharged the onus of proof on them, Counsel enjoined this Court to look at the entire evidence led by the parties at the trial. On account of this position, Counsel referred Court to the evidence of CW1, CW2, CW3, CW4, CW5 and Exhibits D, D1, D2, F and G. he cited the case of ONYERO vs. NWADIKE (2012) ALL FWLR (PT. 624) 1 in support.
On the question of whether the judgment of the lower Court was not totally against the weight of evidence as laid in the matter,
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Counsel submitted that it is the Law that in Civil cases proof is on a preponderance of evidence. That in other words, one side?s position must out-weigh the other side. He said also that the onus of proof shifts from the Plaintiff to the Defendant and vice versa. That the onus rests on the party who would fail if no evidence is led on either side. See AYORINDE vs. SOGUNRO (2012) 11 NWLR (PT. 1312) 460 at page 482 Paragraphs C ? D and also OLANIYAN vs. OYEWOLE (2011) 14 NWLR (PT. 1268) 445. Learned Counsel further submitted that the primary responsibility of a trial Court is to critically albeit passionately appraise and evaluate the relevant evidence adduced by parties before it. That in the course of appraising and evaluating the evidence adduced by parties it behoves on the trial Court to place the material evidence on a imaginary scale with view to determining which side the pendulum therefore tilts, be it ever so slightly. See AKINFE vs. UBA PLC 10 NWLR (PT. 1041) 186 at Paragraph A ? B on this issue.
On the supposedly contradictory evidence of the Defendants, it was submitted by Counsel that the doubts created by the Defendants and
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their contradictory witnesses clearly makes the case of the Defendants inconsistent as the onus of proof is placed on a balance of probabilities. He cited the case of OLUSOLA vs. TRUST HOUSE PROPT LTD (2010) 8 NWLR (PT. 1195) 1, in support. Counsel also referred to the evidence of the DW1 at page 130 of the records where he stated that Umuoledibenma is the most senior followed by Dibianwogu while DW2 at page 144 of the records stated that Dibianwaogu is the holder of the ofo of Okpotu, which clearly signifies that Dibianwogu is senior to Oledibenma.
According to Counsel this accounts for why DW3 at page 160 of the records when asked whether DW2 was right in his evidence when he stated that Oledibenma family has the exclusive right to produce the Eze he gave the answer he gave in his statement at page 160 of the records. What is even more, Counsel told Court that evidence elicited under cross-examination of a defense witness which is in line with the facts pleaded by the Plaintiff forms part of the evidence produced by the Plaintiff in support of facts pleaded in the statement of claim and can be relied upon in proof of the facts in dispute between the
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parties. Counsel cited the case of ADESOSUN vs. GOV. EKITI STATE (2012) ALL FWLR (PT. 619) 1044 in support. Learned Counsel also referred Court to page 146 of the records where DW2 in answer to a question of who the Warrant Chiefs for Amaofuo were between 1920-1930 acknowledged that Onyeka who was Warrant Chief for Ubaha is a relation of the Claimants. In further confirmation of the fact that Umuagwuaonye being the most senior family in Ubaha incorporated the Ekulie family. Counsel also referred to the same DW2 at page 149 of the records when about who was the Ichie from Ekulie family during the period of Eze George Ebigbo he answered it was one Damian Onyeka deceased 1st Claimant in this action who is equally a relation of the Appellants.
On the strength of the submissions above, Counsel said that the learned trial judge was in error to have held that the case of the Appellants were riddled with inconsistencies, improbabilities and material contradictions. For these reasons Counsel urged this Court to resolve all the issues in favour of the Appellants.
ARGUMENTS BY LEARNED RESPONDENTS? COUNSEL;
Whether the learned Court below was right
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when he held that oral testimony is inadmissible to vary and or take away from the content of a document.
Whether the learned Court below was right in dismissing the suit on the ground that it was not only self defeating but riddled with inconsistencies, improbabilities and contradictions.
Learned Respondents Counsel began by contending that the learned trial Court below was right when it refused to believe the Appellants evidence that the names ?ONIAKA?, ?ANIAKA?, ?ONYIAKA? as contained in Exhibits ?C? ? ?D11? referred to ?ONYEKA? a relation of the Appellants. She contended that the law is that oral testimony is inadmissible to vary or to take away from the content of a document. She cited the case of NIDB vs. OLALOMI IND. LTD (2000) 6 NWLR (PT. 761) AT 555 on account of this issue. Counsel further contended that there is nowhere in Exhibits C ? D11 that the name ?ONYEKA? is written. She said that the name in Exhibit C is ONIAKA. And that there is nothing in Exhibit C to support the fact that ONIAKA or even ?ONYEKA? was ever a Warrant Chief or
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Traditional Ruler in Amaofuo. Counsel said that the Respondent totally agrees with the lower Court that Exhibit ?C? is evidentially valueless in this regard. She referred Court to pages 278 and 281 of the printed record.
Counsel also brought up the issue of Exhibit D, which she said is headed alphabetical list of Warrant Chiefs and the Court under which they were appointed. Contrary to the pleadings and evidence of the Appellants Counsel said that nobody is stated in the said Exhibit ?D? as Warrant Chief of Amaofuo. She said that it was the CW2 who testified in evidence that ?Onyeka? is stated as No. 42 of Exhibit ?D? as a Warrant Chief whereas there is nowhere in the said Exhibit ?D?, the name ?Onyeka? is written. That what is rather written at No. 42 of Exhibit ?D? is ?ONIAKA/15/12/OTURU? and not ?Onyeka? as the Appellants falsely alleged. In the meantime, she said, Uturu Community is not the same thing as Amaofuo Community. Counsel further said that ?ONIAKA? who is stated to have been appointed Warrant Chief in Exhibit ?D?
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was appointed for Oturu village on 15-4-12 and not for Amaofuo but that there is nothing in the face of Exhibit ?D? to support the contention that ONYEKA was appointed for Amoafuo for Uturu as Warrant Chief. Counsel also said that the CW2 admitted that Onyeka was not mentioned in Exhibit ?D?. According to Counsel, the Respondents are in agreement with the Court below that the said Exhibits ?C? to ?D? have no evidential value in this con as they do not support the Claimants?/Appellants? case. She referred Court to pages 95 and 279 of the records.
It was further argued that even though Exhibit ?D1? contained the name ?ANIAKA? as Chief of Amaofuo in Uli R. H., Exhibit ?D11? contained the name ?ONYIAKA? as a Chief for Ubaha in Amaofuo and other names of Chiefs. But significantly, the name ?ONYEKA? is not written or seen in that said Exhibits ?D1? and ?D11?. It was contended by Counsel that all the Exhibits ?C ? D11? speak for themselves as they are unambiguous and that the Appellants?
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attempt to use oral testimony to amend, vary, add or take away from the content of Exhibits ?C-D11? is legally prohibited. Counsel urged the Court to so hold.
It was submitted by learned Respondent?s Counsel that Declaration Reliefs are not granted by Court even upon the admission of Defendant where Claimant fails to establish his entitlement to the Declaration. In other words Counsel contended that a party claiming a Declaration Relief as in the instant case must rely on the strength of his case and not otherwise. She cited the case of DUMEZ NIG. LTD vs. NWAKOBIA (2008) 18 NWLR (PT. 119) 361 AT 373 ? 374 PARA H.C in support.
Learned Counsel referred to the evidence of the DW2 under cross examination who admitted that ?Onyeka? was a Warrant Chief. She told Court that the Appellants had sought to place reliance on this answer to strengthen their case, but that it appears that they forgot that their contention was that ?Onyeka? was a Warrant Chief so appointed by the colonial masters by virtue of his being a traditional ruler.? She also told Court that the Appellants cannot rely on the evidence of
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DW2 to prove such fact more especially when they relied on written documents Exhibits ?C ? D11? to prove such fact.
Learned Counsel also contended that the case of the Appellants in Paragraph 19 of their statement of claim page 6 of records is that ?Onyeka was a ruler of Amaofuo and during his reign, he was by virtue of that fact appointed a Warrant Chief for Amaofuo under the Court at Otulu?. In assuming but not necessarily conceding that, that were to be so, Counsel contended that the Appellants would have to prove in addition and in line with their pleadings the followings:
1. The Onyeka was a traditional ruler of Amaofuo,
2. That by virtue of the being a traditional ruler of Amaofuo he was appointed a Warrant Chief for Amaofuo under the Court at Oturu.
But in the situation in which the Appellant did not plead that ?Onyeka? was Warrant Chief for Ubaha, Counsel argued that they cannot also rely on the evidence of the DW2 who did not in his alleged admission say that ?Onyeka? was a Warrant Chief for Amaofuo instead, the DW2 under cross examination at page 146 of the records stated
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thus:
1. I am familiar with the warrant chief system. They are tax collectors.
2. It is correct that Amaofuo has its own warrant chiefs.
3. We have about 4 warrant chiefs in Amaofuo namely, Nwadiaro Ohizu for Ebibi Amaofuo, Edward Iheagu for Amaorie Amaofuo, Egwuatuonwu for Umuduru, Onyeka for Ubaha.
4. The said Onyeka who was warrant chief for Ubaha is a relation of the Claimants. (Underlined, that of Counsel).
Against this backdrop, Counsel further contended that parties to a suit are bound by their pleadings. She cited the case of DARAMOLA vs. AG-ONDO STATE (2000) FWLR (PT. 6) 997 @ 1024 in support and also contended that the Appellants cannot by any stretch of imagination rely on the above underlined testimony of the DW2 as proof of their averment in Paragraph 19 of their statement of claim that ?Onyeka was a ruler of Amaofuo and that during his reign, he was by virtue of that fact appointed a Warrant Chief for Amaofuo under the Court at Otulu whereas the testimony of the DW2 talk of Onyeka being Warrant Chief for Ubaha and not Amaofuo.
Furthermore, Counsel said that the Appellants failed woefully to prove the above
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facts because there is nothing in Exhibits C-D11 that shows that Onyeka was a Warrant Chief or a Traditional Ruler of Amaofuo or that his appointment as a Warrant Chief was by virtue of his being a Traditional Ruler of Amaofuo. According to Counsel the CW1 stated under cross examination that there are documents from achieves that shows that Eze Dara Onyeka was recognized as a traditional ruler. (See page 84 (13) of the records). But that surprisingly, throughout the trial the Appellants did not produce such documents or tendered same before the Court. The implication of this, Counsel said is that they either do not exist or that if they had been tendered the contents would have been against their case. The failure to also state the period the said Onyeka reigned as a traditional ruler in Amaofuo is also fatal to the case of the Appellant, Counsel said.
Learned Counsel also picked on the evidence of the CW2 whom she said gave evidence contrary to Exhibits C, D, D1 and D11 which he tendered under cross examination. According to Counsel a witness who tenders a document and proceeds to give evidence on oath contradicting his document does not
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deserve to be regard as a truthful witness. To buttress this position, she cited the case of EZEMBA vs. IBENEME (2000) 10 NWLR (PT 674) 61 at 74 paras. B-C. She urged this Court to disbelieve the CW2.
Apart from this, Counsel also argued that the claim made by the Appellants in Paragraph 19 of their statement of claim runs counter to the entries under Amaofuo in Exhibit D11. Also that in Exhibit B, Paragraph 7, it was deposed to that Onyeka died about 1911. She said that, that averment caused the Appellants considerable problem and they made strenuous effort to disown it but failed. She further said that they cannot legally not do so (See page 96 of the record) as in law they are estopped from so doing. Counsel cited the case of A.G.-NASARAWA STATE vs. A.G. PLATEAU STATE (2012) 10 NWLR (PT. 1309) 419 where FABIYI, JSC said as follows:
I need to further remind the Defendant that Section 151 of the Evidence Act clearly incorporates the doctrine of equitable estoppels, in UDE vs. NWARA & ANOR (1993) 2 NWLR (Pt. 278) 683 at 662, this Court pronounced that by operation of the rule of stopped a man is not allowed to blow hot and cold, to affirm
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at one time and deny at the other, or as it said to approbate and reprobate.
Counsel further argued that the reason why the Claimants/Appellants are uncomfortable with that averment was because the original 1st Claimant who was the father of the CW2 claimed that Onyeka who was his father died in 1911, while he was born in 1932. (See page 91 of the record.) It was also argued by Counsel that if Onyeka the father of the original 1st Claimant died about 1911, the original 1st Claimant who was born in 1932 could never have been his son. In addition to these perceived incoherencies Counsel argued that if Onyeka who died about 1911 could have been a Warrant Chief given the evidence of CW2 under cross-examination that Onyeka was a Warrant Chief of Amaofuo when it was Indepenent community during the colonial time it could not have been an accurate fact since it is a notorious fact that until the year 1947, Amaofuo was part of Uli.
On the effect of inconsistent and contradicting evidence of the Claimants, Counsel referred Court to the case of OLUMA vs. ONYUNA (1996) 4 NWLR (Pt. 443) it was held thus:
The Position of the law
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is that where witnesses for a party give inconsistent and/or contradictory testimonies especially on material facts, their evidence on the point must be regarded as unreliable and rejected as such.?
See also; AYANWALE vs. ATANDA (1988) ALL NLR 24 at 38.
Learned Counsel also drew attention to the averment of the Appellants as Claimants at Paragraph 22 of the statement of claim, where they pleaded as follows; (See page 6 of the records of Appeal).
?22. However, the Claimants, in the exercise of their prerogative on the Ezeship of Amaofuo consented to George Ebigbo to officiate in the traditional leadership of Amaofuo on his death. Hence a resolution was made in which the hereditary status of the Ezeship was acknowledged. Copy of the said resolution made in favour of George Ebigbo is hereby pleaded. NOTICE to produce the original copy of same is here given to the Defendants.?
According to learned Respondent?s Counsel, the Respondents denied this flatly at Paragraph 21 of their statement of defense. (See page 18 of the records.) But that the question that begs to be answered here is: why did the Appellants fail to
27
produce a copy of the purported resolution which allegedly confirmed their sole right to the Ezeship of Amaofuo, when the alleged original was not produced? In answer, Counsel cited the case of FRAMO NIG. LTD vs. DAODU (1993) 3 NWLR (PT. 281) 372 where the Court held that the presumption of law is that evidence which could be produced but which was not produced would, if it had been produced been unfavourable to the person who withholds it. She referred to Section 167 (d) of the Evidence Act, 2011. Counsel urged this Court to so hold.
It was submitted by Counsel that at Paragraph 25 of the statement of defense, (see page 20 of the records) the Respondents pleaded the due identification and selection of the 1st Respondent as Eze of Amaofuo; that the Respondents also pleaded unchallenged that some members of the Appellants? family including the original 1st Claimant, original 2nd Claimant, original 3rd Claimant, original 7th Claimant and the father of the original 7th Claimant all participated in the selection and identification process. Counsel said that the Appellants did not join issue with the Respondents on this and that same amounted to
28
admission and need no further proof. But that despite this position, the Respondent led unchallenged evidence on the due selection and presentation of the 1st Respondent as a Traditional Ruler of Amaofuo. In view of the foregoing analysis, Counsel urged the Court to resolve the first issue for determination in the positive and to hold that the learned Court below was right when he held that oral testimony is inadmissible to vary and or take away from the content of a document.
On the second issue, Counsel told Court that the Respondent totally agreed with the Court below that the case of the Appellants was not only self defeating but riddled with inconsistencies, improbabilities and contradictions. Against the claims of the Appellants that they are members of a Ruling House, belonging to the Umuagwaonye family in Ubaha village in Amaofuo autonomous community, the Respondents contended that the claim is ridiculous given the fact that the Appellants conceded that the two traditional rulers of Amaofuo before it became an autonomous community did not come from their family but from the family of the 1st and 4th Respondents, that is, Umuobiefule family. On
29
this point, Counsel referred this Court to page 97 of the records, where the CW3 stated under cross examination thus: ?we are still waiting for the day a person from the Agwaonye family will be recognized as a traditional ruler in Amaofuo?. Despite this position, Counsel argued that the Appellants still went ahead and falsely claimed in their pleadings and evidence that the Agwaonye family have produced many traditional rulers including Onyeka before the community was made an autonomous. It was contended by Counsel that the Respondents on the other hand contended that the traditional stool is hereditary to the Ubaha village of Amaofuo. She said that the Respondents who were sued by the Appellants come from the three villages of Amaofuo and two out of the three families that make up Ubaha village with Umuagwaonye being the third family.
As it relates to the Appellants? claim of three (3) Declaratory Reliefs, learned Counsel submitted that there obvious legal consequences. Counsel cited the case of DUMEZ NIG. LTD vs. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361 at 373-374 paras H-C, the Supreme Court held as follows; The law on the requirements
30
of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendants is indeed well settled. The burden of proof of the Plaintiff in establishing Declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration BY HIS OWN EVIDENCE. See also the case of ORJI vs. EMOVON (1991) 1 NWLR (PT. 168 AT PARA G), where this Court held as follows:
Respondent, amongst other reliefs she went to seek in Court, asks for a declaration. The power to make a binding declaration is a discretionary remedy. RUSSIAN COMMERICAL AND INDUSTRIAL BANK vs. BRITISH BANK FOR FOREIGN TRADE (1921) A.C. 438. The Court cannot make a declaration of a right on admission or default of pleadings. A declaration of a right can only be made if the court is satisfied by evidence.?
Against this backdrop, Counsel went ahead and demonstrated how in Respondents? conjecture, the Claimants? case collapsed like
31
pack of cards at the starting blocks! Counsel noted that the declaratory reliefs of the Appellants are anchored on ?custom and tradition of the people of Amaofuo?. What is that alleged ?custom and tradition? of the people of Amaofuo? Counsel queried! According to the Appellants, the said ?custom and tradition? is that Umuagwaonye family has the ?right? to identify, select and appoint a traditional ruler for Amaofuo, and that the community?s Ezeship is the family?s traditional prerogative?.
In reaction to this Counsel submitted that the settled position of the law is that native law and custom are matters of evidence to be decided on the facts presented before the Court in each particular case unless it is of such notoriety and has been so frequently followed by the Court that judicial notice would be taken of it without evidence required in proof. See AJIBE vs. OLAEWE (2003) 8 NWLR (Pt 822) 237 at 273 para C where it was held that;
?It is however pertinent that matters that are associated with or related to native law and custom or customary laws on chieftaincy are to be strictly
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proved by calling cogent, reliable and credible evidence.?
See also OLANIYAN vs. OYEWOLE (2011) 14 NWLR (Pt. 1268) 445 at 485 paras F-G. In other to demonstrate that the Appellants anchored their claims on custom and tradition Counsel referred Court to Paragraphs 3, 4, 7 and 32 of their statement of claim and pages 4 and 7 of the records of Appeal.
As a necessary follow-up to this position, Counsel further queried whether the Appellants succeeded in proving by cogent and credible evidence that this their purported ?right? and ?traditional prerogative? to the Ezeship of Amaofuo is rooted in custom and tradition. Counsel pointed out that in Paragraph 3 of their statement of claim, the claimants pleaded that Amaofuo Autonomous Community has ?an age-long common tradition of identifying, selecting and installing the Eze of the Autonomous Community?. And that in Paragraph 4 they further pleaded that ?the said common custom and tradition is that the Ezeship in the Autonomous Community is hereditary in the most senior family unit of the most senior village component of the Autonomous Community.?
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Furthermore, that the Appellants in the Paragraph 7 of their statement of claim pleaded that; ?under the custom and tradition of Amaofuo people, the most senior family unit, is the custodian of the founding father?s Ofo which is the (symbol of authority) of leadership in Amaofuo, by virtue of which it has the prerogative to produce the Eze of the Autonomous Community.? Thus, Counsel said that from the foregoing it cannot be doubted that the Appellants actually rooted their three (3) declaratory reliefs on the customs and tradition of the people.
It was therefore argued by Counsel that the common ground inherent in this matter is that the founder of Amaofuo was Okpotu. And that the Appellants pleaded and through CW1, CW2, CW3 and CW5 gave evidence that Okpotu had no male issue but an only daughter called Nwanyibuife. She posited that on the contrary the Respondents emphatically denied the claim that Okpotu had no male issue and pleaded that Okpotu had two sons and a daughter. The two sons were Dibianwaogu and Oledibenma, while the daughter was Nwanyibuife. In addition that the Respondents gave unchallenged evidence on the issue through
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the DW1-3. In the meantime, while debunking the Appellants? claim and confirming the Defendants? own version of the story, Counsel said that the CW4 unequivocally said under cross-examination that: ?It is correct that Okpotu had two(2) sons.? This answer coming from the CW4, Counsel said dealt a devastating blow to the case of the Appellants. See page 99 (6) of the records. Learned Counsel promptly cited the case of IKENI vs. EFANO (1996) 5 NWLR (Pt 446) 64 AT 82 paras D-E, where it was held that where the evidence of a witness who is called by a party supports the case of his opponent, that evidence serves as a solemn admission in favour of the opponent.
According to Counsel the evidence of the CW4 completely knocked the bottom out of the foundation of the Claimants? claim to Ezeship of Amaofuo which they predicated on their decent from the only daughter of Okpotu (Nwanyibuife). She said that the 1st, 5th, 6th and 10th Respondents claimed their decent from Oledibenma while the 8th and 11th Defendants claim their decent from Dibianwaogu. She further said that the claim that Okpotu had no male issue is not the end of the false
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and faulty story of the Appellants regarding their purported sole right to the Ezeship of Amaofuo and their being the most senior family in Ubaha village! Learned Counsel referred to the evidence of the Appellants? CW 1-2, CW4 and CW5 which confirmed the case of the Defendants that Amaofuo is a patrilineal society while the Appellants? case is that the founder of Agwaonye family is a son-in-law to Okpotu. To debunk this position, Counsel referred copiously to the records of proceedings. See the cross examination of the CW1 at page 85 (17) of the records.
Learned Respondent?s Counsel also addressed Court on the issue of ?Ofor? Okpotu which the Appellants claimed at paragraph 13 of their statement of claim that Numiem and his alleged son Agwaonye inherited after both had performed the burial ceremonies of Okpotu. But Counsel said that at Paragraph 6 of Exhibit B, the 6th Claimant on behalf of the Appellants said it was the father of Agwaonye that performed the burial ceremony and inherited the Ofor and traditional rulership of Okpotu. According to Counsel, this contradicts the pleading in Paragraph 13 of the statement of claim.
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(See page 5 of the records). In whatever way this issue is considered, Counsel said that the foregoing claims of the Appellants with regards to the purported inheritance of the Ofo raises an intriguing question, namely; whether under custom and tradition, Okpotu?s in-law (Nnumeiem) and son-in-law (Agwaonye) would have inherited his Ofor and traditional throne in the face of the facts that based on evidence of both parties, Amaofuo is a partrilineal society and Okpotu had two sons.
In further debunking the claims of the Appellants on the Ofo question, Counsel told Court of the Respondents? agreement with the CW5 that a son-in-law cannot inherit the ?Ofor? of his father-in-law and that such a thing has never happened in Amaofuo. It was on this wicket that the Respondents contended that Agwaonye of the Appellants? progenitor being a son-in-law to Okpotu could not have inherited his ?Ofor? more especially where both parties have on evidence agreed that apart from the fact that such an omission had never taken place before in Amaofuo, but also that Okpotu was survived by two sons of his own.
In reaction to the
37
Appellants? assertion of their purported sole ?right? or ?traditional prerogative? to the Ezeship of Amaofuo, Counsel said that the Appellants denied the Amaofuo Autonomous Community its statutory and customary right to the ownership of the traditional throne of the community. Counsel referred Court to Section 5(1)(2) of the Imo State Traditional Rulers and Autonomous Communities Law No. 6 of 2006 on the issue and submitted that what the mandatory provision of the law portends is that it is an autonomous community that shall identify, select, appoint and present its Eze. That what this means is that chieftaincy institution or traditional rulership belongs to the autonomous community. Counsel cited the case of AKUNEZIRI vs. OKENWA (2000) 15 NWLR (Pt 691) 526 AT 541 para G and 5546 para F in support. Counsel urged the Court to dismiss this Appeal and affirm the decision of the lower Court.
RESOLUTION OF APPEAL;
What seems to be at the root of the dispute between the parties in this Appeal is the tussle for Traditional Rulership of Amaofuo Autonomous Community. The Appellants on the one hand, have laid exclusive claims to
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the title for themselves and other members of Agwaonye family, while the Respondents on the other hand have joined in the fray because of their conviction that the title does not belong exclusively to the Agwaonye family but the entire Ubaha Village. The first grouse of the Appellants in this Appeal is on the issue of whether or not the lower Court fully appreciated the case as presented by the Appellants.
It will be recalled here that the Appellants claims as Claimants before the lower Court were essentially made up of declaratory reliefs. In the bid to establish their case as Claimants, the Appellants called a total of five (5) witnesses who testified as CW1, CW2, CW3, CW4 and CW5 and tendered a number of Exhibits marked Exhibits D, D1, D2, F and G. According to learned Appellants Counsel, the onus of proof in the course of trial shifts from Plaintiff to the Defendant and vice versa. In short Counsel submitted that the onus rests on the party who will fail if no evidence is led on either side. But on the side of the Respondents, this being a suit in which declaratory reliefs has mainly been claimed it is for the party claiming these
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reliefs that is saddled with the responsibility of establishing his claims. The Respondents have insisted on the age old aphorism; He who asserts, must prove as the standard which the Court must uphold.
On the part of this Court, the Appellant having began with the question of whether or not the lower Court fully appreciated the case of the Appellant, it would be appropriate to begin by examine whether the Appellant successfully discharged the onus placed on it by law or not. The law on the subject as I have always known it is that the burden of proof resides with the person who asserts the existence of anything in law, especially where his claims are declaratory reliefs. In deed he has a bounden duty to establish his claim on the strength of his case and cannot rely on the weakness on the case of the defense. The nature of the burden is even more severe when it is further realized that declaratory reliefs are not granted on admissions by the defendant where the Claimant fails to establish his entitlement to the declaration by his own evidence. See the case of AG.-CROSS RIVER vs. AG.- FED. (2012) 16 NWLR (PT. 1327) 489; NWAGU vs. FADIPE
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(2012) 13 NWLR (PT. 1318) 564. Usually the only time the Claimant relies on the case of the defendant is where the case of the defense supports the case of the Claimant?s case. See the cases of ABASI vs. ONIDO (1998) 5 NWLR (PT. 548) 89; NKWO vs. IBOE (1998) 7 NWLR (PT. 558) 354 and UCHE vs. EKE (1998) 9 NWLR (PT. 564) 24. In essence, a declaratory relief is a discretionary remedy and it is for this reason that a Claimant has therefore the legal burden of proof as well the evidential burden under Sections 135 to 137 of the Evidence Act that is proof on the balance of probability or preponderance of Evidence. See ADEBAYO vs. ADUSEI (2004) 4 NWLR (PT. 862) 44.
At the lower Court, the Claimants asked for a number of declaratory reliefs seeking to assert that the EZE-SHIP of Amaofuo by virtue of customs and tradition of the people is the prerogative and the right of the Agwaonye Family. The position is that questions of customary law are required to be proved by cogent, reliable and credible evidence since they are a question of fact. See OLADELE vs. AROMOLARAN II (1996) 6 NWLR (PT. 453) 180. See also the case of AGBAI vs. OKOGBUE (1991) LPELR-225(SC)
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where the Supreme Court, per KARIBI-WHYTE, JSC had this to say on the issue;
?It is well settled that customary law is a question of fact to be proved by evidence. See Section 14 of Evidence Law. Hence a party who alleges the existence of a particular custom must adduce sufficient evidence in support and to establish its existence to the satisfaction of the Court?.
See also OJIOGU vs. OJIOGU (2010) 9 NWLR (PT. 1198) 1.
?Arising from the foregoing, Claimants no doubt have the onerous duty of discharging the burden of proof placed on it to establish its family?s claims to the Eze-ship stool of the people of Amaofuo Autonomous Community. Learned Appellant?s Counsel told Court that the Claimant?s case is built around its averments at Paragraph 8 of the Claimants? statement of claim where it was narrated how Amaofuo came into existence through its founder called ?OTUBUIHE NNACHI?. Counsel also referred to the evidence of the CW1 at page 174 of the records who gave evidence on how the name, UBAHA came into existence in Amaofuo. After carefully studying the said evidence of the CW1, there may be need to
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reproduce the following paragraphs of the CW1?s evidence for the avoidance of doubts and to make for better understanding of this case;
10. That we the plaintiffs are from Umuagwuonye family which is the most senior in traditional ranking while the 1st defendant is from Umuobiefule family.
11. That under the custom and tradition of Amaofuo people, the most senior family unit is the custodian of the founding fathers? ofo which is the symbol of authority of leadership in Amaofuo.
12. That it is by virtue of this authority that the most senior family has the prerogative to produce the Eze of the Autonomous Community.
22. That meanwhile, Otubuihe Nnachi died without a male issue to inherit and succeed him, his only child was a female called NWANYIBUIFE who was married to the son of Nnomiemu called Agwaonye.
23. That on the death of Otubuehi, Nnomiemu and his son Agwaonye performed the burial and funeral rites and ceremonies and so inherited him and succeeded him as the custodian of the ofo Amaofuo and to the leadership of the new settlement.
24. That when Nnomiemu became old and sick, his son Agwanoye took over the
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leadership throne as the EZE of the new settlement and so founded the Agwaonye ruling House.
25. That the Agwaonye lineage continued to produce the EZE of the Community by inheritance among the descendants of Agwanoye.
?The Claimants? in essence and by their testimonies and their pleadings have left no one in doubt as to their position of seniority and by which they have laid claims to the right to produce the Eze of the Community by virtue of inheritance and succession from their primogenitor called Otubuehi Nnachi. The substance of their story lies in the fact that the said Otubuehi Nnachi also called OKPOTU, had no male issues and whose only daughter called; NWANYINBUIFE, got married to the son of Nnomiemu, called Agwaonye. It also lies in the fact that on the demise of Otubuehi, it was Nnomiemu and his son who performed the burial rites and inherited his ofo which was also passed on to Agwaonye on the death of his own father called Nnomiemu. It was also disclosed that it was Agwaonye who went on and founded the Agwaonye ruling House which in this action at the lower Court had claimed exclusive rights to produce the EZE of Amaofuo.<br< p=””
</br<
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These basically represented the position of the Claimants/Appellants in this case. But the Respondents? side of the story was very different. They maintained that Otubuehi Nnachi also called OKPOTU begat two sons and a daughter, namely; DIBIANWOGU, OLEDIBENMA and NWANYIBUIFE, his daughter. However, under cross examination the CW4 one Dominic Onwuneme on the 27-6-2012 said that admitted that Okpotu had two sons. This piece of evidence and as rightly found out by the learned trial Judge contradicts the evidence of the CW1 and all other witnesses of the Claimants on the issue of whether Okpotu or Otubuehi Nnachi had only one daughter or not. In addition, it completely negates the entire story of the Claimants/Appellants and indeed supports the side of the story of the Respondents. At page 276 of the printed records, the learned trial Judge?s findings on the issue, which I have no reservations whatsoever about, is recorded thus;
?The fact that this CW4 stated (sic) Okpotu had 2 sons is clearly in consonance with the defendants case and negates the claimants case. The non-mentioning of the names of the said 2 sons by the CW4 is
45
inconsequential and does not derogate from the fact that Okpotu had 2 sons as admitted by the said CW4. I find the evidence of the said CW4 under cross examination admissible and relevant in the determination of this fact. The piece of evidence by the CW4 has caused the basic foundation of the Claimants case to crumble in its entirety.?
It is important to note that the said CW4 at Paragraph 3 of his written deposition on oath admitted that he was conversant with the customs and traditions relating to the Ezeship of Amaofuo Autonomous Community. The purpose of a cross examination is to discredit a witness and demolish the case of the opposing party. It also intended to project the case of the case of the party conducting the cross examination. See the case of OMISORE vs. AREGBESOLA (2015) LPELR-24803 (SC). I therefore find myself unable to fault the lower Court?s findings on the issue. There is no gainsaying the fact that the lower Court fully and competently appreciated the case Appellants as Claimants to the best of its abilities and adequately ruled in favour of the Respondents.
On the issue of whether the lower Court misdirected
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itself in law on the Exhibits C-D11 in dealing with the claims of the Appellants concerning their relation, one ONYEKA who they claimed ruled as EZE of Amaofuo in the days of the Colonia Masters, it may be important to examine Paragraphs 18 and 19 of the statement of claim and the evidence of the CW1 at Paragraphs 29 to 30 of the witnesses deposition on oath. Perhaps the findings of the lower Court on the usefulness of the said Exhibits is to say the least instructive. At pages 278 to 279 of the printed records, the Court had this to say;
?I have carefully studied Exhibits C-D11 and I am unable to find the name Onyeka written in any of the said documents. In Exhibit C, the name therein is ONIAKA. There is nothing in this Exhibit to support the fact that ONIAKA or even (Onyeka) was ever a warrant chief or a traditional ruler. The said Exhibit C is evidentially valueless in this regard. Exhibit D is headed ?Alphabetical list of warrant chiefs and Courts under which appointed?. This to my mind is the document that could serve as proof of the warrant chief. Curiously and contrary to the pleading and evidence of the Claimants, nobody is
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stated therein as warrant chief of Amaofuo. The CW2 testified that Onyeka is stated on this Exhibit at No. 42 as a warrant chief. I have read Exhibit D at No. 42 and I will reproduce what is written therein for clarity ?42 ONIAKA/15/4/12/OTURU?. From the document, Oniaka was appointed a warrant chief on 15/4/12 for OTURU village. The pleading of the Claimants was that Onyeka was appointed a warrant chief for Amaofuo. I find this Exhibit as not having any evidential value as it does not support the Claimants case?On Exhibit D1, the name ANIAKA appears as chief of Amaofuo in ULI R.H. On Exhibt D2 the name ONYIAKA is written as chief for UBAHA in Amaofuo? the name ONYEKA is no where seen on any of the Exhibits.?
The contention of Claimants with regards to issue is that that the Agwaonye family occupied a premier position in Ubaha village as the head of Amaofuo and that the premier position clearly explains why the Colonial Masters appointed Onyeka of the Appellants lineage as the Warrant Chief of the Community and Chief for Ubaha in Amaofuo. It was also argued that because of the unfamiliarity with the spelling of Igbo names
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the Colonial Masters referred to the said person interchangeably as ?Aniaka?, ?Oniaka? or ?Onyiaka? in Exhibits D, D1, D2. On the part of the Respondents it was contended that anything short of rejecting these Exhibits would amount to the Court allowing the use of oral testimony in varying the contents of a document. The Respondents cited the case of NIDB vs. OLALOMI IND. LTD (2000) 6 NWLR (PT. 761) AT 555 in support of their contention.
The position of this Court on the issue must be clearly guided by law. Documentary evidence is the yardstick or hanger upon which oral evidence is assessed. The usual thing is that oral evidence by a party or his witnesses proffered in relation to a document which has been admitted as an Exhibit at the instance of the party must in simple terms clearly agree with the document which cannot be varied, altered or tinkered or even amended in any way by oral evidence except to throw more light on the documentary evidence or exhibit. There are so many decisions of Court on this issue. See UNION BANK PLC vs. OZIGI (1994) 3 SCNJ 42; ADEGBAYI vs. ISHOLA (2003) 11 NWLR (PT. 831) 343; SCOA vs.
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BOURDEX LTD (1999) 3 NWLR (PT. 138) 380.
Learned Appellant?s Counsel also referred to the evidence of the DW2 who at page 146 of the printed records admitted under cross examination that; ?The said Onyeka who was a warrant chief for Ubaha is a relation of the Claimants?. Counsel made heavy weather of this admission and cited the case of UNILORIN vs. ADESINA (SUPRA) in support. In agreement with learned Respondent?s Counsel this being an action in which declaratory reliefs have been claimed, the Claimants must be seen to succeed on the strength of their claims as declaratory reliefs are not granted as a matter of cause especially where the Claimants are unable to establish their entitlement to the reliefs claimed. See the case of DUMEZ NIG. LTD vs. NWAKOBIA (SUPRA).
The two issues identified for the determination of this Court are clearly to be resolved and are hereby resolved in favour of the Respondents. This Appeal hereby fails and it is accordingly dismissed. Appellants shall pay the cost of this Appeal assessed at Fifty-Thousand (N50,000.00) Naira Only.
ITA GEORGE MBABA, J.C.A.: I had the
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privilege of reading the draft of the judgment, just delivered by my learned brother, FRED O. OHO, JCA, and I agree, completely with his reasoning and conclusions that there is no merit in the appeal.
I too dismiss the appeal and abide by the consequential orders in the leading judgment.
PETER OLABISI IGE, J.C.A.: A copy of the judgment just read by my learned brother, OHO JCA, who also wrote the Judgment was given to me before now.
My Learned brother adequately considered and resolved all the issues that arose in this appeal. I entirely agree with the conclusion reached by him.
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Appearances
J. U. Onweneme, Esq.For Appellant
AND
Chief Mrs. B. J. AdigweFor Respondent
