WILFRED OHUABUNWA v. NZE PATRICK NWAIGBO (2016)

WILFRED OHUABUNWA v. NZE PATRICK NWAIGBO

(2016)LCN/8532(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of April, 2016

CA/OW/128/2009

RATIO

APPEAL: INTERFERENCE WITH EVALUATION OF EVIDENCE; CIRCUMSTANCES AN APPELLATE COURT WILL INTERFERE WITH EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT
It is settled law that an appellate Court will not substitute its view of the evidence for that of the trial Court which heard and saw the witnesses testified. The evaluation of evidence and ascription of probative value to it is the prerogative of the trial Court. The Appellate Court will not lightly set aside the finding of a trial Court unless it is perverse and occasioned a miscarriage of justice against the Appellant.
See (1) MICHAEL ACHILIHU & ORS. VS. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 285 H to 286 A – G per AKAAHS JSC.
(2) DR. SOGA OGUNDALU VS. CHIEF A. E. O. MAC JOB (2015) 3 SCM 113 at 124 B – D per RHODES – VIVIOUR JSC who said:
“It is the duty of the trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so since that Court saw, heard and watched the demeanuour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence. Furthermore, evaluation of a document is not within the exclusive preserve of the trial Court and an appellate Court have equal rights in evaluation of documentary evidence. PER PETER OLABISI IGE, J.C.A.
ARBITRATION: BINDING NATURE OF CUSTOMARY ARBITRATION
MICHAEL IFEANYI OJIBAH VS UBAKA OJIBAH (1991) 6 SCNJ 156 at 169 per NNAEMEKA AGU JSC.
(2) OPARAJI VS OHANU (1999) 9 NWLR (PART 618) 290 at 304 per IGUH JSC who said:
“I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once the arbitrators reach a decision it would no longer be open to either party to subsequently back out or resile from the decision so pronounced.” PER PETER OLABISI IGE, J.C.A.

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

WILFRED OHUABUNWA Appellant(s)

AND

NZE PATRICK NWAIGBO Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal Imo State of Nigeria delivered on 10th day of December, 2008.

The action leading to this appeal started from the Customary Court of Isiala Mbano Local Government Area of Imo State where Respondent as Plaintiff claimed against the Appellant as follows in Suit No. CC/SM/43/2003:
(A) Declaration that the Plaintiff is the person entitled to the grant of Customary Right of Occupancy in respect of and over the piece or parcel of land known as and called UHU DURUZO situated at Umuduruebika, Umunkwo Isiala Mbano Local Government Area within jurisdiction.
(B) Order of Court compelling the defendant to accept the equivalent of IRI AKU ANO which is N1,000.00 (One Thousand Naira) being the amount on which the land in dispute was pledge to Defendant?s forebear.
(C) Perpetual injunction restraining the Defendant by himself, his servants, agents, privies or any other person howsoever described claiming for, from or against Defendant, from entering into or acting in any manner whatsoever

inconsistent with plaintiff’s right over, the said Uhu Duruzo land afore-described”.

The Appellant at the same Customary Court commenced his own action in Suit CC/SM/66/2004 wherein he too claimed against the Respondent thus:
“(A) A declaration by the Hon. Court that the plaintiff is entitled to the Customary Right of Occupancy in respect of all that piece or parcel of land known as and called “ALA UHUDURUZO” lying and situate at Umuduruebika, Umunkwo in Isiala Mbano Local Government Area of Imo State, within jurisdiction, and which annual rental value is N10.00 (Ten Naira).
(B) An Order of perpetual Injunction by the Hon. Court restraining the Defendant by himself, his servants, agents, privies or any other person claiming through him and by whatever name called, from any entry or trespass into the land, the subject matter of this suit.”
The two actions or suits were later consolidated and tried together. Judgment was delivered against the Appellant who then appealed to the Court below vide Notice of Appeal undated but filed on 31st day of May, 2007. The judgment of the Customary Court was delivered on

4th May, 2007. (Pages 42 ? 58 of the record)

It is here relevant to reproduce the concluding part of the judgment of the Customary Court in the said consolidated suits where at pages 57-58 of the record, the Court of first instance found thus:
?EVALUATION:
(1) The Plaintiff is very conversant with traditional history of the land in dispute. Osuji Onwuka is the owner of the land he said. Osuji Onwuka contravened the rules of Okonko and he needed iri aku ano to placate the Okonko. He had no money so he used the land as pledge to Ohuabunwa, the father of the Defendant in order to raise iri aku ano. He did not redeem the land before he died. His only son Akangoziri jointly buried his father with my father Nwaigbo. Later Akangoziri died during the Nigerian Civil War and was buried by the Plaintiff. So he is entitled to inherit him hence he wants to redeem the pledge.
(2) On the 10-10-2005, the PW1 told the Court that the Defendant was mandated by Umuduruebika to swear but he refused saying he does not know the origin of the land. The PW2 confirmed that the Defendant refused to swear when he said he will only swear on Holy Bible. In

Igbo land, if a person is mandated to swear, he does not choose the object on which he can swear.
(3) The evidence of PW2 is very credible. He collaborated the evidence of PW1 in very minute detail especially refusal to swear an Oath. Under XXD on 18/12/2006 by DW1, the PW2 said his father was a witness to the pledge transaction.
(4) The Defendant mentioned his boundary neighbours when prompted by the Court as Umuonyedire, Umu Iwuajoku, Umu Esogenwune but he did not mention them again during the Locus even when the Court prompted him. None of these were around during the Locus. It is very interesting that the Defendant jettisoned the above boundary neighbours and agreed with the Plaintiffs boundary neighbours.
(5) The Defendant stated that Erastus Ebirim Panel told him that any Juju of their choice is alright. This could not be true as a person who is to swear in Igbo land does not choose the object of the Oath.
(6) It appear the Defendant has a penchant for denying incontrovertible facts:
(1) He denied that his family decline to swear when there is abundant evidence to the contrary.
(2) He declined that no document was produced

by the Erastus Ebirim Panel when the document has been tendered here in Court.
(7) All the boundary neighbours except one Ogbonnaya Ugwoezi are the relations of the Plaintiffs. In Igbo custom, one inherits from and with his kinsmen. The Defendant has no relation as the boundary neighbour.
Therefore taking all these in there totality, the Court Rules as follows:-
(1) The Plaintiff in Suit CC/SM/43/2003 Nze Patrick Nwaigbo Vs. Nathaniel Ohuabunwa is entitled to the Customary Rights of Occupancy over the parcel of land called Huhu Duruzor in Umuduruebika Umunkwo.
(2) The Defendant is hereby ordered to accept N100.00 (One Hundred Naira) and equivalent of Iri Aku Ano through the Court Registry as redemption fee.
(3) The Defendant, his agents, privies, servants, workmen etc are perpetually restrained from entry into the land in dispute.
(4) Finally the Sister Suit CC/SM/66/2004 Nathaniel Ohuabunwa and Nze Patrick Nwaigbo is hereby dismissed without cost?.

?The Lower Court in its own judgment on the Appellant’s Appeal as appears in the Lower Court?s judgment delivered on 10th day of December, 2008 affirmed the judgment of

the Lower Court quoted above as follows:
?Since the appellant did not challenge the genuineness of the records of appeal, this Court presumes that it is genuine. With regard to the alleged admission as recorded by the Court on page 49 lines 30-31 there is also no challenge by the respondent. I therefore hold that the records of appeal are correct with regard to page 49 lines 30-31. I therefore answer the question in this issue in the negative. In sum, this appeal lacks merit. It is hereby dismissed. And I make the following Orders:
1. Appeal is dismissed.
2. The judgment of the Lower Court in CC/SM/43/2003 and CC/SM/66/2004 (consolidated). NZE PATRICK NWAIGBO VS. NATHANEL OHUABUNWA delivered on 4th May, 2007 is hereby affirmed.
3. The defendant/appellant, his agents, privies, servants, workmen etc., are hereby perpetually restrained from entry or trespass into the land in dispute known as called ?UHU DURUZOR? situate at Umuduruebika Umunkwo and known to the parties to this appeal.
4. Appellant shall pay the respondent costs assessed at N6,000.00 (Six Thousand Naira) only.?

The Appellant was aggrieved by the

decision of the Lower Court and he appealed to this Court vide his Notice of Appeal dated 30th day of January, 2009 but filed on 3rd February, 2009. The said Notice of Appeal was amended. The Amended Notice of Appeal dated the 18th day of September, 2013 was filed on 19th day of September, 2013. It contains nine grounds of appeal which without their particulars are as follows:
?GROUND OF APPEAL
1. The Customary Court of Appeal sitting at Owerri erred in law when contrary to the Custom of Umuduruebika, Umunkwo, Isi-ala Mbano L.G.A. Imo State, the Court held that there was proof of pledge of land to a dead man.
2. The Customary Court of Appeal sitting at Owerri erred in law when contrary to the custom of Umuduruebika, Umunkwo, Isi-ala Mbano L.G.A. Imo State, the Court held that there was proof of pledge of land to the Appellant?s father when the Respondent was merely speculating on the issue of pledge.
3. The Customary Court of Appeal sitting at Owerri erred in law when contrary to the custom of Umuduruebika, Umunkwo, Isi-ala Mbano L.G.A. Imo State, the Court held that, there was proof of pledge transaction by confirming the

decision of the trial Court that the Respondent?s boundary neighbours were physically present at the locus in quo to support the case of the respondent and that this evidence is uncontradicted and/or confirmed by the Appellant, when it is not true as the boundary neighbours mentioned by Respondent to be physically present during the locus in quo are dead 20 years before the date of the locus in quo except LONGINUS AGBAKALAM who does not share any boundary with the respondent and is not a relation of the Respondent.
4. The Customary Court of Appeal sitting at Owerri erred in law when contrary to the custom of Umuduruebika, Umunkwo, Isi-ala Mbano L.G.A. Imo State, the Appellate Court held that the Appellant refused to take the Oath without properly evaluating the evidence of the Appellant who testified as DW1 and BENJAMIN ONYEDIERE who testified as DW2.
5. The Customary Court of Appeal sitting at Owerri erred in law when contrary to the Custom of Umuduruebika, Umunkwo, Isi-ala Mbano L.G.A. Imo State, the Court held that the native arbitration was conclusive and that the panel published an award when this is not true.
6. The Customary Court

of Appeal sitting at Owerri, erred in law when contrary to the Custom of Umuduruebika, Umnkwo, Isi-ala Mbano L.G.A. Imo State, the Court held that the Appellant was not denied fair hearing contrary to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 particularly on 18/4/2005 and 5/10/2006.
7. The Customary Court of Appeal sitting at Owerri, erred in law when they visited the fault of a Counsel on a litigant when the Court at page 16 line 1 ? 3 held that Appellant?s Counsel at the trial Court did not complain about what happened on the previous sitting when evidence was taken behind him and his client. He allowed case to proceed.
8. The Customary Court of Appeal sitting at Owerri, erred in law when they failed to refer to or make use of the Respondent?s Counter Affidavit dated 28/10/2008 and filed on 28/10/2008 being part of their record which contains contradictory averments against the Respondent and when they were referred to the said document during hearing of the Appeal by the Appellant?s Counsel, thereby denying fair hearing to the Appellant, contrary to the Custom of Umuduruebika, Umunkwo Isi-ala

Mbano L.G.A. Imo State.
9. The decision is against the weight of evidence”.

The Appellant’s Brief of Argument dated the 5th day of December, 2013 was filed on the same date. It was deemed properly filed on 3rd day of June, 2014. The Respondent’s Brief of Argument dated 20th day of August, 2014 was filed on 8th day of September, 2014. The said Brief of Respondent was deemed filed on 20th day of September, 2015. The Appellant filed Appellant Reply Brief on 2nd day of July, 2015 but deemed filed on 30/9/2015.

The appeal was heard on 3rd day of February, 2016 when the learned Counsel to the parties in this appeal adopted their Briefs of Arguments.

The learned Counsel to the Appellant E. I. EWUZIE Esq. distilled three issues for determination namely:
1. Whether from the totality of evidence before the Customary Court of Appeal, pledge was proved by the Respondent. (Grounds 1, 2 and 3).
2. Whether the Customary Court of Appeal was right when it held that native arbitration of Chief Eratus Ebirim was conclusive without properly evaluating the evidence of the Appellant who testified as DW1 and Benjamin Onyediere who

testified as DW2. (Grounds 4 and 5).
3. Whether the Appellant was denied fair hearing contrary to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. (Grounds 6, 7 and 8).

The learned Counsel to the Respondent DON OWEREGBULAM Esq. also nominated three issues viz:
1. Whether having regard to the totality of evidence before the trial Court the Customary Court of Appeal, Owerri, was right in holding that the Plaintiff/Respondent proved his case before the Trial Court.
2. Whether having regard to the custom of Isiala Mbano as to Oath taking, the Erastus Ebirim Arbitration Panel was conclusive and binding on the parties.
3. Whether the Appellant was denied fair hearing contrary to Section 36 of the Constitution of the Federal Republic of Nigeria 1999, by the trial Court particularly on 18/4/2005 and on 5/10/2006 or by the Customary Court of Appeal, Imo State.

The appeal will be considered on the issues formulated by the Appellant. They will be treated in sequence.
ISSUE 1
WHETHER FROM THE TOTALITY OF EVIDENCE BEFORE THE CUSTOMARY COURT OF APPEAL, PLEDGE WAS PROVED BY THE RESPONDENT. (GROUNDS 1, 2 AND

3).

The learned Counsel to the Appellant E. I. Ewuzie Esq. contended that the findings of the Lower Court to the effect that the Respondent as Plaintiff both in the Court and at the locus in quo the Respondent proved that the land was on pledged and thereby adjudged the Respondent to be the owner of the land in dispute was wrong. That the Lower Court was in error to have given judgment in favour of Respondent on the issue of pledge. That a careful reading of the record coupled with the Respondent averments deposed in his Counter Affidavit dated 28/10/2008 filed on same date at page 143 ? 144 of the record revealed that Respondent failed to prove the pledge alleged. That the Customary Court of Appeal did not consider the said document, the Counter Affidavit. He relied on the case of EGESIMBA V. ONUZURUIKE (2002) FWLR (Pt. 128) 1386 at 1425-6.

That the Appellant was emphatic in his testimony that his family has always being in possession of the land in dispute. That the Respondent never farmed on the land. That the Respondent admitted that the land was in possession of Appellant?s family thus shifting the onus on Respondent that the land

was on pledge. He relied on the case of EBEVUHE VS. UKPAKARA (1996) 7 NWLR (PART 460) 254. He referred to the evidence of Respondent as PW1 on 20/12/2004 page 21 line 11 ? 6 stating that the land belongs to OSUJI ONWUKA who pledged it to Ohuabunwa and that the transaction was made about 1946.

That PW2 did not personally witness the pledge transaction.
Learned counsel then referred to evidence of Appellant as DW1 who vehemently denied the land being on pledge to his father. That his own father died in 1939 and that it is not true to say the land was pledged to Ohuabunwa by OSUJI ONWUKA.

That in the Affidavit of Respondent filed on 28/10/2008 he confirmed the Appellant?s father died in 1939. That the Customary Court of Appeal agrees that Appellant?s father died in 1939 in their Ruling contained on page 152 of the record by the Customary Court of Appeal per Okorie, Honourable Judge of the Customary Court of Appeal. That it is surprising the same Lower Court now held that there was evidence to support the alleged pledge about 1946 seven years after the death of Appellant?s father according to the Appellant’s Counsel.

That the 1st Respondent was not sure when the alleged pledge of Osuji’s land was made to Appellant’s father as alleged by Respondent. That the Court cannot speculate that the pledge took place about 1946. He relied on the cases of LONG-JOHN V. BLAKIC (1998) 5 SCNJ 68 at 89 and ALHAJI B. JAWANDO & ANOR. VS. MADAM FALILAT BAKERE (2000) ALL FWLR (PT. 332) 1590 at 1609.

He finally urged this Court to hold under Issue 1 that the Respondent failed to establish the pledge of the land thus failing to discharge the onus on him. That the Customary Court of Appeal was wrong in holding that the pledge was proved. That the Lower Court ought to hold that by Section 46 of the Evidence Act the Appellant has been in possession of the land which was not contested by the Respondent. That the land belonged to the Appellant.

The Respondent’s Learned Counsel Don Oweregbulam Esq. draws attention to the five ways of proving ownership or entitlement to land. That the Plaintiff must discharge the onus on him by cogent, consistent and credible evidence before the Court. He relied on the cases of NWABUOKU VS. ONWORDI (2006) ALL FWLR (PT. 331) 1236 at

1247 D ? G and ORAETOKA VS. AJIA (2006) ALL FWLR (PT. 321) 1312 at 1325 B -D.

That the Respondent both in Court at the Locus in quo asserted his title to the land and proved the same. On the evidence concerning the pledge of the land he referred to page 21 of the record wherein he said the record shows that the Respondent gave evidence that the land in dispute belongs to OSUJI ONWUKA who pledged it to Ohuabunwa to pay for fine of Iri Aku Ano which he said is equivalent of N100.00.

On whether there is miscarriage of justice concerning the controversy as to whether the alleged pledge to the Appellant’s father was made about 1946 or earlier having regard to the stance of the Appellant that the said OHUABUNWA to whom the land was allegedly pledged died in 1939.

The Respondent’s Counsel believes no miscarriage of justice took place bearing in mind the following:
1. That all boundary neighbours were called and the Appellant admitted them to be the boundary men.
2. That all the boundary neighbour are the relations of Appellant and that Appellant acknowledged them.
3. That the Appellant has no known or established

boundary neighbour.
4. That Chief Eratus Ebirim Panel gave verdict in favour of the Respondent over the same subject matter between the parties.
5. That the Appellant did not prove ownership of the land beyond merely stating that he inherited the land from his father.

That the Appellant was wrong in submitting that the evidence of PW2 of what his father told him as a witness to the pledge cannot be hearsay evidence. That pledge in Customary Law is mostly by parole and not documented. That the evidence of the Appellant that since after his father?s death Respondent or his relation never farmed or worked on the land cannot be used against the Respondent because a pledged land cannot be in possession of pledgor until the land is redeemed. He relied on the maxim once a pledge always a pledge. That pledged land does not ripen into ownership. He relied on the case of OKORO V. NWACHUKWU (2006) ALL FWLR (Pt. 343) 1785 at 1795 D to contend that evidence of proof of ownership of land under Native Law is an exception to hearsay Rule.

?That it is important to note that PW1 was not cross-examined in any way by the Defence having forfeited the right

to do so. That that evidence remains unchallenged and uncontroverted. He relied on the case of NWANOSIKE VS. JOHN HOLT (2006) ALL FWLR (Pt. 301) 809 at 1845 G ? H. That the Lower Court was right in affirming the decision of the trial Court to the effect that Respondent proved the pledge of the land in dispute as alleged. He urge the Court to resolve Issue One in favour of Respondent.

The Appellant in his Reply Brief filed on 2/7/2015 and deemed filed on 30/9/15 said that the Brief of Respondent failed to address the contradictory averments the Respondent made in his Counter Affidavit filed on 28/10/2008 as contained on page 143 ? 144 of the record of appeal meaning that the Respondent had in fact admitted that Appellant?s father died in 1939 and therefore, according to Appellant?s Counsel it was not possible for the alleged pledge transaction to have taken place ?about 1946? some seven years after the pledge took place. That it was in the same Counter Affidavit of Respondent sworn on 28/10/08 that Respondent turned round to aver that the pledge was between 1930-1932.

?The evidence relating to the pledge of the land

in dispute to OHUABUNWA as alleged by the Respondent (as Plaintiff) at the Court of first instance the Customary Court Isiala Mbano can be found on pages 20 ? 21 of the record where PW1 the Respondent testified thus:
?The name of the land in ?Uhu Duruzo?. It is situate at Umuduruebika, Umunkwo. The land has boundary neighbours. On the right hand side is Wilfred Iwuoha?s land from Din Kindred. On the left side is Ogbonnaya Ugwuezi from Umuizuaku in Umuduruebika. On the northern side is Erie Ibeziri from Umuduruamuka in Umuduruobika Kindred. On the South (back) is Longinus Agbakala from Umuizuaku in Umuduruebika. The features of the land are ?Ukwa? (Breadfruit trees), Ube (African Pears) Oil Palm trees Adu and other trees. This land is owned by one of my brothers Mr. Osuji Onuwuka of Amuka in Umuduruebika Kindred. Osuji Onwuka owned the land by inheritance from his father. My relationship with Osuji Onwuka is that he grew in my father?s house because my father beget his father, we are of the same blood from Duruamuka who had 5 children or sons ? namely Iwaiwu, Nwaonyeocha Onwuka Nwanyanwu and 5th Ibesiri

Osuji is the son of Onwuka. My father came from the lineage of Nwaiwu as his son. My father is Nwaigbo Nwaiwumuanya. This land belongs to Osuji Onwuka who pledged it to Ohuabunwa to pay for his fine of (Iriakoano equivalent of N100.00 now). Osuji has a son called Akangoziri. When Osuji died, his son and my father, Nwaigbo buried him. Osuji did not redeem the land before his death. The pledge transaction was made about 1946. The land was inherited by his 1st son Akangoziri. He could not redeem the land before his death. It was Patrick Nwaigbo who buried Akangoziri on his death because my father had died. There is no other survivor of Akangoziri. The custom of Umunkwo people on someone who died in extinct is that the person who buried him inherits his property?.

The Respondent stated further that he buried the person entitled under custom to inherit the land one MR. AKANGOZIRI who died during the war. That he thereby became entitled to the land. That he warned the Appellant?s family in 1999 about the pledge but instead of heeding his warning, the Appellants family took him before Chief Erastus Ebirim for Arbitration and that the Appellants and

his brother were directed by the Arbitration to swear an Oath but that they refused to swear on 14/6/2001 fixed for the Oath taking and so the Arbitrators ruled in favour of the Respondent as owner of the land. PW1 stated further that the community members accompanied him to his house to celebrate and took drinks. The document relating to the decision of Chief Ebirim was later tendered in evidence on 13/2/2006.

It must be noted that though the Appellant?s Counsel was in Court on 20/12/2004 when PW1 began his evidence but was absent on 18/4/2005 though he sent letter to Court. The matter was heard in his absence.

On 10/10/2005 when the matter came up both Counsel were in Court and they agreed for the consolidation of Suit CC/SM/66/2014 with CC/SM/43/2003 so they could be tried together. The request was granted. The matter was later adjourned till 15/12/2005 for continuation of evidence of PW1 but Defence Counsel (Appellant?s Counsel) was absent and wrote letter that he was bereaved whereupon the matter was adjourned till 13/2/2006.

?On that date, the Counsel to the Appellant also wrote letter for adjournment but the matter went on. The

case was adjourned till 13/3/2006 for cross-examination. By the record the matter came up again for hearing on 18/9/2006 the Defendant (Appellant) and his Counsel were absent. The matter was adjourned till 5/10/2006 for Cross-Examination.

On 5/10/2006, the record shows that Appellant and his Learned Counsel were not in Court but the matter proceeded to further hearing when PW2 testified and corroborated the evidence of the Respondent. It was adjourned till 7/11/2006 to enable the Appellant or his Counsel Cross-Examine the Respondent?s PW2.

On 7/11/2006 Plaintiff (Respondent) was in Court but his Counsel was absent. The Appellant Counsel was in Court but rather he applied that the matter be begun de novo or that the case of Respondent (Plaintiff at Lower Court) who said he could not proceed in the absence of his Counsel be struck out. The trial Court refused but again adjourned the matter to 18/12/2006 on which date the Learned Counsel to the Appellant was not in Court. On that 18/12/2006, the Appellant took it upon himself to cross-examine the PW2 and the case was adjourned for defence.

On the issue of arbitration before Chief Erastus

Ebirim, the Appellant in his evidence on page 38 ? 39 of the record confirmed that Chief Erastus Ebirim their village head arbitrated with the Community on the matter. That the verdict of the Arbitration was that he (Appellant) should swear for Patrick Nwaigbo. That when he came out to swear they told him he would be taken to OKIJA Shrine but he refused because he could only swear on Bible. He confirmed that the verdict was documented and was tendered by Respondent. He maintained that the land is his inheritance. On the matter of pledge, he said under cross-examination thus:
?I don?t know that the land descended from Osuji Onwuka to the Plaintiff my father is Ohuabunwa. I knew when he died. He died in 1939. It is not true that this land was pledged to Ohabunwa by Osuji Onwuka?.

The trial Court on pages 57-58 evaluated and reviewed the evidence led before it and came to the conclusion that by the verdict of Arbitration Panel headed by Chief Ebirim Exhibit 1, the Appellant?s family refused to take an Oath to confirm or deny the case of the Respondent.

?That the Appellant even confirmed or admitted that he refused to

take Oath. The trial Court also believed the evidence of PW1 and PW2 who testified for Respondent that the land was on pledge to the Appellant?s father. They also found that the evidence of the Respondent at Locus in quo was convincing. That the boundary neighbours of Respondent were present but that of Appellant were absent and the Appellant eventually agreed with the boundary neighbours mentioned by the Appellant. The trial Court therefore found for Respondent.

The learned Counsel to the Appellant made efforts at the Lower Court to adduce further evidence as to whether the pledge was in 1946 as testified by Respondents as the Appellant claimed that his father to whom Respondent claimed the land was pledged died in 1939.

The Lower Court refused the application even though the Appellant stoutly relied on the Counter Affidavit of the Respondent agreeing that Appellant father died in 1939 and that the pledge took place between 1930 and 1932. (Page 143) of the record.

On page 152L of the record the Lower Court said:
?The question that arises then, is these essential conditions apparent in this application to warrant its grant. I am

of the candid opinion that they are not apparent. There were no fresh events that occurred after the trial at the Lower Court necessitating the grant of this prayer. Moreover the parties had ample opportunity by way of diligence to have resolved the matters at the Lower Court, but failed or neglected to do so.
In the light of the above, this motion is dismissed as it lacks merit”.

The Lower Court agreed with findings of the trial Court and held that the evidence given by PW1 on the question of the pledge was not challenged and that the evidence at Locus in quo supported the findings of trial Court that the Respondent is the owner of the land and was on pledge to the Appellant’s father.

It is settled law that an appellate Court will not substitute its view of the evidence for that of the trial Court which heard and saw the witnesses testified. The evaluation of evidence and ascription of probative value to it is the prerogative of the trial Court. The Appellate Court will not lightly set aside the finding of a trial Court unless it is perverse and occasioned a miscarriage of justice against the Appellant.
See (1) MICHAEL

ACHILIHU & ORS. VS. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 285 H to 286 A – G per AKAAHS JSC.
(2) DR. SOGA OGUNDALU VS. CHIEF A. E. O. MAC JOB (2015) 3 SCM 113 at 124 B – D per RHODES – VIVIOUR JSC who said:
“It is the duty of the trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so since that Court saw, heard and watched the demeanuour of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence. Furthermore, evaluation of a document is not within the exclusive preserve of the trial Court and an appellate Court have equal

rights in evaluation of documentary evidence?.

I have earlier on in this judgment and under the issue under consideration examined the major aspect of this case particularly on issue of pledge and I found that the Appellant and his Learned Counsel did not cross-examine the Respondent on the evidence of pledge as given by the Respondent. I am of the view that even if the Respondent did not say the specific year the pledge transaction was made though he mentioned 1946 in his evidence, his evidence remain uncontradicted because he was not asked a single question on the pledge transaction. The failure to cross-examine Respondent on the evidence of pledge tatamount to admission by the Appellant that the land was actually on pledge to Appellant?s father from OSUJI ONWUKA. See:
(1) PAULINUS CHUKWU & ORS. VS. MATHEW AKPELU (2014) 13 NWLR (PART 1424) 359 at 38 E ? G per OGUNBIYI JSC.
(2) NWANKWO OGUANUHU & ORS. V. DR. EMMANUEL CHIEGBOKA (2013) 6 NWLR (PART 1351) 588 at 608 A ? B per GALADIMA, JSC.
?One must also not lose sight of the fact that this case emanated from the Customary Court and this Court and the Lower

Court have been enjoined not to interfere with the finding of trial Customary Court except where grave miscarriage of justice occurred. This Court will also take into account that no pleadings is filed in them and the evidence is always largely oral.
See NWANKWO OGUANUHU & ORS. V. DR. EMMANUEL CHIEGBOKA (2013) 6 NWLR (PART 1351) 588 at 605 A – F per GALADIMMA JSC., who said:
“Learned Justices of the Court below, also correctly restated the principle of law guiding the appraisal of the judgment of a Customary Court, like the trial Court in this case. The principle is that in appraising such judgment, it is the substance and not the form of same that must be considered, so as not to undermine the real purport and essence of the judgment. See: Ajagunjeun v. Osho (1977) 5 SC 89; Kpishikwusu v. Udo (1990) 2 SCNJ 4 and Ekpa v. Utong (1991) 6 NWLR (Pt. 197) 258.
Strict rules of pleadings and application of provisions of the Evidence Act are not observed in those Customary or Native Courts. Their decisions however, must be based on common sense and reasonableness of their finding. See: Efi v. Enyinful (1954) 14 WACA 424; Chief Asuquo

Ekpa & Ors. v. Chief Etim Akpan Utong (1991) 6 NWLR (Pt. 197) 258 at 278; Ogunsina v. Ogunleye (1994) 5 NWLR (PT. 346) 625.
Findings made by the trial Court is based on the evidence adduced before it. It is the primary duty of the Court to ascribe due probative value on the evidence placed before it, when the trial Court fails to perform this duty, then an appellate Court can step in to perform such function. Even so, the appellate Court is cautious when performing this function and can only do so when the demeanour of witnesses is not in question. See: Atolagbe v. Shorun (1985) NWLR (Pt. 2) 360; Narumal & Sons Ltd. v. N.B.T.C. Ltd. (1989) 2 NWLR (Pt. 106) 730; Okafor v. Idigo (supra).
Otherwise, the corollary to the above principle is the presumption that the decision of a trial Court on facts is correct. An appellate Court cannot and it ought not to substitute its own view of fact for those of the trial Court which heard evidence and watched the demeanour of witnesses as they testified. See: Ohanaka v. Achugwo (1998) 9 NWLR (Pt. 564) 37.

The Appellant is to be blamed for his woes in this matter. The facts and findings against

him are amply supported by the record. The trial Court did not believe him. In that wise, the year of the death of his father which was put at 1939 did not change anything in his favour. After all the evidence is based upon Oath against Oath. It all depends upon which of them the trial Court believed coupled with other pieces of evidence before it. I am of the view that the Lower Court was right in believing and upholding the findings of trial Court and there is now before this Court two concurrent findings against the Appellant. There is no exceptional or extraordinary circumstances to warrant any interference with the said findings. See NWANKWO OGUANUHU & ORS. V. DR. EMMANUEL L. CHIEGBOKA Supra pages 605 H to 606 A -B per GALADIMA JSC who said:
“An Appellate Court will only interfere with findings of fact of a trial Court if it is shown that the conclusion reached is not in tune with the current or flow of evidence or that the decision was wrong or perverse.
As it pertains to the concurrent findings of two Lower Courts an appellate Court will not interfere unless there be exceptional circumstances to justify such interference. Nor

would there be interference with the judgment of two Lower Courts unless there are substantial errors in law or procedure leading to miscarriage of justice. See: Akinloye v. Eyinola (1968) NWLR 92; Ebabg v. Adu (1981) 11 – 12 SC 25; Ohanaka v. Achugwo (supra); Okulate v. Awosanya (2000) 1 SC 107, (2000) 2 NWLR (Pt. 646) 530”.

I am mindful of the contention of the Appellant that since the death of his father neither the Respondent not his relation farmed or worked on the land in dispute. I am of the firm opinion that where as in this case a land is proved to be on pledge to someone the pledgor retains the radical title in the land but the possession of the pledged land resides with the pledgee until the pledged land is redeemed. In other words, as long as the pledge land remained unredeemed so long the possession of the land will be with the pledgee and NOT with the pledgor. Until the land is redeemed the pledgor and his family members and relations cannot make use of the land either for farming or other sundry purposes. That however does not mean that the ownership of the land is vested in the pledgee or that the possession of the land will

operate in favour of the pledgee even if the land is in possession of the pledgee for decades or even century. Once a pledge always a pledge, is the maxim. See GEORGE ONOBRUCHERE & ANOR. V. IVWROMOEBO ESIGINE & ANOR. (1986) 1 NWLR (PART 19) 799; 1986 LPELR – 2688 (SC) per OPUTA JSC who said on page 10 thus:
“In Customary Law, the pledger retains the radical title. It is not extinguished by the pledge. The pledger has the right of redemption, and it does not matter for how long the land had been pledged. See Ikeanyi v. Adighogu (1957) 2 ENLR 38 at 39, Leragim V. Funlayo (1955-56) W.R.N.L.R. 167; Agbo Kofi Vs. Addo Kofi (1933) 1 WACA 284; Orisharinu Vs. Mefue (1937) N.L.R. 181”.
This was reechoed on numerous occasion by the Apex Court in the land. Suffice it to refer to the following cases: ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS. (2013) 550 at 566 B – C per ARIWOOLA JSC who said:
“One may then ask, what does it mean to pledge? This means “a formal promise or undertaking”. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and

something less than a mortgage. The pledge is said to be as old as recorded history and is still in use.
In this transaction, the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid see Black’s Law Dictionary Ninth Edition page 1272. A pledgee is one with whom a pledge is deposited while the pledgor is one who gives a pledge”.
(3) MICHAEL ACHILIHU & ORS. V. EZEKIEL ANYATONWU (2013) 12 NWLR (PART 1368) 256 at 279 F – H to 280 A – C per AKA’AHS JSC who said:
“Once it is determined that the land is on pledge, the length of time taken to redeem it or the use it has been put by the pledgee such as planting economic trees (which in this case was the planting of oil palm trees) is no longer an issue, and cannot be relied on in proof of anything. In Okoiko & Anor. v. Esedalue & Anor. (1974) 3 SC 15, this Court laid down the principles which govern customary pledges as follows:
(1) That a pledge is perpetually redeemable and the pledgor’s family is entitled to

redeem the pledged land for the amount of the original loan and for nothing more;
(2) That on redemption by the pledgor, a pledge of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession.
(3) That when pledged land is being redeemed by the pledgor or successor-in-title the pledgee must account for benefits derived by him from exploitation of the land while in possession; and
(4) That the pledgee in possession must not do anything to clog the pledgor’s right of redemption of the pledged land. In other words, the concept of a leasehold under common law is alien to customary pledge.
There is a slight variation in Northern Ngwa concerning the duties and liabilities of a pledge under a pledge and the time limit for redemption. The duties of a pledgee in respect of property pledged are to take proper care of the property, to deliver it to the pledgor when the debt is repaid or to deliver it to another person if the pledgor so demands”.

Possession of the land by Appellant or his relation cannot inure for his benefits.
Issue 1 is therefore resolved against the

Appellant.

ISSUE 2
WHETHER CUSTOMARY COURT OF APPEAL WAS RIGHT WHEN IT HELD THAT THE NATIVE ARBITRATION OF CHIEF ERASTUS EBIRIM WAS CONCLUSIVE WITHOUT PROPERLY EVALUATING THE EVIDENCE OF THE APPELLANT WHO TESTIFIED AS DW1 AND BENJAMIN ONYEDIERE WHO TESTIFIED AS DW2 (GROUNDS 4 AND 5).

The Appellant finds fault with the decision of the Lower Court that the refusal of Appellant to take Oath was a consequence of the decision of the Native Arbitration Panel.

The Appellant submitted that the decision is not borne out of the record in that Appellant or any member of his family never refused to take Oath and that there was no award from the Arbitration Panel. That the Customary Court of Appeal did not evaluate the evidence of eye witness to the Arbitration DW2 who was 83 years of old at the time. That if the Lower Court had evaluated the evidence of Appellant property it would have found that the conditions for valid Native Arbitration was not met. He relied on the case of OKEREKE VS NWANKWO (2003) 9 NWLR (PT. 826) Page 592 ratio 2 wherein the said the Supreme Court laid down the following conditions:
1. There has been a voluntary submission

of the parties in the dispute to an arbitration of one or more persons.
2. It was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.
3. The arbitration was in accordance with the custom of the parties or their trade or business.
4. The Arbitrators reached a decision and published their award.
5. The decision or award was accepted at the time it was made.

The Learned Counsel relied on the evidence of the DW1 and DW 2 and submitted they did not refuse to swear but that they said they would swear on the Bible. That the document Exhibit “1” the Arbitration award was not signed by the parties and at such it is not binding on the parties and was not qualified as an estoppel per rem judicata. That what the entire appellant and his family insisted upon was that they would only swear on the Bible. That the Lower Court did not say there was anything wrong with the swearing with the Bible in view of the advent of Christianity. That if the decision of the Panel was accepted both parties would not be in Court. That one vital ingredient of customary law

arbitration which is ACCEPTANCE by parties is absent. He relied on the case of CHIEF NOARALE AKPAN & ORS VS CHIEF UDOCHUKWU UMO OTONG (1996) 10 NWLR (PART 476) 108. That even if there was an award it was not accepted by the Appellant and that the whole exercise ended in stalemate.

In reply, the Respondent stated that from the totality of the evidence the following are not in doubt viz:
1. That there was a Local Arbitration headed by Chief
Erastus Ebirim who is the village head of Umuduraebika that arbitrated in the matter.
2. That the matter went before the Panel at the instance of Defendant.
3. That Parties appeared before the panel.
4. That the panel inspected the land in dispute.
5. That the Panel recommended that the matter be settled by Oath taking on traditional Juju.
6. That at the option of Appellant?s family they agreed to swear for Respondent. That Appellants family chose WILFRED OHUABUNWA THE ELDER Brother of
Defendant who is head of family.
7. That WILFRED OHUABUNWA declined to swear an Oath.
8. That Nathaniel who is a junior brother of Appellant came forward to swear but would want

to swear on Bible which does not conform to the custom of UMUDURUEBIKA on Oath taking.
9. And that the Panel gave Judgment for Respondent in Exhibit 1.

He referred to the evidence of PW1 and PW2 to the effect that by the custom of the parties failure to swear meaning the person is not truthful. That having voluntarily submitted to the arbitration, Appellant cannot resile from it. He relied on the case of NDA VS CHIANUOKWU (2006) ALL FWLR (PT. 313) 169 at 181 B.

The Learned Counsel to the parties have correctly articulated the conditions precedent to a binding award or judgment of a Native Arbitration Panel. There is no doubt that Oath taking by Disputants over land in Igbo Land is one of the methods of determining where the truth lies as to the ownership of the land upon the conditions earlier alluded to by both counsel to the parties in this appeal. See JOHN ONYENGE & ORS VS CHIEF LOVEDAY EBERE & ORS (2004) LPELR -2741 SC at 22 where NIKI TOBI JSC said:
This Court recognizes Oath taking as a valid process under Customary Law Arbitration. In Ume vs. Okoronkwo (1996) 10 NWLR (Pt. 477) 135, 1996 12 SCNJ 404, Ogwuegbu JSC, held

that Oath taking was one of the methods of establishing the truth of a matter and was known to Customary Law and accepted by both parties. I am bound by that decision.

The Appellant Learned Counsel was very loud in his submissions that the Appellant and his family did not refuse to swear but only insisted on swearing by the Holy Bible. The Appellants Learned Counsel even submitted in paragraph 1.15 of the Appellant’s REPLY BRIEF thus:
“My Lords with due respect, neither PW1 Nor PW2 or indeed any witness testified that swearing with Bible is not a custom recognized under native law and custom of Umuduruebika and the trial Court never said that it has taken judicial notice of the fact that swearing with bible is not a custom recognized under native law and custom of Umuduruebika. My lords, we submit that this piece of evidence was supplied by the respondent’s counsel and we urge this Honourable Court to discountenance it and hold that the native arbitration was inconclusive and not accepted by the parties.”

I am of the solemn view that swearing on the Bible or even on the Holy Quoran cannot be a practice that is tandem or

consistent with Native Law and Custom relating to Oath taking. The Appellant would have sounded more convincing in his argument if both parties to this appeal had referred their matter in dispute to their Church Leaders and that is if they belong to the same Church in which case it would have been more consistent with reason that anyone would readily agree that swearing the Holy Bible will be more apposite before an Archbishop or a Reverend Father. One can then reasoned that Holy Bible is associated with Christians as Holy Quoran is with the Muslims.

The parties to this appeal actually submitted their dispute over to Chief Erastus Ebirim Arbitration. Perhaps it is also necessary to reproduce a portion of the evidence of the original Defendant and DW1 for the Appellant on page 38 last three lines) to page 39 (Lines 1 – 7) who testified thus:
?There have been local arbitration by Chief Erastus Ebirim, the Village head. Chief Erastus Ebirim and the Community Arbitrated on this matter. They gave verdict that I should swear for Patrick Nwigbo I came out to swear, he said he will take me to Okija shrine, I told him I shall swear but on the bible I

refused to swear at Okija Shrine because my faith does not permit me to swear on Okija. The arbitrators told us that any juju of our choice is alright. The verdict was documented and has already been tendered?

DW1 voluntarily submitted to the Panel with Respondent and they testified before the Panel. I am of the firm view that since no one forced the Appellant to submit to the Panel, the appellant cannot now claim that swearing on Oath to Juju or at a shrine was against his faith. He ought to have known that before taking part or participating in the Native Arbitration. The Appellant went to the extent of nominating his brother who refused to swear on the ground that he was not conversant with the facts relating to the land. The trial Court believed the evidence of the Respondent and found that the Appellant refused to take the Oath which translated and means that the appellant was not truthful and so according to the custom of the parties judgment or verdict of the Panel must go in favour of the Respondent. The Customary Court consequently gave judgment against the Appellant. The Lower Court agreed that the decision of the Native Arbitration was

conclusive and found also that the refusal to take the Oath is that the land belongs to the Respondent. The Appellant has been unable to show that the decision of the Native Arbitration was inconclusive. It is no longer open to the Appellant to back out of the decision of the Arbitrators. See MICHAEL IFEANYI OJIBAH VS UBAKA OJIBAH (1991) 6 SCNJ 156 at 169 per NNAEMEKA AGU JSC.
(2) OPARAJI VS OHANU (1999) 9 NWLR (PART 618) 290 at 304 per IGUH JSC who said:
“I think I ought to start by restating the well settled principle of law that where two parties to a dispute voluntarily submit the issue in controversy between them to an arbitration according to customary law and agree expressly or by implication that the decision of such arbitration would be accepted as final and binding, then once the arbitrators reach a decision it would no longer be open to either party to subsequently back out or resile from the decision so pronounced.”

Issue 2 is hereby resolved against the Appellant.

ISSUE 3
WHETHER THE APPELLANT WAS DENIED FAIR HEARING CONTRARY TO SECTION 36 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999.

(GROUNDS 7 AND 8).

The principal or the main grouse of the Appellant under Issue 3 is the Lower Court?s holding contained on page 168 of the record as follows:
“The next sitting as contained in the records of appeal was 10/10/2005. Counsel for the Defendant/Appellant was in Court. He did not complain about what happened on the previous sitting when evidence (sic) was taken behind him and his client. He allowed the case to proceed”.

The Learned Counsel to the Appellant E. I. EWUZIE Esq. posed the question for himself as to whether Appellant who is a layman should be made to suffer injustice resulting from denial of fair hearing, because of the mistakes of Counsel? To Learned Counsel to the Appellant it should not be. He submitted that a litigant should not suffer for the mistakes of his Counsel. He relied on the case of SANNI V. AGARA (2008) ALL FWLR (PART 432) 1185 at 1197 ? 8. That the Lower Court was in error in condoning and upholding the apparent injustice done to Appellant in denying the Appellant or his Counsel the opportunity to revisit the evidence given in their absence by recalling the witness in question to

either represent the evidence or be cross-examined or both. All other arguments and submissions that followed have to do with Issue 1 and 2 already dealt with.

In reply to the argument on alleged denial of fair hearing the Respondent Learned Counsel stated that the right to fair hearing is constitutional and rooted in Rule of Law as one of the twin pillars of justice. He relied on the case of KANUMBU VS. BUNU (2006) ALL FWLR (PT. 340) 1093 at 1728 G ? H among other cases. He however submitted that a party who has been given the opportunity to be heard but failed to utilize the opportunity cannot thereafter complain that he was denied opportunity of being heard. He relied on the case of USANI V. DIKE (2000) ALL FWLR (PT. 340) 1093 at 1125 E ? G and 1117 A ? C.

The Learned Counsel to the Respondent DON OWEREGBULAM Esq. then listed pages 165 ? 168 of the record as pages containing relevant facts and evidence showing that the Appellant and his Counsel were given enough opportunity to defend the case now on appeal.

One of the bedrock of fair hearing in any Civil or Criminal Matter is according or giving equal opportunity to

the parties before a Court or Tribunal to hear him or her and allow him or her the right to present his case and where he is a defendant to be given ample opportunity to defend himself or herself. This is to ensure full compliance with the provisions of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended or altered. If it is proved or shown that one of the parties is refused a hearing or not given an opportunity to be heard, then the hearing cannot qualify as fair hearing within the contemplation of Section 36 of the said Constitution. The consequence will be to strike down the ruling or judgment in such an action or matter.
(1) AUGUSTUS A. NDUKAUBA VS. CHIEF SILAS S. KOLOMO & ANOR. (2005) 4 NWLR (PART 915) 411 at 429 D – E per OGUNTADE JSC.
(2) VIVIAN CLEMS AKPAMGBO – OKADIGBO & ORS. VS. EGBE THEO CHIDI & ORS. (2015) 3 SCM 141 at159 H to 160 A – B per M. D. MUHAMMED, JSC who said:
“One outrightly agrees with learned appellants’ counsel that it is trite that where a person’s legal rights or obligations are challenged he must be given full opportunity of being heard

before any adverse decision is taken against him with regard to such rights or obligations.
This “Audi alteram partem” principle as guaranteed under Section 36 (1) of the 1999 Constitution as amended remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of Law. The principle affords both sides to a dispute ample opportunity of presenting their case to enable the enthronement of justice and fairness. In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitution when, inter alia, all the parties to the disputes are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or the opportunity of being heard, the Court’s proceedings being perverse will be set aside on appeal. See Otapo v. Sunmonu (1987) 2 NWLR (pt. 587), Aladetoyinbo v. Adequmi (1990) 6 NWLR (pt. 154) 98 Mohammed & Anor. v. Olawunmi (1990) 2 NWLR (pt. 133) 485 and Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628″.
On the same page 160 his Lordship said at paragraph F that:
“No matter how weak,

unmeritorious or even unenforceable a party’s case appears to be in an adverse party’s claim, the party’s must be accorded a hearing or the opportunity of being heard regarding his seemingly unavailing case. See Adigun v. Attorney General Oyo State & Ors. (1987) 1 NWLR (pt. 53678 at 707 and Garba v. University of Maiduguri (1986) 1 NSCC 255”.

I have carefully perused the record particularly pages 23-27, 31, 32 ? 34 ? 41 of the record where a close reading of the record on those pages reveals that the Appellant and his Learned Counsel have always been lackadaisical in the defence of the Appellant. The Appellant and his Learned Counsel had every opportunity to ask the trial Court for indulgence to cross-examine or recall witnesses that testified in the absence of Appellant?s Counsel. A good example is shown in the proceeding of 7/11/2006 when Learned Counsel to the Appellant was present in Court. His Client was in Court in the last two previous sittings at which PW1 and PW2 gave evidence without being cross-examined. Instead of proceeding within cross-examination of PW2 who was even yet to be cross-examined, the

Learned Counsel to the Appellant rather asked that the case CC/SM/43/2003 be started De novo or and that it should be struck out. That same day, the trial Court adjourned cross-examination of PW2 to 18/12/2006 upon refusal of application to start de novo or for striking out.

Again the Appellant’s Counsel was absent on 18/12/2006. Curiously the Defendant, Nathaniel Ohuabunwa told the Court he could cross-examine PW2 and he did. The matter was thereafter adjourned for defence to 5/2/2007. Surprisingly Appellant’s Counsel was again absent to conduct the Defence. Again the Appellant took up the gauntlet and offered to conduct his case by himself.

The Appellant with his eyes wide open tolerated and condoned the absence of his Counsel at most strategic occasions in the proceeding. He did not complain. Who knows whether he did not perfect his Counsel’s Brief. But then that is between him and his Learned Counsel. Allegation of denial of fair hearing is not a magic wand to be raised in time of trouble or distress to rescue a party who wittingly or unwittingly inflicted the hazard upon himself or herself due to his or her own action or

inaction. This Court will not come to the aid of such Litigant. This is not a case of mistake or undoing of a Counsel. The mistake here if any was a joint enterprise between the Appellant and his Counsel. He did not at any time seek for the protection of trial Court so that he could have his Counsel around or engaged another Legal Practitioner. It is on record that his adversary, the Respondent on one occasion when his Counsel was absent and the trial Court asked him to proceed, the Respondent opted out of danger and pleaded that he could not conduct his case except through his Counsel and trial Court obliged him. There was no such application made to the trial Court by the Appellant.

Where the right guaranteed under Section 36(1) of the 1999 Constitution as amended or altered has been accorded a party in any proceeding the trial Judge has a duty to hold the balance and ensure that the other party does not suffer for the failure of his opponent to take advantage of opportunity granted to present or defend the case against him. See the case of BANNA VS. TELEPOWER (NIG) LTD. (2006) 15 NWLR (PART 1001) 198 at 220H to 221 A per NIKI TOBI JSC who said:

In Newswatch Communication Limited Vs. Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (PART 993) 144 at 171, paras B ? E. I said:
“A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affect the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal”.

Appellant is therefore now estopped from crying wolf when there is none in sight. See HRH IGWE KRIS ONYEKWULUJE & ANOR. VS. BENUE STATE GOVERNMENT & ORS. (2015) 7 SCM 197 at 223 G -H per GALADIMA JSC who held:

“When a party who is entitled to be heard is denied a hearing before a decision affecting him is made, then by virtue of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 that decision cannot

bind him; because he is not given the opportunity of being heard. In the case at hand, the records show that the Appellants fully participated in the proceedings of the 3rd Respondent from the beginning to the end of the sitting. They cannot now complain that they were denied fair hearing”.

Issue 3 is accordingly resolved against the Appellant.

The conclusion I have reached in this appeal is that the appeal is quite unmeritorious and has to be dismissed. The Appeal of the Appellant is hereby dismissed in its entirety.

The judgment of the Customary Court of Appeal of Imo State of Nigeria delivered on 10th day of December, 2008 is hereby affirmed.

The Appellant shall pay costs assessed at N30,000.00 (Thirty Thousand Naira) to the Respondent.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading the lead judgment in draft. My learned brother, Peter O. Ige JCA, in his usual manner, took time to identify and discuss the pertinent issues in the appeal and I agree with his reasoning and conclusions, completely.

I have nothing else to add as I too dismiss the appeal and abide by the consequential

orders in the lead judgment.

FREDERICK OZIAKPONO?OHO, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in total agreement with reasoning and conclusions in dismissing this Appeal as lacking in merit. I abide by the consequential orders made thereto.

Appearances

E. I. Ewuzie, Esq.For Appellant

AND

Don. Oweregbulam, Esq.For Respondent