MR. JOHN UWANNA v. MR. FRANCIS ONWUZURUIGBO
(2019)LCN/13470(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/OW/281/2017
RATIO
WHETHER GROUNDS OF APPEAL FROM CUSTOMARY COURT TO THE CUSTOMARY COURT OF APPEAL RAISE ISSUES OF CUSTOMARY LAW
In determining whether or not Grounds of Appeal from Customary Court to the Customary Court of Appeal raise issues of Customary Law, Ayoola JSC in his dictum in PAM v. GWOM (2000) 2 NWLR (PT. 644) @ 322,333-356, posited thus:
Venture to think that a decision in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy.PER RITA NOSAKHARE PEMU, J.C.A.
CUSTOMARY LAW: WHERE THE PARTIES AGREES TO WHAT THE APPLICABLE CUSTOMARY LAW IS
Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question customary law arises.PER RITA NOSAKHARE PEMU, J.C.A.
CUSTOMARY LAW: WHERE THERE IS AN AGREEMENT ON WHAT THE APPLICABLE CUSTOMARY LAW IS, BUT THERE IS A DISPUTE AS REGARDS THE EXTENT TO WHICH IT IS APPLICABLE
However where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the rights, obligation, or relationship of the parties, having regard to the fact established in the case, a resolution of such a dispute can in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure such decision is not with respect to a question of Customary Law notwithstanding that the applicable law is Customary Law.PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND: CLAIMANT MUST PLEAD AND PROVE HIS ROOT OF TITLE
In an action for declaration of title to land the Claimant must plead and prove his root of title before he can have his claim of title on acts of ownership or long possession. AJALA v. OKOGBUE (2011) 16 NWLR (PT. 1272) 62 @ 76.PER RITA NOSAKHARE PEMU, J.C.A.
CUSTOMARY LAW: THE BURDEN OF PROOF OF CUSTOMS IS ON THE PERSON ALLEGING ITS EXISTENCE
It is trite that the burden of proof of custom is on the person alleging its existence.
The question is whether the relevant native law and custom governing the grant is pleaded? TEMILE v. AWANI (2001) FWLR (PT. 62) 1937 @ 1954.
He who asserts must prove JEGA v. ALIU (2010) ALL FWLR (PT. 502) 1066; YUSUF v. TOLUHI (2002) FWLR (PT. 119) 1430 @ 1435 para.PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
MR. JOHN UWANNA – Appellant(s)
AND
MR. FRANCIS ONWUZURUIGBO – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Abia State, holden at Umuahia, delivered on the 28th of September 2016, in Appeal No. CCA/UM/A/2015.
FACTS RELEVANT TO THIS APPEAL
The Appellant (as Defendant at the Court below) was sued by the Respondent (as Plaintiff) at the Customary Court sitting at Oloko in Ikwuano Local Government Area of Abia State for the following reliefs viz:-
a. A declaration that the Plaintiff is entitled to the Customary right of Occupancy over (1) one portion of land known as and called ?EZI ONWUZURUIGBO UWASOMBA? located/lying at Umusoko Awomukwu Ikwuano Local Government Area, within the jurisdiction of the Honourable Court.
b. A declaration of the Honourable Court to demolish the building which the Defendant started to build on the said land.
c. N20,000.00 damages for trespassing into the land without the permission of the Plaintiff and for destroying the status quo of the land.
d. Perpetual injunction, restraining the Defendant, his heirs, agents, workmen,
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household and privies from further entry into the said land.
The Customary Court on the 28th of October 2010, gave judgment in favour of the Appellant.
The Respondent (Plaintiff at the Court below) dissatisfied appealed to the Customary Court of Appeal, Umuahia, who set aside the judgment of the Customary Court on 30/9/2013 and ordered a retrial.
The Customary Court then after the retrial gave judgment in favour of the Plaintiff (Respondent).
The Appellant (Defendant in the Court below) is dissatisfied with the judgment of the Customary Court and appealed to this Court.
He filed a Notice of Appeal on the 23rd of October 2016 ? Pages 5-8 of the Record of Appeal, encapsulating three (3) Grounds of Appeal.
The Appellant filed his brief of argument on the 27th of March 2018. It is settled by I. O. NWANKPA, ESQ.
The Respondent?s brief of argument was filed on the 4th of May 2018. It is settled by EZE UKATTAH, ESQ.
The Appellant distilled two (2) isues for determination from the Grounds of Appeal. They are:-
1. WHETHER THE COURT BELOW WAS RIGHT WHEN IT HELD THAT THE GROUNDS OF APPEAL WAS INCOMPETENT, AFTER THE
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APPELLANT RAISED CUSTOMARY LAW QUESTION IN RESPECT OF AWOMUKWU INIKWAWO NATIVE LAW AND CUSTOM.
2. WHETHER THE COURT BELOW WAS RIGHT WHEN IT HELD THAT GROUNDS OF APPEAL WERE TOO GENERAL, VAGUE, IMPRECISE AND NOT DEFINITE.
The Respondent distilled two (2) issues for determination. They are:-
1. WHETHER THE COURT BELOW WAS RIGHT WHEN IT HELD THAT THE GROUNDS OF APPEAL WERE INCOMPETENT FOR FAILURE TO RAISE QUESTIONS OF CUSTOMARY LAW.
2. WHETHER THE COURT BELOW WAS RIGHT WHEN IT HELD THAT THE GROUNDS OF APPEAL ARE TOO GENERAL, VAGUE, IMPRECISE AND NOT DEFINITE.
It is apparent that the Respondent adopts the issues distilled by the Appellant.
I shall determine this appeal based on the issues proffered by the Appellant.
ISSUE NO 1.
The Appellant submits that the Court below was wrong when it held inter alia that Ground No 1 in the Notice and Grounds of Appeal is incompetent, because it does not raise any question of Customary Law.
That at the trial Court, the Plaintiff (as Respondent) witness PW2 in his evidence admitted that the land in dispute was granted to the Appellant?s mother by the mother?s father
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ONWUZURUIGBO UWASOMBA IROHA as marriage gift, and he mentioned the elders present during the period.
Submits that Ground 1 is in respect of land, and with regard to Customary Court Oloko and the Customary Law and custom of the people of Awomukwu, citing Section 282(1) of the 1999 Constitution (as amended) andNZEI v. UNIVERSITY OF NIGERIA (2017) ALL FWLR 1471 SC. He submits that the Court held that:-
The Grounds of Appeal must be read together with their particulars
Submits that where there is established customary gift of land, and where the land is situate at Awomukwu Oloko in Ikwuano Local Government Area, Abia State; it is clear that Ground one of the Notice of Appeal raised question of customary law; custom of natives of Awomukwu Oloko in Ikwuano Local Government Area, Abia State.
Submits that it was incumbent on the Court below, to infer from the generality of the evidence adduced by the parties before the Court that there is enough evidence and credible Grounds of Appeal in this case to draw an irresistible inference that a customary gift of land was granted to the Appellant’s mother which is a fact known to both parties.
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That customary law of Awomukwu people which disentitled female from inheriting in her father’s estate, is void as same conflicts with the provisions of Section 39 (1) and (2) of the 1979 Constitution of the Federal Republic of Nigeria (now Section 42 (1) (a) and (2) of the 1999 Constitution of the Federal Republic of Nigeria. CitesUKEJE & ANOR v. UKEJE (2014) VOL. 234 LRCN page 1 @ 7 and 8.
Citing CHRISRAY (NIG) LTD v. ELSON & NEIL Ltd (1990) 3 NWLR (PT. 140) 630, he submits that the Court has held that the requirement of the law is that a single good and arguable ground can sustain an appeal.
ISSUE NO 2.
Submits that the Court below erred when it held that grounds in the Appellant?s Notice of Appeal were too general, vague, imprecise and not definite.
Further submits that the particulars of these Grounds of Appeal furnished the Court sufficient details in advance. Citing NZEI v. UNIVERSITY OF NIGERIA (SUPRA).
Submits that Grounds 2 and 3 are on the improper evaluation of evidence by the trial Court in view of the contradictory evidence adduced by Pw1 in Court.
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RESOLUTION OF ISSUES
ISSUE NO 1.
I find it pertinent to reproduce Ground No 1 of the Notice and Grounds of Appeal, and indeed the attendant particulars.
GROUNDS OF APPEAL:
GROUND ONE:
The trial Customary Court at Oloko, sitting at Oloko in Ikwuano Local Government Area, Abia State, Nigeria erred under the Customary Law and came to perverse conclusion and thereby arrived at a wrong decision that:
Where Defendant (now Appellant) lives now (i. e. the subject-matter of the suit) was not given to his mother, Mary Uwanna as a marriage gift byUwasomba Iroba i.e. her late father and that the Defendant was not part of Exhibit A(Exh. A i.e part of the land in dispute that was bought from one Ujouwa Okoro) interalia When it was glaringly clear that the Land wherein, the house and premises in dispute was built was given to the Defendant/Appellant mother, one Mary Uwanna by her late father, one Uwasomba Iroba, as a gift-out of love and affection.
PARTICULARS OF ERROR:
There were abundant facts and evidence that the Land wherein, the house and premises in dispute was built was given to the
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Defendant/Appellant mother, one Mary Uwanna by her late father, one Uwasomba Iroba, as a gift-out of love and affection.
There were abundant facts and evidence that the Defendant’s late mother (Mrs. Mary Uwanna) and her children including the Defendant/Appellant had lived on this land, now in dispute for a very long time, without any challenge from anybody including the late father of the Plaintiff/Respondent.
There were abundant facts and evidence that the Defendant’s late mother (i.e. Mary Uwanna) and her children including the Defendant/Appellant were not temporarily accommodated at the Land in dispute.
There were abundant facts and evidence that the other siblings of the Defendant/Appellant, who had packed out from the house and premises now in dispute did that on their own volition and were not ejected by the Plaintiff/Respondent.
There were abundant facts and evidence that the Defendant/Appellant was part of Exh. A (Exh. A is part of the Land in dispute that was bought from one Ujouwa Okoro).
There were abundant facts and evidence that Exh. Awas
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not actually made in 1972 but the vendor insisted on that the date on the purchase receipt of Exh. “A” should be made to reflect 1972, the late mother of the Defendant/Appellant previously held the Land on pledge before final sale of same to the Defendant?s family.
The claim against the Defendant at the lower Court is as follows:-
1. Declaration of the Hon. Court that the Plaintiff is entitled to the customary right of occupancy over (1) one portion of land known as and called ?Ezi Onwuzuruigbo Uwasomba? located/lying at Umusoko Awomukwu, Ikwuano L.G.A, within the jurisdiction of the Hon. Court.
2. Declaration of the Hon. Court to demolish the building which the Defendant started to build on the said land.
3. N20,000.00 damages for trespassing into the land without the permission of the Plaintiff and for destroying the status quo of the land.
4. Perpetual injunction, restraining the Defendant, his heirs, agents, workmen, household and or privies from further entry into the said land.
PW1 Francis Onwuzuruigbo testified on the 12th of March 2013. He is 60 years old. The Defendant is his maternal nephew. He
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stated that the land in dispute forms part of the land called Ezi Onwuzuruigbo Uwasomba. It is in Umusoko Awomukwu in Ezi Onwuzuruigbo Uwasomba. It is in Umuakaka kindred in Umusoko.
That the (Defendant/Respondent is in his mother house within Ezi Onwuzuruigbo.
He submits that it was one Uwasomba that deforested the land in dispute. After deforesting it, he used it as a dwelling house because he built on it. Uwasomba had four children, namely: Onwuzuruigbo Uwasomba (as the first son) Ariwa Uwasomba, (as second son), Agbakaeko Uwasomba (as the third son), and Uwaoma Uwasomba.
That the land in dispute is the yam barn of his father which the Defendant destroyed.
When Uwasomba died his sons inherited his estate, including the land in dispute. They shared the estate. It was one of the sons of Uwasomba named Onwuzuruigbo U
