ADOLPHUS IGWE v. SUNDAY MBADIWE
(2019)LCN/12526(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/OW/396/2014
RATIO
APPEAL: ISSUE FOR DETERMINATION OF APPEAL
“It is trite and settled law that issues for the determination of appeal must derive or flow from the ground of appeal of the appellant. See ONYEKWELU VS. ELF PETROLEUM (NIG.) LTD. (2009) LPELR-2733 (SC) 6 PARA C-D, where the Supreme Court held as follows:-
‘It is elementary that issues formulated for determination in an appeal must arise from the grounds of appeal filed by the Appellant. Where such issues as formulated do not arise from the grounds of appeal, as is the case with the Respondent’s lone issue formulated in this appeal, the issues will be deemed irrelevant and disregarded in the determination of the appeal or struck out. See Okonkwo vs. Okolo (1988) 2 N.W.L.R. (Pt. 97) 632; Oniah v. Onyia (1989) 2 S.C. (Pt. 1) 69; (1989) 1 N.W.L.R. (Pt. 99) 514; Ugo v. Obiekwe (1989) 2 S.C (Pt. II) 4; (1989) 1 N.W.L.R (Pt. 99) 566 and Sanusi vs. Ayoola (1992) 9 N.W.L.R. (Pt. 265) 275 at 291.'” PER IBRAHIM ALI ANDENYANGTSO, J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA 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
ADOLPHUS IGWE Appellant(s)
AND
SUNDAY MBADIWE Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgement of the Customary Court of Appeal of Imo state of Nigeria, sitting at Owerri in Suit No. CCA/OW/A/8/2013, Coram Hon. Justice F. C. Abosi (Presiding Judge), Hon. Justice M. E. Njoku (Judge) and Hon. Justice V. U. Okorie (Judge), delivered on 8th April, 2014.
The respondent herein claimed against the Appellant and his brother Edward Igwe (now deceased) at the Customary Court Okigwe as follows:-
I. A Declaration of Court that the Plaintiff is entitled to the exclusion of the defendants, to succeed to and enjoy the estate of his grandfather, Mbadiwe Nwuagiri, of Amuka Eziama, Amasato, Umulolo, Okigwe, within jurisdiction, which estate comprises the following pieces or parcels of land namely,
a. AlaUhu Ukpoli
b. Ala Afor
c. Ala Elugwu
d. Ala Oba
e. Ala Ntiriri
f. Ala Uzouhu
g. Ala Oparugo
h. Ala Ogbouzuzu, and
i. Ala Isi Mkpakoro
OR
in the alternative: An Order of Court for the partition of the said estate of Mbadiwe Nwaugiri between the Plaintiff and the Defendants in accordance with the native law and custom of Amasato Umulolo Community of Okigwe aforesaid.
II. N2,000.00 for the use and occupation of the said pieces or parcels of land, except Ala Isi Mkpakoro to the utter exclusion of the Plaintiff.
III. An Interim Order of Court, restraining the defendants, by themselves, their servants, agents, privies or workmen from further entry into, or in any other way whatsoever from interfering with the said parcels or pieces of land pending the determination of the above suit.
IV. A Perpetual Injunction restraining the defendants, by themselves, their servants, agents, privies or workmen from further entry into, or in any other way whatsoever from interfering with the Plaintiff’s occupation, enjoyment or user of the said piece or parcels of land.
The judgement of the Customary Court of Appeal of Imo State is at pages 160 – 174 of the Record of Appeal.
The facts of the case are as follows:-
The respondent (as plaintiff) sued the appellant (as defendant) before the Customary Court, Okigwe, claiming on the one hand, exclusive ownership of nine (9) pieces of land which he claimed belonged to his grandfather Mbadiwe Nwaugiri, or in the alternative an order of Court partitioning the same pieces of land, which he claimed belonged to his grandfather, between him and the Defendant among other reliefs. Before the parties came to Court, there were two separate judgments of native arbitrations and that of the Magistrate’s Court Okigwe in a criminal matter, which were admitted and formed part of the proceedings in this appeal.
Let me pronto dispose of the issue of the criminal proceedings of the Magistrate’s Court tendered and admitted as Exhibit C before the trial Customary Court Okigwe, and transmitted to the Lower Court. This exhibit was not handled by the Lower Customary Court of Appeal, Owerri and subsequently this Court. It is trite that the admission of proceedings of criminal cases in civil matters is wrong. See the case of ABUBAKAR & ANOR. VS. JOSEPH & ANOR. (2008) LPELR-48 (SC) page 49 paras C-F per Ogbuagu JSC, where it was held thus:-
“I will pause here to state on the decided authorities, that the admission of the said (Exhibit D) the criminal proceedings in a civil trial or proceeding, was wrong.
Such proceedings, was certainly inadmissible in any event. In other words, record of proceedings in a criminal proceeding, should not be admitted in evidence in a civil proceeding. See the cases of Oyewole vs. Kelani (1948) 12 WACA 327; Okunoren vs. U.A.C. Ltd. 20 NLR 25 at 27; Nwachukwu vs. Egbuchu (1990) 3 NWLR (Pt.139) 435 at 44 C.A.; Gabriel Agu vs. Nwakanma Atuegwu 21 NLR 83 at 84 and Hollington vs. Newthorn& Co. Ltd. (1943) 1 K.B. 587; (1943) 2 A.E.R. 35 just to mention but a few.”
Therefore the record of the Magistrate’s Court (Exhibit C) is hereby expunged from this proceeding.
The Plaintiff contended that his mother Nduwuaku also called Nwangbo was the daughter of Alaneme who was customarily left at home to procreate, thereby bringing him into existence and that in accordance with the native law and custom of Amuka Eziama Amasato Umulolo, he is the head or Aka-ji-ofor of Dilachi family of the Defendants. The Defendant sharply opposed the Plaintiff and denied liability contending that in their family tree nobody by the name Nwaugiri Mbadiwe ever existed. It was contended that the Plaintiff’s mother was not left to procreate as claimed but that she was married out thereby making the Plaintiff a maternal grandson who cannot be the head or Aka-ji-ofor of Dilachi family and who cannot share equally in the family’s estate.
Dissatisfied with the said decision, the Appellant filed a notice of Appeal dated 7th day of July, 2014, containing 5 grounds (see pages 175 – 180 of the Record of Appeal).
Shorn of their particulars, the grounds of Appeal are as follows:-
GROUND 1 ERROR IN LAW
The Customary Court of Appeal Owerri was wrong when it held thus:- The Arbitral Panel (which produced Exhibit ‘A’) was not set up to identify the applicable Customary law on the issue (prevailing customary law of Umulolo in respect of inheritance of a person who was not survived by a male child but left a daughter to procreate in the family). That issue came up as a subsidiary issue as it arose as the panel was trying to resolve the land dispute between the appellant and the respondent.
GROUND 2 ERROR IN LAW
The Customary Court of Appeal Owerri was wrong in law when it formulated issue that did not emanate from the grievance(s) of the respondent herein contained in the grounds of Appeal to that Court, and decided the Appeal based on that issue so formulated.
GROUND 3 ERROR IN LAW
The Customary Court of Appeal Owerri was wrong when it formulated the lone issue with which it determined the Appeal before it from the evidence before the Lower Court (Trial Customary Court) and/or the applicable law thereto where there is or are no grounds of appeal attacking such evidence, findings or errors in law.
GROUND 4 ERROR IN LAW
The Customary Court of Appeal Owerri erred in law when it embarked on a re-evaluation of the evidence and thereby arrived at a different conclusion about the status of the respondent as a ‘nwa-nwa’ (maternal grandson) from that of the trial Customary Court.
GROUND 5 ERROR IN LAW
The Customary Court of Appeal Owerri erred in law when it held ‘the lower Court was thereafter wrong when it proceeded as it did to declare that the appellant is anwa-nwa (a grandson of his maternal lineage) having come to the conclusion that the appellant’s mother was not married out. The lower Court was also wrong when it proceeded to declare that the appellant cannot be the head of Dilachi’s family as parties never joined issues on that head, which is a substantive course of action.’
The Appellant then, as relief, sought this Court to set aside the judgment of the Customary Court of Appeal Owerri and to uphold the judgment of the Customary Court Okigwe.
The Appellant’s Brief of Argument dated 31st October, 2016 and filed on 2nd November, 2016 was settled by U. I. Iheonu Esq. (Mrs) of Ubani & Co. Ebekuodike Chambers, No. 50 Owerri Road Okigwe, in which four issues were distilled for determination of this Appeal.
With the leave of this Hon. Court granted on 23rd January, 2018, the Respondent?s Brief dated 4th July, 2017 and filed on 5th July, 2017 was deemed properly and duly filed and served on the Appellant on 23rd January, 2018.
On the 24th October, 2018, when this Appeal was heard C. K. Ihekwoaba Esq. and Ijeoma Oriaku (Mrs.) Learned Counsel for the Appellant and Respondent respectively adopted their briefs of argument with the Appellant’s
Counsel urging us to allow the Appeal while the Respondent’s Counsel urged us to dismiss same.
The issues for determination are contained at pages 3 – 4 of the Appellant’s Brief of Argument as follows:-
1. Whether the Learned Judges of the Lower Court were right in law when they formulated an issue that did not emanate from any of the Respondent’s Grounds of Appeal and decided the Appeal based on such invalid issue so formulated.
2. Whether the Learned Judges of the Lower Court were right to have formulated an issue with which it(sic) decided the Appeal before it(sic) based on the findings of the Customary Court Okigwe, where such findings of the Court were not appealed against.
3. Whether the Learned Judges of the Lower Court properly directed itself (sic) in law when it (sic) embarked on a re-evaluation of the evidence and thereby arrived at a different conclusion about the status of the Respondent as a ‘nwa-nwa’ (maternal grandson) from that of the trial Customary Court, and held that the parties never joined issues on the head; status of Respondent in Dilachi family.
4. Whether the Learned Judges of the Lower Court rightly held that The Arbitral Panel, which produced Exhibit ‘A’ was not set up to identify the applicable Customary Law on the issue prevailing Customary Law of Umulolo in respect of inheritance of a person who was not survived by a male child but left a daughter to procreate in the family. The issue came up as a subsidiary issue as it arose as the panel was trying to resolve the land dispute between the Appellant and the Respondent.
The Respondent adopted all the issues formulated by the Appellant for determination of this Appeal. Learned Counsel for the Respondent however argued issue 4 first, thereafter issues 1 and 2 were argued together while issue 3 was argued separately.
I shall now take the issues as argued by the Learned Counsel for the parties.
ISSUE 1
Learned Appellant’s Counsel referred to the grounds of Appeal of the Respondent at the Lower Court at pages 76 – 80 of the Record of Appeal and contended that the Judges of the Lower Court formulated an issue which did not emanate from any of such grounds of Appeal and proceeded to decide the case based on such invalid issue. Learned Counsel referred to Grounds 1 and 2 of Appeal of the Respondent at the Lower Court and submitted that it is trite that issue(s) for determination must derive from Grounds of Appeal, otherwise it/they will be incompetent and would be struck out, referring to ONYEKWELU VS. ELF PETR. (Nig.) Ltd. (2010) 1 WRN1 at 4 Ratio 1. He then urged us to hold that the issue formulated by the Lower Court, upon which it based its judgement, did not derive from any of the 1st and 3rd Grounds of the Respondent’s Appeal and is therefore incompetent and then strike it out and dismiss the Appeal of the Respondent to the Lower Court and affirm the decision of the trial Customary Court Okigwe, relying on SHELL PETR. Dev. Co. (Nig.) Ltd. VS. EDAMKUE (2009) 47 WRN 1 at 8 Ratio 1.
Conceding that Courts can suomotu raise issue(s), learned Counsel submitted that in such situations parties must be given opportunities to address the Court on such issues so raised by the Court suomotu, otherwise, it would amount to a breach of the rule of fair hearing and furthermore, that such issue(s) so raised by the Court must emanate from the grounds of Appeal. He relied on VICTINO FIXED ODDS Ltd. VS. OJO (2010) 21 WRN 1 at 4 Ratio 5; UNDRIVE SUPERMARKET VS. AFRICAN REINSUR. CORP. (2010) 6 WRN 149 at 152 Ratio 1 and FEDERAL MINISTRY OF HEALTH VS. COMET SHOPPING AGENCIES LTD. (2010) 13 WRN 1 at 5 Ratio 1.
Learned Appellant’s Counsel contended that the 3rd ground of Appeal of the Respondent before the Lower Court complained about the decision of the trial Customary Court Okigwe as to the prevailing Customary Law and submitted thus:-
a) That the Respondent had distilled two issues for determination of the Appeal before the Lower Court i. e. Customary Court of Appeal Owerri which are at page 124 of the Record of Appeal.
b) That no issue was distilled from the 2nd ground of Appeal which should be deemed abandoned and therefore struck out.
c) That the second issue was not distilled from any ground of Appeal and was equally struck out (referring to page 166, lines 2 and 3 of the Record of Appeal).
d) That none of the grounds of Appeal was on land dispute, but all of them centred on the alleged prevailing Customary Law and the refusal of the Customary Court Okigwe to hold Exhibit ‘A’ as the custom.
e) That the 1st and 3rd grounds of Appeal left did not relate, even inferentially, to the issues of land dispute and or partitioning of lands between the parties which was what the Customary Court of Appeal Owerri raised and resolved.
f) That the 1st and 3rd grounds of Appeal of the Respondent at best relate to the Customary Law on succession and inheritance in Umulolo.
g) That the Customary Court of Appeal Owerri per Hon. Justice F. C. Abosi had earlier held that the stance of the learned Counsel to the Respondent in relation to the contention that the trial Court ought to have adopted the decision of the Arbitral Panel chaired by the Eze as the prevailing Customary law of Umulolo regarding inheritance of a person who was not survived by a male child but left a daughter in the family, was wrong, referring to page 166, lines 7 – 11 of the Record, which stance relates to or derives from grounds 1 and 3 and not ground 2 already struck out.
h) Learned Appellant’s Counsel recapped issues 1 and 2 formulated by the Respondent (as Appellant) in the Court below, and submitted that the Lower Court having resolved the first issue against the Respondent (as appellant), the only way out was to dismiss the Appeal, rather than formulating a fresh issue and determining the Appeal based thereon, which issue did not emanate from any of the grounds of appeal, and none of the parties was called upon to address the Court thereby infringing on the fundamental right to fair hearing. Relying on M.M.S. LTD. VS. OTEJU (2006) 10 WRN 182 at 186 Ratio 1, learned Counsel for the Appellant submitted that any issue which did not emanate from any ground of Appeal is incompetent.
On the partitioning formula of the Dilachi estate between the Appellant and the Respondent raised by the Lower Customary Court of Appeal Owerri, the learned Appellant’s Counsel submitted that it did not emanate from the grounds of Appeal. It was further submitted that this issue was based on the grounds of Appeal which had been struck out by the Lower Court. He referred to page 166 of the Record of Appeal and further submitted that no issue can be independent of the grounds of Appeal. In other words an issue without a ground of Appeal collapses, referring to JODI VS. SALAMI (2009) 27 WRN 24 at 34 Ratio 2.
ISSUE 2
The Learned Appellant’s Counsel contended that the lone issue formulated by the Customary Court of Appeal Owerri, styled land dispute, according to it, was formulated from the evidence before the trial Customary Court. However, that there is/are no ground(s) of Appeal attacking such evidence, findings or error in law, made by the Customary Court by the Respondent. Furthermore, it was submitted that the Customary Court Okigwe made specific findings of fact that the Respondent:-
i. was born out of wedlock, and is therefore a maternal grandson in Dilachi family;
ii. cannot be the head of Dilachi family or Aka-ji-Ofor of that family;
iii. notwithstanding his position in the Dilachi family, he cannot be shut out completely from the estate of Dilachi and therefore is entitled to some share in the estate but not equal share with the direct descendants of Dilachi family, referring to page 72 lines 15 – 25 of the Record of Appeal.
The Learned Appellant’s Counsel then submitted further that it is trite law that where findings of the Court is not appealed against as in this case, whether those findings are wrong or right, the party affected by it cannot be heard to complain, referring to AJIBARE VS. AKOMOLAFE (2012) 10 WRN 62 at 75 Ratio 11.
Learned Appellant’s Counsel emphasized that the Customary Court of Appeal, Owerri surprisingly dwelt on the facts not appealed against by the Respondent and made it the main plank of its judgment which was an error.
He contended that there was evidence before the trial Customary Court Okigwe at page 10 paragraphs 10 ? 35 of the Record of Appeal, which he quoted, and submitted that the trial Customary Court, after considering the evidence, was not persuaded and so refused to grant the claims of the Respondent, holding that the Respondent is a grandson of the Dilachi family. Furthermore, that the issue of the head or Aka-ji-ofor of the Dilachi family was very prominent before the Arbitral Panel and the trial Customary Court, Okigwe, and that there is a very strict limitation on the power of the Court of Appeal to reverse the decision of trial Courts on issues of facts. Again, it was submitted that the Appellate Court cannot embark on a re-evaluation of the evidence, thereby arriving at a different conclusion from that of the trial Court. However in the instant case the Lower Court defied all the known norms and re-evaluated the evidence, wrongly too, in order to arrive at a different conclusion as if it was a Court of first instance. He relied on ALAO VS. ADIGUN (2009) 12 WRN 94 at 102 Ratio 9.
Since the Respondent treated issues 1 and 2 together, I will consider his submissions on same at this stage.
The Learned Respondent’s Counsel Z.O.E Nwosu Jnr. Esq., submitted that the Lower Court did not formulate any grounds of Appeal and based its judgment thereon. Rather that the Lower Court in the course of its judgment, at page 169 lines 20 and 21 of the Record of Appeal made observations on what it considered to be the basic issue before the trial Customary Court. It is further argued that the basic issue identified by the Lower Court is hinged on Grounds 1 and 3 of this Appeal. He referred to pages 76 and 78 of the Record of Appeal and that it is also hinged on issue 1 of the Respondent (then appellant), referring to page 123 lines 28 and 29 of the Record of Appeal. He further submitted that a Court can reject, modify or reframe the issues formulated by the parties if in its view the issues formulated by the parties will not lead to the proper determination of the Appeal. He relied on BANKOLE VS. PELU (1991) 8 NWLR (Pt. 211) 523 at 537 para H, LEKWOT VS. JUDICIAL TRIBUNAL (1992) 2 NWLR (Pt. 276) 410 at 441 para F.
Learned Respondent’s Counsel submitted further that the Lower Court having identified the basic issue between the parties, proceeded to base its decision on same and that the issue identified by the Lower Court is not incompetent.
It is the submission of the learned Respondent?s Counsel that in cases tried in the Customary Court, what is important is the substance of the claim before the Court as gathered from the evidence in support of the claim i. e. the nature of the dispute between the parties. He relied on AGBASI VS. OBI (1998) 2 WRN (Pt. 536) 1 at 11 para C. He submitted further that the basic issue identified by the Lower Court emanated or arose from the evidence before the trial Court which is in line with the decision in ABE VS. AKAAJIME (1989) 4 NWLR (Pt. 113) 95 at 110, to the effect that legal technicalities are to be avoided in proceedings taking place in the Area Court (Customary Court), and that the whole proceedings should, where necessary, be considered in order to determine the matter in controversy.
Learned Respondent?s Counsel submitted that no rule of natural justice was breached by the Lower Court as no new issue was formulated or raised by it in the determination of the Appeal and so there was no basis for that Court to call on the parties to address it on same.
He further submitted that the Lower Court was right in varying or reversing the decision of the trial Customary Court on the status of the Respondent which was in line with the provision of Section 60 (a) of the Customary Court Law of Imo State No. 7 of 1984 as amended. He submitted further that the Lower Court exercised its powers under the said Law to vary or reverse the decision of the trial Customary Court as it was not in line with the current position of customary Law on the issue in contest in Imo state. He referred to page 170 lines 14 ? 19 of the Record of Appeal.
It is the further submission of the Respondent’s Counsel that though the Respondent did not specifically raise the issue of the current position of customary law in Imo state on the issue in contest between him and the appellant, he was still entitled to the benefit of same, and that apart from the express provision of Section 60 (a) of the Customary Court Law of Imo State, the Lower Court as a superior Court of Records is entitled in the exercise of its inherent jurisdiction, to grant to a party a relief which in the circumstance of the case, it is entitled to, relying on FATB VS. EZEGBU (1993) 6 NWLR (pt. 297) 1 at 15 para A.
Furthermore that since the conclusion arrived at by the trial Court was based on a wrong application of the present position of customary law on the issue in Imo State, the Lower Court as an appellate Court had the duty to interfere to ensure that the correct application of customary law ensues, relying on OJELEYE VS. REGD. TRUSTEES (2008) 15 NWLR (Pt. 1111) 520 at 534 para G.
ISSUE 3
It is the contention of the Appellant?s Counsel that the Respondent did not claim for the partitioning of Dilachi Family Estate on the basis of the constituent sub-families in the Dilachi Family neither did he contend in his evidence that Dilachi Family estate be partitioned but that the estate of Mbadiwe Nwaugiri be partitioned between him and the Appellant in accordance with the Native law and custom of Umulolo Community of Okigwe.
On the status of the Respondent, Learned Appellant counsel submitted that parties had joined issues thereon, which was decided upon by the trial customary Court of Okigwe that the Respondent is entitled to a share of the estate of Dilachi Family as a grandson, and that there was no appeal against the decision of the Customary Court on this point. He referred to the pronouncement of the trial Customary Court at page 10 lines 10 – 15; the evidence of DW 1, Edward Igwe who was the 1st Respondent in the Court below but died before the conclusion of the Appeal at page 26, line 30 , page 27 lines 5 – 10 and submitted that issues were joined on the status of the Respondent herein.
He submitted further that the Lower Customary Court of Appeal Owerri had a complete misapprehension of the verdict of the Customary Court, Okigwe on the status of the Respondent. In support of this, he referred to page 10 lines 10 – 15; page 26 line 30, page 27 lines 5 – 10 of the Record of Appeal and submitted that parties clearly joined issues on the status of the Respondent.
On the partitioning and the mode thereof of lands, Learned Appellant’s Counsel submitted that there was no issue for determination in the appeal before the Lower Customary Court of Appeal Owerri, and that it is the law that issue for determination in an appeal must arise from the Grounds of Appeal filed by the Appellant, otherwise such issue(s) will be deemed irrelevant and disregarded in the determination of the Appeal and consequently struck out, relying on ONYEKWELU VS. ELF PETR. (Nig.) LTD. (2010) 1 WRN 1 at 4 Ratio 1.
Learned Appellant’s Counsel then urged this Hon. Court to hold that the Customary Court of Appeal Owerri improperly directed itself in law, and to hold also that parties joined issues on the status of the Respondent herein and reverse the decision of the Lower Court and restore the judgment of the trial Customary Court Okigwe.
For the Respondent, it is submitted on this issue 3 that the Lower Court did not embark on a re-evaluation of the evidence which led it to arrive at a different conclusion from that of the trial Court about the status of the Respondent as ‘nwa-nwa’ (maternal grandson).
It is contended that what the Lower Court did was to rectify and correct the error gone into by the trial Court in giving its decision contrary to the current position of the Customary Law in Imo state. He referred to page 170 lines 4 – 21 of the Record of Appeal and submitted that the current position of customary law in Imo state on the subject matter in contest between the parties affected both the status and headship of the Respondent in the Dilachi Family respectively, and that the Lower Court rightly held at page 170 lines 19 – 21 of the Record of Appeal that the parties never joined issues on the headship of Dilachi Family, which is a substantive cause of action which none of the parties claimed.
It is further submitted for the Respondent that the Lower Court neither decided on the partitioning of any piece or pieces of land between the parties nor on the mode of partitioning. This Court is urged to discountenance the sub-issues of the Appellant in this regard.
ISSUE 4
On this issue, the Appellant’s learned Counsel contended and submitted as follows: –
a) that it is clearly stated on page 1 paragraph 2 of Exhibit ‘A’ contained at page 82 of the Record of Appeal thus:-
The dispute arose as to who is the rightful person to inherit Alaneme’s landed property
b) That it is clearly stated on page 13 paragraph 3 of Exhibit ‘A’ contained at page 94 of the Record of Appeal thus: –
(i) Respondent herein is the rightful head of Dilachi family.
(ii) That as the head of the family, he should be given chance to choose among their parcels of land any three portions he likes, among other things.
c) That the Arbitral Panel identified the alleged applicable customary Law of Umulolo in respect of Inheritance which was why it positioned the Respondent herein as the rightful head of Dilachi Family, thereby entitled to preferential choices and treatment as contained in the said Exhibit ‘A’.
d) That the Respondent urged the Customary Court Okigwe to uphold the decision of the Arbitration Panel, Exhibit ‘A’ that the Respondent is the son of Alaneme Mbadiwe and head of Dilachi family.
e) That the trial Customary Court refused to uphold the alleged prevailing Customary Law of Umulolo in respect of inheritance.
f) That following the refusal stated above, the Respondent made it his first ground of Appeal to the Customary Court of Appeal Owerri as it is contained at pages 76 ? 77 of the Record of Appeal.
In summary, it was submitted that:-
1. The Learned Judges of the Lower Customary Court of Appeal failed in their duty to appreciate the fact that the Arbitral Panel that produced Exhibit ‘A’ was purposely set up to identify the applicable Customary Law on the issue i. e. the prevailing customary Law of Umulolo in respect of inheritance of a person who was not survived by a male child but left a daughter to procreate in the family. The issue did not come up as a subsidiary issue.
2. In their anxiety to enter judgment for the Respondent, the Judges of the Lower Court failed to note the Respondent’s Grounds of Appeal and proceeded to formulate an issue that did not emanate from any of the Respondent’s Grounds of Appeal, and decided the Appeal based on such invalid issue so formulated.
3. The Learned Judges of the Lower Court were not right to have formulated an issue with which they decided the Appeal before them based on the findings of the Customary Court Okigwe, where such findings of the Court were not appealed against.
4. The Learned Judges of the Lower Court improperly directed themselves in law when they embarked on re-evaluation of the evidence and thereby arrived at a different conclusion about the status of the Respondent as a ‘nwa-nwa’ (maternal grandson) from that of the trial Customary Court, and erroneously held that the parties never joined issues on the head: status of the Respondent in Dilachi family.
5. The Appeal should be allowed for the above reasons, the judgment of the Lower Court set aside and the Respondent’s case (Appeal to the Lower Court) be dismissed.
For the Respondent, it is submitted that though the Arbitral Panel which produced Exhibit ‘A’ was not set up to identify the applicable Customary Law on the issue (prevailing Customary Law of Umulolo in respect of inheritance of a person who was survived by a male child, but left a daughter to procreate in the family) the Lower Court was in error when it held that the above issue came up as a subsidiary issue as it arose as the Panel was trying to resolve the land dispute between the Appellant and the Respondent. It was further submitted that it was the issue of inheritance that necessitated the setting up of the Panel in the first instance. The learned Respondent’s Counsel quoted paragraph 2 of the Panel’s Report at page 82 lines 4 and 5 of the Record of Appeal to support his submission. He again cited Section 11 (d) of the Traditional Rulers and Autonomous Community Law No. 6 of Imo state 2006, and submitted that the Eze of an autonomous Community is the custodian of the custom and tradition of the autonomous Community and that the Eze with or without his cabinet is a competent person/body to declare the prevailing customary Law within his/their Community and once declared it subsists and remains valid, whether or not the body was set up for the purpose of declaring what the customary law of the Community is. He then urged this Court to so hold.
At the end of his submission, Learned Respondent’s Counsel urged us to dismiss this Appeal for the following reasons: –
(i) The custom as declared by the Panel consisting of the Traditional Ruler of the Parties with his cabinet is authoritative and binding notwithstanding that the Panel was not set up to identify the prevailing customary law of their Community.
(ii) The Lower Court did not formulate any new issue in determining the Appeal before it, but having identified the basic issue between the parties, reframed the issue for a proper determination of the Appeal.
(iii) No rule of natural justice was breached as no new issue was formulated by the Lower Court.
(iv) The Lower Court was right in examining the proceedings before the trial Customary Court in order to identify what the basic issue between the parties was, in order to arrive at a proper determination of the Appeal.
(v) The Lower Court was right in varying the decision of the trial Court in order to bring it in line with the current position of customary law on the issue between the parties.
(vi) The Lower Court did not embark on a re-evaluation of the evidence before the trial Court.
RESOLUTION OF THE ISSUES
Having dealt with the submissions of the learned Counsel on both sides, I hereby go straight to the resolution of the issues.
ISSUE 1
The first ground of the Appeal at the Lower Customary Court of Appeal, Owerri is a complaint against the refusal of the trial Customary Court Okigwe to accept the decision of the Arbitration Panel of HRH Eze G. I. Osu which was admitted and marked as Exhibit ‘A’ at the trial Customary Court, as the prevailing customary law of Umulolo Community.
The second ground of Appeal questioned the decision of the Customary Court, Okigwe that the Appellant at the Lower Court was/is a grandson and would share in the estate of Dilachi Family in that capacity with the defendants.
The third ground complained about the decision of the trial Court in respect of the prevailing customary law of Umulolo Community.
From these grounds of Appeal, the Appellant (Respondent herein) distilled two issues for the determination of the Appeal before the Lower Customary Court of Appeal, Owerri which issues are contained at page 123 of the Record of Appeal set out hereunder as follows:-
(i) Whether the Lower Court was wrong in failing to adopt Exhibit ‘A’ the decision of an arbitration panel consisting of the Traditional Ruler of the parties and all the traditional heads of villages and kindred of his Community as the authoritative statement of the custom of the parties on the issue in contest.?
(ii) whether the failure of the Lower Court to adopt Exhibit ‘A’ as the authoritative statement of the customary law of the parties occasioned a miscarriage of justice against the plaintiff/appellant.?
These issues were reproduced by the Lower Customary Court of Appeal, Owerri on pages 162 – 163 of the Record of Appeal.
The Lower Court after hearing the Appeal on the 20th day of June, 2013 reserved judgment to 24th July, 2013. However, on that day the Lower Court raised an issue of the competence or otherwise of a Traditional Ruler to determine the applicable customary law within his jurisdiction and ordered parties to address it on the issue so raised, and the case was adjourned to 11th February, 2014 for adoption of addresses of Counsel as ordered by the Lower Court, after which judgment was reserved to 8th April, 2014.
In reviewing the submissions of Counsel, the learned Judges of the Lower Customary Court of Appeal at page 164 stated that the learned Respondent’s Counsel (learned Appellant’s Counsel herein) in his further brief ‘raised the issue of jurisdiction of the Court (i. e. Lower Court) to hear the Appeal as the issues canvassed are in breach of Section 282(i) of the 1999 Constitution as amended.’ I sought in vain for this submission in the further Respondent’s Brief of argument. I cannot see the relevance of this statement. Rather learned Respondent’s Counsel raised the issue of the incompetence of a ground of Appeal challenging findings of fact before a Customary Court, relying on NNADOZIE VS. EMEH (2010) LRCCA 163 and GOLOK VS. DIYALPWAN (1990) 3 NWLR (Pt. 139) 411. As this issue has no complaint against it, I say no more on it.
Now, the Lower Customary Court of Appeal Owerri reviewed the grounds of Appeal and came to a conclusion, rightly in my humble view, that no issue was distilled from Ground 2 of the Grounds of Appeal which was declared abandoned and therefore struck out by the Lower Court.
Issue 2 was declared by the Lower Court not to have been distilled from any ground of Appeal and was equally struck out. The Lower Court was left with only two grounds of Appeal and one issue distilled therefrom, which was adjudged sufficient for the determination of the Appeal as it was derived from the two remaining grounds of Appeal.
For the avoidance of doubt, the issue left to be resolved by the Lower Customary Court of Appeal reads:-
(i) whether the Lower Court was wrong in failing to adopt Exhibit ‘A’, the decision of an arbitration panel consisting of the Traditional Ruler of the parties and all the traditional heads of villages and kindred of his Community as the authoritative statement of the custom of the parties on the issue in contest.
On this issue, the Lower Court reviewed the submissions of the Appellant’s Counsel, now the Respondent’s Counsel, and held as follows: –
‘Counsel for the Appellant had contended that the Lower Court ought to have adopted the decision of the arbitral panel chaired by the Eze as the prevailing customary Law of Umulolo in respect of inheritance of a person who was not survived by a male child but left a daughter to procreate in the family. I think that Counsel for the appellant is wrong in the stance he took. This is because the arbitral panel was not set up to identify the applicable customary law on the issue. That issue came up as a subsidiary issue as it arose as the arbitral panel was trying to resolve the land dispute between the appellant and the Respondents. It will be noted that no decision was reached on that subsidiary issue by the arbitral panel…’
The Lower Court proceeded further to reproduce portions of the contents of Exhibit ‘A’ and thereafter held that the decision of the arbitral panel contained in Exhibit ‘A’ did not represent a declaration of the customary Law of the Umulolo Community.
In my humble view, this was the point at which the Appeal could have been dismissed on this issue, being the only remaining issue. But the Lower Court proceeded ?to have a look at the Record of Appeal and see whether the Lower Court held as the appellant is contending in this Court.
The Lower Court then reviewed the Exhibit ‘A’, remarking that the trial Court went off tangent and delved into issues not called for in respect of the headship or ‘Aka-ji-ofor’ of Dilachi family. The Court below gave as its reason the fact that ?none of the parties claimed such a relief and it cannot be said to be necessary for proper and effective resolution of the issues between the parties. Then, follows the holding which formed ground 2 and issue 2 of the Appellant in this Appeal. I reproduce same for clarity and better understanding: This is because the BASIC ISSUE before the Court below was entitlement to estate of Dilachi. The Appellant is contending that he is entitled to succeed to the estate of Alaleme his mother’s father. The Respondents countered by saying that the Appellant is not a member of their family his mother having being (sic) married out to Ehirim Chukwuleke of Isieke Agbabu.
The basic issue then before the lower Court was whether the appellant’s mother was married to the said Ehirim Chukwuleke. If the answer is in the positive, then the Appellant is not entitled to his claim, and if in the negative, the Appellant succeeds in at least his claim to partition of the family estate. It has nothing to do with his status in the family of Dilachi.
From the above, it is clear that the new or fresh issue formulated by the Lower Court is not based on any of the remaining two grounds of Appeal. It is also clear that the Lower Customary Court of Appeal did not invite Counsel to address it on the new issue as it did when it raised an issue on the competence or otherwise of the Eze to solely determine on the customary Law of the Umulolo Community.
It is trite and settled law that issues for the determination of appeal must derive or flow from the ground of appeal of the appellant. See ONYEKWELU VS. ELF PETROLEUM (NIG.) LTD. (2009) LPELR-2733 (SC) 6 PARA C-D, where the Supreme Court held as follows:-
‘It is elementary that issues formulated for determination in an appeal must arise from the grounds of appeal filed by the Appellant. Where such issues as formulated do not arise from the grounds of appeal, as is the case with the Respondent’s lone issue formulated in this appeal, the issues will be deemed irrelevant and disregarded in the determination of the appeal or struck out. See Okonkwo vs. Okolo (1988) 2 N.W.L.R. (Pt. 97) 632; Oniah v. Onyia (1989) 2 S.C. (Pt. 1) 69; (1989) 1 N.W.L.R. (Pt. 99) 514; Ugo v. Obiekwe (1989) 2 S.C (Pt. II) 4; (1989) 1 N.W.L.R (Pt. 99) 566 and Sanusi vs. Ayoola (1992) 9 N.W.L.R. (Pt. 265) 275 at 291.’
Also as I noted above, the Lower Court raised the issue suomotou and determined the case in favour of the respondent without calling on the appellant?s counsel to address it thereon. This attitude, has on several occasions in a plethora of cases, been frowned upon by our apex Court, one of which is VICTINO FIXED ODDS LTD. VS. OJO (2010) LPELR-3462 (SC) PP15-16 PARA C-D where it was held as follows:-
“There is no doubt about it that the trial judge descended into the arena when he suomotu, in his judgment, raised the issue of the composition of the Arbitration Penal and designation of its members and resolved them in favour of the appellant without affording the respondents’ counsel the opportunity to address him on the point. The trial judge had no duty to bridge the yawning gap in the case of a party to the proceedings. See: Ajuwon vs. Akanni (1993) 9 NWLR (Pt. 316) 182, Salubi vs. Nwariaku (1997) 5 NWLR (Pt. 505) 442. Even then, it is manifest from the record that the issue taken suomotu by the trial judge was not part of the grounds upon which the order for certiorari was sought to quash the decision of the Arbitration Panel. There was therefore a fundamental misdirection by the trial judge who made out a case in favour of the appellant without hearing the respondents on the issue. It was not his business to do so. See: Olorunfemi vs. Asho & Ors. (1999) 1 NWLR 1 at 9. It is trite that a Court should not set up for the parties, a case which is different from the one set up by the parties themselves in their pleadings and/or their evidence. See: Oniah vs. Onyiah (1989) 1 NWLR (Pt. 99) 514; Ojo-Osagie vs. Adonri (1994) 6 NWLR (Pt. 349) 131.”
From the above authorities, this lone issue is hereby deemed irrelevant and is accordingly disregarded and struck out. With the exit of the only issue for determination, this appeal must of necessity be determined at this stage as to continue with the remaining issues will be a mere academic exercise.
The appeal is hereby allowed as being meritorious. The judgment of the lower Customary Court of Appeal, Owerri is hereby set aside. I hereby restore the judgment of the trial Customary Court, Okigwe with the orders therein made. I award cost assessed at N30,000.00 only in favour of the appellant and against the respondent.
THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I had the advantage of reading, in draft, the lead judgment just delivered by my learned brother, I.A. Andenyangtso JCA and I agree with his reasoning and conclusions that the appeal is meritorious and should be allowed.
I too allow it and abide by the consequential orders in the lead judgment.
Appearances:
C.K. Ihekwoaba, Esq. (whose Brief was settled by U. I. Iheonu, Esq)For Appellant(s)
Ijeoma Oriaku (Mrs). (whose Brief was settled by Z.O.E Nwosu Jnr., Esq.)For Respondent(s)
