AMADI & ANOR v. AMADI & ANOR (2020)

AMADI & ANOR v. AMADI & ANOR

(2020)LCN/14506(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, July 16, 2020

CA/PH/108/2016

Before Our Lordships:

Isaiah Olufemi Akeju Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Between

LUCKY AMADI 2. OKECHUKWU AMADI (For Themselves And On Behalf Of Other Children Of Late Chief Godson O. Amadi Of Rumuaghaolu Town) APPELANT(S)

And

1. PRINCE OHAHURU AMADI 2. KELVIN OMUNNAKWE AMADI RESPONDENT(S)

RATIO

FORMULATION OF CUSTOMARY LAWS

In AGBAI & ORS VS. OKOGBUE (1991) 7 NWLR (pt. 204) 391, Nwokedi, JSC explained the reason thus:
“… Customary laws were formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root. The doctrine of repugnancy in my view afford the Courts the opportunity for fine tuning customary laws to meet changed social conditions where necessary, more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When however customary law is confronted by a novel situation, the Courts have to consider its applicability under existing social environment.” PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the Appellants against the judgment of Rivers State High Court delivered on 16/12/2015.

The Claimants at the lower Court are now the Respondents in this appeal.
The Claimants had initiated an action by a Writ of Summons dated 25/1/2010, against the Defendants (now Appellants in this Court) seeking the following reliefs:
1. A declaration that the Claimants who reside at No. 55 Rumuagholu Road, Rumuagholu Town Obio/Akpor Local Government Area of Rivers State, being their matrimonial home and family house of late Chief Godson O. Amadi, are entitled to its peaceful occupation and enjoyment without any interference of any kind.
2. An order of perpetual injunction restraining the Defendants and their agents from carrying out acts or doing any act contrary to the Claimant’s peaceful occupation and enjoyment of the property described as No. 55 Rumuagholu Road, Rumuagholu.

The Case of the Claimants as summarised by the learned trial Judge reads thus:
1. That the 1st Claimant is the widow of late Chief Godson O.

Amadi and the 2nd and 3rd Claimants are his sons.
2. That 1st and 2nd Defendants are also sons of late Chief Godson O. Amadi.
3. That during the lifetime of their husband and father, Claimants lived with Chief Godson O. Amadi at No. 55 Rumuagholu Road as the matrimonial home and family house, and continued to live there after his death.
4. That the 1st Claimant’s status as the 3rd wife of late Chief Godson O. Amadi was determined during the lifetime of late Chief Godson O. Amadi.
5. That the Defendants want to eject and or force the Claimants out of the house.

In response, the Defendants filed Statement of Defence and Counter-Claim asserting inter alia thus:
1. That the 1st Claimant was not the wife of late Chief Godson O. Amadi and 2nd and 3rd Claimants are not his sons.
2. That the 1st Claimant although lived with late Chief Godson O. Amadi at one point or the other, spanning some years before his death Chief Godson O. Amadi never married the 1st Claimant.
3. That 1st Claimant’s matrimonial home is not No. 55 Rumuagholu Road and that 1st Claimant imposed the name of Chief Godson O. Amadi on herself and

compelled people to address her as such.
4. That late Chief Godson O. Amadi did not provide any accommodation for the Claimants as they are complete strangers.
5. That 1st Defendant is the first son of Chief Godson O. Amadi and therefore the owner of the house where he lived before his death, under Ikwerre Native Law and Custom.
6. That 2nd and 3rd Claimants cannot participate in the burial of late Chief Godson O. Amadi nor inherit any of his properties as they are not his children.

The Defendants in their Counter-Claim sought the following reliefs:
1. A declaration that the 1st Claimant was never validly married to late Chief Godson O. Amadi.
2. A declaration that the 2nd and 3rd Defendants are not the children of late Chief Godson O. Amadi.
3. A declaration the Claimants are not entitled to the property they are claiming in this Suit or any property owned by late Chief Godson O. Amadi.
4. An order of Court directing the Claimants, their agents or anybody, whosoever, occupying the house of late Chief Godson O. Amadi which he last occupied before his death, to vacate same for the 1st Defendant who is the bonafide

owner.
5. An order of perpetual injunction restraining the Claimants either by themselves or through their agents or privies from interfering with 1st Claimant’s headship of Chief Godson O. Amadi’s family and or the general peace and activities of the said deceased family.

The learned trial Judge after hearing the parties gave judgment dismissing the Defendants’ Counter Claim and granting the Claimants’ claim in the following terms:
1. It is declared that the Claimants are entitled to the peaceful occupation and enjoyment without interference of any kind, of the property No. 55 Rumuagholu Road, Rumuagholu Town Obio/Akpor Local Government Area of Rivers State, being their matrimonial house and family house of late Chief Godson O. Amadi.
2. An order of perpetual injunction is hereby issued restraining the Defendants and their agents from carrying out acts or doing any act contrary to the Claimant’s peaceful occupation and enjoyment of the property No. 55 Rumuagholu Road, Rumuagholu.
3. The Defendants/Counter-Claimants shall pay cost of N1,000,000.00 in favour of the Claimants.

Miffed by the above decision, the Appellants appealed to this Court vide their Notice of Appeal filed on 13/1/2016 which was later amended.
After transmission of Record of Appeal to this Court, parties to this Appeal filed and exchanged Briefs of Arguments.

SUBMISSIONS OF COUNSEL
AMENDED APPELLANTS’ BRIEF OF ARGUMENT
The Appellants filed an Amended Brief on 22nd January, 2019 and deemed properly filed on 24/1/2019. In the said brief, the Appellants donated three issues for determination to wit:
ISSUE 1
Whether the trial Court was right to grant Respondents’ claims but dismissed the Appellants’ Counter-claim on grounds that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain, and unenforceable, and are issues that ought to have been raised during the life time of Chief Godson O. Amadi? (Encompassing Grounds 1, 2 and 4 of the Grounds of Appeal).
ISSUE 2
Whether the trial Court was right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre native law and custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the

property of late Chief Godson O. Amadi? (Arising from Ground 3 of Grounds of Appeal).
ISSUE 3
Whether the trial Court was right in awarding cost of N100,000.00 against the Appellants and in favour of the Respondents? (Ground 5 of Grounds of Appeal).

ISSUE 1
Whether the trial Court was right to grant Respondents’ claims but dismissed the Appellants’ Counter-claim on grounds that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain, and unenforceable, and are issues that ought to have been raised during the life time of Chief Godson O. Amadi? (Encompassing Grounds 1, 2 and 4 of the Grounds of Appeal).

On issue 1, Appellants’ Counsel submitted that the Respondents’ case at the lower Court as shown at paragraph 3 and 4 of their claim, were hinged on three points. These are:
(i) That Mrs. Sylverline Ahuruele Amadi is the wife and widow of late Chief Godson O. Amadi and that the 1st and 2nd Respondents are the children of late Chief Godson O. Amadi.
(ii) That Sylverline Ahuruele and Chief Godson O. Amadi lived at No. 55 Rumuagholu Road, Rumuagbolu Town as their matrimonial

home until the death of late Chief Godson O. Amadi and that she and her children have continued to live there after the death of late Chief Godson O. Amadi and
(iii) That Mrs. Sylverline Ahuruele Amadi contracted a customary marriage unto late Chief Godson O. Amadi.

In support of the Respondents case, Sylverline Ahuruele Amadi said in cross-examination that her marriage to Chief Godson O. Amadi took place in her late father’s (Elder Mathew Woko) Compound in the presence of late Ijego Nyebuchi, Elder Bartholomew Agonu, late Onunwo Obuzor and other members of her family. She had 5 children. Two were for late Chief Godson O. Amadi and 3 were for late Alfred Nyeche (her former husband).

Counsel contended that it was the Respondents that raised the issue that they were the wife and children of late Chief Godson O. Amadi after his death in their claim and the Appellants denied this claim and explained the relationship that existed between the Respondents and late Chief Godson O. Amadi. Despite these state of their pleadings, the lower Court held that the issue should have been resolved when late Chief Godson O. Amadi was alive and so it is

unconstitutional to raise it when he is dead.

Counsel submitted that the lower Court was wrong in its conclusion because the issue of paternity was raised by the Respondents and Appellants merely replied. That issues of paternity usually arise after the death of a deceased person. Reliance was placed on the case of IDAHOSA VS. IDAHOSA (2011) ALL FWLR (pt. 568) 983 at 997.

In this case the issue arose after the death of late Chief Godson O. Amadi. While late Chief Godson O. Amadi was alive the Appellants knew Mrs. Sylverline O. Amadi as his concubine and the Respondents as children of her previous marriage. Counsel concluded that these pieces of evidence were ignored by the lower Court and this is fatal to the judgment of that Court.

Counsel recalled the claims of the Respondents for declaration and injunction and referred to paragraphs 1 to 4 of the Respondents’ pleadings. Counsel reproduced paragraphs 1 to 3 of the Appellants’ pleadings. He contended that Mrs. Sylverline Ahuruele Amadi lived in her maternal home but was a concubine and paramour of late Chief Godson O. Amadi. He contended that the Respondents were her children but

contended that they were not natives of Rumuagbolu town. That under Ikwerre Native Law and Custom, Sylverline Ahuruele Amadi was not the wife of late Chief Godson O. Amadi because no bride price was paid to marry her. As a result, the Respondents are the children of her previous marriage. That the said Sylverline Ahuruele Amadi did not live at No. 55 Rumuagbolu Road as she remained unmarried after 4 previous marriages. The said Sylverling A. Amadi surreptitiously imposed the name Amadi on herself and compelled people to address her as such. Based on these facts, the Appellants counter claimed for declaration, injunction and possession of the property.

At the trial, Sylverline A. Amadi did not give evidence of the date of the marriage, bride price paid and those present at the marriage allegedly contracted under native law and custom. While agreeing that there is rebuttable presumption of marriage where a man and woman have lived for a long time, the important thing in customary law marriage is the payment of bride price. He relied on NICKAF VS NICKAF Suit No. CA/K/79/84 (Unreported). Counsel contended that the fact that a woman lives with a man or bears

children for him does not per se constitute a customary law marriage. He relied on SAKA LAWAL-OSULA VS. LYDIA MODUPE LAWAL-OSULA (1993) 2 NWLR (PT. 274) 158 and CHAWERE VS AIHENU (1935) 12 NLR 4.

He referred to the testimony of Sylverline A. Amadi as CW1, and contended that it did not disclose the vital ingredients of customary marriage and this failure was fatal to the case of the Respondents. In the 2 cross-examination of the said CW1, (Sylverline A. Amadi) said that DW4, a member of late Chief Godson O. Amadi witnessed the marriage. When DW4 was subpoenaed, he said Sylverline A. Amadi is a known concubine of late Chief Godson O. Amadi but was never married to him. DW4 said that he did not attend the marriage ceremony, for these reasons, the lower Court should not have accorded her evidence any iota of credit. He relied on ATAGBOR VS. OKPO (2013) ALL FWLR (pt. 680) 1362 at 1377 paragraphs G-H.

Counsel contended that a look at the issues raised by the parties show that they did not canvass the unconstitutionality, vainness and unenforceability of the claims before the lower Court. Counsel referred to the claims of the Appellants and Respondents before

the lower Court. That the Appellants’ contention that Sylverline A. Amadi is not the wife of late Chief Godson O. Amadi was borne out of their pleadings and the evidence of their independent witnesses particularly DW3. DW3 categorically asserted that the Respondents are his father’s children who Sylverline A. Amadi ran away with to the house of late Chief Godson O. Amadi about 1980. Counsel also referred to the evidence of DW4 that Sylverline A. Amadi was the concubine of the deceased.

Counsel submits that contrary to the assertion by the lower Court that the Respondents’ case was simple, it was actually complex when you look at the entire pleading and evidence of the parties. Reference was made to INYANG VS. EKPE (2011) ALL FWLR (pt. 556) at 584, paras. C-D. The case was also made complex by the fact that the grant of possession and perpetual injunction implies the resting of title of the property to the Respondents. See OGUNLEYE VS. SAFEJO (2010) ALL FWLR (pt. 523) 1889 at 1915 paras. D-E.

Counsel reiterated that it emphasized this complexity at the lower Court when he argued that mere possession and occupation does not translate

to title but that Court did not see the merit of the argument.

He argued that the trial Court misread the claim because of if it had applied the internal rule of Construction to the claims before it, the Court would not have misread the claims. He referred to DALEK NIGERIA LTS VS. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (2007) ALL FWLR (pt. 364) 204 at 236 paras. D-E. Counsel then urged this Court to hold that a wholistic look at the claim of the Respondents before the lower Court shows that it was a claim for ownership of No. 55 Rumuagbolu Road which the lower Court has now vested on the Respondents.

Counsel submitted that title must have a starting point and that of possession that can join to title if admitted is dejure exclusive possession and not mere occupation. Reference was made to OYEKAN VS. OYEWALE (2012) ALL FWLR (pt. 623) 1991 at 2009 paras. D-G. That if the trial Court had considered this principle of law, it would have decided the issue of ownership of the property before giving judgment to the Respondents. Counsel referred to LEWIS VS. OBAWOLE (2012) ALL FWLR (pt. 636) 563 at 575.

Counsel submitted that though the

Respondents asked for peaceful occupation and enjoyment of the property, they did not ask for perpetual injunction. He submitted that the law is that perpetual injunction cannot be granted to a person against the interest of the real owner of the property for a person to get a perpetual injunction, he must prove exclusive possession to the property. The failure to determine ownership first before possession, Counsel submits occasioned a miscarriage of justice. He referred to CHINWEUBA VS. EZEBILO (1995) 1 NWLR (pt. 511) 108.

Counsel asserted that the conclusion of the lower Court that the Appellants’ case was “unconstitutional, vain and unenforceable” were raised suo motu and the parties were not called upon to address the Court. The lower Court did not also state how it came to that conclusion. Counsel asserts that the lower Court did not apply correct principles of law in evaluation of evidence. That it was not necessary for the late Chief Godson O. Amadi to disown the Respondents in his life time before the defence of Appellants become tenable.

The fact that the Respondents took care of late Chief Godson O. Amadi in his life time

and the fact that DW4 said the 2nd Respondent was the son of the deceased did not amount to proof of the marriage. Counsel argued that grant of declaratory reliefs and subject to the discretion of the Court and not on the weakness of the Defendants’ case. A declaratory relief is granted on the basis of the facts and circumstances presented before the Court. He referred to PROF. F. N. NDILI VS. MR. J. M. AKINSUMADE & ANOR (2005) FWLR (pt. 5) 750 at 796 paras. E-F.

Counsel submitted that the case of the Respondents does not disclose exclusive possession to amount to grant of a declaration. Trial Court failed to reckon with the fact that a party seeking declaration must prove exclusive title. Reference was made to: AJERO VS. UGORJI (1999) 10 NWLR (pt. 621) 1 at 4. Counsel stated further that a declaration and injunction can only be granted when the facts justifying the award are disclosed before the Court. He referred to:- (i) EGBUNIKE VS. SIMON MUONWEOKWU (1962) 1 SCNLR 97 and (ii) Lesere Idaayor vs. Sampson Tigidam (1995) 2 NWLR (Pt. 377) 359 at 380 – 381, paras. H-E.

Counsel further submitted that to make declaratory grant, the Court

must look at all the evidence before it. He called in aid the case of OLUJINLE VS. ADEAGBO (1988) 2 NWLR (pt. 75) 238. Counsel also contended that the Court failed to advert its mind to the standard of proof in such a case.

To Counsel in the eyes of the law, a marriage has a form and ceremonies associated with it. If these are not complied with, there is no marriage. He referred to IDAHOSA VS. IDAHOSA (2011) ALL FWLR (pt. 568) 983 at 1006, paras. C-D.

Whether the trial Court was right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre native law and custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of late Chief Godson O. Amadi? (Arising from Ground 3 of Grounds of Appeal).
Here Counsel referred to paragraphs 2 and 8 of the pleadings of the Appellants and the evidence led to contend that Sylverline A. Amadi was not the wife of late Chief Godson O. Amadi under Ikwerre Native Law and Custom and that by virtue of the said custom, the 1st son of the deceased inherits his house. Counsel asserted that under the said custom a woman who divorces the

husband remains the wife of the divorced husband until the bride price is returned. He relied on NWANGWA VS. UBANI (1997) 10 NWLR (pt. 526) 559 at 569 to contend that these customs have been judicially noticed.

Counsel contended that the existence of these custom were corroborated by the evidence of DW3 a chief and DW4 an elder who subpoenaed to give evidence. To Counsel the trial Court discountenanced these pieces of evidence when it proceeded to hold that the Appellants have not proved the custom. Counsel submitted that the trial Court ignored the judicial and statutory authorities relating to proof of a custom. He referred to Sections 70, 73(1) and 74 of the Evidence Act, 2011. He contended that by virtue of this provision family elders and chiefs qualify as experts in native law and custom- and can express opinion on it. That the trial Court had a duty to evaluate their evidence and not pick and choose which evidence to evaluate. He referred to the case of ADEBAYO VS. ADUSEI (2005) ALL FWLR (pt. 240) 152 at 176-177, paras. G-A. He asserted in further proof of this contention in the case of IGWEMADU VS. IGWEMADU (2011) ALL FWLR (pt. 573) 1980 at

2019, that custom is in mirror of accepted usage.

Finally on this point, Counsel referred to the evidence of DW2 wherein he said that by Ikwerre Native Law and Custom, the first son inherit the house of his late father. He urged that the trial Court erred by refusing to evaluate the evidence of DW3 and DW4 on the custom of Ikwerre people and this occasioned a miscarriage of justice. He relied on ANYAKORA VS. OBIAKOR (2005) ALL FWLR (pt. 268) 1662 at 1680, paras. F-G. He urged this Court to resolve issue 2 in favour of the Appellants.

ISSUE 3
Whether the trial Court was right in awarding cost of N100,000.00 against the Appellants and in favour of the Respondents? (Ground 5 of Grounds of Appeal).
Under this issue, Appellants’’ Counsel contends that the amount of N100,000.00 cost did not follow the laid down principles for the award of cost. He referred to Order 49 Rule 1 of the Rules of the High Court, applicable in Rivers State. He contended that costs follow event and in deciding whether the award of cost was right, the guiding principles include the conduct of the parties, success of the party and pre-trial offer of the

Defendant. He referred to the cases of AGIDIGBI VS. AGIDIGBI (1996) 6 NWLR (pt. 454) 300 and OZIGBU ENGINEERING CO. LTD. VS. IWUAMADI (2011) ALL FWLR (pt. 553) 1975 at 2001-2002, paras. F-A.

Award of cost is a judicial discretion and usually based on established principles and not on benevolence or sympathy. An Appellate Court can interfere with the award of costs where the trial Court did not exercise its discretion judicially and judiciously. The instances of the interference include where the cost awarded is punitive, arbitrary and unreasonable. He relied on FRANCIS VS. OSUNKWO (2000) FWLR (pt. 14) 2469 at 2484, paras. A-D.

He urged this Court to interfere with the award of cost. He reminded the Court to apply the principles of law to the facts of the case of the Respondents and submitted that the Appellants followed the part of honour by defending the case and instituting another case to challenge the occupation of the Appellants. Counsel contended that the cost was punitive and was not a proper exercise of the judicial and judicious discretion by the learned trial Judge. He urged this Court to interfere with the award. He relied

on INONGHA MFA & ANOR VS. MFA INONGHA (2005) ALL FWLR (pt. 283) 93 at 112, paras. B-E. He the urged this Court to resolve issue 3 in favour of the Appellants.

AMENDED RESPONDENTS’ BRIEF OF ARGUMENT
Counsel to the Respondents, Chijioke E. Amadi, Esq. filed the Respondents’ brief dated and filed on 03/05/2019. Three issues were raised for determination.

ISSUES FOR DETERMINATION:
ISSUE A
Whether the trial Court was right in granting Respondents’ claims while dismissing the Appellants’ Counter-claim on grounds that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain, and unenforceable, and are issues that ought to have been raised during the life time of Chief Godson O. Amadi? (Grounds 1, 2 and 4 of the Grounds of Appeal).
ISSUE B
Whether the trial Court was right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre native law and custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of Chief Godson O. Amadi? (Ground 3).
ISSUE C
Whether the trial Court was right in awarding cost

of N100,000.00 against the Appellants and in favour of the Respondents? (Ground 5).

ARGUMENT
ISSUE A
Whether the trial Court was right in granting Respondents’ claims while dismissing the Appellants’ Counter-claim on grounds that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain, and unenforceable, and are issues that ought to have been raised during the life time of Chief Godson O. Amadi? (Grounds 1, 2 and 4 of the Grounds of Appeal).
On the issue A, Counsel for the Respondents submitted that it is in line with the law. That the facts and evidence before the trial Court shows that Mrs. Sylverline Ahuruele Amadi along with the 1st and 2nd Respondents had been with late Chief Godson O. Amadi before his death. That they catered for him and none of the Appellants during his life time had challenged his marriage to Mrs. Sylverline Ahuruele Amadi or the legitimacy of 1st and 2nd Respondents. Counsel made reference to Exhibits A-M tendered by the Respondents at the lower Court particularly Exhibit C, (pages 189-192 of the record), Exhibit G (pages 202-204 of the records) Exhibit J (pages 207-217

of the records) and Exhibit M (pages 216-220 of the records). That these documents were not challenged at the trial Court and cannot be contradicted by oral evidence. Counsel referred to the case of OGUNDELE VS. AGIRI (2010) 9 WRN page 1 at 22 (Lines 10-20), also page 20-30 on the nature and effects of documents when tendered.

Counsel submitted that the relationship between the 1st Respondent and late Chief Godson O. Amadi is a Contractual relationship that only two of them are privy to and it can only be challenged by an aggrieved person in the lifetime of late Chief Godson O. Amadi. That marriage is a contract that can only be enforced by parties to the contract. On the definition of a contract, Counsel referred to the Supreme Court’s decision in BILANTE INTERNATIONAL LTD VS. NDIC (2012) 9 WRN page 1 at 17, Lines 10-15. On essentials of a contract, Counsel referred to page 17, Line 15 and in the effect of not proving an enforceable contract, page 21, Lines 30-35.

Counsel further submitted that the legitimacy of the 1st and 2nd Respondents can only be challenged by late Mrs. Sylverline Ahuruele Amadi and late Chief Godson O. Amadi. That there

was no record before the trial Court or the present Court that the 1st and 2nd Respondents who took care of late Chief Godson O. Amadi until his death was disowned by him. That there is however a record that late Chief Godson O. Amadi disowned the 1st Appellant in Suit No. OCC/16/99 at pages 196-201 of the records. Counsel submitted that the trial Court was right in declaring the Appellants’ Counter claim raising issues on the nature of the birth of the 1st and 2nd Respondents as unconstitutional and unenforceable. He referred the Court to Section 42(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), UKEJE VS. UKEJE (2014) 38 WRN page 1 at 27-28, Lines 20-5, pages 30 Lines 5-20, pages 33-34, Lines 45 – 50 on whether the Igbo Customary Law is in breach of Section 42(1) and (2) of the 1999 Constitution of FRN (as amended).

Counsel further stated that no Court of law can enforce illegality or encourage parties before it to carry out same. He referred to the case of F.A.B.S LTD VS. IBIYEYE (2008) 14 NWLR (pt. 1107, page 375 at 406, paras. D-E. That the facts and evidence of the Respondents placed before the trial Court

were facts and evidence of illegal eviction which the Appellants never denied. Counsel referred to Exhibit 9 and Exhibit K (pages 213-214 of the record of appeal). That the trial Court is bond to declare such act unconstitutional. He cited the case of MUSA VS. INEC (2002) 11 NWLR (pt. 778 page 223 at 313, paras. G-H.

Counsel submitted that Respondents tendered Exhibit A-M during the trial – which remained unchallenged but the Appellants were not able to tender evidence that entitled them to evict the Respondents from late Chief Godson O. Amadi’s property. On whether documentary evidence serves as a hanger from which to access oral testimony? Counsel cited the case of UKEJE VS. UKEJE (supra) at pages 22-23 Lines 45-5 and on duty of the trial Court to evaluate and ascribe probate value as evidence, page 25, Lines 15-20.

Counsel contended that the Supreme Court in UKEJE’s case agreed that various documents presented before the trial Court such as photograph is reliable as in the present case. That the Respondents’ tendered evidence establishing Mrs. Sylverline Ahuruele Amadi as wife, 1st and 2nd Respondents as sons of late Chief Godson

Amadi which includes photograph Exhibit E (on page 193 and 195 of the record of appeal). That DW4 called by the Appellants admitted that 2nd Respondent was born by late Chief Godson O. Amadi (page 275 of the records). Counsel referred the Court to the case of UKEJE VS. UKEJE (supra) at page 33 Lines 35-45.On whether credible evidence must be led where a party makes an allegation before a Court? Counsel also placed reliance on the Supreme Court’s decision in LEWIS VS. UBA PLC (2016) 5 WRN pages 103- 104 Lines 45-25 on duty of Courts in delivering judgment to consider all correspondence tendered by parties as in the present case.
On the duty of Court where the Appellants defence does not constitute a good defence, Counsel cited the case of LEWIS VS. UBA PLC (supra) page 107, Lines 10-25.

Counsel for the Respondents submitted that the issue one in paragraph 4.0-4.16 of the Brief of Argument was that the Respondents’ main plank on which they fought their action before the trial Court was that the late Sylverline Ahuruele Amadi was the wife and widow of late Chief Godson O. Amadi while 1st and 2nd Respondents are his children and

that the Respondents did not state the type of marriage that was contracted.

Counsel to the Respondents submitted that Exhibits A-M was tendered by the Respondents which made the trial Court grant the Respondents’ claim before it. That the various documents tendered shows that the entire Rumuagholu community referred to late Mrs. Sylverline Amadi as the wife of Chief Godson O. Amadi.

Counsel specifically made reference to DW3, Chief Obadiah Gbanwa’s written deposition in oath (pages 244-245) which was adopted and DW3’s cross-examination (page 271-273 of the record of appeal) on 5/3/2014 and 14/3/2014. Counsel stated that DW3 was not present when the alleged customary marriage between Mrs. Sylverline Ahuruele Amadi and late Chief Gilbert Gbanwa took place. That none of the children born by late Mrs. Sylverline Ahuruele Amadi who are resident in Gbanwa’s house was made to testify and that DW3 after testifying that Mrs. Sylverline Ahuruele Amadi had 3 children for his father turned around to say 4 children returned. That DW3 is not a witness of birth.

Counsel cited the case of IDAHOSA VS. IDAHOSA (2011) ALL FWLR (pt. 568) page

983 at pages 1005-1006, paras G-C on categories of presumption of law, nature of evidence that may be used in rebuttal of the inclusion of presumption of legitimacy of a child born during continuance of any valid marriage thereunder. Also Section 148 of the Evidence Act, Cap 112 LFN 1990.

Counsel submitted that a person cannot benefit from his own wrong because DW1, DW2 and DW4 were aware that in the lifetime of late Chief Godson O. Amadi, the Appellants were enemies to late Chief Godson O. Amadi, late Mrs. Sylverline Ahuruele Amadi and 1st and 2nd Respondents. Counsel referred to Exhibit G which excommunicated Mrs. Sylverline Ahuruele Amadi from having a relationship with any member of Rumuagholu Community. Counsel cited the case of TERIBA VS. ADEYEMO (2010) 47 WRN page 155 at 175 Line 45.

Counsel further stated that the Appellants are required by law to call adequate witnesses from the Community aside DW4 to give credible evidence to the custom that entitled the 1st Appellant to take over the matrimonial home of the Respondents at the death of late Chief Godson O. Amadi. He referred the Court to the cases of OKENE VS. ORIANWO (1998) 9 NWLR (pt. 566)

408 at 551; NWAGBOGU VS. ABADOM (1994) 7 NWLR page 357 at 378, paras. A-B.

On the issue of continuality, Counsel to the Respondent submitted that it was raised in their pleadings, evidence and written address (pages 131-132 of the record) and prayed the Court not to allow such act to continue.

Counsel urged further that in paragraphs 4.16-4.25, the learned Counsel to the Appellants contended that the trial Court erred by granting reliefs on eviction and injunction having regard to the issue of possession and title. Counsel for the Respondents however, submitted that the issue of title was never raised by the Respondents but the issue of eviction from premises where they live and which premises the late Chief Godson O. Amadi had left for them at his death. That the trial Court granted an Order of injunction restraining the act of unlawful eviction of the Respondents. Counsel referred the Court to Exhibit G. Counsel cited the case of ODOM VS. PDP (2016) 18 WRN page 114 at 148 Line 10 on the purpose of an injunction. Counsel also relied on the case of OMOTAYO VS. CO-OP SUPPLY ASS (2010) 52 WRN page 1 at 23 Lines 10-15 on what Plaintiff prove to succeed

in a claim for injunction. Counsel urged the Court to resolve issue one in favour of the Respondents and dismiss the appeal.

ISSUE B
Whether the trial Court was right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre native law and custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of Chief Godson O. Amadi? (Ground 3).
On arguing issue two, Counsel to the Respondents contended that no credible evidence was led by Appellants in relation to Ikwerre Native Law and Custom as to custom governing marriage and marriage and devolution of property of a deceased people. That the Appellants have testified as DW1 and DW2. That DW3 was not an Ikwerre man and DW4 was not an Independent witness. That DW1, DW2 and DW4 were enemies to the Respondents (Exhibits G and M). That DW4 during cross-examination admitted knowing certain principal members of the community. That DW4 was one of the Plaintiffs in a Suit – PHC/1543/2004 in which the late Mrs. Sylverline Ahurele Amadi was sued along with late Chief Godson O. Amadi (Exhibit C). That in that Suit, the address

of service of late Chief Godson O. Amadi and late Mrs. Sylverline Ahuruele Amadi was described as follows:
“To: The Defendants who reside at No. 55 Rumuagholu Road, Rumuagholu Village in Obio/Akpor Local Government Area, Rivers State of Nigeria.”

Counsel submitted that DW4 is not an independent witness and not a witness of truth having contradicted himself in evidence.

On the credibility of the 1st Appellant, Counsel to the Respondents referred the Court to Exhibits M and A at page 220 of the records. That the 1st Appellant identified Exhibit G as the Local Arbitration proceeding in which the late Mrs. Sylverling Ahuruele Amadi was referred to as the wife of late Chief Godson O. Amadi by the entire community, That the 1st Appellant is not a witness of truth as it concerns the marriage between late Chief Godson O. Amadi and late Mrs. Sylverling Ahuruele Amadi.

Counsel further submitted that the Appellants failed to call credible and independent witnesses like those admitted by DW4 through whom custom can be established. That the custom granting marriage and devolution of property in Ikwerre Native Law and Custom as applicable in

Rumuagbolu Community is not a notorious custom neither has such custom been judicially noticed. Counsel referred the Court to the cases of LEWIS VS. BANKOLE (1908) 1 NLR 81, MAGOMYA VS. AG ADAMAWA STATE (2007) 5 NWLR 567 at 582 paras. A-F, OKENE VS. ORIANWO (supra) at 451 and NWAGBOGU VS. ABADOM (1994) 7 (supra) at 378 paras A-B.

Counsel argued that in this issue B, the learned Counsel to the Appellants contended that late Mrs. Sylverling Ahuruele Amadi remained unmarried but that there was no evidence before the Court to prove that she remained unmarried having been established by the entire community and documentary evidence which was unchallenged that late Mrs. Sylverling Ahuruele Amadi was the wife of late Chief Godson O. Amadi. Counsel referred the Court to the case of BUA VS. DAUDA (2003) 43 WRN page 1 at 14 Lines 30-35, page 22 Lines 5-15 on the effect of unchallenged evidence.

Counsel urged this Court to resolve Issue 2 in favour of the Respondents by dismissing the appeal and upturning the judgment of the lower Court.

ISSUE C
Whether the trial Court was right in awarding cost of N100,000.00 against the Appellants and in favour of

the Respondents? (Ground 5).

Counsel submitted that the issue of cost is at the discretion of the Court to a successful party and the Court need not give reason for the award of such cost. Counsel cited the case of ADEWUNMI VS. OKETADE (2010) 23 WRN page 15 at 36 Line 30 on the discretion of the Court on awarding costs.

On whether the Court has jurisdiction to give reason for award of costs? Counsel cited the case of AFRICAN CONTINENTAL BANK LTD VS. AJUGWO (2012) 20 WRN page 47 at page 85 Line 30-45.

Counsel submitted that the Respondents initiated an action against the Appellants which lasted from 25th January, 2010 to 16th December, 2015 when judgment was delivered. That Appellants had evicted the Respondents out of the community and are ready to continue except for the injunction of the Court. That the Respondents had incurred unnecessary expenses and should be compensated by way of cost. Counsel cited the case of AFRICAN CONTINENTAL BANK LTD VS. AJUGWO (supra) at page 84 Lines 5-15 in the essence of costs.

Counsel urged the Court to hold that the award of N100,000.00 by the trial Court is in line with the law.

APPELLANTS’ REPLY BRIEF
Counsel for the Appellants Collins N. Obulorn Esq. filed a reply brief dated and filed on 07/05/2019.

In response to the Respondents’ first point of argument suggesting that marriage under Native Law and Custom for the purpose of succession and inheritance can be established by conduct and mere cohabitation, Counsel to the Appellants submits it is a misconception of customary law marriage. That unlike a marriage under the act which is best filed by a certificate of marriage. That the Respondents was unable to call one credible witness in proof of the marriage. Counsel referred the Court to the case of EZEAKU VS. OKONKWO (2012) ALL FWLR (pt. 654) 159 at 181. Counsel also cited the case of AGBAJE VS. AGBAJE (1985) 3 NWLR (pt. 11) 11.

Counsel to the Appellants in responding to the Respondents’ argument that documentary evidence cannot be contradicted by oral evidence and commending the trial Judge for relying on Exhibits A-M, Counsel submits that documentary evidence is unknown to native law and custom. He referred the Court to the case of EGWU VS. EGWU (1995) 5 NWLR (pt. 396) 493. That even this Honourable Court holds

otherwise, failure to challenge documentary evidence does not ascribe probative value to such document. Counsel cited the cases of DALEK NIG. LTD VS OMPADEC (2007) ALL FWLR (pt. 364) 204, ACN VS. LAMIDO & ORS (2012) 8 NWLR (pt. 1303) 560 and ABUBAKAR VS. CHUKS (2007) 18 NWLR (pt. 1066) 386.

Counsel submitted that the Respondents on pages 11-13 of their Respondents’ brief raised an issue under Section 42(1) and (2) of the 1999 Constitution and that there was no evidence or record to support the decision of the trial Court on the issue except that the Respondents and the children of Mrs. Sylverling Ahuruele Amadi and that they all lived with Chief Godson O. Amadi and cared for him till his death. That the issue was not raised before the trial Court and cannot be raised now without Leave of Court. Counsel cited the case of SOGUNRO VS. YEKU (2017) ALL FWLR (pt. 903) 1094 at 1112, para. E.

Counsel was of the view that for Section 42(1) and (2) to apply to the Respondents, it has to be established by credible evidence that the Respondents are the biological children of late Godson O. Amadi and they are about to be disinherited on the ground that the

customary marriage between their mother and Chief Godson O. Amadi is invalid or was annulled after their birth. That the case of UKEJE VS. UKEJE (2014) 38 WRN 1 cited by the Respondents is inapplicable to this appeal.

Counsel further submitted that it was the Respondents that alleged the existence of a valid customary marriage and the issue of paternity. That the legal burden of proof cannot be shifted to the Appellants. Counsel referred the Court to Section 136 of the Evidence Act, 2011 and the cases of KUMBUL VS. UMEH (2014) 14 NWLR (pt. 1426) 40, CHEVRON (NIG) LTD VS. OMOREGHA (2015) 16 NWLR (pt. 1485) 336, OKOYE VS. NWANKWO (2003) FWLR (pt. 156) 992 at 1003, U.I.C LTD VS. T.A. HAMMOND NIGERIA (1998) NWLR (565) 340 at 358.

Replying to the allegation of contradiction in the evidence of DW3, Counsel to the Appellant submitted that there was no contradiction in his testimony during cross-examination. That any contradiction was not material in proving the paternity of the Respondents. Counsel referred the Court to the cases of MOHAMMED VS. THE STATE (2014) 12 NWLR (pt.1421) 387, EMEKA VS. THE STATE (2014) 13 NWLR (pt.1425) 614.

Counsel submitted that the Respondents did not prove the existence of a customary marriage and their paternity to the late Chief Godson O. Amadi. That it is only when proved will the Appellants be called to disprove same.

Counsel submitted that the sour relationship between DW1, DW2 and DW4 and the Respondents does not in law diminish their competence and credibility. He referred the Court to Section 175 of the Evidence Act, 2011. Counsel also cited the case of USMAN VS STATE (2014) 2 NWLR (pt. 1421) 207.
Counsel urged the Court to discountenance the submissions of the Respondents and resolve all the issues in favour of the Appellants.

RESOLUTION OF ISSUES
Collins N. Obulor, Appellants’ Counsel formulated three issues for determination in this appeal: to wit:-
ISSUE 1
Whether the trial Court was right to grant Respondents’ claims but dismissed the Appellants’ Counter-claim on ground that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain and unenforceable and are issues that ought to have been raised during the life time of Chief Godson O. Amadi?
ISSUE 2
Whether the trial Court was

right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre Native Law and Custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of late Chief Godson O. Amadi?
ISSUE 3
Whether the trial Court was right in awarding cost of N100,000.00 against the Appellants and in favour of the Respondents?

Chijioke E. Amadi is the Counsel for the Respondents. He identified the same three issues for determination in this appeal.

I am of the firm view that the issues formulated by learned Counsel on both sides are quite apposite for the just determination of this appeal. I therefore adopt them in this judgment.

ISSUE 1
Whether the trial Court was right to grant Respondents’ claims but dismissed the Appellants’ Counter-claim on ground that issues raised in Appellants’ pleadings and Counter claim are unconstitutional, vain and unenforceable and are issues that ought to have been raised during the life time of Chief Godson O. Amadi?
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The pedestal on which the case of the Claimants at the lower Court stood was on whether or not the 1st Claimant, Mrs. Sylverline Ahuruele Amadi was married to Chief Godwin O. Amadi of Rumuagholu Town and whether the then 2nd and 3rd Claimants were his biological children? This is the fulcrum on which the Claim and counter claim turned.

The contention of the 1st Claimant and her children was that 1st Claimant was married to Chief Godson O. Amadi who was the owner of No. 55 Rumuagholu Road, Rumuagholu Town, Obio/Akpor Local Government Area, Rivers State. The Applicants who were the Defendants at the lower Court sought to debunk the case of the Claimants. They counter claimed that the 1st Claimant was not married to the deceased Chief Godson O. Amadi though she was his concubine and paramour. It was the case of the Appellants at the lower Court that the 2nd and 3rd Claimants were not children of Chief Godson O. Amadi. They contended that the children of a woman on whom bride price had been paid belonged to the man who paid the bride price. Since the Claimants’ claim to the house of Chief Godson Amadi anchored on their relationship with him, it is

safe to say that the said relationship was the pillar on which the claim and counter claim rested.

The learned trial Judge on the above contention of the parties held thus:
“The premise upon which Claimants are asking for this order is that 1st Claimant was the wife of late Chief Godson O. Amadi and 2nd and 3rd Claimants are his sons, and they lived with the deceased in that property during his life time. Learned Counsel for the Defendants in his address, contended that by the reliefs sought by the Claimants herein, Claimants have raised the issue of title, therefore Claimants have to prove title to No. 55 Rumuagholu Road. I do not agree with this contention. Neither in their pleadings nor evidence before this Court did Claimants raise the issue of title. Claimants are simply asking for an Order of this Court allowing them peaceful occupation and enjoyment of the house wherein they lived with late Chief Godson O. Amadi before his death; as the wife and children respectively. What is the Defendants’ reply to Claimants’ claim? The Defendants averred that 1st Claimant was not the wife of late Chief Godson O. Amadi and the 2nd and 3rd

Claimants are not his children, that they are strangers. I find this odd. 1st Defendant under cross-examination stated that his father i.e. late Chief Godson O. Amadi did not disown the 1st Claimant and her children during his lifetime and that 1st Claimant and her children took care of his father before he died. Also DW4 stated under cross-examination that 3rd Claimant is 1st Claimant’s son whom she had for late Chief Godson O. Amadi. I must say that the issues whether 1st Claimant was married to late Chief Godson O. Amadi or not, and whether 2nd and 3rd Claimants his children or not? Are issues that should have been raised by the Defendants when Chief Godson O. Amadi was alive. The Defendants having not raised this issue when Chief Godson O. Amadi was alive, it is unconscionable for them to now raise them after his death. I must point out also that the matter presented before this Court by the Claimants is not as complicated as the Defendants would want this Court to believe. Most of the issues raised by the Defendants in their pleadings and counter claim, in particular reliefs 1, 2, 4 and 5 sought by them are unconstitutional, vain and

unenforceable.”

Now, it has not been contended that the 1st Claimant did not have access to Chief Godson O. Amadi. Infact it was the contention of the Appellants that the 1st Claimant was the concubine of the late Chief Godson O. Amadi. Again, it was the contention of the 1st Claimant that the 2nd and 3rd Claimants were the sons of the deceased. It should be noted that the deceased in his life time he did not deny the paternity of the 2nd and 3rd Claimants. The law acknowledges the right of a woman to say who the father of her child is. See ANOZIA VS. NNANI (2015) 8 NWLR (pt. 1461) P. 241.
The deceased took pictures with the 2nd Claimant and gave the 1st and 2nd Claimants personal residence as he did for his other children. See paragraphs 10-12 of the unchallenged deposition of 2nd Claimant at the lower Court. See page 179 of the Record of Appeal. This deposition should be deemed accepted since they were not challenged. See KOPEK CONST. COY VS. EKISOLA (2010) 3 NWLR pt.1182 P. 618.
Therefore it seems to me that the case of the Counter Claimants in the light of the aforestated has been whittled down to whether or not 2nd and 3rd Claimants

were illegitimate children of Chief Godson O. Amadi and whether by virtue of that they were entitled to the peaceful occupation and enjoyment of the family house of late Chief Godson O. Amadi.
It is in this respect that I fully agree with the finding of the learned trial Judge that the case of the Counter Claimants hinged on unconstitutionality. It confronts the provision of Section 42(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 42(2) of the Constitution reads thus:
“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
There is evidence that the 1st Claimant (mother of the 2nd and 3rd Claimants had access to Chief Godson O. Amadi at all material times. There is evidence that the 2nd and 3rd Claimants lived with Chief Godson O. Amadi in his life time and were never disclaimed. There was the evidence of 1st Claimant that the 1st and 2nd Claimants were children of Chief Godson O. Amadi. There was evidence that the deceased allowed the 1st – 3rd Claimants to stay with the remaining members of his family in his

life time. The issue of validity of the marriage between 1st Claimant and the deceased Chief Godson O. Amadi is in view of the present state of the law in this country of no consequence. The Claimants cannot be subjected to deprivation by reason of the circumstances of their birth. I resolve this issue in the circumstance in favour of the Respondents.

ISSUE 2
Whether the trial Court was right when it refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre native law and custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of late Chief Godson O. Amadi?
I have deeply pondered over this issue. In the first place, in the face of the clear provision of Section 42(2) of the 1999 Constitution (as amended) the proof of Ikwerre Native Law and Custom governing marriage of Mrs. Sylverline Ahuruele Amadi is of no relevance. The issue of Native Law and Custom of Ikwerre was thrown up to show the illegitimacy of the 2nd and 3rd Claimants. The devolution of the property of late Chief Godson O. Amadi was not under Ikwerre Native Law and Custom and was not in doubt. However if

the Native Law and Custom would operate to render the other children of Chief Godson O. Amadi (the 2nd and 3rd Claimants) homeless and destitute, such custom would be repugnant to natural justice, equity and good conscience. And it would be if such Native Law and Custom did not provide equitably for the other children of the deceased, as in this case, such Native Law and Custom would not be enforced.
In AGBAI & ORS VS. OKOGBUE (1991) 7 NWLR (pt. 204) 391, Nwokedi, JSC explained the reason thus:
“… Customary laws were formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root. The doctrine of repugnancy in my view afford the Courts the opportunity for fine tuning customary laws to meet changed social conditions where necessary, more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When however customary law is confronted by a novel situation, the Courts have to consider its applicability

under existing social environment.”
The learned trial Judge was therefore in my respectful view right to have refused to act on the evidence adduced by the Appellants and their witnesses in proof of the Ikwerre Native Law and Custom governing marriage of Mrs. Sylverline Ahuruele Amadi and devolution of the property of late Chief Godson O. Amadi. I resolve this issue in the circumstance in favour of the Respondents.

ISSUE 3
Whether the trial Court was right in awarding cost of N100,000.00 against the Appellants and in favour of the Respondents?
I also resolve this issue in favour of the Respondents. Costs follow the event. The Appellants’ Counter claimed at the lower Court and were unsuccessful in proving their Counter claim. They challenged the paternity of 2nd and 3rd Claimants and disturbed them from enjoying the house of their father.
Where Plaintiff fails to prove his case, the Defendant is entitled to cost. See MELIFEONWU VS. ADAZIE (1964) 1 ALL NLR 346.
I have deeply considered the amount of costs awarded, I am of the firm view that it is not excessive and therefore should not be disturbed. See BOBO VS. ANTHONY

(1931) 1 WACA 169.
In sum, I hold that the Appeal lacks merit. It is hereby dismissed.

The Judgment of Rivers State High Court in Suit No. PHC/99/2010 delivered on 16/12/2015 is hereby affirmed, with N200,000.00 costs awarded in favour of the Respondents.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have had the opportunity of reading the Judgment of my learned brother, TUNDE OYEBANJI AWOTOYE, JCA. I agree with the reasoning of my learned brother as well as the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the consequential orders.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.

Appearances:

COLLINS N. OBULOR For Appellant(s)

CHIJIOKE E. AMADIFOR For Respondent(s)