ANEKE & ANOR v. EGWU (2020)

ANEKE & ANOR v. EGWU

(2020)LCN/14625(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/E/488/2017

RATIO

PLEADINGS: NO PROCEEDINGS OF CUSTOMARY COURT SHALL BE DECLARED VOID ON GROUND OF TECHNICALITIES

As noted earlier, this appeal took its roots from the judgment of the Customary Court of Umumba Ndiuno. Judgments emanating from this class of Courts should not be examined from the prism of strict compliance with procedural technicalities. They function to dispense justice simply by going to the substance of disputes without inhibitive technical considerations. This much was captured by the provisions of Section 20 of the Customary Court Law, Cap 32, Revised Laws of Enugu State, 2004 which was referred to by the Court below. It provides as follows:
No proceedings in a customary Court and no summons, warrant, order, decree or other processes issued or made by the Court shall be declared void or otherwise varied upon appeal, solely by reason of any defect in procedure or want of form, but every Court or authority exercising appellate jurisdiction by virtue of this law or any other law, shall decide all matters brought to it on appeal from a customary Court as substantial justice of the case may require.
Furthermore, a guide for the consideration of judgments of the customary Courts was provided by the Supreme Court in AGBASI & ORS VS. OBI & ORS (1998) 1-2 SC 26 as follows:
1. “The Court must not place too strict emphasis on the form but must examine the entire proceedings in order to determine what the Native Court case is all about.”
2. It is equally settled that when dealing with judgments or matters from Native Courts, an Appellate Court is entitled to go beyond what appears on the face of the claim or wit and ascertain from the entire evidence before the Native Court what was really the nature of the dispute between the parties to the action and the land involved.”
3. The Native Courts are Courts of common sense and simplicity. They are never burdened by strict adherence to procedure. They are the Courts for quick and cheap manner of dispensation of justice. Most of the time, their decisions reflect the very justice and truth of the cases. It is because these Courts are not tied to technicality of procedure that the Appellate Court must look at the totality of the proceedings to find who were the parties before them, what were the issues before them and what have they decided”. In considering the case of the parties, the trial Customary Court made its crucial findings in lines 3-30 of page 21 of the record of appeal which I quote in extenso, thus:
Now the pertinent question before the Court is what is the effect of anybody’s involvement in the appeasement of juju in Ezeagu as a whole? In this part of the country the custom is that whosoever is involved in the appeasement of any juju in a land has interest in the land. Appeasement can only be done by (Umunna) kindred. No outside person helps in such cases in Ezeagu. It is fair to mention that the PW1 called witness who were confused by their utterances save PW5 Raphael Okolo, he conceived that he was not aware of the appeasement, that his father became a caretaker after the death of the defendant father and lastly that he was aware that the defendant stopped one Ephraim Ude from building in the part of the land. The Court may ask what is the position of the defendant in causing estoppels to the building of the house in the land. The answer is interest simplicita. Now to the evidence of the defence, he told the Court that he is the son of Egwuonwu Ogbatu who was in possession after the death of Ogbatu his grandfather. He accepted that Udeozo should know their relations more than him on cross-examination from Sylvester (PW2).
He also agreed that he will accept anybody shown to him by Udeozo as their relations.
In view of the expositions mentioned supra, this Court is of the view that the case should not have been title since what is in issue is not boundary but who and who are co-owners of the disputed land. This Court has decreed that Udeozo is the head of the family while he has proved that he has relations in person of Sylvester and brothers who are descendants of Ozougbani in brother. In the same vein, Udeozo has proved that Harford Egwu is his brother since he appeased Bonoshi with the father as regards to the land. PW5 Raphael Okolo told the Court that his father became the caretaker after the death of the defendant father showing that Egwu Ogbatu was in possession till death. Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. UDEOZO ANEKE 2. SYLVESTER ANICHEBE APPELANT(S)

And

HAYFORD EGWU RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Enugu State, holden at Enugu, delivered on the 28th March, 2013 Coram V. N. NEBO, J. (presiding), G.C. NNAMANI J. and E. N. NNAMANI J.

The parties who are members of the same extended family in Okposi Ndiagu Obinofa in Ezeagu Local Government Area of Enugu State had a dispute over the ownership of a parcel of land called “Ani Ozougbuani”. The Appellants eventually approached the Umumba Ndiuno Customary Court (hereinafter referred to as the trial Customary Court) for the following reliefs:
(a) Declaration of title to the said “Ani Ozougbuani”.
(b) Perpetual injunction restraining the defendant, his agents, privies, servants from entering the land.

At trial, the Appellants called five witnesses while the Respondent was the sole witness for his case. The trial Customary Court then gave a considered judgment declaring the land in dispute as jointly belonging to the two sides. Dissatisfied with this outcome, the Appellants appealed to the Court below which after hearing the

arguments for the two sides affirmed the judgment of the trial Customary Court.

Still dissatisfied, the Appellants further appealed to this Court via the Notice of Appeal filed on the 8th of March, 2017 containing four grounds. At the hearing of the appeal, Nnadozie Esq adopted the Appellants’ brief filed on the 6th September, 2017 as well as the Reply brief filed on the 29th January, 2019 as the arguments of the Appellants in this appeal while Okologbu-Njoku Esq. adopted the Respondent’s brief filed on the 30th May, 2018 but deemed properly filed and served on the 17th January, 2019 as the arguments of the Respondents in contesting the appeal.

Okologbu-Njoku Esq., failed to refer to the Notice of Preliminary Objection filed by him on the 30th May, 2018 through which he sought that the appeal be struck out for having been filed without the leave of Court. The Reply of the Appellants contains an annexure of the relevant order of Court granting leave before the appeal was filed. The said Notice of Preliminary Objection shall accordingly be discountenanced. In doing so, let me point out that considering the nature of the appeal which deals

with issues of customary law, leave is superfluous as appeal is of right pursuant to the provisions of Section 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See OZOEMENA & ANOR VS. NWOKORO & ORS (2018) LPELR-44462 (SC).

The Appellants in a rather inelegant manner formulated six issues from the four grounds of appeal without relating them to the grounds of appeal. The said issues are as follows:
1. Whether having regard to the pleadings, evidence and circumstances the learned trial Justices decision did not amount to miscarriage of justice, equity and good conscience.
2. Whether the trial Courts had jurisdiction to grant the Respondent co-ownership of the land in dispute when there was no counter-claim for that.
3. Whether the acts of the Respondent do not amount to abuse of Court process by suing the 2nd Appellant for contempt, trespass in Suit No: CCU/004/2016 at the Customary Court Umumba and Charge No: MAE/2C/2016 at the Magistrate Court Aguobowa Ezeagu.
4. Whether the procedure adopted by the Customary Court Umumba for contempt and committed the 2nd Appellant to prison on the 19th day of

January, 2017 or a fine. When there is a pending Notice of Appeal and Motion for enlargement of time at Customary Court of Appeal Enugu in Suit No: CCAE/45/2010 to file appeal out of time.
5. Whether the Court will not declare the said procedure adopted by the Magistrate Court Ezeagu and Customary Court Umumba as irregular, abuse of Court process and infringement of the fundamental right of the Applicant under Sections 35 & 36 of the Constitution of Nigeria 1999 as amended.
6. Whether the judgments of the trial Courts are not ambiguous and unequivocal.

The Respondent on the other hand formulated a lone issue albeit crafted inelegantly thus:
Whether the plaintiffs/Appellants have used any of the above five ways to prove their claim to sole ownership of the land in dispute.

An issue for determination must take its roots from the grounds of appeal otherwise it would be incompetent. See FAJEBE & ANOR VS. OPANUGA (2019) LPELR-46348 (SC).

Issues 3 to 5 of the Appellants have no bearing or nexus with any part of the judgment of the trial Customary Court which was adjudicated upon on appeal by the Court below but rather relate to

events subsequent to the said judgment and which do not constitute part of the judgment of the Court below delivered on the 28th March, 2013. The said issues are direct complaints to this Court against the decision of the Customary Court of Umumba Ndiuno in respect of which this Court has no jurisdiction pursuant Sections 240-246 of the Constitution of the Federal Republic of Nigeria, as amended or any other law. They are therefore patently incompetent and shall be discountenanced. The remaining issues 1, 2 and 6 shall be taken together, juxtaposed with the arguments of the Respondent.

Nnadozie Esq. argued for the Appellants that a Court can only grant reliefs sought before it. He enumerated the methods for proving ownership of land as set out in the case of IDUNDUN VS OKUMAGBA (1976) 7-10 SC 227 and submitted that the Respondent failed to prove any of the said methods at trial.

He argued further that the trial Customary Court unilaterally awarded co-ownership of the land in dispute to the Respondent without evidential basis and thereby granted a relief not sought. He submitted that an order granted without being sought is a nullity as it was made

without jurisdiction and referred to AWONIYI & ORS VS REGD TRUSTEES OF AMORC (2000) 10 NWLR (PT 676) 522.
He urged the Court to grant the reliefs sought by the Appellants.

For the Respondent, learned counsel submitted that the burden of proof was on the Appellants as Plaintiffs to establish their ownership of the land in dispute and had to succeed on the strength of their case without being permitted to rely on the weakness of the defence. He referred to ELIAS VS DISU (1961) ALL NLR (PT 1) 215 at 220.

Learned counsel pointed out that at the trial, the testimony of 1st Appellant as PW1 provided sufficient basis for the finding of the trial Customary Court that the parties were jointly entitled to the disputed parcel of land. He submitted that evidential weight was in favour of the Respondent as witnesses called by the Appellants gave valuable evidence in support of the Respondent.

He urged the Court to affirm the concurrent findings of the two lower Courts and referred to OVERSEAS CONSTRUCTION LTD VS CREEK ENTERPRISES NIG. LTD (1985) 3 NWLR (PT 13) 407.

As noted earlier, this appeal took its roots from the judgment of the Customary

Court of Umumba Ndiuno. Judgments emanating from this class of Courts should not be examined from the prism of strict compliance with procedural technicalities. They function to dispense justice simply by going to the substance of disputes without inhibitive technical considerations. This much was captured by the provisions of Section 20 of the Customary Court Law, Cap 32, Revised Laws of Enugu State, 2004 which was referred to by the Court below. It provides as follows:
No proceedings in a customary Court and no summons, warrant, order, decree or other processes issued or made by the Court shall be declared void or otherwise varied upon appeal, solely by reason of any defect in procedure or want of form, but every Court or authority exercising appellate jurisdiction by virtue of this law or any other law, shall decide all matters brought to it on appeal from a customary Court as substantial justice of the case may require.
Furthermore, a guide for the consideration of judgments of the customary Courts was provided by the Supreme Court in AGBASI & ORS VS. OBI & ORS (1998) 1-2 SC 26 as follows:
1. “The Court must not place too strict

emphasis on the form but must examine the entire proceedings in order to determine what the Native Court case is all about.”
2. It is equally settled that when dealing with judgments or matters from Native Courts, an Appellate Court is entitled to go beyond what appears on the face of the claim or wit and ascertain from the entire evidence before the Native Court what was really the nature of the dispute between the parties to the action and the land involved.”
3. The Native Courts are Courts of common sense and simplicity. They are never burdened by strict adherence to procedure. They are the Courts for quick and cheap manner of dispensation of justice. Most of the time, their decisions reflect the very justice and truth of the cases. It is because these Courts are not tied to technicality of procedure that the Appellate Court must look at the totality of the proceedings to find who were the parties before them, what were the issues before them and what have they decided”.

In considering the case of the parties, the trial Customary Court made its crucial findings in lines 3-30 of page 21 of the record of appeal which I quote in extenso,

thus:
Now the pertinent question before the Court is what is the effect of anybody’s involvement in the appeasement of juju in Ezeagu as a whole? In this part of the country the custom is that whosoever is involved in the appeasement of any juju in a land has interest in the land. Appeasement can only be done by (Umunna) kindred. No outside person helps in such cases in Ezeagu. It is fair to mention that the PW1 called witness who were confused by their utterances save PW5 Raphael Okolo, he conceived that he was not aware of the appeasement, that his father became a caretaker after the death of the defendant father and lastly that he was aware that the defendant stopped one Ephraim Ude from building in the part of the land. The Court may ask what is the position of the defendant in causing estoppels to the building of the house in the land. The answer is interest simplicita. Now to the evidence of the defence, he told the Court that he is the son of Egwuonwu Ogbatu who was in possession after the death of Ogbatu his grandfather. He accepted that Udeozo should know their relations more than him on cross-examination from Sylvester (PW2).
He also

agreed that he will accept anybody shown to him by Udeozo as their relations.
In view of the expositions mentioned supra, this Court is of the view that the case should not have been title since what is in issue is not boundary but who and who are co-owners of the disputed land. This Court has decreed that Udeozo is the head of the family while he has proved that he has relations in person of Sylvester and brothers who are descendants of Ozougbani in brother. In the same vein, Udeozo has proved that Harford Egwu is his brother since he appeased Bonoshi with the father as regards to the land. PW5 Raphael Okolo told the Court that his father became the caretaker after the death of the defendant father showing that Egwu Ogbatu was in possession till death.

It has been contended that the trial Customary Court in the above findings went beyond the case submitted to it and gave an unsolicited relief. A perusal of the adduced evidence at trial however supports the position of the trial Customary Court.

Witnesses called by the Appellants including the Appellants testified of the appeasement of some fetish called ‘bonoshi’ which afflicted the

disputed land. It was in evidence that only persons related and having interest in a piece of land make contributions to such fetish rites in Ezeagu area. This very vital finding was not specifically appealed against indicating acceptance thereof. See OPARA VS. DOWEL SCHLUMBERGER (NIG.) LTD & ANOR (2006) LPELR-2746 (SC), TUKUR VS. GOVT OF TARABA STATE & ORS (1997) LPELR-3273 (SC) and DANIEL VS.FRN (2015) LPELR-24733 (SC). It was conceded by the Appellants during the trial that the Respondent’s late father was a contributor to the said ‘bonoshi’ rites indicating their joint affinity with the said land in dispute. Furthermore, the trial Tribunal received testimony that the Respondent’s late father was in unchallenged possession of the said disputed land throughout his lifetime. That testimony came from PW5, a witness called by the Appellants.

When faced with two concurrent findings of fact, an appellate Court would only interfere if there are special circumstances such as miscarriage of justice or if the findings are shown to be erroneous. See ARE & ANOR V. IPAYE & ORS (1990) LPELR-541 (SC), ALADE VS. ALEMULOKE & ORS

(1988) LPELR-398 (SC) and OLUDE VS. STATE (2018) LPELR-44070 (SC). A perusal of the entire proceedings conducted by the trial Customary Court in this case shows abundantly that it was consistent with the justice of the case and I find no justifiable reason to disturb it. See OPAWOLE VS. TUNBI(2003) LPELR-5470 (CA).

I therefore resolve the issues against the Appellants and in favour of the Respondent.
In totality, I find no merit in this appeal and I dismiss it accordingly. The judgment of the Court below is hereby affirmed.
Cost of N100,000.00 is awarded against the Appellants and in favour of the Respondent.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.

ABUBAKAR SADIQ UMAR, J.C.A.: It has been an advantage to have a preview of the lead judgment which involved dispute over the ownership of a parcel of land called “Ani Ozougbuani”. In the lead judgment, my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA, finds no substance in this

appeal. The judgment is quite lucid; and I adopt same as mine.

This appeal is lacking in substance and is hereby also dismissed in its entirety. The judgment of the trial customary Court is hereby affirmed.
I abide by the consequential order made in the lead judgment.

Appearances:

N. I. Nnadozie, Esq. For Appellant(s)

Mr. E. Okologbu-Njoku For Respondent(s)