BISHOP JOHN AIREHODION & ORS v. MR. DAVID EHIKPEHALE
(2019)LCN/13680(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of July, 2019
CA/B/327/2014
RATIO
CUSTOMARY LAW: TEST FOR WHETHER A CUSTOMARY TEST IS REPUGNANT
Customary law is recognized as a source of law in the Nigerian legal system. And usually, in giving consideration to the former, the repugnancy test is often used as a yardstick for determining the applicability of any custom. The repugnancy test is used for determining the validity of customary law. The repugnancy test presupposes an instance where a custom must not be repugnant to natural justice, equity and good conscience, must not be incompatible with and extant law in force and must also not be contrary to public policy. See Ojiogu v. Ojiogu & anor (2010) LPELR-237 (SC). The term ?repugnant to natural justice, equity and good conscience? is often used in relation to testing the validity of a custom. Usually, when this term is used, and a custom is found to be repugnant to natural justice, equity and good conscience, such a custom is deemed to be barbaric and struck down as such. See Agbai v. Okogbue (1991) LPELR-225 (SC). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
NATURAL JUSTICE: REPUGNANT: MEANING
The word repugnant means highly distasteful or offensive, opposed or contrary to, as in nature; Natural justice connotes principles, procedures, or treatment felt instinctively to be morally right and fair; Equity is the quality of being fair and impartial while ?Good conscience? means when a thing is done with respectable motives that would not cause one to feel guilty. In the legal parlance, the term ?Natural justice? has a technical meaning that is fixed upon two twin pillars. i.e. Audi Alteram Partem and Nemo Judex in casua sua. Audi Alteram partem is a Latin phrase that means “listen to the other side”, or “let the other side be heard as well”. It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. Nemo Judex in casua sua is also a Latin word that literally means “no-one should be a judge in his own case.” It is a principle of natural justice that no person can judge a case in which they have an interest. On the other hand, equity can be used interchangeably with equitable. In the legal parlance, it refers to principles that were developed by the Court of equity to ameliorate the harshness of common law.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. BISHOP JOHN AIREHODION
2. WRIGHT IMADOJEMU
3. PAUL OSEBOR EHIJELE
4. STEPHEN AIREHODION
(for themselves and on behalf of Ujoelen Community, Ekpoma) Appellant(s)
AND
MR. DAVID EHIKPEHALE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice D.I Okungbowa on 24/2/2014 wherein judgment was given in favour of the applicant with an award of damages for N300,000.00 (Three Hundred Thousand Naira).
The facts that lead to this appeal are as follows:
The Respondent claimed that his fundamental right had been infringed upon by the order of ostracism that was placed on him by the Appellants. The Respondent claimed that his ostracization resulted from the fact that he refused to honour the Appellants? invitation for customary arbitration in respect of a land which they had interest in and was pending before the Court. The Appellants denied ostracizing the Respondent and contended that it was the Respondent that assaulted, falsely imprisoned and arrested the Appellants? emissaries who were sent to the Respondent?s house to inform him to stop demanding rent from tenants on the community land. The Appellants claimed that the act of molesting or assaulting the emissaries of the community is a
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violation of their custom and would attract sanction of a fine of a goat for which the Respondent was fined but refused to pay.
Thereafter, the Respondent filed an application for the enforcement of his fundamental rights claiming for the following reliefs:
1. An order for the enforcement of the applicant?s fundamental rights to freedom of movement and association that has been breached and further likely to be breached by the respondents.
2. A declaration that the order of ostracism placed on the applicant by the respondents which was purportedly done on behalf of Ujeolen Community is unconstitutional, null and void as it is offensive to Section 40 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the principle of Natural Justice and Customary arbitration.
3. The sum of N5,000,000.00 (Five Million Naira) only being general damages for the breach of the Fundamental Rights of the Applicant to freedom of movement and association.
4. Perpetual injunction restraining the respondents from further ostracizing the applicant on the ground that he refused to submit to the jurisdiction of the elders of
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Ujeolen Community for Customary arbitration over a land dispute, which is a subject matter of adjudication before this Honourable Court and for which they have vested interest.
The learned Trial Judge found in favour of the Respondent and ordered that the sum of Three Hundred Thousand Naira (N300,000.00) be paid to him as damages at trial.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 23/4/14. Record was deemed transmitted on 8/7/14, the Appellant?s brief was filed on 5/11/14 and was deemed filed on 9/4/18. The Respondent?s brief was filed on 15/2/19 and was deemed filed on 25/2/19.
In the brief settled by Prof. Ambrose O.O. Ekpu and P.I. Ikheloa (Mrs.), the Appellant formulated six issues for determination to wit:
1. Whether the trial Court was right to have resolved conflicting affidavit evidence without calling oral evidence in an application for enforcement of fundamental human rights
2. Whether the Respondent established his case by preponderance of evidence
3. Whether the trial Court was justified in denying members of the Appellants? community their right not to associate with
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the Respondent
4. Whether the trial Court did not have a duty to enforce the custom of the Appellants? community when same was to ensure order in the community and the custom was not found to be repugnant or inconsistent with any law
5. Whether the failure of the trial judge in pronouncing on all issues submitted by the parties did not occasion a miscarriage of justice
6. Whether the trial Court was justified in finding for the respondent herein when there was uncontroverted evidence that he had consented to that mode of enforcement of the custom of the community.
Dr. Bola Adekanle, G.O. Etose Esq., J.B. Agbogun Esq., R.E. Okojie Esq., E.B. Aghawegbehe Esq., and B.O. Okhakumen Esq. who settled the Respondent?s brief identified two issues as follows:
1. Whether the Lower Court was wrong when it resolved the conflict in the affidavit evidence of the Respondent and the Appellants by having recourse to the available documents before it instead of calling for oral evidence to resolve the conflict
2. Whether the Respondent did not prove his case on the preponderance of evidence
?In determining this appeal, I will
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recouch and crystallize the issues into two as set forth below:
1. Whether the trial Court can resolve conflict in an affidavit without the need for oral evidence
2. Whether the learned trial judge was right to find the Appellants (as representatives of the community) liable in damages for asserting their rights not to associate with the Respondent
ISSUE ONE
1. Whether the trial Court can resolve conflict in an affidavit without the need for oral evidence
Appellant?s Counsel argued that where there is conflict in an affidavit evidence, the trial Court must call oral evidence to resolve it. Counsel cited Afribank Nigeria Plc v. Adigun (2009) All FWLR (Pt. 152) 2009 at 2014 para. 4; Ishiaq v. Ehitor (2003) 10 NWLR (Pt. 828) 221; Momah v. Vab Petroleum Inc. (2000) 4 NWLR (Pt. 654) 534; Ejezie v. Anuwu (2008) All FWLR (Pt. 422) 1005.
?Counsel argued that in paragraph 7 of the counter-affidavit, the Appellants denied that they ostracized the Respondent. Counsel further argued that the Appellants also denied that they sought to compel the Respondent to customary arbitration. Counsel further argued that the Appellants only sent
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emissaries to the Respondent?s house so as to inform him to stop harassing and demanding rent from their tenants but the Respondent falsely imprisoned and assaulted the emissaries for delivering such a message to him and thereafter the Respondent got the emissaries detained by the Police.
Counsel opined that the trial judge failed to call oral evidence to resolve the critical discrepancy when he acknowledged in his judgment that there was serious conflict in the affidavit evidence of both parties as to whether or not the Respondent was ostracized. Counsel submitted that where there are conflicts in affidavit evidence of the parties, it is mandatory for the trial Court to call for oral evidence to resolve same. Counsel then submitted that the trial judge erred when he failed to do so.
Counsel submitted that the trial judge relied on the case of Afribank Nig Plc v. Adigun (2009) NWLR (Pt. 1152) 239 to the effect that oral evidence was not necessary for enforcing fundamental rights. Counsel submitted that the contemplation in that case were instances where an applicant is held in custody and also, where conflict in an affidavit evidence are not
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core question of facts. Counsel opined that there was time for the trial Court to call for oral evidence to resolve the conflict in the affidavit evidence as the trial judge did not avert his mind to the fact that no one was in detention and needed speedy release. Also, that in this instant case, the Respondent was home with his family moving freely. Counsel further opined that the conflict in this case cannot be regarded as non-core because the trial judge found that the conflict was serious.
Counsel opined that another core area of conflict in the parties? affidavit evidence is the Respondent?s infraction. Counsel argued that while the Respondent said his offence was his refusal to submit to customary arbitration, the Appellant said it was his refusal to pay the fine of a goat for molesting and assaulting the emissaries of the community. Counsel further argued that the Respondent denied being fined a goat while the Appellants denied summoning him for any arbitration but instead, was advised to stop demanding rents from the tenants of the community and await the outcome of the pending case in Court over the land dispute.
Counsel
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submitted that the trial judge erred in holding that the lack of response to the Respondent?s letter obviated the need for oral evidence. Counsel opined that the issue was raised suo motu by the Court and the parties were not afforded an opportunity to make an address on the point. Counsel further submitted that this has occasioned a miscarriage of justice. Counsel cited Achiakpa v. Nduka (2001) FWLR (Pt. 71) 1804; Osasona v. Ajayi (2004) 5 SC 88; Ibrahim v. Tardy (1999) 4 NWLR (Pt. 598) 327. Counsel argued that it was not in evidence that the letter was received or that it was not replied and so, the trial judge?s findings that the letter was not replied were perverse and unjustified.
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Appellant?s Counsel argued that the Respondent failed to prove his case on a preponderance of evidence. Counsel opined that the affidavit evidence of the Respondent was vague, speculative and did not command any probative value. Counsel argued that the Respondent made a sweeping allegation of ostracism and did not state the date the decision was made, the name of the town crier that made the announcement or any witness. Counsel further argued that the
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Respondent did not state the date he was allegedly summoned for arbitration and the emissary who invited him for arbitration. Counsel opined that the Respondent had a duty to provide detailed particulars in the face of the contrary deposition by the Appellants. Counsel submitted that the Respondent failed to prove his case as civil cases are decided on the preponderance of evidence because he who asserts must prove. Counsel cited Insurance Brokers of Nigeria v. Atlantic iles Manufacturing Co. Ltd (1996) 8 NWLR (Pt. 466) 316.
In reply, learned Respondent?s Counsel conceded that where there is conflict in the affidavit evidence of parties, it is necessary to call oral evidence to resolve the conflict. Counsel opined that it is not only by calling oral evidence that the conflict in an affidavit evidence could be resolved. Counsel argued that a Court may have recourse to available documents before it to resolve the conflict. Counsel cited Nwosu v. Imo State Environmental Sanitation Authority & ors (1990) 2 NWLR (Pt 135) Pg. 688 at Pg. 718, Para D-E, Ratio 28; Ezechukwu & anor v. Onwuka (2016) 252 LRCN Pg. 21 at Pg. 52 FZ Ratio 8;
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Afribank(Nig) Plc v. Adigun (2009) 11 NWLR (Pt. 1152) Pg. 329.
Counsel opined that in the instant case, the Respondent claimed that he was ostracized by the Appellants based on his refusal to submit himself to the jurisdiction of a customary arbitration which was to be presided over by the Appellants. However, the Appellants denied ostracizing the Respondent. Counsel opined that the Respondent in paragraph 7 of his further affidavit in support of the application for the enforcement of his fundamental right de
