CHIEF EMMANUEL OBIAGWU & ORS v. CHIDUBEM UCHE OKOROAFOR
(2019)LCN/12601(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2019
CA/OW/23/2015
RATIO
LAND LAW: COMMUNAL LAND
“Where a land is a communal land, the law is clear that no member of the family will alienate without the consent and approval of the principal members of (sic) the head of family as submitted.
In the instant case, the land in dispute is not a communal land but is jointly owned by some persons in Umuohakwe. It must be stressed here that there is a difference between a communal land and land jointly owned in common. See PROF. NWABUEZE’S Book on land law. The problem here is that of a total misconception by Counsel.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
LAND LAW: CUSTOMARY MEANS OF INHERITANCE
“It is a universal and general knowledge that a woman who had no child for her husband cannot inherit her husband’s estate. In such a State, the next of kin of the husband will inherit the brother’s estate and the woman is usually asked to go to her maiden home and if she remains, it will be at the pleasure of any of the husband’s brother or next of kin and if any of them performs Nchigha Orji ceremony on her head, she automatically becomes his wife, as in this instant case.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
COURT AND PROCEDURE: WHERE A CASE IS RAISED SUO MOTO
“The position of the law on an issue raised suo motu by a Court, in my considered view would appear to have been settled for long and as enunciated by Tobi, JSC; in the case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD [2006] 19 NWLR (PT. 1013) 147, it is that basically a Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. That in so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. That a Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. That a Judge cannot be accused of raising an issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. See also the case of IKENTA BEST (NIGERIA) LTD V ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642 wherein Tobi, JSC;” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF EMMANUEL OBIAGWU
2. RAPHAEL UZONWANNE
3. SIR INNOCENT NWANGWU Appellant(s)
AND
CHIDUBEM UCHE OKOROAFOR Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 30/3/2014 by the Imo State High Court sitting at Orlu and presided over by Ononeze-Madu, J; (hereafter to be referred to as ‘the lower Court’ and ‘learned trial Judge’ respectively). The Appellants as Plaintiffs/Claimants instituted Suit No. HOR/17/2007 against the Respondent. The case is in respect of a parcel of land (described in a pleaded litigation plan) which the Appellants claim is a communal land and is situate and lying at Umuobiaku kindred Ozuomee Urualla. The Appellants claims against the Respondent in the said case are for: –
i) The sum of N1,000,000.00 (One Million Naira) being general damages for trespass on their aforementioned land.
ii) An Order of perpetual Injunction restraining the Defendant by himself, his agents, servants, collaborators howsoever and whatsoever called from committing any further trespass on the Plaintiffs ‘Ala Ububa land shown delineated and verged red and blue on Survey Plan No. EQ/88/IMD001/2008.’
The Respondent equally instituted Suit No. HOR/120/2007 against the Appellants in respect of the land in dispute which he averred is called ALA UKWUEDO situate and lying at ‘Umuobiaku village in Ozuomee Urualla in Ideato North Local Government Area of Imo State of Nigeria within jurisdiction.’ The Respondent claimed against the Appellants jointly and severally the following reliefs:-
a) A declaration that the plaintiff is in unencumbered possession, and entitled to the statutory right of occupancy, in respect of ALA UKWUEDO situate at Umuobiaku village in Ozuomee Urualla in Ideato North Local Government Area of Imo State of Nigeria, having obtained an irrevocable power of attorneyfrom the descendants/heirs of (i) Uzoamaka Ngawuchu, Umenwaneri Odeneigbo and Julius Nwangwu (the three original owners) and (ii) Umuohakwe people who assisted the said three original owners to reclaim the land from trespassers, following the agreement to that effect in 1938 or thereabout, after the death of 1st defendant?s grandfather.
(b) Perpetual injunction restraining the defendants, their servants and or their agents from entry into the plaintiff?s ALA UKWUEDO for any purpose whatsoever.
(c) N5,000,000.00 being special damages of N4,000,000.00 and N1,000,000.00 general damages for trespass.?
The two suits were consolidated and the lower Court having stated in the introductory part of its judgment thus: –
‘By write (sic) of summons filed on 16/2/2007, the Claimants brought action against the Defendant in the consolidated suit for themselves and on behalf of Umuobiaku Kindred, claiming the following reliefs:-
a) The sum of N1,000,000.00 (One Million Naira) as special general damages for trespass into their ‘Ala-Ububa Isiorie land lying and situate at Ozuomee Urualla within jurisdiction.
b) An Order of perpetual Injunction restraining the Defendant by himself, agents, servants and/or collaborators from committing any further trespass into the said land.
The Defendant upon service, entered appearance in the consolidated suits. Pleadings were filed and exchanged and the case were set down for hearing. concluded thus: –
‘It is the law that the Court is empowered to look at all the processes filed in other (sic) to see the justice of the case.
It was in the meeting of 26/12/2006 that the Chairman of the Committee for the sale of the land. “Ala Ukwuede” informed the house that they have found a buyer and as a result, a resolution was passed to sell the land to the Defendant, the prospective buyer who later performed the traditional rites, the family representatives signed the Power of Attorney to that effect which entitled him to go into the land not as a trespasser but as a person legally authorised to enter into the land.
In conclusion, after careful and diligent consideration of the evidence before me, the Exhibits, the authorities cited and submitted by Counsel, the Statement of Claims and Defence Amended and the submissions of Counsel in this Suit, it is my humble and strong view that the Claimants failed to discharge the onus especially the fact that the Claimants did not prove their claims on the balance of probability and preponderance of evidence. I therefore dismiss their claim with cost of N50,000.00 in favour of the Defendant.
On the other hand, it is my firm opinion, that the Defendant has through credible, cogent, reliable and sufficient evidence adduced before me, (sic) I hold that he has proved his own claim (in the consolidated suit), on the balance of probability as the scale of evidence when placed side by side tilts in favour of the Defendant. Consequently, I hold that the Defendant is entitled to his claim in the consolidated suit, I therefore make Order as follows: –
a) A Declaration that the Defendant is in possession and entitled to the statutory right of occupancy, in respect of “ALA UKWUEDE” situate at Umuobiaku Village in Ozuomee, Urualla in Ideato North Local Government Area of Imo State of Nigeria having obtained an Irrevocable Power of Attorney from the Descendants/Heirs of (1) Uzoamaka Ngawuchi, Umenwaneri Odenigbo and Julius Nwangwu (the three original owners) and (ii) Umuohakwe people who assisted the said three original owners to reclaim the land from trespassers, following the agreement to that effect in 1938 or thereat, after the death of 1st Defendant’s grand-father.
b) Perpetual Injunction restraining the Claimants, their servants and or their agents from entry or further entry into the Plaintiffs/Claimants’ “ALA UKWUEDE” for any purpose whatsoever.
c) Awarding general damages and cost of N500,000.00 against the Claimants in the consolidated Suits.?
Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the said Court on 17/4/2014 a notice of appeal dated 11/4/2014. The notice of appeal contains eight grounds and the said grounds shorn of their respective particulars read thus: –
GROUNDS OF APPEAL
I. ERROR IN LAW:
The learned trial Judge erred in law when he based the judgment of the Court on the issue of joint ownership or joint tenancy as the basis for holding that the property subject matter of the dispute was not a family or communal land and thereby occasioned a miscarriage of justice.
II MISDIRECTION:
The learned trial Judge misdirected himself on the evidence led at the trial when he came to the conclusion that the 1st Claimant is the son of one Festus Agim but chose to answer the son of Obiagwu out of greed and thereby occasioned a miscarriage of justice.
III ERROR IN LAW:
The learned trial Judge erred in law in treating the document tendered by the 1st Claimant’s mother as irrelevant having originally admitted it on the basis of relevancy and thereby occasioned a miscarriage of justice.
IV ERROR IN LAW:
The learned trial Judge erred in law when he failed and or ignored to make pronouncement on the effect of registering a Power of Attorney during the pendency of an action and thereby occasioned a miscarriage of justice.
V ERROR IN LAW:
The learned trial Judge erred in law when he dismissed the Claimants’ case because according to him, the evidence of one Livinus Ogbuji who testified that he was 90 years and one of the people that contributed in strength to wrestle the land from Ikpa Ezenkwere people is preferable than that of the others which according to the trial Judge were based on hearsay evidence and thereby occasioned a miscarriage of justice.
VI ERROR IN LAW:
The learned trial Judge erred in law when without properly or at all evaluating all the evidence led at the trial he held that the Defendant proved his case and accepted it and thereby occasioned a miscarriage of justice.
VII OMNIBUS GROUND:
The judgment is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence. Take Notice that more grounds will be supplied upon receipt of the records of proceedings.
VIII ERROR IN LAW AND MISDIRECTION:
The learned trial Judge erred in law and misdirected himself when he stated that the 1st Claimant or his father did not contribute in cash or strength in the land case and thereby occasioned a miscarriage of justice.
The reliefs being sought from this Court in the appeal are (i) an order setting aside the judgment of the trial Court in its entirety; and (ii) in its place, an order granting all the reliefs the claimants seek in their statement of claim.
The appeal was entertained on 1/11/2018. It is however worthy to note that prior to this, learned counsel Chief O.E. Aladum drew the attention of the Court to the preliminary objection (hereafter to be simply referred to as ?P.O.?) dated 16/3/2018 and filed on 22/3/2018 in the appeal and which was mentioned in paragraph 1 of the Respondent?s brief of argument dated 17/5/2018 and filed on 21/5/2018.
Learned leading counsel, J.M.E. Onyenakazi in urging the Court to allow the appeal adopted and relied on the Appellants’ brief of argument dated 15/3/2017 and filed on 8/6/2017 but deemed as properly filed on 30/11/2017.
In the same vein, Chief O.E. Aladum, adopted and relied on the Respondent?s brief of argument (supra) in urging the Court to dismiss the appeal.
The Appellants formulated five issues for the determination of the appeal in their brief of argument. The issues read thus: –
a) In all the circumstances of this matter, was the learned trial Judge correct to hold suo motu that the land in dispute was a joint tenancy without calling on the parties to address her on that. Ground one of the Notice of Appeal.
b) In all the circumstances of the case was the 1st Appellant the direct son of Festus Agim or a descendant of Chief Obiagwu? Grounds 2 and 3 of the Notice and Grounds of Appeal.
c) In the circumstance of this case was the learned trial Judge correct to hold that the sale made to the Respondent through a Power of Attorney registered during the pendency of the suit validly made and not for the purpose of the action? Ground 4 of the Notice and Grounds of Appeal.
d) In the circumstances of the case, was the learned trial Judge correct to hold that the traditional history of the Appellants amounted to hearsay and as against that of the Respondent’s DW1? Ground 5 of the Notice and Grounds of Appeal.
e) In all the circumstances of the case, did the learned trial Judge properly evaluate the evidence of the Appellants before hastily dismissing their case in favour of the Defendant. Grounds 6 of the Notice and grounds of Appeal.?
Five issues were likewise formulated for the determination of the appeal by the Respondent in his brief of argument and they read thus: –
ISSUE ONE:
Was the lower Court right in deciding that the land in dispute was held on a joint tenancy by Umuohakwe people?
ISSUE TWO:
Was the 1st appellant a direct son of Chief Festus Agim or a descendant of late Chief Obiagwu?
ISSUE THREE:
Was the lower Court right in deciding that the power of attorney was validly made in favour of the respondent?
ISSUE FOUR:
Was the lower Court right in holding that the traditional history of the appellants amounted to hearsay as against that of the respondent’s DW1?
ISSUE FIVE:
Did the lower Court properly evaluate the evidence of the appellants and that led in favour of the respondent
I am of the considered view that the issues formulated for the determination of the appeal by the Respondent even though differently couched are the same in purport with those formulated by the Appellants. Accordingly, the appeal will be decided on the issues formulated by the Appellants. This is in the event the P.O. of the Respondent to which the attention of the Court was drawn allows for this. I however consider it expedient to first dwell on the aptness or correctness of the P.O. that was brought to the attention of the Court and to decide as to whether or not it calls for resolution in this judgment.
Respondent’s Notice of P.O. to the hearing of the appeal is dated 16/3/2018 and filed on 22/3/2018. The grounds of objection as set out therein are as follows: –
(a) There is no competent brief of argument filed and served by the appellants in this appeal.
(b) The purported appellants’ brief of argument filed on 21/4/2017 has the name of Theodore Okoroafor as the respondent whereas Theodore Okoroafor died and was buried in 2016 to the knowledge of the appellants and their counsel.
(c) The name of Theodore Okoroafor was on 24/4/2017, struck out from the appeal and was substituted by his son called “CHIDUBEM UCHE OKOROAFOR”.
(d) The appellants’ brief of argument filed on 21/4/2017 and served on Ifeanyi Aladum, Esq., in this Court is incompetent in that the process is against a dead person, Theodore Okoroafor, to the knowledge of the appellants and their counsel, I.M.E. Onyenakazi.
(e) The purported motion for extension of time to file the appellants’ brief of argument relied upon by the Court of Appeal was not served on the respondent or his counsel, Hon. Chief O.E. Aladum.
(f) The appellants’ brief of argument purportedly filed on 8/6/2017 or thereabout, with the name of CHIDUBEM UCHE OKOROAFOR is incompetent and or an abuse of Court process since it was not assessed and paid for and or served on the respondent and or his counsel, Hon. Chief O.E. Aladum.
(g) The purported proof of service attached at the back of the said brief of argument showing that same was served on Ifeanyi Aladum, Esq., on 24/4/2017, was fraudulently done by the appellants or their counselor a staff of the registry of this Court.
(h) The person who perpetrated the fraud set out in paragraph (g) above thickened the date of filing i.e. 21/04/2017, vide the said process attached herewith purporting same to have been served on Ifeanyi Aladum, Esq., when that counsel’s address does not appear anywhere in any process filed in this appeal or even in the record of appeal purporting him to be respondent’s counsel.
(i) It is trite law that a Court process not paid for cannot be countenanced by the Court.
(j) It is also settled that a Court process is served only after it is filed and not before.
(k) It is trite law that a dead person can neither sue nor be sued, same applies to parties in an appeal. Respondent’s motion for substitution was filed and served on the appellants’ counsel, l.M.E Onyenakazi, Esq., in 2016 on the ground that Theodore Okoroafor was dead and buried. Appellants’ brief of argument filed on 21/4/2017, several months later is incompetent and abuse of Court process and same ought to be dismissed.
(i) There being no competent appellants’ brief of argument in this appeal, this Hon. Court has the duty and power to dismiss the appellants’ appeal under Order 19 Rule 10(2) with substantial cost.?
Unless the Respondent is of the view that the Notice of P.O. is self-executory, (in that it has argued itself and which position I cannot agree with), I must observe that whatever P.O. the Respondent raised in the Notice of P.O., must be deemed as having been abandoned as the said P.O. was not argued in any part of the Respondent’s brief of argument. This is more so as the P.O. of the Respondent was never argued separately in any proceeding at any time prior to the date of the hearing of the appeal. Though I am aware that at paragraph 1.1. on the first page of the Respondent’s brief of argument it was stated thus: –
“The respondent has filed preliminary objection to the hearing of this appeal.”
I simply do not understand this as constituting an argument of the P.O. raised in the Notice of P.O. I am of the considered view that even if the Respondent by way of argument had nothing to add to the P.O. raised in the Notice of P.O. because he considered the said Notice to be detailed, then what he should have done was to have simply re-produced the content of the said Notice of P.O. in his brief of argument as his argument in respect of the P.O. The P.O. raised in the Respondent’s Notice of P.O. having not been argued must therefore be deemed as having been abandoned and is hereby struck out without ado. This being the situation there is no need to look into the aptness or correctness of the P.O. for the complaints raised therein and which in my considered view could only be addressed by way of motion on notice. I will therefore proceed to consider the appeal before the Court on the merit and on the issues formulated by the Appellants.
APPELLANTS? ISSUE 1 “IN ALL THE CIRCUMSTANCES OF THIS MATTER, WAS THE LEARNED TRIAL JUDGE CORRECT TO HOLD SUO MOTU THAT THE LAND IN DISPUTE WAS A JOINT TENANCY WITHOUT CALLING ON THE PARTIES TO ADDRESS HER ON THAT”
Dwelling on this issue, the Appellants in the main submitted to the effect that the cases of the parties on their respective pleadings (which bind them) did not raise the issue of joint ownership or joint tenancy. That the lower Court having raised the issue of joint tenancy suo motu was wrong to have resolved the case before it on the basis of the same without calling on the parties to address it on the said issue. That even though the issue was raised for the first time in the address of the Respondent, it was incumbent or mandatory for the lower Court to have called on parties to address it on the issue as parties did not join issues thereon. The Appellants set out the question raised and answered suo motu by the lower Court without calling on the parties to address it thereon to be ?is the land in dispute a communal land or joint property.
It is the stance of the Appellants that the issue raised suo motu and purportedly answered by the lower Court without calling on the parties to address it has caused serious miscarriage of justice. That the case of the parties was fought on the issue of communal ownership of the land by Umuohakwe/Umuobiaku and not on joint tenancy as tenancy was unknown under customary law as at 1937 ? 1938 when the said land tussle was fought. The Appellants submitted that the lower Court ought to have discountenanced the issue of joint ownership which was smuggled into the case by the Respondent in his reply address as being of no moment as issues were settled on pleadings. This is because a brilliant address is no substitute for evidence, and cannot take the place of legal proof. Therefore, that any legal defence on behalf of a party should be raised in his pleadings and not in the address of the party. It is also the stance of the Appellants that the reference made to pages 62 and 63 of Professor B.O. Nwabueze’s Book on Nigerian Land Law by both the Respondent and the lower Court were cited out of contest. That this is so because when the learned Professor of Law was discussing the issue of communal ownership and tenancy in common, he was actually stating that a “Tenancy in common is the antithesis of ownership by the family or community and that the Courts in a long line of cases have been concerned to affirm and emphasis the opposition between the two kinds of tenure”.
Having dwelled further on their views in respect of what the learned Professor of Law stated regarding the tenures recognized by native law and custom and the essential characteristics of a tenancy in common strictly so called, and which gives no right of alienation, the Appellants submitted that customary law does not recognize a joint tenancy but ownership in common or communal ownership which is universally acceptable anywhere in the world. That joint tenancy is a peculiar product of English feudalism. It is also the stance of the Appellants that land acquired by the joint labour of the members of a family or by contributions by two or more members of a family becomes family property. That as the land in dispute was wrestled from Ikpaezenkwere people who tried to seize it from the original land owners who called on their kiths and kins to assist them, after success was achieved, therefore became a communal land. That the Respondent coined out the idea that the land was owned by the individuals that contributed in cash and strength until success was achieved to undermine the 1st Appellant whose consent and approval as the head of the family was needed to be sought for and obtained.
That the major plank of the Respondent’s defence was that the 1st Appellant’s grandfather was not alive when the struggle started. It is the stance of the Appellants that if the people that contributed in cash and strength until success was achieved had intended the land to be shared amongst them, they would have done so initially and not to wait until after 70 years after their demise for the land to be sold by a person who was not even a taxable adult then to sell same. Suffice it to say that the Appellants put up further arguments in order to show that the lower Court was wrong to have found that the land in dispute was a joint tenancy. Having also submitted to the effect that the raising and resolution of an issue suo motu by a Court without affording parties a hearing is tantamount to a denial of fair hearing and that an appellate Court is duty bound in the circumstances to set it aside, the Appellants urged the Court to resolve their Issue 1 in their favour by setting aside the judgment of the lower Court.
Dwelling on his issue 1, the Respondent submitted that the lower Court was right in deciding as it did because that was the purport of the evidence led in favour of the Respondent’s case. It is the stance of the Respondent that the case of the parties is that the land in dispute was not the land of Umuohakwe people but the land of three original owners who were unable to wrest the land in dispute, from the Ikpaezenkwere invaders hence they appealed to their brothers i.e. Umuohakwe people and they all agreed that only those who contributed cash and strength would share in the proceeds of the sale of the land. That, it follows that the land in dispute was held on joint tenancy even though the witnesses largely spoke in Igbo language and not being lawyers, they did not use the term “Joint Tenancy” although it was used by counsel and it was understood by all to be so. The Respondent submitted that the Appellants admitted that the point of joint tenancy was raised on page 339 of the record.
That this is an admission against interest. That it was the duty of the Appellants to reply to that point even if he did so as an issue of law. That in the circumstances, the lower Court cannot be said to have raised the issue of joint tenancy suo motu. That the Appellants having not replied to the issue, have lost their right to complain. This is more so as they did not need the leave of the lower Court for the parties to be heard on the point/issue. That as the Respondent had raised the issue, the Appellants were duty bound to reply to the point and the lower Court was right in its decision. That the Appellants falsely and erroneously alleged that the question of joint tenancy or joint ownership was not raised whereas the Respondent raised the issue in his claim (a) on page 17 of the record of appeal. It is the stance of the Respondent that the position of the Appellants that customary law does not recognize a joint tenancy but ownership is fallacious because when the three original owner of the land in dispute agreed with Umuohakwe people to share the proceeds of sale of the land in dispute with those who came up to help reclaim that land from the ravaging lkpa Ezenkwe people, the agreement that came into being was a joint tenancy and this was pleaded by the Respondent. That the lower Court in its judgment glaringly relied on evidence and pleadings of the parties.
APPELLANTS’ ISSUE 2 “IN ALL THE CIRCUMSTANCES OF THE CASE WAS THE 1ST APPELLANT THE DIRECT SON OF FESTUS AGIM OR A DESCENDANT OF CHIEF OBIAGWU”
Dwelling on this issue, the Appellants submitted to the effect that the lower Court misdirected itself in law when it held that the 1st Appellant was not the son of Chief Obiagwu and that the 1st claimant (i.e. 1st Appellant) is the biological son of Chief Festus Agim who until his death was the Chief of Umuohakwe and Umuobiaku. That Chief Festus Agim remarried the mother of the 1st Appellant by performing nchigha orji rite. It is the stance of the Appellants that the ambivalent misdirection by the lower Court on this point is confirmatory of its proclivity for a flawed thought process which made it to delve into an entirely new area of the paternity of the 1st Appellant diametrically outside the issues properly joined by the parties in their pleadings. That the question of the paternity of the 1st Appellant was not an issue before the lower Court. That even if same was made an issue, the proper parties were not before the Court. That the mother of the 1st Appellant would have been a necessary party as well as Chief Festus Agim and others outside the present parties. The Appellants submitted that both the lower Court and DW1, DW2 and DW3 made this a serious issue by engaging themselves in a spin dance and unconvincingly held that the 1st Appellant was not the biological son of Chief Obiagwu but that of Chief Festus Agim.
That the decision of the lower Court that the 1st Appellant was not a descendant of Chief Obiagwu and therefore not the head of the family of Umuohakwe Umuobiaku is pejorative, prejudicial, derogatory and deprecatory in the extreme. That the remark of the lower Court in question is symptomatic of the general simplistic approach which it employed in this matter. That the lower Court by the remark seemed to suggest that there is a duty on the 1st Appellant to supply the missing gap with respect to his paternity which is unfortunate and unnecessary.
Having further engaged in extensive arguments on the issue of the paternity of the 1st Appellant which the Appellants claimed was not an issue in the case before the lower Court and having passed further harsh comments on the lower Court and also arguing again the issue of communal land vis-a-vis tenancy in common, and the consequence of alienation of land without the consent of the head of family, it is the stance of the Appellants that the 1st Appellant being the son of Chief Obiagwu, cannot be unfairly disinherited from the communal property of the Umuohakwe/Umuobiaku which he holds in trust for and on behalf of the people as their custodian of custom. It is also the stance of the Appellants that being the son of Chief Obiagwu, this Court should resolve Appellants’ Issue 2 in favour of the Appellants and the alternative issue in the negative by holding that the lower Court misdirected itself in law.
Dwelling on this issue under his own issue 2, the Respondent submitted that it was beyond dispute that the lower Court did not misdirect itself. Reference was made to the 2nd paragraph of page 354 to page 363 of the record of appeal. It is the stance of the Respondent that the lower Court correctly set down the facts and the law when it held that the mother of the 1st Appellant had determined the marriage between her and John Obiagwu and so she became the wife of Chief Festus Agim upon re-marrying him. That the 1st Appellant and his sisters born to Festus Agim were his children by the custom of the parties. That as the evidence led in “the case showed that the 1st Appellant was the son of Chief Festus Agim and not the descendant of Chief Obiagwu, the decision of the lower Court on pages 354 to 363 of the record was unimpeachable and correct.
The Court was urged to hold that the 1st Appellant is indeed the son of Chief Festus Agim and not a descendant of Chief Obiagwu and that the 1st Appellant has no interest whatsoever in the land in dispute.
APPELLANTS’ ISSUE 3 “IN THE CIRCUMSTANCE OF THIS CASE, WAS THE LEARNED TRIAL JUDGE CORRECT TO HOLD THAT THE SALE MADE TO THE RESPONDENT THROUGH A POWER OF ATTORNEY REGISTERED DURING THE PENDENCY OF THE SUIT VALIDLY MADE AND NOT FOR THE PURPOSE OF THE ACTION”
Dwelling on this issue, the Appellants submitted that the purported registration of the power of attorney during the pendency of the action was made in bad faith in order to score a cheap goal. That the whole ‘purpose’ (sic) was made with the action in mind and same ought to have been rejected by the lower Court as inadmissible. That the lower Court in spite of the overwhelming facts still admitted the power of attorney and finally held that the sale made to the Respondent was valid. It is the stance of the Appellants that they filed their suit challenging the purported donation of the power of attorney to the Respondent without the consent of the head of family and other principal members of the family on 16/2/2007. That it was while the action was still pending that the Respondent secretly went ahead to register the said power of attorney in December, 2008. It is the stance of the Appellants that the Respondent was undoubtedly an interested party in the pending suit in which it was his purchase of the land that was the subject matter of the suit.
Referring to Section 83(3) of the Evidence Act 2011, the Appellants submitted that a power of attorney affecting a family land registered during the pendency of an action is inadmissible when it is made to establish title or as an evidence of title. The Appellants also submitted that the sale of a family land without the consent of the family head is void and of no effect. It is the stance of the Appellants that the lower Court ought to have made a pronouncement on the said document before reaching the decision conferring title on the Respondent and that having failed to do so, this has occasioned serious miscarriage of justice to the Appellants. The Appellants submitted that mere registration of a title document does not validate a spurious or fraudulent instrument of title or a transfer or grant which in law is patently invalid or ineffective. That as the persons that purportedly donated the power of attorney to the Respondent have no capacity or authority to do so without the consent of the 1st Appellant as the head of the family, the bottom is knocked off the grant made to the Respondent. This is because nobody gives what he does not have (nemo dat quod non habet). The Court was urged to resolve issue No. 3 in favour of the Appellants.
The Respondent in dwelling on this issue under his issue 3 simply relied on submissions under his issue 2 and urged the Court to hold that the power of attorney made in his (Respondent?s) favour was validly made and thus answer the issue in the affirmative.
APPELLANTS? ISSUE 4 ” IN THE CIRCUMSTANCES OF THE CASE, WAS THE LEARNED TRIAL JUDGE CORRECT TO HOLD THAT THE TRADITIONAL HISTORY OF THE APPELLANTS AMOUNTED TO HEARSAY AND AS AGAINST THAT OF THE RESPONDENT’S DW1″
Dwelling on this issue, the Appellants said the answer to the issue is a resounding No. this is because proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence, often extending beyond human memory and time of the witnesses narrating the history, which narrations were handed down from generation to generation. That traditional evidence is always evidence derived from tradition. That it is made by persons since deceased, in regard to questions of pedigree, ancient boundaries where no living witness can be produced having knowledge of the facts. That by its very nature traditional evidence is hearsay evidence which by the strict rules of evidence is inadmissible but it is made admissible by Section 44 of the Evidence Act 2011. It is the stance of the Appellants that the lower Court as an umpire, has a very important duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the evidence. The Appellants submitted that the lower Court was in serious error when it failed to adhere to judicial requirements and in a jaundiced manner held on page 352 of the record thus: ?The evidence of the claimants is inconsistent and unreliable. Both Pw1 and Pw2 were very economical with the truth .. Their evidence amounts to hearsay.”
The Appellants submitted that the lower Court failed to realize that in narrating traditional history, there is bound to be minor discrepancies owing to the age of the history and imperfection in the testimony of a witness is usual accomplishment of a concocted story and that imperfection in human recollection is quite normal. That the lower Court was in error to have believed the evidence of Livinus Ogbuji who the said Court claimed was the only person alive that participated in the war of Ikpaezenkwere without regard to the unchallenged evidence of the Appellants’ witnesses. That this was the same person that the Pw1, Pw2 and Pw3 variously stated was a young boy during the war and could not have participated in the war. Having gone further to give their evaluation of the evidence before the lower Court, and saying that it was the flawed thought process of the said court that influenced its decision, the Appellants submitted that the said Court was in serious error when it dismissively disregarded the traditional evidence of the claimants as hearsay. This Court was urged to resolve issue No. 4 in the negative and in favour of the Appellants.
Dwelling on this issue under his issue 4, the Respondent submitted that the lower Court was right in its judgment that the traditional history of the Appellants is hearsay against that of DW1. That it is worthy to note that most of the Appellants’ witnesses testified as eye witnesses to the events that occurred before, during and after the “war” to reclaim the land in dispute but they were not born by then. In the premises, the Respondent said that the judgment of the lower Court on this issue is correct and this Court was urged to so hold. This is more so as only DW1, Livinus Ogbuji was an eye witness to the events which led to the recapture/recovery of the land in dispute from the Ikpaezenkwere people and therefore, the evidence led by him (Respondent) in support of his case was direct, cogent, reliable and believable and was duly believed by the lower Court. Consequently, the Respondent urged this Court to answer this issue in the positive.
APPELLANTS? ISSUE 5 IN ALL THE CIRCUMSTANCES OF THE CASE, DID THE LEARNED TRIAL JUDGE PROPERLY EVALUATE THE EVIDENCE OF THE APPELLANTS BEFORE HASTILY DISMISSING THEIR CASE IN FAVOUR OF THE DEFENDANT.
Dwelling on this issue, the Appellants submitted that the lower Court woefully failed to properly evaluate their (Appellants’) evidence. That the said Court also failed to exercise its discretionary powers judicially and judiciously when it held that the sale of the “Joint property” by people who were not the family head or principal members of the family confers valid title to the Respondent. This is so because it is shown on the face of the document conferring title that some of the people named in it especially on the side of the Appellants, did not append their signatures thereon. Stating that the position of the law is that unsigned document deserves no evidential weight or value, the Appellants submitted that the power of attorney tendered by the Respondent in proof of his title, therefore possesses no weight. That this is so even if the document had been admitted in evidence. that the purported reference of the DONORS of the land to the Respondent as “Principal members of Umuohakwe kindred union of Umuobiaku Ozuomee” notwithstanding, the same shows that the land itself was a communal land as pleaded by the Appellants.
That the non-signing of the document by all the parties shows that there was no consensus reached to sell the land in the first place and the purported irrevocable power of attorney donated to the Respondent was not with the consent of all the principal members and therefore same is void. That the case worsened still when it was discovered that the 1st Appellant as the Head of the family of Umuohakwe, Umuobiaku did not also consent to the donation of the power of attorney which makes the whole transaction to be void. That in holding as the lower Court did, it veered into an issue not canvassed by the parties in their pleadings especially when it stated that the property in question was “a joint tenancy.” Submitting that the position of the law is that the primary duty of a Court in the process of adjudication is to make findings of facts on issues joined on pleadings, and that where a Court fails to do this, an appellate Court can appropriately set aside the decision or order for a retrial, the Appellants urged this Court to set aside this decision by holding that the lower Court?s defect has caused serious miscarriage of justice to them Appellants.
Having dwelled further on what a claim in trespass postulates and having engaged in a rehash of the issues they have dwelled upon before, the Appellants asserting that they have led evidence to prove that they were in possession before the act of the trespass of the Respondent, submitted that the lower Court ought to have granted their claim and granted the injunction sought instead of refusing same. The Court was therefore urged to set aside the findings of the lower Court by holding that the Appellants proved their case on trespass. The Court was urged to resolve the issue 5 in the negative and in favour of the Appellants.
Dwelling on his issue 5, the Respondent urged the Court to answer same in the positive. The Respondent also urged the Court to note that issue 5 raised by the Appellants on page 11 of their brief and issue No. 5 which the Appellants argued on pages 31 to 36 of their brief is totally different from the issue No. 5 on page 11 of the same brief. This Court was urged to discountenance the points so raised and argued on pages 31 to 36 and to strike out issue 5 as abandoned.
The consolidated cases in which the lower Court delivered its judgment on 30/4/2014 and from which the instant appeal has emanated in my considered view would appear to be somehow strange. This is because what the record of appeal contains are: –
(i) Writ of summons which issued on 16/2/2007 in Suit No. HOR/17/2007 between the Appellants and the Respondent. (See page 1-2 of the record);
(ii) A statement of claim dated 20/2/2008 filed in the above mentioned action. (See pages 3-6 of the record);
(iii) Writ of summons which issued on 3/9/2007 in Suit No. HOR/120/2007 between the Respondent and Appellants (See pages 16-18 of the record).
(iv) A statement of claim dated 20/12/2007 filed in the above mentioned case on 15/1/2008 (See pages 27-30 of the
record).
(v) A statement of defence in respect of Suit No. HOR/120/2007 filed on 13/1/2009 (See pages 40-44 of the record).
(vi) Plaintiff?s reply to Defendant?s Statement of Defence in Suit No. HOR/120/2007 filed on 12/3/2009. (See pages 74-75 of the record).
(vii) Issues arising from Suit No. HOR/17/2007 dated 16/11/2010. (See page 175 of the record).
The Respondent as it can be seen from the process itemized above, clearly did not file a statement of defence to Suit No. HOR/17/2007. The aim and purpose of consolidation of cases is settled and it is that it is to save costs and time, and therefore will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the actions to render it desirable that the whole should be disposed of at the same time. See the case of NGERE V. OKURUKET (2015) LPELR 24749 (SC). It is against the backdrop of the fact that no statement of defence was filed in Suit No. HOR/17/2007 that I find it somehow strange that the two cases before the lower Court were consolidated in the first place. After all the settled position of the law is that it is the pleadings of parties that circumscribe the issues in respect of which they are in agreement and disagreement. In any case, as parties apparently adopted the procedure of consolidation of two actions in which no pleading by way of defence was filed in one, they have only themselves to blame and also have to live with the fact that two separate judgments were not entered in the consolidated cases by the lower Court. Indeed, it would appear that the non-segregation of the judgment in respect of the consolidated cases goes to nought given the case of NKUMA V. ODILI (2006) LPELR 2047 (SC) wherein the Supreme Court per Oguntade, JSC; said thus: –
‘Whilst it is correct that in a consolidated matter, a Court must come to separate decision on issues agitated in each of the cases, it must be borne in mind that what is required is that the judgment of the Court must show that the trial Judge averted his mind to all the issues arising from the consolidated suit. The manner in which a Judge does this very often depends on the nature of the consolidated cases.’
The position of the law that consolidated cases also admits of some fluidity when it comes to appeals, also finds endorsement or recognition in the case of CHIKERE V. OKEGBE (2000) LPELR ? 847 (SC) wherein the Supreme Court per Ayoola, JSC; stated thus: –
When an appeal is taken from the decision in consolidated suits and the notice has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.
Now, to the resolution of the issues formulated for the determination of the appeal by the Appellants. In undertaking this, I will set out virtually the whole or a substantial part of the judgment of the lower Court. It has become necessary to do this in order to expose or reveal the reasoning or thought process of the lower Court on the issues it had to determine. In my considered view this has become necessary against the backdrop of the very harsh and uncomplimentary or uncivil comments/submissions by the Appellants in their brief of argument depicting the lower Court as a simpleton. Indeed, it would appear from the harsh words used against the lower Court that the Appellants have an axe to grind with the lower Court and have used the opportunity of the instant appeal to do this.
This attitude is condemned or deprecated in the strongest terms possible. Counsel and parties no matter how highly placed should be able to express their grouse(s) against the judgment of a lower Court without using uncomplimentary or uncivil words or language or phraseology particularly as the lower Court is never in a position to join issues with any of the parties in respect of abuses unleashed against it, talk less of responding to the same.
Having regard to page 175 of the record and in my considered view, in thorough understanding of the various pleadings filed in the consolidated cases before the lower Court, the Appellants set out the following issues as arising from Suit No. HOR/17/2007:-
a) Is the Defendant (i.e. Respondent herein) liable in trespass to the Plaintiffs (i.e. Appellants herein)?
b) Even if the answer to the above is in the affirmative, are the Plaintiffs not entitled to damages and order of injunction against the Defendant?”
The issues which the Appellants set out as arising from Suit No. HOR/120/2007 on the same page of the record are: –
A. In the entire circumstances of the case, did the Plaintiff acquire a valid title to the land he called ALA UKWUEDO?
B. In particular, can a power of attorney donated and executed during the pendency of a suit constitute a valid basis of claim of title to land and nevertheless, can a power of attorney validly confer title to land to any person.”
In its judgment the lower Court dwelling on the facts of the respective cases of the parties and issues as formulated by them as well as issues it believed to arise for determination in the cases before it stated thus:-
To prove their case, Claimants called 7 Witnesses and tendered Exhibit ‘A’ (the Survey Plan of the land in dispute) as well as Exhibit ‘F’ (baptismal card)
On his part, the Defendant called 3 Witnesses and tendered Exhibits ?
B) Power of Attorney
B1) Minutes of Meeting
C) Minutes of Meeting
D) Survey Plan
E) Survey Plan
At the end of the evidence of the parties the matter was adjourned for adoption. The Defendant’s Counsel filed and served his written Address on the Claimants and on the day fixed for adoption, the Claimants’ Counsel came up with a Motion for additional 3 Witnesses which the defence Counsel opposed as over reaching bearing in mind that the Defendant has filed and served his Written address acknowledged by the Claimants. However, the application was fully considered and granted.
On the 25/3/2014, both Counsel adopted their written submissions and relied on it as their arguments in this consolidated suits.
The Defendant’s Counsel formulated 2 issues for determination:
1) Did the Claimants proved (sic) their case to entitle them to their claims?
2) Did the Defendant proved (sic) his case to entitle him to his case?
On his part, the Claimants’ Counsel formulated 4 issues for determination thus:
a) Whether a communal or family land which has not been partitioned can be alienated or sold without the consent and approval of the head of the family and other principal members.
b) Whether the 1st Claimant can be said to be the descendant of Chief Obiagwu and therefore the family head of Umuohakwe/Umuobiaku Kindred?
c) If the answers to (a) and (b) above are favourably resolved in favour of the Claimants, whether the purported sale of the family property to the Defendant without the consent and approval of the head of the family is not void?
d) In particular, can a Power of Attorney donated and executed during the pendency of a Suit constitute a validity basis of claim of title to land and nevertheless, can a Power of Attorney valid confer title to land to the case of the Claimants.
A consideration of the case of the parties before me will give rise to 3 issues which this Court is called upon to this to determine:-
1) Whether the land indispute is a communal land?
2) Did the Claimants prove their case to entitled (sic) them to their claim?
3) Did the Defendant prove his case to entitle him to his claim?
I shall come back to the issues later.
At this point, it is imperative to state briefly, the respective case of the parties. It is the case of the Claimants that the land in dispute called “Ala Ububa” are communal land of Umaobiaku Village and is shown in the Survey Plan admitted in evidence as Exhibit ‘A’. That the land was originally owned by 6 families namely – Umunwaneri Odenigbo, Julius Nwangwu, Ben Nwangwu, Marcel Aguzie, Alionye Otunkwe and Paul Uzonwanne, that the land became a communal land upon the agreement with the original owners and Umuobiaku who assisted them to recover the land from Ikpaezenkwere. That the Defendant trespassed into the land upon a Power of Attorney donated without the consent and approval of the head of the family ? the 1st Claimant and some principal members.
On his part, the Defendant denied that the land in dispute is a communal land. He stated that the land in dispute belong to 3 original owners namely: Uzoamaka Ngawuchi, Umenwaneri Odenigbo and Julius Nwangwu and that the land is called “Ala Ukwuedo”. That it belongs to some families in Umuohakwe and no member of Umuobiaku has interest in the land indispute. That the 1st Claimant is the biological son of Chief Festus Agim who until his death was the Chief of Umuohakwe and Umuobiaku.
That Chief Festus remarried the mother of the 1st Claimant by performing Nchicha Orji rite. That there was no agreement between the original owners of the land and Umuobiaku. That the agreement in respect to the land was between the 3 original owners and members of Umuohakwe who contributed in cash or strength of victory in the war to recover the land in dispute from Ikpaezenkwere in 1937. The Defendant denied that the land is a communal land. The Defendant averred that he never entered into the land as a trespasser. He stressed that the rightful joint owners of the land donated the Power of Attorney to him and that it was the Claimants that trespassed and unlawfully damaged his materials on the land.
Having embarked on an extensive review of the evidence of witnesses from pages 326-337 of the record and dwelling on issue one of the issues identified by the lower Court for the determination of the case, the said Court continued thus in its judgment:-
ISSUE NO. ONE
Whether the land in dispute is a communal land?
Learned Counsel for the Claimants submitted that from the evidence of the Defendant that it was agreed between 3 original owners of the land and Umuohakwe people then alife (sic) that only Umuohakwe people who actually contributed in cash and strength till victory is achieved will share the proceeds of the land in dispute or the proceeds of the sale of the land, it is clear that the land is a communal land. Counsel in his written address, delved into native law and custom in Nigeria as it relates to communal land and cited Plethora of authorities to support his argument as it relates to communal land. Continuing, Counsel submitted that the consent of the head of the family and the principal members of the family is indispensable for a valid disposition of a family property.
He continued that the sale or grant of a power of Attorney to the Defendant without the consent of the 1st Claimant and other principal members of Umuohakwe/Umuobiaku was not validly made and therefore void.
In reaction, Learned Counsel for the Defendant contended that the 3 issues raised by his Learned friend in his written address are not based on facts before this Court but are based on serious misconception that the land in dispute is a communal land which is not. He argued that the Learned Counsel wrongly concluded that from the case of the Defendant, it shows that the land is a communal land and cited several authorities claiming that any alienation of a family/property without the consent of the family head who they contend is the (1st Claimant) is void.
Counsel contended that the land does not belong to Umuohakwe family as a whole or Umuobiaku as a kindred as the Defendant established in his evidence that the agreement between the 3 original owners and some people in Umuohakwe is that only those who contributed or participated in cash and strength to victory would have share in the land.
Continuing, he said at best what exist as interest of each person that fought for recovery of the land from Ikpaezenkwere is a tenancy in common which simply means, separate individual ownership of an individual share.
He submitted that the Defendant proved his case on the preponderance of evidence to the effect that the land in dispute is not a communal land but are held under a tenancy in common.
That the land is not for all Umuohakwe but only for those whose fathers contributed as agreed. Counsel argued that the evidence of the claimants are contradictory as he referred to the evidence of PW4 – Raphael Uzonwanne and PW2. He contended that the Claimants led no reliable evidence to prove that the land is a communal land, adding that the evidence of the Claimants’ witnesses amount to hearsay. He cited Sections 35, 38 of the Evidence Act, 2011.
It was his contention that the land in dispute is not a family land but self-acquired land by some (not all) members of Umuohakwe family upon agreement that only those who contributed strength and cash would be entitled to the land or the proceeds thereof. He quoted PROF. B.O. NWABUEZE’S Book – The Nigerian Land Laws pages 62 – 63 which states – “It cannot be said that the land becomes communal land and so subject to the rules governing tenure by a family, village or community; its ownership must surely belong to the partners as individuals, with each having an individual share in it. What Customary Law does not recognise is a joint tenancy whereas ownership in common is a universal method of land holding everywhere in the world “… To ascertain whether the land in dispute is a communal land will help to determine whether the Power of Attorney was lawfully donated, or whether the transaction is void.
It is the law that where a piece of land is considered to be a communal land, alienation without the consent of the head of family and principal members is void. The question now is; Is the land in dispute a communal land or a joint property?
From the evidence of the parties, it is a fact that in 1937-1938, the original owners of this land in dispute, disputed this land with the people of Ikpaezenkwere. See the evidence of all the parties.
The Claimants in their Amended Statement of Claim stated that the original owners of the land in dispute are 6 (see their Amended Statement of Claim) as confirmed by PW1 in his testimony on Oath but PW2 and PW3 told the Court that the original owners were 5 while PW4 and PW7 agreed with the Defendant that the original owners were 3 but gave different names. It is the law that the Court cannot pick and chose (sic) how many the original owners were from the Claimants’ evidence.
The Defendant and his witnesses, DW1, DW2 and DW3 maintained consistently that the original owners of the land in dispute were 3. This piece of evidence is supported by the evidence of PW4 and PW7. (See the evidence of the parties on oath).
I believe and found as a fact that the original owners of the land in dispute were 3 namely – Uzoamaka Ngawuchi, Umenwaneri Odenigbo and Julius Nwangwu as stated by PW1 (sic: DW1), PW2 (sic: DW2) and PW3 (sic: DW3). In this regard, the evidence of the Defendant is reliable and preferable.
It is (sic: a) fact that none of the Claimants were ever born during the period of the war to regain the land from Ikpaezenkwere took place in 1937-1938. See the evidence of PW1, PW2, PW3, PW4, PWS, PW6 and PW7 as confirmed by DW1 the eye-witness.
On the part of the Defendant, it is a fact that the DW1 who is over 100 years, participated, took part and was part of the agreement in 1937-1938. He is the only living soul alife (sic) that took part in the war. His evidence is reliable, cogent and authentic. See the evidence of DW2 and PW4. It is a fact that DW1 ? LIVINUS OGNUJI is the oldest man in Umuohakwe in Umuobiaku.
It is pertinent to note that the Claimants and the Defendant and his witnesses differed in the terms of agreement with the 3 original owners. While the Claimants who were not born when the war took place between the people of Ikpaezenkwere and the 3 original owners and some members of Umuohakwe told the Court that the agreement was between the original owners from Umuohakwe and Umuobiaku wherefore, it was agreed that if Umuobiaku kindred now village, assist to regain the land from the people of Ikpaezenkwere, the land will be a communal land of Umuobiaku and that was their basis for claiming that the land is a communal landUmuobiaku.
The evidence of the Defendant and his witnesses which included the only living man who took part in the war – (DW1) is that the land is not a communal land of Umuohakwe let alone Umuobiaku kindred who have no interest in the land. The terms of agreement between the 3 original owners and Umuohakwe was that anybody/family who contributed or participated in cash or strength till victory was achieved, will share in the proceeds of the land and DW1 who is the only man alife (sic) that participated and DW2 mentioned in their evidence on oath the families/persons that participated in the war that gave them victory in 1938 when the war ended. It is also a fact that it was the DW1 that explained in Umuohakwe family meeting the circumstances of the land and how it became a joint property including the fact that nobody from Obiagwu family participated to regain the land because Obiagwu had died prior to 1937 and John was born long after the end of the war. I therefore accept the evidence of the Defendant as believable, reliable and authentic.
It is a fact that the Claimants were not born as at 1937-1938 and did not mention anybody from Umuobiaku who participated. All that they told the Court is what they heard about it. The Claimants all admitted during cross-examination that none of them were born or knew what transpired during that time. The story of the Defendant is more reliable, plausible and believable.
I found (sic) as a fact that the agreement was between the 3 original and thowners e people of Umuohakwe who participated in cash and strength to re-possess the land from Ikpaezenkwere people and not between the original owners and Umuobiaku. Umuobiaku as a kindred has nothing to do and were not part of the agreement with the original owners. The evidence of DW1 as an eye witness is impeachable and credible. His evidence was never challenged. He gave a true account of what transpired.
I therefore hold that the PW1 and PW2 lied when they testified that DW1 Livinus Ogbuji is a stranger.
I found (sic) the evidence of PW1 under oath very absurd as it concerns his birth. He testified under cross-examination that “In Umuohakwe family, nobody who took part in the dispute of 1937-1938 is alife (sic) today. I know a man called ? LIVINUS OGBUJI, he is alife (sic). He did not participate in 1937. I accept what my father told me about the land. Yes my father was not born then, but my grand-father was alife (sic) and had been born then. My grand-father is called Obiagwu who begat John. I don’t know if my grand-father died prior to 1930. I do not agree that my grand-father died without a son during his life time. It is not true that neither John who was not born during the dispute nor Obiagwu who died before 1930 contributed money or strength to regain the land from Ikpaezenkwere?….? From the evidence of PW1 above, PW1 lied when he denied that DW1 ? LIVINUS OGBUJI did not participate when it is established that he is the only eye witness who participate at the war. PW1 also lied when he told the Court that his father John told him about the war.
It is a fact before me that Obiagwu whom he is now answering his name died in 1930 (before the war of 1937).
It is established that Obiagwu died without a son during his life time and did not take part in the war. It is a fact that the wife of Obiagwu – Obidie begat John Obiagwu long after Obiagwu her husband died. By the custom of Umuohakwe, Ozuomee, since Obidie stayed and begat John, he became the successor of Obiagwu and died in 1974. He did not take part in the war. It is a fact that John Obiagwu died without a son with Angela who left for her maiden home after the death of her husband. See the Statement of Defence as well as DW1 and DW2 evidence which were not challenged by the Claimants.
It is crystal clear the PW1 who was born in 1983 could not have heard from Obiagwu who died in 1930 or John who died in 1974, 9 years before he was born. He could not have been the son of John who died long before he was born.
Again, it is a fact that the PW1’s mother went to her maiden home after her husband’s death and she had no child for him. It is established that Chief Festus Agim was the next of kin to John Obiagwu, when John died, he contested the stool with Elisius Uzonwanne and won and became the Chief of Umuohakwe in Umuobiaku. I accept as a fact that Festus performed the “Nchigha Orji” on the head of the mother of the PW1 and she became his wife and the marriage produced the PW1 and daughter. See the Evidence of DW1 and DW2.
It is not in contest that the PW1 is the biological son of Chief Festus Agim and to tell this Court that the dead man who was not born when the war took place and who had no child and died long before the PW1 was person who told him about the war is to say the least unfortunate. I declare his evidence untrue and unreliable. A man that denies his root is not a credible character. The evidence of PW1 and PW2 are unreliable and tissues of lies. PW1 is not a witness of truth. His evidence is not credible and not reliable. I therefore reject his evidence. He told the Court that Obiagwu John inherited the land from his father and passed it on to him who is now in possession. This evidence is contrary to the established facts before me.
From the evidence before me, I hold that the land in dispute is not a communal land of Umuobiaku and not even a communal land of Umuohakwe, rather it is a land jointly owned by some families or persons in Umuohakwe whose fathers contributed in cash and strength to regain the land from Ikpaezenkwere including the only man alife (sic) who participated in the war – DW1. It is also established that nobody from Obiagwu’s family participated or contributed in cash and strength to recover the land in dispute as there was no male child standing in that family between 1937-1938.
Consequently, the PW1 has no claims over the proceeds or the land even if he claims to be a Chief of Umuohakwe.
Having so held, I completely disagree with the submission of Counsel that the land is a communal land. It is my humble view with due respect to the Learned Counsel that all the authorities he cited and relied on the erroneous conception that the land is a communal land is not applicable in this case.
Where a land is a communal land, the law is clear that no member of the family will alienate without the consent and approval of the principal members of (sic) the head of family as submitted.
In the instant case, the land in dispute is not a communal land but is jointly owned by some persons in Umuohakwe. It must be stressed here that there is a difference between a communal land and land jointly owned in common. See PROF. NWABUEZE’S Book on land law. The problem here is that of a total misconception by Counsel.
Furthermore, in respect to the land in dispute, the PW5 stated on oath during cross-examination as follows:- “I was born in 1976, I don’t know anything about the land in dispute. I was born after the land in dispute had been regained. Yes all that I said in my deposition is what I heard. His evidence is neither here nor there. The evidence of PW5, PW6 and PW7 are not helpful, nor authentic. Both PW5 and PW6 all admitted that what they told the Court are all that they were told and they did not know anything about the land or the war which took place before they were born.
PW6 under cross-examination, stated yes when a man dies, his estate/inheritance goes to his son. Yes I stated in my deposition that I was re-called to come and inherit my husband’s property . Yes the land belongs to Obiagwu and his kinsmen. I heard that the land belongs to my husband and his brothers. All I heard from my husband is what I told the Court. From the evidence above, one will get the impression of a woman who deliberately came to Court to deceive the Court. She told the Court that she was told that the land belongs to her previous husband ? John Obiagwu and his brothers. This piece of evidence is hereby rejected in the face of the evidence before me. I do not believe the evidence of PW6 which are full of distorted facts. She lied with the two sides of his month. I hereby reject her evidence.
PW7 admitted under cross-examination that the original owners were 3. He testified as follows “I know what transpired in relation to the land in dispute. Yes there was a dispute between Ikpaezenkwere and the 3 original owners of this land in dispute. Yes I was an eye witness to this dispute, I only heard of it. I was not born when it happened .”
From the evidence before me, the Claimants gave conflicting and contradicting account of what happened for instance, the actual number of the original owners. See the evidence of PW4 and PW7 which contradicted the evidence of PW1. See also the evidence of PW2 and PW3 stated that the number of the original owners were 5 while PW4 and PW7 agreed with the Defendant that the original owners were 3. I therefore, hold that the evidence of Defendant and his witnesses are credible, believable and reliable while the evidence of the Claimants are full of contradictions, unbelievable and unreliable.
These contradictions and conflictions are substantial and goes to discredit the Claimants. The Claimants failed to adduce credible evidence to show that the land is a communal land. The Court cannot speculate.
From the evidence above, I rely (sic) on the case of OSUJI VS. EKEOCHA (2009) 16 NWLR 89 where the Court “held joint ownership pre-supposes ownership of property by more than one person or by a group of persons. In that regard, property owned by two or more families can be said to be joint property of the families.”
I therefore agree completely with the submission of the Defendant’s Counsel that the land in dispute is not the communal land of Umuohakwe let alone Umuobiaku. At best, it is a joint ownership amongst the parties whose fathers contributed or participated in cash or strength to victory in the 1937-1938 war between the 3 original owners and Ikpaezenkwere including the only eye witness who participated DW1. I therefore resolve issue No. 1 in favour of the Defendant. I hold and found that the land is not a communal land of Umuobiaku as claimed by the Claimants, but is jointly owned by some family members in Umuohakwe whose fathers contributed in the land, excluding the 1st Claimant.
Having so held, the issue of head of family or principal members does not arise and the 1st Claimant has no business whatsoever with the land either as a head of family of Umuobiaku or Umuohakwe. It is not a communal land which he claims nor as a person claiming through Obiagwu family because neither Obiagwu who died in 1930 nor John Obiagwu who was born after the war qualified to share in the proceeds of the joint property according to the agreement with the 3 original owners.
It is a fact that 1st Claimant is not a direct or biological son of John Obiagwu who died in 1974 long before 1st Claimant was born. It is established as a fact that Chief Festus Agim performed the Nchigha Orji ceremony and re-married the mother of the 1st Claimant and begat the Claimant. See the evidence of DW1 and DW2. See the evidence of PW6. She admitted as stated above that it is the children of a man that inherit his property and that she was re-called to come and inherit her husband’s property. The question is, is it customary for a woman who did not have a child for her husband during his life time to be re-called to come solely to inherit the husband’s property. The answer is in the negative.
It is a universal and general knowledge that a woman who had no child for her husband cannot inherit her husband’s estate. In such a State, the next of kin of the husband will inherit the brother’s estate and the woman is usually asked to go to her maiden home and if she remains, it will be at the pleasure of any of the husband’s brother or next of kin and if any of them performs Nchigha Orji ceremony on her head, she automatically becomes his wife, as in this instant case.
I do not believe the PW6 when she said she was re-called from her maiden home to come and inherit her late husband’s estate when she had no child for him during his life time. PW1 lied when under cross-examination, he denied that he did not know what transpired between Chief Festus Agim and his mother – PW6. It appears he denied his biological father because of quest for power. The true position which is believable is that after Chief Festus was considered as the next of kin of late John Obiagwu, he performed Nchigba Orji which entitled him to re-marry Angela – PW6 (the mother of the 1st Claimant) as his wife and they lived together and produced the 1st Claimant and his sisters. See the Statement of Defence as well as the evidence of DW1 and DW2 which are believable and credible and not challenged by the Claimants.
It is the law therefore that as long as Chief Festus performed the Nchigha Orji which was not returned, Angela remains his wife and the 1st Claimant, his biological son. With respect to the Learned Counsel’s submission, I disagree completely with the submission of Counsel that the defence did not challenge the denial of the PW6’s evidence that Chief Festus Agim did not perform Nchigha Orji on her. The Defendant challenged it in both his Statement of Defence and DW1 and DW2’s evidence which he adopted in stating that Festus was accompanied with some Umuada and other people. I hereby accept the evidence of Defendant which is believable.
On the issue of the baptismal card – Exhibit ‘F’, I ascribe no probative value to it. It was a document meant purposely for this case when the ps artiehave closed their cases and the matter fixed for adoption. It is not relevant except to show that the Claimant was born on the date written on the document. The Defendant’s Counsel filed and served his written address – and on the day for adoption, Claimant’s Counsel brought application for leave to bring additional witnesses and to tender the baptismal card which was intended to over reach. It is only accepted to confirm the date the 1st Claimant was born and not to be used for any other thing. On examination of the document, it is very clear that it was recently procured for this case and it was very new without any daint (sic) which is unusual of a baptismal card of a 30 years old man. I therefore discountenance it as authentic document. It has no probative value. I accept the evidence of DW2 that PW1 changed his name to Obiagwu primarily for the purpose of this case.
Ground 1 of the grounds of appeal from which Appellants’ issue one which complains that the lower Court raised the issue of joint tenancy suo motu, attacks the judgment of the said lower Court on the basis that it erred in law when it based its judgment on the issue of ‘joint ownership’ or ‘joint tenancy’ in holding that the property subject matter of the dispute was not a family or communal land. It is in the particulars of the said ground one that the Appellants raised amongst others (i) the issue of the joint ownership or joint tenancy having not been pleaded by any of the parties but as having only been mentioned in the reply address of the Respondent; (ii) that the lower court ignored the issue as to how the land became a family land of Umuohakwe and Umuobiaku people and issues joined on it and opted to use the reply address of the Respondent on joint tenancy which was neither referred to by any of the parties nor pleaded as evidence before the said Court and in respect of which the Appellants were not cross-examined.
It is in my considered view glaring from ground 1 of the grounds of appeal vis a vis issue one said to have been distilled therefrom, that the said issue one was not distilled from ground 1 of the grounds of appeal but from the particulars of the said ground 1. It is trite law that an issue or issues for determination in an appeal should not be distilled or formulated from the particulars of the ground or grounds of appeal. I am of the considered view that where an appellant distills an issue for determination from the particulars of a ground or grounds of appeal, all that the said appellant is saying or acknowledging albeit indirectly is that the matter(s) that the particulars relate, should have formed a ground or grounds of appeal.
The position of the law is that where particulars do not relate to the ground of appeal from which they are said to arise, the offending particulars must be struck out and likewise the ground of appeal in question. Ordinarily, therefore, ground 1 of the grounds of appeal and the particulars set out thereunder are liable to be struck out. I will however not do this given the fact that the Respondent did not consider it appropriate to have raised this issue in his P.O. which in any event was abandoned.
I have hereinbefore re-produced in extenso the portion of the judgment of the lower Court in which it considered the question of the types or nature of tenures of the land indispute as well as the issue of the paternity of the 1st Appellant. I am of the considered view that it is obvious from the portion of the judgment re-produced hereinbefore, that the lower Court was properly guided by the pleadings of the parties regarding whether or not the land in dispute was communal land or joint property owned by specified persons (3 in number) and which some other persons (i.e. Umuohakwe people) helped to wrest from the Ikpa Ezenkwere people and which only the Umuohakwe people who actually participated in cash and strength till victory was achieved would share the land in dispute or the proceeds of sale of the said land. In any event see paragraphs 4-8 of the statement of claim on pages 27- 29 of the record and paragraph 6 of the reply on pages 74-75 of the record make this clear. Against the backdrop of the pleadings before the lower Court, I am therefore of the considered view that it is nothing short of a complete and deliberate misapprehension or misconception of the pleadings for the Appellants to have argued that issues were not joined on the nature of ownership of the land in dispute as pleaded by the Respondent. Perhaps, this is because the Appellants consistently used the term ‘joint tenancy’ in their brief of argument and which term the lower Court never used in its judgment.
The position of the law on an issue raised suo motu by a Court, in my considered view would appear to have been settled for long and as enunciated by Tobi, JSC; in the case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD [2006] 19 NWLR (PT. 1013) 147, it is that basically a Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. That in so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. That a Judge can only be accused of raising an issue suo motu if the issue was never raised by any of the parties in the litigation. That a Judge cannot be accused of raising an issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. See also the case of IKENTA BEST (NIGERIA) LTD V ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642 wherein Tobi, JSC; reiterated the above position in these words: –
‘A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A Judge by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.’
Guided by the above cited cases, I cannot but express the opinion that it is apparently because the Appellants have no proper answer to the issue of ‘joint tenancy’ they have accused the lower Court of raising suo motu as they never filed a reply to the issue of joint ownership which the Respondent raised that they (Appellants) have now raised the issue that the lower Court raised the said issue of ‘joint tenancy’ suo motu and riding on the shoulder of the principles of fair hearing, urging this Court to set aside the judgment of the lower Court on that ground. I cannot but say that the correctness of the resolution of an issue a Court is accused of raising suo motu is not in issue in an issue founded on the allegation that a Court raised the said issue suo motu. This is because whether or not the Court accused of raising an issue suo motu and resolving same without calling on parties to address it thereon, correctly resolved the same is of no moment as the Court by so doing has committed an infraction of the principles of fair hearing.
Hence, in my considered view, an appellant who is also aggrieved with the correctness of the resolution of the issue raised by a Court suo motu must appeal against the finding in that regard (as the said appellant cannot presume that the Court would agree with his stance of the issue) and argue it as a separate issue or argue it together with the issue questioning what the lower Court is accused of having resolved suo motu without hearing the parties. The Appellants would appear to have lost sight of this in that while they argued their issue one relating to what they conceived the lower Court to have done suo motu without hearing parties, (and which is not founded on a separate ground of appeal), they also proceeded to argue regarding the correctness of what the lower Court was accused of raising and resolving suo motu (i.e. their ground 1 of the grounds of appeal from which no issue was distilled) together with the issue accusing the lower Court of resolving an issue suo motu without hearing the parties (an issue that lacks foundation in any of the grounds of appeal). To this extent, issue 1 as argued by the Appellants ought to have been discountenanced as they have argued an issue not based on any ground of appeal together with ‘a ground of appeal’ from which no issue was formulated. In any event I find it amazing that the Appellants who at paragraph 7.06 of their brief of argument stated thus:-
‘… The case of the parties was fought on the issue of communal ownership of the land by Umuohakwe/Umuobiaku and not on Joint tenancy as such was unknown under customary law as at 1937-1938 when the said land tussel (sic) was fought.’
(which I consider to be an acknowledgment that ‘Joint tenancy’ is known to customary law, only that it was not known to customary law as at 1937-1938), never disclosed when after 1938 the said ‘joint tenancy’ became known to customary law.
Suffice it to say that flowing from all that has been said and particularly against the backdrop of the pleadings of the parties, I clearly do not find the lower Court to have suo motu raised the issue of ‘joint tenancy’ as alleged by the Appellants. Appellants? issue 1 is accordingly resolved against them
The second issue the lower Court resolved in the portion of its judgment re-produced hereinbefore is that of the ancestry or parentage of the 1st Appellant.
Having read over and over again the judgment of the lower Court, I cannot but say that the Appellants again have either deliberately misapprehended or misconceived the respective case of the parties on the pleadings before the lower Court. In my considered view, this much is glaring from the copious references the lower Court made to the pleadings of the parties and incisive evaluation of the evidence led, in arriving at the conclusion complained against under Appellants’ issue 2.
The Appellants in my considered view would appear to have conveniently closed their eyes to or to have deliberately ignored the provisions of Section 1(1), 7 and 9 of the Evidence Act, 2011 in respect of their stance that the lower Court misdirected itself in pronouncing on the parentage of the 1st Appellant who they claimed to be a head of family and who the Respondent claimed was not. The provisions of the Evidence Act referred to above read thus:
‘Section 1(1) Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereafter declared to be relevant, and of no others.
Provided that (a) the Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case; and
(b) this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.
2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria be admissible in judicial proceedings to which this Act applies: Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.
3. Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria.
7. Facts – (a) necessary to explain or introduce a fact in issue or relevant facts;
(b) which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) which establish the identity of anything or person whose identity is relevant;
(d) which fix the time or place at which any fact in issue or relevant fact happened; or
(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
9. Facts not otherwise relevant are relevant if-
(a) they are inconsistent with any fact in issue or relevant fact; and
(b) by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact probable or improbable.
In my considered view, it is clear that the Respondent in his statement of claim and reply, pleaded facts that went to show that the 1st Appellant could not be a head of family in relation to the land in dispute given the circumstances of his (1st Appellant’s) birth and the lower Court glaringly evaluated all the pieces of evidence adduced in relation to the parentage of the 1st Appellant which was a very relevant fact and also arrived at a correct conclusion in my considered view.
Flowing from all that has been said, is that Appellants? issue two is a non-starter and is hereby resolved against them without ado.
The lower Court dealt with the issue of ?power of attorney? which would appear to be what the Appellants? issue 3 is about, in the course of its resolution of issue 2 before it. In order to appreciate the con in which the lower Court considered the issue of ?power of attorney? in the case before it and whether or not the said Court failed to and or neglected to make a pronouncement in relation to the effect of registering a power of attorney during the pendency of an action as canvassed in Appellants? ground 4 from which their issue 3, is said to have been distilled and to also determine whether or not the said issue 3 is worth considering, I consider it expedient to reproduce what the lower Court said on the matter under its issue 2. It goes thus:
‘On the 2nd issue – whether the Claimants have proved its case to entitle them to their claim?
For the Claimants to be entitled to their claim, they must adduced credible and sufficient evidence in support of their claims …’
Claimants’ Counsel made heavy weather about whether Chief Festus Agim or 1st Claimant was the Chief of Umuohakwe in Umuobiaku. l am afraid it has nothing to do with the real issues in controversy between the parties which is: “Whether the land is a communal land as the answer will assist the Court to ascertain whether the Power of Attorney donated was proper and who proved his case on the balance of probability?”
It is in evidence which is in tandem with the Statement of Defence and various Exhibits tendered ? Exhibits B, C, E and F that Chief Festus Agim who later re-married the PW6 (the mother of 1st Claimant) by the Nchigha Orji rite and begat 1st Claimant was the Chief of Umuohakwe in Umuobiaku until 2004 when there was dispute between Chief Festus Agim (the biological father of the 1st Claimant) and 1st Claimant. It is in evidence that this dispute created 2 factions wherefore some people were attending meetings at Chief Festus’s house and some in his biological sons (sic) house who is now answering Obiagwu. See the evidence of DW1, DW2 supported by the evidence of PW4.
I agree with Claimants’ Counsel that conflicts and contradiction only avail the adverse party if they are material and substantial as held in SALAWU VS. YUSUF (2007) All FWLR (Part 384) 320.
In the instant case, the conflict and contradictions in the Claimants’ case are so material and substantial that I found it difficult to relay (sic) on them. The evidence of PW4 are materially different from the evidence of PW1 and PW2.
PW2 stated in evidence that DW1 is a stranger in Umuohakwe and that his father was a servant to Obiagwu.
However, PW4 contradicted his evidence by stating that DW1 is a bona-fida native of Umuohakwe. Uzonwanne begat Paul Uzonwanne his father and Ogbuji the DW1?s father. PW4 admitted under cross-examination that Ogbuji begat Ogbonnaya and Livinus – DW1 and that Livinus is the oldest man in Umuohakwe and in Umuobiaku that he is a bona-fide member of Umuohakwe.
Again, PW2 told the Court that the original owners of the land are 5 confirmed by PW3’s evidence while PW4 and PW7 told the Court that the original owners were 3 in number. PW1 and PW2 told the Court that no person who participate or contributed to regain the land in dispute from Ikpaezenkwere is alife (sic) while it is an established fact that DW1 is the only person alife (sic) who took part, witnessed and participated in the fight. A perusal of Exhibits Band C will show that it was DW1 that narrated to the Umuohakwe family the history of the land in dispute which is called “Ala Ukwuede” and enumerated which families or persons participated. PW1 stated under cross-examination that his father inherited the land in dispute and passed same to him and that he is in possession.
This piece of evidence was confirmed by PW6 (his mother) who said she heard that the land belongs to her late husband, John and his brothers. The evidence is untrue and I hereby reject it as it does not represent the true facts before me.
The evidence of the Claimants are inconsistent and unreliable. Both PW1 and PW2 were very economical with the truth. The Claimants mis-represented obvious facts. PW6’s evidence is of no relevance and untrue. The evidence amounts to hearsay. The evidence of PW6 is in no way helpful as she admitted that she knows nothing about the land. Moreover, it was pointed out by the Defence Counsel that PW6 was inside the Court throughout the hearing of this Suit and I regard her evidence with caution. All the Claimants admitted that they were not born when the said disputes took place. The evidence of PW5 and PW7 are neither here nor there. Under cross-examination, they admitted that they know nothing about the land. I want to point out here that it is a serious mis-representation of fact when Counsel stated in his written address that the Defendant admitted that after the war, the land becomes a communal land of Umuobiaku.
The Defendant have consistently maintained that the land is not a communal land but jointly owned by only those of Umuohakwe persons who contributed or participated in cash or strength to regain the land from Ikpaezenkwere. See the evidence of DW1, DW2 and DW3. Both parties know the identity of the land in dispute as shown in their respective Survey Plans’ A and D and E.
PW2 is not a witness of truth. He evaded questions and was economical with the truth. He stated under cross-examination, that the 3 original owners of the land in dispute had no agreement while other witnesses testified to that. He told the Court that Livinus Ogbuji was not born during the 1937 war and that he is a stranger and not from Umuohakwe.
I found (sic) this testimony appauling (sic). PW3 told the Court that Festus was not a Chief. While there are documents evidencing the fact that Festus was a Chief till he died in 2004. See the evidence of the CW4.
In the light of these material inconsistencies and contradictions, I found (sic) the evidence of the Claimants not believable and unreliable, I therefore disagree with the submissions of Counsel that the Claimants adduced credible and believable evidence to entitle them to their claims. The evidence of PW4 contradicts the evidence of PW1 and PW2. The evidence of PW4 supports the story of the Defendant, although he evaded questions and seemed confused at a stage.
On the other hand, the Defendant have through credible, cogent and reliable evidence, he proved that the land is not a communal land and that the 3 original owners entered agreement to share the land only with those Umuohakwe family who contributed in cash and strength to regain the land from Ikpaezenkwere. Their evidence is consistent and cogent. DW1’s evidence is a direct account of a person who witnessed and participated to regain the land. I resolve issue 2 in favour of the Defendant.
On the issue of Power of Attorney, having held that the land is never a communal land of Umuohakwe since Umuohakwe did not inherit the land from their forebear fathers and Umuobiaku have no interest in the land, the joint owners can dispose same without any head of family, what then is the effect of Exhibit ‘A’ ? Power of Attorney.
It is the contention of the Claimants in both their statement of claims and evidence on oath that the Power of Attorney was granted to the Defendant without the consent and approval of the head of the family i.e. the 1st Claimant and at such it is void.
In dealing with this issue, I have earlier held that the 1st Claimant who is claiming to come from the family of Obiagwu has nothing to do with this land because, nobody from Obiagwu’s contributed anything in cash or strength to the recovery of the land in dispute. Obiagwu died without a son in 1930 while the war was fought in 1937-1938. John Obiagwu was born after the war and he died without a son. Upon the agreement therefore no member of Obiagwu family contributed cash or strength and since the agreement to share in the proceeds is based on contribution or participation, the 1st Claimant cannot benefit from the proceeds and infact, have no interest on the land in dispute.
It is shown in evidence that Festus Agim was considered by Umuohakwe to be the next of kin to John Obiagwu and he contested this position with Elysius Uzouwanne and won. It is shown that Chief Festus became the Chief of Umuohakwe in Umuobiaku till 2004 when his biological son challenged him and he continued to lead a faction of Umuohakwe till he died.
It is shown that Festus re-married Angela who had already gone to her maiden home after the death of John who had no son and when Festus re-married her, she became his wife and they begat 1st Claimant and other daughter. In Igbo land, it is the custom that when a woman re-married, she becomes the wife of the new man that re-married her and the children becomes the man?s children. By custom therefore, the 1st Claimant is the son of Chief Festus Agim. If the mother of the 1st Claimant had not gone back to her father’s house and remarried Festus or if she had stayed back after the husband’s death (and begat 1st Claimant) like Obidie who stayed back and begat John Obiagwu when Obiagwu died without a son, then the 1st Claimant will rightly claim to be the son of Obiagwu just as John was known as such.
By the agreement of the 3 original owners with Umuohakwe that the proceeds will only be shared with those who contributed to regain the land, even if the 1st Claimant decides to abandon his biological father to claim the family of a dead man who previously married the mother and died long before he was born, he still cannot be a joint owner of the land in dispute. See the credible evidence of DW1, DW2 and this was explained to PW1 in one of the meetings and he was advised not to pursue it to avoid consequences. See Exhibits B and C.
With the greatest respect to the Learned Counsel for the Claimants, his cupious (sic) submission on 1st Claimant being the Chief or head of the family of Umuohakwe in Umuobiaku is academic, speculative and erroneous. It is this deep misconception that resulted in his not realising that where a piece of land is not a communal land, the rules of communal land cannot be applied. The land in dispute is not a communal land and it will occasion injustice to apply the customary rules of communal land when the parties had their agreement as joint owners with the 3 original owners as far back as 1937.
‘It is sufficiently shown through cogent and reliable evidence of defence that the land in dispute is not a communal land of Umuohakwe let alone Umuobiaku. A communal land of Umuohakwe will mean land inherited by Umuohakwe from their ancestors and in that stead, the consent for elienation (sic). This with due respect, is not the case in the instant case.’
The question is this, if the land is the communal land of Umuohakwe, why did all the parties agree in their evidence that it has original owners? It would have been a communal land from the onset.
I agree with the Defence Counsel that the land is not a family land but self-acquired and jointly owned by only those families who assisted in recovering the land as per the agreement with the original owners. See the authentic evidence of DW1. Since the land is jointly owned and not a communal land, it means therefore that the issue of customary family head or principal members are not a requirement to its elienation (sic), since the joint owners can jointly owned property as what is required is that every family whose fore-bearers/fathers participated as per the agreement entitled to the proceeds must be represented not necessarily by head or principal members (as in the case of communal land but by their family representatives). See the evidence of DW1, DW2 and DW3 which is consistent and reliable. Since what qualifies a family in participation or contribution by their fathers than in sharing the rule of head of family or principal members cannot apply. It can be shared by family representatives.
For purposes of clarity, let me reproduce part of the evidence of DW1 and DW2.
DW1 under cross-examination stated as follows:-
‘The land is originally owned by 3 owners as I stated in my deposition and after they invited Umuohakwe to help them regain the land from Ikpaezenkwere, the land now belongs to Urnuohakwe who participated or contributed in the war as their joint owned land.
It is not true that the land is a communal land of Umuohakwe in Umuobiaku. It belongs to Umuohakwe families who participated in the fight. Yes in my paragraph 8 of my deposition, I stated that it was agreed that when we succeed in recovering the land from our opponent – IIkpaezenkwere, the land “Ala Ukwuede” will be shared between the people who contributed in cash or strength of victory. I am the only Umuohakwe person alife (sic) now that participated in that fight with Ikpaezenkwere over the land in dispute. Yes when this land was about to be sold, we agreed on something after several meetings (See Exhibits B and C) of Umuohakwe entitled (sic) to receive share in 2005, we resolved to sale the land.
I am the only person alife (sic) that witnessed and participated in the war but the children of the people that also participated were present at the meetings. Yes I signed the resolution or agreement which Umuohakwe had when we decided to sale (sic) the land in dispute…. Yes John Obiagwu married Angela Obiagwu and after the death of John who had no son, Festus Agim re-married Angela and they begat the 1stClaimant Yes the proceeds were shared according to the people/families that contributed in the war as agreed. The proceeds were shared accordingly and the document shows those whose fathers contributed and their children were represented .”
DW2 under cross-examination, “admitted that Umuohakwe people set up a committee to look at the size of the land and reports were made by the committee. Yes l am the Secretary of Umuohakwe and we have meetings which I recorded as the Secretary. DW2 tendered Exhibits B and C. It is not true that the 1st Claimant did not change his name for the purpose of this case. Yes Livinus Ogbuji (DW1) is the only living survivor among those that participated in the struggle.
Emmanuel Agim is disputing the stool with his father – Festus Agim.
Festus Agim performed the Nchigha Orji rite and he and Angela begat the 1st Claimant ? Emmanuel Agim who is now answering Emmanuel Obiagwu because of this case.”
From the evidence before me, I hold that the Defendant has sufficiently proved that the Umuohakwe families whose fathers participated as agreed lawfully resolved as shown in Exhibits B and C to donate the Power of Attorney which was consequently donated to the Defendant over the land in dispute.
It is a fact that those who are entitled to share held several meetings as shown from 2005-2006. There is a resolution in 2005 December.
It is shown that all the meetings were recorded by DW2 and his position has not challenged. He signed as the Secretary and the Chairman of Umuohakwe family meeting duely (sic) signed Exhibits Band C.
In the minutes of 26/4/2005, the history of the land in dispute, the agreement and the original owners and the name of the land were narrated by DW1 and one Mr. Aguzie to the young generation who were born after the said war including the Claimants who were born after the war.
The meeting of 16/8/2005 showed where it was all agreed that as per the agreement only the families of those who contributed will partake in the share (as was originally agreed). The 1st Claimant was Obiagwu and Anyikwa that did not participate because Obiagwu died before the advert (sic) of the war – 1930 and his replacement – John Obiagwu was born long after the war. See the evidence of DW1.
In the meeting of 26/12/2005, PW2 was present – Elder Innocent Nwangwu and he made contribution and a committee was set up with a task of finding a prospective buyer. PW2 suggested in the meeting that the committee should include people living in the town.
In the meeting of 29/4/2006, the committee gave their report and prospective buyers were solicited.
In the meeting of 16/8/2006, the discussion on the sale of the land continued and 1st Claimant was present. PW4 ? Raphael Uzonwanne was present and adopted the minutes.
In the meeting of 26/12/2005, the family members of Umuohakwe in Umuobiaku kindred Union passed a resolution wherefore the stake-holders resolved to sell the land in dispute called “Ala Ukwu Edo” and signed by 53 members out of a list of 63 members. Thereafter, a Power of Attorney was donated to the Defendant signed by representatives of the families whose fathers contributed or participated in regaining the said land from Ikpaezenkwere in 1937-1938.
The Claimants did not challenge these Exhibits B and C. They did not lead evidence to controvert it. It is not sufficient to deny such serious facts by a mere general denial especially the speeches credited to PW1, PW2 and PW4.
I have painstakingly and carefully set down the background of Exhibit ‘A’ -the Power of Attorney donated to the Defendant. The Defendant has sufficiently shown in evidence that all the families entitled to the proceeds as agreed were appointed and represented as shown in the Power of Attorney and Exhibits Band C. Elder Elysius Uzowanne was a member of the Committee. From the above evidence and Exhibits B and C as well as the Power of Attorney, Exhibit A, I hold that none of the members of the families whose fathers participated and are entitled to the proceeds was left out in the whole process of discussion, agreement, sale, signing and donation of the Power of Attorney to theDefendant who performed all the Traditional rites to be done. It is also a fact that Chief Agim Festus who was the rightful Chief of Umuohakwe in Umuobiaku from the death of John Obiagwu adjudged the next of kin of John who died without a son to inherit him was present all through the meetings, and he directed the affairs conclusively as the Chief of Umuohakwe.
It is a fact that the minutes of the meetings were all duly signed by Chairman and Secretary and the signatories remain consistent and authentic. I therefore hold that both the minutes in respect of this land and the Power of Attorney were considered authentic and acceptable.
See the meeting of 16/8/2005 where CW1 was advised not to pursue the reason why nobody will claim from Obiagwu family because of consequences. See the agreement reached and the reason and confirmation of Livinus Ogbuji and Marcel Isiugo Aguzie. “They appealed to him not to go further on this inquiry as it is pregnant with attendance consequences.”
In the meeting of 26/12/2005, Innocent Nwangwu was present and protested that the Committee set up to handle the sell (sic) of the land did not include those living abroad and the Chairman considered his request and asked him to appoint any person and he appointed Elder Elysius Uzonwanne who apparently became the Chairman of the Committee that supervised the sale.
I therefore hold that the PW1 and PW2 who were part of the meetings and resolutions in respect of the sale of the land cannot probate and approbate. It does not lie in their mouths to now turn round to complained (sic) that they were not involved in the sale because of their hidden agenda and motives. The Court cannot allow that. I hold that all the entitled families were duely (sic) represented because all the family members cannot be all present during the sharing. Such representative will take home whatever that is due to their family. This is also because the land is not a communal land which requires the presence of head of family or principal members. A communal land is usually inherited from fore-fathers but the land in dispute was originally owned by 3 people who could not face Ikpaezenkwere in strength and might and therefore extended their hands to their kit (sic) and kins with understanding that after the victory, they the people who contributed or participated will jointly share the property. See the evidence of DW1, Exhibits Band C. See also the evidence of DW2.
From the minutes of 29/4/2006, one of the stakeholders ventured to buy the land but could not make it thereafter the Committee solicited for outside prospective buyers and the Defendant came up.
It is the law that the Court is empowered to look at all the processes filed in other to see the justice of the case. It was in the meeting of 26/12/2006 that the Chairman of the Committee for the sale of the land- ?Ala Ukwuede” informed the house that they have found a buyer and as a result, a resolution was passed to sell the land to the Defendant, the prospective buyer who later performed the traditional rites, the family representatives signed the Power of Attorney to that effect which entitled his to go into the land not as a trespasser but as a person legally authorised to enter into the land.
In conclusion, after careful and diligent consideration of the evidence before me, the Exhibits, the authorities cited and submitted by Counsel, the Statement of Claims and Defence Amended and the submissions of Counsel in this Suit, it is my humble and strong view that the Claimants failed to discharge the onus especially the fact that the Claimants did not prove their claims on the balance of probability and preponderance of evidence. I therefore dismiss their claim with cost of N50,000.00 in favour of the Defendant.
On the other hand, it is my firm opinion, that the Defendant has through credible, cogent, reliable and sufficient evidence adduced before me, I hold that he has proved his own claim in the consolidated suit, on the balance of probability as the scale of evidence when placed side by side tills in favour of the Defendant. Consequently, I hold that the Defendant is entitled to his claim in the consolidated suit, I therefore make Order as follows:-
‘I have underlined some portions of the judgment delivered by the lower Court in respect of its issue 2 and I am of the considered view that it is obvious therefrom that the grouse of the Appellants in respect of the power of attorney as raised before the lower Court was that the said instrument having been granted without the consent and approval of the head of the family i.e. the 1st Appellant is void. It is in my considered view also glaring from the underlined portions of the judgment of the lower Court that the said Court pronounced definitively on the grouse of the Appellants in respect of the said power of attorney. The issue raised by the Appellants was resoundingly resolved against them. It is therefore obvious that the grouse of the Appellants as ventilated in ground 4 of the notice of appeal that the lower Court did not pronounce on the effect of registering the instrument during the pendency amounts to nothing more than an issue which the Appellants would have been comfortable with the lower Court raising suo motu and resolving by itself in its judgment when the Respondent would not have had an opportunity to have responded to the issue which the Appellants have now accused the lower Court of not pronouncing upon. And I am yet to see how a Court can be accused with any measure of success of not raising an issue suo motu and resolving same without hearing the parties particularly the party that would be adversely affected by the resolution of the said issue.
The issue raised by the Appellants in my considered view is one of wrongful admissibility of evidence. I am of the considered view that the Appellants clearly recognised this, having regard to the manner in which they couched their issue 3 under consideration and the arguments proffered thereunder. However, the only snag or hitch is that the said issue 3 as couched and argued in the Appellants? brief of argument is not founded on any ground of appeal accusing the lower Court of having admitted evidence which is inadmissible in law for any reason. An issue worthy of the precious time of the Court needless to say must be founded on a ground of appeal which is to actuate the grouse of an appellant in relation to that aspect of the judgment appealed against. This being the situation, I am of the considered view that Appellants’ issue 3 must be resolved against them as the lower Court glaringly made a pronouncement on the power of attorney in the con that the Appellants raised the same.
‘Appellants having regard to their brief of argument, distilled their issue 2 which has already been resolved against them from grounds 2, 3 and 6 of the grounds of appeal.’
See page 17 of their brief of argument. They have also distilled their issue 4 from grounds 5 and 6 of the grounds of the notice of appeal (see page 27 of the Appellants’ brief of argument) and they cleverly have not indicated the ground from which they distilled their issue 5. The indisputable fact is that the Appellants having earlier distilled their issue 2 from grounds 2, 3 and 6, have rendered any worthwhile consideration of their issue 4 distilled from grounds 5 and 6 impossible. Similarly, the Appellants having distilled all the issues formulated and argued prior to their issue 5, from all their grounds of appeal have also rendered their issue 5 incapable of any worthwhile consideration as it is either not founded on any ground of appeal or is founded on a ground of appeal in respect of which an issue had been formulated and argued before now.
Flowing from the above, is that as the Appellants have by themselves rendered it impossible for any meaningful consideration of their issues 4 and 5, the same are hereby resolved against them without ado.
In the final analysis, and as all the issues formulated for the resolution of the appeal by the Appellants have been resolved against them, the instant appeal is found to be lacking in merit and it fails. The appeal is hereby dismissed and the judgment of the lower Court appealed against is upheld.
Costs of N25,000.00 is awarded in favour of the Respondent and against the Appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.
I agree with the opinion and conclusion reached. I have nothing more to add.
I also dismiss the appeal and affirm the judgment of the Court below.
I abide by the consequential order made as to costs.
Appearances:
J.M.E. Onyenakazi with him, S.N. Ettoh and E.C. OrisakweFor Appellant(s)
Chief O.E. AladumFor Respondent(s)
