CHINAKA OKEHI & ORS v. ANAELE OBI & ORS (2017)

CHINAKA OKEHI & ORS v. ANAELE OBI & ORS

(2017)LCN/9453(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of February, 2017

CA/PH/96/2006

RATIO

LAND LAW: MEANS OF ACQUIRING TITLE TO LAND AND PROOF OF OWNERSHIP OF LAND
Law reports are replete with decisions relating to proof of ownership of land vis–vis means of acquiring title to land. It is one of the settled principle of law in respect of a claim of title to land, that to succeed in respect of such claim, the Court must be satisfied as to (i) the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and; (ii) evidence establishing title of the nature claimed. See ADISA V. OYINWOLA (2000) LPELR 186 (SC); AJIBOYE V. ISHOLA [2006] All FWLR (Pt. 331) 1209 and ADESANYA V. ADERONMU [2000] FWLR (Pt. 15) 2492 PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

WORDS AND PHRASES: DEFINITION OF CUSTOMARY LAW
customary law is “any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LAND LAW: EFFECT OF EVDENCE OF TRADITIONAL HISTORY AS PROVING CUSTOM OF A PEOPLE
In other words evidence of tradition or traditional history is not tantamount to the custom of a people and the fact that evidence of tradition or traditional history has been adduced and accepted or rejected and or resolved by the trial Customary Court in the instant case ipso facto does not make it a customary matter. This is however not to say that in a particular case a claimant of land who considers a custom to be relevant in establishing his case cannot rely on the said custom prevalent in an area where a parcel of land is located in the proof of his entitlement to a parcel of land in dispute. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. CHINAKA OKEHI
2. NZE JAMES NZEWUIKE
3. ALBERT NKWOCHA
(For themselves and as representing Umundeoche Village in Obike Town Ngor Okpala LGA of Imo State)
4. SYLVANUS OGAZI
5. BONIFACE ANYANWU
(For themselves and as representing Umumba Village in Obike Town Ngor Okpala LGA of Imo State) Appellant(s)

AND

1. ANAELE OBI
2. DESMOND EKE
3. FIDELIS OKERE
(For themselves and as representing Umuawa and Umunwoko Kindreds in Umuofor Village, Obike Town Ngor Okpala LGA of Imo State) Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 5/6/2001 by the Customary Court of Appeal, Imo State holden at Owerri (coram: Iwuagwu, (Presiding Judge) and Ibe and Okonkwo (JJ. CCA), (hereafter to be simply referred to as the ?Court below?) in Appeal No. CCA/OW/A/29/2000 ?CHINAKA OKEHI & ORS. V. ANAELE OBI & ORS.

The case which the Court below entertained on appeal was instituted by the Respondents herein as Plaintiffs (suing for themselves and on behalf of Umuawa and Umunwoko Kindreds of Obike) at the Customary Court of Imo State, Owerri Judicial District, holden at Okpala (hereafter to be simply referred to as ?the trial Customary Court?). In the statement of claim before the trial Customary Court, the Respondents claimed against the Defendants (now Appellants) jointly and severally for:-
?(i)The sum of N1,500.00 (One Thousand Five Hundred Naira) being the estimated value of economic plants the defendants destroyed during their trespass on the plaintiffs (sic) farm land known as and called Azuowu situate

over Ogochia Obike Stream.
(ii) Declaration that the defendants have no title of (sic) the said farm land known as and called Azuowu.
(iii) Perpetual injunction restraining the defendants, their heirs, agents, assigns, and workmen from further acts of trespass on the said land known and called Azuowu situates (sic) over Ogochia Obike stream.
The particulars of claim as filed before the trial Customary Court in the case read: –
1. The Plaintiffs are farmers, native of Umuofo Obike and reside thereat.
2. The defendants are farmers, native of Umundeoche Obike and resides thereat.
3. The Plaintiffs inherited from their fore-fathers the parcel of land known as and called Azuowu situates (sic) along the bank of Ogochia Obike Stream.
4. The Plaintiffs have been in peaceable possession of the said parcel of land and have been farming in it without molestation.
5. Sometimes in February, 1985 the defendants forcibly entered this parcel of land cleared it and destroyed quantity of economic plants valued about N1,500.00.
6. The Plaintiffs questioned why they should farm on said parcel of land, the defendants claimed ownership of the

parcel of land.
7. The Plaintiffs sent a representation of elders to the defendants to withdraw from the said land but the defendants neglected and refused to comply.
Whereof the plaintiffs claim as per writ of summons.?

See pages 7 ? 9 of the records.

The judgment of the trial Customary Court spans pages 69 ? 79 of the records. Therein, the trial Customary Court dwelling on the issues for determination in the case said at pages 73 ? 74 thus:-
?ISSUES
A number of issues arise for determination in this case on which hinge the entire case.
Both parties are claiming the land in dispute. The plaintiffs are saying, the land is ours. It was given to our ancestors as compensation for their daughter murdered about 300 years ago. The defendants are saying, the land is ours. The Nkutu ofo de-enactment ma kuchie ya Re-enactment of ofo of 1982 recognised their existence and called for release of their lands.
ISSUE (1) Whether or not the land in dispute was granted as compensation for Mgbafor Okere Amadi who was murdered by one Mba 300 years ago.
ISSUE (2) Whether such land granted under

customary law is retrievable.
ISSUE (3) Whether the act of De-enactment and Re-enactment of ofo of 1982 in (sic) which the defendants relied for retrieving the disputed land was in accordance with custom and tradition.
ISSUE (4) Whether the plaintiff (sic) proved his (sic) entitlement to title to the land in dispute.?

At pages 76 ? 78 are the findings of fact/observations made by the trial Customary Court and they go thus:-
?FINDINGS OF FACT/OBSERVATIONS
From the evidence of the parties in Court and visit to locus in quo. Court finds.
(1) With regard to the evidences of both parties in dispute, each party claims ownership of the land hence the plaintiffs sued the defendants asking this Honourable Court to declare that they are entitled to the customary right of occupancy of the land called Azuowu.
(2) Although the defendants did not counter the suit, their intention for entering into the land was that the plaintiffs should regard them as original owners of Uhu Umumba/Azuowu land.
(3) From the evidence before the Court the plaintiffs have remained in possession of the land for about 300 years

without challenge. It is the law, evidence of unchallenged possession is sufficient for the declaration sought. Ref. case of Chief Stephen N. Okonkwo and Anor. Vs. Patrick I. Okolo 1988 5 SC. page 220 at 234.
(4) In the evidence of D.W.2 Sylvanus Ogazi Quote; At the time of the incident Okere Ogbu family in Umundoche entered into agreement with Obike that Umumba should propitiate (sic: propitiate)/perform some rituals before their property is released. And that Obike told Umuoyere to held (sic) the property on trust and release same to any returnee after he had propitiate (sic: propitiated) to the gods of the land. Unquote.
Court disbelieves this piece of evidence for it is quite incredible and inadmissible. Because at the time of the incident it is believed (1) Obike was fuming with rage decrying the murder of her 5 persons killed by Mba. (2) Enacted the ofo (kuchie ofo) which banished and confiscated his land for compensation to those killed by him. Therefore such an agreement could not have taken place that same time.
(5) Court believes, the account and history associated with Mba and killing of 5 persons through poisoning as narrated by the

plaintiffs, is true for it led to the banishment of Mba centuries ago.
(6) At the locus plaintiffs conducted Court round a very vast expanse of land spanning over a wide area known and called Azuowu across Ogochia River. Boundary trees such as Ukpo Ovurilu, Ububo Etc. were identified DFRY Umuneke Elelem Road traversed the land. Boundary neighbours:- Umuoyere, Umunwoko Elelem and Ogochia River at base were identified.
(7) The defendants did not adopt all the boundaries as shown by the plaintiffs. They conducted Court round a remarkable smaller are (sic: area) clearly marked with boundary trees such as Nturukpa, Agagwo, Ogiri tress at Iwu Umumba were identified. Boundary neighbours were present.
(8) Court found during locus that the land in dispute was the land offered in compensation for killing Mgbafor Okere Amadi her husband and 3 sons by Mba of Umuohoche.
(9) Court found that the ?Nkutu ofo? ?ma kuchie ya? of 1982 encouraged the descendants of a murderer to regain lands lost centuries ago to the disadvantage of the descendants of the murdered persons by dispossessing them of their rightful customary

entitlement.?

Continuing under the headings ?Evaluation; application of law; and Judgment; the trial customary court said at pages 78 ? 79 of the record thus: –
?EVALUATION
Having weighed the evidence of both parties to the dispute with regard to the issues raised and resolved, it became glaring that the plaintiffs have made their case.
APPLICATION OF LAW
Court took into consideration
(1) The five ways of establishing title to a disputed land in which proof of any one of them is sufficient for entitlement to be granted.
(2) Custom of Obike
The 5 ways are 1. Traditional Evidence
2. Conquest.
3. Grant.
4. Sale or Purchase
5. Prior possession and acts of ownership extending over a sufficient length of time. It is remarkable that the case in point extended over 3 centuries.
(2) Custom of Obike cited here is land used to compensate for killing cannot be retrieved.
JUDGMENT
Based on the evidence before the Court from both parties and their witnesses and from the addresses of the learned counsels for the parties and from the findings from the visit and inspection of

the locus in quo carried out in the presence of parties on 6-6-97 Court is minded to make the following orders.
(1) The plaintiffs have succeeded in their case and the Court hereby declares them owners of the lands in Azuowu where Umuawa & Umunwoko were in possession before De-enactment/Nkutu ofo of 1982 in Suit No. CC/O/175/87.
(2) The defendants themselves, their agents, heirs, assigns and workmen are hereby perpetually restrained from further committing acts of trespass on the land.
(3) Defendants should pay N1,000.00 costs for damages done to economic trees as assessed by Court and N116.00 summons fee to the plaintiffs within 14 days from today.
(4) Judgment for the plaintiffs in Suit No. CC/O/175/87.?

?Being dissatisfied with the judgment of the trial Customary Court, the Defendants in the case before the said Court (i.e. Appellants herein) lodged an appeal against the said judgment by a notice of appeal dated 14/7/1997 and filed on same date. The lead judgment of the Court below in the appeal brought before it by the Appellants spans pages 171 ? 183 of the records. On pages 171 ? 177 of the records, the

Court below re-produced the 7 grounds of appeal contained in the notice of appeal before it and their respective particulars. The grounds of appeal shorn of their respective particulars are hereby re-produced and set out in the manner it was done in the judgment of the Court below:
?1. Error in Law
The plaintiffs in their writ claimed the sum of N1,500.00 being estimated value of economic plants destroyed by the defendants. The plaintiffs did not claim this as general damages or special damages. In spite of this the Court proceeded to award them the sum of N1,000.00 being cost for damages done to economic trees as assessed by Court.
2. Error in Law
The plaintiffs in ground two of their claim seek a declaration that the defendants have no title to the said farm known as and called AZU OWU. Inspite of this prayer the Court suo motu declared that the plaintiffs have succeeded in their owners (sic) case and the Court hereby declares them owners of the land in Azu Owu where Umuawa and Umunwoko were in possession before the de-enactment/Nkutuofo of 1982 in Suit No. CC/O1/17/87 (sic)?.
3. Error in Law
The plaintiffs

sought for a declaration that the defendants have no title to Azu Owu farmland. The plaintiffs did not ask that a declaration for ownership or title be made in their favour. The Court however made a declaration of ownership in favour of the plaintiffs.
6. MISDIRECTION
The Court misdirected itself when it held that page 4 of Exhibit D or the said exhibit supported the contention that land used for compensation is not redeemable.
7. MISDIRECTION
The Court misdirected itself when it answered No to the question it posed to itself ? that is ? if ?Nkutuofo of 1982 was valid could the Obike Peace Panel in 1999 (sic) recommend another propitiatory act?.
4. Error in Law
The plaintiffs in their writ asked for declaration to farmland known as and called Azu Owu and consequently asked for perpetual injunction to restrain the defendants from further acts of trespass on land. The Chairman and Members erroneously gave judgment in respect of land in Azu Owu ?where Umuawa and Umunwoko were in possession before the de-enactment/Nkutuofo of 1982 in Suit No. CC/O/176/87 (sic)?.
5. MISDIRECTION
The

Chairman and Members misdirected themselves where they held that it is the custom of Obike not to return land used in compensation for killing.

The relief the Appellants seek from the Court below as contained in their notice of appeal before that Court is: ?to set aside the whole judgment and dismiss the Plaintiff?s (sic) claim?.

On pages 177 ? 178 of the records, the Court below re-produced the six issues formulated by the Appellants for the determination of the appeal by the said Court. The issues are: –
?(a) Whether the Respondents did prove that they were in possession of the land in dispute or any part thereof when the alleged trespass occurred or alternatively whether there was any trespass at all.
(b) Whether the sum of N5,500.00 (sic) claimed as damages for trespass was proved and whether it was proper to award the sum of N1,000.00 by the Court.
(c) Whether the Respondents have proved that any part of Azu Owu land belonged to them.
(d) Whether it is the custom of Obike Ngor Okpala not to return land used in compensation for murder.
(e) Whether the issue of the validity of Nkutu ofo of 1982

was of more importance than the recognition of the fact that the custom (Nkutu ofo) is not alien to Obike Town.
(f) Whether the Respondents can be awarded any part of Azu Owu without any definition of boundary.?

The issues formulated by the Respondents for the determination of the appeal by the Court below as contained in the judgment of the said Court on page 178 are:-
?1. Whether the claim of trespass is sufficiently proved by the Respondents during the trial to entitle them to award of damages as the Honourable trial Court held in the circumstances.
2. Whether in the circumstances of this case i.e. upon the writ/particulars of claim the Respondents are entitled to declaratory title to the land in dispute.
3. Whether it is the custom of Igbos in general and Obike in particular that any parcel of land used for the atonement or compensation of a dead person is perpetually irredeemable.?

Confronted with the issues formulated for the determination of the appeal as re-produced above, the Court below at pages 180 ? 183 stated thus:-<br< p=””

</br<

?xxxxxxxxxxxxxxxx The real issue in this appeal and suit is ?Whether land used to atone for a person murdered can ever be redeemed or reclaimed by any means whatsoever?.
Every other matter must flow from the answer to this issue. In this suit there is uncontroverted evidence that a certain portion of Azu Owu land formerly belonging to Umundeoche Kindred of which Mba was an indigene (sic) was given to Umuonyere Kindred as atonement for the murder by Mba of five natives of Umuonyere. By extension the Umuawa people were given a share of the said land as one of the persons Mba murdered came from there. Later Umuawa gave a portion of their own whare (sic: land) to Umunwoko Kindred. The Appellants did not deny this. The Appellants? only contention was that in or about 1982 the Eze Oji ofo Obike and elders purported to perform a ceremony whereby all portions of land circumstances (sic) under which they were held were returned to the so-called on final (sic: original) owners. And that ceremony also returned that piece of land given to the Respondent (sic) to atone their children murdered by

Mba. The Appellants as Plaintiffs (sic: Defendants) did not state in their evidence why Umuokeocha, Umuokere Mgbakwo Umuakiri Elelem had shares of portions of Mba?s land. But the Respondents unequivocally state that their children were murdered by Mba, and his land used to atone the murder could not be returned or redeemed.
P.W.1 stated ?The custom and tradition of Obike demands that one who kills a person must die with the person he killed. Ogburu okpo na okpo la, accordingly the man must be killed, his property confiscated, his farm land shared. His farm land is used to compensate for the crime?.
This piece of evidence was nowhere controverted. This Lower Court believed it and held it to be true and correct custom of Obike. The ceremony of 1982 did not rivive (sic: revive) the five murdered persons, therefore I hold it was performed in bad faith, and was of no consequence.
In NWAGWU & ANOR. V. OKONKWO & ORS. (1987) 3 NWLR (pt. 60) 314 Kazeem JSC (as he then was) in the lead judgment states, thus
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx<br< p=””

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Nnamani JSC (as he then was) in the same appeal said?
The above case is on all fours with the present appeal and I am bound by the decision of the Supreme Court as stated above.
I do not agree with Counsel that the boundaries of the land in dispute was not proved, or that the land was not certain. If there was any confusion that should have manifest when plea was taken. At the locus the boundary neighbours where (sic: were) there to testify, Appellants did not raise any objection. The sketch referred to was made in the presence of parties and Counsel. If it was incorrect they should have objected to same forthwith.
I agree with the Lower Court that the Respondents were in absolute and undisturbed possession of the land in dispute for over 300 years until the Nkutu Ofo of 1982 which I told and held to have been performed in bad faith, and in utter disregard of custom of Ngor Okpala that land used to atone for person or persons murdered can never

be retrieved or redeemed.
All the issues canvassed by Appellants? Counsel fail by the fact the (sic) decision in Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314 and this appeal fails.
I make the following orders ?
?(a) Appeal is hereby dismissed
(b) The judgment of the lower Court in CC/C/175/87 dated 25 June 1997 is hereby affirmed.
(c) The Appellants shall pay costs of N3,000.00 (three thousand Naira) to the Respondents.
(d) More particularly, it is hereby ordered for avoidance of doubt, that the Appellants, their heirs, agents, assigns and workmen are perpetually restrained from entry into the said portion of land in dispute known as and called Azu Owu situate over Ogochia Obike Stream, in Ngor Okpala.?

Being aggrieved with the judgment of the Court below, the Appellants have further appealed to this Court against the whole of that Court?s decision vide the notice of appeal dated 4/9/2001 and filed on the same date. The notice of appeal contains five grounds of appeal. The grounds of appeal shorn of their respective particulars read thus:-
?GROUNDS OF APPEAL
i) ERROR IN LAW<br< p=””

</br<

The Appeal Court erred in law when it held that it is the law of Obike Ngor Okpala Local Government Area of Imo State that land used in compensation for death of a human being is irredeemable and irretrievable.
ii) ERROR IN LAW
The Appeal Court erred in law when it completely disregarded the applicants (sic) ground of appeal regarding the boundary of the land in dispute and arguments presented thereon.
iii) ERROR OF LAW
The Appeal Court erroneously awarded to the respondents an indeterminate portion of land different from that awarded by the trial Customary Court when the respondents did not file a counter appeal in respect of the area awarded by the trial Court.
iv) MISDIRECTION
The Appeal Court erred in law when it refused to consider and make pronouncement on the appellants (sic) deposition regarding acquisition by deforestation and by compensation and the conflict of evidence of the respondents in relation thereto.
v) MISDIRECTION
The Appeal Court refused to consider and make findings in respect of the issue of release of land by both the respondents and other communities in Obike.?

The relief sought as

contained in the notice of appeal is for this Court to set aside the judgment of the Court below delivered on 5/6/2001 and dismiss Suit No. CC/O/175/87.

The instant appeal was deemed to have been heard on 7/11/2016 as parties have before then filed and regularised the positions of their respective briefs of argument and as the Appellants (who were served with hearing notice of the day?s proceedings on 1/11/2016 as per proof of service in the Court?s file) were absent and not represented by counsel. Appellants? brief of argument is dated 11/12/2006 and filed on 9/4/2013 but deemed to have been properly filed on 13/1/2014; while Appellants? reply to Respondents? brief is dated 26/4/2010 and filed on 12/4/2013. Both briefs of argument were settled by N. E. Ofoegbu Esq. Respondents? brief of argument dated 14/1/2008 and filed on 9/4/2013 was settled by C.T. Okeke Esq. who prior to the hearing of the appeal moved the preliminary objection of the Respondents in respect of some grounds of the appeal as contained in the notice of appeal.
?
Three issues were formulated for the determination of the appeal in paragraphs 2.01

? 2.04 of Appellants? brief of argument. The issues read thus:-
?Issue 1
Whether the propitiatory act/Nkutu Ofor (sic) of 1982 consequent upon which the lands of Umumba (the 2nd set of Appellants) were returned to them by the various communities in Obike was alien to Obike community of Ngor Okpala Local Government of Imo State.
Issue 2
Whether the Respondents did prove that they own the land called Azuowu either by deforestation or by compensation and whether they were in possession on the date of the alleged trespass as to entitle them to an order for injunction.
Issue 3
Whether the Respondent have properly ascertained the identity of the land in dispute as to enable them to be entitled to the order declaring them as owners thereof.?

Four issues were formulated for the determination of the appeal in the brief of argument of the Respondents. They read thus:-
?1. Whether grounds 2, 3, 4 and 5 of the Appellants (sic) grounds of appeal are competent.
2. Whether the Customary Court of Appeal erred in law when it held that it is the law of Obike Ngor Okpala L.G.A. of Imo State that

land used to atone for a person killed cannot be redeemed or retrieved.
3. Whether the Respondents have proved that they own the land in dispute.
4. Whether the Respondents have proved the identity of the land in dispute.?

As expected parties canvassed arguments they considered appropriate in justification of their respective positions in the appeal.

?I consider it pertinent to state that I am astounded that the Respondents could have formulated as an issue for determination in this appeal the question as to whether or not grounds 2, 3, 4 and 5 in the notice of appeal (or indeed all or any of the grounds), are competent. The settled position of the law is to the effect that a ground of appeal is for the purpose of ventilating whatever grouse an appellant has against the judgment being appealed against. Hence, a ground of appeal isolates and accentuates for attack the basis of the reasoning of the decision being challenged. This is why there has to be as many grounds of appeal for as many infractions or acts of commission or omission an appellant perceives a Court to have committed in the judgment being appealed against. Appeal

before this Court are argued on issues for determination and not on grounds of appeal; hence the position of the law is not only that issues formulated for the determination of an appeal must flow from the grounds of appeal but also that while an issue can be distilled from more than a ground of appeal the said issue must flow from the said grounds. The absurdity of formulating as an issue for determination of an appeal of the question in respect of the competence of the grounds of appeal therefore becomes manifestly glaring against the backdrop that it is inconceivable that a ground of appeal can ever be a decision in a case that an appellant can have any grouse with, talk less of grounds of appeal being capable of giving rise to any issue for determination. It is in the knowledge that there might be circumstances that would render the hearing of an appeal impossible for different reasons that the 2011 Rules of this Court make provisions for the process by which the hearing of an appeal can be truncated or stopped. See the provisions of Order 10. And having regard to numerous decided cases, one of the basis for truncating or stopping the hearing of an appeal

is to attack the competence of the notice of appeal (which does not form part of the ratio decidendi in a judgment but is a vessel by which an appellant places his grouse with a judgment before an appellate Court) and/or the totality of the grounds contained therein. Hence it is now a settled position of the law from various decisions of the Supreme Court and this Court that when whatever grouse an appellant has against the hearing of an appeal will not put a stop to the hearing of the appeal on the merit, where same succeeds, (for example, where the totality of the grounds of appeal in a notice of appeal are not being challenged), it is manifestly wrong to come by way of preliminary objection. Rather, an applicant in this regard, is to come by way of notice of motion for the purpose of getting the Court to pronounce on the non-vitiating complaint in the appeal. It is therefore my considered view that the Respondents instead of distilling the question in respect of the competence of some of the grounds in the notice of appeal as an issue for determination in the appeal, ought to have availed themselves of the procedure of filing a notice of motion to challenge

the propriety of the said grounds. Hence, the posturing of the Respondents in arguing Respondents? issue 1 which challenges four out of the five grounds of appeal in the instant appeal as a preliminary objection, only goes further to exhibit their non-appreciation of the provision of the Rules of this Court regarding the purpose of preliminary objection and/or how to raise it as provided for in Order 10 of the 2011 Rules of this Court. Be that as it may.

This is however not to say that this Court would close its eyes to the perceived impropriety of grounds 2 ? 5 of the grounds of appeal as raised and argued in the Respondents? brief of argument as the issue is actually one which the Court in its judgment could have raised and resolved by itself without calling on parties to address it as it raises the issue of the competence of this Court to entertain an aspect of the instant appeal not founded on proper grounds and which is jurisdictional in nature. See the case of ENYINNAYA V. OTIKPO (2015) LPELR-25529 (CA). Pronouncements of his lordship Mbaba, JCA in the case were extensively re-produced and applied by me in the recent yet to be

reported judgment delivered by this Court on 24/1/2017 in APPEAL NO. CA/OW/129/2011 ? DICKSON OGBANJA & ANOR. V. JUSTUS HARCOURT & ORS. In any event in the instant appeal, the Appellants in their reply brief have duly responded to all that the Respondents said regarding the propriety or otherwise of the grounds of appeal in question.

I therefore now proceed to consider the question as to whether or not grounds 2 ? 5 in the notice of appeal before this Court are competent.

The stance of the Respondents on the matter is that they are not. Reference was made to Section 245(1) of the amended 1999 Constitution and the case of Pam v. Gwom (2000) FWLR (Pt. 1) 1 at 12 and it was submitted to the effect that before an appeal to this Court from the Court below can be competent, such an appeal must raise a question of customary law. This Court was urged to strike out grounds 2 ? 5 in the notice of appeal in the instant appeal as they do not raise any question of customary law and are therefore incompetent. Furthermore, this Court was urged to strike out Appellants? issues II and III as they are purported to be based on the said

grounds 2, 3, 4 and 5 which are incompetent.
?
The position of the Appellants on the matter in their reply brief is that grounds 2 and 3 of the grounds of appeal deal with boundaries of the land in dispute and the determination thereof. They submitted that determination of boundary is an issue within the competence of customary law and that because parties did not disagree thereon, the same can be competently be made an issue in this Court. The stance of the Appellants in respect of ground 4 which according to them relates to ?the non-precision on the part of the Respondents as to whether or not the land was acquired by deforestation or by compensation? is that the issue of ownership by either of the two methods is a customary law issue. Their stance in respect of ground 5 which according to them relates to ?the release and or surrender of lands by communities including the respondents? is that it is an issue as to whether or not surrender or release of land is recognised in Obike and whether or not communities including that of the Respondents actually released land in their possession and returned the Appellants? to

possession. The Appellants maintained their stance that all the grounds of appeal in question raise issues of customary law.

Law reports are replete with cases decided by the Supreme Court and this Court regarding appeals to this Court from a Customary Court of Appeal of a State such as the Court below is. In the cases, particularly PAM V. GWON (supra) referred to in the briefs of argument of the parties, and two others that I?ll be referring to, relevant provisions of the then extant Constitution of this country dealing with appeals to this Court from Courts such as the Court below (and which are substantially ipsissima verba with those of the amended 1999 Constitution), amongst others, were considered. The provisions of the amended 1999 Constitution dealing with appeals from a Customary Court of Appeal of a State to this Court as contained in Section 245 read thus:-
?Section 245(1)
An appeal shall lie from the decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before a Customary Court of Appeal with respect to any question of customary law and such other matters as may be

prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this Section shall be ?
(a) exercised at the instance of a party thereto or, with the leave of The Customary Court of Appeal or the Court of Appeal, at the instance of any other person having interest in the matter;
(b) exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.?
The first of the two cases I?ll be referring to is that ofOHAI V. AKPOEMONYE (1999) 1 SC 96 wherein the Supreme Court per Mohammed, JSC; (as he then was) dwelling on the meaning of customary law and whether a question is of customary law said thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is relevant at this stage to reproduce the provisions of Section 224(1) of 1979 Constitution (as amended). It reads:-
“An appeal shall lie from decisions of the Customary Court of Appeal of

a State to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.”
The lower Court, per Atinuke Ige, J.C.A., in trying to find jurisdiction over the appeal before it held as follows:-
“It seems to me that the Customary Court of Appeal was right to look into the provisions of the law cited before them and decide whether or not the law can be termed customary law or a law applicable to Customary Courts. The Sheriffs and Civil Processes Law Cap. 407 Laws of the Federation is an Act of the National Assembly hence it comes within the purview of the Customary Court of Appeal which considered whether or not it is applicable to Customary Courts. This Honorable Court also has jurisdiction to hear the complaint about the issue.”
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But it is relevant to pause here and inquire whether such an exercise falls within the provisions of Section 224(1) of the Constitution.
Is interpretation of a Statute

a question of customary law? The simple answer is no. The meaning of customary law has been given by this Court in the case of Zaidan, K. v. Mohssen. F.H. (1973) NSC. Page 1 at 21 thus:
“..customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway:”
It is pertinent to point out here that the matter in which the Customary Court of Appeal of a State can exercise jurisdiction has been prescribed under Section 247(1) of the Constitution and it reads:
“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.”
It is therefore abundantly clear that the only matter from the decision of the Customary Court of Appeal of a State appealable to the Court of Appeal is that which involves questions of customary law. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
?The second class of cases with respect to which

jurisdiction is conferred on the Court of Appeal under Section 224(1) of the constitution to receive appeals from the decision of Customary Court of Appeal of a State is in respect of matters as may be prescribed by an Act of the National Assembly. The lower Court resorted to this provision of the Constitution in its pursuit of jurisdiction to determine the appeal, in this case, from the decision of the Customary Court of Appeal. Chief William, SAN, submitted, quite correctly, that neither the National Assembly nor any other authority lawfully exercising the powers of that Assembly has prescribed any matters with respect to which it is permissible for a person to appeal from decisions of the Customary Court of Appeal of a State.
I therefore agree that the Court of Appeal had no jurisdiction to entertain the appeal filed by the defendant/respondent from the judgment of the Customary Court of Appeal of the then Bendel State.
In the result, this appeal succeeds and it is allowed. The judgment of the Court of Appeal, Benin Division, is hereby set aside. The appeal filed by the defendant/respondent before the Court of Appeal is hereby struck

out. xxxxxxxxxxxxxxx?
In the same appeal, Ogundare, JSC; (now of blessed memory) said thus amongst others:
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For an appeal to lie to the Court of Appeal from the judgment of the Customary Court of Appeal of a State, therefore, it must relate:-
(a) to a question of customary law, and/or
(b) to such other matters as may be prescribed by an Act of the National Assembly
Now, Customary law is-
“any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.”
Per Elias C.J.N. in Kharie Zaidan V. Fatima K. Mohssen (1973) 11 S.C 1 at p.21.
With this definition in mind I think it is wrong for the Court below to hold that an appeal to it from the Customary Court of Appeal Bendel State complaining of an error in the application by the latter Court of the provisions of the Sheriffs and Civil Process Law, was competent. Clearly, such a complaint does not

raise any question of customary law.
A right of appeal must be conferred by Statute as it is a curtailment of the jurisdiction of the Court from which the appeal lies and an extension of the jurisdiction of the Court to which the appeal goes – Onitiri v. Benson (1960) 6 FSC 160, 166. And for the right to exist, it must come within the purview of the Statute. Section 224(1) of the Constitution does not confer a general right of appeal from the Customary Court of Appeal of a State to the Court of Appeal but a limited one, limited to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly. Our attention has not been drawn to any such act of National Assembly. xxxxxxxxxxxxxx”
The second case I?ll like to refer to is that of HIRNOR V. YONGO [2003] 9 NWLR (Pt. 824) 77, [2003] 12 MJSC 118, wherein the Supreme Court dwelling amongst others on how to determine whether an appeal lies from the Customary Court of Appeal of a State to the Court of Appeal and what constitutes a question of customary law, in the lead judgment delivered by Iguh, JSC said thus:

–
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Now, the constitutional provisions which confer a right of appeal from the Customary Court of Appeal of a State to the Court of Appeal are contained in Section 224 of the Constitution of the Federal Republic of Nigeria, 1979 which prescribes thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx?
In the face of the express provisions of Section 224 of the Constitution of the Federal Republic of Nigeria, 1979 it is plain that an Appeal lies from a decision of the Customary Court of Appeal of a State to the Court of Appeal as of right with respect to complains on any question of Customary law or such other matters as may be prescribed by an Act of the National Assembly. No such other matters would appear to have so far been prescribed by any Act of the National Assembly pursuant to the said Section 224(1) of the 1979 Constitution. It can therefore be said that an appeal for the time being does not lie from a decision of the Customary

Court of Appeal to the Court of Appeal on a ground which does not raise a question of Customary law.
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it is clear pursuant to the provisions of Section 224 of the 1979 Constitution that as between parties to a suit, an appeal to the Court of Appeal is as of right so long as it concerns a question of Customary law and such other matters as may be prescribed by an Act of the National Assembly. It is only where an appeal in respect of a question of Customary law and such other matters as may be prescribed by an Act of the National Assembly is at the instance of any other person having an interest in the matter, other than the parties, that the leave of the Customary Court of Appeal or of the Court of Appeal will become necessary before such an appeal may lie. There are, therefore, two modes of invoking the jurisdiction of the Court of Appeal with regard to appeals from the State Customary Courts of Appeal. The first is as of right at the instance of a party thereto. The second is with the leave of the Customary Court of Appeal or the Court of Appeal at

the instance of any other person having an interest in the matter.
The proposed appeal in the present proceeding is by the Respondents, parties to the suit, and not by some other person having an interest in the matter as provided under Section 224(2)(a) of the 1979 Constitution. No question of the leave of the Customary Court of Appeal or of the Court of Appeal therefore arises for a valid appeal to lie.
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It is clear to me that the 1979 Constitution pursuant to the provisions of Section 224 thereof intended to narrow the right of Appeal from the Customary Court of Appeal to the Court of Appeal with a view, perhaps, to enhancing the finality of the judgments of the former as much as possible.
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Nor can Section 224(1) of the 1979 Constitution which confers the right to appeal by a party to a suit as of right be interpreted as including the right to appeal with

leave by such a party when no provision to that effect is therein contained. See too Babang Golok v. Mambox Diyalpwan (1990) 5 SCNJ 198 where this Court per Uwais, JSC as he then was put the matter thus:-
“The intendment of the 1979 Constitution is that the right of appeal to the Court of Appeal from a decision of the Customary Court of Appeal of a State should be one tier. It cannot, therefore, be possible to interpret the provisions of Section 224 Subsection (1), which gives the right to appeal as of right, to include the right to appeal by leave. To do otherwise will, in my opinion, give a wider interpretation to the provisions of the Subsection which are clearly intended, in the con of the Constitution, to have narrow meaning.”
In the same appeal, Ogundare, JSC; (of blessed memory) said thus:-
?I have read in advance the judgment of my learned brother Iguh JSC just delivered. I agree with him that this appeal fails. I too dismiss it.
The appeal turns on a narrow issue and that is the jurisdiction of the Court of Appeal to entertain an appeal from a decision of a Customary Court of Appeal of a State.

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The Appellants sought to appeal against that decision. It would appear, however, that the proposed appeal to the Court of Appeal from that decision would not raise questions involving Customary law but, at best, one of constitutional law- jurisdiction. I think the Court of Appeal was therefore, right in declining jurisdiction in such circumstance. What is a question of customary law has been determined by this Court in Pam v. Gwom (2000) 2 NWLR 322 where Ayoola JSC at pages 335-336 of the report said:
“I venture to think that a decision is in respect of a question of Customary Law when the controversy involves a determination of what the relevant customary law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law, is no decision as to any question of customary law arises. However, where notwithstanding the agreement of

the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.?
Applying the test stated above to the present case, it is evident in regard to the grounds of appeal before the Court of Appeal, that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of evidence; grounds 2 and 3 thereof, which in substance complained of misdirection of that Court in regard to the nature of transaction between the parties; ground 5 which, putting the best construction one can on it; remained meaningless, and ground 6 which raises the question of the nullity of the

proceedings having regard to the Constitution of the trial Court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of Customary law.”

In the knowledge that an appeal is basically a continuation of the case at its inception, I have hereinbefore, set out the claims of the Respondents before the trial Customary Court and in respect of which the said Court entered judgment as follows: –
?Based on the evidence before the Court from both parties and their witnesses and from the addresses of the learned counsels for the parties and from the findings from the visit and inspection of the locus in quo carried out in the presence of parties on 6-6-97 Court is minded to make the following orders.
(1) The plaintiffs have succeeded in their case and the Court hereby declares them owners of the lands in Azuowu where Umuawa & Umunwoko were in possession before De-enactment/Nkutu ofo of 1982 in Suit No. CC/O/175/87.
(2) The defendants themselves, their agents, heirs, assigns and workmen are hereby perpetually restrained from further committing acts of trespass on the land.
(3) Defendants should

pay N1,000.00 costs for damages done to economic trees as assessed by Court and N116.00 summons fee to the plaintiffs within 14 days from today.
(4) Judgment for the plaintiffs in Suit No. CC/O/175/87.?

Similarly, I have hereinbefore set out the grounds of appeal, of the Appellants before the Court below, the issues formulated for the determination of their appeal before the Court below by the Appellants; and the judgment of the Court below which is as follows:-
?The above case is on all fours with the present appeal and I am bound by the decision of the Supreme Court as stated above.
I do not agree with Counsel that the boundaries of the land in dispute was not proved, or that the land was not certain. If there was any confusion that should have manifest when plea was taken. At the locus the boundary neighbours where (sic: were) there to testify, Appellants did not raise any objection. The sketch referred to was made in the presence of parties and Counsel. If it was incorrect they should have objected to same forthwith.
I agree with the Lower Court that the Respondents were in absolute and undisturbed possession of the

land in dispute for over 300 years until the Nkutu Ofo of 1982 which I told and held to have been performed in bad faith, and in utter disregard of custom of Ngor Okpala that land used to atone for person or persons murdered can never be retrieved or redeemed.
All the issues canvassed by Appellants? Counsel fail by the fact the (sic) decision in Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314 and this appeal fails.
I make the following orders ?
?(a) Appeal is hereby dismissed
(b) The judgment of the lower Court in CC/O/175/87 dated 25 June 1997 is hereby affirmed.
(c) The Appellants shall pay costs of N3,000.00 (three thousand Naira) to the Respondents.
(d) More particularly, it is hereby ordered for avoidance of doubt, that the Appellants, their heirs, agents, assigns and workmen are perpetually restrained from entry into the said portion of land in dispute known as and called Azu Owu situate over Ogochia Obike Stream, in Ngor Okpala.?
(Underlining provided by me for emphasis).
?
It is in my considered view most obvious from the claims of the Respondents, that the action they brought against the

Appellants relate to land which they (i.e. Respondents) claim to belong to them and for damages to which they conceive they are entitled given the alleged acts the Appellants did on the said land. I am of the considered view that the fact that the Respondents brought their ?land and land related claims? against the Appellants before the trial Customary Court does not make the case before the said Court a customary law matter by that very fact. Law reports are replete with decisions relating to proof of ownership of land vis–vis means of acquiring title to land. It is one of the settled principle of law in respect of a claim of title to land, that to succeed in respect of such claim, the Court must be satisfied as to ?(i) the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise and; (ii) evidence establishing title of the nature claimed. See ADISA V. OYINWOLA (2000) LPELR ? 186 (SC); AJIBOYE V. ISHOLA [2006] All FWLR (Pt. 331) 1209 and ADESANYA V. ADERONMU [2000] FWLR (Pt. 15) 2492. Though it is

not in doubt having regard to relevant enactments and various decisions of the Courts in this country that there can be customary ownership of land, and that evidence of tradition or traditional history is invariably relied upon in proving customary ownership of land, again I am of the considered view that the land matter the trial Customary Court entertained cannot be said to be ?a customary law matter? simply because reliance was placed on evidence of tradition or traditional history in the proof of the Respondents? ownership to the land in contention. This view is against the backdrop of the definition or meaning of ?customary law? as stated in the cases I have cited hereinbefore and which is that ?customary law? is “any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway” vis–vis what traditional evidence or traditional history in respect of land connotes as stated by Oputa, JSC; (now of blessed memory) in the case of DIKE V. NZEKA II (1986) NWLR (Pt. 34) 144

or (1986) LPELR ? 945 (SC). His lordship said thus:-
?What then is traditional history or traditional evidence? When is such evidence relevant? Traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land. Traditional evidence is a bit of ancient history. It is hearsay evidence only elevated to the status of admissible evidence by the Statutory provision of Section 44 of the Evidence Act Cap. 62 of 1958 Laws of the Federation of Nigeria. This Section provides:-
“S.44: When the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”
See also the case of IGBOJIMADU V. IBEABUCHI [1998] 1 NWLR (Pt. 533) 179 at pages 190 ? 191 where this Court per Uwaifo, JCA; (as he then was) said thus:-
?It ought to be pointed out that traditional history in simple terms is the history of a family or community as may be relevant to a claim in which title to a

subject-matter or a right or interest is sought to be established to obtain a declaration as a principal relief or in order to be protected by an injunction. It is history of yore of which no living person can give an eye-witness account. Evidence in respect of it is the story handed down from generation to generation by word of mouth as hearsay. But, although evidence of traditional history is hearsay, it must be a true story, in the sense that it was not concocted; or at least have a semblance of it, in the sense that it is not incredible, even though it may not always have the sanctity of truth (see Iriri v. Erhurhobara (1991) 2 NWLR (Pt. l73) 252 at 269); so that when it is in addition cogent, it can support a claim for a declaration of title: see Akhionhare v. Omoregie (1916) (sic) 12 SC 11 at 27….?
Again, in the case ofDAGACI OF DERE V. DAGACI OF EBWA (2006) 25 NSCQLR 847, Tobi, JSC; (now of blessed memory) dwelling on traditional history/evidence as a means of proving title to land said at page 910 thus: –
?In land matters, it is easy for a plaintiff to claim that he owned the land from time immemorial. But that

is not the end of the story. The story must go further and paint a genealogical tree of the family ownership of the land. It is usually a line story of members of the family in ownership of the land from past to present, the plaintiffs paints a picture of genealogical lines and names spreading like the branches of a tree, telling a consistent and flowing of undisturbed ownership or possession of the land. And the flowing story which should first be told in the pleadings should mention specific persons as ancestors before the witnesses give evidence in Court to vindicate the averments in the pleadings…?
In other words evidence of tradition or traditional history is not tantamount to the custom of a people and the fact that evidence of tradition or traditional history has been adduced and accepted or rejected and or resolved by the trial Customary Court in the instant case ipso facto does not make it a customary matter. This is however not to say that in a particular case a claimant of land who considers a custom to be relevant in establishing his case cannot rely on the said custom prevalent in an area where a

parcel of land is located in the proof of his entitlement to a parcel of land in dispute.

Against the backdrop of the meaning of customary law as stated above, it is in my considered view glaring that ground 1 in the notice of appeal and Appellants? issue 1 distilled therefrom (the appropriateness of which the Respondents have no grouse with in any event) is undoubtedly a ground of appeal that is in respect of a question of customary law. The said ground on its face brings to the fore the complaint of the Appellant regarding the acceptance by the Court below of the customary law of Obike, Ngor L.G.A. in relation to ownership of land and the application of the said custom to the instant case to the benefit of the Respondents. On the other hand, against the backdrop of what customary law is, I am also of the considered view that each of grounds 2, 3, 4 and 5 is not in respect of any question of customary law as the Court below on the face of each of the said grounds is not alleged to have remotely used customary law to determine the complaints in the said grounds. I am of the considered view that for any of the ground of appeal in the instant

appeal from the Court below to this Court to be in conformity with the provisions of Section 245 of the Constitution (supra), and therefore valid, such a ground of appeal must on its face disclose or allude to the question of customary law that is in contention and which was either wrongly accepted by the Court below as applicable in the case or wrongly applied to the accepted facts of the case in reaching its decision in respect of the complaint. Indeed, I am of the considered view that it is as a result of the improper appreciation of what an appeal on any question of customary law as used in Section 245 of the Constitution (supra) entails, involves or connotes as shown by the Appellants in paragraph 1.04 of their reply brief that has occasioned the presentation of grounds 2, 3, 4, and 5 in the notice of appeal before this Court as grounds relating to customary law. The submission of the Appellants in question goes thus: –
?But the learned counsel failed to appreciate ground (sic) 2 and 3 of the grounds of appeal which deal with boundaries and determination thereof. It is our humble submission therefore that the issue of determination of boundary

is an issue within the competence of customary law. And because the parties did not disagree thereon the same can competently be made an issue at the Court of Appeal. This is therefore a question of Customary Law? as specified in the case of PAM V. GWOM .?

The misconception or fallacy in the position of the Appellants in respect of the terms ?any question of customary law? as contained in Section 245 of the Constitution and which in my considered view is clearly apparent from the submissions quoted above and which undoubtedly influenced the couching of grounds 2 ? 5 in the notice of appeal, has totally made the said grounds being competent grounds of appeal in respect of ?any question of customary law? in the instant case. Indeed it is in the light of this considered view that I had earlier underlined portions of the judgment of the Court below hereinbefore re-produced which clearly showed that the Court below never concerned itself with the application of any customary law in reaching its conclusions in the case save for finding the Respondents to be entitled to the land which they

claimed. And I cannot but say again, that ground 1 in the notice of appeal has eloquently brought to the fore the grouse the Appellants have with this aspect of the decision of the Court below.

It is therefore, glaring that given the conclusion that I have reached that grounds 2, 3, 4 and 5 in the notice of appeal before this Court are not valid grounds of appeal having regard to the fact that they are not in respect of any question of customary law, the said grounds must be struck out for being incompetent and likewise the issues for determination of the appeal formulated therefrom. This is more so as the issues in any event do not bring to the fore any question of customary law for resolution by this Court. In this regard it is worth noting that the Appellants who depicted under paragraph 2.00 and particularly paragraphs 2.02 ? 2.04 of their brief of argument that three issues arise for determination in the appeal, ended up arguing four issues in the said brief of argument. The issues argued in the said brief of argument are: –
Issue 2, wherein the Appellants concerned themselves with arguing the Respondents? case vis–vis the

Respondents? claim for perpetual injunction restraining the Appellants from further acts of trespass on the land in dispute from paragraphs 4.02 ? 4.07 and ?trespass and damages? from paragraphs 4.081 ? 4.085;
Issue 3 (said to have been distilled from grounds 2, 3 and 4) wherein the Appellants argued to the effect that the Respondents? case is in respect of ?Azu Owu situate along the bank of Ogochia Obike Stream?. That it is common ground that Umuoyere owns land at Azuowu and also got land of Umumba as compensation after sharing same with Respondents who eventually gave to other communities in Umofor. That from the uncontroverted evidence of DW2 the land ?Uhu Umumba? was the land in dispute that was given to Umuawa and therefore not the totality of the land in Azu Owu and which makes it imperative to properly delineate the area of land upon which the order sought is to be made. That in the instant case, a survey plan was a necessity in view of the discordant evidence of parties and this witnesses.
Issue 4 (which is yet again said to have been distilled from ground 3) wherein copious

arguments were canvassed on ?when does identity of land become an issue?;

All the issues not being issues that brought to the fore any question of customary law, qualify to be struck out on the ground that they are incompetent issues. See the recent yet to be reported judgment delivered by this Court on 24/1/2017 in APPEAL NO. CA/OW/129/2011 ? DICKSON OGBANJA & ANOR. V. JUSTUS HARCOURT & ORS.

Flowing from all that has been said is that grounds 5 and issue 2 distilled therefrom;grounds 2, 3 and 4 and issue 3 distilled therefrom; and issue 4 also distilled from ground 3, are all struck out for being incompetent inasmuch as they have been distilled from incompetent grounds of appeal and/or for not raising for the determination of this Court any issue or question of customary law. I therefore see no need to dwell on the submissions of the Appellants in respect of the said issues as well as Respondents? issue 3 which relates to Appellants? issue 2 distilled from ground 5; and Respondents? issue 3 which was not married to any of the grounds of appeal but which from its content can be said to relate to

Appellants? issues 3 and 4 inasmuch as the said Respondents? issue 3 deals with the question as to ?Whether the Respondents have proved the identity of the land in dispute?. The Appellants canvassed various arguments in respect of the identity of the land in dispute under their issues 2 ? 4.

I?ll now proceed to consider the appeal on the sole surviving issue formulated by the Appellants and which is their issue 1 distilled from ground 1 in the notice of appeal.

APPELLANTS? ISSUE 1:
Dwelling on this issue, the Appellants said it is their case that in 1982 the people of Obike in an appeasement/propitiation ceremony performed at Nkwo/Ahia Dike reintegrated Umumba village into Obike fold. That consequently several villages/communities holding the lands of Umumba returned same and showed the 2nd set of Appellants their lands and boundaries thereof. That the communities that returned land included the Respondents. It is the position of the Appellants that there is abundance of evidence that land used in compensation for murder/death is redeemable in Obike as the propitiatory act, and the return of lands by

communities lend credence to this fact. He further submitted that Umumba is a proper party in this suit and in this proceedings consequent upon the Propitiatory Act of 1982 and consequent reintegration. That the Court below cannot uphold the judgment of the trial Customary Court without bearing in mind that the 2nd set of Appellants became parties in the suit consequent upon the reintegration resulting from the Nkutu Ofo of 1982 which Respondents did not challenge or appeal. That by Section 14 of the Evidence Act, a custom which is not noticed judicially must be proved by evidence in Court and that the Respondents have the burden of proving the custom they relied upon. It is the stance of the Appellants that banishment, reintegration, propitiation and return of lands in cases involving human life is not alien to Obike Custom and that the case of Nwagwu v. Okonkwo (1987) 3 NWLR (Pt. 60) 314 cited by the Court below has not been found to be applicable to Obike community where this suit originated.

?Respondents? issue 2 relates to Appellants? issue 1 as the Respondents distilled their issue 2 from the same ground of appeal from which the Appellants

distilled their issue 1 namely, ground 1 in the notice of appeal.

Dwelling on their issue 2, the Respondents said that the crucial or primary issue for determination in this matter is the circumstance by which they came to be in possession of the land in dispute for 300 years, and whether the land can be retrieved. Or, whether land used to compensate the killing of a person, can be retrieved or returned. It is the stand of the Respondents that the other issues raised by the Appellants in their brief of argument are not relevant for a proper and just determination of this appeal. It is also their stance that the Court below was right when it distilled the real issue in the appeal it entertained to be ?whether land used to atone for a person murdered can ever be redeemed or reclaimed by any means whatsoever? and that ?every other matter must flow from the answers to this issue.? It is the stance of the Respondents that the trial Customary Court found as a fact that the land in dispute was given to them (Respondents) to compensate them for the murder of their relation and that in accordance with the custom of Obike Ngor Okpala L.G.A.

such land is not returnable. That the Court below equally found and held that the land in dispute was given to the Respondents to compensate them for the murder of their relation and that such land cannot be retrieved and in arriving at this decision relied on the case of Nwagwu v. Okonkwo (supra). The Respondents urged this Court to hold that the Court below was right when it held that it is the custom of Obike Ngor Okpala L.G.A of Imo State that land used to atone for a person murdered or killed cannot be redeemed or retrieved.

Dwelling specifically on Appellants? issue 1 as couched and argued in their brief of argument, the Respondents submitted that same is non-sequitur and diversionary, as the said issue is not the focus of ground 1 of the ground of appeal. That the so called Propitiatory Act/Nkutu Ofo ceremony of 1982 performed by the traditional ruler of Obike, Eze Eke Denis Ogu and members of his cabinet whereby some kindred were said to have returned land to Umumba, on the strength of which the Appellants trespassed into the land in dispute in 1985 was challenged by the Respondents in Suit No. CC/O/176/87. That the Customary Court Ngor Okpala

set aside the said ceremony as being contrary to the custom and tradition of Obike and that both DW2 and DW5 conceded this much. That the trial Customary Court in its judgment had held that ?the NkutuOfo? in 1982 which empowered the Defendants (i.e. Appellants) to trespass into their (i.e.Respondents) land was against the custom of Obike and therefore was invalid and of no effect?; while the Court below on its own part also held that ?the ceremony of 1982 did not revive the five murdered persons. Therefore I hold it was performed in bad faith and was of no consequence.? That besides, a 1995 panel headed by V.I. Agwara had also set aside the 1982 decision of Eze Ogu and his cabinet. That contrary to the stance of the Appellants the Respondents never returned any land to Umumba as stated by the Appellants in their brief and reference was made to the evidence of DW4 in this regard. Against the backdrop of all that was said, the Respondents urged this Court to hold that Appellants issue 1 does not flow from ground 1 of the grounds of appeal and consequently strike out same.

?In the event, this Court finds that Appellants? issue

1 flowed from their ground 1, the Respondents urged this Court to hold that the Nkutu Ofo ceremony is invalid and of no consequence having been set aside by the Customary Court Ngor Okpala in Suit No. CC/O/176/87. That there was no appeal against the said decision setting aside the ceremony. This Court was urged to resolve Appellants issue 1 against the said Appellants.

Dwelling on Respondents? issue 2 in their reply brief, the Appellants not only conceded that in every case there is always the primary and crucial issue for determination but also that land used for atonement for a person murdered cannot be redeemed or reclaimed. They would however appear to have argued that there was no evidence of as to the person who gave the Respondents the land in dispute and the size of the land so given. That the circumstances of the instant case is that of confiscation of parts of lands owned by Mba and not all his lands. That the inference therefore is that it is not only the Respondents that had their possession the lands of Umumba and that the land in dispute is therefore, only that part of Mba?s land in possession of the Respondents.

?I have

hereinbefore in this judgment re-produced ground 1 in the notice of appeal as contained in the judgment of the Court below in the record. Likewise I have also reproduced issue 1 distilled from the said ground by the Appellants as set out in their brief of argument.

It is my considered view that the Respondents are on very firm grounds in their stance that Appellants? issue 1 does not flow from ground 1 in the notice of appeal given the fact that while it is the customary law of Obike Ngor Okpala L.G.A that is the nitty-gritty or crux of the complaint in the said ground, what the Appellants decided to distill therefrom was an issue relating to the propitiatory act/Nkutuofor of 1982 consequent upon which lands of Umumba (the 2nd set of Appellants) were returned to them by various communities in Obike community of Ngor Okpala Local Government of Imo State. I am of the considered view that the issue as distilled by the Appellant in not challenging in any manner any aspect of customary law of Obike that land used in compensation for the death of a human being is irredeemable and irretrievable, cannot be said to have arisen from the said ground 1. Indeed,

the concession made by the Appellants in their reply brief of argument that land used for atonement for a person murdered cannot be redeemed or reclaimed (and which is the customary law the Court below relied upon in finding the ownership of the land in dispute to reside in the Respondents by affirming the judgment of the trial Customary Court in which the said Court had made a finding to the effect that the NkutuOfor? in 1982 which empowered the Defendants (i.e. Appellants) to trespass into their (i.e.Respondents) land was against the custom of Obike and therefore was invalid and of no effect?) created a situation where though the Appellants can be said to have a question of customary law for the purpose of the appeal at its conception, it however became clear to them that there was in fact no real question relating to the customary law of Obike in issue given their concession regarding the existence and application of the said custom. This much in my considered view is clear going by the pronouncement of Ayoola, JSC; in the case of Pam v. Gwom (supra) to wit: –
“I venture to think that a decision is in respect of a question of Customary Law

when the controversy involves a determination of what the relevant customary law is and the application of Customary Law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. However, where notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines and regulates the right, obligation or relationship of the parties having regard to facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of customary law. Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law.?

The trial Customary Court specifically held that ?the Nkutu Ofo by some Obike Oji

ofosin 1982 which empowered the defendants to trespass into their land was against the custom of Obike and therefore invalid and of no effect.” I have hereinbefore set out the grounds of appeal upon which the Court below entertained and determined the appeal it entertained. The Appellants clearly never appealed against that finding of the trial Customary Court as re-produced above. Similarly, there is no ground of appeal in the notice of appeal upon which the instant appeal is being entertained regarding any aspect of customary law in relation to the finding by the Court below wherein the said Court having set out the evidence of PW1 that:
?The custom and tradition of Obike demands that one who kills a person must die with the person he killed. Ogburu okpo na okpo la, accordingly, the man must be killed, his property confiscated, his farm land shared. His farm land is used to compensate for crime?… This lower Court believed it and held that it to be true and correct custom of Obike. The ceremony of 1982 did not revive the five murdered persons, therefore I hold it was performed in bad faith and was of no

consequence.?

I am of the considered view that in the absence of any specific ground of appeal in relation to what the Court below said in respect of the 1982 ceremony or as the Appellants did not consider it expedient to have juxtaposed the question of the custom of Obike, Ngor Okpala L.G.A. with that of the Nkutuofo of 1982, in ground 1 of the notice of appeal, they could not have properly distilled their issue 1 from the said ground. It is therefore my considered view that Respondents? position that issue 1 distilled by the Appellants from ground 1 in the notice of appeal raises no question of customary law, is unassailable. The said issue therefore must be struck out.

?Flowing from the striking out of the said issue 1 distilled from ground 1 in the notice of appeal, is that the said ground (which I have hereinbefore found to raise a question of customary law), is left with no issue and argument to substantiate it. The consequence of this, is that the Appellants having failed to canvass any argument in support of ground 1 in the notice of appeal, have left the complaint in the said ground and by necessary implication, the appeal

(issues 2?5 having been struck out before now) unsubstantiated.

In the final analysis, this appeal is unmeritorious and it fails as the Appellants had nothing to urge to substantiate the appeal. Accordingly, the judgment of the Court below which has not been impaired in anyway whatsoever by the Appellants must be and is hereby affirmed.
Costs in the sum of N50,000.00 is awarded in favour of the Respondents and against the Appellants.

RAPHAEL CHIKWE AGBO, J.C.A.: I have had the privilege of reading in advance this most seminal lead judgment written by my learned brother Lokulo-Sodipe JCA. I completely agree with his reasoning and conclusions. I regard the judgment as mine and have nothing useful to add. I too regard the appeal as being completely devoid of merit and also dismiss it with N50,000.00 costs to the Respondents.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read in advance the brilliant, lucid and expository lead judgment just delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. I agree entirely with his reasonings and conclusions reached

therein. I have nothing gainful or meaningful to add thereto.

?Thus, the appeal which lacks merits fails without an iota of saving grace. The consequential orders made in the said lead judgment of my learned brother, Lokulo-Sodipe, JCA, are thereby endorsed by me, including the one on costs.

Appearances

Parties are absentFor Appellant

AND

V. N. Onyeonono (Mrs.)For Respondent