CLEMENT NZURIKE v. ELIJAH OBIOHA & ANOR
(2011)LCN/4231(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of January, 2011
CA/PH/101/2003
JUSTICES
ABUBAKAR JEGA ABDUL KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
CLEMENT NZURIKE
(For himself and on behalf of Umuechem Kindred Umuezealaeze Alaenyiogwa, Mbaitoli L.G.A, – Imo State of Nigeria) Appellant(s)
AND
1. ELIJAH OBIOHA
2. THOMPSON ANYAOHA
(For himself and on behalf of Umuezealaduru/Akajiaku Kindred Umuezealaeze Alaenyi Ogwa, Mbaitoli L,G.A., Imo State of Nigeria Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of I. O. Agugua, J. in the High Court of Imo State holden at Iho in Suit No. HMI/253/95 HOW/253/92 on 25th June 2001.
The appellant as plaintiff before the lower court took out a Writ of Summons which was filed together with the statement of claim on 6/8/92. Therein, appellant as plaintiff claimed against the defendants/respondents as follows:
“(i) A declaration that UMUECHEM KINDRED of the plaintiffs are the children of ECHEM the first son (NWAOKPARA) of EZEALAEZE the founding father of UMUEZEALAEZE VILLAGE in Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State of Nigeria.
(ii) A declaration that UMUECHEM KINDRED by virtue of being the children of Echem, the first son (NWAOKPARA) of EZEALAEZE is the most senior kindred in Umuezealaeze VILLAGE in Alaenyi Ogwa Mbaitoli Local Government, Imo State.
(iii) A declaration that UMUECHEM KINDRED occupies the first position over and above UMUEZEALADURU/AKAJIAKU kindreds in traditional ranking of seniority in Umuezealaeze VILLAGE, Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State.
(iv) An injunction restraining the defendants, their successors, privies, assigns and their agents/servants from claiming that the plaintiffs are not the most senior kindred in order of traditional ranking in UMUEZEALAEZE VILLAGE, Alaenyi Ogwa, Mbaitoli Local Government Area, Imo State.”
The summary of the pleadings and evidence before the lower court is from the plaintiffs/appellant’s side that Echem was the first of the seven (7) sons or kindreds of Ezealaeze the founding father of the Umuezealaeze Village and as such not only inherited the shrines and compounds as the (Nwaokpara) on the demise of Ezealaeze but also inherited all the rights and privileges including the traditional ranking of being the most senior kindred in Umuezealaeze village.
The respondents denied all of these and claimed that “Umu-Ezealaeze” is merely a collective name for the seven kindreds inhabiting the village known as and called Umu-Ezealaeze. That Umuchukwu kindred who the appellant pleaded as the seventh son/kindred of Ezealaeze have no blood relationship with the others because they are of Aro stock. That from time immemorial, the traditional order of ranking and seniority in Umuezealaeze is as follows:
1. Umuezeala Duru and Umuakajiaku
2. Umuokwaramgbawa and Umuololo
3. Umuechem and Amakwo
That this accepted order of ranking and seniority was incorporated into the provision of the Constitution of the Umuezealaeze Improvement Union which has been in operation since 1981.
At the trial, the plaintiff/appellant called three (3) witnesses and the defendants/respondents also called three (3) witnesses.
At the end of the trial, and after the submission of Written Addresses, the leaned trial Judge in a considered judgment (pp. 122 – 154 of the record) dismissed the plaintiffs/appellant’s claims and held at page 153 thus:
“Plaintiffs have not proved their case. They have not shown that in Umuezealaeze their own kindred has a prescriptive right to the traditional hierarchy as the most senior kindred. Plaintiffs case must stand on its own strength. On the other hand, the evidence of DW2 is very convincing and is in line with the declaration in paragraph ’14(i), (ii) and (iii) of the statement of claim. Umuechem kindred cannot be said to occupy the first position over and above Umuezealaeze/Akajiaku kindreds in traditional ranking of seniority in Umuezealaeze Village, Alaenyi Ogwa, Mbaitoli Local Government Area of Imo State. The order of injunction similarly as a result cannot be granted
Dissatisfied with this judgment, the plaintiff/appellant filed a Notice of Appeal containing four (4) grounds of appeal in this Court on 16th day of July, 2001. The relevant briefs of argument for this appeal are as follows:
1. Appellant’s Amended Brief of Argument filed on 12/4/10 and deemed filed on 7/6/10 – settled by Chidi B, Nworka, Esq.
2. Respondents’ Amended Brief of Argument and submission dated 5/10/10 and filed on 12/10/10 – settled by Prof. C. Ogwurike.
Learned counsel for the appellant nominated a sole issue for determination as follows:
“Upon a proper evaluation of the evidence before the trial court, whether the learned trial Judge was right to hold that appellant failed to prove their case.”
Learned counsel for the respondents also formulated a sole issue as follows:
“Whether the learned trial Judge was right in his evaluation of the evidence before him in the light of the facts presented to him by the parties and their witnesses and the exercise of his discretion to, in the final analysis hold that the plaintiffs (appellant’s) claim failed in its entirety and had it dismissed.”
There is in substance no difference in the issue as differently formulated by the parties. The appeal shall be determined by the sole issue nominated by the appellant. Learned counsel for the appellant reviewed the facts and the evidence before us as follows. That, in support of his principal claim, the appellant pleaded at paragraphs 4 and 5 of their statement of claim, that Umuezealaeze Village derived its name from the known founding father, Ezealaeze, who had seven sons, the first of whom was Echem, who in turn was the forebear of Umuechem kindred. That, at paragraph 7 of the statement of claim, it was pleaded that upon the death of Echem, his descendants stepped into his shoes as head in the village. Against these averments, said counsel to the appellant, the respondents pleaded in paragraph 6 of their Amended Statement of Defence that Umuezealaeze was only a collective name for the seven kindreds that make it up; that Ezealaeze was not the founding father of that village and that Umuchukwu came from another place to join the other six kindreds that make up the village. That, the respondents further pleaded in paragraph 7 of the Amended Statement of Defence, that Ezealaeze had six sons, with Ezealaduru being the first while Echem was the fourth; that the first three were the “titled sons” that Ezeala was the first son of Ezealaeze, while the addition Duru to his name was his title.
Learned counsel for the appellant said that the respondents ended their said paragraph 7 curiously as follows: “The descendants of the six children of Ezealaeze mentioned above constitute six kindreds in Ezealaeze village while Umuchukwu kindred make them seven kindreds”,
Appellant’s counsel said the above piece of pleading renders true the pleading of the appellant that the Umuezealaeze village derives its source or origin from one man – Ezealaeze – and that all but one of the founders of the kindreds in that village were the children of this one man.
By this, appellant’s counsel submitted that there no longer existed any burden on the appellant to prove that Umuezealaeze village were the children of Ezealaeze, or that Echem was the son of Ezealaeze, or that Umuechem kindred descended from this Echem, son of Ezealaeze.
Appellant’s counsel submitted that the pleading in paragraph 7 of the Respondents. Statement of Defence is significant in yet another important respect. It firmly puts beyond doubt, not only that the founders of Umuechem kindred of the appellant, and Umuezealaduru/Akajiaku kindred of the respondents were the sons of this one man Ezealaeze, but that the kindreds claim to seniority is based on the birth of their various founders. This, according to appellant’s counsel further narrows the issue left to be determined between the parties to just this: Who among Echem, Ezealaduru and Akajiaku, is the first son of Ezealaeze?
In answering this question, learned counsel to the appellant referred to the evidence of PW1, Sonny Nwachukwu. First at page 49 lines 20 – 23 of the record that:
“This our senior position is that Echem was the first son of Ezealaeze. The first son is entitled to get a first share and first position among the children of Ezealaeze.”
Second, at page 50 lines 3 – 5 of the record that:
“Echem was the first son of Umuezealaeze. Ezealaeze had seven sons. On the death of Ezealaeze the first son occupied his compound.”
And at lines 14 – 15 of the same page 50 that:
“This seniority position can never be sold out. This is our custom.”
Counsel said there was an attempt to shake this evidence of Echem’s seniority during cross-examination, when it was suggested to him that ‘Duru’ attached to Ezealaduru was a title and only the first son of Ezealaeze was entitled to take this title. That, he denied this and that, however, the evidence that it is the custom of the parties that seniority cannot be sold was not challenged.
Appellant’s counsel said there was also the evidence of PW2, Nze Appolos Oguwuike, from the kindred of the respondents, Umuezealaduru/Akajiaku. That, his testimony at lines 12 – 15 page 55 of the record that “There are 7 kindreds that make up Umuezealaeze village. Umuechem is the most senior kindred in the village. Since I came out of the world I have always known that Echem is the first son of Ezealaeze” was not at all challenged during cross-examination.
The defence, said appellant’s counsel opened with the evidence of DW1, Donald Ajuru. That, this witness uttered no one word on the fact pleaded by respondents that Ezealaduru was the first son of Ezealaeze, nor that he took the title of Duru as the first son. Not a single word was said by the witness on this all important issue of who, between Echem, Ezealaduru and Akajiaku was the first or oldest son of Ezealaeze. Rather, said counsel, the witness made a bland statement that: “The head of the kindreds is Ezealaduru/Akajiaku” (Lines 18 – 19 page 64 of the record).
Appellant’s counsel queried based upon what (sic) did Umuezealaduru/Akajiaku became the head of the kindreds? And that even this bare declaration is effectively countered by Exhibit F made by the witness himself (pages 212 – 215 of the record) wherein, he declared that Umuechem was head but had sold their headship to Umuezealaewuzie.
Appellant’s counsel said that DW2 was one Clifford Nwadike. That, he testified that by tradition the oldest kindred was Ezealaduru but did not also explain the circumstance or events which made Ezealaduru the oldest kindred. And that it is this same prototype of evidence that was repeated by the 1st respondent himself as DW3.
Learned counsel for the appellant submitted that whereas appellant led evidence in support of his pleading that Ezealaeze was the founding father of Umuezealaeze village, that Echem was the first son of Ezealaeze and so his descendants, Umuechem, should, on the ground of this priority of birth be the most senior kindred, respondents offered no evidence at all in support of their pleading that it was their founder, Ezealaduru that was the first son of Ezealaeze.
Evidence inter partes in civil matters, said counsel is evaluated by placing them on either side of the imaginary scale of justice. Counsel relied on the cases of Nzeribe vs. Dave (1994) 9 SCNJ 161 at172 and Arabambi vs. Abil (2005) 12 SCNJ 331 at 353 that averments in pleadings not supported by evidence must be discountenanced. Counsel relied on the cases of Iriri vs. Erhurhobara (1991) 3 SCNJ 1 at 8 – 9 and Baba vs. Civil Aviation (1991)7 SCNJ (Pt. 1) 1 at 22 and submitted that where on an issue, evidence comes on one side which is uncontradicted as with the appellant herein the evidence ought to be accepted by the court.
Counsel submitted that the learned trial Judge was wrong when she held at page 144 lines 26 – 33 that:
“Plaintiffs have not in their evidence given the birth order of the said sons of Ezealaeze, neither have they told this court the position of Chukwu vis-a-vis Ezealaeze as to the land they occupy. I cannot therefore make the declaration asked of me by the plaintiffs namely: that Echem is the first son of Ezealaeze and that Echem being the first son is the most senior kindred.”
Counsel said, this conclusion with respect is the result of improper evaluation of the pleading and evidence before the trial court. That at paragraph 5 of the statement of claim, appellant pleaded that Ezealaeze had 7 sons. The names of the sons were listed in their order of seniority and it was mentioned that each son spawned the kindred whose name is now ‘umu’- (children) of the named son. Testifying in chief, said counsel, the PW1 stated thus:
“This our senior position is that Echem was the first son of Ezealaeze. The first son is entitled to get the first share and first position among the children of Ezealaeze” (lines 20 – 23 page 49 of the record). That further in chief, he said: “It was resolved in the union by the 7 children/kindred of Umuezealaeze in favour of Umuechem” (lines 10 – 12 page 50 of the record). And under cross-examination, he was asked: “There are 7 kindreds in Umuezeala”. Answer: “Yes”. Question: “These 7 kindreds can you name them” Answer: “Yes. Echem, Ezealaduru, Umuokwaramgbawa, Akajiaku, Amankwo, Lolo and Umuchukwu” (lines 22-26 page 50 of the record).”
On this, appellant’s counsel submitted that the terms “children” and “kindreds” as interchangeably used by the PW1 should leave no one in doubt that the above quoted evidence extracted from him under cross-examination relates to the seniority of the children of Ezealaeze and the kindreds they spawned in the order of birth. That, this supplies the evidence in support of the averment in paragraph 5 of the statement of claim as to the order of birth of the children of Ezealaeze,
Counsel submitted further that the birth order of the other children of Ezealaeze is not a sine qua non in establishing the seniority of Echem. Even if it (the birth order) had not been given at all, that cannot derogate from the evidence that was in deed given that Echem was the first son, There is no requirement in law or fact, said counsel, to the effect that the birth order of other named children of a man must be given in order to establish the assertion that a particular one of them is the first son of the man. Such evidence said counsel can only be a ‘strengthening’ or ‘beefing up’ of the evidence already given that Echem was the first son. It would come in handy if and when the evidence that Echem was the first son has been effectively challenged or refuted by the respondents. But this, said counsel, the respondents did not do. In that circumstance, it would have been sufficient to state that Ezealaeze had seven sons and the first was Echem, Counsel said, the finding or conclusion drawn by the trial court at page 144 of the record is perverse.
Counsel submitted that PW1 gave evidence that it is not the custom of their village to sell the position of first son. That, this piece of evidence was neither challenged nor contradicted. And, that it therefore stands firmly established that in the custom of the people of Umuezealaeze village of the parties, the position of the first son cannot be sold.
Counsel submitted that quite a lot of energy was expended at the court below on the issue of the location of shrines in the village, titles taken and representation in Eze’s cabinet. In the first place, said counsel, these only tantamount to ancillary acts and events that will lend further support to an established act of being originally entitled to exercise these ancillary acts. That, where one fails to establish his entitlement to do those acts, the fact that he does them would not vest in him the status of one entitled to do those acts as of right. For instance, said counsel, the Igudu shrine that respondents claim is situate in their kindred and rely on same to claim seniority, no evidence came to show that this shrine was established by their founding father Ezealaduru in his capacity as first son, or handed over to him by his father as the first son. Counsel said, it is common practice in Igbo land to site a shrine anywhere. A family kindred or village can site their shrines in lands they suspect others might take away from them to maintain their possession or on borrowed land, or even deliberately on the lands of their enemies, if the deity is believed to emit evil force.
Also, title taking said counsel is something done by those who can afford the expensive ceremony involved, or by those who have done things a village may judge entitles them to be honoured. It has nothing to do with seniority. The plethora of these acts given in this case by the parties, no matter which side the weight may be said to favour, is totally irrelevant to the primary issue of who between Echem and Ezealaduru is the first son of Ezealaeze.
On the Constitution of the village, Exhibit E, appellant’s counsel submitted that the provision in section 2A (page 176 of the record) merely stated an arrangement of merging some kindreds together which it said was inherited from their forefathers. Why this arrangement was made is not stated, Respondents who relied on same and maintained that stature did not provide the reason either. That listing or grouping, said counsel is of the kindreds after they had been established not the listing of the sons of Ezealaeze, Also, that the inclusion of Umuchukwu kindred which both parties agree did not descend from the lineage of Ezealaeze goes to show clearly that this grouping is not based on birth, a stranger cannot be included in the listing in order of seniority by birth of the children of a man who is not his father.
Furthermore, said counsel, that very arrangement is hotly contested by the kindred of the appellant and in fact constitutes the cause of action in the suit. That, this is evident from the evidence of all the witnesses, as well as Exhibit F made by DW2. Moreover, the arrangement, said counsel, did not address the subject matter of the suit and the issue in contention between the parties; who the first son of Ezealaeze was, and which kindred was entitled to be senior by dint of the birth of its forebear. Counsel submitted that in the unlikely event the provision of section 24 of the Constitution of the village is said to have relevance to this suit same may be likened to the situation again in Land Law where one claims ownership to land on grounds of a grant. Where that grant is challenged, the person placing reliance on it must, to succeed, go further to prove the title of his grantor; he must establish how the grantor acquired the land he granted, That, it was necessary in this suit, therefore, for the respondents to adduce evidence to prove how and why the constitution they were relying on granted the rank of seniority to their kindred, Appellant’s counsel referred to the cases of NEPA vs. Alli (1992) 10 SCNJ 34 at 55 and Ogbuokwelu vs. Umeanafumkwa (1994) 5 SCNJ 24 at 42 and submitted that the judgment of the trial court in this case is perverse, being a product of improper evaluation of the evidence led and has occasioned a miscarriage of justice. He urged us to allow the appeal, set aside the judgment of the lower court and grant the reliefs sought by the appellant.
The respondents on the other hand, reiterated the appellant’s claims and said three witnesses – PW1 , PW2 and PW3 testified for the appellants. That, none of the witnesses gave evidence to show how Echem became the first son of Ezealaeze. That the family tree of Ezealaeze was not produced or given in evidence, to show the order of seniority of the sons of Ezealaeze. Also, said respondents’ counsel, there was no evidence to show that Ezealaeze was the founding father of Umuezealaeze village. That, contrary to the pleadings of the appellant, that Chukwu was one of the sons of Ezealaeze, evidence revealed that Umuchukwu are a distinct group of people in Umuezealaeze. And that no evidence was adduced to show who came first, Chukwu or Ezealaeze village to be the founding father.
Learned counsel for the respondents submitted further that the appellants were unable to show that their kindred had a Rallying Traditional place for all the kindreds in Umuezealaeze village (as it is usual in lbo custom) which is always the prerogative of the most senior of all the kindreds. Rather, it is in evidence that the only rallying place, “The Igudu Shrines” in Umuezealaeze village is located within the respondents’ kindred – Umuezealaduru/Akajiaku kindred, as the most senior kindred. Respondents submitted that their witnesses confirmed the fact that the “Igudu Shrine” in Umuezealaeze village is owned by the whole village and located in Ezealaduru/Akajiaku kindred. That this claim was not challenged but conceded by the Appellant’s witnesses.
Respondents’ counsel also referred to Exhibit ‘C’ that is the letter by Umuezealaeze Improvement Union dated 24/3/1985 – Addressed to (1) Eze C. C. Iheanacho Eze Ogwa I of Ogwa and (2) The General President Ogwa Federated Union. According to the – respondent/Exhibit ‘C’ was signed by B. A. Nwosu the plaintiff (now deceased) as he then was, That the said Exhibit ‘C’ confirmed the content of Section 2A of the 1981 Constitution of the village which entrenched the respondents’ kindred as the most senior kindred in Traditional hierarchy of kindreds in Umuezealaeze Village.
Respondents’ counsel further submitted that the constitution of Umuezealaeze Improvement Union 1981 – Exhibit E itself was not challenged until 23rd of September, 1988 when the 1st plaintiff (now deceased) wrote the Umuezealaeze Improvement Union claiming that his own kindred Umuechem and not the respondents Umuezealaduru/Akajiaku is the most senior in the traditional hierarchy of all the kindreds in Umuezealaeze village. That, his letter gave rise to Exhibit ‘A’ in reply.
Learned counsel to the respondents then pointed out the failed attempt by the appellant in relying on Exhibit ‘B’ that is the minutes of a meeting of the Umuezealaeze Union purportedly held on 3/4/1986 which was alleged to have reversed the traditional hierarchy as stated in the provision of Section 2A of the village constitution by placing appellant’s kindred as the most senior.
Exhibit ‘B’ as tendered, said respondents’ counsel was denied as the true minutes of the meeting. That the real minutes at the said meeting were mutilated, erased and shaded. Respondents submitted that in their pleading, they had maintained that the appellant’s reliance on Exhibit ‘B’ (the minutes of the Improvement Union of 3/4/1986) is fraudulent. That, in reply to paragraph 9 of the statement of claim, the respondents maintained that the appellant tried to use intimidation and other malpractices to have Section 2A of the Constitution changed to put Umuechem kindred on top as the most senior kindred. That, the appellants in the process carried away the said Minutes Book of the said meeting and manipulated it. And that as confirmed by the learned trial Judge, a visual examination of the said minutes confirmed it had been tampered with.
Learned counsel for the respondents then justified the fact that the learned trial Judge refused to attach any probative value to Exhibit ‘B’ first on account of the fact that Exhibit ‘B’ was tendered by Romanus Ukaegbu as PW3 when the maker of Exhibit ‘B’ Clifford Uzoma was alive during the trial at the lower court and was not called by the appellant to tender the Minutes Book. Secondly, respondents’ counsel justified the lack of probative value for Exhibit ‘B’ by the physical examination and observation of Exhibit ‘B by the learned trial Judge himself. Thus, the respondents quoted extensively from the findings of the learned trial Judge in relation to Exhibit ‘B’ at page 151 as follows:
“..PW3 did not help this court much because from his evidence one is not sure exactly who wrote down the minutes of 3/4/86. But as I observed there were some mutilations and shading of the minute book and I took the liberty to go through some other minutes therein and I found that only the minutes of that day and that crucial issue were mutilated and shaded. Again, there is no indication in the minutes of how the crucial issue was debated i.e. whether in line with the suggestions in Presidential Address or not. There was no record of how the decision was taken whether unanimously or by simple majority. Exhibit ‘B’ therefore is inconclusive and in view of the attacks on it cannot be relied on. I therefore totally reject exhibit ‘B’ and its contents as to seniority of the kindreds. Respondents’ counsel submitted on the above findings of the learned trial judge on Exhibit ‘B’ that an appellate court will not interfere with the finding of fact by the trial court except it is shown that such finding of fact is perverse or unsound. He relied on the following cases: Ege Ebba vs. Ogodo & Ors (1984) 1 SCNLR 372, Kakarah & Anor. vs. Imonikhe & Anor. (1974) 4 S.C 151, Chukwuocha vs. Onuoha & Ors. (1991) 4 NWLR (Pt.184) 234 and Bank of Credit and Commerce Int. (Nig.) Ltd. vs. Stephens Industries Ltd. (1992) 3 NWLR (Pt. 232) 772.
Counsel further submitted that the appellant’s contention that Exhibit ‘E’ the Constitution of Umuezealaeze Improvement Union 1981 was not the approved current constitution was hinged on the alleged change of Section 2A of the Constitution by the meeting of 3/4/86, by Exhibit B. And, that having found Exhibit ‘B’ to be inconclusive and unreliable, the appellant failed to prove that the 1981 constitution of the village was not the current and approved one.
Respondents’ counsel submitted that there is nothing perverse in the finding of fact and evaluation of evidence in this case. That, rather, the learned trial Judge took pains to review, appraise and assess the evidence adduced by the parties in coming to the conclusion of dismissing the appellant’s claims.
The Law is trite, said the respondents’ counsel that in a declaratory action’ the plaintiff (appellant) must rely on the strength of his own case and not on the weaknesses in the defendant’s case. And that the trial court has a discretion to grant or refuse the declaration sought by the appellant.
Respondents’ counsel referred to the cases of Bello vs. Eweka (1981) 1 SC 101 at 102 – 103, Adejumo vs. Ayantegbe (1986) 3 NWLR (Pt. 110) 417 Bank of Baroda vs. Merchantile Bank Nig. Ltd. (1987)3 NWLR (Pt.60)233 and Bakare vs. ACB Ltd. (1985)3 NWLR (pt. 26) 47 and said that an appellate court will rarely interfere with the exercise of discretion by a trial judge and will refuse to substitute its own, once the exercise of such discretion is based on accepted principles, and not on the whims and caprices of the trial court. He urged us to dismiss the appeal.
In deciding the sole issue in this appeal or perhaps in re-evaluating the evidence as suggested by the learned counsel for the appellant himself, it is important to bear at the back of our minds the claim of the appellant before the lower court and to appreciate the nature of the burden of proof on the appellant.
The basis of the plaintiffs/appellant’s claim is that Echem their forebear was the 1st out of seven sons of Ezealaeze and that Ezealeze was the founding father of the said Umuezealaeze village. The defendants/respondents denied all the above assertions and claim that their Umuezealaduru/Akajiaku kindred come first in the order of seniority and that the plaintiffs/appellant’s kindred rank third in the order of kindreds. And that, that was enshrined in the Umuezealaeze Improvement Union Constitution.
The burden of proving (1) that Echem was the first son of Umuezealaeze (ii)that Umuechem kindred is the most senior kindred in Umuezealaeze and (iii) that Umuechem kindred occupies the first position over and above Umuezealaduru/Akajiaku kindred in traditional ranking of seniority is on the appellants, the respondents having denied these assertions and claim of the appellants. – See, Obimiami Bricks & Stone Nig. Ltd. vs. A. C. B. Ltd. (1992) 3 NWLR (Pt. 229) 260. Meanwhile, contrary to the pleadings of the appellant; the evidence of both parties revealed that one Ezealaeze was the father of six sons whose offspring make up six kindreds only in Umuezealaeze village. That the 7th kindred ‘Umuchukwu’ is of a stranger element extraction from Arochukwu. By implication therefore, the evidence tendered by the parties revealed that Umuezealaeze village is comprised of seven kindreds one of which is not an offspring of Ezealaeze.
To be more specific, PW1 – Sunny Nwachukwu said in evidence under cross-examination that “Ezealaeze had six sons, Umuchukwu joined them as strangers”, PW2 – Nze Apolous Oguike from the respondents kindred maintained that Ezealaeze had seven sons which he named as (1) Echem (2)Ezealaduru (3)Okwaramgbawa (4)Akajiaku (5) Nkwo (6) Lolo and (7) Umuchukwu. However, in answering another question under cross-examination PW2 admitted that “Umuchukwu” are strangers to Ezealaeze, and are grouped together with Okwaramgbawa and Lolo as one of the 3 groups of kindreds.
These pieces of evidence clearly contradict paragraphs 4 and 5 of the appellant’s pleadings, which state thus:
“4. Umuezealaeze village derives the village name from Ezealaeze the founding father, ‘Umu” – means children and “Umuezealaeze” means the children of Ezealaeze, the founding father of Umuezealaeze village.
5. Ezealaeze had seven sons namely:
(i) Echem, the first son (“Nwaopara”) of Ezealaeze. The children of Echem are the Umuechem kindred in Umuezealaeze village.
(ii) Ezealaduru, and the children of Ezealaduru made up the Umuezealaduru kindred in Umuezealaeze village.
(iii) Okwarangbawa and his children became known as Umuokwarangbawa kindred.
(iv) Amankwo – whose children are known as Umuamankwo kindred.
(v) Akajiako – whose children are known as Umu-Akajiaku kindred.
(vi) Lolo – whose children are known as Umulolo kindred.
(vii) Chukwu whose children are known as Umuchukwu kindred.
The seven children of Ezealaeze mentioned above are the seven kindreds in their order of Traditional Ranking of seniority, hierarchy and order of protocol in all ceremonies, organizations, political and cultural meetings and the order of sharing and taking rights and benefits in Imuezealaeze Village, Alaenyi Ogwa.”
Beyond the conflict between the evidence and the pleadings of the plaintiff/appellant in paragraphs 4 and 5, the mere assertion in evidence or perhaps the mere repetition of his pleading in evidence that Echem was the first son of Ezealaeze would definitely not have been sufficient in the circumstances of the case to establish and proof the assertions in paragraphs 4 and 5 of the plaintiff/appellant” Statement of Claim.
In the face of the respondents general traverse of the plaintiffs/appellant’s claims and their specific assertion in paragraph 5 (b) of the Amended statement of Defence that “…..in Traditional ranking in Umuezealaeze Village, the defendants kindreds come first in the order of seniority before the plaintiffs kindred which comes third in the seniority ranking The appellant needed for proof more than the mere assertion of his witnesses that Echem was the first son of Ezealaeze. In the circumstance of the case, the appellant would have led evidence of the order of birth of the sons or any traditional history or event to support the order of their birth.
In this respect, the suggestion by the learned counsel for the appellant that the order of birth was as stated in the cross-examination of PW2 cannot in the circumstances of the case be taken seriously. The naming of Echem and others by PW2 in cross-examination as the children of Ezealaeze would at best show evidence of membership of the Ezealaeze family and not proof of seniority in between the members of the Ezealaeze family.
Clearly, the proof of membership of a family is significant and paramount but is penultimate to the proof of the headship of such a family. See e.g. Ogunbiyi, JCA, in Chief Rasaki Kolawole Sodipo & 2 Ors. vs. Mr. Ayiwa Shadeko Ogidan & 3 Ors. (2008) 4 NWLR (Pt. 1077) 342 at 367.
In the instant case, the appellant in fact did not adduce any convincing chronological history and/or evidence of the sons of Ezealaeze neither did they explain the position of Umuchukwu as to the land which they occupy. The learned trial Judge was thus right at page 144 of the record to have stated that:
“The evidence of both parties in this suit is that Ezealaeze was the father of six sons whose children are now the six kindreds in Umuezealaeze. The 7th kindred Umuchukwu who came from Arochukwu and settled amongst Ezealaeze. All of them now make up the village called Umuezealaeze and attend the same meeting under the Umuezealaeze Improvement Union. Plaintiffs have not in their evidence given the birth order of the said sons of Ezealaeze neither have they told this court the position of Chukwu vis-a-vis Ezealaeze as to the land they occupy. I cannot therefore make the declaration asked of me by the plaintiff namely: that Echem is the first son of Ezealaeze and that Echem being first son is the most senior kindred……”
In essence, the appellant in this case neither proved that Ezealaeze is the founding father of Umuezealaeze nor that Echem was the 1st son of Ezealaeze and consequently the senior of all the kindreds that make up Umuezealaeze. Undoubtedly, it behoves the appellant to give testimony in support of the pleadings if he wanted to succeed in his case. A cardinal principle of law is he who asserts must prove his case with credible and unchallenged evidence. See Section 135 of the Evidence Act, Cap. 112 of Laws of the Federation of Nigeria 1990 Elias vs Disu (1962) 1 SCNLR 361, (1962) 1 Alt NLR page 214, and Arase vs. Arase (1981)5 SC page 33.
In Civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce such credible evidence for such cases are decided on balance or probability and preponderance of evidence. See Elias vs. Omo-Bare (1982) 5 SC 25, and Woluchem vs. Gudi (1981)5 SC page 291. It is after a plaintiff has proved his case in this manner that the burden of proof shifts. The pertinent question at this juncture is, did the appellant meet the above requirement of the law vide his evidence? My answer is No. On that score alone, the learned trial court was on firm ground when it dismissed the appellant’s case. The true position here is that having disbelieved the evidence of traditional history of the plaintiff/appellant, consequent upon material conflict between the pleadings and evidence, the learned trial Judge was right to have accepted the evidence supportive of the traditional history of the respondents. – See, Obioha vs. Duru (1994) 8 NWLR (Pt. 365) 631 at 650, Biarika vs. Edeh – Ogwuile (2001) 4 SC (Pt. 11) 96 at pages 114 – 115, (2001) 12 NWLR (Pt.726) 235, and Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 427 (SC).
In the instant case, assuming without holding that the traditional history of the Umuezealaeze Village offered by the appellant was indeed not contradictory to the pleadings and it could even be said that both the traditional history offered by the appellant and the respondents were probable. The learned trial Judge would still have been justified to prefer and accept the story or version of the story of the respondents which could be described as recent events in support of probable but conflicting traditional histories.
In this respect, the learned trial Judge examined the various documentary evidence tendered and in particular found that the evidence of the respondents were corroborated.
(i) By Exhibit ‘C’ letter of 24th, March, 1985 from the Umuezealaeze Improvement union to (i) Eze C. C. Iheanacho, Eze Ogwa I of Ogwa Amaegbu, Ekwereazu Ogwa. (ii) The General president, Ogwa Federated Union, C/o Dr. J. C. Odunna MD, Ochi Ogwa. Re: Nomination/Appointment of Red cap. Chiefs Oqwa Eze’s Council of Chiefs. In the said Exhibit ‘C’ the Umuezealaeze Improvement Union replaced Mr. Appolos Oguike with Elijah Obioha, Esq. as the nominee to the Traditional Head of Ofo/Ozo Title holder of Umueze Ewuzie Umuezealaduru kindred of Umuezealaeze Village.
It turned out in relation to Exhibit ‘C’ and was rightly observed by the learned trial. Judge that the third signature in Exhibit ‘C’ is that of B. M. A. Nwosu (the deceased first plaintiff) who signed Exhibit ‘C’ as Executive member. As a matter of further inference in this court, the signature of B.M.A. Nwosu on Exhibit ‘C’ suggests that at that point in time the plaintiff/appellant family were in agreement with the traditional seniority order stated by the respondents as embodied or contained in Section 2A of the Umuezealaeze constitution of 1981.
(ii) The Constitution of the Umuezealaeze Improvement Union itself which stated in its Section 24 thus:
“Umuezealaeze family/village is made up of seven kindreds namely:
1. Umuezealaduru and Umuakajiaku
2. Umuokwaramgbawa and Umulolo
3. Umueche and Amakwu the Umuchukwu in our mist.
The above are listed in seniority as inherited from our four (sic) fathers.”
(iii) At page 151 of the record, the learned trial Judge rejected Exhibit ‘B’ as unreliable as to seniority of the kindreds Exhibit B – Umuezealaeze Improvement Union Minutes of the General Meeting of April 3.0 1986 (first Day) was the only document tendered in evidence which suggested a change of the agreed traditional ranking stated in the Umuezealaeze constitution.
At this juncture, I must state first, that the rejection of Exhibit ‘B’ by the learned trial Judge was on good grounds and second that in addition to all of these the lower court also found in favour of the respondents on the custody of relevant shrines and deities. PW1 and PW2 reluctantly in their evidence corroborated those of DW1 – D- Ajuru and DW2 Clifford Nwadike who testified that the Igudu shrine is the symbol of the rallying point of Ezealaeze Village. DW2 who incidentally is from Okwaramgbawa/Umulolo testified that:
“We have a central shrine called Igudu which controls the three principal (groups) kindreds in Umuezealaeze, and each kindred ROAD ENDS AT THE Igudu Schrine, the Igudu shrine is located at Ezealaduru……
DW2 went on to state that when their whole village Ezealaeze has any gathering, all the kindreds go there (the Igudu Shrine) to settle their matters. The Igudu Shrine, he stated further “is situate at Ezealaduru because they (the kindred give service to it as the senior kindred”.
DW3 – Elijah Obioha also gave evidence as to the significant features in Ezealaeze Village such as the Igudu Shrine. He testified that when the ‘Opara’ (1st son or Head of the kindreds) is, is where one can find the significant features in Ezealaeze Village. The witness went further to testify that by custom the ‘Opara’ that is the senior son/kindred has a duty to donate land when the village as a whole wants to erect or set up any structure for the village use, That Umuezealaduru as the most senior kindred was approached to give land to the village for the building of a village Hall and the kindred did so.
The evidence of DW1, 2, and 3 on the significance of important features and their location in the village as depicting the seniority of the kindred where such features are located was not challenged under cross-examination.
It is therefore not surprising when at pages 152 – 153, the learned trial Judge summed up on the custody of shrines as follows:
“We now come to the issue of shrines and custody of certain ancestral or important things. Plaintiffs pleaded the large traditional compound and shrines of Ezealaeze which Echem inherited. They did not give evidence of this, except for PW1 cursory. Under cross-examination of PW1 this is what transpired:
Q. I put it to you that every kindred in Umuezealaeze has a shrine of their own.
A. The senior shrine Uhuala, Ofoala, etc, is in Umuechem. All the kindreds gather to us when there is a ceremony.
Q. I put it to you that every kindred in Umuezealaeze has an area called Uhuala and within that Uhuala every kindred has its own shrine.
A. I don’t know about that,
Q. Do you know Igudu shrine.
A. Yes.
Q. This Igudu shrine is in Umuaezealaeze Village for the whole Umuezealaeze.
A. Yes.
O. And it is located within Umuezealaduru and Akajiaku.
A. Yes, it is in Akajiaku.
This is at variance with their pleadings. PW2 under cross-examination also stated that Igudu shrine is not owned by all the kindreds of Umuezealaeze but by Umuezealaduru and Akajiaku. PW2 said that he farms on the surrounding lands of the shrine till today as the 1st son of Ezealaduru. DW2 is the only independent witness in this suit untainted by the personal benefit to be deprived or by personal malice. His evidence is in line with what I called the sequence of events from how I placed the Exhibits. His evidence as to the issue of shrines and the General Meeting of 3/4/86 is preferred and believed….”
Even if it were the case here that the custody of the shrines were taken into consideration, the position of the law is that where there is before the court for the purpose of proving a particular fact in issue two conflicting traditional histories in the sense that it is difficult or impossible for the court to ascertain which version represents the truth, then it can make resort to acts or facts in recent times to ascertain which version is more probable. See Mogaji vs. Cadbury (Nig.) Ltd. (1985)2 NWLR (Pt.7) pg. 393 Kenon vs. Tekam (2001) 14 NWLR (Pt. 732) pg. 12.
In any event, in the instant case, the lower court properly evaluated the evidence of the parties before coming to a conclusion at page 153 of the record that:
“Plaintiffs have not proved their case. They have not shown that in Umuezealaeze their own kindred has a prescriptive right to the traditional hierarchy as the most senior kindred. Plaintiffs case must stand on its own strength. On the other hand, the evidence of DW2 is very convincing and is in line with the declaration in paragraph 14 (1) (i) and (iii) of the Statement of Claim. Umuechem kindred cannot be said to occupy the first position over and above Umuezealaeze/Akajiaku kindreds in traditional ranking of seniority in Umuezealaeze Village, Alaenyi, Ogwa Mbaitoli Local Government Area of Imo State……….”
Where, as in the instant case, a trial court clearly evaluates the evidence and justifiably appraised the facts, it is not the business of an appellate court to substitute its own views on the facts for those of the trial court. Fashanu vs. Adekoya (1974) 1 All NLR 35, Kuforiji vs. VYB (Nig.) Ltd. (1981) 5 – 7 SC 40, Awoyale vs. Ogunbiyi (1986) 2 NWLR (Pt.24) p5.626, Adeyeri II vs. Atanda (1995) 5 NWLR (Pt.397) p.512, Oduwole vs. Aina (2001) 17 NWLR (Pt. 741) 1, Sanni vs. Ademiluyi (2003) 3 NWLR (Pt. 807) p.381 and Omaye vs. Omagu (2008) 7 NWLR (Pt. 1087) 477.
In the final analysis, this appeal lacks merit and it is accordingly dismissed.
Judgment of the lower court is hereby affirmed. N5,000 costs is awarded in favour of the respondents.
ABUBAKAR JEGA ABDUL-KADIR. J.C.A.: I had a preview of the Judgment just delivered by my learned brother Owoade, JCA. He meticulously dealt with the sole issue for determination and I am therefore in total agreement with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. I too dismiss the appeal and abide by the Order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA and I completely agree with his reasoning and conclusion that the appeal is unmeritorious and should be dismissed. I will add a few words.
When a declaratory relief is sought, it is to make the court declare as established a legal and factual state of affairs in respect of the cause of action. Thus the courts will not readily without good and sufficient evidence exercise its discretion to grant a declaratory order. That is why declaratory reliefs cannot be granted without oral evidence even where the Defendant expressly admits liability in the pleadings. See A.G. CROSS RIVER v. A.G. FEDERATION (2005) 6 SCNJ 152; OGOLO v. OGOLO (2006) 2 SCNJ 235.
I was astounded by the argument of the learned Appellants’ counsel who seemed to posit that the onus of first proof was not discharged by the Respondent who was the Defendant at the trial court. In seeking a declaratory relief, the law requires the Plaintiff- now Appellant to succeed by relying on the strength of his own case and not on the weakness of the Defendant’s case. The burden of proof lies squarely on the Appellants who must discharge same on a balance of probabilities. This they were unable to achieve by our evaluation of the evidence. The burden of proof never shifted on the Respondents. I agree with the trial court and with my learned brother that the Appellants were unable to establish their right in relation to the declarations sought. See CHIEF JOSHUA ALAO v. ALFA ISSA AKANO & ORS. (2005) 4 SCNJ 65. In the circumstances, I too dismiss the appeal and abide by the order as to costs.
Appearances
C. B. Nworka, Esg. with O. I. Njemanze, Esq and I. Nkwocha, Esq.For Appellant
AND
Mrs. E. C. AnyanwuFor Respondent
