DONALD AGUBOSHIM & ANOR v. NNAMDI NJIRIBEAKO
(2014)LCN/7365(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of July, 2014
CA/OW/338/2013
RATIO
COURT: JURISDICTION; WHETHER THE ISSUE OF JURISDICTION WHEN RAISED IN AN APPEAL SHOULD BE DETERMINED FIRST AND CIRCUMSTANCE WHEN AN APPEAL SHALL LIE FROM DECISIONS OF THE CUSTOMARY COURT OF APPEAL OF A STATE TO THE FEDERAL COURT OF APPEAL AS OF RIGHT
I have calmly examined Grounds 4 and 5 within the context of Section 145(1) of the 1999 Constitution as amended and I am of the settled opinion that they fall outside the Constitutional right of appeal donated to Appellant from the Customary Court of Appeal to this Court. They are incompetent and consequently they do not confer jurisdiction on this Court to entertain or adjudicate on the said grounds 4 and 5. See MKPEN TIZA & ANOR v. IORAKPEN BEGHA (2005) 15 NWLR (Pt. 949) 616 AT 637 D-H to 638 A-C per MUSTAPHER, JSC later CJN, who held thus: “Now, the jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it is statutory. Thus there may be circumstances when the court would have no constitutional jurisdiction to deal with a matter. So when the competence of an appeal is raised, the court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. The decision of the Court of Appeal in this case, that “But whether the said grounds are valid or not will be left to this court to decide at the end and not at the beginning…” cannot, with respect, be correct. The failure to file an appeal within the ambit of the statutory or Constitutional provisions would deprive the court of the jurisdiction to entertain the matter. See Oranye v. Jibowu (1950) 13 WACA 41; Ohin Moore v. Akesseh Tayee 1 WACA 242 in which case the Privy Council was concerned with the failure of the Appellant to fulfill certain statutory conditions requisite for the purpose of appeal Lord Atkin delivering the judgment of the court said at P.45.
“…like any other court, (we) are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred then it is impossible for their Lordships or for any other court to have jurisdiction.”
Thus, the jurisdiction of the Court of Appeal under the Constitution, which is the relevant and applicable law in the instant case is limited to a complaint on issues of Customary Law only. Section 224(1) of the 1979 Constitution provides: “An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Federal 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.” Accordingly an appeal to Court of Appeal from the decision of the Customary Court of Appeal must be limited to a complaint with respect to a question of customary law and in the absence of a complaint by a ground or grounds of appeal raising the issues of customary law the Court of Appeal would appear to have no jurisdiction to adjudicate on the matter. Unless the matter is brought within the enactment of the National Assembly extending the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal, I am not aware of any such legislation by the National Assembly.” per. PETER OLABISI IGE, J.C.A.
LAND LAW: ALIENATION OF FAMILY PROPERTY; THE REQUIREMENT FOR A VALID ALIENATION OF FAMILY LAND AND WHETHER THE MANAGEMENT OF FAMILY PROPERTY IS PUT IN CHARGE OF THE FAMILY HEAD
The Law is settled that the best way to alienate or dispose off or sell family property is by the Head of Family acting with the consent or concurrence of the principal members of that family. Any Family Land sold by the Head of a family as his exclusive landed property is void ab initio, See WAMADI N. EJILEME v. BELEME H. E. OPARA & ANOR (2003) LPELR-1065(SC) at 15-16 where the apex court per Iguh, JSC said:
“In this regard, I think it is beyond dispute that a valid allocation of family land requires the grant or transfer to be made by the head of the family with the principal members concurring therein. Where, however, the transfer is made by the head of family alone acting for and on behalf of the family such a transfer is only prima facie voidable and not void and the family may set aside such disposition of their Land by non-consenting members acting timeously. See Ekpendu v. Erika (1959) SCNLR 186, 1959 4 FSC 70 at 81, Mogaji & others v. Nuga (SCNLR) (1960) SCNLR 219; (1960) 5 FSC 107 at 109; and Manko and others v. Bonso and others (1936) 3 WACA 62. A transfer of Family Land other than by the head thereof or the head and principal members of the family is absolutely void ab initio. See Agbloe v. Sappor (1947) 12 WACA 187, Akinfolarin v. Akinola (1994) 3 NWLR (Pt. 335) 659 at 682. So too, as the head of the family cannot transfer Family Land as his own exclusive personal property, such a transfer by him is void ab initio. See City Property Development Ltd. v. A.G. Lagos State and others (1976) 1 SC 71 at 110; (1976) ALL NLR 24 at 44”
This settled Principle of Law was reaffirmed or restated very recently by the apex Court in the Land in the Case of MICHEAL ACHILIHU & ORS v. EZEKIEL ANYATONWU (2013) 1 SCM 1 at 13 per AKA’AHS, JSC, who delivered the leading judgment thus:
“As a general rule, the management of family property is put in charge of the family head and he acts as a trustee of such. See; Amodu Tijani v. Secretary Southern, Nigeria (1921) A.C. 399; Sunmomi v. Raphael (1927) A.C. 881 at 884; Bassey v. Cobham (1924) 5 NLR 90; Archibong v. Archibong (1947) 18 NLR 117. He should exercise his powers not for his own private advantage but for the benefit of the family and he does not enjoy absolute power in the management of family per se. He is required to consult the other members of the family and in the case of important decisions such as sale of family land he must obtain the consent of the principal members of the family. As the head of the family cannot transfer family land as his own exclusive personal property, any transfer of the family property by him without carrying along the principal members is void ab initio. See: D. W. Lewis & Ors v. Bankole & Ors (1908) 1 NLR 80.” per. PETER OLABISI IGE, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE
While it is the settled position of the Law that an Appellate Court will not legally interfere with concurrent findings of lower courts, this court can interfere where the evidence before the trial court is shown to have been misapplied and when it borders on misdirection on the facts and law and where as in this case the misdirection has caused the court to come to a wrong conclusion. See the case of MICHEAL ACHILIHU & ORS vs. EZEKIEL ANYATONWU (2013) 1 SCM 1 at 18 where AKA’AHS, JSC said:-
“This appeal therefore turns on whether the lower courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate court should not ordinarily disturb or tamper with the findings of facts made by the trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is preeminently that of the trial court that saw and heard the witnesses; Emarieru v. Ovivie (1977) 2 SC 31: Osundulu vs. Philips (1973) 1 NMLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; NWLR (Pt. 544) 130 at 139. Jimoh Garba v. Isiaka Yahaya (2007) 1 SC (Pt. 2) 262 at 266. There is an exception to the above rule. The exception is where there is a misdirection by the trial court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See; Abisi v. Ekaisalor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra). Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference, supported by evidence. It is also trite that where a trial court has failed, as in the instant case in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the Appeal Court will be perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision.” per. PETER OLABISI IGE, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER A PERSON IS ENTITLED TO FAIR HEARING UNDER THE CONSTITUTION
By section 36 of the 1999 Constitution as amended a person is entitled to fair hearing within a reasonable time by a court or other tribunal in the determination of his civil rights and obligations including any question or determination by or against any government or authority. The provisions of the Constitution just alluded to ensure that the trial of an action or suit is seen to be fair and just by all reasonable standards. The principles implies that both sides to a case must be accorded or given equal opportunity to present their respective cases. See CHIEF J. L. E. DUKE v. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (Pt. 1356) 347 at 366 B-C where GALADIMA, JSC who delivered the leading judgment said:
“It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibits of the 2nd Respondent. By the term “FAIR HEARING” within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms’ designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given, an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.” per. PETER OLABISI IGE, J.C.A.
JUSTICES:
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. DONALD AGUBOSHIM
2. CHARLES AGUBOSHIM
3. CHRISTOPHER AGUBOSHIM
4. CHUKWUMA AGUBOSHIM
5. BONIFACE AGUBOSHIM – Appellant(s)
AND
NNAMDI NJIRIBEAKO – Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal of Imo state in Nigeria delivered on the 18th day of April, 2013.
The Appellants had on the 31st day of May, 2000 at the Customary Court of Imo State holding at Owerri Urban Customary Court District claimed against three Defendants including the Respondent the following reliefs:
“1. Declaration that the plaintiffs are entitled to the grant of Customary Right of Occupancy over the piece or parcel of land known as and called Uhu Uzo Ihitte situated along at Umundumoha Umuorii/Ihitte Road Uratta Owerri North L.G.A. Imo State within jurisdiction.
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the Defendants by themselves, agents or assigns from trespassing into the said Uhu Uzo Ihitte land or from howsoever interfering with the plaintiff possessory rights therein.”
The 3rd Defendant at the Court of first instance counter-claimed against the Appellants as follows:
1. Declaration that the plaintiff is entitled to the grant of Customary Right of Occupancy over the piece or parcel of land known as and called the “UHU OGU LAND” OR “UHU UZO IHITTE LAND” situated, located or lying along Uzoihitte Umudumoha Umuorii Uratta in Owerri North Local Government Area of Imo State.
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the Plaintiffs by themselves, agents, assigns from trespassing unto the said Uhu Ogu or Uhu Uzo Ihitte land or from howsoever interfering with the 3rd Defendants’ possessory rights therein.”
The said counter claim was set up against the Appellants (then Plaintiffs) on 13th day of November, 2007. At the end of trial at the customary court a considered judgment was given wherein the Chairman and member of the said court held as follows:
“From the totality of the argument so far, it is apparent that Plaintiff are not entitled to a grant of customary right of the land in dispute. This fact having been established, Plaintiffs cannot claim damages for trespass and cannot ask for perpetual injunction over the land in dispute, since this court resolved the issue of titled and possession in favour of the counter claimant, plaintiffs claim for damages for trespass and injunction must fail since they did not prove by preponderance of evidence as the onus is always on him to prove his case. See the case of REV. IDOWU OGUNGBEMI v. GABRIEL ASHAUW (1986) 3 NWLR (Pt. 27) 161.
This court also takes cognizance of the reply on point of law by the Defendant’s counsel to the plaintiff written address. The Defendants’ counsel submitted that in addition to custom being proved by adducing credible and strong evidence, same custom may not be applicable in different community and locations. Cited the case of OJIOGU v. OJIOGU (2010) ALL FWLR (Pt. 539) 840 AT 858.
Counsel further urged the court to uphold the unchallenged evidence of DW1, DW2 and DW3 as evidence relevant to the issue in controversy i.e. the custom that a first son or head of family alienating part of the unpartitioned family land is subject to his taking the sold part as his portion upon the partitioning of the land.
It is noteworthy to point out that in the course of proceedings in this case, the PW1, DW2 and DW3 as evidence relevant to the issue in controversy i.e. the custom that a first son or head of family alienating part of the unpartitioned family land is subject to his taken the sold part as his portion upon the partitioning of the land.
It is noteworthy to point out that in the course of proceedings in this case, the PW1 as 3rd plaintiff appeared alone in this matter among 5 plaintiffs.
Though, they did not sue in a representative capacity, evidence of PW1 and PW2 depicts that they sued in a representative capacity so that court assumes that PW1 testified for himself and on behalf of the other 4 plaintiffs. Again, the DW3 was not cross examined by the plaintiffs because the application brought by the plaintiffs was dismissed on ground of their unseriousness and so his evidence remains unchallenged.
Furthermore, though the counter claim of the 3rd Defendant was wrongly given a suit number by the registry when it ought to bear same suit number with the Plaintiffs suit.
Nevertheless, the court still treats it as a counter claim. In the finally analysis, suit number CC/OU/81/2000 fails and is hereby dismissed. Judgment is hereby given to the 3rd Defendant. In respect of his counter claim in suit number CC/OU/81/2007 as follows:
1. The 3rd Defendant counter claimant Nnamdi Njiribeako is hereby granted a declaration of title to the customary right of occupancy over the piece of parcel of land known as and called the UHU LAND or Uhu Uzo Ihitte situate, located or lying along Uzo Ihitte Umundumoha Umuorii Uratta in Owerri North Local Government Area of Imo State.
2. The 3rd Defendant counter claimant is hereby awarded N5,000 (Five Thousand Naira) as damages for trespass.
3. Perpetual injunction is hereby granted restraining the Plaintiffs by themselves, assigns, agents from trespassing into the said land and from howsoever interfering with the 3rd Defendant/counter claimant possessory right therein.
Cost of expenses assessed at N3,000.00.
…………
OBICHERE IJEOMA
(ESQ.)
Chairman
…………
R. E. OPARAKU
Member
The Appellants were dissatisfied with the judgment of the Customary Court and an appeal was lodged against it at the Customary Court of Appeal, Imo State. In its own judgment delivered on 18th day of April, 2013, the appeal of the Appellants was dismissed by the Customary Court of Appeal.
Dissatisfied with the decision of the customary court of Appeal, the Appellants appealed to this Court vide their Notice of Appeal dated 24th day of April, 2013 and filed on 25th day of April, 2013 containing six Grounds of Appeal which are reproduced hereunder viz:
“A. GROUND ONE: ERROR IN LAW
The customary Court of Appeal erred in law by holding that a purported sale of family land without the consent of the principal members of the family is valid in law.
PARTICULARS OF ERROR
(i) It was common ground both at the trial court and at the Customary Court of Appeal that Clifford Agubosim made the purported sale for his personal use and without the consent of the Principal members of Agubosim family.
(ii) The Appellant maintained that is not their custom that anybody can sell family land without the consent of other principal members of the family.
(iii) The Customary Court of Appeal based its Judgment/Decision merely on the purported unchallenged evidence of the Defendants respondent which is not the custom of the people without more.
(iv) The custom which the Court based its judgment has not been judicially noticed and such custom was challenged.
(v) The evidence which the Court based its judgment was in fact challenged.
GROUND 2: ERROR IN LAW
The Customary Court of Appeal erred in law by holding that Clifford Agubosim is the son of Daniel Agubosim.
PARTICULARS OF ERROR
(i) There was no where both at the trial court and the Customary Court of Appeal where the Respondents proved that Clifford Agubosim is the Son of Daniel Agubosim.
(ii) The Appellants clearly gave evidence at the trial court that Clifford Aguboshim was formerly answering another surname Anyasodor and later changed to Aguboshim. This evidence was not denied or challenged by the Respondents.
(iii) Anyasodor was a relation of Aguboshim.
GROUND 3: ERROR IN LAW
The Customary Court of Appeal erred in Law by holding that Appellants were given fair hearing at the trial Court.
PARTICULARS OF ERROR
(i) Fair hearing entails the whole hearing.
(ii) It is on record that an application for recall of DW3 for the purposes of cross examination at the trial court was refused.
(iii) The evidence of DW3 which the court branded unchallenged and sole based its judgment on was challenged in comparison with the evidence of the Appellants who maintained throughout that the said Clifford Aguboshim alias Anyasodor was not one of the sons of Daniel Aguboshim.
GROUND 4: ERROR IN LAW
The Customary Court of Appeal erred in Law by holding that the Appellants used common law principles without relating it to Customary Law System.
PARTICULARS OF ERROR
(i) The authorities which the Appellants used in arguing their appeal are not common Law authorities alone, but also case law authorities on native law & custom.
(ii) The authorities relate to custom & Tradition and not to common Law principles alone.
(iii) The applicable law on issue of custom and tradition of a people is one.
(iv) The Custom of Umuori people of Uratta Owerri in Imo State should be embedded in bosom of the Imo State Court of Appeal.
GROUND 5: ERROR IN LAW
The Customary Court of Appeal erred in law by holding that the Appellants would have been on better footing if they were at the High Court.
PARTICULARS OF ERROR
(i) The Nigerian Legal system is one.
(ii) The Customary Court of Appeal is a superior Court established by the Nigerian Constitution.
(iii) The Court was therefore wrong to hold that the Appellants would have been on a better footing if they were at the High Court and not at the Customary Court of Appeal since both the Customary Court and High Court have jurisdiction over the case.
GROUND 6: ERROR IN LAW
More Grounds of appeal may be filed upon receipt of the Records of Appeal.”
The Appellants filed Brief of Argument dated 5th day of October, 2013 on 14th day of October, 2013 while the Respondent’s Brief was filed on 5th day of December, 2013. The said Respondent’s Brief of Argument was dated 3rd day of December, 2013. The Appellants filed Appellants’ Reply Brief dated 31st day of January, 2014 on 4th day of February, 2014.
The appeal was heard on 26th day of May, 2014 when the Learned Counsel to the parties adopted their Briefs of Argument. It must be stated that the Respondent incorporated Notice of Preliminary Objection into his Brief of Argument and the said preliminary objection was duly argued.
The onslaught of the Respondent on the preliminary objection was deployed against Grounds 4 and 5 of the Appellants Notice of Appeal. The said Grounds without their particulars are as follows:
“4. The Customary Court of Appeal erred in law by holding that the Appellants used common law principles without relating it to the Customary Law System.
5. The Customary Court of Appeal erred in Law by holding that the Appellants would have been on a better footing if they were at the High Court.”
The Respondent learned counsel Ngozi Olehi, Esq. contended that the just quoted grounds are not grounds of customary law as provided under section 245(1) of the Constitution of Nigeria, 1999 as amended. He relied on the cases of
(1) PAM v. GWOM (2000) FWLR (Pt. 1) 1 AT 15.
(2) ODOEMENA NWAIGWE & ORS v. NZE EDWIN OKERE (2008) 5-6 S.C. (Pt. 11) 93 and
(3) OWONYIN v. OMOTOSHO (1961) 1 ALL NLR 304.
He also cited KINGSLEY v. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT. 77) 445.
The Appellant submitted that Grounds 4 and 5 of the Grounds of Appeal filed raises question of Customary Law even though he agrees with the decisions in PAM v. GWOM (supra) and NWAIGWE v. OKERE (supra).
That the holding of the trial court that Appellants used Common Law Principles without relating it to Customary Law falls within the jurisdiction of this court. The learned counsel to the Appellants urged this court to discountenance the preliminary objection.
Section 245 (1) of the 1999 Constitution is in pari materia with Section 224(1) of 1979 Constitution which has received judicial interpretation.
Now the provisions of Section 245(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria as amended are as follows:
“245(1) An appeal shall be from the decisions of the Customary 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.
2. Any right of Appeal to the Court of Appeal from decisions of a Customary Court of Appeal conferred by this section shall be:
(a) exercisable at the instance of a party thereto or with the leave of the Customary Court of Appeal or of the Court of Appeal at the instance of any other person having an 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.”
It is thus clear as the day that Constitutional right of appeal given to a party aggrieved by the decision of the Customary Court of Appeal is restricted or circumscribed to any question with respect to Customary Law and such other matters as may be prescribed by an Act of the National Assembly only.
I have calmly examined Grounds 4 and 5 within the context of Section 145(1) of the 1999 Constitution as amended and I am of the settled opinion that they fall outside the Constitutional right of appeal donated to Appellant from the Customary Court of Appeal to this Court. They are incompetent and consequently they do not confer jurisdiction on this Court to entertain or adjudicate on the said grounds 4 and 5. See MKPEN TIZA & ANOR v. IORAKPEN BEGHA (2005) 15 NWLR (Pt. 949) 616 AT 637 D-H to 638 A-C per MUSTAPHER, JSC later CJN, who held thus:
“Now, the jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it is statutory. Thus there may be circumstances when the court would have no constitutional jurisdiction to deal with a matter. So when the competence of an appeal is raised, the court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. The decision of the Court of Appeal in this case, that “But whether the said grounds are valid or not will be left to this court to decide at the end and not at the beginning…” cannot, with respect, be correct. The failure to file an appeal within the ambit of the statutory or Constitutional provisions would deprive the court of the jurisdiction to entertain the matter. See Oranye v. Jibowu (1950) 13 WACA 41; Ohin Moore v. Akesseh Tayee 1 WACA 242 in which case the Privy Council was concerned with the failure of the Appellant to fulfill certain statutory conditions requisite for the purpose of appeal Lord Atkin delivering the judgment of the court said at P.45.
“…like any other court, (we) are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred then it is impossible for their Lordships or for any other court to have jurisdiction.”
Thus, the jurisdiction of the Court of Appeal under the Constitution, which is the relevant and applicable law in the instant case is limited to a complaint on issues of Customary Law only. Section 224(1) of the 1979 Constitution provides:
“An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Federal 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.”
Accordingly an appeal to Court of Appeal from the decision of the Customary Court of Appeal must be limited to a complaint with respect to a question of customary law and in the absence of a complaint by a ground or grounds of appeal raising the issues of customary law the Court of Appeal would appear to have no jurisdiction to adjudicate on the matter. Unless the matter is brought within the enactment of the National Assembly extending the jurisdiction of the Court of Appeal to hear an appeal from the Customary Court of Appeal, I am not aware of any such legislation by the National Assembly.”
Grounds 4 and 5 of the Notice of Appeal filed by the Appellants are hereby struck out for their being incompetent. Issue 1 which is tied to grounds 1, 4 and 5 will be decided solely as issue distilled from ground 1. Any matter touching or concerning grounds 4 and 5 of the Notice of Appeal under issue 1 will be discarded and discountenanced.
The preliminary objection of the Respondent therefore succeeds and same is sustained.
The Appellants formulated four issues for determination of the appeal. They are as follows:
ISSUES FOR DETERMINATION
“1. WHETHER THE PURPORTED SALE BY CLIFFORD AGUBOSHIM TO THE RESPONDENT WITHOUT THE CONSENT OF OTHER PRINCIPAL MEMBERS OF THE FAMILY IS VALID (DISTILLED FROM GROUND 1, 4 & 5).
2. WHETHER UPHOLDING THE REFUSAL OF THE TRIAL COURT TO RECALL THE DW3 FOR THE PURPOSES OF CROSS EXAMINATION DOES NOT AMOUNT TO INFRINGEMENT OF THE APPELLANTS RIGHT OF FAIR HEARING (DISTILLED FROM GROUND 3).
3. WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT CLIFFORD AGUBOSHIM IS THE FIRST SON OF DANIEL ORIAKU AGUBOSHIM WHEN SUCH WAS NOT PROVED (DISTILLED FROM GROUND 2).
4. WHETHER THE APPELLANT PROVED THEIR CASE AND THEREFORE ENTITLED TO THEIR CLAIMS (DISTILLED FROM GROUNDS 1- 5)”
The Respondent on his part formulated two issues for determination namely:
1. Whether the Customary transaction of sale from the late Clifford Aguboshim to the Respondent is valid under the Native Law and Custom of Umuorii Uratta in the Owerri North Local Government Area of Imo State. (Distilled from Grounds 1, 2, 4 and 5).
2. Whether upholding the refusal of the trial Court to recall DW3 for the purposes of cross examination amounted to infringement of the Appellants right to fair hearing. (Distilled from Ground 3).
I am of the opinion that the issues formulated by the Appellant are in order in the determination of the appeal. I will treat them sequentially.
ISSUE 1
WHETHER THE PURPORTED SALE BY CLIFFORD AGUBOSHIM TO THE RESPONDENT WITHOUT THE CONSENT OF OTHER PRINCIPAL MEMBERS OF THE FAMILY IS VALID (DISTILLED FROM GROUNDS 1, 4 AND 5).
The main plank of the Appellant’s argument under issue one is that the purported sale of the land in dispute by Clifford Aguboshim to the Respondent is void or at least voidable at the instance of the Appellants. That the land in dispute originally belonged to DANIEL ORIAKU AGUBOSHIM by inheritance. That the Appellants and the said Clifford who according to them purported himself to be son of the DANIEL ORIAKU AGUBOSHIM (DECEASED) was the father of Appellants also. That the Respondent did not deny that he bought the land from CLIFFORD AGUBOSHIM. That there is no dispute that the said CLIFFORD AGUBOSHIM sold the land in his personal capacity and for his own beneficial interest. That the law is settled without exception that the sale of family land by Head of family without the consent of or approval of the principal members of the family is voidable. The Learned Counsel to the Appellants Victor Opara, Esq. relied on the case of FAYEHON v. FADOJU (2006) NWLR (Pt. 661) 390 AT 400, 404 AND 407.
That there is no denying the fact that the Appellants are principal members of Daniel Oriaku Aguboshim family. That the fact that the said Clifford sold the land in his personal capacity as per Exhibit “B” rendered the sale void. He relied on the book – Imo State Customary Laws and judicial pronouncements P.13 Written by A.B.C. Egu, a retired President of Customary Court of Appeal, Imo State and the fact that the Customary Court itself admitted that it found it difficult to agree with such a custom as advanced by the Defendant’s Counsel that a head of a family can validly alienate family land and upon sharing of the family land the one sold by him will become his share.
That by section 16(1) of the customary Law of Imo State, the Customary Court is mandated not to observe or enforce any Customary Law which is inconsistent with the Law. That on page 73 of the record the Customary Court described the custom as controversial. He also relied on Order X rule 6(3) of the Imo State Customary Court Rules to contend that the Appellants are not under any obligation whatsoever to prove that under their native law and custom the individual cannot sell family land without the consent of or approval of family members.
On the principle of unchallenged evidence, Opara, Esq. for the Appellants submitted that where the unchallenged evidence is not credible or has no quality the trial court would not believe it.
He relied on the cases of
(1) ZENECA LTD v. JAGAL PHARM LTD (2007) ALL FWLR (Pt. 397) 938 AT 950 F-G.
(2) MARTCHEM IND. (NIG.) LTD v. M. F. KENT (W.A.) LTD (2005) ALL FWLR (Pt. 271) 1 AT 13 C and
(3) GONZEE (NIG.) LTD v. N.E.R.D.C. (2005) ALL FWLR (Pt. 274) 235 AT 249-249 H-A.
That a sale of family land can only be valid where all the principal members of the family participated in the sale transaction. He relied on the case of OYENEYIN v. AKINKUGBE (2001) 1 NWLR (Pt. 693) 40 AT 54E and the case of ODOH v. KAMALU (2000) ALL FWLR (Pt. 297) 978 AT 998 B-C and F.
On the meaning of NEMO DAT QUOD NON HABET he relied on the case of AJOKU v. A.G. RIVERS STATE (2006) ALL FWLR (Pt. 312) 2147 at 2164 F-G.
That Clifford Aguboshim who purported to sell family land as his own has no title to pass to the Respondent. He relied on FAYEHUN v. FADOJU (Supra) at 405 F per AGUH, JSC. He urged this court to resolve Issue One in favour of the Appellants.
Responding to the submissions of the Learned Counsel to the Appellants on whether the Late Clifford Aguboshim could have sold the Land in dispute to the Respondent, the Learned Counsel to the Respondent Ngozi Olehi Esq. Stated that by the way ground of the appeal was couched, the Appellants had accepted the paternity of the said Clifford Aguboshim to be the son of Daniel Aguboshim the father of Appellants and Clifford Aguboshim. That what the Appellants could not come to terms with was the custom that entitled Clifford Aguboshim as eldest child to sell family land without consultation with principal members of their family. Ngozi Olehi Esq. for Respondent submitted the Appellants did not place anything on record to effectively challenge the paternity of Clifford Aguboshim. He referred to the evidence of D.W.1 who supported the Respondents case. That D.W.1 was older than the P.W.1 who was 58 years as per cross examination on 7/12/10 while D.W.1 was 76 years of age. To Learned Counsel, D.W.1 knew better than Plaintiffs witnesses. That the evidence of D.W.1 supported by, D.W.2 was that under their Native Law and Custom the 1st Son can sell a family property under his care where he has a problem like sickness and during sharing of their property they would take the portion sold by him as his portion or part of his own share. He relied on Exhibit “A” to state that under cross examination, the counsel to the Appellants did not contradict D.W.1 and D.W.2 on the evidence given that the 1st Appellant said under cross examination that he did not know the custom of his people.
On the contention of the Appellants that the trial Court described the said Custom allowing a first born to sell Family Property to cater for his own problem as controversial Ngozi Olehi for the Respondent submitted that the trial court is bound to apply the custom of the parties before it as clearly established through evidence and not what the trial Court imagined to be proper. He relied on the cases of IGBONLA v. ALEBIOSU II (1992) 7 SCNJ 187; OLUBOBUN v. LAWAL (2008) ALL FWLR (Pt. 434) 1468 and USIOBAIFO v. USIOBAIFO (2005) ALL FWLR (Pt. 57250) 131. That the Books relied upon by the trial court were not in evidence before the trial Court. That none of the parties referred to the books and that attention of the parties was not drawn to their contents. He relied on the case of OGBORIEFON v. OGBORI-EFON (2012) ALL FWLR (Pt. 625) 321 at 335-336. I must state here that the Respondent did not cross appeal on any of the findings of trial Court.
The Learned Counsel to Respondent still arguing on whether the custom propounded by the D.W.1 and D.W.2 can endure, he stated that the custom Responded by D.W.1 and D.W.2 does not on the surface entitle a family head to sell a Family Land per se.
That all the parties agreed that the Land in dispute belonged originally to Daniel Oriaku Aguboshim, the fathers of the parties to appeal and so according to Learned Counsel, the question of proving title to the Land in dispute by any of the five traditional methods known to Law does not arise. That the cases of Zeneca Ltd. v. Jagal (supra) and Martchem Ind. v. M.F. Kent (W.A.) Ltd. supra cited by Appellant are not relevant.
In the Appellants reply brief dated 31 January 2014, the Appellants Learned Counsel further relied on Exhibit “B” paragraph (a) to contend that the sale was void abinitio. That even the said Clifford was Daniel Aguboshim’s son, he was still not entitled to sell Daniel Aguboshims, unpartitioned Family Land without the consent of the Principal members of the Daniel Aguboshim Family for his beneficial interest. He further relied on section 16 of the Customary Court Law of Imo State and Order X Rule 6 (3) of the Customary Court Rules that the Court should not enforce any Customary Law that is not consistent with the Law. That Customary Law is embedded in the bosom of the Customary Court Judges.
The Law is settled that the best way to alienate or dispose off or sell family property is by the Head of Family acting with the consent or concurrence of the principal members of that family. Any Family Land sold by the Head of a family as his exclusive landed property is void ab initio, See WAMADI N. EJILEME v. BELEME H. E. OPARA & ANOR (2003) LPELR-1065(SC) at 15-16 where the apex court per Iguh, JSC said:
“In this regard, I think it is beyond dispute that a valid allocation of family land requires the grant or transfer to be made by the head of the family with the principal members concurring therein. Where, however, the transfer is made by the head of family alone acting for and on behalf of the family such a transfer is only prima facie voidable and not void and the family may set aside such disposition of their Land by non-consenting members acting timeously. See Ekpendu v. Erika (1959) SCNLR 186, 1959 4 FSC 70 at 81, Mogaji & others v. Nuga (SCNLR) (1960) SCNLR 219; (1960) 5 FSC 107 at 109; and Manko and others v. Bonso and others (1936) 3 WACA 62. A transfer of Family Land other than by the head thereof or the head and principal members of the family is absolutely void ab initio. See Agbloe v. Sappor (1947) 12 WACA 187, Akinfolarin v. Akinola (1994) 3 NWLR (Pt. 335) 659 at 682. So too, as the head of the family cannot transfer Family Land as his own exclusive personal property, such a transfer by him is void ab initio. See City Property Development Ltd. v. A.G. Lagos State and others (1976) 1 SC 71 at 110; (1976) ALL NLR 24 at 44”
This settled Principle of Law was reaffirmed or restated very recently by the apex Court in the Land in the Case of MICHEAL ACHILIHU & ORS v. EZEKIEL ANYATONWU (2013) 1 SCM 1 at 13 per AKA’AHS, JSC, who delivered the leading judgment thus:
“As a general rule, the management of family property is put in charge of the family head and he acts as a trustee of such. See; Amodu Tijani v. Secretary Southern, Nigeria (1921) A.C. 399; Sunmomi v. Raphael (1927) A.C. 881 at 884; Bassey v. Cobham (1924) 5 NLR 90; Archibong v. Archibong (1947) 18 NLR 117. He should exercise his powers not for his own private advantage but for the benefit of the family and he does not enjoy absolute power in the management of family per se. He is required to consult the other members of the family and in the case of important decisions such as sale of family land he must obtain the consent of the principal members of the family. As the head of the family cannot transfer family land as his own exclusive personal property, any transfer of the family property by him without carrying along the principal members is void ab initio. See: D. W. Lewis & Ors v. Bankole & Ors (1908) 1 NLR 80.”
The trial court and the Customary Court of Appeal acknowledged this settled position of the Law in their Judgments. However the two courts below accepted and relied on the evidence of D.W.1. and D.W.2 to the effect that under the custom of the people of Oha Umuorii Uratta the first son could sell a family property under his care where he has a problem like sickness and that when the family property is being shared in future, it would be taken that what the eldest son or Head of family sold would be part of the Land that would be shared to him. In other words account would be taken of the land sold of the Head of the family when the land is being partitioned or divided among the family members.
In this case there is no dispute that CLIFFORD AGUBOSHIM who sold the Land in dispute to the Respondent was the eldest son of DANIEL AGUBOSHIM the ancestor of both the Appellants and CLIFFORD AGUBOSHIM who sold the land to the Respondent. The trial court expressed grave misgivings about the possible existence of such a custom that allows a Head of family or eldest son to have unbridled right to sell family property as his own on the ground that he has a personal problem or health challenges to solve without the blessing or consent of the principal members of the family. In spite of the serious doubts expressed by the trial court it nonetheless found in favour of the Respondent on the ground that the Appellants did not cross examine the D.W.1 and D.W.2 on the custom and that it was unchallenged evidence.
It is very crucial and germane to reproduce the findings of the trial court on pages 86 – 88 of the record viz: – In Adejumo v. Ajategbe (supra), the court held as follows:
1. Where there is a sale or conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, the transaction is voidable and those members who should have consented to the transaction but did not can take out an action to have the transaction set aside.
2. The sale of family land by a member of the family who is not the head of the family is void.
3. The sale of family land by the head of family without the consent of principal members of the family is voidable.
4. The sale of family land by the head of family as his own land is void.
5. Where a sale is void, it has to be so declared if asked to be set aside but where it is voidable, whether or not it will be set aside will depend upon the facts and circumstance of the claim see also Ejilemele v. Opara and Anor. (2003) FWLR (Pt. 167) 821 at 832.
Following the above principle, the plaintiff’s counsel argued that the sale by Clifford is void while the defendants counsel, relied on the established custom by evidence to show that the custom of the plaintiffs to which Clifford Aguboshim belong to allows such a sale as earlier mentioned and submitted that the custom was established by the defendant and his witnesses and urged the court to so hold. It is trite that Customary Law is a fact that must be proved, unless judicial notice is taken of its existence. See OBA OYEDIRAN OF IGBONIVIA v. OBA ALEBIOSU II (supra).
MOJEKWU v. EJIKEME (2000) 5 NWLR (Pt. 657) 402.
It is a fact that D.W.2, D.W.2 and D.W.3 all stated this custom of Umuorii Uratta without any challenge under cross examination but is worthy to note that the court is not comfortable to hold that such a custom has received judicial notice in line with the established principles of law.
It is pertinent to take at this stage tools to help us to establish this controversial custom take into consideration book Imo State Customary Laws and Judicial Pronouncements by Hon. Justice A.B.C. Egu page 13 where it was stated as follows:-
“Family Land is validly sold either by the head of the family with the consent of the principal members of the family or by mutual agreement of the male children in the family.
(2) A young man can only sell family land if he is the only surviving male of his family.
Again in another book:- Customary Law Manual by Dr. S. N. C. Obi Pg. 17 (32) it was stated “A family head has no right to sell the family land or any part of it without the counsel of the family following the above custom prevalent in this jurisdiction as enunciated in these books.
I find it difficult to agree with such a custom as advanced by the defendants counsel and I must quickly say that such custom is also not known to this court as applicable Customary Law is presumed to be in the bosom of the court. See the case of AMABARA v. CUSTOMARY COURT OPOBO (2010) ALL FWLR (Pt. 520) PG 1313.
The facts still remain that unchallenged and uncontradicted evidence should be accepted and relied upon by the court see. OGAR v. JAMES 2001 10 NWLR (Pt. 722) 621 pg. 570. Since the evidence of this custom led by D.W.1 and D.W.2 were not challenged under cross examination and evidence of D.W.3 was not challenged for the fact that he was not cross examined, this court is therefore bound to accept the evidence of that custom more so when there is no denial of this custom by the plaintiffs as such was not canvassed during evidence.
It is of great worry why plaintiffs who admitted a purported sale of the land in dispute by Clifford to D.W.3 during evidence in chief but failed to challenge or ask for the setting aside of the sale as either void or voidable as the case may be in his claim because where a sale is void or avoidable, it has to be so declared if asked to be set aside see the case of ADEJUMO v. AYANTEGBE (supra). Plaintiffs therefore having not asked for it, they cannot ask for at this address stage for the court to declare the sale void or voidable. In totality on this issue, this court resolves it in favour of the 3rd defendant counter claimant and therefore cannot declare the sale of the land to 3rd defendant as void or voidable rather he is entitled to the grant of his claim”
I am of the settled opinion that it amounts to grave error and misdirection on the part of the trial court which had stated and found that it was not comfortable to hold that such a custom has received judicial notice in line with established principles of Law and that the custom is controversial to now rely on failure to cross examine the witnesses as basis for giving judgment in favour of the Respondent.
The moment the trial court came to the conclusion that it found it difficult to agree with such a custom and that it was unknown to it as applicable Customary Law, the evidence of D.W.1 and D.W.2 on the existence of such Custom fizzled away notwithstanding that there was no cross examination once the Court found it unbelievable. The lower Court (Customary Court of Appeal Imo State) was therefore wrong in upholding the judgment of the trial Customary Court.
The lower court too was not comfortable with the various findings of the trial court when the lower court said as follows:-
“Having said this I wish to refer to various parts of both the submission of counsel in this matter and the judgment of the court below. The lower court in a portion of its judgment on page 86 said thus:-
“It is trite that Customary Law is a fact that must be proved, unless judicial notice is taken of its existence. See Oba Oyediran of Igbonivia v. Oba Alebiosu II (supra).
The same Court further on page 87 of its judgment said:-
“… I must quickly say that such custom is also not known to this Court as applicable customary law is presumed to be in the bosom of the Court. See the case of Amabara v. Customary Court Opobo (2010) All FWLR (Pt. 520) pg. 1313.”
Further on page 94 of the record of proceedings the Court below said:-
“The Court also takes cognizance of the reply on point of law by the defendant’s (sic) counsel to the plaintiff’s (sic) written address. The defendants’ counsel submitted that in addition to custom being proved by adducing credible and strong evidence, same custom may not be applicable in different community (sic) and locations”.
“I will say no more as the facts have spoken for and spoken volumes about the Court below;”
While it is the settled position of the Law that an Appellate Court will not legally interfere with concurrent findings of lower courts, this court can interfere where the evidence before the trial court is shown to have been misapplied and when it borders on misdirection on the facts and law and where as in this case the misdirection has caused the court to come to a wrong conclusion. See the case of MICHEAL ACHILIHU & ORS vs. EZEKIEL ANYATONWU (2013) 1 SCM 1 at 18 where AKA’AHS, JSC said:-
“This appeal therefore turns on whether the lower courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate court should not ordinarily disturb or tamper with the findings of facts made by the trial court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is preeminently that of the trial court that saw and heard the witnesses; Emarieru v. Ovivie (1977) 2 SC 31: Osundulu vs. Philips (1973) 1 NMLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; NWLR (Pt. 544) 130 at 139. Jimoh Garba v. Isiaka Yahaya (2007) 1 SC (Pt. 2) 262 at 266. There is an exception to the above rule. The exception is where there is a misdirection by the trial court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See; Abisi v. Ekaisalor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra). Where a trial court has drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference, supported by evidence. It is also trite that where a trial court has failed, as in the instant case in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the Appeal Court will be perfectly justified in re-evaluating and reconsidering the whole evidence in order to arrive at a just decision.”
The findings of the trial court upheld by the lower court were not supported by the evidence on record and even the findings of the trial court itself. Clifford Aguboshim the eldest son of the Appellants family had no legal or equitable right to transfer or sell the land in dispute to the Respondent. The sale to the Respondent of the land in dispute by Clifford Aguboshim was void ab initio. No title or interest in the land was validly passed to the Respondent. Issue 1 is resolved in favour of Appellants.
ISSUE 2
WHETHER UPHOLDING THE REFUSAL OF THE TRIAL COURT TO RECALL THE D.W.3 FOR THE PURPOSES OF CROSS EXAMINATION DOES NOT AMOUNT TO INFRINGEMENT OF THE APPELLANTS RIGHT TO FAIR HEARING.
It is the submission of Appellant that they were denied fair hearing. That at a point they discovered some tardiness on the part of their counsel and had to disengage him. That it was the new counsel who applied to recall the D.W.3 for purposes of cross examination but was refused by trial court and upheld by lower court. That Appellants ought to have been given fair hearing. They relied on the cases of (1) MALIKI MICHAEL IMODUS INSTITUTE FOR LABOUR STUDIES (2009) ALL FWLR (Pt. 491) 979 at 1019 A-D (2) INEC v. ADC (2009) ALL FWLR (Pt. 490) 684 D-F.
In response to the above submission the Learned Counsel to the Respondent stated that the Appellant’s Learned Counsel K. F. Ibekwe Esq. was present in Court on 3/5/2011 when D.W.2 testified in Chief and when D.W.2 was cross examined on 19/5/11 and when the matter was adjourned for continuation of defence case.
That when D.W.3 concluded his evidence on 16/6/11. Hearing Notice was issued on the Appellants. And that the Appellants and their Counsel were still absent from court. That every opportunity was given to Appellants but was not utilized. He relied on the cases of A.G. RIVERS STATE v. UDE (2006) 17 NMLR (Pt. 1008) 437 and AIR FRANCE v. GREGORY OKWUKIAFOR (2012) ALL FWLR (Pt. 639) 1156 at 1172 A-C.
By section 36 of the 1999 Constitution as amended a person is entitled to fair hearing within a reasonable time by a court or other tribunal in the determination of his civil rights and obligations including any question or determination by or against any government or authority. The provisions of the Constitution just alluded to ensure that the trial of an action or suit is seen to be fair and just by all reasonable standards. The principles implies that both sides to a case must be accorded or given equal opportunity to present their respective cases. See CHIEF J. L. E. DUKE v. GOVERNMENT OF CROSS RIVER STATE & ORS (2013) 8 NWLR (Pt. 1356) 347 at 366 B-C where GALADIMA, JSC who delivered the leading judgment said:
“It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibits of the 2nd Respondent. By the term “FAIR HEARING” within the context of Section 36(1) of the 1999 Constitution is that a trial ought to be conducted in accordance with all legal norms’ designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given, an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.”
I believe the trial court cannot be blamed for the failure to cross examine DW3 by the Appellants Counsel. The Appellants should blame their Learned Counsel. In any event the evidence given by DW3 is not different from evidence of DW1 and DW2 who were duly cross-examined by the Appellants learned Counsel. Issue 2 is resolved against the Appellants.
Issue 3
WHETHER THE LOWER COURT WAS RIGHT IN HOLDING THAT CLIFFORD AGUBOSHIM IS THE FIRST SON OF DANIEL ORIAKU AGUBOSHIM WHEN SUCH WAS NOT PROVED (GROUND 2)
The argument of the Appellants is that CLIFFORD AGUBOSHIM who sold the land in dispute to the Respondent was not the son of their ancestor DANIEL ORIAKU AGUBOSHIM. That Clifford was formerly answering ANYASODOR. That a relation of Daniel Oriaku Aguboshim was known as ANYASODOR. That PW1 gave evidence that Clifford Aguboshim was not a son of Appellants’ father. That the court below erred in law in holding that Clifford Aguboshim is the son of Daniel Aguboshim against the evidence on record.
The Respondent in response to the Appellants’ contention relied heavily on the evidence of DW1 and DW2 who both stated in evidence that Clifford Aguboshim was the first son of Daniel Aguboshim. The Respondent also relied on Exhibit A.
I am of the view that the trial court who heard the evidence of witnesses PW1 inclusive was right in holding that the said Clifford Aguboshim was the first son of Daniel Oriaku Aguboshim the father of the Appellants. Issue 3 is resolved against the Appellants.
Issue Four
WHETHER THE APPELLANTS PROVED THEIR CASE AND THEREFORE ENTITLED TO THEIR CLAIMS DISTILLED FROM (GROUNDS 1-5).
The issue raised here have been effectively dealt with under issue 1 in favour of the Appellants. This is because issue 1 relates to ground 1 since grounds 4 and 5 of the Notice and grounds of Appeal of the Appellants have been struck out because they do not raise any question of a Customary Law as envisaged under section 245(1) of 1999 Constitution as amended.
Issue 2 relates to ground 3 of the appeal while issue three was tied to ground 3 of the Notice of Appeal.
Issue 4 is therefore struck out as it is otiose.
In sum, the appeal of the Appellants is meritorious and the same is allowed notwithstanding that issues two and three have been resolved against them. The judgment of the trial Customary Court and the judgment of the Customary Court of Appeal (Lower Court) are hereby set aside. The reliefs sought by the Plaintiffs now Appellants at trial Customary Court namely;
“1. Declaration that the plaintiffs are entitled to the grant of customary right of occupancy over the piece of parcel of land knows as and called UHU UZO IHITTE situate along at Umundumoha Umuorii/Ihitte Road Uratta Owerri North L.G.A. Imo State within Jurisdiction.
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the defendants by themselves, agents, or assigns from trespassing into the said Uchie Uzo Ihitte Land or from howsoever interfering with the plaintiffs possessory rights therein.”
are hereby granted in favour of the Plaintiffs/Appellants. Judgment is accordingly entered in favour of the Appellants.
The reliefs sought in form of Counter-Claim at the trial court by the Respondent viz:
“1. Declaration that the plaintiff is entitled to the grant of customary right of occupancy over the piece or parcel of land known as and called the “UHU OGU LAND” or “UHU UZO IHITTE” situate, located or lying along Uzo Ihitte, Umudumoha Umuorii Uratta in Owerri North Local Government Area of Imo State.
2. N5,000.00 (Five Thousand Naira) damages for trespass.
3. Perpetual injunction restraining the plaintiffs by themselves agents, assigns, from trespassing unto the said “Uhu Ogu” or “Uhu Uzo Ihitte Land or from howsoever interfering with the 3rd defendant’s possessory rights therein.”
are hereby dismissed. The Respondent shall pay costs assessed at N30,000.00 to the Appellants.
IGNATIUS IGWE AGUBE, J.C.A.: I was opportune to read the draft of the lead Judgment of my learned brother, P. O. Ige, J.C.A. and am in complete agreement with him that on the authorities of Pam v. Gwom (2000) FWLR (Pt. 1) 1 at 15, Odoemena Nwaigwe & Ors v. Nze Edwin Okere (2008) 5-6 S.C. (Pt. 11) – 93, Owonyin v. Omotosho (1961) 1 ALL NLR 304 and Mkpen Tiza & Anor v. Iorakpen Begha (2005) 15 NWLR (Pt. 949) 616 at 637 Paragraphs D – H to 633 paras. A – C Per Musdapher, JSC (as he then was); Grounds 4 and 5 of the Appellant’s Grounds of Appeal do not fall within the purview of the provisions in Section 245(1) of the Constitution of the Federal Republic of Nigeria, 1999 in that they are not in respect of any question of Customary Law more so when the National Assembly has not expanded the jurisdiction of this Court to encompass the Grounds as raised by the Appellant.
The said Grounds are therefore incompetent and accordingly rightly struck out.
As regards the substantive Issues, I also agree with the conclusion reached by my learned brother that the Court below misdirected itself when after agreeing that the Custom where the first son of a family can sell family land as Clifford Agubosim had done in this case without the consent of principal members of the family, has not received judicial notice within its jurisdiction, still held the sale as valid on the ground that the DW1, DW2 and DW3 stated that custom of Umuorji Uratta without challenge on the authority of Ogar v. James (2001) 10 NWLR (Pt. 722) 621 at 670.
It is now almost universally accepted in all parts of Anglophone West-Africa and indeed Southern Nigeria, following the landmark cases of Ekpendu v. Erika (1959) SCNLR 186, Mogaji & Ors. v. Nuga (1960) SCNLR 219, Manko & Ors v. Bonso & Ors. (1936) 3 WACA 62, that a sale or alienation of family land by a member of the family other than the Family Head, is void ab initio while a sale or alienation by the Head of the Family is voidable at the instance of non-consenting members of the family. See. Achilihu & Ors. v. Anyatonwu (2013) 1 SCM 1 at 13 Per Aka’ahs, JSC and Ejilemele v. Opara & Anor. (2003) LPELR-1065(SC) at 15 – 16 Per Iguh, JSC ably cited by my Lord at pages 20 and 21 of his Lead Judgment.
Clifford Aguboshim as rightly observed by my Lord is only the eldest son of the family and there is no evidence that as at the time he sold the land to the Respondent he was the family head in which case, the sale would have been voidable depending on the peculiar circumstances of the case. Having found as a fact that he was not the family head, the sale was ab initio void and the Appellants did not need even to pray for the Courts below to set aside same.
I agree therefore, that the findings of the trial Court were not supported by concrete evidence and accordingly this is an appropriate situation for this Court in its appellate jurisdiction to interfere with the judgment of the courts below and declare that no valid title was passed to the Respondent.
I abide by the resolution of Issues Two and Three as made by my learned brother and also strike out Issue Number 4 since Issue Number One had adequately dealt with the question of evaluation of evidence and Grounds 4 and 5 which were incorporated in that Issue had been struck out for being incompetent. I also enter judgment for the Appellants as per their particulars of claim in the court of first instance as their Appeal is meritorious and dismiss the Counter-Claim of the Respondent thereat. I abide by the award N30,000.00 costs in favour of the Appellants against the Respondent.
ITA GEORGE MBABA, J.C.A.: I had the advantage of reading, in draft, the lead judgment just delivered by my learned brother P. O. Ige, JCA. He has dutifully and succinctly identified and resolved all the issues thrown up for consideration, quite expertly, and I agree completely with his reasoning and conclusions.
I think the decision of the trial court, which was upheld by the lower court (customary court of Appeal) attempted to unsettle all known principles, relating to disposal of family land, as even cited and upheld by trial and lower courts in Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Ejilemele v. Opara & Anor. (2003) FWLR (Pt. 167) 821; Mojekwu v. Ejikeme (2000) 5 NWLR (Pt. 657) 402.
Having held that the purported customary law which allows the head or 1st son of the family to sell family property as his own, without the consent of the other members, simply because he has some problems, like sickness, to raise money to solve the problem was strange or controversial and not known to the court as applicable customary law, and yet feigning helplessness and upholding it, simply because the proponents of the absurd theory were not cross-examined on it, sounds contradictory, and hypocritical. The lower courts even appeared not to have believed in their said holding, themselves, when they openly doubted the place of such purported custom as part of the applicable Customary Laws of the state, with regards to the case of Amabara v. Customary Court of Opobo (2010) ALL FWLR (Pt. 520) 1313.
Of course, even where the head of a family sells a family land, without the consent of the family, because he has a personal problem to solve, and would be ready to accept that land as his first line charge and treated as his portion, when the family land is eventually partitioned, I think he is expected to be humble and begging for understanding and to plead to persuade the other members of the family to condone him and absolve him of the wrong. He cannot assert a right by use of the rule of thumb, to force down his aggression on the family, to the extent of seeking exclusive declaration of title over the land to himself and against the family, and obtain order of perpetual injunction against the family, treating the family members as trespassers to the family land! That, to me, is strange, indeed. And for the court to grant such order appears to be turning the law on its head!
In the case of chief Reuben Adiulewu & Ors v. Deacon Levi Kanu: CA/PH/425/2008, an unreported decision of this court, delivered on 20/6/14, page 17 thereof, we observed, as follows:
“I think the trial court did a great disservice to the course of justice in this case, when he held that the Respondent, who threatened by letter (Exhibit J) only on 27/12/2004, that he would enter and possess the family land, and made good his threat, was in exclusive possession of the land, and granted an order of injunction against the very family that owned the land, rewarding the Respondent for using might as right, and blackmail to dispossess his other family members of the land. The findings by the trial court were therefore perverse, as they indeed ran against the course of evidence. See Cameroon Airline v. Otutuzu (2011) 1-2 SC (Pt. 111) 200; Adeniyi Adekoya v. The State (2012) LPELR-7815(SC).”
With this and the fuller reasons in the lead Judgment, I too allow the appeal and abide by the consequential orders in the lead Judgment.
Appearances
I. I. Otokwula, Esq. with D. C. Prince Onunwa For Appellant
AND
Ngozi Olehi, Esq. with Nnamdi Nwachukwu and Obinna Nwachukwu For Respondent
