GERMAN OMOROGBE & ORS v. SAMUEL AJAYI & ORS
(2015)LCN/7947(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of July, 2015
CA/B/158/2007
RATIO
CUSTOMARY LAW; PROOF OF CUSTOMARY; WHETHER ANY PARTY RELYING ON THE APPROPRIATE CUSTOMARY LAW OF THE AREA OF JURISDICTION OF THE CUSTOMARY COURT NEEDS TO PROVE THE CUSTOMARY LAW BEFORE THE CUSTOMARY COURT HAVING JURISDICTION OVER THE MATTER
On the issue of proof of Customary Law, it is my view that any party relying on the appropriate customary law of the area of Jurisdiction of the Customary Court need not prove the customary law before the Customary Court having Jurisdiction over the matter. I am fortified in my view above, by the decision of the Supreme Court in OGIUGO VS OGIUGO (SUPRA) PAGE 283 AT 300 PARAGRAPHS B-C. It was held among others by the Supreme Court thus:-
“By virtue of order 10 rule 6(3) of the Customary Court Rules of Bendel State 1978 (applicable in Edo State) any party relying on the appropriate customary law of the area of jurisdiction of the Customary Court need not prove the customary law before the Customary Court having jurisdiction over the matter. This is because by virtue of order 10 rule 6(5) any customary law which the customary court in its judgment states to be the customary law shall be presumed to be correct until the contrary is proved except where the stated customary law is repugnant to natural justice, equity and good conscience or in conflict with any previous decision of the High Court, Court of Appeal or the Supreme Court.
(Egiri Vs Uperi (1973) 9-12 SC page 299 referred to)”
Per Belgore JSC at Pages 304 – 305 Paragraphs H – B.
“The Customary Court is presumed to know the customary law of the area of its jurisdiction. That is the purpose of order 10 rule 6(3) and (5) of the Customary Court Rules of Edo state.
Whoever asserts that the customary law as enunciated by the Customary Court is not correct must lead evidence cogent enough to disapprove the stand of customary court. Thus the Customary Court of Appeal must be moved by the Appellant who will adduce evidence to prove the correct customary law in contradiction to the law enunciated by the Customary Court of trial.
The Customary Court of Appeal erred when it reversed the decision of the trial Customary Court on customary law of Orhionmwon on succession of Enogie without receiving evidence of it. The Court of Appeal erred in overlooking this important provision of the law”.
Per Katsina – Alu JSC at Page 305 Paragraph E-G.
“The Customary Court is presumed to know the appropriate customary law of the area within its jurisdiction. This is the purport of order 10 rule 6(5) of the Customary Court rules, of Bendel State 1978 which provides:
“6(5) any customary law which the court in its judgment states to be the appropriate customary law shall be, subject to the provision of section 22(a) of the edict, be presumed to be correct until the contrary is proved except where the customary law conflicts with any previous subsisting judgment of the High Court, Federal Court of Appeal or the Supreme Court”.
This presumption can only be rebutted by either contrary evidence in the Customary Court of Appeal or that it is in conflict with the judgment of the High Court, Court of Appeal or the Supreme Court”. per. JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
(1) GERMAN OMOROGBE
(2) STEPHEN OVIAWE
(3) VINCENT OVIAWE
(4) MONDAY OSAZENAYE
(For themselves and on behalf of Ewudu Community) Appellant(s)
AND
(1) SAMUEL AJAYI
(2) FRANCIS UWADIAE
(3) NATH ODIA
(4) GODWIN AJAYI
(5) SUNDAY EKHORUYINWEN
(6) OSAS OKORO
(For themselves and on behalf of Oghobaghase Community) Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Edo State Customary Court of Appeal, Benin City in the APPEAL NO.CA/11A/2003 BETWEEN GERMAN OMOROGBE & 3 OTHERS (For themselves and on behalf of Ewudu Community) Vs Samuel Ajayi & 5 others (For themselves and on behalf of Oghobaghase Community) delivered on the 22nd day of December, 2005 wherein the Appeal of the Appellants was dismissed and Judgment of the trial court upheld.
Briefly, the facts of the case are that at the trial court i.e. Ovia North East Area Customary Court, Okada, the Respondents claimed a declaration that Oghobaghase Community is an existing community in Ovia under Bini native law and custom, and N7,000.00 damages against the Appellants for their acts of trespass into Oghobaghase Community land and an order of perpetual injunction restraining the Appellants, their servants, agents and/or privies from further acts of trespass.
On the other hand, the Appellants filed a counter claim for a declaration that the Oghobaghase Community does not exist in Bini native law and custom, that Ajayi Camp forms part of Ewudu Community, and an order of perpetual injunction restraining the Respondents, their agents or privies from further acts of trespass on the land.
The trial court in its Judgment found for the Respondents as claimed and awarded N5,000.00 damages against the Appellants. The counter claim of the Appellants was also dismissed.
Dissatisfied with the Judgment of the trial court, the Appellants appealed to the Lower Court i.e. Edo State Customary Court of Appeal, Benin City.
At the conclusion of hearing at the Lower Court, the Appeal of the Appellants was dismissed and Judgment of the trial court was affirmed.
The Appellants, dissatisfied with the Judgment of the Lower Court, now appealed to this court.
The learned counsel for the Appellants formulated a lone issue for the determination of the Appeal. The said issue is reproduced as follows:-
“Whether the Customary Court of Appeal was right in affirming the judgment of the Ovia North-East Area Customary Court, Okada particularly their stand on the issue of the customary law relating to the planting of the Ikhinmwin tree”.
The Learned Counsel for the Respondents adopted the lone issue formulated for determination on behalf of the Appellants.
At the hearing, the Learned Counsel for the Appellants referred to the Judgment of the Lower Court delivered on 22/12/2005. The record of appeal was deemed as properly compiled and transmitted on 16/10/2014.
Learned Counsel also referred to the Appellants brief of argument which was filed on 21/6/13 but deemed as properly filed and served on 16/10/14.
He applied to adopt and rely on the said Appellant’s brief of argument as his argument in this appeal. And he urged that the appeal be allowed and the Judgment of the Lower Court set aside.
The Learned Counsel for the Respondents in his own case also referred to the Respondents brief of argument filed on 5/7/2013 but deemed as properly filed and served on 16/10/2014.
She applied to adopt and rely on the said Respondents brief of argument in urging that the appeal be dismissed.
In view of the fact that Counsel for the Respondents has adopted the issue formulated for determination of the appeal on behalf of the Appellants, I will therefore rely on the said issue in the determination of this appeal.
ISSUE FOR DETERMINATION OF THE APPEAL
“Whether the Customary Court of Appeal was right in affirming the judgment of the Ovia North-East Area Customary Court, Okada, particularly their stand on the issue of the Customary Law relating to the planting of the Ikhinmwin tree”.
The Learned Counsel for the Appellants submitted that the traditional history that was before the Area Customary Court which was also before the Customary Court of Appeal was such that the Appeal would have been allowed by the Lower Court.
He also referred to the traditional history as given by the Plaintiffs and their witnesses vis-a-vis the claim of the Respondents weighed against the traditional history of the Appellants and their witnesses.
He contended that the traditional history of the Appellants ought to have been preferred by the Lower Court.
He went further in his submission that the evidence of the Appellants and their witnesses indicated the purpose of planting of Ikhinmwin Tree. And that the evidence of DW5 in this regard is unchallenged. He referred to the following cases:-
– Ayeni Vs Adesina (2007) 1 FWLR part 359 page 1585 ratio 4, page 1619 paragraph H.
-Onu Vs Idu (2006) 3 FWLR part 332 page 5612 at 5617 ratio 3.
-C.B. Ltd. Vs SSL Ltd. (2007) 3 MJSC page 112 at 132 paragraphs A-D.
-Leadway Assurance Vs Zeco Nig. Ltd (2004) 22 WRN page 1 at page 3 ratio 1.
-Nepa Vs Inameti (2002) 13 WRN page 108 at 119 ratio 12.
It was contended on behalf of the Appellants that the evidence of DW5 was ignored by the trial court. And further that the presumption which the Lower Court relied upon had been displaced by the unchallenged evidence of DW5 on the purpose of planting the Ikhinmwin Tree.
On the whole, he urged the court to set aside the Judgment of the Lower Court and enter Judgment for the Appellants.
On the other hand, the Learned Counsel for the Respondents submitted that the main grouse of the Appellants is “THE PURPOSE OF PLANTING IKHINMWIN TREE” as borne out by the evidence of Appellants and DW5 i.e. one of the Appellants’ witnesses.
The Learned Counsel for the Respondents referred to the view of the trial court that the purpose of planting Ikhinmwin tree under the Benin customary law is for the grantee to exercise his rights over the area so carved and to procreate thereon. And this view was affirmed by the Lower Court.
Learned Counsel submitted that the Appellants did not appeal against the position of the Lower Court stated above, therefore they are deemed to have accepted it. She relied on the cases of :- GBEDU VS ITIE (2010) 10 NWLR PART 1202 PAGE 227 AT 252.
-OGUNSINA VS OGUNLEYE (1994) 5 NWLR PART 346 PAGE 625 AT 636.
-OGIUGO VS OGIUGO (1999) 14 NWLR PART 638, PAGE 283 AT 300 PARAGRAPHS B-C
Learned Counsel for the Respondents also contended that contrary to the submission of Counsel for the Appellants that the evidence of DW5 was ignored, the evidence of DW5 was considered along with all other witnesses.
She finally urged this court to dismiss the appeal.
The issue for determination in this appeal is whether the Customary Court of Appeal was right in affirming the Judgment of the Ovia North-East Area Customary Court Okada particularly their stand on the issue of the customary law relating to the planting of the IKHINMWIN TREE.
The view of the Area Customary Court on the planting of Ikhinmwin tree is reproduced as follows:-
“…After a careful consideration of the whole evidence two basic issues arose for determination of this honourable court. These are:-
(1) What is the most important reason for planting Ikhinmwin tree for a stranger or group of persons under Bini Native Laws and Customs?
(2) Was the proper procedure followed before the change of name from Orogo to Oghobhaghase Community?
To answer the first question, it is our considered view that the purpose of planting Ikhinmwin tree according to Bini Native Laws and Customs is to carve out a portion of land or an area for a person to exercise his natural or legal rights over the area so carved out for him as he would do in his own place of origin which include to co-habit as husband and wife and cultivate the land for their existence. It is an authority to exploit both natural and human resources on the land. There may be conditions attached such as paying homage to the person who planted the Ikhinmwin tree. As long as the person continue to live on the land without violating the custom of the place, he can stay there and his children will inherit the place after his death.
Planting of Ikhinmwin tree in Bini Native Laws and Customs is beacon for marking out the boundary for the person and for any person to claim ownership of land in Benin, he must trace his root of title to the Oba of Benin who holds the land in trust for the Community. See – UWAGBOE VS EVBUOMWAN (1959) 4 FSC PAGE 91”.
(See Page 133 lines 2 – 17 and Page 134 lines 1 – 5 of the Record of Appeal).
The above position was affirmed by the Lower Court when it held as follows:-
“We observe that the Appellants are laying claim to Ajayi camp on the authority that someone from their community planted an “Ikhinmwin tree” on the Respondent’s land”. It is the view of the trial court that the purpose of planting Ikhinmwin tree under Benin customary law is for the grantee to exercise his rights over the area so carved and to procreate thereon. Such a grantee may be required to pay homage to the overlord. The court went further to state that the Ikhinmwin tree could be used as a boundary mark. Counsel for the Appellants submitted that since the planting of Ikhinmwin tree serves dual purpose, it was only by evidence adduced by parties that one could know the intention of the parties when the tree was planted.
We do not agree with this submission. As rightly pointed out by Counsel for the Respondent, Order X Rule 6(3) of the Customary Courts Rules 1978 gives authority to the trial Customary Court to apply the relevant Customary Law without any need to prove such customary law where the party or parties rely on the appropriate customary law of the area of the Jurisdiction of the Customary Court.
In the circumstances, we hold that the trial court was right to have pronounced on the customary law relating to the planting of Ikhinmwin tree without calling evidence of the custom. The law also allows any party who disagrees with the pronouncement of any Customary Court regarding any aspect of customary law to lead evidence in rebuttal at the Appeal Court. See Order X Rules 5 and 6.
In the instant case the trial customary court pronounced on the appropriate customary law relating to the planting of Ikhinmwin tree. The Appellants failed to adduce evidence before us in rebuttal of the pronouncement by the Lower Court. The court with regard to the Benin Customary Law regarding the planting of Ikhinmwin tree is therefore presumed to be correct. That is to the effect that the purpose of planting the Ikhinmwin tree is to enable the grantee exercise his rights over the land so carved out and to enable him procreate thereon. It can also be used as a boundary mark. See pages 237 lines 1-19 and page 238 lines 1-14 of the Record of Appeal)”.
The Appellants according to Counsel for the Respondents did not appeal against the above decision of the Lower Court. In the circumstance, it is my view that the Appellants are deemed to have accepted that position.
See the following cases:-
-UMANAH VS ATTAH (2006) 17 NWLR PART 009 PAGE 403.
-OLUKOGA VS FATUNDE (1996) 7 NWLR PART 462 PAGE 516.
-GBEDU VS ITIE (2010) 10 NWLR PART 1202 PAGE 227 AT 252.
The above concurrent findings would rarely be interfered with by an Appellate Court.
See -OGUNSINA VS OGUNLEYE (1994) 5 NWLR PART 346 PAGE 625 AT 636.
On the issue of proof of Customary Law, it is my view that any party relying on the appropriate customary law of the area of Jurisdiction of the Customary Court need not prove the customary law before the Customary Court having Jurisdiction over the matter. I am fortified in my view above, by the decision of the Supreme Court in OGIUGO VS OGIUGO (SUPRA) PAGE 283 AT 300 PARAGRAPHS B-C. It was held among others by the Supreme Court thus:-
“By virtue of order 10 rule 6(3) of the Customary Court Rules of Bendel State 1978 (applicable in Edo State) any party relying on the appropriate customary law of the area of jurisdiction of the Customary Court need not prove the customary law before the Customary Court having jurisdiction over the matter. This is because by virtue of order 10 rule 6(5) any customary law which the customary court in its judgment states to be the customary law shall be presumed to be correct until the contrary is proved except where the stated customary law is repugnant to natural justice, equity and good conscience or in conflict with any previous decision of the High Court, Court of Appeal or the Supreme Court.
(Egiri Vs Uperi (1973) 9-12 SC page 299 referred to)”
Per Belgore JSC at Pages 304 – 305 Paragraphs H – B.
“The Customary Court is presumed to know the customary law of the area of its jurisdiction. That is the purpose of order 10 rule 6(3) and (5) of the Customary Court Rules of Edo state.
Whoever asserts that the customary law as enunciated by the Customary Court is not correct must lead evidence cogent enough to disapprove the stand of customary court. Thus the Customary Court of Appeal must be moved by the Appellant who will adduce evidence to prove the correct customary law in contradiction to the law enunciated by the Customary Court of trial.
The Customary Court of Appeal erred when it reversed the decision of the trial Customary Court on customary law of Orhionmwon on succession of Enogie without receiving evidence of it. The Court of Appeal erred in overlooking this important provision of the law”.
Per Katsina – Alu JSC at Page 305 Paragraph E-G.
“The Customary Court is presumed to know the appropriate customary law of the area within its jurisdiction. This is the purport of order 10 rule 6(5) of the Customary Court rules, of Bendel State 1978 which provides:
“6(5) any customary law which the court in its judgment states to be the appropriate customary law shall be, subject to the provision of section 22(a) of the edict, be presumed to be correct until the contrary is proved except where the customary law conflicts with any previous subsisting judgment of the High Court, Federal Court of Appeal or the Supreme Court”.
This presumption can only be rebutted by either contrary evidence in the Customary Court of Appeal or that it is in conflict with the judgment of the High Court, Court of Appeal or the Supreme Court”.
In this appeal under consideration, a careful perusal of the Record of Appeal would reveal that there was no application to call additional evidence of custom in the Customary Court of Appeal and no such evidence was given to challenge the declaration of custom relating to the planting of the IKHINMWIN TREE. Therefore the presumption of correctness of the declared custom was not defeated.
Furthermore, the record of appeal would show that both the Plaintiffs Case and that of the Defendants were considered by the trial court when it held that “we have carefully considered the case of the plaintiffs and the defendants, the Exhibits tendered and the submission of both Counsel…………………………………………”.
See Page 132 lines 5-7 of the record of Appeal).
In view of the foregoing, it would therefore be wrong to say that the evidence of DW5 was ignored by the trial court.
Consequent upon all I have stated in this Judgment, I am of the view that the Customary Court of Appeal was right in affirming the Judgment of the Ovia North-East Area Customary Court, Okada particularly their stand on the issue of Customary Law relating to the planting of the Ikhinmwin tree.
This issue is therefore resolved in favour of the Respondents and against the Appellants.
In the final analysis, I am of the view that this appeal lacks merit and it is hereby dismissed.
There shall be (N100,000.00) One Hundred Thousand Naira Costs in favour of the Respondents and against the Appellants jointly and severally.
HAMMA AKAWU BARKA, J.C.A.: I had before now read in draft the decision just read by my Lord JIMI OLUKAYODE BADA, JCA.
I fully agree and endorse the reasoning and the conclusions reached therein to the ultimate conclusion that the appeal lacks merit and is dismissed accordingly. I abide on order of costs made.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA obliged me with an advance copy of the judgment which has just been delivered.
In a perspicacious manner, every miniscule detail raised and involved in the appeal has been dealt with and resolved with remarkable sapience. I agree with his reasoning and conclusion that the appeal lacks merit. Therefore I equally join in dismissing the appeal. The judgment of Customary Court of Appeal, Edo State in Appeal No.CA/11A/2003 between GERMAN OMOROGBE & ORS vs. SAMUEL AJAYI & ORS. delivered on 22nd December, 2005 is affirmed. I subscribe to the consequential orders made in the lead judgment.
Appeal Dismissed.
Appearances
Mr. G. E. Ezomo with him are Osamede Osasa and O.OkhigbochieFor Appellant
AND
Miss I. IkpomwonbaFor Respondent
