HENRY OGBONNA & ANOR v. CHIEF SYLVESTER JUMBO & ORS
(2015)LCN/7754(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of January, 2015
CA/OW/202/2010
RATIO
EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHETHER TRADITIONAL EVIDENCE CAN BE USED TO ESTABLISH TITLE LAND AND HOW TO PROVE TRADITIONAL HISTORY
It has long been settled that one of the five ways to establish title to land in Nigeria is by traditional evidence. See the case of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC.227 and a host of other decisions on the subject.
It is also settled that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. See the cases of AKUNYILI vs. EJIDIKE (1996) 5 NWLR (Pt. 449) 381 at 417; BALOGUN vs. AKANJI (1988) 1 NWLR (Pt.70) 301 etc. But the traditional evidence must be such that it is consistent and properly links the plaintiff with the traditional history relied upon. For this, see the case of OWOADE vs. OMITOLA (1988) 2 NWLR (Pt. 77) 413. The plaintiff must prove his title to the land and this he has to do by tracing title to his ancestors both orally in Court, (-see section 45 of the Evidence Act, Cap. 112 LFN, 1990 on the issue,) and also in his pleadings to Court. Perhaps, what NWADIALO, F. learned author of: Civil Procedure in Nigeria, 2nd Edition at page 335 has to say on the subject, may be instructive. He said: “In such a case, the parties should plead the names and histories of the ancestors from whom they claim to have inherited the land in dispute, otherwise, evidence in this respect would not be allowed. The pleading and evidence should state facts about the founding of the land, the persons who have held title or a whom title has dissolved in respect of the land since the founding before the current claimants acquired control of it on behalf of the community. There must be averments as to the devolutions of land right from the original founder to the present claimants without leaving any unexplained or unexplainable gaps in the line of the successors. Without such averments, evidence of family history would be mere hearsay upon hearsay and therefore inadmissible”. per. FREDERICK O. OHO, J.C.A.
EVIDENCE: TRADITIONAL EVIDENCE; HOW TRADITIONAL EVIDENCE IS DETERMINED
As a final note on this issue, and as an introduction to the next issue to be considered in this matter, it may be appropriate to state at this stage, that the issue of traditional evidence is not determined by the demeanor of the witnesses but on a consideration of the activities of the parties in the exercise of their rights and decide whether these accord with the evidence of traditional history. See the case of MORONKEJI vs. ADEGBOSIN (2003) 8 NWLR (PT. 823) 612 AT 663. per. FREDERICK O. OHO, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT THAT ARE NOT PERVERSE
Where a trial Court therefore, unquestionably and competently evaluates the evidence and makes definite findings of fact, which are fully supported by evidence and are not perverse, it is not the business of the Appellate Court to substitute its views for those of the trial Court. What the Appellate Court is expected to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once the trial Court is found to have done a thorough job, the Appellate Court has no business interfering. See the cases of SANUSI vs. ADEBIYI (1997) 11 NWLR (PT. 530) 565 AT 583; OKINO vs. OBANEBIRA (1999) 13 NWLR (PT. 636) 535 AT 558; ISAAC GAJI vs. EMMANUEL PAYE (2003) LPELR- 1300 (SC). per. FREDERICK O. OHO, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND WHEN IS THE DECISION OF THE TRIAL COURT SAID TO BE PERVERSE
The position of the law no doubt is that the duty to make primary findings of fact by the evaluation of evidence before him is essentially that of the trial Court who has the added advantage of watching the demeanor of the witnesses testifying before the Court. But where the issue relates to the proper inference to be drawn from the facts proved the Appellate Court is in as good a position as the trial Court and will draw the proper inference naturally flowing from the facts so proved, particularly where no question of credibility of witnesses is involved. See the case of AKESSE vs. AKESSE (1935) 2 WACA 264 on the issue. See also the case of SOKWO vs. KPONGBO (2003) 2 NWLR (PT. 803) 111. What, however should be borne in mind in all cases, is that it is not only when there is no evidence to support a decision that it is termed perverse, but also when there is absence of proper evaluation of evidence and failure to draw appropriate inference to support a decision that it will also be termed perverse. This is even more so where the inference is so clear that no reasonable court or tribunal would have failed to draw them or where the inference drawn by the trial judge does not follow from the evidence or the conclusions that should reasonably follow from the finding of fact he made. See the observations of AYOOLA, JSC in the case of MOSES OKHUAROBO vs. CHIEF AIGBE (2002) 13 SCM 105 AT 133. See also the case of ADIELE IHUNWO vs. JOHNSON IHUNWO & ORS (2013) LPELR -20084 (SC) on the issue. per. FREDERICK O. OHO, J.C.A.
APPEAL: APPEAL AS OF RIGHT; ON WHAT GROUND SHALL APPEAL LIE AS OF RIGHT FROM THE DECISION OF A CUSTOMARY COURT TO THE CUSTOMARY COURT OF APPEAL
Of course, it has become a known position of law that, when Section 245(1) of the 1999 Constitution says:
“An appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any Civil Proceedings before the Customary Court of Appeal, with respect to any question of Customary Law…” per. ITA GEORGE MBABA, 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
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
1. HENRY OGBONNA
2. LAWRENCE AGUOCHA Appellant(s)
AND
1. CHIEF SYLVESTER JUMBO
2. ALPHONSUS OCHUKA
3. ATHANASIUS ONUOHA Respondent(s)
FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment): Before the Oguta Customary Court, Holden at Kalabari Beach Oguta II Imo State of Nigeria, in Suit with numbers CC/OG/16/92 and CC/OG/48/92, which were later consolidated on the orders of Court, the Appellants as Plaintiffs in the said suit No. CC/OG/16/92 claimed against the Respondent as follows:
“(a) Declaration that the Plaintiffs are entitled to the Customary Right of Occupancy of the disputed piece or parcel of land known as and called “ARUGO IKWERE MBELU” Situate at Mgbala Agwa within Jurisdiction.
(b) Interim injunction restraining the Defendants, their Agents and servants from further entry into the said land until the final determination of this suit.
(c) Perpetual injunction restraining the Defendants, their agents and servants from further entry into the said land.
In the meantime, in the second matter, with Suit No CC/OG/48/92 the Respondents as Plaintiffs claimed against the Appellants in the same Court as follows:
(1) Declaration that Plaintiffs are entitled to the Customary Right of Occupancy over the piece or parcel of land known as and called “NWAEBILI” situate at Mgbala Agwa.
(2) Perpetual injunction restraining the Defendants, their Servants, agents and privies from trespassing into the said land.
Upon the Court’s consolidation of the suits, the subject matter being one and the same, the Plaintiffs in suit No. CC/OG/16/92 became Plaintiffs in the consolidated suit while the Plaintiff in suit No. CC/OG/48/92 became Defendants. At the conclusion of the trial the lower Court gave judgment in favour of the Plaintiffs.
It is against that decision that the Defendants appealed to the Customary Court of Appeal, Holden at Owerri. The Customary Court of Appeal, in a unanimous decision, on the 19th day of July, 2001 gave judgment in favour of the Defendants up turning the decision of the Customary Court sitting at Oguta. The Plaintiffs being dissatisfied with the decision of the Customary Court of Appeal sitting at Owerri, has now appealed to this Court. There are seven (7) Grounds of Appeal, which without their particulars are reproduced as follows;
GROUNDS:
(1) The Customary Court of Appeal Owerri (hereinafter referred to as the “Lower Court” erred in law when it held that all the Amended Grounds of Appeal filed by the Defendants/Respondents (hereinafter referred to as the “Respondents”) raised questions or issues of Customary Law and therefore competent and thereby wrongly overruled the preliminary Objection of the Appellants.
(2) The lower Court erred in law when it stated thus; Before consolidation each side filed a suit in the Customary Court asking for a declaration of entitlement to Customary right of occupancy over the land in dispute. It is therefore not right to say that the lower Court was not to determine the matter according to the Customary law of the Area.
(3) The Lower Court misdirected itself in Customary Law when it wrongly found that the Appellant alleged pledge at the trial Court but did not prove the pledge.
(4) The Lower Court misdirected itself in Customary law when it held thus, “if it was Customary trusteeship, who were witnesses whether dead or alive…no effort was made to explain what Customary trusteeship mean and its applicability in Agwa Area. The Court refused to make any finding of fact on the this issue or even comment and the Customary trusteeship can only be traced not from record of proceedings but from the brief of Counsel for the respondents.
(5) The Lower Court erred in Customary law when it held that the Appellants did not prove entitlement to Customary right of Occupancy by Customary evidence of traditional history.
(6) The Lower Court erred in law when it re-evaluated the evidence on record when it has no jurisdiction to so re-evaluate.
(7) The Lower Court erred in Customary Law when it held that the various arbitrations between the parties were not binding on them because “the law allows either party to arbitration the right to accept or reject the verdict”.
All said and done, briefs of arguments were filed and learned counsel to the parties also made oral submissions in the course of adopting their briefs before Court. The Appellant’s brief of argument settled by J. A. Onyekwere Esq. dated 2-11-2010 and filed on the 17-5-2012. A total number of five (5) issues were distilled from the Seven (7) Grounds of Appeal for the Courts determination to wit;
1. Whether the lower Court was right to have over ruled the preliminary objection on jurisdiction- ground one.
2. Whether the lower Court will in all cases of claim of Customary right of occupancy assume jurisdiction to hear Appeal arising there from whether the Appeal is on issue of Customary law or not – ground two.
3. Whether the lower Court was right in its judgment on the non proof of pledge by the Plaintiffs/Appellants – grounds three and four.
4. Whether the Appellants proved their entitlement to Customary right of occupancy by Traditional evidence over the land in dispute – ground five.
5. Whether the Lower Court acted according to the law when it re-evaluated the Evidence on record and reversed the decision of the lower Court-ground six.
The Respondents’ brief of argument, settled by M. O. Nlemedim, Esq., who also formulated a number of (5) issues from the Grounds of Appeal as follows:
a. Whether the Grounds of Appeal filed in the Court below raised issues of Customary law- Grounds 1 and 2.
b. Whether the Appellants proved title to the land in dispute by traditional history which was the basis of their case-Ground 5.
c. Whether there was any legally binding Customary arbitration between the parties-Ground 7.
d. Was the Court below right in interfering with the findings of fact made by the trial Court which were manifestly perverse? Ground 6.
e. Whether the Appellants proved the alleged pledge and/or Customary trusteeship of the land in dispute- Grounds 3 and 4.
At the hearing of this Appeal on the 27-11-2014, Learned Appellant’s Counsel, J. A. Onyekwere Esq., adopted and relied on the Appellant’s brief of argument dated 2-11-2012 and filed on 19-12-2012. He urged the Court to allow the Appeal and set aside the decision of the lower Court.
The Respondent’s Counsel, M. O. Nlemedim. , Esq. adopted and relied on the Respondent’s brief of argument dated and filed on the 15-11-2013 and urged the court to dismiss the Appeal. He urged the Court to dismiss this Appeal and up hold the decision of the lower Court. What is important to be noted before anything else is the fact that this Appeal was taken out by the Appellant whose issues are clear and not confusing in any manner. The Respondents have taken so much pain to identify their own issues for determination and all of which are in tandem with the issues identified by Appellants. For this reason, this Appeal shall be disposed off on the basis of the issues identified by Appellant.
DETERMINATION OF APPEAL;
ISSUES ONE & TWO;
Whether the lower Court was right to have over ruled the preliminary objection on jurisdiction-
Ground one.
Whether the lower Court will in all cases of claim of Customary right of occupancy assume jurisdiction to hear Appeal arising there from whether the Appeal is on issue of Customary law or not – ground two.
The Appellants’ Counsel decided it was better to argue the issues one and two together, because of their related nature in terms of subject matter. According to Counsel when once the issue of competence of an Appeal is raised, the grounds of Appeal must be scrutinized to ascertain the nature of the questions in them and whether the questions fall within the four walls of the jurisdiction conferred on the Appellate Court. Counsel cited the case of DAKUR vs. WEDET (2005) ALL FWLR (PT. 278) 1116 AT 1131.
Counsel added that the jurisdiction of the Customary Court of Appeal of a State is derived from Section 282(1) of the 1999 Constitution. By this provision Counsel said that an Appeal from the Customary Court to the Customary Court of Appeal of a State must be on a question involving Customary Law otherwise such Appeal would be incompetent. Counsel further said that a decision is in respect of Customary law when the controversy involves a determination of what the relevant Customary Law is and the applicable Customary Law so ascertained to the question in controversy. According to Counsel, where the decision turns purely on facts or on questions of procedure, such decision is not in respect of a question of Customary Law. He cited the case of PAM vs. GWOM (2000) FWLR (PT. 1.) 1.
Counsel submitted that in the instant case after the trial Customary Court, Oguta delivered its judgment in favour of the Appellant, herein the Respondents through their Counsel filed a Notice of Appeal which contained five grounds of Appeal. The said Notice was later amended to contain an additional ground of Appeal. It was Counsel’s submission that the grounds of Appeal paraded before the Customary Court of Appeal did not stem from the ratio decidendi of the trial Customary Court’s the judgment. Counsel cited the authority of LIVESTOCK FEEDS PLC. vs. FUNTUA (2005) ALL FWLR (286) 753 AT 764. To this end, Counsel submitted that the Appellants at the Customary Court of Appeal, who are now respondents in this case raised a Notice of Preliminary Objection on the competence of the Grounds of Appeal at the lower Court and relied on section 282(1) of the 1999 Constitution and the definition of the expression; “Customary Law” in the case of PAM vs. GWOM (Supra). It was the further submission of Counsel that at the lower Court Grounds 1, 2 and 5 were hinged on issues of fact and evaluation of evidence, while Grounds 2, 4 and 6 raise issues of procedure or facts.
According to learned Counsel despite the lower Court’s findings that the Grounds of Appeal raised no valid grounds of Appeal, it still went ahead to give undue reliance to those Grounds, assumed jurisdiction to entertain the Appeal.
On the side of the Respondents herein, it is their contention that the six grounds of Appeal contained in the Amended Notice of Appeal shows that the grounds were competent as filed before the lower Court. Counsel contended that Grounds 1 and 2 complained of inexplicable rejection of credible and unchallenged evidence of the Respondents’ witnesses on traditional history of the land. While Ground 3 complained of misdirection on the part of the trial Court on Customary Arbitration and that Grounds 4, 5, and 6 question the judgment of the lower Court awarding the parcel of land in dispute to the Appellants who did not prove their case at all. It was learned Counsel’s argument that the mere reliance on traditional evidence in the contest for ownership of the land in dispute is sufficient enough reason to clothe the Grounds of Appeal with substantial issues of Customary Law. Counsel cited the cases of BEGHA vs. TIZA (2000) 4 NWLR (PT. 652) 193 AT 206 and also the case of OKERE vs. NWAIGWE (2002) FWLR (PT. 127) 1101 AT 1115-1116, on the subject.
ISSUE THREE;
Whether the lower Court was right in its judgment on the non proof of pledge by the Plaintiffs/Appellants – grounds three and four
Learned Appellants’ Counsel drew attention to the Appellants’ Claims at the trial Court contained at page 1 lines 12-22 of the records of Appeal. According to Counsel, the evidence of the Appellants both in chief and under cross examination especially that of the PW1 were largely misunderstood. According to Counsel the claims of the Appellants had nothing to do with pledge and that the lower Court misdirected itself on the issue. Counsel added that there was deviation in the presentation of the case of the Appellants at the trial Court as the PW1 in his evidence maintained that the land was farmed by Atumaegwu Ezeani his Grand Father and that when he had trouble he gave the land to Onuegbu Duru to look after it on behalf of his Children and himself. That the arrangement was that the parcel of land be returned when his Children become of age. He said that the sons of Atumaegwu later approached Iwuji Duru and his sons when they had become of age, to take back the land and Counsel next referred Court to page 14 of the records lines 14-20 and stated that even with regards to that issue, the parties never joined issues on any question of a transaction involving the parcel of land in dispute.
Counsel as a result of this contended that it was wrong for the lower Court to impute the question of pledge in a transaction where it was never an issue and therefore requiring the Appellants to prove a pledge transaction. Counsel contended that the action of the lower Court to so do amounted to speculation on its part. Counsel cited the authority of TANKO vs. NONGHA (2005) ALL FWLR (PT. 286) 776 AT 787. Counsel said that the lower Court, in trying to balance out the issues also at some point queried whether the transaction was one of Customary trusteeship, and that if so, who were their witnesses whether dead or alive. See page 109 lines 22-24 of the records.
Counsel contended that the evidence of giving land was not one that was challenged, rather that the DW1 referring to the parcel of land in dispute said; during the time of Ukwu, he divided that said land into two parts and planted boundary trees, took one part of the land for himself and left the other half for Durumonye”. It was further contended on behalf of the Appellants that learned Counsel’s argument on the issue of Customary trusteeship is not fresh evidence on the case and that whether that explained what Customary trusteeship is and its applicability in Agwa Area as demanded by the lower Court is neither here nor there. It was further contended on behalf of the Appellant that sufficient evidence was led at the lower Court to entitle it to judgment but that the lower Court rather preferred to rely on speculation when it reversed the decision of the lower trial Court and held that the evidence of the PW1 and his witnesses fell short of the requirement of the law to entitle him to a declaration of title in his favour.
It was contended on behalf of Appellants that the manner of construing decisions of Customary Courts is largely different from the manner of construing decisions of the High Court. Whereas the watchword in decisions of the Customary Court is always “substantial Justice”, it is not exactly the same in the case of the High Courts. According to Counsel where the decision of the Customary Court arrives at a reasonable decision which native customs and sentiments can accept, such is right and should not be lightly tampered with. He cited the cases of EFI vs. EYINFUL (1954) 14 WACA 424; EKPO vs. UFONG (1990) LRCN 1473 in support. According to learned Counsel this accords with Section 21 of the Imo State Customary Court Edict No. 7 of 1984 and also Order x Rule 6(1) of the Imo State Customary Court Rules 1989. Counsel said that the trial Court was therefore right in refusing to make any findings of fact on the issue of pledge or Customary trusteeship as they were not issues before the Court. On the part of the Respondents it is their contention that what made the difference in all these back and forth arguments on the issue of pledge of land or no pledge, is the evidence of the PW1 where he stated under cross examination at page 15 lines 15-16 of the record of Appeal thus; “when Opara Onyewuchi was the head of the family, in company of some others went to the Respondents’ family ‘for redemption of that land’. According to Counsel the word; “Redemption” signifies that what was contemplated was a pledge transaction. Counsel cited in support the cases of EJINYI vs. ADIO (1993) 7 NWLR (PT. 305) AT 330 – 331; ONYEMAECHI vs. NWAOHAMUO (1992) 9 NWLR (PT. 265) 372 AT 382.
Appellants having failed to prove that the pledge took place in the presence of witnesses, Counsel submitted that the Appellants failed woefully to prove an essential ingredient and as well as the amount for which the land was allegedly pledged. Counsel cited the cases of AKUCHIE vs. NWAMADI (1992) 8 NWLR (PT. 258) 214 AT 226 and CHRISTIAN IROEGBU vs. NDUBUISI AMAKULO MPAMA & ORS. (2010) ALL FWLR (PT. 549) 1116 AT 1146-1147 in support.
ISSUE FOUR;
Whether the Appellants proved their entitlement to Customary right of occupancy by Traditional evidence over the land in dispute – ground five.
Learned counsel argued that even though traditional history is one of the ways of proving title/ownership of land one should however not mistake the fact that there is a world of difference between High Court and Customary Court proceedings and that proceedings at the Customary Court should be given a wide latitude. He said that at the trial Customary Court, it was the contention of the Appellants that they proved their entitlement/ownership of the land in dispute. Counsel referred to the evidence of the PW1 at pages 14 and 15 of the records of proceedings and the arguments of Counsel on pages 71-75 of the records of proceedings. According to Counsel, it is clear from the evidence of the PW1 that the question of who deforested the parcel of land in dispute was clearly addressed together with how the parcel of land devolved to the present generation was also taking in its stride. Counsel further contended that in comparing the evidence of the DW1 with that of PW1, on the issues involved, that there was no specific challenge on the giving out of the land to their Grandfather by the Grandfather of the Appellants.
According to Counsel, the trial Customary Court properly evaluated the evidence at the close of hearing and came up with its findings. He added that the trial Customary Court disbelieved the DW1 in accordance with Order X Rule 6(1) of the Imo State Customary Court Rules, 1989, which empowers the trial Customary Court to decide on preponderance of evidence which it believes.
Learned Counsel further argued that in line with Order X Rule 6(1) referred to above, one of the functions of the trial Customary Court is to ascribe credibility to the witnesses testifying before it and attach probative value to the evidence of those testifying before it, an advantage which the Appellate Court does not have so long as it does not watch the witnesses testify and judge them by seeing their demeanor. Counsel cited the case of NNADOZIE vs. MBAGWU (2008) ALL FWLR (PT. 405) 1613 AT 1627 (SC). Counsel said that the lower Court not having faulted the findings of fact of the trial Customary Court, it was wrong for it to say that it preferred the evidence of DW1 contrary to the assessment of that evidence by the trial Customary Court. Counsel added that what the lower Court did does not fall within its competence but that of the trial Customary Court and that it is not the law that the lower Court will rely on the same evidence of DW1 and overturn the decision of the trial Customary Court. Counsel cited the case of DIKE vs. OKONKWO (2008) ALL FWLR (PT. 404) 1571 AT 1580 in support.
Counsel further contended that the lower Court as an Appellate Court did not follow the proper procedure in construing the evidence of a trial Court. He referred to the case of ADEBAYO vs. A. G. OGUN STATE (2008) ALL FWLR (PT. 412) 119 AT 1211, where the Supreme Court said that in order to pick faults in a judgment of a trial Court, an Appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An Appellate Court cannot allow an Appellant to read a judgment in convenient installments to undertake or run down the judgment. Counsel further said that while an Appellate Court can concede to Counsel the right to be partisan to the case of his client, the Court will not allow him to construe a judgment parochially since the judgment is available to the Court for construction.
It is also submitted that in considering the judgment of a Native or Customary Court on Appeal, it is the duty of an Appellate Court to look at the evidence of the parties as well as the judgment as a whole in order to decide whether or not the trial Court was right or wrong in its decision. Counsel cited the case of OMOTAYO vs. AYODELE (1993) 8 NWLR (PT. 314) 717 AT 732; DAKUL vs. SAMBO (2006) ALL FWLR (PT. 295) 746. It was Counsel’s submission that in the instant case, the trial Customary Court fully demonstrated that it understood the case and precise nature of the title claimed by the Appellants and became satisfied by the evidence of the Appellants that they have proved ownership of the land in dispute. Counsel cited the case of INYANG vs. REGISTERED TRUSTEES F.C.G.C. (2006) ALL FWLR (314) 278 AT 297-298. Counsel submitted that in construing the judgment of a Customary Court the watch word should be “substantial Justice” and should not be tampered with if arrived at a decision which native customs and sentiments can accept, it should not be disturbed.
On the part of the Respondents Counsel contended that the Appellants’ PW1 contradicted himself under cross examination at page 15 lines 22-25 of the records of Appeal when he said; “Our Kindred is Umuokeisama. The land was given to Umuokeisama by Ezeala our ancestor. I do know that Ezeala deforested the said land before giving it to us. When Mgbala people and Obokofia Egbema had their land dispute, I do not know if Ezeala was alive at that time”. According to Counsel for the Respondent, what the PW1 was saying in essence was that the land in dispute was a direct gift from Ezeala to Umuokeisama kindred. According to learned Counsel this was not possible and contrary to reason. Counsel queried whether Appellants’ ancestor Ezeala could have made a gift inter-vivos to a kindred that was not in existence at the time the ancestor was alive?
Counsel further contended that the Appellant at the trial Court did not satisfy the conditions for a declaration of title to land by traditional history and went ahead to highlight a few issues which were not resolved by Appellants in the quest to establish their title to the parcel of land in dispute, as follows; for instance, what was the relationship between Otumegwu Ezeani who allegedly pledged the land in dispute and Ezeala who deforested the land? How did the land get to the Appellants on record? Who was the father of Atumegwu whose sons, Opara Onyewuchi and Ogbonna Ajujumba, allegedly went to redeem the land from Iwuji Duru and Jumbo Agbugba? Could Ezeala, Appellants’ Kindred ancestor, have given the land to the Appellants’ kindred Umuokesiama? What was the relationship between Ezeala and Umuokesiama? Counsel cited the case of ONYENWEUZOR vs. OPUSUNJU (2001) FWLR (PT. 38) 1292, on the need for the Plaintiff to rely on the strength of his case and not on the weakness of the defense in an action for declaration of title to land.
On the other hand, DW1 (1st Respondent) counsel said, gave a very clear and un-contradicted evidence of how the Respondents became owners of the land in dispute. He was said to have stated that their ancestors, Duruonye deforested the land in dispute known as “NWAEBELI” situate at Mgbala Agwa. And that at the death of Duruonye, his first son, Igwe Obi took over the land and after Obi, Onuoha took over and after Onuoha the land devolved on Achilugba, then to Kamalu then to Ameachi to Ukwu and then to DW1’s father, Nze Jumbo Agbugba who was alive at the time of the proceedings. According to Counsel, the DW1 was emphatic as to the fact that Onuegbu Duru was never at anytime their Head of Family and that the Appellants first started laying claims to the land in dispute only in 1992. He referred Court to page 19 of the records of Appeal. Counsel further stated that the traditional evidence given by the Respondents was neither challenged nor contradicted and that the lower Court was perfectly right to have accepted same as established. He cited the cases of OBINECHE vs. AKUSOBI (2010) ALL FWLR (PT. 533) 1839; MUNIYAS (NIG.) LTD vs. ASHAFA (2012) ALL FWLR (PT. 642) 1772; OGUNYADE vs. OSHUNKEYE (2007) ALL FWLR (PT. 389) 1179 all in support.
It was Counsel’s further contention that at the trial Court the Appellants admitted that the Respondents were in possession and that have been in possession for very long time. He referred to page 25 lines 1-5 of the records of Appeal. On account of this position Counsel contended that until the Appellants are able to establish their title to the land which they failed to do, they cannot invoke the powers of the Court to disturb the Respondents’ possession and prevent them however temporarily from enjoying the land. He cited the cases of OPARA vs. DIALA (1992) 1 NWLR (PT. 217) 297 AT 304; UWAKWE vs. ODOGWU (1989) 5 NWLR (PT. 123) 562.
On the question of the conflicting and incredible evidence given by the Appellant, Counsel contended that the puzzle of whether the Appellants inherited the parcel of land from Ezeani or whether a direct gift from Ezeala was never solved.
ISSUE FIVE;
Whether the Lower Court acted according to the law when it re-evaluated the Evidence on record and reversed the decision of the lower Court-ground six.
Learned Appellants’ Counsel on this issue contended that the demeanor of witnesses and the ascription of weight to the evidence of witnesses is the exclusive preserve of the trial Court and therefore thus, precluding the intrusion of the Appellate Courts. Counsel contended that in the instant case, the Lower Court interfered in the evaluation of evidence of the parties at the trial Court by revaluating same and came up with the conclusion where the Court said; “I prefer the evidence of DW1 on traditional History of the land in dispute and I hold he proved his case and was entitled to judgment on his writ as per claim”.
Counsel further contended that evidence of parties are not re-evaluated by an Appellate Court as a matter of course except where the trial Court has failed to discharge its duty or had done it wrongly. In the instant case, the contention at the lower Court was not that the trial Court failed in its duty in evaluation of evidence but on that the quality of evidence of the Appellants, which they said fell short of the requirements under which an Appellate Court would be entitled to re-evaluate evidence as required under the law. Counsel cited the authorities of MAKINDE vs. AKINWOLE (2000) 74 LRCN 137 AT 150; and ALLI vs. ALESINLOYE (2000) 77 LRCN 742 AT 791 in support of his contentions. With the lower Court getting involved in the evaluation of evidence, Counsel contended that the impression one gets is that the Appellants’ ancestors was in trouble when he approached the ancestors of the Respondents and handed over the land to them. Counsel queried; that if the transaction was a pledge, what was the value and that who were the witnesses? He said that if it was a pledge, then it was not proved as required by law to entitle Respondents to a Declaration. Counsel further said that the speculation embarked upon by the lower Court was borne out of Counsel’s address which bothered on the issues of pledge/customary trusteeship which were issues that never came up before the trial Court. It was the submission of Counsel that where the findings of the trial Court are supported by evidence, there will be no legal basis for the Appeal Court to interfere or disturb the findings. Learned Counsel drew a distinction between findings of fact based on the credibility of witnesses and findings of fact based on an evaluation of evidence which has been accepted. In the latter case, an Appellate Court is in as good position to evaluate the evidence as the Court of trial would have done. He cited the cases of INYANG vs. REGISTERED TRUSTEES, FCGC (2000) ALL FWLR (PT. 314) 278 and FASHONU vs. ADEKOYA (1974) 1 ALL NLR (PT. 1) 35. In the instant case, Counsel contended that what has come into effect is the finding of fact based on credibility of witnesses that is in issue and not the evaluation of evidence which has been accepted. Counsel further contended that as a result of this position, the lower Court was therefore wrong to have re-evaluated the evidence of the parties based on the principle of law that findings of fact when it relates to demeanor of witnesses and ascription of weight is the exclusive preserve of the trial Court and not that of the Appellate Court. Counsel also contended that the fact that the trial Court did not give reasons for disbelieving the DW1 was not sufficient enough reason to vitiate the judgment of the trial Court based on the provisions of ORDER X 6 (1) of the Imo State Customary Court Rules 1989. Counsel finally urged the Court to set aside the decision of the lower Court and restore the decision of the trial Court.
On the part of the Respondents, the response of Counsel is that the primary responsibility of evaluation of evidence is that of the trial Court but that where the trial Court abdicates its responsibility or has not taken a proper advantage of having seen and heard the witnesses testify, then the matter moves into the realm of the Appellate Court to evaluate the evidence provided the evaluation does not involve credibility of witnesses. Counsel cited the cases of CHRISTIAN IROEGBU vs. NDUBUISI AMAKULO MPAMA & ORS (2010) ALL FWLR (PT. 549) 1116 AT 1147. But Learned Counsel quickly contended that where the issue in controversy is predicated on matters of inference to be drawn from established facts on record of the trial Court not based on the credibility of witnesses as a result of their demeanor in Court or the impression of them by the Court, the Appellate Court is in as good a position as the trial Court to evaluate evidence which has been given in a case and the Appellate Court must not hesitate to evaluate such evidence and the necessary irresistible inference that can be drawn from the proved facts. In support of this position, Counsel referred Court to the case of NNORODIM vs. EZEANI (2001) FWLR (PT. 40) 1696; ADEYE vs. ADESANYA (2001) FWLR (PT. 41) 1849; OLATUNDE vs. ABIDOGUN (2001) 92 LRCN 3214.
Counsel contended that the trial Court having failed to properly evaluate the evidence on record and having misapplied the legal consequences of the evidence on record, the Court below was right to have interfered with the findings of the trial Court which were grossly perverse. He said that the use of; “I believe”, “I do not believe” does not indicate proper evaluation of evidence. Counsel cited the cases of NWACHUKWU vs. ONUOHA (1995) 9 NWLR (PT. 412) 603 AT 618 – 619; KARIBO vs. GREND (1992) 3 NWLR (PT. 230) 426 AT 442. Learned Counsel further contended that in the event that the trial Court has failed to do a proper evaluation of the evidence before it the Appellate Court would be justified in evaluating evidence where it does not involve the credibility of witnesses. He further contended that the Appellate Court is not to abdicate its responsibility or merely rubber stamp the error of the lower Court but to intervene and do justice required. Counsel cited the case of JONAH TAMUNO & ORS vs. COMMISSIONER OF POLICE (2010) ALL FWLR (PT. 538) 921 in support.
RESOLUTION OF ISSUES;
The issues one and two argued together deal with the issue of the jurisdiction of the Customary Court of Appeal with regards to the hearing of Appeals emanating from the Customary Courts. The argument of Appellants’ Counsel on the issue is that the jurisdiction of the Customary Court of Appeal of a State is derived from Section 282(1) of the 1999 Constitution. And that by this provision, Appeals from the Customary Court to the Customary Court of Appeal of a State must be on questions involving Customary Law otherwise such Appeals would be incompetent. Counsel further said that a decision is in respect of Customary law when the controversy involves a determination of what the relevant Customary Law is and the applicable Customary Law so ascertained to the question in controversy.
The Respondents on their part contented that the six grounds of Appeal contained in the Amended Notice of Appeal were competent. According to Counsel, Grounds 1 and 2 complained of inexplicable rejection of credible and unchallenged evidence of the Respondents’ witnesses on traditional history of the land. While Ground 3 complained of misdirection on the part of the trial Court on Customary Arbitration and that Grounds 4, 5, and 6 question the judgment of the lower Court awarding the parcel of land in dispute to the Appellants who did not prove their case at all. It was learned Counsel’s argument that the mere reliance on traditional evidence in the contest for ownership of the land in dispute is sufficient enough reason to clothe the Grounds of Appeal with substantial issues of Customary Law.
Perhaps, the question to address here is how one determines when an Appeal raises a question of Customary Law. AGUBE, JCA in a recent unreported judgment of this Court in Appeal No. CA/PH/109/2008 between has this to say, and I have every cause to agree with him; He said:
“… I am of the candid view that this court can only answer this question by looking at the claim of the Appellant or Respondent as the case may be in the lower court, the Evidence led there at and the entire proceedings based on the issues court should also subject the judgment appealed against the Grounds of Appeal and issues for determination as formulated from the Grounds to careful scrutiny in order to so determine the competence of the Appeal.”
With this at the background, it may be necessary to begin first, by examining if only in a nut-shell, the facts of this case. At the Oguta Customary Court, Kalabari Beach, Oguta ii Imo State, Nigeria the Appellants as Plaintiffs instituted an action in which they sought the lower Court’s Declaration of title to a piece of land called; “ARUGO IKWERE MBELU”; perpetual injunction against the Respondents as Defendants. From the evidence adduced by the parties and their witnesses before the trial Customary Court, it is glaring that the substance of the matter before that Court was inheritance and ownership of land under Customary law, and the handing over of the disputed parcel of land by the ancestors of the Appellants to the ancestors of the Respondents resulting in a relationship which the Customary Court of Appeal later construed to be a Pledge.
While the Respondents as Defendants on the one hand had contended that the disputed piece of land was deforested by their ancestor called “Duruonye” and had since devolved on his descendants who are the present Respondents without any interference from any one that the Appellants only started laying claims to the parcel of land in 1992. In a well considered judgment, the trial Customary Court gave judgment in favour of the Appellants as Plaintiffs.
Aggrieved by the trial Customary Court’s decision, the Defendants as Appellants, appealed to the Customary Court of Appeal of Imo State, sitting at Owerri vide an Amended Notice of Appeal containing six (6) Grounds. A careful scrutiny of these grounds and their attendant particulars may not readily reveal that the grounds and their particulars raise questions of customary law but the fact must be borne in mind that the cases of the parties presented before the trial Court was one which raised substantial questions of Customary law when the parties sought to establish their claims to the parcel of land in dispute through traditional evidence. It will therefore not be right to suggest that the trial Court was not to determine the matter according to the Customary law of the Area as decided by the lower Court when this issue was raised before it.
The Ground one for instance complains of the refusal of the trial Customary court to believe the traditional History of the DW1. The particulars, five (5) in numbers complain of the problems of lack of proof of the root of title, contradictions, possession and other evidential deficiencies in the claims of the Respondents. In the case of GOLOK vs. DIYALPWAM (1990) 3 NWLR (PT.) the Supreme Court, per UWAIS, JSC was of the view that a ground which complains of a failure to prove a case was a matter of law and that under Section 224(1) of the 1979 Constitution, there was a right of Appeal without leave.In short, based on the decision of this Court, in the case of OKERE vs. NWAIGWE (Supra), it will be difficult not to hold that the grounds canvassed before the lower Court were not all competent. It must be carefully observed that the grounds of Appeal in question must have raised questions of law which relate to some aspect of Customary law which the trial Court or Area Court had jurisdiction to apply.
Indeed, it is for this reason precisely that the question of asking that a careful look at the claim of the Appellant or Respondent as the case may be in the lower court had been prescribed by this Court. To make assurance doubly sure, the Evidence led there at and the entire proceedings based on the issues before the trial court, should also, subject to the judgment appealed against the Grounds of Appeal and issues for determination as formulated from the Grounds are to be careful scrutinized in order to so determine the competence of the Appeal. I cannot therefore, in all honesty agree with learned Appellant’s Counsel that the grounds raised before the lower did not meet with the prescribed requirements under section 282(1) of the 1999 Constitution of Nigeria (as amended).
In respect of issue three what was canvassed was the issue of whether or not the parcel of land in dispute was subject of a pledge transaction. The lower Court was of the view that it was and faulted the trial Court on the issue for not requiring the Appellants to prove the elements of a pledge transaction before finding for them. The lower Courts decision had been based on its perception of the evidence of the PW1 at the trial Court elicited under cross examination when the PW1 said in answer to a question, thus;
“…Atumegwu gave the land to Onuegbu who invited his two brothers and they started to farm on it. When Opara Onyewuchi was the head of our family, he sent Alele Ukaeje, Ejiogu Ahamefula and Amanfor Nwaogaraku to Iwuji Duru and his brothers for the redemption of the said land. Ukwu was the head of Duru family when my people went for the redemption of that land.”
Apart from the issue of redemption it is important to note that the lower Court did take into consideration other factors in deciding the way the court did and which I find very difficult to fault. The lower Court’s analysis on the issue at page 109 of the records of Appeal is exactly instructive in this regard. The Court had said;
“…Counsel for the Appellants (that is the Respondents in this Appeal) has argued in his brief that if this was a pledge it was not proved. Counsel for the Respondents (that is the Appellants in this Appeal) has argued in his brief that it was no pledge but Customary trusteeship. It is pertinent to note however that the initial impression one gets is that the Respondents’ ancestors was in trouble and approached the ancestors of the Appellants and handed over the land to them. If it was pledge was it- what was the value and who were the witnesses. If it was a pledge I hold it was not proved as required by law to entitle Respondents to a declaration. If it was Customary trusteeship- who were witnesses whether dead or alive. The Appellants have been in possession. Except the PW1 who said his grandfather farmed on it before parting with the land no other witness seem to support the case of the Plaintiffs. No effort was made to explain what Customary trusteeship is and its applicability in Agwa area. The Court refused to make any finding of fact on this issue or even comment the Customary trusteeship can only be traced not from the records of proceedings but from brief of Counsel for the Respondents. I hold that the evidence offered by PW1 and his witnesses fell short of the requirement of the law to entitle him for a declaration”.
I have earlier said that I am unable to fault the analysis of the lower Court on the issue, the Court having taken its time to do a thorough analysis. The issue three is resolved in favour of the Respondents.
On issue four dealing with the issue of whether Appellants succeeded in their traditional History in proving their Claims to the parcel of land in dispute, it may be appropriate to begin by asking whether the Appellants were able to discharge the burden placed on them in that respect. In other words, was traditional history established by the Appellants to entitle them to a declaration of title in their favour? While the trial Court was of the view that the Appellants as Plaintiffs did establish their traditional history, the lower Court was of a different opinion. The complaint raised by the Appellants that the lower Court was not under the law expected to take over and conduct a re-evaluation of evidence is an entirely different issue which shall be taken up by this Court at the appropriate time, but at this stage, what seem to come up for determination is whether the Appellant as Plaintiff succeeded in establishing its traditional history as expected.
It has long been settled that one of the five ways to establish title to land in Nigeria is by traditional evidence. See the case of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC.227 and a host of other decisions on the subject.
It is also settled that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. See the cases of AKUNYILI vs. EJIDIKE (1996) 5 NWLR (Pt. 449) 381 at 417; BALOGUN vs. AKANJI (1988) 1 NWLR (Pt.70) 301 etc. But the traditional evidence must be such that it is consistent and properly links the plaintiff with the traditional history relied upon. For this, see the case of OWOADE vs. OMITOLA (1988) 2 NWLR (Pt. 77) 413. The plaintiff must prove his title to the land and this he has to do by tracing title to his ancestors both orally in Court, (-see section 45 of the Evidence Act, Cap. 112 LFN, 1990 on the issue,) and also in his pleadings to Court. Perhaps, what NWADIALO, F. learned author of: Civil Procedure in Nigeria, 2nd Edition at page 335 has to say on the subject, may be instructive. He said:
“In such a case, the parties should plead the names and histories of the ancestors from whom they claim to have inherited the land in dispute, otherwise, evidence in this respect would not be allowed. The pleading and evidence should state facts about the founding of the land, the persons who have held title or a whom title has dissolved in respect of the land since the founding before the current claimants acquired control of it on behalf of the community. There must be averments as to the devolutions of land right from the original founder to the present claimants without leaving any unexplained or unexplainable gaps in the line of the successors. Without such averments, evidence of family history would be mere hearsay upon hearsay and therefore inadmissible”.
To support this position the learned author cited with approval, a number of decided cases on the subject, some of which are:
– AKINLOYE & ANOR vs. EYIYOLA (1968) NMLR 92.
– PIARO vs. TENALO (1976) NSCC 700 at 705.
– UCHENDU vs. OGBONI (1999)4 SCNJ 64 at 78 and
– ALLI vs. ALESHOLOYE (2000) 4 SCNJ 264 at 306-308.
The records at page 109 showed the attitude of the lower Court on the issue which this Court had earlier referred to and which this Court also could find no reasons to fault. The lower Court was simply not impressed with the position of the Appellants as Plaintiffs in the trial Court who gave evidence that their ancestors handed the parcel of land in dispute to the ancestors of the Respondents as Defendants in the trial Court under an arrangement they termed; “Customary trusteeship”, but brought no evidence of witnesses either dead or alive who could corroborate their claims. Perhaps, to make their case worse, they made no efforts to explain what the concept of “Customary trusteeship” is and its applicability in Agwa area. Above all else, the trial Court refused to make any finding of fact on this issue or even comment on what the concept was all about and why it considered it applicable to the case of the parties.
I simply find myself unable to fault the lower Court on the issue. Here is a situation where the case of the Appellants as Plaintiffs had been hinged on some unsubstantiated evidence of the PW1 who told the Court that their ancestors handed over the parcel of land in dispute to the ancestors of the Respondents as Defendants when their ancestors ran into some trouble. What sort of trouble strong enough to cause their ancestor into relinquishing his hold on the land to the ancestors of the Respondents was not disclosed. To the consternation of all, rather than ask for the return of the parcel of land in dispute, the PW1 under Cross-examination, found himself speaking of the “Redemption” of the parcel of land in dispute. The word “Redemption” the con under which it was used simply means the buying back of something and I can hardly fault the lower Court on this issue as well.
Perhaps, the question to ask here is why was it necessary to redeem a parcel of land freely handed over? I simply cannot in view of the muddled up case of the Appellants on the issue decide this issue in their favour. It is resolved in favour of the Respondents. As a final note on this issue, and as an introduction to the next issue to be considered in this matter, it may be appropriate to state at this stage, that the issue of traditional evidence is not determined by the demeanor of the witnesses but on a consideration of the activities of the parties in the exercise of their rights and decide whether these accord with the evidence of traditional history. See the case of MORONKEJI vs. ADEGBOSIN (2003) 8 NWLR (PT. 823) 612 AT 663.
On issue five dealing with the question of the lower Court’s re-evaluation of evidence given by parties at the trial Court, the general principle of law is that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses taking into consideration their demeanor and other observable attributes displayed in the course of their testimonies. Where a trial Court therefore, unquestionably and competently evaluates the evidence and makes definite findings of fact, which are fully supported by evidence and are not perverse, it is not the business of the Appellate Court to substitute its views for those of the trial Court. What the Appellate Court is expected to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once the trial Court is found to have done a thorough job, the Appellate Court has no business interfering. See the cases of SANUSI vs. ADEBIYI (1997) 11 NWLR (PT. 530) 565 AT 583; OKINO vs. OBANEBIRA (1999) 13 NWLR (PT. 636) 535 AT 558; ISAAC GAJI vs. EMMANUEL PAYE (2003) LPELR- 1300 (SC).
Perhaps the question to address here is whether the lower Court’s re-evaluation of evidence given by parties at the trial Court and the subsequent upturning of the Court’s findings of fact are justified in the circumstances of this case. The grouse of learned Appellant’s Counsel on the issue is that the lower Court’s interference dealt with the credibility of witnesses which was not supposed to be. Counsel contended that as a result, the lower Court was therefore wrong to have dealt with issues bothering on the demeanor of witnesses and ascription of weight to their evidence. Counsel also expressed misgivings that the lower Court could vitiate the judgment of the trial Court simply because it gave no reasons for disbelieving the evidence of the DW1 in view of the provision of Order X 6(1) of the Imo State Customary Court of Rules 1989.
The position of the law no doubt is that the duty to make primary findings of fact by the evaluation of evidence before him is essentially that of the trial Court who has the added advantage of watching the demeanor of the witnesses testifying before the Court. But where the issue relates to the proper inference to be drawn from the facts proved the Appellate Court is in as good a position as the trial Court and will draw the proper inference naturally flowing from the facts so proved, particularly where no question of credibility of witnesses is involved. See the case of AKESSE vs. AKESSE (1935) 2 WACA 264 on the issue. See also the case of SOKWO vs. KPONGBO (2003) 2 NWLR (PT. 803) 111. What, however should be borne in mind in all cases, is that it is not only when there is no evidence to support a decision that it is termed perverse, but also when there is absence of proper evaluation of evidence and failure to draw appropriate inference to support a decision that it will also be termed perverse. This is even more so where the inference is so clear that no reasonable court or tribunal would have failed to draw them or where the inference drawn by the trial judge does not follow from the evidence or the conclusions that should reasonably follow from the finding of fact he made. See the observations of AYOOLA, JSC in the case of MOSES OKHUAROBO vs. CHIEF AIGBE (2002) 13 SCM 105 AT 133. See also the case of ADIELE IHUNWO vs. JOHNSON IHUNWO & ORS (2013) LPELR -20084 (SC) on the issue.
In the present case, despite the muddled up case put up by the Appellants as Plaintiffs before the trial Court, the trial Court still went ahead to “disbelieve” the evidence of DW1, who obviously had a traditional history which seemed unassailable in preference to that of the PW1, who in one breath talked of his ancestor handing over the parcel of land in dispute without more to the ancestor of the DW1 and in another breath talking of their attempts to “Redeem” the said parcel of land and under circumstances which did not seem clear to the lower Court. This Court is however, simply unable to fault the lower Court to have in the circumstances decided to have gone ahead to re-evaluate evidence as the Court had done. This Court for a very long time, no longer treats with sanctity, the trial Court’s use of the words; “I believe or do not believe” when evaluating evidence before it. Where a trial Court fails to make proper use of the advantage of a witness before it, the Appellate Court will not hesitate to review the facts involved. That is what has happened in the instant case and this Court is not in any position to fault the lower Court on the issue. See the case of BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR -786 (SC). In the case of SUNDAY ONUOHA vs. THE STATE (1989) LPELR -2704 (SC) the Supreme Court, per OPUTA, JSC had this to say on the subject;
“… There is no magic in the words ‘I believe’ or ‘I do not believe’. These words will not and cannot turn an apparent falsehood into truth and vice versa. Belief and disbelief should really represent a fair and impartial appraisal of all the facts and surrounding circumstances of any given case. They should represent the Court’s reaction not only to facts but also to possibilities and probabilities naturally arising from those facts. If a trial Court chooses to believe an impossible or improbable story, an Appellate Court has a duty to reverse any decision based on such belief”…
Arising from the foregoing, this Appeal fails and it is accordingly dismissed.
Parties to bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to be availed the Lead Judgment of my learned brother, F.O. Oho, JCA, which characteristically has done justice to the issues raised in the Appeal. I agree completely with his reasoning and conclusion that the Judgment of the lower Court is unassailable and I adopt the stand taken by my learned brother on all the issues as mine. I shall therefore dismiss the Appeal also for being unmeritorious and abide by the order as to Costs.
ITA GEORGE MBABA, J.C.A.: I have read the draft copy of the lead Judgment of my learned brother Fred O. Oho JCA just delivered, and I agree with his reasoning and conclusions. I have nothing to add, except to say that the Appellant on issues 1 and 2 appear to have wrongly lifted the Judicial Interpretation of Section 245(1) of the 1999 Constitution (as amended) relating to appeals from Customary Court of Appeal to the Court of Appeal, to apply to Section 282(1) of the 1999 Constitution, which apply to appeals from the Customary Court to the Customary Court of Appeal.
Of course, it has become a known position of law that, when Section 245(1) of the 1999 Constitution says:
“An appeal shall lie from decision of the Customary Court of Appeal to the Court of Appeal as of right in any Civil Proceedings before the Customary Court of Appeal, with respect to any question of Customary Law…”
It means, that right of appeal in civil proceedings, from the decisions of Customary Court of Appeal to this Court (Court of Appeal), exists only with respect to questions of Customary Law. See Pam vs Gwom (2000) FWLR (Pt.1) 1, cited and relied upon by the Appellant. See also the recent decisions of the Court in Okorie vs. Chukwu (2014) LPELR 23744 CA, where we held:
“…as per the decided authorities from the Supreme Court, the position of the Apex Court on issues of appeals from the Customary Court of Appeal to the Court of Appeal is that this court is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for the construing of issues of Customary Law, simplicia…”
I am not aware of any such interpretation of Section 282(1) of the 1999 Constitution, which says:
“A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law”
Of course, subsection (2) of the Section 282 of the Constitution also says:
“For the purpose of this Section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by a law of the House of Assembly of the State for which it is established.”
Section 55(1) of the Customary Courts Law of Imo State provides the jurisdiction of the Customary Court of Appeal. It does not restrict that Court to entertain appeals only on questions of customary law, as every appeal from the Customary Court, whatever the ground lies with the Customary Court of Appeal, as of right except in some specified situations, like where the matter in dispute at the Customary Court was of the value below One Hundred Naira.
The Section 55(1) states:
“An appeal shall lie as of right from the decisions of a Customary Court to the Customary Court of Appeal on any of the following grounds:
(a) Where the matter in dispute on appeal to the Customary Court of Appeal is of the value of one hundred naira or more, or where the appeal involves a claim to or question respecting property or a right of the value of one hundred naira or more, final decision in any civil proceedings or criminal proceedings under Customary Law.
(b) Where the ground of appeal to the Customary Court of Appeal involves questions of law alone, final decisions in any criminal proceedings in which any person has been sentenced to imprisonment for a term not exceeding three months or a fine or forfeiture exceeding fifty naira by the Customary Court.
(c) Decisions on any civil or criminal proceedings or proceedings under customary law on questions as to interpretation of the Constitution.”
Certainly, if Appellant’s Counsel had studied the above Provisions, he would have avoided the error of lifting the interpretation of Section 245(1) of the Constitution by the courts to apply to Section 282(1) of the 1999 Constitution, as amended.
I, too, dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances
J. A. Onyekwere Esq.,For Appellant
AND
M. O. Nlemedim Esq.,For Respondent
