HYACINTH DURU & ORS v. ALAKWEM OKORO
(2015)LCN/8061(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of February, 2015
CA/OW/287/2011
RATIO
APPEAL: INTERFERENCE; CIRCUMSTANCES WHERE AN APPELLATE COURT CAN DISTURB THE FINDINGS OF LOWER COURTS
It is trite law that Appellate Court can only disturb the concurrent findings/judgments of Lower Courts, in exceptional circumstances, like where the same are perverse and which the Appellant has a duty to establish. See Oke Vs Mimiko (2013) All FWLR (pt.693) 1853 at 1880; Anaeze Vs Anyaso (1993) 5 NWLR (pt.291)1 See also Olusanya Vs Osinleye (2013) All FWLR (pt.693)1930 at 1945.
“Supreme Court will not disturb the findings of fact of two Courts below unless there is manifest error which leads to some miscarriage of justice or a violation of some principles of law or procedure” per. ITA G. MBABA J.C.A.
COURT: JURISDICTION; WHETHER THE QUESTIONS RELATING TO EVALUATION OF EVIDENCE IS WITHIN THE PURVIEW OF THE CUSTOMARY COURT
I had earlier stated that such arguments, that the Court did not properly evaluate the evidence adduced at the trial, failed to qualify as question(s) of customary law, to bring this appeal within the jurisdiction of this Court, going by the Section 245(1) of the 1999 Constitution, as amended. See the case of Ukachukwu & Ors Vs Ihejirika & Ors (2014) LPELR 24102 (CA), where it was held:
“… I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal against the decision of the Customary Court of Appeal, under Section 245(1) of the 1999 Constitution, which confines right of appeal to questions of Customary Law. Issues and questions relating to evaluation of evidence and the restraint of Appellate Court from tampering with findings of fact by the trial Court… appear to belong to the realms of common law principles and procedure of trial Courts, outside the contemplation or purview of the Customary Law…” See also Okereke & Anor Vs Adiele (2014) LPELR 24103 (CA) per. ITA G. MBABA J.C.A.
Before Their Lordships
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
PETER OLABISI IGEJustice of The Court of Appeal of Nigeria
FREDERICK O. OHOJustice of The Court of Appeal of Nigeria
Between
1. HYACINTH DURU
2. ROMANUS DURU
3. DESMOND EZEALA
4. DAMIAN OGUGUA
(For themselves and as representing The people of Umuduruiheoma Isiebu Umuduru)Appellant(s)
AND
ALAKWEM OKORO
(For himself and as representing Umuapiti Kindred, Isiebu Umuduru)Respondent(s)
ITA G. MBABA J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Customary Court of Appeal of Imo State in Appeal N0:CCA/OW/91/2008, delivered on 7/4/11, Coram: Hon Justice M.E. Njoku (Presiding), Hon. Justice A.B.C. Egu (president) and Hon. Justice C.U. Anwukah, wherein they affirmed the decision of the trial Customary Court in Suit NO.CC/SM/2649/97, giving judgment to the Respondent herein (who was Plaintiff at the Customary Court) and dismissing the counter-claim of the Defendants (Appellants herein).
The Respondent’s claim at the trial Court was taken in a representative capacity, as follows:
(a) ” A Declaration that the Plaintiffs who are resident natives of Umuapiti Isiebu Umuduru in Isiala Mbano Local Government area are entitled to the Customary Right of Occupancy to all that piece or parcel of land known as and called “ALA OKPOTU ULO UMUAPITI” lying, being and situate at Umuapiti, Isiebu, Umuduru in Isiala Mbano L.G.A. within the jurisdiction of this Honourable Court, the annual rental value of which is N10.00 (Ten Naira).
(b) The sum of N2,000.00 (Two thousand Naira), being general damages for trespass.
(c) Perpetual injunction, restraining the Defendants by themselves, servants, agents or privies from entering the said piece or parcel of land. (It was filed on 14/1/97)
The Defendants, on their part, took out a cross action on 22/12/97 against the Plaintiffs, claiming for:
“(a) Declaration that the Plaintiffs are entitled to Customary right of Occupancy of all that piece or parcel of land known and called “ALA OKPOTU ULO DURU IHEOMA’ lying and situate at Umuduruiheoma, Isiebu Umuduru, the annual rental value of which is N10.00 (ten naira).
(b) The sum of N2,000.00 (Two Thousand Naira), being General Damages for trespass.
(c) Perpetual injunction restraining the Defendants by themselves, servants, agents, and/or privies from trespassing on the said piece or parcel of land.”
The two suits were consolidated by the trial Customary Court, with the Plaintiffs in Suit NO.CC/SM.2649/97, remaining the Plaintiffs in the consolidated suit, and the Defendant in that suit (Plaintiff in CC/SM/40/97/) remaining as Defendant in the consolidated suit. At the close of the case at the trial Court, the Court gave judgment to the Plaintiffs and dismissed the Counter-claim, and an appeal thereon to the Customary Court of Appealed, was dismissed.
Appellants further appeal to this Court, as per their Notice of Appeal, filed on 4/7/2011. See pages 275 to 278 of the Records of Appeal. They filed their brief of argument on 2/5/2012, which was deemed duly filed on 15/1/13, and distilled three (3) Issues for determination from the three grounds of appeal; Appellants also filed a Reply, brief on 4/6/14, following the Respondent’s preliminary objection and Brief. The Issues for determination formulated by Appellants, were:
“(1) Whether the concurrent findings of facts and the holding by the Lower Court on appeal that there was Customary law oath taking by the Respondents herein which entitled them to a declaration of title to the land was right.
(2) Whether the decision of the Customary Court of Appeal that it was no business of the Customary Court to look at the Record of Proceedings contained in Exhibit C tendered before it, as the proceedings in the county Court did not ground title to the Appellants was not perverse.
(3)Whether the Appellants established by evidence the Customary law grant of the land in dispute to the Respondent contrary to the findings of the Lower Court and the affirmation and holding by the Customary Court of Appeal that they did not”
The Respondent, filed their brief on 18/4/13 and raised a preliminary objection to ground 2 of the appeal-querying whether the same raised a question of Customary law. The Respondent also observed that Appellants did not tie their issues for consideration to their grounds of appeal and urged us to strike out the purported issues for determination. In the alternative, the Respondent formulated two Issues for the determination of the Appeal, namely:
(1) Whether the Lower Court was right in affirming the findings of fact of the trial Court, that there was uncontroverted evidence of oath taking and survival of same by the Respondents over the land in dispute.
(2) Whether the Lower Court was right in affirming the trial courts’ decision that the alleged Customary law grant by the Appellants termed “Nwa Nwa” theory was false and not credible.”
When the appeal was heard on 4/2/15, the parties, through their Counsel, adopted their briefs and urged us accordingly.
As is our tradition, it is necessary to consider, first, the objection raised to the 2nd ground of appeal by the Respondent.
Appellants’ ground two is:
“The Customary Court of Appeal erred in law, when it held that it was not the business of the trial Court to look at the records of proceedings tendered before it contained in Exhibit C as the proceedings in the county Court did not ground title to the Appellants.”
Counsel submitted that that ground, with its particulars, did not raise any question of Customary law, envisaged in Section 245 (1) of the 1999 Constitution. He relied on the case of Pam vs. Gwom (2000) FWLR (Pt.1) 1; Golok vs. Diyalpwam (1990) 3 NWLR (Pt.139)411. He urged us to strike out the ground 2 for incompetence.
Respondent’s Counsel also pointed out that the three (3) issues distilled by the Appellants were not related to the grounds of appeal and that such failure made the issues incompetence. He relied on the case of Ojong vs. Duke (2004) ALL FWLR (Pt.226) 363; Akpata vs. Ugo (2007) ALL FWLR (Pt. 349) 1203; Mark vs. Eke (2004) ALL FWLR (Pt.200) 1455, to the effect that “any issue for determination not tied to any ground of appeal is of no moment and it is liable to be ignored”.
He urged us to strike out the issues for determination.
Appellants’reply to the objection was that the ground 2 did not come within the purview of Section 245 (1) of the 1999 Constitution; that the real complaint in the ground of appeal, read together with the particulars, was that:
(i) An important exhibit which contained evidence of previous proceedings between the parties adverse to the Respondents case was not considered by the Court below.
(ii) An (sic) Customary law evidence of Customary tenancy between the Appellants and the Respondent given in the Exhibit confirming and corroborating the Appellants case was again not considered.
He relied on Omini vs. Eno (2010) 8 NWLR (Pt.1197) 453; Ayorinde vs. Sogunro (2012)11 NWLR (Pt.1312) 461; FBN vs. Akabueze (2010) 17 NWLR (Pt.1223) 525 and submitted that a ground of appeal which complains against the issue of fair hearing is and should always be competent before an Appellate Court. He also relied on Ovunwo vs. Woko (2011)17 NWLR (Pt.1277) 542;
He urged us to dismiss the objection.
Appellants did react to the observation that they did not relate the issues formulated, to the grounds of appeal.
The law is well defined, as per the interpretation of Section 245 (1) of the 1999 Constitution (as amended) by this Court and the Apex Court, that this Court (Court of Appeal) is barred from entertaining an appeal from the Customary Court of Appeal, which is not on a question of Customary law. See the case of Pam vs. Gwom (2000) FWLR (Pt.1) 1; Golok vs. Diyalpwam (1999) 3 NWLR (Pt.139) 411; See also Okorie & Ors. vs. Chukwu (2014) LPELR – 23744 CA where it was held:
“The right of appeal from Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary law and/or such other matters as may be prescribed by an Act of National Assembly, that can extend this right by providing for such matters … It appears obvious, as per the position of the Apex court on issues of appeal from the Customary Court of Appeal to the Court of Appeal, that this Court is barred from entertaining any appeal emanating from Customary Court of Appeal, except the same rests on question(s) calling for the construing of issue of Customary law, simplicita…”
See also Okereke & Anor vs. Adiele (2014) LPELR 24103 (CA), where it was held that issues relating to fair hearing, evaluation of evidence, doctrine of estoppel etc are never issues bordering on question(s) of Customary law. (See pages 24 -25 thereof).
Appellants had admitted that the ground 2 of the appeal touched on consideration of evidence, Exhibit C being proceedings in a previous action, and on fair hearing. Of course, that takes the ground 2 away from the contemplation of Section 245 (1) of the 1999 Constitution, which divests this Court of jurisdiction to entertain appeal from Customary Court of Appeal, on issues outside the question of Customary law.
The objection is, therefore, upheld. The ground 2 of the appeal and the issue therefrom and arguments thereon are, accordingly, struck out, being incompetent. That leaves only grounds 1 and 3 for consideration.
Appellants did not, however, comment on the failure to tie the issues for determination to the grounds of appeal, which is usually a mandatory requirement of this court. See the of Akpata vs Ugo (2007) ALL FWLR (Pt 349) 1203 at 1209; Ojong vs. Duke (2004) ALL FWLR (t226) 363 at 394 -395 Ossai vs. FRN (2012) LPELR 16669 CA; Unilorin vs. Olawepo (2012 52 WRN 42; Obosi vs. NIPOST (2013) LPELR 21397 (CA)
Appellants’ grounds 1 and 3 of Appeal are:
“(1) The Customary Court of Appeal erred in law in affirming the decision of the trial Customary Court that oath taking and survival of oath according to Native Law and Custom was done on the land in dispute by the Plaintiff/ Respondent which entitled him to a declaration of title to the land in dispute.
(2) The Customary Court of Appeal erred in law in concurring with the trial Customary Court that the evidence of Customary law grant of land to an “Nwa Nwa”, wherein Appellants forebears granted part of the land in dispute to the Plaintiffs/Respondents was a fairy tale and manufactured for the case at the Lower Court.”
I had earlier reproduced the Issues for determination as framed by the Appellants. A close look or study of the 1st and 3rd issues shows that they derived from grounds 1 and 3, respectively, though Appellants did not, specifically, state so. I therefore hold that the said issues for determination are related to or derived from the said grounds of appeal, though the Appellants’ Counsel failed to, formally, tie the issues to the said grounds of appeal.
I do not think we can close our eyes to this fact, and strike out the issues, in the circumstances, as that would not accord with the interest of substantial justice, especially as the failure to tie the issues, formally, to grounds of appeal was an error of Counsel, which should not be visited on the Appellants or on the appeal.
Arguing the Appeal, issue one, thereof, learned Counsel for Appellants, C.C. Ezekwem Esq., called our attention to page 255 of the Records of appeal, where the Court below upheld the findings and ruling of the trial Customary Court that the Respondent, having submitted to arbitration and oath taking, which was taken in representative capacity, and having survived the oath, the Respondent was entitled to the declaration of title sought. He contended that, that finding was not borne out of deep appreciation of the evidence given and the objections of the appellants, saying that, PW1 never at any time stated that he swore an oath on behalf of Umuapiti Kindred of the Respondents; that PW2 never at any time gave evidence that oath taking, done by PW1, was on behalf of the Umuapiti people.
Counsel also said that the leader of Umuapiti, Raphael Emeaso, was the original 1st plaintiff, who died during the trial; that he (Raphael Emeaso) would have been involved in the oath taking by himself or in conjunction with the PW1 (in representative capacity), and no explanation was given why he (Raphael Emeaso) did not take the oath. Counsel then argued that the trial Customary Court did not find out that PW1 (Alakwem Okoro) took the oath for and on behalf of Umuapiti kindred; he said that the trial Court was silent about the contradictions in the year of event as pointed out by the Appellants! He said that Appellants had denied that the taking of oath was done by Umuapiti people and that the oath taking was in respect of the land in dispute and that the kindred survived it and celebrated it in Isiebu Amasaa.
On issue 3, Counsel said that Appellants had admitted that the Respondent lived on part of the land in dispute, but had given evidence of how their forebear made customary grant of the land to the Respondent forebear. But he found fault with the findings of the Lower Court on how the Respondent came to live on the land; he said that Respondent’s statement did deny the customary grant which he said was better told by the Appellants. He argued that, if the
Respondents were sojourners on the land in dispute and the land belonged to Appellants, then there was an agreement between the sojourners and the owners of the land, who allowed them to stay on their land.
He also argued that the Lower Court had faulted the Appellant for not stating the name of the “Nwa Nwa”, nor bringing any witness from the lineage of the “Nwa Nwa” to prove the fact; he said that the Customary Court of Appeal (Lower Court) was therefore wrong to conclude with the trial Customary Court that the evidence relating to the Customary grant or “Nwa Nwa” theory was myth, fable (akuko idua na oba) only suitable for moon light stories. Counsel submitted that both the trial customary Court and the customary Court of appeal were wrong in their said findings and holding, and he stated 5 reasons for saying the concurrant findings were wrong, which reasons bordered on improper appreciation of the evidence by the two Courts, including the Exhibit C – a proceedings of a previous case between the forebears of the parties, concluded in 1954, which Counsel said the trial Court and Lower Court did not consider. He added that Appellants had given credible evidence of Customary grant supported by documentary evidence – Exhibit C, but the same were not properly appraised. He urged us to resolve the issues for Appellants and allow the appeal.
Counsel for the Respondent, Chief Okey Ehieze, on issue one, submitted that the Lower Court was right in affirming the decision of the trial Court on the issue of oath taking and survival of the oath; that the same was founded on evidence adduced. He relied on the printed records – pages 15 – 16 (evidence of PW1) and pages 32 to 33 (evidence of PW2). Counsel argued that the Appellants never challenged the evidence of oath taking and survival of same by the Respondent, by way of Cross examination. He relied on the case of Arabambi VS Advance Beverages Industries Ltd. (2006) All FWLR (pt.295)581. Counsel also relied on the case of Onyenge Vs Ebere (2004) All FWLR (pt. 219) 981 at 998 – 999; Ume Vs Okoronkwo (1996) 43 LRN 2068 , to say that it is judicially settled that oath taking is one of the accepted ways of settling dispute as to ownership of land, and that once a person has taken an oath and survived same, he becomes the owner of the land under native law and custom, that this Court cannot interfere with the concurrant findings of the trial Customary Court and of the Lower Court on this issue, relying on Eyo V Onuoha (2011) All FWLR (pt. 574), at 25; Jokasun Vs Bamgboye (2011) All FWLR (pt. 595) 203.
On the concurrent findings of the two Courts, disbelieving the “Nwa Nwa” story of the Appellants and alleged grant of the land in dispute by Appellants to the Respondent, Counsel submitted that the arguments of Appellant on this issue was misconceived as Appellants failed to show how the concurrent findings of the Lower Court on the same issue was not supported by evidence; he argued that the Appellants had admitted that the Respondent lived on the land; he said that the burden was on Appellants to show that the Respondent and his people, who were in possession of the land, were not the owners of the land in their possession. He relied on Akwafuo Vs Anyanwu (2008) All FWLR (pt. 302)89. He added that the Lower Court had dutifully evaluated the evidence adduced at the trial Court before reaching its conclusion in favour of Respondent; that this Court is not expected to make new findings of facts in this case, which is the preserve of the trial Court, who had the advantage of seeing the witnesses and watching their demenour. Balogun Vs E.O.C.B. (Nig) Ltd. (2007) All FWLR (pt. 382) 1962 at 1977 – 1978; Wachukwu Vs Owunwanne (2011) All FWLR (pt. 589) 1072
RESOLUTION OF ISSUES
I think the remaining two issues for determination should be taken together, since they appear to be a quarrel about the evaluation of evidence by the trial Customary Court and the Customary Court of Appeal (which, basically, raises the issue of the competence of this appeal, going by Section 245 (1) of the 1999 Constitution as amended, which requires appeal from the Customary Court of Appeal to this Court (Court of Appeal) to be only on question(s) of customary law). See Pam V Gwon (2000) FWLR (pt.1) 1; Okorie & Ors Vs Chukwu (2014) LPELR – 23744 (CA).
Though the surviving grounds of appeal and the issues distilled there from labored to present a complaint bordering on a question of Customary Law, the arguments of the issues, infact, and in law, veered off issues of customary law, and rather centered on whether there was evidence to support the holdings of the Court, that:
(1) The oath taking and survival of the same by the PW1 was, in fact, taken or done by him in a representative capacity, representing the people of
Umuapiti (or Umuapiti kindred), and;
(2) The concurrent findings of the trial Customary Court and the Customary Court of Appeal, that the evidence relating to the customary grant or ‘Nwa Nwa’ theory was a myth, fable suitable only for moonlight stories.
Those arguments, infact, portrayed this appeal as a mere gamble by the Appellants, as they still failed to dislodge the credible concurrent findings of the two Lower Courts on the said two issues, (even if the appeal were competent on such issues). It is trite law that Appellate Court can only disturb the concurrent findings/judgments of Lower Courts, in exceptional circumstances, like where the same are perverse and which the Appellant has a duty to establish. See Oke Vs Mimiko (2013) All FWLR (pt.693) 1853 at 1880; Anaeze Vs Anyaso (1993) 5 NWLR (pt.291)1 See also Olusanya Vs Osinleye (2013) All FWLR (pt.693)1930 at 1945.
“Supreme Court will not disturb the findings of fact of two Courts below unless there is manifest error which leads to some miscarriage of justice or a violation of some principles of law or procedure”
Appellants had submitted as follows:-
“The Lower Court proceeded to fault the appellant for not stating the name of the ‘Nwa Nwa’ nor bringing any witness from the lineage of the Nwa Nwa to prove the fact. The Customary Court of Appeal therefore concluded with the trial Customary Court that the evidence relating to the Customary grant or ‘Nwa Nwa’ theory was a myth, fable… only suitable for moon light stories” Again with respect… the customary Court of Appeal and the trial Court were wrong” See pages 7 and 8 of the Appellant’s brief.
Of course, the reasons the Appellants gave on page 8 of their brief, to show that the two Courts were wrong in their findings, centered on what they claimed as poor evaluation of the evidence, and failure to make use of Exhibit C, which they claimed was proceedings of previous action in county Court, between the parties forebears, decided in 1954, which Appellants alleged the Lower Courts did not consider. But there was evidence that the Court had properly appraised and evaluated the evidence in the case before coming to their conclusions.
I had earlier stated that such arguments, that the Court did not properly evaluate the evidence adduced at the trial, failed to qualify as question(s) of customary law, to bring this appeal within the jurisdiction of this Court, going by the Section 245(1) of the 1999 Constitution, as amended. See the case of Ukachukwu & Ors Vs Ihejirika & Ors (2014) LPELR 24102 (CA), where it was held:
“… I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal against the decision of the Customary Court of Appeal, under Section 245(1) of the 1999 Constitution, which confines right of appeal to questions of Customary Law. Issues and questions relating to evaluation of evidence and the restraint of Appellate Court from tampering with findings of fact by the trial Court… appear to belong to the realms of common law principles and procedure of trial Courts, outside the contemplation or purview of the Customary Law…” See also Okereke & Anor Vs Adiele (2014) LPELR 24103 (CA)
I cannot find any credible reason to disturb the concurrent findings of the two Courts (trial Customary Court and Customary Court of Appeal) in this matter and therefore resolve the issues against the Appellants and dismiss the appeal.
Appellants shall pay the cost of this appeal, assessed at Thirty Thousand Naira (N30,000.00) only, to Respondent.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the judgment of my Learned Brother Mbaba, JCA, and entirely agree with it.
FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother Ita, G. Mbaba, JCA, just delivered and I agree with this reasoning and conclusions therein and have nothing more to add to a well written and balanced appreciation of the issues raised in the judgment. In dismissing the Appeal, I too will resolve same against the Appellants with cost of this Appeal assessed at Thirty Thousand Naira (N30,000.00) only in favour of the Respondents.
Appearances
C. C. Ezekwem Esq with him Kate Eyiuche (Mrs)For Appellant
AND
Chief Okey Ehieze (KSC) with him Chima Ejike Esq.For Respondent
