IHEANACHO UKACHUKWU & ORS v. INNOCENT IHEJIRIKA & ORS (2014)

IHEANACHO UKACHUKWU & ORS v. INNOCENT IHEJIRIKA & ORS

(2014)LCN/7531(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/OW/169/2014

RATIO

APPEAL: GROUND OF APPEAL: CONDITIONS FOR A GROUND OF APPEAL TO BE COMPETENT

By law, a ground of appeal must not be vague or general in terms, and it must disclose reasonable ground of appeal. See Order 6 Rule 3 of the Court of Appeal Rules 2011. See the case of Olufeagba Vs Abdul-Raheem (2009)18 NWRL (pt. 1173) 384. In NNPC Vs Aminu (2013) LPERL – 21396 CA, this Court held that: “A ground of appeal can only be competent, if the particulars and the nature of the alleged misdirection or error are clearly stated. A ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against the ratio – decidendi in the decision, as opposed to obita dictum. The particulars to the ground must be in tandem with it…” See also Egbe Vs Alhaji (1990) INWLR (pt.128)546; A.G. Oyo state Vs Fair Lake Hotel (1988)5 NWLR (pt. 92)1; Obosi Vs NIPOST Ors (2013) LPELR – 21397 (CA); Oduneye Vs FRN & ORS (2014) LPELR – 23007) (CA). per. ITA G. MBABA, J.C.A.

EVIDENCE: PROOF OF TRADITIONAL EVIDENCE; INGREDIENT OR ELEMENTS OF TRADITIONAL EVIDENCE

The Respondents had, however, argued that both sides, as per the findings of the trial Court, anchored their respective claims to the land in dispute on traditional evidence; that that being so they, were bound to lead evidence to establish the three basic ingredients/elements of traditional evidence, namely:

(a) Who founded the Land

(b) How the founder founded the land and

Olujinde vs Adeagbo (1988) 2 NWLR (pt. 25) 238. per. ITA G. MBABA, J.C.A.

CASE LAW; THE RULE IN KOJO II VS BONSIE; THE APPLICATION OF THE GHANAIAN CASE OF KOJO II VS. BONSIE

The Rule in the Ghanian case of Kojo II Vs Bonsie (1957)1 WLR 1223; (2001) Vol. 86 LRCN 1492, was propounded by Denning M.R., when he delivered the judgment of the Privy Counsel and said: “Where there is conflict of traditional history, one side or the other must be mistaken yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history by reference to the facts in recent years as established by evidence by seeing which of the two competing histories is the more probable.” That Rule, I think, is only applicable where the traditional histories recounted by each side as evidence, as plaintiffs and Defendants are conflicting and inconclusive, and recourse is, therefore, had to other means, like acts of ownership and/or possession to determine one (the party) with better title. See the case of Etim & Ors Vs Umoh & Anor. (2014)LPELR – 22730 (CA), where my Lord CC Nweze JCA (as he then was) said on the Rule in Kojo II Vs Bonie (exceptional cirumstances created to prove title under traditional history), thus: “Perhaps, one recognisable exception could be found when, under the exceptional circumstances created by the rule in Kojo II Vs Bonsie (1957)1 WLR 1223, 1226, acts of possession and ownership may be allowed to resolve evidence of conflicts in traditional histories, Mogaji VS Cadbury Nig. Ltd. (1985) 16 NSCC (pt.11) 959, 990-991. This was not the position at the Lower Court. The Plaintiff anchored his claim on traditional history. He failed to prove his pleaded root of title. In the circumstance, it was even unnecessary for the lower court to consider acts of ownership and/or possession. The reason is simple: such acts would no longer be acts of possession but acts of trespass. Balogun Vs Akanji (1988)1 NWLR (pt. 70) 301; Fasoro Vs Beyioku & Ors (1988) 2 NWLR (pt. 76) 263; Oyadare Vs Keji (2005) 1 SC (pt.1) 19; 25″ Applying that principle in the case of Obasi Vs Onwuka (1987) 1 SC 233, at 277 Oputa JSC said ”…In other words, though proof of title by traditional history, evidence may have its roots in ancient history, it must have its stem and branches on modern history, to be conclusive.” per. ITA G. 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. IHEANACHO UKACHUKWU

2. DONATUS NWAFOAGU

3. DONATUS ELEONU

4. CHUKWUEMEKA NWANGBOROGWU

5. CHRISTOPHER ONWUME

(For themselves and as representing The entire Umueze Amala) – Appellant(s)

AND

1. INNOCENT IHEJIRIKA

2. SAMUEL AMADI

3. DAVIDSON IHEJIRIKA

(For themselves and as representing Umuodugwu Amapu Amala) – Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Customary Court of Appeal of Imo State, Owerri, in Appeal No. CCA/OW/A/42/2013, delivered on 16/1/2014, wherein the Lower Appellate Court allowed the appeal by the Plaintiffs/Appellants (Respondents herein) and entered judgment for them in the matter at the Customary Court.

At the Customary Court, the Defendants (Appellants herein) had claimed in suit No.CC/NGO/21/98 as follows:

a) A declaration that the plaintiffs are entitled to be granted the Customary Right of Occupancy to all that piece or parcel of land popularly known as and called “UZO UMUOGBEDE UMUEZE” land being lying and situate at Umueze Village, Amala within the jurisdiction of this Honourable Court.

b) N2,000.00 (Two Thousand Naira) being general damages for trespass.

c) Perpetual injunction restraining the defendants either by themselves, their privies, agents, workers or servants from further trespass or unlawful entry into the land in dispute”.

The Plaintiffs (now Respondents had, in turn, claimed in their suit CC/NGO/17/98, for:

“(a) An order of forefeiture of “Okwuoba” or “Uzoumuogbede” land situate at Amapu Amala.

b) A declaration that the Plaintiffs are entitled to the Customary Right of Occupancy to all that piece or parcel of land known as “Okwuoba” or “Uzoumuogbede” situation at Amapu Amala in Ngor Okpala Local Government Area within jurisdiction.

d) Perpetual injunction restraining the defendants either by themselves, their privies, agents, workers, or servants from further trespass or unlawful entry into the land in dispute.”

The two suits were taken out at the Umuneke Customary Court, and were later transferred to Customary Court Itu Ezinihitte for trial. At the Customary Court Itu Ezinihitte the two suits were re-numbered and consolidated.The Suit No.CC/NGO/17/98 was re-numbered CC/EZ/9/2002 while CC/NGO/21/98 was re-named CC/EZ/6/2006. Judgment was delivered by the trial Court on 27/5/2013, wherein the suit of the plaintiffs (CC/EZ/9/2002) was dismissed and that of the Defendants (CC/EZ/6/2006) succeeded.

Dissatified, the Plaintiffs appealed to the Customary Court of Appeal, Owerri, in Appeal No.CCA/OW/A/42/2013 against that decision, successfully, and on 16/1/2014 the Customary Court of Appeal reversed the judgment of the Customary Court and entered judgment for the Plaintiffs/Appellants, as follows:

“(1) Appeal is allowed.

(2) The judgment of the Court below in CC/EZ/9/2002 and CC/EZ/6/2006 delivered on the 27th day of May, 2013 subject of this appeal is hereby set aside.

(3) Suit No.CC/EZ/6/2006 which is the Cross action between the parties to this appeal is hereby dismissed.

(4) There is judgment in favour of the plaintiffs/appellants.

(5) It is hereby declared that the Plaintiffs/Appellants are entitled to the grant of customary right of occupancy to that piece or parcel of land known as “OKWUOBA” or “UZOUMUOGBEDE” situate at Amapu Amala in Ngor Okpala Local Government Area of Imo State as shown in the Survey Plan Exhibit F tendered at the Court below.

(6) The Defendants/Respondents are perpetually restrained by themselves, their privies, agents, workers or servants from further trespass or unlawful entry into the said land.

(7) The costs awarded by the Court below in its judgment, if already paid shall be refunded by the Defendants/Respondents to the Plaintiff/Appellants.

(8) The Respondents shall pay the Appellants costs in the Lower Court assessed at Fifteen Thousand Naira (N15,000.00) and in this Court assessed at Twenty Five thousand Naira (N25,000.00)”.

The lead judgment was read by Hon. Justice P.I. Okpara (Acting President) and concurred by Hon. Justice, M.E. Njoku and Hon. Justice, V.U. Okorie, who heard the Appeal).

That is the judgment Appealed against by the Appellants (who were Defendants at the Customary Court and Respondents at the Court below (Customary Court of Appeal). They filed their Notice of Appeal on 4/4/2014 and disclosed three (3) grounds of appeal (as per pages 571 to 577 of the Records of Appeal). They filed their Brief of Argument on 2/7/14 and a Reply Brief on 8/10/14, which was deemed duly filed on 22/10/14, when this appeal was heard. The Respondents’ Brief, which was filed on 14/8/14, was also deemed duly filed on 22/10/14.

Appellants formulated the following two issues for determination:

“(1) Whether the Court below (Customary Court of Appeal) was not wrong in holding that the Respondents gave conclusive and sufficient evidence of traditional history, such that the trial Court had no reason to resort to and apply the rule in Kojo II Vs Bonsie (1957) 1 WLR, 1223 at 1226 (2001 Vol. 86 LRCN,1492)

(2) Whether the Court below would have arrived at a different decision, if it had considered issues 2 and 4 raised in the Appellants’ (then Respondents) Brief of argument (in the appeal before it).”

The Respondents raised a preliminary objection in their Brief, filed on 14/8/14, which was deemed duly filed on 22/10/14. They also adopted the two issues distilled by the Appellants, after arguing their Preliminary objection, which was that the appeal was incompetent, going by section 245 (1) of the 1999 Constitution; that by the Provisions of that section of the Constitution appeals shall lie from the decisions 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. Thus, appeals from the Customary Court of Appeal must be on a question of customary law, only and nothing else.

Counsel submitted that, though Appellants’ issues 1 and 2 may appear to border on customary law, arguments made thereunder have no bearing on application or otherwise of any Customary Law; that Appellants went off track and dwelt solely on evaluation of evidence; that the arguments did not flow from the issues as distilled from the grounds of Appeal. He relied on the case of Pam Vs Gwom (2000) FWLR (pt.1) 1 at 15. He added that in arguing the two issues on the appeal, one expected the Appellants to demonstrate the misapplication of the Customs, rules, traditions, ethos and culture which govern their relationships, particularly, as relates to the land in dispute. He relied on the case of Nwaigwe Vs Okere (2008) 5 – 6 Sc (pt. 11) 93; Omoniyin Vs Omotosho (1961) 1 All NLR 304; Kindey Vs Military Gov. of Gongola State (1988) 2 NWLR (pt. 77) 445.

Responding, Appellants, in their Reply Brief, argued that the Respondents were not saying that Appellants’ grounds of Appeal and Issues there-from, did not turn on Customary law or that they do not relate to the decision of the Court below; rather that the arguments there under do not flow from the grounds or the issues! Counsel submitted that the Respondents have admitted that the two issues for determination appear to border on, or distil from the grounds of appeal. He added that, by relying on the case of Pam Vs Gwom (supra) and inviting us to delve into determining what customary law is (as if it is an issue for determination at this stage of the proceeding), the Respondents are, deliberately, dragging a red herring into this appeal and are subtly raising a fresh issue in the appeal, without complying with due process. He urged us to refuse to be diverted into frivolities; that from the on set this case turned on the quantum, quality and value of “traditional evidence’ as led by and relied upon by the parties; that that was the basic contention at the trial Court and was the fulcrum on which the decision of the Court below rested. He urged us to dismiss the objection.

I do not think, for the purpose of this appeal, we need to stretch the consideration of the preliminary objection beyond the question of whether the grounds of appeal (and issues therefrom) raised by the Appellants touch on questions of Customary Law. The complaint that the arguments (of the issues for determination) do not flow from the grounds of appeal and from the issue distilled by the Appellants, though a valid point of objection which can dislodge an appeal, cannot be validly located under Section 245 (1) of the 1999 Constitution, which applies to refuse any appeal from Customary Court of Appeal to this Court (Court of Appeal) on any ground other than one touching on question(s) of customary law. See the recent decision of this Court in the case of Okorie & Ors Vs Chukwu (2014) LPELR – 23744 (CA), where we held that;

“.. 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 issue of Customary Law, simplicita…” See also Pam Vs Gwom (2000) FWLR (pt. 1) 1 at 12;

The case of Chief Maurice O. Chukwu Vs Customary Court of Appeal & Ors: CA/PH/109/2008, unreported decision of this Court, delivered on 21/8/2014. See also the section 245 (1) of the 1999 Constitution, which expressly says:

” An appeal shall lie from decisions 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 and such other matters as may be prescribed by an Act of the National Assembly.”

Of course, to date, there is no such prescription by any Act of the National Assembly, stipulating any “such other matters” on which the jurisdiction of this Court (the Court of Appeal) can be invoked to determine appeal from the Customary Court of Appeal, in civil proceedings, other than on the questions of Customary Law. See the case of Chief Maurice O. Chukwu Vs Customary Court of Appeal and Ors (supra); Okorie & Ors Vs Chukwu (supra).

But since the Respondents appeared to have admitted in their argument that “… issues A & B in the Appellants’ brief may appear to bother (sic), on customary…” (paragraph 3.02 of the Respondents’ brief), it would be proper to dismiss the preliminary objection, right away.

However, a close look at the issue 2 by the Appellants, tends to leave one in doubt as to what question of customary law Appellants, actually intended to distill for determination!

They had queried:

“Whether, the Court below would have arrived at a different decision, if it had considered, issues 2 and 4 raised in the appellants’ (then respondents) Brief of Argument (in the appeal before it).”

Appellants however, failed to relate that issue, formally, to any of the grounds of appeal. Though it can be appreciated that the said issue may have derived from ground 2 of the appeal, which (without the particulars) stated:

“The Customary Court of Appeal erred in Customary Law when it failed to consider issues 2 and 4 raised in the Respondents’ (now Appellants) Brief of Argument in total negation of the position of the law laid down in Nipol Ltd Vs Biolu Investment and Property Company Ltd. (1992) 2 SCNJ 58, which issues if considered would have afforded it opportunity of reappraissing Exhibits F, K, K1 and L for their forensic values.”

Arguing the issue 2, Appellants’ counsel submitted that the Court below clearly erred in law when it declined to consider the arguments (of Appellants) made on their issues 2 and 4 at the Lower Court; that the lower Court shied away from its responsibility when it held:

“These two issues to my mind and I hold are subsumed in the issues one and three earlier on resolved in this judgment. I am aware that intermediate Courts of Appeal are required to consider alternative issues raised before them. See Nipol Ltd. Vs Bioku Investment & Property Company Ltd (1992) 4 SCNJ 58.”

Counsel submitted that a consideration of the issue 2 would have afforded the Court below the opportunity of knowing how closely related the owners of the contiguous lands to the land in dispute are to the appellants (the people of Umueze), instead of the respondents; that a consideration of arguments in issue 4 would have given the Lower Court the opportunity of knowing the values of Exhibits F, K, K1 and L, received in evidence at the trial and that would have led the Lower Court to a different decision.

Exhibit F was the survey plan of the land in dispute filed by the Respondents (as plaintiffs in another suit – HOW/103/93). Exhibit K and KI were documents- land lease agreement and receipt, respectively, tendered by the Defendants (Appellants), relative to the land. Exhibit L was Police extract of report made by the Respondents (plaintiffs), certified on 7/7/93 over a complaint relating to the land.

Appellant argued that the Appeal Court is bound to consider all issues and arguments raised and made before it, and must take a decision on each of them. He relied on the case of NIPOL Ltd Vs Bioku Investment & Property Co. Ltd (supra); Chukwuma V Anyakora (2006) All FWLR (pt.302) 121 at 141 – 142.

How do these arguments, which actually complained against evaluation of evidence by the Lower Court (granted the Lower Court, in fact, failed to evaluate those pieces of evidence) relate to questions of Customary Law, to invoke the jurisdiction of this Court to entertain the appeal, considering the provisions of section 245(1) of the 1999 Constitution?

I am afraid, I cannot find any relationship to justify this appeal on that ground 2 and issue 2. The Respondents’ Counsel had argued that a call to evaluate evidence does not qualify as question of Customary Law, under section 245(1) of the 1999 Constitution; that there was no credible traditional evidence from the Appellants, to vitiate the traditional history by the Respondents (as plaintiffs at the trial Court) He relied on the case of Runsewe v Odutola (1996)4 NWLR (pt. 441) 143. Counsel further submitted that the Appellant did not cross appeal at the court below, neither did they file Respondents Notice and so they had no right to complain that the Lower Court did not consider any valid issue distilled from the grounds of appeal by the Respondents.

The Respondents in this appeal were the Appellants at the Lower Court and the Lower Court had considered the appeal on the issues distilled by them (Respondents). Their issues 2 and 4, at the Court below, were:

“(2) whether the lower (trial) Court was right when it ignored Appellants’ proof of possession of the connected or adjacent land which renders it probable that the appellants would, in addition, be the owner of the land in dispute by merely holding that Obiachara belongs to the Ikem section of Amala (Ground 2).

(4) whether the Court below was right to hold that Exhibit L and the Respondents’ bare reference to HOW/103/93 without more sufficed as evidence of respondents’ possession/ownership upon which declaration of title was predicated, in view of unchallenged evidence of partitioning of Apu’s lands between his two sons – Odugwu and Emereonye, after which a grant was made to Ogbede by Odugwu decendants. Ground 4 “See page 541 of the Records.

On the other hand the Appellants in this appeal were the Respondents at the Lower Court and their issues 2 and 4 were:

“(2) whether the Court below was right when it rejected the appellants’ insufficient proof of possession of connected or adjacent land which rendered it improbable that the appellants would own the land in dispute.

(4) whether in view of Exhibits F and L, the trial Court ought not to have dismissed the case of the plaintiffs/Appellants without bothering to evaluate their evidence of traditional history.” See Page 485 of the Records.

A close study of the two issues by each side reveals that they were identical, except for semantics, and a review of the Records shows that the lower Court considered the issues, adequately, before reaching its conclusion, in favour of the Respondent, who was the Appellant before it. See pages 561 – 562 of the Records. Thus, Appellants are not stating the truth when they alleged that the Lower Court did not consider the 2 issues, whereas the Lower Court had held that the two issues were subsumed in issues one and three, which it considered, extensively. See page 562 of the Records.

Even then, I do not think it is a cogent ground of appeal or issue for determination, to allege that the Court below would have arrived at a different decision had it considered some issue before it, and make that an issue for determination by appellate Court. Such ground or issue is vague and argumentative, and is founded on speculation, especially, where the complainant was not the person who filed the appeal and raised the issues alleged not to have been considered. By law, a ground of appeal must not be vague or general in terms, and it must disclose reasonable ground of appeal. See Order 6 Rule 3 of the Court of Appeal Rules 2011.

See the case of Olufeagba Vs Abdul-Raheem (2009)18 NWRL (pt. 1173) 384.

In NNPC Vs Aminu (2013) LPERL – 21396 CA, this Court held that:

“A ground of appeal can only be competent, if the particulars and the nature of the alleged misdirection or error are clearly stated. A ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against the ratio – decidendi in the decision, as opposed to obita dictum. The particulars to the ground must be in tandem with it…” See also Egbe Vs Alhaji (1990) INWLR (pt.128)546; A.G. Oyo state Vs Fair Lake Hotel (1988)5 NWLR (pt. 92)1; Obosi Vs NIPOST Ors (2013) LPELR – 21397 (CA); Oduneye Vs FRN & ORS (2014) LPELR – 23007) (CA).

I therefore hold that, the ground two and issue two of this appeal are incompetent in the first place. That, not withstanding, a careful perusal of the Records by this Court shows that the Lower Court, in fact, had considered the issues complained of, before reaching its conclusions. I resolve the issue against the Appellant.

On issue I, whether the Court below was not wrong in holding that the Respondents gave conclusive and sufficient evidence of traditional history, such that the trial Court had no reason to resort to and apply the rule in Kojo II Vs Bonsie (1957)1 WLR 1223 at 1226; (2001) Vol. 86 LRCN 1492, Counsel for the Appellants, again called for thorough evaluation of the evidence at the trial Court and also referred us to their Brief of Arguments at the Lower Court, pages 482 – 483 of the Records of Appeal. He submitted that the duty of making findings of fact based on painstaking evaluation of evidence is the primary preserve of the trial Court, which saw and heard the witnesses, and such findings cannot be glibly impeached by an appellate Court, if the findings (based on evaluation, of evidence) have not occassioned miscarriage of justice. He relied on Ogunmuyiwa Vs Odukoya (2009) All FWLR (pt. 454) 1526 at 1539.

Counsel further argued that the Court below was grossly wrong, and had no reason to tamper with the findings (based on evidence) of facts by the trial Customary Court, without advancing plausible reasons for so doing and inspite of the authority of Nwokorobia Vs Nwogu (2009)5 KLR (pt.267) 1303 at 1323, where the Supreme Court Per Mukhtar JSC held:

“It was the learned trial judge who saw and heard the witnesses of both sides, so he had the singular advantage of determining their credibility, vis a vis the evidence of other parties. The prerogative of believing or not believing any witness squarely rests on the trial judge who watched the demeanour of witnesses and the law is settled that any findings of a judge based on the facts cannot and will not be interfered with by an appellate Court, unless the finding is perverse and not supported by unchallenged credible evidence…”

Counsel also relied on Teriba Vs Adeyemo (2010)4 KLR (pt. 281) 1583 at 1593; Akintola Vs Balogun (2001)1 NWLR (pt. 642) 532; Tinubu Vs. Kalil & Dibbo Trans Ltd. (2001) 11 NWLR (pt. 677)171.

Again, 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 right of Appellants 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 question(s) of Customary Law.

Issues and questions relating to evaluation of evidence and the restraint of Appellate Court from tampering with the findings of facts by a trial Court (except in circumstances of averting error that can lead to miscarriage of justice), appear to belong to the realms of common law principles and procedure of trial of cases, outside the contemplation or purview of Customary Law. Thus, the beautiful authorities cited by the Appellant in the cases of Ogunmuyiwa Vs Odukoya (2009) All FWLR (pt. 454) 1526; Nwokorobia Vs Nwogu (2009) 5 KLR (pt. 267) 1303; Teriba Vs Adeyemo (2010) 4 KLR (pt. 281) 1583, etc appear inapplicable in the circumstances.

I think until the scope of issues and matters capable of being appealed against from the Customary Court of Appeal to the Court of Appeal, is expanded by an Act of the National Assembly, pursuant to section 245(1) of the 1999 Constitution, beyond the present restrictive interpretation by the Apex Court, no complaint of legal infraction can be entertained as appeals from Customary Court of Appeal by this Court in Civil causes and matters, except the same is a complaint on a question of Customary Law, that is, one for construing of what constitutes Customary Law and application of the same. See again the case of Okorie & Ors Vs Chukwu (2014) LPELR – 23744 (CA):

“It appears obvious, as per the decided authorities from the Supreme Court, that 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 issue of Customary Law, simplicita… I believe this position of the Constitution was intentional, probably to make the Customary Court of Appeal a final Court of litigation at that level.” See also Chukwu Vs Customary Court of Appeal & Ors: CA/PH/1009/2008, delivered by this Court on 21/8/2014; Pam vs Gwom (2000) FWLR (pt. 1) Ohari Vs Akpoemonye (1999) 1 Sc 96.

(a) Who founded the Land

(b) How the founder founded the land and

Olujinde vs Adeagbo (1988) 2 NWLR (pt. 25) 238.

Appellants’ Counsel argued that the findings of the trial Court that Appellant traced the evolution of the land, was found by the Court below to be unsupportable and unsupported by legal evidence, as there was no root of title traced down the line; that there was absence of nexus between the Appellants and the alleged three sons – Ololo, Onara and Onyeukwu. Thus, the findings of the trial Court was perverse as appellants did not prove their traditional history: He relied on the case of Olohunde Vs Adeyoju (2000) 10 NWLR (pt. 676)562; (2000) 6SCNJ 470; (2002) FWLR (pt. 24)1355; Ojokolobo Vs Alamu (1987)3 NWLR (pt.61) 377; (2004) All FWLR (pt. 237) 579.

Counsel had argued that there was no conflict between the traditional evidence led by the two sides, just as the appellate Lower Court found out; that the Case of Kojo II Vs Bonsie (supra) only applies, when there is conflict between the traditional evidence led by the plaintiff and by the defendants. He relied on the Supreme Court case of Olokolobo vs Alamu (supra) to support the fact that the case of Kojo II V Bonsie only applies where there is conflict in traditional evidence; saying that in such a situation, the Court ought to dismiss the evidence of the Plaintiffs and cannot resort to the rule in Kojo II V Bonsie; that the Court can only resort to the rule in Kojo II V Bonsie upon being satisfied that the traditional evidence of both sides, separately, considered, have each passed the cogency and credibility tests and found to be entitled to probative value. He relied on the case of Eboade Vs Atomesin (1997)5 NWLR (pt. 506)590; (1997) SCNJ 13 – where it was declared that the rule in Kojo 11 V Bonsie was not intended to be applied where one side has completely failed to put forward a traditional history, capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history. Counsel also relied on Eyo Vs Onuoha (2011) All FWLR (pt. 574) 1; Alade Vs Awo (1975)4 SC 215; Runsewe Vs Odutola (1996) 4 NWLR (pt. 44) 143.

Thus, Counsel said, where evidence of traditional history is not contradicted and is found to be cogent, such evidence can support a claim for declaration of title; that it is only where such evidence of traditional history is found to be inconclusive that the case must rest on the question of other facts relied on at the trial.

In this case Counsel submitted that the Respondents diligently and meticulously traced their root of title to Obiogu; the chain of genealogy and acts of ownership and control, prior to when Ogbede was allowed into the Land; and the line of unbroken chain of succession from the founder to the claimant.

Counsel further submitted that the trial Court would not have rushed to the rule in Kojo II Vs Bonsie (supra), if it had dispassionately looked at the cogent traditional history, unchallenged evidence of Timothy Nkazi in Exhibit E, that of the uncontroverted testimonies of Asomugha Ukonu in Exhibit C, and Livinus Okeke in Exhibit D as well as the undenied features in Exhibit F; that it was after the meticulous consideration of the above that the Court below allowed the appeal, saying:

“First, is the fact that there could not be two founders of the land in dispute. If Ikem was the founder, he could not have been the son of Amala. If Amala was the founder, Ikem would have inherited the land in dispute from him. This destroys the base of the traditional history aduced by the Respondents. It cannot therefore stand. Secondly, there is the issue of broken chain in the genealogy with regard to the traditional history. The respondents did not adduce evidence linking them with the original owner or founder of the land in dispute. This is fatal to their case. The rule in Kojo II Vs Bonsie (supra) envisages a situation where there are conflicts in traditional histories of both parties. In the present case, I hold that there are no conflicts. The Court below was in error in its resort to and use of the rule in Kojo II Vs Bonsie. It is only when there are conflicts that the stem and branches, meaning acts of possession could be resorted to. The Court below was therefore wrong . . .”

I am afraid those conclusions by the appellate lower Court, as per page 561 of the Records of Appeal, which were based on meticulous review of the evidence adduced by the two sides at the trial Court, have not been challenged by the Appellants, apart from merely asserting that the appellate Court can not interfere with the findings of the trial Court, which had the opportunity to hear and watch the witnesses and note their demeanour.

Of course, Appellants had also conceded that the appellate Court can tamper with the findings of the trial court, where the same is found to be perverse and errorneous and capable of causing miscarriage of justice. That was the purport of the case of Nwokorobia Vs Nwogu (2009) 5 KLR (pt. 267) 1303 and Ogunmuyiwa Vs Odukoya (2009) All FWLR (pt. 454)1526 etc (ably), cited and relied upon by the Appellants).

Appellants never challenged the conclusions of the appellate lower Court that from the evidence adduced at the trial Court, Appellants (defendants’) they did not establish the founder of the land in dispute and were unable to establish unbroken chain in genealogy linking them with the founder, Ikem or Amala, whom they speculated and that Ikem, if he was the founder, could not have been the Son of Amala, and if Amala was the founder, then Ikem would have inherited the land from him Amala!

And that with such state of evidence, where there was no conflict in the traditional history adduced by the plaintiffs (Respondents herein) compared with inconclusive traditional evidence by the Defendants (Appellants), there was no basis to invoke the rule in Kojo II Vs Bonsie (supra).

The Rule in the Ghanian case of Kojo II Vs Bonsie (1957)1 WLR 1223; (2001) Vol. 86 LRCN 1492, was propounded by Denning M.R., when he delivered the judgment of the Privy Counsel and said:

“Where there is conflict of traditional history, one side or the other must be mistaken yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history by reference to the facts in recent years as established by evidence by seeing which of the two competing histories is the more probable.”

That Rule, I think, is only applicable where the traditional histories recounted by each side as evidence, as plaintiffs and Defendants are conflicting and inconclusive, and recourse is, therefore, had to other means, like acts of ownership and/or possession to determine one (the party) with better title. See the case of Etim & Ors Vs Umoh & Anor. (2014)LPELR – 22730 (CA), where my Lord CC Nweze JCA (as he then was) said on the Rule in Kojo II Vs Bonie (exceptional cirumstances created to prove title under traditional history), thus:

“Perhaps, one recognisable exception could be found when, under the exceptional circumstances created by the rule in Kojo II Vs Bonsie (1957)1 WLR 1223, 1226, acts of possession and ownership may be allowed to resolve evidence of conflicts in traditional histories, Mogaji VS Cadbury Nig. Ltd. (1985) 16 NSCC (pt.11) 959, 990-991. This was not the position at the Lower Court. The Plaintiff anchored his claim on traditional history. He failed to prove his pleaded root of title. In the circumstance, it was even unnecessary for the lower court to consider acts of ownership and/or possession. The reason is simple: such acts would no longer be acts of possession but acts of trespass. Balogun Vs Akanji (1988)1 NWLR (pt. 70) 301; Fasoro Vs Beyioku & Ors (1988) 2 NWLR (pt. 76) 263; Oyadare Vs Keji (2005) 1 SC (pt.1) 19; 25″

Applying that principle in the case of Obasi Vs Onwuka (1987) 1 SC 233, at 277 Oputa JSC said

”…In other words, though proof of title by traditional history, evidence may have its roots in ancient history, it must have its stem and branches on modern history, to be conclusive.”

That was also the basis of the decision of the lower appellate Court in this appeal, after their review of the evidence before the trial Customary Court, when it said:

“…It would be observed that the main plank upon which the rule in Kojo II Vs Bonsie rests is the conflict in the traditional histories of both parties. But where the traditional evidence of any side has any gaps or broken chain then such history is inconclusive. There would therefore not be the issue of conflict between their traditional histories. I accept the views of the Appellants’ Counsel as grounds by legal authorities on how the land was founded which is the second element considered by the Lower Court. I therefore hold that the traditional history of the Appellants was conclusive. The Court below, I hold, was in error when it held that the traditional history of the appellants was inconclusive. On the other hand, the traditional history adduced by the Respopndents was defective in two ways. First, the fact that there could not be two founders of the land in dispute. If Ikem was the founder, he could not have been the father of Amala. If Amala was the founder, Ikem would have inherited the land in dispute from him. This destroys the base of the traditional history adduced by the respondents. It cannot therefore stand. Secondly, there is the issue of unbroken chain in the genealogy with regard to traditional history. The Respondents did not adduce evidence linking them with the original owner or founder of the land in dispute. This is fatal to their case.” See page 561 of the Records.

As earlier stated in this judgment, Appellants in this appeal never challenged that findings reached after the review of the evidence before the trial Court, which faulted the earlier findings that the traditional history by the two sides were inconclusive, hence its resort to the rule in Kojo II Vs Bonsie (supra). Appellants were therefore raising unnecessary heavy storm by saying that the appellate Lower Court departed from the findings of the trial Court, which by Law, had the preserve of evaluating the evidence adduced at the trial; and that the Court below had no grounds for tampering with the finding without advancing plausible reasons for doing so.

Of course, it can be seen from the decision of the Lower appellate Court, that it had advanced plausible and valid reasons to justify the dumping of the findings of the trial court, as the same were errorneous and perverse, occassioning miscarriage of justice. See the case of Ogunmuyiwa Vs Odukoya (2009) All FWLR (pt. 454)1526 at 1539 (cited and relied upon by the Appellants), which permits tampering with findings of facts of a trial Court which are patently wrong or not supported by evidence on record. See also Nwokorobia Vs Nwogu (2009)5 KLR (pt. 267) 1303 at 1323.

In the case of Achilibu Vs Anyanwu (2013) All FWLR (pt. 696)483 the Supreme Court in stating exception to the rule that appellate Court does not normally interfere with the findings of the trial Court said this occurs.

“…where there is a misdirection by the trial Court. Misdirection occurs when the issues of facts in the case for the parties or the law applicable to the issues raised are not fairly, appraised or considered or misconceived or the law applicable is incorrectly applied by the trial Court, as a result there, would be a miscarriage of justice, if the decision reached is allowed to stand. Where a trial Court had drawn wrong inference from primary facts, the appellate court can reject the inference and make what it considers to be the right inference, supported by evidence. Where a trial Court has failed in its duty to properly consider the evidence before it, which led it to draw wrong conclusions from the evidence it accepted, the Appeal Court will be perfectly justified in reevaluating and reconsidering the whole evidence, in order to arrive at a just decision” Abia Vs Ekwealor (1993) 6 NWLR (Pt.302) 643; Highgrade Maritime Services Ltd (HMS) Ltd Vs First Bank of Nigeria Ltd (1991) 1 NWLR (Pt.167) 290; Onwuka Vs Omogui (1992) 3 NWLR (pt.230)393; Okoja Vs Ishola (1982) 7 SC 314; Finnih Vs Imade (1992)1 NWLR (Pt.219) 511

I think the Lower Court interfered in this case properly, to correct obvious errors and perversity in the findings of the trial Customary Court, to avert a miscarriage of justice. I therefore resolve the issue against Appellants and dismiss the appeal.

Appellants shall pay the cost of this appeal, assessed at Thirty Thousand Naira Only (N30,000.00) to the Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the illuminating judgment of my learned brother I. G. Mbaba, JCA. He has characteristically thrashed all the teething issues that arose from this Appeal. I have nothing to add than to endorse his findings and conclusion that this Appeal is unmeritorious.

I agree with my Lord’s conclusion that the learned trial Appeal Judges of the Customary Court of Appeal were right in interfering with the findings of the trial customary Court that the traditional histories of the parties as adduced in that court were inconclusive hence the invocation of the Rule in Kojo II v. Bonsie (1957) 1 WLR 1223. The principle is said to offer guidelines to courts in the evaluation of evidence as to which of the versions of the competing but conflicting traditional histories is more probable where the parties pleaded traditional history as their root of title. It has been held that the principle is in-applicable where a plaintiff for instance relies on acts of Ownership and possession numerous and positive enough and spanning several years. See Balogun v. Akanji (2005) 10 NWLR (Pt.933) 394 and Odofin v. Ayoola (1984) 11 S.C. 72.

Thus, in order to succeed on traditional history as proof of title, it is not enough for the party to plead perse that he and his predecessors-in-title own the land but he must go further to trace the pedigree or origin of the land and prove (a) the founder of the land (b) how the land was founded and (c) the particulars of intervening owners through whom he claims the land. Trial Courts have also been admonished to be wary in concluding that a party’s version of the traditional history is improbable simply because there are minor discrepancies with the facts pleaded, unless such discrepancies go to the foundation and are substantially at variance with the pleadings.

In the instant case, from the copious excerpts of the learned Judges of the Customary Court’s reasoning at page 22 of the lead judgment of my learned brother, and the fact that those findings were not challenged here in Appeal, the Customary Court of Appeal was right to have set aside the perverse findings of the Customary Court dictated by the application of the Rule in Kojo II v. Bonsie (Supra). See Buhari v. INEC (2008) 19 NWLR (Pt.1120) 246 at 412 paras A.G.

It is for this reason and fuller reasons advanced in the lead judgment that I also dismiss the Appeal and abide by the Order as to costs.

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 agree with his reasoning and conclusions therein in dismissing the appeal. I only to wish make a few comments on the timely intervention of the Customary Court of Appeal in arresting the trend inherent in the decision of the lower court which was fraught with errors and which could only have wrecked further hardship in the form of a miscarriage of justice.

The appellant had found it most appropriate in complaining against the lower appellate court’s interference in the findings of the lower trial court by evaluating the evidence adduced thereat and most especially for departing from the lower trial court’s findings. But from what has been easy to gather from this appeal is that from the grounds filed and as argued before the lower court, a proper evaluation or appraisal of the evidence adduced at the level was not made, thus, giving the lower appellate court the leeway to intervene. It has been the law at all times, that it is not the function of an appellate court to interfere with the findings of fact of the court of trial except where there are cogent reasons for doing so. In the case of JOSEPH OYEWOLE VS. KARIMU AKANDE & ANOR (2009) LPELR (SC) OGUNTADE, JSC had cause to make the following observations:

“…in Chief Victor Woluchem vs. Chief Simon Gudu & Ors. (1981) 5 SC 178 at 197 – 198 (Reprint) this court, per NNAMANI JSC said; the principles under which an appeal court would interfere with the findings of a lower court have been laid down by several authorities of this court and in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of court of appeal to substitute its own views for the views of the trial court. See Folorunsho vs. Adeyemi (1975) NMLR 128 CAW: A. M. Akinloye vs. Bellow Eyiyola & Ors. (1968) NMLR 92 at 95: Balogun vs. Agboola (1974) 10 SC 111. That of course does not mean that an appellate court is completely shut. Certainly not, for if it were so the appeal itself would be pointless. The interference must, however, be in accordance with the principles that have been laid down over the years. If the judgment of the trial court can be demonstrated to be affected or full of material inconsistencies and inaccuracies or if the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved or has completely gone wrong, the court of appeal will interfere. Also if the trial court takes a decision which is clearly perverse it will be open to the court of appeal to set aside such a decision. See Lucy Onowan & Anor. vs. J. J. I. Iserhien (1976) NMLR 263 at 265: see also Nabham vs. Nabham (1967) NMLR 192. These principles are based on sound common sense…”

Having carefully examined the records of appeal in this case, it is clearly discernible to say the least that the lower appellate court could not have interfered at a better time. To say that the lower appellate court had cogent compelling and competent reasons to interfere is to re-echo the obvious. But for the Lower Appellate court’s interference, this court believes that grave miscarriage of justice would have been occasioned in the matter. I too will endorse the award of the sum thirty-thousand (N30,000.00) cost against the Appellants in favour of the Respondents.

Appearances

Chief Uzoma Onyeike KSCFor Appellant

AND

Ngozi Olehi Esq.For Respondent