ISAAC IHUOMA v. NDUBUISI JAJA WACHUKWU
(2017)LCN/10208(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2017
CA/OW/150/2016
RATIO
APPEAL: THE POSITION OF THE LAW ON WHEN THE COURT OF APPEAL CAN ENTERTAIN APPEALS FROM THE CUSTOMARY COURT OF APPEAL
In the case of Innocent Ihemedu & Anor. Oguamanam Nwakanu & Ors (Supra) this Court held:
The law is well established, that this Court (Court of Appeal) can only entertain appeals from the Customary Court of Appeal, where such appeal, that is, the ground(s) thereof is on question of Customary Law. See Pam vs Gwom (2000) FWLR (Pt.1) 14; (CA) Enyinnaya vs Otikpo & Anor. (2015) LPELR 25529 (CA) and the case of Onyeme & Anor vs. Onumaegbu & Anor. (2016) LPELR – 41092 CA, where this Court held:
“It has been well stated by this Court and the Apex Court, in several authorities, that the Court of Appeal has a very restricted jurisdiction over appeals from the Customary Court of Appeal, as it can only do so pursuant to Section 245(1) of the 1999 Constitution as amended, that is, where the ground of appeal turns on a question or Issue of Customary Law. See Pam vs. Gwom (2000) FWLR (Pt.1) 1 at 12 .“ It is obvious as per the decided authorities “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 Okorie & Ors vs Chukwu (2014) LPELR – 23744 (CA). PER ITA GEORGE MBABA, J.C.A.
GROUNDS OF APPEAL: THE EFFECT OF COMBINING AN INCOMPETENT GROUND OF APPEAL WITH A VALID GROUND OF APPEAL TO RAISE AND ARGUE AN ISSUE IN APPEAL
Even if the said ground one of the appeal were to have merited a consideration as a ground of Customary Law, I think by arguing same in Issue one, jointly with ground 6, which obviously is not a ground of Customary Law, as earlier stated, the same was afflicted and infected with a debilitating virus. See Obosi Vs NIPOST & ORS (2013) LPELR – 21397 (CA); Teln Danboyi Vs Dali Sa’adu (2011) 15 NWLR (pt.1269) 1 at 16 – 17. See also Uzoho Vs Asugha (2017) LPELR – 42073 CA, where this Court held:
“The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence. See Oyebadejo Vs Olaniyi & Ors (2000) LPELR – 6926 CA.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ISAAC IHUOMA Appellant(s)
AND
NDUBUISI JAJA WACHUKWU Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant herein, as Plaintiff at the Customary Court of Nsulu, holden in Mbawsi, filed this Suit, which was later transferred to Customary Court Odida Anyanwu Ibeku; Appellant in the action, CC/NB/3/2002, sought for declaratory and injunctive reliefs over a parcel of land known as and called ?MBARA OKONKO?, situate and lying at Umunkpeyi Village in Umuomainta. He prayed that he was entitled to the Customary rights of occupancy over the land; an order of Court for the 2nd Defendant to accept the redemption fee of N13.00; he also claimed the sum of N500.00 from the Defendants for the continued entry into the land by the Defendants. (Page 7 of the Records).
After hearing the case, the trial Customary Court ruled against the Appellant, dismissing his claim. An appeal against that decision was also unsuccessful, hence, this appeal.
At the trial Customary Court, the 2nd Defendant had, initially, challenged the jurisdiction of the Customary Court to hear the case and was overruled. His appeal thereon to the High Court, was dismissed. On resumption of the trial at the
Customary Court, the 2nd Defendant, again, challenged the competence of the trial Court to hear the Suit, alleging likelihood of bias. That application succeeded at the Customary Court of Appeal and the matter was therefore transferred to the Customary Court Odida Anyanwu, Umuahia Ibeku for trial, de-novo.
The trial commenced de-novo on 11/6/12, and by this time the 1st Defendant, who had earlier pleaded liable, had died, being an old man. At the hearing at the trial Court, Appellant said that trial Court refused to admit some documents tendered by him, namely:
(1) CTC of Customary arbitration titled: ?Settlement of land matter? dated 2/11/1986 between him (Isaac Ihuoma and 2 Ors Vs Dr. Jaja Wachuku (father and predecessor in title of the Respondent) & ors: (the Respondent now claiming the res by inheritance from his father)
(2) CTC of Amended Statement of Defence in Suit No. HIN/38/2000 (Isaac Ihuoma & Anor. Vs J.O. Wachuku & 3 Ors) ? the defendants were sued in representative capacity, including the Respondent herein
(3) CTC of records of proceeding on 17/01/11 in Suit No. HIN/38/200 ? being the
testimonies of 2 traditional rulers who testified as witnesses for the Defendants.
Appellant further alleged that at the close of their respective cases, the Customary Court adjourned to 2/5/2014 to visit the locus in quo and for subsequent adoption of final addresses by Counsel; he said that parties were advised to liaise with the Registrar of the Customary Court to fulfill the conditions (payment of N50,000.00 each) for the visit; that Appellant?s initial payment of N30,000.00 was rejected, (he had promised to balance the outstanding later); that full payment by the Respondent was accepted; but the Court later cancelled the visit to the locus, scolding the Appellant for his inability to make the payment; and the payment by the Respondent was not refunded. Appellant said that the Court adjourned the case for judgment on 6/6/2014, when it decided the case against him (Appellant). Appellant then appeal to the Lower Court.
Appellant said that at the Lower Court, the orders refusing to admit the Arbitration report and the Amended Statement of Defence in Suit No. HIN/38/2000 were reversed and the said documents admitted as Exhibits AD1 and AD2. Yet
still the Lower Court gave judgment to the Respondent, on 2/3/2016.
Appellant raised 6 grounds of appeal in the Notice of Appeal filed on 23/3/2016 (pages 329 to 335 of the Records). He distilled 5 Issues for the determination of the Appeal, in the Appellant brief, filed on 17/6/2016, namely:
(1) In view of the admission of the Certified True Copy of Ohangwa Eze Dibia Ofo Association Arbitration Report (between the Appellant and the Respondent?s father/predecessor in title) dated November 12, 1986, titled ?SETTLEMENT OF LAND MATTER? as EXHIBIT AD1, whether the judgment of the Court below is sustainable. (Grounds 1 and 6)
(2) Having admitted the Amended pleadings of the Defendants (the Respondent herein inclusive) in Suit No. HIN/38/2000 ISAAC IHUOMA VS J.O. WACHUKU & 3 ORS dated 16/04/2005, titled, ?AMENDED STATEMENT OF DEFENCE? as EXHIBIT AD2, whether the decision of the Lower Court is in accord with the evidence before it. (Ground 2)
(3) Whether rejection of the Records of Proceedings on 17/1/2011 and 22/2/2011 (being testimonies of two witnesses of the Defendants in representative capacity, which
included the respondent herein) in Suit No. HIN/38/200? as Exhibit in this matter is lawful.
(4) Whether the decision of the Court below that Appellant failed to establish bias or real likelihood of bias is meritorious.
(5) Whether the decision of the Court below is in tandem with the evidence before the Court.
The Respondent filed his Brief on 18/7/16 and raised six (6) Issues for the determination of the appeal, as follows:
(1) Whether the subject matter or issue in controversy in Exhibit AD1, the report of the Customary arbitration by Ohanqwa Eze Dibia Ofo Association is the same with the parcel of Mbara Okonko land in dispute in this case on the face of Exhibit AD1 and if not, whether the said admission therein as to ownership of the Okpulo land binds the Respondent in this case. (Ground 1)
(2) Whether it can be said from the totality of the evidence and findings that the Lower Court did consider Exhibit AD2, the Amended Statement of Defence in Suit No. HIN/38/2000 and if not whether the decision in Exhibit AD1 is not subsumed in AD2, since the subject matter therein is not the same with the land in dispute (Ground 2)<br< p=””
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(3) Whether the Lower Court was wrong in rejecting the certified true copies of record of proceedings in Suit No. HIN/38/2000 ? ISAAC IHUOMA VS J.O. WACHUKU & 3 ORS in the High Court of Abia State on 17/01/2011 and 22/2/11 as Exhibits in this case. (Ground 3).
(4) Whether the Lower Court erred in law in its decision that the Appellant did not prove the allegation of bias against the trial Court and whether it is proper to raise on appeal for the first time an issue of bias which the Appellant did not raise at the trial Court. (Ground 4).
(5) Whether on a dispassionate consideration of the judgment of the Lower Court, it can be said that the Lower Court did not apply the principle enunciated in Kojo II Vs Bonsie, and whether by the evidence established at the trial, the Lower Court did adopt the proper test or approach in deciding this case in which the Appellant did not prove his traditional history and issue of pledge relied upon by him. (Ground 5)
Appellant filed a Reply Brief, on 2/8/2016, to contest the Issue raised by the Respondent, saying the same had no basis in the Appellant?s appeal, as they did not relate to the
grounds of Appeal, the Respondent having not filed a cross appeal, nor respondent?s notice.
Arguing the Appeal on 22/5/2017, Counsel on both sides adopted their briefs and urged us accordingly.
This being an appeal emanating from the Customary Court of Appeal to this Court, I think it is necessary to subject the grounds of the Appeal, and the Issues donated for the determination of the appeal to scrutiny whether the same, in fact, and by the provisions of the law, can activate the jurisdiction of this Court. See our recent decision in the case of INNOCENT IHEMEDU & ANOR. VS OGUAMANAM NWAKANU: CA/OW/192/2014, delivered on 21/6/17, wherein we said:
?Without waiting to be prompted by the parties, the Court is expected to ensure that the ground(s) of appeal, or the appeal, is properly before the Court, to invoke its jurisdiction. Thus, this Court, under Order 7 Rule 3 of this Court?s Rules 2016 is empowered to look at the grounds of appeal to ensure same can activate the jurisdiction of the Court, and to strike out one that is incompetent.?
?The said Order 7 Rule 3 of the Court of Appeal Rules, 2016, States:<br< p=””
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?Any ground which is vague or general in terms or which discloses no reasonable ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.?
And by Order 7 Rule 6 of the said Court Rules:
?The Court shall have power to strike out a Notice of appeal when an appeal is not competent or for any other sufficient reason.?
Therefore, the Respondent need not raise any objection before the Appellate Court can dispose of an appeal that is incompetent, by reason of the grounds thereof not meeting the standard of the law. There are many authorities to this effect, especially, on the issue that this Court can only entertain appeals from the Customary Court of Appeal on grounds or questions of customary law, only. See Ukachukwu vs Ihejirika & Ors. (2014) LPELR ? 24102 CA; Duru vs Okoro (2015) LPELR ? 24483 (CA); Anozie vs Emerenini & Anor (2016) LPELR ? 40968 (CA); Enyinnaya vs. Otikpo (2015) LPELR ? 25529 CA
?Appellants? 6 Grounds of Appeal in the Notice of Appeal were as follows
(without their particulars):
(1) The Lower Court erred in law when it gave judgment on the disputed land to the respondent after admitting the certified true copy of the OHANGWA EZE DIBIA OFO ASSOCIATION CUSTOMARY Arbitration Report dated November 12, 1986, titled SETTLEMENT OF LAND MATTER, which was in favour of the Appellant.
(2) The Lower Court erred in law, when it admitted as an Exhibit the Certified True Copy of the Amended Statement of Defence in Suit No. HIN/38/2000 ISAAC IHUOMA & ANOR. VS J.O. WACHUKU & 3 ORS. dated 16/4/2005, filed in Abia State High Court, and yet refused to consider same Exhibit in its judgment delivered on 2/3/16.
(3) The Lower Court erred in law when it refused to admit Certified true copy of records of Court in Suit No. HIN/38/2000 IHUOMA VS WACHUKU in the High Court of Abia State on 17/11/2011 and 22/2/2011 as Exhibits for the determination of this matter on the merits in the Court below.
(4) The Lower Court erred in law, when it held that the Appellant did not prove bias against the Customary Court of Abia State sitting at Odida Anyanwu in Suit No. CC/NB/3/2002 ? ISAAC IHUOMA VS NDUBUISI JAJA
WACHCHUKWU
(5) The Lower Court erred in law when it failed to apply the principle in KOJO II VS BONSIE (1957) 1 WLR which was brought to the notice of the Court in determining this matter on the merit.
(6) The Court below failed to apply Section 169 of the Evidence Act and several binding legal authorities cited by Appellant Counsel. See pages 329 to 334 of the Records.
I had earlier reproduced the issues distilled by Appellant from the above grounds of appeal for the determination of the appeal. It can be seen that the grounds 1 and 6 as well as 2, 3 (and the Issues 1, 2, and 3, relating thereto) were on the admission of exhibits, and they had questioned the application of the evidence, thereof, to the appeal by the Lower Court. The grounds 4 and 5 (and the Issues 4 and 5 there from) were on allegation of bias and evaluation of evidence, that is, whether the Lower Court?s decision that appellant failed to establish bias or real likelihood of bias, was meritorious, and whether the decision of the Court below was in tandem with the evidence before that Court.
?I do not think issues of proper admission of documents or rejection of same,
and of ascribing probative value to same, as well as, proper application of document (Exhibit) to the merit or demerit of the case (which has to do with evaluation and application of evidence) are grounds/questions of Customary law, to activate the jurisdiction of this Court, going by the Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and as variously interpreted by this Court and the Apex Court. See the case of Pam Vs Gwom (2000) FWLR (Pt. 1) 14; Nwaigwe Vs Okere (2008) LPELR ? 2095 SC; (2008) 13 NWLR (Pt. 1105) 445 at 475.
In the case of Innocent Ihemedu & Anor. Oguamanam Nwakanu & Ors (Supra) this Court held:
The law is well established, that this Court (Court of Appeal) can only entertain appeals from the Customary Court of Appeal, where such appeal, that is, the ground(s) thereof is on question of Customary Law. See Pam vs Gwom (2000) FWLR (Pt.1) 14; (CA) Enyinnaya vs Otikpo & Anor. (2015) LPELR 25529 (CA) and the case of Onyeme & Anor vs. Onumaegbu & Anor. (2016) LPELR ? 41092 CA, where this Court held:
?It has been well stated by this Court and the Apex Court,
in several authorities, that the Court of Appeal has a very restricted jurisdiction over appeals from the Customary Court of Appeal, as it can only do so pursuant to Section 245(1) of the 1999 Constitution as amended, that is, where the ground of appeal turns on a question or Issue of Customary Law. See Pam vs. Gwom (2000) FWLR (Pt.1) 1 at 12 ? It is obvious as per the decided authorities ? 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 Okorie & Ors vs Chukwu (2014) LPELR ? 23744 (CA)
I think none of the 6 grounds of appeal and the issues distilled there from, deserves the attention of this Court for a review of the judgment of the Lower Court, as the same cannot activate the jurisdiction of this Court.
The ground one, which appeared to have alleged a wrong application of Customary arbitration report (Exhibit AD1) by the Lower Court to the case which ordinarily would have passed as ground of Customary Law. Appellant, in arguing the same, joined it with
the ground 6 of the appeal, which alleged failure of the Lower Court to apply Section 169 of the Evidence Act and several binding legal authorities, cited by Counsel, to distill the Issue one. Joining the grounds 1 and 6 to formulate the Issue 1 therefore infected the said ground one and infirmed it.
Of course, Section 169 of the Evidence Act, 2011, relates to the doctrine of estoppels, which has been held not to be an issue of Customary Law. See Duru Vs Okoro (2015) LPELR ? 24483; Onyeme & Anor. Vs Onumeagbu & Anor (2016) LPELR ? 41092 CA, where it was held:
?Issues relating to? evaluation of evidence, doctrine of estoppels? are never Issues bordering on question(s) of Customary Law.?
See also Enyinnaya Vs Otikpo & Anor (2015) LPELR ? 25529 CA:
I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with evaluation of evidence, within the rights of Appellant to appeal under Section 245(1) of the 1999 Constitution, which confines the right of appeal to question Customary law. Issues and questions relating to evaluation of evidence
and restraint of Appellate Court from tampering with findings of fact of the trial Court? appear to belong to the realms of common law and procedures of Court, outside the contemplation or purview of Customary Law.?
?
I think the appeal should be struck out for incompetence.
Even if the said ground one of the appeal were to have merited a consideration as a ground of Customary Law, I think by arguing same in Issue one, jointly with ground 6, which obviously is not a ground of Customary Law, as earlier stated, the same was afflicted and infected with a debilitating virus. See Obosi Vs NIPOST & ORS (2013) LPELR ? 21397 (CA); Teln Danboyi Vs Dali Sa?adu (2011) 15 NWLR (pt.1269) 1 at 16 ? 17. See also Uzoho Vs Asugha (2017) LPELR ? 42073 CA, where this Court held:
?The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence. See Oyebadejo Vs Olaniyi & Ors (2000) LPELR ? 6926 CA.”
It should also be stated that a consideration of the appeal on its merits, would still not profit the Appellant to reverse the decision of the Lower Court. This is because, as rightly argued by the Respondent, ?Appellant did not mention in Exhibit AD1 that any part of Okpulo Okudem land (subject matter of Exhibit AD1), was on pledge to Respondent?s family. In Exhibit AD1, the Appellant stated that the land in dispute was not sold, leased, mortgaged or given as a gift to Chief Josiah Wachuku Ogbaraegbe, or Chief Josiah Wachuku did not inherit any land in Umunkpeyi.? (See page 3 of Exhibit AD1).?
The above piece of evidence agreed with Appellant?s evidence, under cross examination, at the trial, wherein he admitted he averred in Paragraph 20 of his amended statement of claim (Suit No. HIN/38/2000) that Okpulo Okudem, which he alleged is part of Mbara Okonko, is not on pledge, lease, mortgage, or sold to the Defendants, who were members of Respondent?s family. See pages 32 ? 33 of the Records.
Of course, the Lower Court made a finding that the land in dispute is Mbara Okonko, and that no mention
of it was made in Exhibit AD1, as forming part of Okpulo Okudem land, or that the said Okpulo Okudem land was on pledge to the Respondent. I think that finding was unassailable, because from all indications Exhibit AD1 talked of another land, different from the one in dispute in this appeal, which is Mbara Okonko land.
On pages 32 and 33 of the Records of appeal, the following evidence was adduced, under cross examination:
Question:
?In paragraph 20 of your said amended statement of claim in Suit No. HIN/38/2000 in respect of Okpulo Okudem land, you averred categorically that the land in dispute in that case was not on pledge, lease, mortgage or sold to the defendant.?
Answer by Appellant: ?That Statement is correct. The area is defined by my Survey Plan.?
Question: ?By your Evidence, the land now in dispute before the Court was named Mbara Okonko, because it was used as a meeting place for Okonko cult.?
Answer: ?Yes.?
Question: ?Do you know the do?s and don?ts of Okonko Cult or society, as relates to acquisition of property by its members in Ngwa
land.?
Answer: ?I am not a member of Okonko cult.?
Question: ?Do you know that in Ngwa land, once a piece of land is designated as Mbara Okonko, that piece of land automatically belongs to the members of the Okonko cult.?
Answer: ?It is not true?
Question: ?Do you know that no individual member of an Okonko Cult or Society have the right to sell, or pledge out any portion of land belong (sic) to Okonko?
Answer: ?It is not true?
Question: ?It is called Mbara Okonko, because the land belongs to Okonko Society?
Answer: ?It is not true?
Going by the above, I think the Lower Court was right when it failed to give judgment to the Appellant, despite having admitted the Exhibit AD1, which was wrongly rejected by the trial Customary Court. The land in Exhibit AD1 was different from the Mbara Okonko land, which was the subject matter in issue in this case, and no mention of it was made in Exhibit AD1. (See page 321 of the Records). In the circumstances, the appeal should be dismissed.
?
I resolve the Issues against the Appellant and I
think the proper order to make in the circumstance is to strike out the appeal for incompetence. It is accordingly struck out.
Appellant shall pay cost of this appeal assessed at Forty Thousand Naira (N40,000.00) to the Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading the draft of the leading judgment delivered by my learned brother ITA G. MBABA, JCA; and I am in complete agreement with the reasoning and conclusion of his lordship in respect of the appeal.
Accordingly, I too dismiss the appeal and abide by the order in relation to costs as contained in the leading judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the Judgment just delivered by my learned brother ITA G. MBABA, JCA.
I agree that the appeal is incompetent as none of the grounds of appeal of the appellant can activate the jurisdiction of this Court. I am impressed with the way my learned brother has resolved the issues raised in this appeal.
?This appeal deserves to be struck out for incompetence. Counsel need to know that the pedestal on which the jurisdiction
of this Court and indeed the jurisdiction of the lower Court rest is the sacrosanct provision of the 1999 Constitution as amended. If an appeal to this Court from a decision of the Customary Court of Appeal does not fall within the provision Section 245 of the 1999 Constitution as amended, it cannot be smuggled in. Our jurisdiction is ousted. Similarly an appeal to the lower Court must be fixable within the provision of Section 282 of the 1999 Constitution. No magic wand can give life to an appeal that does not fall within the above provision of the Constitution.
?
I abide by the order as costs made in the leading judgment.
Appearances
CHIEF EVARISTUS D. EGBEBUFor Appellant
AND
O.C. NWOSUFor Respondent
