JAMES ENYINNAYA (for and on behalf of Umuhikeobide Umuoduokehi Umuapu Ohaji) v. CHIEF CALLISTUS OTIKPO & ANOR (2015)

JAMES ENYINNAYA (for and on behalf of Umuhikeobide Umuoduokehi Umuapu Ohaji) v. CHIEF CALLISTUS OTIKPO & ANOR

(2015)LCN/8080(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of July, 2015

CA/OW/411/2013

RATIO

APPEAL: ISSUE FOR DETERMINATION; WHETHER ISSUE FOR DETERMINATION PF APPEAL MUST ARISE OR DERIVE FROM THE GROUNDS OF APPEAL
Of course, the law is trite that issue for determination of appeal must arise or derive from the grounds of appeal, which must, in turn, flow from or be located in the judgment appealed against. See the
Obosi Vs NIPOST (2013) LPELR – 21397 (CA) “… where a ground of appeal alleges misdirection or error in law, the particulars and the nature of misdirection, or error in law shall be clearly stated. Of course, there is avalanche of authorities to the effect that the particulars of a ground of appeal must be in tandem with the ground of appeal, for the ground to be competent see Ajaokuta Steel Co. Ltd vs. Role (2012) 53 WRN 37; Aribo vs. CBN (2011) 12 NWLR (Pt. 1260) 12; Olufeagbu vs Abdul Raheem (2009) 18 NWLR (Pt. 1173) 384. per. ITA G. MBABA, J.C.A.

APPEAL: WHEN CAN APPEAL LIE FROM DECISIONS OF THE CUSTOMARY COURT OF APPEAL TO THE COURT OF APPEAL AS OF RIGHT WITH RESPECT TO ANY QUESTION OF CUSTOMARY LAW
In appeals emanating from the Customary Court of Appeal, for a ground and issue there from to be competent and valid in this Court (Court of Appeal), the same must be on question(s) of Customary law, pursuant to section 245 (1) of the 1999 Constitution (as amended) See the Supreme Court case of PAM Vs GWOM (2000) FWLR (Pt. 1); Ohai Vs Akpoemonye (1999) 1 NWLR (Pt. 588) 521. See the case of Okereke Vs Adiele (2014) LPELR – 24103 CA, where it was held:
“By the said Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended; ‘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.’ In the various interpretations of this Section of the Constitution by the Appex Court, it is clear that, this Court (Court of Appeal) is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for construing of issue of Customary Law, simplicita.” See also Okorie & Ors Vs Chukwu (2014) LPELR 23744 (CA).
It was further held in that case of Okereke & Ors Vs Adiele (Supra) where it was argued that the lower Court betrayed misapprehension of evidence relating to root of title and erred on issue of identity of the land indispute it was held by this Court that such cannot constitute grounds of appeal on question of Customary law, It was further held that:
“… Any ground of appeal which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted.” per. ITA G. MBABA, J.C.A.

APPEAL: THE IMPLICATION A GROUND OF APPEAL IN AN APPEAL FROM CUSTOMARY LAW WHICH IS NOT FOUNDED ON QUESTION(S) OF CUSTOMARY LAW
In the same strength, a ground of appeal in an appeal from Customary Court of Appeal, which is not founded on question(s) of customary law, is unreasonable and invalid, and is not permitted. See the decision of this court in the case of Ukaegbu Vs Agbakwuru & Ors: CA/OW/241/2010, delivered on 17/4/2015, where we said in pages 11-12:
“Of course, this Court has a duty to consider whether or not a ground(s) of appeal is competent to invoke the jurisdiction of this Court to consider its merit. We have held, several times, that the court can, on its motion, strike out a ground of appeal that is defective on the face of it. See Maina Vs Abdulllahi (2013) LPELR – 21822 (CA) . . . one of such reasons relates to the competence of the grounds of appeal, whether the same is on a question of Customary Law, when it is an appeal from the Customary Court of Appeal to the Court of Appeal.” per. ITA G. MBABA, J.C.A.

PRACTICE AND PROCEDURE: WHEN THE RULE IN THE GHANAIAN CASE OF KOJO II V. BONSIE CAN BE APPLIED

LAND LAW: IDENTITY OF LAW: WHETHER IDENTITY OF LAND CAN ARISE WHERE THE PARTIES KNEW THE LAND THEY WERE TALKING ABOUT

Also issue of identity of land cannot arise where the parties clearly knew the land they were talking about and land claims to in there respective suits (which were consolidated) See Idakwu Vs Ibrahim & Anor (2011) LPELR – 8936 CA; Anyanwu Vs Uzowuaka (2009)13 NWLR (pt.1159) 445 at 476 and Garba Ora Vs Chibin & Ors (2013) LPELR 22614 CA. per. ITA G. MBABA, J.C.A.

JUSTICES

R.C. AGBO PJ Justice of The Court of Appeal of Nigeria

I.I. AGUBE Justice of The Court of Appeal of Nigeria

I.G. MBABA Justice of The Court of Appeal of Nigeria

Between

JAMES ENYINNAYA
(for and on behalf of Umuhikeobide Umuoduokehi Umuapu Ohaji) Appellant(s)

AND

1. CHIEF CALLISTUS OTIKPO
2. JOHN AGUGUO IROEGBU
(for Umuchukwuere Umuapu Ohaji) Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): The Appellant, as plaintiff at the trial Customary Court, in suit NO. CC/HJ/22/2006 sued the Respondent’ (as defendants), claiming:

a) “A Declaration that Plaintiffs are entitled to the grant of customary right of occupancy to the land in dispute known as and called “Ala Mbi Umuchikobike” situate at Umuodukehi Umuapu, Ohaji.

b) An order for forfeiture of the land in dispute.

c) Perpetual injunction restraining the defendants, their servants, agents privies and others, howsoever described, from further entry into the land in dispute” (see pages 127 – 128 of the Records of Appeal).

The Respondents, also as Plaintiffs, claimed against the Appellant (as Defendant) in suit No. CC/HJ/17/2008, seeking:

a) A Declaration that the Plaintiffs are entitled to the grant of customary right of occupancy to the land in dispute known as and called “Oku Igbo or Okwu Okpu” situate at Umugwehie, Umuapu.

b) An Order of forfeiture of the land in dispute.

c) Perpetual injunction restraining the defendants, their servants, agents, privies and others, however described, from further entry into the land in dispute called “Oru Igbo or Okwu Okpu” in Umuapu, Ohiaji. (see pp 249 – 252 of the Records of Appeal)

The two suits were consolidated on 20/5/08 and heard together by the trial customary court, such that the Respondents’ case became a counter-claim. (See page 255 of the Records).

At the end of the trial, the Customary Court gave judgment to the plaintiff (suit No. CC/HJ/22/06) and dismissed the counter claim (suit No. CC/HJ/17/2008). See pages 408 – 450 of the Records. The Defendants, as Appellants, appealed to the Customary Court of Appeal, in Appeal No. CCA/A/60/2012, on 7/2/2012. The Customary Court of Appeal (lower Court) allowed the appeal only on issue three, that the Appellant proved better title to the land to have been entitled to judgment. The lower Court said:

“In conclusion, I hereby resolve issue 3 against the Respondents and in favour of the Appellants. Accordingly, this appeal succeeds on issue 3 above which I regard as the principal or main issue. I hereby make the following orders:

1) “This appeal is allowed.

2) Judgment of the trial court in consolidate suit No. CC/HJ/22/2006 and CC/HJ/17/2008, delivered on 27th January, 2012 is hereby set aside.

3) The Plaintiff/Respondent’s suit No. CC/HJ/22/2006 is hereby dismissed.

4) The claims/reliefs sought by the Defendants/Appellants in their cross action No. CC/HJ/17/2008, except the relief for forfeiture, which I consider inappropriate, is hereby granted.

5) Costs in favour of the Appellants are assessed at N10,000.00”. (See page 741 of the Records).

Dissatisfied with the above decision, Appellant (who was Respondent at the lower Court, and Plaintiff at the trial Court) appealed, as per the Notice of Appeal on pages 744 – 747 of the Records of Appeal, filed on 19/7/2013. Appellant filed Amended Notice of Appeal on 6/8/14, which was deemed duly filed on 23/9/14 by this Court, and he disclosed 4 grounds of Appeal. Appellant filed his brief of argument on 6/8/2014, which was deemed duly filed on 23/9/14. He distilled four (4) Issues for determination, as follows:

1) Whether the lower Court was right in holding that the Respondents proved a better title to the land in dispute to be entitled to judgment even when they failed to establish the identity of the land which their claim relates, as required by law – Ground 1.
2) Whether the lower Court was right in holding that, the trial Court misapplied the principle of inconclusive rule on traditional history as decided in Kojo II vs. Bonsie – Ground 2.
3) Whether the lower court was right in holding that, Exhibit ‘J’ has superiority over Exhibit ‘C’ and ‘E’ in the determination of recent acts of possession over the disputed land – Grounds 3.
4) Whether the Respondents, who by their own admission that the land in dispute belongs to or is the share of Gwehie from his father Chukwuere, can maintain the suit for Umuchukwuere, when the land has ceased to be family land and of Chukwuere, upon partition – Ground 4.

Appellant also filed a Reply Brief on 6/2/15, upon being served with the Respondents’ Brief, filed on 24/10/2014 and deemed duly filed on 10/2/15. In the Respondents’ brief, 4 Issues were also distilled for the determination of the Appeal, as follows:

1) In the circumstances of this case, was the trial Court right to have raised the issue of identity of the land suo motu, argued same and found the identification of the land by the Respondent incompetent without affording the parties opportunity to address on it – Ground 1.
2) Whether the lower Court was wrong when it held that the trial Court misapplied the inconclusive principle as derivable from the rule in Kojo vs. Bonsie – Ground 2.
3) Whether Exhibits ‘C’ and ‘E,’, expressing act of ownership and possession of the land in dispute, is (sic) of any importance, when proof of title to the land upon which the said documents were to be pedestalled is not made out by the Plaintiff/Appellant as to compare with Exhibit ‘J’ – Ground 3.
4) Whether the Respondents, who by their own admission that the land in dispute belongs to or is the share of Gwehie from his father, Chukwuere, can maintain the suit for Umuchwuere when the land has ceased to be family land of Chukwuere upon partition – Ground 4.

When the appeal was heard on 8/6/2015, Counsel, on behalf of the parties, adopted their briefs and urged us, accordingly.

Arguing the appeal, learned Counsel for the Appellant, D. O. Agbo Esq, who settled the Brief of Appellant, on Issue 1, submitted that the lower Court was not right in holding that the Respondents proved a better title to the land in dispute, to be entitled to judgment, in the face of the findings of the trial Court, that respondents failed woefully to establish the identity of land in dispute. He said that the law is settled that in a claim for declaration of title to land, the foremost duty of the claimant is to establish the identity of the land, with certainty, accuracy and precision, such that a surveyor can, from the record, produce an accurate plan of such land. He relied on the case Ekpemupolo Vs. Edremoda (2009) 8 NWLR (Pt 1142) 166; Otanma Vs. Youdubagha (2006) 1 SC (Pt 111) 23; Dada Vs. Dosunmu (2006) 9 SC 4.

Counsel listed five (5) facts which he said were common grounds making the proof of the identity of the land in dispute an issue. The facts were that the claim was for a declaration of title to land; none of the parties filed a survey plan; evidence, as recorded at the locus inquo, revealed that Appellant showed the land in dispute to be the compound of the 1st Respondent, on the left side of the road, while the Respondents insisted that the land in dispute was not only the compound of the 1st Respondent (as shown by Appellant) but a vast area, including the compound and stretched across the Shell Road, to the right side (page 348 of the Records); that parties were not ad idem as to the identity, extent and dimension of the land in dispute; and that the land in dispute was the portion given to Gwehie, one of the 9 sons of Chukwuere, upon partition. He relied on the case of Aremu Vs. Adetoro (2007) 16 NWLR (Pt. 1060) 244 and said that, having failed to establish the identity of the land in dispute, with certainty, the Respondents’ suit ought to have been dismissed. He relied on the case of Okwaranonobi Vs. Mbadugba (2013) 17 NWLR (Pt. 1383) 255 at 278; Ekpenupolo Vs. Edremoda (2009) 8 NWLR (Pt. 1142) 166; Anya Vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135.

Counsel added that the trial Court rather made better findings on the identity of the land in dispute, that it was not proved, with certainty, by the Respondents he said that that findings were valid and subsisting, having not been appealed against at the lower Court. He relied on the case of CBN Vs. Igwillo (2007) 14 NWLR (Pt. 1054) 393; CCCTC Vs. Ekpo (2008) 6 NWLR (Pt. 1083) 362.

On Issue 2, Counsel answered in the negative, and submitted that assuming, without conceding, that the Respondents established, at the trial Court, the identity of the land to which their claim related, that the trial Court properly applied the principle in Kojo II vs. Bonsie, by arriving at the decision that the traditional history of the Appellant was more probable than that of the Respondents and found in his favour. He submitted that, where there are two competing traditional histories, the best way to determine which of them is more probable is to test them by reference to the facts and/or event in recent years as established by evidence. He relied on the case of Morenikeji Vs. Adegbosin (2003) 8 NWLR (Pt. 823) 612; Okegbemi Vs. Akintola (2008) 4 NWLR (Pt.1076) 53 at 68.

Counsel said that the trial Court was right to have resorted to the rule in Kojo II Vs. Bonsie (supra) to resolve the issue of traditional evidence by the parties; that the findings of the trial Court on numerous acts of possession by the Appellant (founded on the rule in Kojo II Vs. Bonsie) were not Appealed against by the Respondents; that despite the various findings of fact by the trial Court as to the competing traditional histories of the parties, the numerous recent acts of ownership and possession, not appealed against, the lower Court went off tangent to hold:

“I think this was where the trial Court got it all wrong and derailed, because when placed side by side, it is overwhelmingly obvious that the traditional history evidence and acts of ownership and possession adduced by the Defendants appear more credible, more probable and stronger than that adduced by the Plaintiff/Respondent. The trial Court misapplied the inconclusive rule on traditional history given by parties as enunciated in Kojo II vs. Bonsie, by jumping over evidence of possession/ownership and ownership of the adjoining lands, as against its earlier finding that the Defendant/Appellant led systematic traditional evidence in support of their history, without leaving gaps or creating mysterious or embarrassing linkages which are difficult to explain.” See page 739 of the Records.

Counsel submitted that the trial Court did not find that any of the traditional history as led by the parties at the trial was “inconclusive”, therefore the question of misapplication of the Rule in Kojo II Vs. Bonsie did not arise; that it was rather the lower Court that misapplied the Rule in Kojo II Vs. Bonsie (supra).

On Issue 3, Appellant submitted that the determination of recent acts of possession in recent time in resolving the issue of title to land is not factored in the superiority of the recent acts of the parties; that what is paramount is the act of possession by each of the contending parties in recent years; that when acts of possession in recent time is resorted to or applied in the determination of title to land, what the Court considers is recent acts of possession and not which of the acts is superior, in terms of age; that it is the act done by the parties, without any challenge from the other party in recent years. Counsel submitted that the lower Court erred in the determination of the acts of recent possession, when it accorded superiority to Exhibit J, made in 1961, over Exhibits C and E made in 1995/1999, to determine the issue.

On Issue 4, Counsel said it was not in dispute that the Respondents, as per their cross action, took out a counter-claim as representing or for Umuchukwuere Kindred, Umuapu; that during the trial DW1, DW2 and DW3 testified to the effect that the land in dispute belonged to Gwehie; that at the death of Gwehie, the land was inherited by his son, Iroegbu; when Iroegbu died, Uwali, who was the head of Umugwehie Kindred, inherited the land in dispute on trust for Umugwehie Kingdom by inheriting the land and holding same on trust. Counsel referred us to pages 225, 297 – 300 of the Records of Appeal.

Counsel therefore queried the interest of the Umuchukwuere which the Respondents represented in the suit, when the land in dispute ceased to be the family estate of Chukwukere, upon partitioning and became that of Gwehie who, he said, was not a party to the suit! He submitted that the Respondents were clearly strangers and were meddlesome interlopers to the land, acclaimed to be that of Gwehie exclusively; that the legal effect is that Umuchukwuere has no interest in the subject matter of the suit and the Court cannot find in their favour.

Counsel submitted that the law is settled, that once a family land is partitioned, joint interest ceases and the member of the family to whom such land has been granted, becomes absolute owner of the land, under native law and custom; that where family property that belongs to a family is shared or divided among the constituent members of that family, whereby each member is conveyed with his portion, such member retains exclusive ownership of the portion of the family land given to him, and the family ownership of such property is, automatically, brought to an end. He relied on the case of Jaiyeoha Vs. Abioye (2003) 4 NWLR (Pt. 810) 397 at 423; Olorimfemi & Ors Vs. Eyinle Asho & Ors (2000) 2 NWLR (Pt. 643) 143 at 156.

Counsel asserted that, in this case, the moment Chukwuere partitioned the land in dispute among his 9 sons, each of the sons owned, absolutely, the portion conveyed to him; that the land in dispute ceased to be Chukwuere property for which the Respondent could initiate an action claiming title to the portion given to Gwehie; that going by the evidence that the land in dispute was the portion given to Gwehie, that, completely, rendered the evidence of the traditional history of the Respondents unreliable, as the land no longer formed part of the family land of Chukwuere, for which a declaration of title can be made on behalf of Umuchukwuere Kindred, represented by the Respondents.

Counsel urged us to resolve all the Issues for the Appellant and allow the appeal.

Responding, learned Counsel for the Respondents, J. U. Eze Esq (who settled the brief of Respondents), on their Issue 1, quarreled with what the trial Court did – whether it was right for the trial court to raise, suo motu, the issue of identity of land and also, suo motu, argue it and find the identification of the land by the Respondents incompetent, without affording the parties opportunity to address on it?

Learned Counsel had claimed that the above issue derived from ground one of the appeal, which claim the Appellant’s Counsel contested as per the Reply brief, that that the issue did not flow from or derive from the ground one of the appeal.

Appellant’s Amended Ground one, (without its particulars) says:

“The lower Court erred in law when it held “the Plaintiffs/Respondents have not adduce (sic) cogent and credible evidence of traditional history in support of their claim, to establish how they came on the land and proof of various act (sic) of ownership exercised by them on and around the land in dispute as to entitle them to a declaration of title…” even when the Respondents were unable to identify the land to which their claim relates, with certainty, accuracy and precision before the trial Court .”

I agree with learned Counsel for the Appellant, that the Respondents’ Issue one, which rather complains of what the trial Court did, did not derive or flow from the ground one of the appeal. This Court has no power to consider, directly, appeals against what the trial Court did, as if it sat on appeal over the judgment of the trial Customary Court. Our jurisdiction is over the way the Customary Court of Appeal, resolved the issues and matters arising for consideration at the trial Customary Court, and so, whatever complaint the Respondent had against the decision of the trial Customary Court, should have been raised and canvassed at the Customary Court of Appeal and, where the latter failed to handle it to the satisfaction of the Respondents, then can appeal, there from, be canvassed before us at the Court of Appeal. This Court has no jurisdiction over the decision of the Customary Court, Magistrate Court or District Court, until the same goes through the mill (High Court or Customary Court of Appeal) and appeal there from comes to us. Therefore, to the extent that the Issue 1 by Respondents is a stranger to the ground one of the appeal, the same is hereby struck out for incompetence. See the case of Ossai Vs. FRN (2013) 13 WRN 87; Ogoyi Vs. Umagba (1995) 9 NWLR (Pt. 419) 283; Ahmaddazomo Vs. Saleh Musa (2013) LPELR – (2014) All FWLR (Pt. 743) 1866; (2013) LPELR – 20761 (CA); Sheka Vs. Bashari (2013) LPELR – 21403 (CA).

On the Issue 2, whether the lower Court was wrong when it said the trial Court misapplied the principle derivable from the rule in Kojo II Vs. Bonsie, Counsel answered in the negative. He argued that the principle requires that both histories must be probable, and because they are both probable, conflict arises, leading to deadlock, which the Court must resolve, by looking outside the history, for facts in recent years in the evidence to resolve; that for the rule in Kojo II Vs. Bonsie to apply, therefore:

a) There must be conflict in traditional histories given by both parties.
b) The conflict arises, where the two traditional histories are both probable,
a. And because both traditional evidence are probable, conflict arises to set up competition between the parties thereto
b. The rule in Kojo II vs. Bonsie comes to play
c. Being a resort to fall back upon facts in recent years, as established by evidence
c) To establish which of the competing histories is more probable, in the circumstances.

Counsel submitted that the importation of the rule in Kojo II Vs. Bonsie into this case was untenable, because

a) The two sets of traditional histories presented by both parties were not all plausible and probable, as to generate conflict or deadlock needing a resort to the rule; that the Respondents’ traditional history was acknowledged as satisfactory, while that of the Appellant was, ex-facie, not plausible as it appeared inherently self inconclusive. He relied on pages 426 – 428 of the Records.

b) Where one of the two traditional histories is plausible and probable (as that of the Respondents) the rule in Kojo II Vs. Bonsie cannot apply and the trial Court has a duty to find for the party whose root of title is proved.

Counsel submitted that the trial Court had mistaken the evidence of the two parties, and wrongly, called in aid the rule in Kojo II Vs. Bonsie, after it had held the traditional evidence of the Respondents as being spotless proof, without blemish. He relied on page 427, lines 25 – 33 of the Records of Appeal, where the trial Court made the following findings:

“Given the above, I think that the Defendants’ traditional evidence, on its face, appears to have been “led systematically in support of their history, without leaving gaps, or creating mysterious or embarrassing linkages which are difficult to explain,” as enjoined in the Supreme Court’s decision in Akanbi vs. Salawu (2003) 10 MJSC 188, 192 ratio G. I do not agree with the Plaintiff’s Counsel to conclude at this stage, that the Defendants’ traditional evidence has failed without testing the same against the numerous facts and evidence before the Court. I prefer to regard the defects in the Defendants’ traditional evidence, which the Plaintiffs’ Counsel pointed out, as “inconsistency” and/or “conflict,” until tested against the other facts and evidence…”

Counsel submitted that the Court has no right to reprobate where it had a probated; that having accepted the Defendants’ traditional history; it should not turn round to fragment it. He relied on the case of Morenikeji Vs. Adegbosin (2003) 8 NWLR (Pt. 823) 612, where the Supreme Court said:

“Each of the traditional histories called by the parties can be likened to a package. The Court had to accept one package or the other. Once the Court accepted fully the content of the package, a court could not broach the package it had accepted and then reject some of its contents.”

Counsel further argued that, even if the trial Court were assumed to have stated the applicable law, in the circumstances, where the traditional histories were both in conflict (which he did not concede), he queried whether the rule in Kojo II Vs. Bonsie could be applied in the situation, where the trial court jumped into considering adjacent lands and boundary residences, without considering any event in recent years before the court, and proceeded to accept the traditional history put forward by the Appellant? He said that the law was trite, that where a court of trial fails to make findings on material and important issues of fact, or approaches the evidence called by the parties, wrongly, the appellant Court will have no alternative but allow the appeal. He relied on Karibo & Ors Vs. Grand & another (1992) 3 NWLR (Pt.230) 426 at 441. He argued that the trial Court, totally, departed from the rule in Kojo II Vs. Bonsie, in resolving the alleged conflicts in the traditional evidence of the parties; that searching for residences adjacent to the land, is not in tandem with making reference to facts in recent years as established by evidence; that the person living outside the confines of the land (Appellant) cannot demonstrate better act of possession and ownership than the person who lives within the confines of the land (Respondents). See pages 143 – 144 of the Records; Counsel also argued that the Respondents where those who sold 18 stands of the trees in the land to timber merchants in 1952, and the same were cut down and processed, without any challenge (Exhibit H); that the Respondents also granted a portion of the land in dispute to the Jehovah Witness group in 1961, to build their worship hall, without any interference by the Appellant (Exhibit J); that a court given to appraise “facts in recent years as established by evidence”, in the circumstances of this case, cannot, parity of any imagination, ignore the events and facts of 1952 and 1961 and the fact that the Respondents are living inside the land, and rather resort to chase issues of adjacent land and peripheral residences.

Counsel called us to compare the traditional evidence of the parties, as summarized by the trial Court on pages 427 (Respondents) and 426 – 427 (Appellant), and noted that the trial Court had said that the traditional evidence by Appellant were inconclusive; that it followed that the inconclusive evidence by a party cannot qualify to invoke the rule in Kojo II Vs. Bonsie, where the other party’s traditional evidence is conclusive and more probable. He relied on Eze Vs. Atasie (2000) 6 SCNJ 209; Mogaji Vs. Cadbury (1985) 2 NWLR (Pt. 7) 393; Balogun Vs. Akanji (1988) 1 NWLR (Pt. 70) 301.

Counsel submitted that the lower Court was right in faulting the application of the rule in Kojo II Vs. Bonsie by the trial Court, especially as the trial Court resorted to contiguity and adjacent land principles, ignoring the actual evidence of recent years, relating to acts of possession and ownership, whereof Respondents were in the land. He relied on the case of Inko-Tariah Vs. Goodhead (1997) 4 NWLR (Pt. 500) 453 – on the fact of evidence of the Respondent not being controverted and should be accepted as the correct version.

On Issue 3, whether Exhibits C and E, expressing acts of ownership and possession of the land, is of any importance, when proof of title to the land, which, the said documents were to be pedestalled, was not made out by the Appellant, as compared to Exhibit J. Counsel answered in the negative and said that the law is settled, that, where pleaded title to the land has not been proved, as in this case, it will be unnecessary to consider acts of ownership and possession, which are no longer acts of possession but acts of trespass. He relied on Balogun Vs. Akanyi (1988) 1 NWLR (Pt.70) 301; Oyadare Vs. Keji (2005) All FWLR (Pt. 247) 1583; Osu Vs. Nwadialo (2008) All FWLR (Pt. 409) 479 at 497; Fasoro Vs. Bayioku (1988) 2 NWLR (Pt.76) 263.

Counsel argued that because Appellant failed to prove their case at the trial, that was why the trial Court resorted to scout for facts to make up for the lapses in the case, and that led the trial Court to the perverse application of inconclusive rule as in Kojo II Vs. Bonsie. Counsel relied on Exhibits J and H – made in 1961 and 1952 (Agreement of grant of land to the Jehovah Witness group, and for sale of timber to dealers, respectively). He argued that the Exhibits C and E, relied upon by the Appellant, related to the renovation of the building of the Jehovah’s Witness Hall in 1995 (which still traced to the Respondents’ Act in 1961; that the PW3 who tendered the Exhibits C and E was a member of the group in 1970 and had said:

“By that 1970, our kingdom hall was previously on the land where it is today in the 1960s, which I cannot tell how it came to be there” (page 176 of the Records).

Thus, Counsel said, Exhibit J had more priority value and was of stronger probative value than the secret deal of 1995/1999 – Exhibits C and E. He argued that equity cannot recognize the agreement of 1995 and 1999 more than the exercise of ownership expressed by the Respondents in 1961.

On Issue 4, Counsel submitted that the two descendants of Gwehie (to which the land was apportioned) were the Respondents moreover that there was no law that stopped anyone invoking the assistance or joint effort of the larger family in contest, such as fighting a common enemy. Tracing the family history, Counsel said Gwehie was the son of Chukwuere, and John Oguguo Iroegbu (2nd Respondent) is one of the descendants of Gwehie and that John Oguguo Iroegbu substituted Calistus Nlemchukwu Iroegbu, the original 2nd Respondent, who died. He said that the descendants of Gwehie were those who brought the cross action (Respondents), because their tenant was being evicted from the land belonging to Gwehie; that the father of James Otikpo (1st Defendant) was put into the land by Iroegbu, son of Gwehie, as tenant, over 129 years ago, without interference, till the judgment of the trial court in 2013.

Counsel urged us to resolve the issues for the Respondents and dismiss the appeal.

RESOLUTION OF ISSUES.

The four issues formulated from the four grounds of appeal by the Appellant are, basically, challenging:

1) The issue of identity of the land in dispute and which side proved better title.

2) The application of the principle of inconclusive rule in the case of Kojo II Vs. Bonsie to resolve conflict in traditional evidence i.e. – whether the lower court rightly overruled the trial court’s decision?

3) Whether the lower court was right in its evaluation of evidence – on the superiority of Exhibit J to Exhibit C and E, and as to the admission that the land had been partitioned to Gwehie (son of Chukwuere) and whether Respondents were of that line of Gwehie, entitled to claim the right thereof?

On the whole, the issues on their faces, call on us to review and re-evaluate the evidence, to appraise the decision of the lower court, whether it rightly decided on the issue of identity of the land in dispute, and on the conflict in traditional history (whereof the trial judge said evidence of each side was probable, and so invoked the rule in Kojo II Vs Bonsie to resolve), whether the lower court was right to fault the resort to that principle and, finally, holding that the evidence by the Respondents was superior and more probable to grant them title to the land, as there was no proof that DW1 (1st Respondent) was customary tenant of the Appellant.
Can such issues (as above) be matters or questions of Customary law, pursuant to Section 245 (1) of the 1999 Constitution, relating to jurisdiction of this court to hear appeal from Customary Court of Appeal?
Though the Respondent raised no objection to the appeal, I believe this Court cannot close its eyes to obvious disability or defect on the face of the grounds of appeal and issues for determination, that robs this court of power or jurisdiction to determine the appeal.
See the case of Ayoade Vs Spring Bank plc (2014) 4 NWLR (pt. 1396) 93; (2013) LPELR – 207 63, where the Court held:
“…the Appellate Court is still seized with powers to consider any defect apparent on the face of the Notice and Grounds of Appeal and on the issues distilled there from, and to rule thereon, as the justice of the case may require. See Order 6 Rules (3), (6) of the Court of Appeal Rules, 2011; Garba & Ors vs Umuani (2014) ALL FWLR (Pt. 722) 1715.”
See also Ahmaddozom Vs Musa (2014) ALL FWLR (Pt. 743) 1866, where we held that “the blunders of the Respondent to raise valid preliminary objection to the hearing of the appeal, notwithstanding, the Appellate Court still has the powers to invoke its jurisdiction to consider any defect apparent on the face of appeal, capable of affecting its competence.” See also Okereke Vs Adiele (2014) LPELR – 24103 (CA).
Of course, the law is trite that issue for determination of appeal must arise or derive from the grounds of appeal, which must, in turn, flow from or be located in the judgment appealed against. See the
Obosi Vs NIPOST (2013) LPELR – 21397 (CA) “… where a ground of appeal alleges misdirection or error in law, the particulars and the nature of misdirection, or error in law shall be clearly stated. Of course, there is avalanche of authorities to the effect that the particulars of a ground of appeal must be in tandem with the ground of appeal, for the ground to be competent see Ajaokuta Steel Co. Ltd vs. Role (2012) 53 WRN 37; Aribo vs. CBN (2011) 12 NWLR (Pt. 1260) 12; Olufeagbu vs Abdul Raheem (2009) 18 NWLR (Pt. 1173) 384.
In appeals emanating from the Customary Court of Appeal, for a ground and issue there from to be competent and valid in this Court (Court of Appeal), the same must be on question(s) of Customary law, pursuant to section 245 (1) of the 1999 Constitution (as amended) See the Supreme Court case of PAM Vs GWOM (2000) FWLR (Pt. 1); Ohai Vs Akpoemonye (1999) 1 NWLR (Pt. 588) 521. See the case of Okereke Vs Adiele (2014) LPELR – 24103 CA, where it was held:
“By the said Section 245 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended; ‘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.’ In the various interpretations of this Section of the Constitution by the Appex Court, it is clear that, this Court (Court of Appeal) is barred from entertaining any appeal emanating from the Customary Court of Appeal, except the same rests on question(s) calling for construing of issue of Customary Law, simplicita.” See also Okorie & Ors Vs Chukwu (2014) LPELR 23744 (CA).
It was further held in that case of Okereke & Ors Vs Adiele (Supra) where it was argued that the lower Court betrayed misapprehension of evidence relating to root of title and erred on issue of identity of the land indispute it was held by this Court that such cannot constitute grounds of appeal on question of Customary law, It was further held that:
“… Any ground of appeal which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted.”
In the same strength, a ground of appeal in an appeal from Customary Court of Appeal, which is not founded on question(s) of customary law, is unreasonable and invalid, and is not permitted. See the decision of this court in the case of Ukaegbu Vs Agbakwuru & Ors: CA/OW/241/2010, delivered on 17/4/2015, where we said in pages 11-12:
“Of course, this Court has a duty to consider whether or not a ground(s) of appeal is competent to invoke the jurisdiction of this Court to consider its merit. We have held, several times, that the court can, on its motion, strike out a ground of appeal that is defective on the face of it. See Maina Vs Abdulllahi (2013) LPELR – 21822 (CA) . . . one of such reasons relates to the competence of the grounds of appeal, whether the same is on a question of Customary Law, when it is an appeal from the Customary Court of Appeal to the Court of Appeal.”

I have already reproduced the issues for determination, formulated on the grounds of appeal. I also earlier reproduced the ground 1 of the appeal. The other grounds (2 – 4), without their particulars, were:

2) The lower Court erred in law when it held “the trial Court misapplied the inconclusive rule of traditional history given by the parties as enunciated in Kojo II Vs Bonsie by jumping over to evidence of possession and ownership of adjoining lands . . .”

3) The lower Court erred in law, when it held “There is no disputing the fact that Exhibit ‘J’ made in 1961 is superior to Exhibits ‘C’ and ‘E’ made in 1995/1999, because equity cannot recognise the agreement of 1995/1999 more than the exercise of ownership expressed by the Appellants (now Respondents) way back in 1961″

4) The lower Court erred in Customary Law by setting aside the judgment of the Trial Court in the consolidated suit and granting the respondents’ claim in their cross action, when, from the evidence at the trial court, the land in dispute belongs to Umugwehie extraction and not Umuchuwuere” kindred.

I have earlier said that the grounds 1 to 4 of the appeal and the issues there from, touch on identity of the land in dispute and evaluation of evidence by the lower Court, upon its review or re-evaluation of the evidence led at the trial court, to reach its (lower Court’s) conclusion. Appellant’s quarrel is that the lower Court was wrong to overrule the trial Court in its (trial Court’s) resort to the rule in Kojo II Vs Bonsie, which the trial Court invoked to resolve what it called conflict in the traditional evidence of the parties, in favour of the Appellant. Of course, the lower Court held that the trial Court misapplied the rule in Kojo II Vs Bonsie and that by the clear evidence of the Respondent (which was even applauded by the trial Court), there was no stalemate in the traditional evidences of the parties, as the evidence of the Respondent was better or more probable. The issue 3 was on the superiority of Exhibit ‘J’ compared to the Exhibits ‘C’ & ‘E’ which also touched on evaluation of evidence; the same with Issue 4, which said that the Respondents admitted that the land had been partitioned to Gwehie, but that the case was not initiated by the descendant(s) of the said Gwehie.

Because, none of the above is an issue or question(s) of customary law, this Court lacks the vires to consider the merit of the appeal. See the case of King Nwabueze Ukaegbu Vs John Agbakwuru & ORS: CA/OW/241/2010, delivered on 17/4/2015 (page 13), wherein we said:
“… 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 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 restraint of Appellate Court from tampering with findings of fact of the trial Court … appear to belong to the realms of common law principle and procedures of Courts, outside the contemplation or purview of customary.”
In the case of PAM Vs Gwom (2000) FWLR (pt. 1) 1, my lord, Ayoola JSC, said:
Where the decision of the Customary Court of appeal turns purely on facts or on “question or procedure, such decision is not with respect to a question of Customary Law, notwithstanding that the applicable law is Customary Law. Applying the test stated above to the present case, it is evident in regard to grounds of appeal before the Court of Appeal that ground 1, thereof, which complains that the judgment of the Customary Court of Appeal is against the weight of the evidence: grounds 2 and 3 thereof, which in substance complained of misdirection of that Court in regard to nature of transaction between the parties … and ground 6 which raises the question of the nullity of the proceedings, having regard to the constitution of the trial Court, do not at all relate to a decision of the Customary Court of Appeal in respect of any question of Customary Law.”
See also the case of Ukachukwu & Ors Vs Ihejirika & Ors (2014) LPELR – 24102 (CA); and Duru Vs. Okoro (2015) LPELR – 24483 (CA) –
“…Issues relating to fair hearing, evaluation of evidence, doctrine of estoppels etc are never issues bordering on question(s) of customary law … 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 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.”
In the case of PAM Vs Gwom (Supra) the Supreme Court gave guide on how to determine when an appeal raises question(s) of customary law, when Ayoola JSC, said:
“I venture to think that a decision is respect of a question of customary law, when the controversy involves a determination of what the relevant customary law is and application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the relevant customary law is and that Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no question as to customary law arises. However, when, notwithstanding the agreement of the parties as to the applicable customary law, there is a dispute as to the extent and manner in which such applicable customary law determines, regulates the right obligation or relationship of the parties, having regard to the facts established in the case, a resolution of such dispute can, in my opinion be regarded as a decision with respect to a question of Customary law. Where the decision of the Customary Court of Appeal turns purely on facts or on question or procedure, such decision is not with respect to a question of customary law, notwithstanding that applicable law is customary law.”

It is in light of the above that, I think, the Issue 2 of this appeal which derived from ground 2 of the appeal, that the lower court erred in law when it held “the trial court misapplied the inconclusive rule on traditional history given by the parties as enunciated in Kojo II Vs. Bonsie by jumping over the evidence of possession/ownership of adjourning lands…” cannot be regarded as a question of customary law, although the same rests on application of customary law principles, as Appellant merely quarreled with the appraisal and application of the facts and evidence adduced at the trial Court to that principle of law by the lower Court to overturn the decision of the trial Customary Court. Appellant did not raise any question(s) of customary law in the circumstances of the application of the rule in Kojo II Vs. Bonsie by the Customary Court of Appeal, to defeat the position of the trial Customary Court.
Even if (for the sake of arguments) the above issue 2 (and ground 2) were to be elevated to a question of customary law, in that the rule in Kojo II Vs. Bonsie is founded in customary law, Appellant, in my view, can still not succeed in the appeal for the following reasons:

The Rule in the Ghanaian 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 Council 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 is 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 (evidence) recounted by the two sides are both probable, or are conflicting and inconclusive, and a recourse is therefore had to other means, like acts of ownership and/or possession, to determine which party has a better title. See the case of Etim & Ors Vs. Umoh & Anor (2014) LPELR – 22730; Ukachukwu Vs Ihejirika (2014) LPELR – 24102 (CA).
In that case of Etim & Ors Vs. Umoh & Anor (Supra), my lord, Nweze JCA (as he then was) held:
“Perhaps, one recognizable exception could be found, when, under exceptional circumstances created by the rule in Kojo II Vs Bonsie (Supra), acts of possession and ownership may be allowed to resolve evidence of conflicts in traditional histories . . . This was not the position at the lower Court. The Plaintiff anchored on 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 Beyiohu & Ors (1988) 2 NWLR (Pt. 76) 263; Oyadare Vs Keji (2005) 1 SC (Pt. 1) 19 at 25.”
What the above implies is that, where a plaintiff relies on traditional evidence to prove his root of title to the land, but fails to establish his claims by that means, he cannot resort to the fact that he is in possession or that he has exercised various acts of ownership over the land, to succeed, as his said acts of ownership/possession would simply evident his trespass to the land, having failed to establish his title as, alleged. See Oyakare Vs Keji (2005) ALL FWLR (pt. 247) 1583 where the Supreme Court, per Kutigi JSC said:
It is settled by a chain of authorities that, where the pleaded title to land has not been proved, as in this case, it will be unnecessary to consider acts of ownership and possession which are no longer acts possession but acts of trespass. See also Balogun Vs Akanji (1988) 1 NWLR (pt. 70) 301; Fasoro Vs Beyiohu & Ors (1988) 2 NWLR (pt. 76) 263.
In this case, the lower Court had faulted the application of the rule in Kojo II Vs. Bonsie by the trial Customary Court, on the ground that the same was not even necessary, in the light of the evidence adduced, and the findings of the trial Court. The trial Court had said (of Respondent’s evidence):
“The summary of Defendants traditional evidence, as rendered by the DW3 in his evidence in chief, is that the Defendants inherited the land in dispute from their ancestral father CHUKWUERE . . . He traced the devolution of the land from that Chukwuere through the following intervening owners who were heads of the Defendants’ family until it got to the present Defendants namely: Gwehie, Iroegbu, Umah, Igwe, Chika, Amadi Wondi Iroegbu, Johnson Ogugua Iroegbu, Peter Nwali Iroegbu, James Ugorji Iroegbu, Isaac Umah Iroegbu and Elder Anthony Anaebo Iroegbu, who is still living. The DW3 also gave extensive evidence on the acts of ownership and possession these intervening owners carried out on the land during their respective tenures. Given the above, I think the Defendants’ traditional evidence on its face, appears to have been “led systematically in support of (their) history without leaving gaps, or creating mysterious or embarrassing linkages which are difficult to explain,” as enjoined in the Supreme Court’s decision in Akanbu Vs Salawu (2003) 10 MJSC 188, 192 Ratio G. I do not agree with the Plaintiffs’ Counsel to conclude at this stage that the Defendants’ traditional evidence has failed, without testing the same against the numerous facts and evidence before the Court. I prefer to regard the defects in the Defendants’ traditional evidence, which the plaintiff’s Counsel pointed out as ‘inconsistency’ and/or ‘conflict’ until tested against the other facts and evidence . . .” Pages 427 of the Records.
On the Appellant’s evidence, the trial Court had said, on page 426:
“Notwithstanding the foregoing, even if the error has remained unnoticed or the omitted words were not contained in that evidence, I will still be of the view that the entire traditional evidence of the Plaintiff ought not to fail on that score alone. I think that given the nature of the evidence before the Court, the best such an omission could have achieved was to render the Plaintiffs traditional history inconclusive in which circumstance the case will have to rest on the question of facts . . .”
Having made such profound findings, as above, on the evidence of both sides, that Defendants’ (Respondents’):
“led (evidence) systematically in support of (their) history, without leaving gaps, or creating mysterious or embarrassing linkages which are difficult to explain,” and “I do not agree with the Plaintiff’s Counsel, to conclude at this stage, that the Defendants’ traditional evidence has failed without testing the same against the numerous facts and evidence before the Court,” and comparing that to the findings on Plaintiff’s evidence: “I think, given the nature of the evidence before this Court the best such an omission could have achieved was to render the Plaintiff’s traditional history inconclusive, in which circumstances the case will have to rest on questions of fact…,” the trial Court, was in grave error, to have tried to make a case for the Appellant, instead of following the strict findings it had made. That made the resort to the rule in Kojo II Vs Bonsie, completely, unnecessary. It was, therefore, the traditional history by the Appellant that was found to be inconclusive by the trial Court, not that of the Respondents, which was adjudged systematically made, without leaving gaps or creating mysterious or embarrassing linkages difficult to explain.
In the case of Eze Vs Atasie (2000) 6 SCNJ 209 at 219, the Supreme Court said:
“If evidence of traditional history fails, the Plaintiff cannot abandon his pleading and rely on acts of ownership over a long period of time, numerous and positive which is only available to support title based on immemoriality i.e. time beyond human memory.”
It should also be said that if the Plaintiff’s traditional history fails or is adjudged inconclusive, while that of the Defendant is conclusive and strong, there is no room to resort to acts of recent years, to assist in resolving conflict, as there is no conflict, in the circumstances.
In the case of Ukachukwu Vs Ihejirika (Supra) we held that the rule in Kojo II Vs Bonsie cannot be applicable, except where the traditional histories recounted by both sides (as Plaintiff or Defendant) are inconclusive or conflicts each other, therefore creating room for resort to some other means, like acts of recent years like in exercise of possession/ownership, to determine who has better title.
The lower Court had faulted the application of the rule in Kojo II Vs Bonsie by the trial Court, thus;
“The trial Court misapplied the inconclusive rule on traditional history given by the parties as enunciated in the case of Kojo II Vs Bonsie by jumping over to evidence of possession/ownership of adjoining lands, as against its earlier findings that the Defendants/Appellant led systematic traditional evidence in support of their history, without leavings gaps, or creating mysterious or embarrassing linkages which were difficult to explain. I am of the view that the trial Court wrongly switched into a consideration of adjourning lands or contiguity of the land in dispute… to arrive at its final decision, because acts of possession/ownership of adjacent or adjourning lands become material only where the traditional histories of both parties are inconclusive, and not in a situation where that of only one party is inconclusive …” Page 739 of the Records.
From my reasoning above, I agree, completely with the lower Court, and add that there was evidence of effective acts of ownership and possession of the land, as per Exhibits J, where Respondents granted part of the land to Jehovah Witnesses to build their Worship Hall in 1961, and Exhibit H, whereof in 1952 they sold timbers on the land to timber dealers. Such acts should have accrued to the benefit of the Respondents in the case, even if the said rule Kojo II Vs. Bonsie were applicable!

In addition to the above profound findings, the evidence that the Respondents (particularly the 2nd Respondent) was of the root of Gwehie Chukwuere, whom the two sides admitted had been apportioned the land, upon the partitioning of the family land, had not been rebutted by the Appellants. As per the findings of the trial Court, on page 427 of the Records of Appeal, the DW3, in his evidence had said that they (Defendants) inherited the land in dispute from their ancestral father, Chukwuere, who deforested the land. He traced the devolution of the land from Chukwuere, through the various intervening owners, until it got to the Defendants (Respondents), who were named to include Johnson Ogugua Iroegbu and the 2nd Respondents! The Respondents had therefore Court and this Court cannot disturb that decision.

I, therefore, resolve the issues against the Appellant, that the appeal, not being on a question of customary law, is incompetent, and, even if it were, is unmeritorious, as the Appellate Customary Court of Appeal was right in its decision, resolving the case for the Respondents. The appeal is dismissed with cost assessed at Fifty Thousand Naira (N50,000.00).

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the opportunity of reading in draft the Judgment of my learned brother, I.G. MBABA, JCA, and I am in complete agreement with his reasoning and conclusion that the Appeal is unmeritorious and should be dismissed.

It is therefore, for the above reasons and the more elaborate reasons advanced by my Lord in his lead Judgment, that I also dismiss the case of the Respondents in the lower Court.

I also abide by the order as to costs.

Appearances

D. O. AGBO ESQFor Appellant

AND

J. U. EZE ESQFor Respondent