KEVIN ONYEME & ANOR v. STEPHEN ONUMAEGBU & ANOR
(2016)LCN/9029(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of October, 2016
CA/PH/537/2008
RATIO
APPEAL: TO WHAT EXTENT CAN AN APPEAL LIE FROM THE CUSTOMARY COURT OF APPEAL
The law 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; that is Issue calling for the interpretation or construing a question of customary law. See the case of Pam vs. Gwom (2000) FWLR (pt. 1) 1 at 12, where the Supreme Court held:
“The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of the Customary law and/or such other matters as may be prescribed by an Act of the National Assembly that can extend this right by providing for such matters In the Circumstance, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary law? When the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary law, notwithstanding that the applicable law is Customary law.
The above case was cited and relied upon by this Court in the case of Okorie & Ors Vs Chukwu (2014) LPELR – 23744, where it was held:
“It is obvious as per the decided authorities from the Supreme Court, that the position of the apex Court on Issue of appeals from 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.
And in the case of Enyinnaya Vs Otikpo & Anor (2015) LPELR – 25529 (CA) this Court held:
“I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal under Section 45 (1) of the 1999 Constitution, which confines right of appeal to the questions of Customary law. Issues and questions relating to evaluation of evidence and restraint of Appellate Court from tampering with findings of the of the trial Court? appear to belong to the realms of common law principle and procedures of Court, outside the contemplation of Customary law.
Also in the case of Duru Vs Okoro (2015) LPELR – 24483 (CA) this Court said:
“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. PER ITA GEORGE MBABA, J.C.A.
PROCEDURE: COURT PROCESS; EFFECT OF AN AMENDED PROCESS OF COURT
it is elementary principle of law that once a process of court has been amended, the original process ceases to be, as it is subsumed and replaced by the new and amended process, and so the Amended process becomes the authentic legal instrument for reference and use in the determination of the any issue in controversy. See also Garau vs. Olomu (2013) LPELR – 20340SC Therefore when the trial Court granted the amendment, it dated back to when the originating summons was issued and the action would continue as if the amendment was inserted from the beginning. See Adewumi Vs. A. G. Ekiti State (2002) 2 NWLR (pt. 751) 474; Imonikhe Vs A. G. Bendel State (1992) NWLR (pt. 248) 396; Oja vs. UBN Ltd (1999) 10 NWLR (pt. 623); Shell Petroleum Dev. Co. Nig Ltd Vs. Ambah (1999) 3 NWLR (pt. 593) 1. PER ITA GEORGE MBABA, J.C.A.
FAIR HEARING: CAN A PARTY WHO HAS BEEN GIVEN OPPORTUNITY TO STATE HIS CASE SUBSEQUENTLY COMPLAIN OF DENIAL OF FAIR HEARING
It should also be noted that a party who has been given due opportunity to appear in Court and State his case, cannot validly complain of denial of fair hearing, if he failed to utilize the opportunity. The authorities on this is replete. See GTB Plc. Vs. Fadco Industries Nigeria Ltd & Anor (2013) LPELR – 21411 CA; FHA Vs. Kalejaiye (2011) All FWLR (pt. 562) 1633; Newswatch Comm. Ltd Vs Atta (2006) 12 NWLR (pt. 993) 144; Nnaji & Anor Vs Alozie (2014) LPELR – 24014. PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: DOES A PARTY HAVE TO TESTIFY PERSONALLY BEFORE OBTAINING JUDGMENT
Appellants Counsel should also know that a party does not have to testify, personally, in Court to obtain judgment, if he had called sufficient evidence from witnesses to entitle him to judgment. See Dikwa vs Modu (1993) 3 NWLR (pt. 280) 170 at 183. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. KEVIN ONYEME
2. PETER U. ONYEME Appellant(s)
AND
1. STEPHEN ONUMAEGBU
2. CYRIACUS ONUMAEGBU Respondent(s)
ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of the Customary Court of Appeal of Imo State in Appeal No. CC/OW/A/36/2006, delivered on 3rd day of July, 2007 by Hon. Justice C.U. Anwukah (Presiding), Hon. Justice A.B.C. Egu (Member) and Hon. Justice P.I. Okpara (Member), wherein the Lower Court dismissed the appeal against the judgment of the trial Customary Court, which had given judgment to the Plaintiffs (now Respondents) at the trial Court, in Suit No. CC/IS/4/2003.
The claim of the Plaintiffs at the trial Customary Court was for:
(a) A declaration that under the native law and custom of Umunwodo Ororina Okwara Umundugba in Isu Local Government Area of Imo State, the 2nd Plaintiff is the head of the family of late Mgbeke of Umunwodo Ororina Okwara Umundugba
(b) A declaration that the 2nd Plaintiff is entitled to be succeeded in the position as the head of Mgbeke family.
(c) An Order of injunction restraining the defendants by themselves, their agents, servants or privies from disturbing or interfering with the Plaintiff rights, privileges and functions as Head of Mgbeke family of
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Umunwodo Ororina Okwara Umundugba in Isu LGA of Imo State.?
The above relief was the amended version of the original pleadings found on page 4 of the Records, and the amendment was made on 4/4/2005 by the trial Court, after the Plaintiffs had closed their case. (See pages 31 ? 32 of the Records)
Appellants claimed in this appeal that the 2nd Defendant (now 2nd Appellant) was not served with any process of Court in the case, ab initio, but that he managed to put up appearance at the trial Court on a few occasions, during the trial; that he did not plead to either the original claims of the plaintiffs or to the amended version of the said claims; that the initial claims of the Respondents with which they presented their case and were cross examined, were amended to the extent that they (Respondents) had presented a different case, from that stated in their original claim; that Appellants were not represented by Counsel at the time the said amendment was taken and granted.
After full hearing and address of Counsel, the trial Court found for the Respondents and declared the 2nd Respondent the head (Diokwara) of the family of Mgbeke, and
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ordered the Appellants to stop parading themselves as Diokwara Mgbeke of Umunwodo Ororina Okwara Umundugba. Appeal against that decision was dismissed by the Court below, hence this further appeal by the Appellants.
?The Notice and grounds of appeal, filled on 2/10/07, are on pages 127 to 129 of the Records of Appeal. Appellants filed their Brief of Arguments on 28/11/2014, after obtaining extension of time to compile and transmit the Records of Appeal on 29/10/14. They distilled 4 Issues for the determination of the appeal, from the 5 grounds of Appeal. The Issues were:
(1) Whether the Lower Court was correct to have held that the trial Customary Court had jurisdiction to entertain the Suit. (Ground one)
(2) Whether the Lower Court was correct to have held that the Appellants were accorded fair hearing by the trial customary Court. (Ground 2).
(3) Whether the Lower Court was correct to have held that the Respondents proved their case and if not whether the Lower Court was correct to have affirmed the judgment given by the trial Customary Court against the 2nd Appellant who was neither served with the original particulars of claim nor given
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the opportunity to plead to the amended claims of the Respondents (Ground 3 and 4)
(4) Whether the Lower Court was correct to have affirmed the judgment given by the trial Customary Court in favour of the 2nd Respondent whereas he neither testified for himself nor did any of the other witnesses testify on his behalf. (ground 5)
The Respondents filed their brief on 6/5/16 and adopted the Issues as distilled by the Appellants, while also challenging the competence of the Issue 4 and ground 5 of the Appeal, saying the same did not raise any question of Customary law and so this Court has no jurisdiction to entertain.
?Arguing the appeal on 29/9/16, learned Counsel for the Appellants, Chief R.C. Ogu, who settled their brief, on Issue one, referred us to the Imo State Customary Court Edict No.7 of 1984, as amended by the Customary Courts Amended Edict of 1994, the ?Jurisdictions of Customary Courts in Civil and Criminal Causes and Matters? Counsel relied on Section 7: ?Causes and Matters relating to Succession and inheritance upon intestacy under customary law and grant of power of authority to any person to administer the estate of
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an intestate under customary law (up to the tune of N20,000.00).?
Relying on the above, Counsel said, that law cannot be stretched to include a declaration of family status, under customary law; that the customary Court and the Lower Courts were wrong in holding that the Customary Court had jurisdiction to entertain the Suit. He referred us to the reasons given by the Lower Court on page 117 of the Records and faulted the reasoning of the Lower Court thereon. He also faulted the resort, by the Lower Court, to the Section 16(1) of the Customary Courts Edict No.7 of 1984, as jurisdiction to cover the decision of the Customary Court; he said the Lower Court?s interpretation of that Section, in relation to the jurisdiction of the Customary Court in this case, is most absurd; that Section 16 (1) of the Edict is intended only to guide the Customary Court or Customary Court of Appeal, as to how it should apply and administer the Customary Law of the area, in cases where it has the jurisdiction to adjudicate on the subject matter of the case pending before it.
Counsel relied on the case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 34, on when a
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Court is said to have jurisdiction to entertain a Suit, and said that the Lower Court invented evidence for the purpose of giving the trial Customary Court the jurisdiction, which it did not have to try the case; that the cause of action was not the sharing of asserts of Mgbeke family and none of the claims before the Court pertained to the sharing of the asserts of Mgbeke family.
Counsel relied on decided cases to say that jurisdiction of Courts are conferred by the Constitution and the enabling statutes in the light of the claims of the Plaintiffs. S.M. Timitimi 7 Ors Vs Chief Anabebe 7 Ors 14 WACA 373; Victor A. Adewumi & Anor Vs The A.G. of Ekiti State & Ors (2002) 2 NWLR (pt.751).
Counsel relied on the case of Ajayi Vs Mil. Administrator Ondo State 7 Ors (1997) 5 NWLR (pt.504) 237 at 277 for the interpretation of words in a statute and submitted that the words used in the Customary Courts Amendment Law 1994 are clear and unambiguous and should have been given their natural meaning; that it is not the duty of Court to rewrite the statue but to give effect to its intention, as may be deduced from the language used in the statute. He
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relied on Unife Development Co. Ltd Vs Kola Adehigbin 7 Ors (2001) FWLR (pt.42) 114; Chief J.I. Madu & Ors Vs Nigerian Union of Pensioners ( 2001) ALL FWLR (pt.84) 32 at 41; Osadebay Vs The A.G. of Bendel State (1991) NWLR (pt.169) 525 at 571; he said it is the duty of Court to interpret the law and not to expound it; that to entertain a matter without jurisdiction by the Court is to embark on exercise in futility. Katto Vs Central Bank of Nigeria (1992) 4 NWLR (pt.214) 126 at 149.
?On Issue 2, Counsel said the Lower Court was wrong to hold that Appellant was granted fair hearing. He argued that it was wrong to have held that the evidence of the Plaintiff was not challenged as the Appellant had challenged the said evidence. Counsel also complained against the amendment which he said introduced a different set of claims at the trial court, and that Appellants were not represented at the Court, then; also that the 2nd Defendant was not served with processes, let along given opportunity or plead to the amended processes. Counsel argued that the Court was wrong to hold that the trial Court properly evaluated the evidence before it, before coming to its
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decision. He called our attention to the findings of the Lower Court on page 121 and said the same was perverse. He referred us to the evidence of DW1 on pages 55 and 56 of the Records, which he said sufficiently challenged the case of the Plaintiffs. He argued that Lower Court fell into the same error of the trial Court, on the issue of proper evaluation of the evidence, and rather rubber stamped what the trial Customary Court did.
He relied on the case of Christopher Akporo 7 Ors Vs Onwuemewalam Ugbalaa & Anor (1995) 8 NWLR (pt.411) 11 at 125 to say that it is not the law that failure to cross-examine on a particular issue means the evidence of the witness has not been challenged, if the party who ought to cross-examine had testified or led evidence in contradiction to the issue, in the course of the trial. He added that in this case the Appellant gave evidence which flatly contradicted the evidence of the Respondents on who was entitled to be the Diokwara of Mgbeke family; that the trial Court should have compared and contrasted the evidence of both sides, to determine which one to accept.
?On Issue three, Counsel submitted that the onus of
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proof in declaratory reliefs is always on the Plaintiff; that the Plaintiffs, woefully, failed to discharge that onus in this case. On the denial of fair hearing to the 2nd Appellant, Counsel submitted that the Lower Court was wrong to hold for the Respondents, after acknowledging that the trial went on without the 2nd Appellant; he, also, argued that it was not correct, as the Lower Court said, that through out the proceedings the 2nd Appellant did not show up or participate in the trial. He said it is significant to state that the writ of summons was never served on the 2nd Appellant and he did not plead to the Suit, and could not have pleaded to the Claims of the Respondents on 29/10/03, when the 1st Appellant took his plea and joined issues with the Respondents. Counsel thereafter listed the dates the 2nd Appellant was present in Court ? 11 times! He added that it is not also true that the Appellants? Counsel was, continually, apologizing for the absence in court of 2nd Appellant, as that happened only once, on 7/2/2005. He admitted that from 21/3/2005 ? the stage of cross examination of PW3, up to the time of judgment, no Counsel
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appeared for the Defendants (Appellants); that Appellants had Counsel only when PW1 and PW2 testified. Thus, the issue of Counsel objecting to the trial, when 2nd Appellant was absent, did not arise. Counsel further said that the Lower Court was wrong to say that the Amendment, merely, inserted the name of the 2nd Plaintiff as head of Mgbeke family line, whereas, the amendment completely charged the case of the Respondents. He relied on the case of Adetutu Vs Aderohunmu (1984) 1 SCNLR 515 at 523 to say that amendment are never granted to place a different cause of action before the trial Court; that it is wrong to grant amendment which would over reach the other side or prejudice same; that the trial Court was in grave error, when in the absence of 2nd Appellant, granted an amendment, which, virtually, changed the case of the Respondents. He relied on the case of Olatunbosun Vs NISER (1988) 3 NWLR (pt.80) 25, on fair hearing.
On Issue 4, Appellant submitted that it was wrong to give judgment to the 2nd Respondent, whereas he did not testify, at all, at the trial, and that the Lower Court was wrong in affirming that decision. He referred us to page 121 of
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the Records, where the Lower Court said that the PW1, who was first Plaintiff, testified for the Plaintiffs, showing he was claiming for himself and for the 2nd Plaintiff (his brother) and so it (Lower Court) saw nothing wrong in the trial Court?s judgment declaring the 2nd Plaintiff the head of Mgbeke family, without his testifying in the case; that a Plaintiffs need not testify in a case, himself, to have judgment, – relying on Dikwa Vs Modu (1993) 3 NWLR (pt.280) 170 at 183.
Counsel argued that the Respondents took out the case in their individual capacities and so each of them had a duty to testify. Counsel, however, admitted that the Amended process showed the 2nd Respondent as the one entitled to the office of the family head of the Mgbeke family.
He finally relied on Oladipupo & Anor Vs Olaniyan & Ors (2000) 1 NWLR (pt.642) 556 at 564 ? 565, to say that a Plaintiff must prove his case with cogent and credible evidence and not take advantage of the weakness of the Defendants. He urged us to resolve the issues for Appellants and allow the appeal, set aside the decision of the Lower Court and of the trial Court, and order for
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fresh trial, before another Customary Court.
Responding, Counsel for the Respondents, E.C. Ekechukwu Esq, who settled the brief, on Issue one, submitted that the subject matter of the Suit relates to succession and inheritance, upon intestacy, under Customary Law, which is clearly within the jurisdiction of Customary Court, as set out in Column One of the 3rd Schedule to the Customary Courts (Amendment) Edict 1994, which, amended Customary Court Edict No. 7 of 1984; he said that Section 14(2) of 1984 Law says:
?A Customary Court shall have and exercise jurisdiction over cases and matters set out in Column 1 of the Third Schedule to this Edict to the extent or limit set out in Column 2 thereof.?
And in Paragraph 7 of the Column 2, the Law provides, as follows:
?Causes and matters relating to Succession and inheritance upon intestacy under Customary Law, and grant of power of authority to any person to administer the estate of an intestate under Customary Law.?
Counsel relied on Section 16(1) of the Customary Court Edict, 1984, which he said, has gone further to state the law, which the Customary is empowered to
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administer; that a calm look at the Respondents? claim would reveal that it relates to the headship of late Mgbeke family, and the person that is entitled to succeed in that position of headship; that this is clearly within the jurisdiction of the trial Customary Court, as provided for by the Section 14(2) of the Edict.
Counsel said that the Court can only look at the case, put forward by the Plaintiff in determining whether it has jurisdiction or not. He relied on the case of Anibi Vs Shotimehim (1993) 3 NWLR (Pt.282) 461 at 477; Anyanwu Vs Ogunewe (2014) ALL FWLR (pt.738) 1012.
He argued that the Respondents had testified, as to how the 2nd Respondent derived his headship of the Mgbeke family, from their common ancestor, called Mgbeke, to Onumaegbu, to Ugwugbulam and to the 2nd Respondent (pages 6, 7 and 24 of the Records); that both the trial Court and the Lower Court were right to hold that the subject matter of the Suit, the headship of the family of Mgbeke, was within the jurisdiction of the Customary Court. He argued that Appellants had failed to show how the trial Court (and the Lower Court) lost jurisdiction in the Suit, as all the
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conditions for assuming jurisdiction, as stated in the case of Madukolu Vs Nkemdilim (1992) 2 SCNLR 341 or (1962) ALL NLR (pt.2) 581 (cited by Appellants) are present in this case.
On Issue 2, Counsel said that Appellants did not show how their right of fair hearing was breached by the trial Court; that the argument of Appellants? Counsel, rather centered on evaluation of evidence, that the trial Court did not handle it, properly. Counsel argued that the rule of fair hearing requires that a party must be afforded or given opportunity and adequate time to put across his case; that it does not require giving a party all the latitude he wants to present his case; that the complaint about amendment was not valid as the amendment was done without objection by the Appellants and it did not over reach them, as it was to bring the case in line with the evidence; he argued that Appellants commenced and concluded their defence on the basis of the amended process. He relied on the case of Gowon Vs Ike ? Okongwu (2003) 6 NWLR (pt.815) 38, which held:
?When an action has been started, the Court has at all it stages, until it is finally
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determined, ample powers of amendment. And it is the duty of the Court to exercise those powers.?
Counsel added that the trial Court had properly evaluated the evidence before it and applied same to reach its conclusion, and the said evidence was unchallenged; that Respondent?s father (Ugwuegbulam) and their grandfather (Onumaegbu) were heads of Mgbeke family, at different times and had exercised the power of that office in the time of Appellants father (Anthony Ubaneke) and their grandfather (Onyeme); that it was part of the unchallenged evidence that the 1st Appellant claimed the headship of Mgbeke family for the first time in 1999!
On Issue 3, Counsel submitted that the trial Court exercised its discretion properly when it granted the amendment sought and the Lower Court was right to uphold it. He relied on the Supreme Court case of Oyeyemi Vs Irewole Local Govt. Ikire (1993) 1 NWLR (pt.270) 462 at 475. Counsel noted that Appellant never appealed against the amendment, and had even entered their defence, after the amendment. He noted that, by law and jurisprudence, an amended process replaces the original version and relates back to
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the beginning when the original version was filed. He relied on Oseyomon Vs Ojo (1993) 6 NWLR (pt.299)344 at 361.
On Issue 4, Counsel argued that the Issue and the ground 5 of the appeal (which gave birth to the Issue) are in-competent, because the ground is not one on question of Customary Law, to donate jurisdiction to this Court to entertain the issue. He relied on Section 245 of the 1999 Constitution. He also relied on the case of Golok Vs Diyalpwan (1990) 3 NWLR (pt.139) 411at 419; Imonikhe Vs Aigbedion 1 CCALR 1777; Globe Fishing Industries Vs Coker (1990) 7 NWLR (pt.162) 265 at 282.
Counsel urged us to strike out the Issue 4 and its ground, for being at large and worthless. He relied on Ononiwu Vs RCC Ltd (1995) 7 NWLR (pt. 406); Mbionwu Vs Obi (1997) 2 NWLR (pt.487) 298.
On the point that, because the Respondent did not testify at the trial Court, the Court was wrong to hold for him, Counsel for the Respondent said that argument did not represent the law; that the position of the law is as stated in the Dikwa vs. Modu (1993) 3 NWLR (pt. 280) 170 at 183, to the effect that:
?A party is not bound to testify in his own case or
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his own behalf, if he could otherwise prove his case?
See also Lawal ? Osula vs. Lawal ? Osula (1993) 2 NWLR (pt. 224) 158 at 179.
In this case, Counsel said the Respondents had called witnesses, who testified in support of their case; that the trial Court was, therefore, right in holding for him, upon the proof of their case.
He urged us to resolve the Issues against the Appellants and dismiss the appeal.
RESOLUTION OF THE ISSSUES
I think, the objection raised by the Respondent against Issue 4 and the ground 5 of the appeal, that the same did not raise any issue of customary law, to donate jurisdiction to this Court to consider, is valid. Appellants ground 5 of the Appeal (without particulars) says:
?The Customary Court of Appeal Imo State, erred in law, when it affirmed the judgment given by the trial Court in favour of the 2nd Respondent as the head of Mgbeke family, whereas the 2nd Respondent did not adduce any evidence, whatsoever, to substantiate his claim?
?The Issue 4, distilled there from, was:
?Whether the Lower Court was correct to have affirmed the judgment given by the
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trial Customary Court in favour of the 2nd Respondent, whereas he neither testified for himself nor did any of the other witnesses testify on his behalf.?
The law 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; that is Issue calling for the interpretation or construing a question of customary law. See the case of Pam vs. Gwom (2000) FWLR (pt. 1) 1 at 12, where the Supreme Court held:
?The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of the Customary law and/or such other matters as may be prescribed by an Act of the National Assembly that can extend this right by providing for such matters? In the Circumstance, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary law? when
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the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary law, notwithstanding that the applicable law is Customary law.?
The above case was cited and relied upon by this Court in the case of Okorie & Ors Vs Chukwu (2014) LPELR ? 23744, where it was held:
?It is obvious as per the decided authorities from the Supreme Court, that the position of the apex Court on Issue of appeals from 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.?
And in the case of Enyinnaya Vs Otikpo & Anor (2015) LPELR ? 25529 (CA) this Court held:
I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal under Section 45 (1)of the 1999 Constitution, which confines right of appeal to the questions of
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Customary law. Issues and questions relating to evaluation of evidence and restraint of Appellate Court from tampering with findings of the of the trial Court? appear to belong to the realms of common law principle and procedures of Court, outside the contemplation of Customary law.?
Also in the case of Duru Vs Okoro (2015) LPELR ? 24483 (CA) this Court said:
?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.?
?Subjecting the Issue 4 (ground 5 of the appeal), which the Respondent raised objection on, and even the Issues 2 and 3 for the determination of the appeal (distilled from grounds 2, and 3 ? 4,
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respectively) to the scrutiny of the above authorities, Appellants would, certainly, have difficulties locating the Issues (2, 3 and 4) within the confines of the powers of this Court to entertain and consider, in view of the Section 245 (1) of the 1999 Constitution, as amended and the judicial interpretation of that provision, as stated above.
I have also reproduced the issues for determination of this appeal, including Issues 2, 3 and 4.
Issues 2 is: ?Whether the Lower Court was correct to have held that the Appellants were accorded fair hearing by the trial Court? (distilled from ground 2 of the appeal).
Issue 3 is: ?Whether the Lower Court was correct to have held that the Respondents proved their case, and if not, whether the Lower Court was correct to have affirmed the judgment given by the trial Customary Court against the 2nd Appellant, who was neither served with the original particulars of claim nor given the opportunity to plead to the amended claims to the Respondent? (distilled from ground 3 and 4).
?A simple review of the above issues together with Issue 4 (earlier reproduced) can show that none of
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them pretends to be or raise any question of customary law, as they rather raise issues of fair hearing, evaluation of evidence and/or complaint about amendment of Respondents? pleadings. As it were, this Court has no jurisdiction to entertain complaints on these issues.
I shall therefore consider this appeal mainly on the strength of Issue 1, which questions the holding of the Lower Court, that the trial Customary Court had jurisdiction to entertain the Suit of the Respondents. We have, recently, held in the case of Eze A. Oguzie & Ors Vs Chijioke Oguzie: CA/OW/92/2014 delivered on 21/10/16, relying on the Supreme Court decision in Nwaigwe Vs Okere (2008) LPELR ? 2095, that a question of error of jurisdiction by the Customary Court or Customary Court of Appeal, is an Issue or question of Customary law, within the meaning of Section 245 (1) of the 1999 Constitution, as amended. In that case of Nwaigwe Vs Okere (Supra) the Supreme Court per Onnoghen JSC said:
?I hold the considered view that a question of jurisdiction of a Court or tribunal is of universal application to every civilized society or community, whether Customary or
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English? It follows therefore that since the concept of jurisdiction is of universal application and known to customary law, when applied to Customary Courts, an error of jurisdiction by Customary Court or Customary Court of Appeal, which is a defect, intrinsic to the adjudication, is an issue or question of Customary law within the meaning of Sections 247 (1) and 224 (1) of the 1979 Constitution, and therefore appealable as an issue of Customary law, up to the Supreme Court.?
That simply means that a question challenging the jurisdiction of the Lower Court or of the trial Customary Court to entertain a Suit, is now accommodated in the interpretation of ?question of Customary law? for this Court to consider.
Appellant had argued, strenuously, that the amended claims of the Respondents, being a matter of the headship of Mgbeke family, was outside the scope of the trial Customary Court to entertain.
I had earlier reproduced the claims of the Respondents at the trial Court, which were:
(a) A declaration that under the native law and custom of Umunwodo Ororina Okwara Umundugba in Isu Local Government Area of Imo State,
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the 2nd Plaintiff is the head of the family of late Mgbeke of Umunwodo Ororina Okwara Umundugba
(b) A declaration that the 2nd Plaintiff is entitled to be succeeded in the position as the head of Mgbeke family.
(b) An Order of injunction restraining the defendants by themselves, their agents, servants or privies from disturbing or interfering with the Plaintiff rights, privileges and functions as Head of Mgbeke family of Umunwodo Ororina Okwara Umundugba in Isu LGA of Imo State.?
Of course, the Respondent had argued that the above claims related to the headship of the Mgbeke family, and the person entitled to succeed to that position of headship; that the Respondents? witnesses had testified as to how the 2nd Respondent derived his headship of the family from their common ancestor called Mgbeke, which office passed from the original occupier to Onumaegbu (their grandfather), to Ugwuegbulam (their father) and to the 2nd Respondent; that the succession right passed on to the Respondents (from the interstate estate of their fathers); that the said right or cause of action is located in Section 14 (2) of the Edict No. 7 of 1984
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(Customary Court Law) of Imo State, as amended by Edict of 1994; that by Column 1 of the 3rd Schedule to the same law and Section 16 (1) thereof, the claims of the Respondents were properly before the Customary Court and the Court had jurisdiction to entertain it; that the trial Court and the Lower Court were right in their findings, which affirmed their jurisdiction. Counsel also argued that Appellants failed to show how the trial Court and the Lower Court lost jurisdiction to hear the suit, considering the case law they relied on Madukolu vs. Nkemdilim (1962) 2 SCNLR 341.
I tend to agree with the reasoning?s of the trial Court and the Lower Court (Customary Court of Appeal) in this case, that the subject matter of the Suit, being a claim to succession to traditional office of headship of the Mgbeke family, which tended to accrue by hereditament, upon the demise of the holder of the office, thus, the office being or forming part of the intestate estate of the immediate holder (this time the father of the Respondents, Ugwuegbulam) to be assumed by a rightful claimant, the Customary Court, undoubtedly, was seised of jurisdiction to intervene, under
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the Paragraph 7 of the Imo State Customary Court Edict, No. 7 of 1984, to determine the dispute thereof, in accordance with the Customary Law prevailing in the area of jurisdiction of the Court or binding upon any of the parties. See Section 16 of the Customary Court Edict No. 7 of 1984.
The Lower Court had held:
?It is also in evidence that this issue (claim) arose as a result of the claim on how to distribute the property of Mgbeke, the ancestral father of both parties in dispute. This claim brings into play the issue of succession and inheritance of the estate of Mgbeke, who presumably died intestate, but before this can be done, there must be a clear pronouncement of who is the head of the family to succeed the estate for and on behalf of the entire family of Mgbeke. It is my considered view that by those pieces of evidence before the Court, jurisdiction is therefore conferred on the trial Court, by virtue of Customary Court Amendment Edict 1994. However, also by virtue of Section 16 (1) of the Customary Courts Edict No.7 of 1984, a Customary Court or Customary Court of Appeal shall administer the Customary Law prevailing in the area of
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jurisdiction of the parties or binding upon any of the parties
I think that holding by the Lower Court was unassailable, especially as I also think that the office (headship of the family), was also part of the intestate properties in contention, for which the parties staked claims as to whose right it was to inherit it! The claim was, therefore, perfectly located in the Trial Court. Appellant had relied on the case of Madukolu Vs Nkemdilim (Supra) on the factors that vest jurisdiction on a Court, namely:
1) That the Court is properly constituted as regards the number and qualification of numbers;
2) The subject matter of the case is within its jurisdiction; and
3) The case comes before the Court, initiated by due process of law.See also Tukur vs. Govt of Taraba State & Ors (1997) 6 NWLR (pt. 510) 549; (1997) LPELR 327 (SC); Nwankwo vs. Yar?Adua (2010) 12 NWLR (pt. 1209) 518; Adetayo and Ors vs. Ademola & Ors (2010) 15 NWLR (pt. 1215) 169.
As rightly argued by the Respondents, Appellants have not been able to establish how the trial Customary Court and the Lower Court lost jurisdiction to entertain this case
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that touched, purely, on the traditional customs relating to claims and rights of succession to family headship.
I therefore resolve the issue against the Appellants.
I had earlier said that the Issues 2, 3 and 4 are incompetent, as they did not invoke the jurisdiction of this Court, being not Issues or questions of Customary Law. But even if the said Issues were worth being considered, it can be seen that, they cannot avail the Appellants any respite:
1) In respect of Issues 2 and 3, which complained of fair hearing, Appellants, in my view, cannot sincerely raise such complaint, as there was evidence that they took part in the trial dutifully up to the judgment. They were initially led by Counsel, who later abandoned them after evidence by PW2 and, even when the 2nd Appellant failed to attend, regularly, the 1st Appellant was always there and conducted their case, dutifully. He concluded the cross examination of the PW3 (PW1 and PW2 (and PW3 partially) had been crossed examined by their Counsel) and they had a common and joint interest in the case. See page 25 of the Records of Appeal.
?The amendments complained of were actually to bring up
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the case in line with the evidence (see page 32 lines 6 and 7 of the Records) and Appellants did not oppose the amendment and never appealed against the order granting the said amendment made on 4/4/05. It is also clear that they conducted their defence after the said amendment, and in the con of the amended process, which by law, had replaced the original of the claims of the Respondents. See the Case of Ogwudire Vs. Obegwe & Anor. (2014) LPELR ? 23635 (CA):
it is elementary principle of law that once a process of court has been amended, the original process ceases to be, as it is subsumed and replaced by the new and amended process, and so the Amended process becomes the authentic legal instrument for reference and use in the determination of the any issue in controversy.? See also Garau vs. Olomu (2013) LPELR ? 20340SC? Therefore when the trial Court granted the amendment, it dated back to when the originating summons was issued and the action would continue as if the amendment was inserted from the beginning. See Adewumi Vs. A. G. Ekiti State (2002) 2 NWLR (pt. 751) 474; Imonikhe Vs A. G. Bendel
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State (1992) NWLR (pt. 248) 396; Oja vs. UBN Ltd (1999) 10 NWLR (pt. 623); Shell Petroleum Dev. Co. Nig Ltd Vs. Ambah (1999) 3 NWLR (pt. 593) 1.?
It should also be noted that a party who has been given due opportunity to appear in Court and State his case, cannot validly complain of denial of fair hearing, if he failed to utilize the opportunity. The authorities on this is replete. See GTB Plc. Vs. Fadco Industries Nigeria Ltd & Anor (2013) LPELR ? 21411 CA; FHA Vs. Kalejaiye (2011) All FWLR (pt. 562) 1633; Newswatch Comm. Ltd Vs Atta (2006) 12 NWLR (pt. 993) 144; Nnaji & Anor Vs Alozie (2014) LPELR ? 24014.
In respect of Issue 4 (ground 5) of the appeal, Appellants had complained that the 2nd Respondent should not have been given judgment, because he did not testify at the trial!
Appellants appeared to forget that the two Respondents had a common and joint interest in the case, as they had pleaded that it was the right of 2nd Respondent to succeed their father, Ugwuegbulam, to the headship of the Mgbeke family. Thus, the evidence led at the trial was in respect of the said common/joint interest. Appellants?
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Counsel should also know that a party does not have to testify, personally, in Court to obtain judgment, if he had called sufficient evidence from witnesses to entitle him to judgment. See Dikwa vs Modu (1993) 3 NWLR (pt. 280) 170 at 183.
On the whole, I hold that this appeal lacks merit and should be dismissed. It is accordingly dismissed.
Appellants shall pay cost of N50,000.00 to the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I have had the opportunity of reading in advance the lead judgment of my learned brother Mbaba JCA and I agree with him that there is a complete want of merit in this appeal and it ought to be dismissed. I also dismiss the appeal and abide by the consequential orders contained in the lead judgment.
AYOBODE OLUJIMI LOKOLU-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother ITA G. MBABA, JCA. I am not only in complete agreement with the manner in which the issues considered in the appeal were resolved but with conclusion of his lordship that the appeal lacks merit.
According, I too hold that the appeal is unmeritorious and dismiss it. I
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also abide by the order in relation to costs as contained in the lead judgment.
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Appearances:
CHIEF R. C. OGUFor Appellant(s)
E. C. EKECHUKWU, ESQ.For Respondent(s)
Appearances
CHIEF R. C. OGUFor Appellant
AND
E. C. EKECHUKWU, ESQ.For Respondent
