MICHAEL N. EKEH & ORS v. CHIKA UDE OSUJI IBEKWE
(2018)LCN/12437(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of May, 2018
CA/OW/323/2014
RATIO
ARBITRATION: CUSTOMARY ARBITRATION
“The law is settled on when such an arbitration award can be valid and binding.
Edozie JSC. in OKEREKE & ANOR v. NWANKWO & ANOR (2003) 9 NWLR PART 826 p. 592 explained the position of the law thus ,From the principles enunciated in their decision, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons
2. That it was agreed by the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding.
3. That the arbitration was in accordance with the custom of the parties or of their trade or business.
4. That the arbitrations reached a decision and published their award and.
5. That the decision or award was accepted at the time it was made. See OHIAERI v. AKABEZE (SUPRA).” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
COURT AND PROCEDURE: FINDING OF FACTS
“A finding of fact according to Augie J.S.C. in IKPA v. STATE (2017) LPELR-42590 means
a determination of a fact by the Court averred by one party and denied by the other and founded on evidence in a case BLACKS LAW DICTIONARY 6TH EDITION. See also FIONTRADES LTD v. UNIVERSAL ASSOCIATION CO. LTD (2002) NWLR (PT 770) 699 wherein it was held that although any affirmation of a fact embodied in a judgment may loosely be referred to as a finding on that fact, the term ‘finding of fact is more appropriately used to describe an affirmation of fact made after considering evidence’. See also EGBE v. ADEFARASIN (1987) 1 NWLR (PT 47) 1.
A finding of fact is necessitated when there are divergent or conflicting averments on facts necessary for the just determination of a case. Evidence adduced is then resolved. The conclusion arrived at as a result of the resolution of the conflicting facts is the finding of fact. In the instant case now on appeal the pleadings at the lower Court disclose that the parties were ad idem on the names of their family.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
COURT AND PROCEDURE: REPRESENTATIVE CAPACITY
“It is long settled that once the pleadings and the evidence of a party conclusively disclose a representative capacity and it is clear that the case was fought throughout in that capacity, the trial Court can properly and justifiably enter judgment for and or against the party concerned in such representative capacity, even if an amendment to reflect that capacity had not been applied for and obtained. See AFOLABI & ORS v. ADEKUNLE & ANOR (1983) 2 SCNLR 141 OR (1983) 14 NSCC 398 OR (1983) 8 CSC 98; AYENI v. SOWEMIMO (1982) 5 SC 60; DOKUBO v. BOB-MANUEL (1967) 1 All NLR 113 at 121, MBA NTA & ORS & ANOR v. EDE ANIGBO & ANOR (1972) 5 SC 156 at 174-176. It would be otherwise if the case is not made out in a representative capacity. See ONWUNALU NDIDI & ORS v. OSADEME (1971) 1 ALL NLR 14 at 16. This is because the law in such circumstance is that the Court should do substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought or defended so as to bring it in line with the pleadings and the evidence.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MICHAEL N. EKEH
2. BASIL EKEH
3. JUDE EKEH
4. RAPHAEL EKEH Appellant(s)
AND
CHIKA UDE OSUJI IBEKWE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed by the Appellants/Defendants against the decision of Imo State High Court delivered on 14/2/2013. The Claimant had instituted this action before the lower Court claiming as per his writ of summons as follows:
1. A Declaration that the Defendant as the family head of Umuobiekwe is a mere trustee or Caretaker and not the the absolute owner of the entire Estate of Umuobiekwe family and shall continue to be so for parcels of lands that have not been shared in a manner consistent with rights and obligations in the family.
2. A Declaration that the Defendant is under obligation to render proper account of the financial incomes, transactions and profits accruing from the vast estate and properties of Umuobiekwe family from 2004 till date.
3. A Declaration by this Honourable Court that all parcels of Umuobiekwe family land disposed, partitioned, mortgaged, alternated pledged or exchanged which did not derive from decisions reached in a duly constituted family general meeting of Umuobiekwe are illegal, null and voil and of no effect.
4. An Order of this Honourable Court compelling the Defendant to convene family general meetings of Umuobiekwe as agreed at the 2004 general meeting which decisions shall be implemented by the family head in his fiduciary capacity as the Trustee or Caretaker of the family Estate.
5. An Order of this Honourable Court compelling the Defendant to produce the Statement of Account and expenses of the said Umuobiekwe family Estate entrusted to the Defendant?.
Pleadings were filed and exchanged. The initial Defendant was substituted for the present crop of Defendants now Appellants by order of Court on 17/3/2008.
The learned trial Judge after hearing the parties entered judgment for the Claimant in the following terms:
1. It is hereby Declared that the Defendant (now deceased) as the family head of Umuobiekwe is a mere Trustee or Caretaker and not the absolute owner of the entire estate of Umuobiekwe family and shall continue to be so for parcels of lands that have not been shared in a manner consistent with rights and obligations of the family.
2. It is also Declared that the Defendants are under obligation to render proper account of the financial incomes, trasactions and profits accruing from the vast estate and properties of Umuobiekwe family from 2004 till date.
3. It is equally Declared that all parcels of Umuobiekwe family land disposed, Partitioned, Mortgaged, Alienated, Pledge or Exchanged which did not derive from decisions reached in a duly constituted family General Meeting of Umuobiekwe are illegal, null and void and of no effect.
4. I make an order compelling the Defendants to convene family General Meeting of Umuobiekwe as agreed at the 2004 General meeting which decisions shall be implemented by the family head in his fiduciary capacity as the Trustee or Caretaker of the family estate.
5. I also make order compelling the Defendants to produce the Statement of Account and Expenditure of the said Umuobiekwe family estate entrusted to the Defendant.
There shall be costs assessed at N10,000.00 (Ten Thousand Naira) only.
Dissatisfied with the decision of the lower Court, the Appellants filed a Notice of Appeal challenging the said decision on four grounds. The four grounds of appeal state thus:
GROUNDS OF APPEAL
1. The judgment is against the weight of evidence.
ERROR IN LAW
The trial Court erred in law when it held that the case of the Claimant was more believable than that of the Defendants and granted all the claims/reliefs sought in the statement of claim.
PARTICULARS OF ERROR
a. The allegations in the Claimant’s statement of claim filed on 17/3/2008 and the reliefs he sought therein were against Peter Eke the original Defendant (now deceased) as the family head at the time.
b. The Defendants/Appellants on record who were substituted for their late father pleaded and proved that none of them was, or succeeded their late father as, the family head.
c. The Claimant adduced no evidence or credible evidence in chief in support of his pleadings.
d. There is credible evidence on record that one Chukwukere Akalonu succeeded the deceased Peter Eke as the family head.
e. The Claimant filed and served the sworn statement on oath of the said Chukwukere Akalonu but failed to either substitute him as successor of the deceased family head or even call him as a witness.
ERROR IN LAW
The trial Court erred in law when it relied on the contents of the reports of Eze George Ugorji in coming to its decision which led to miscarriage of justice in the case.
PARTICULARS OF ERROR
a. The said reports which were Exhibits 13-131 were never pleaded by the Claimant or the Defendants and ought not to have been admitted in evidence.
b. The authenticity credibility and reliability of the reports were seriously challenged and damaged on cross examination of the PW3 the maker.
c. The intervention of PW3 in the dispute between the parties was a post litigation mediation, by leave of Court, not a pre-litigation arbitration to which the parties voluntarily submitted.
d. The litigation in Court continued even after the purported decision and settlement by PW3 indicating that the attempt at settlement out of Court did not succeed.
ERROR IN LAW
The trial Court erred in law when it failed to make a specific finding as to whether the proper family name of the parties is Umuobiekwe with which the Claimant sued or Umunwaobiekwe asserted by the Defendants which led to miscarriage of justice.
PARTICULARS OF ERROR
a. In all the paragraphs of his statement of claim, the reliefs and documents relied upon; the Claimant used Umuobiekwe as the family name.
b. In all paragraphs of their statement of Defence and documents authored by them or their late father, the Defendants used Umunwaobiekwe as the family name.
c. DW2 in his written statement on oath and testimony in Court used Umunwaobiekwe as the family name.
d. PW3 at the trial admitted in cross examination that in 2005 he wrote a letter on behalf of the family using Umunwaobiekwe as family name.
e. PW1, the Claimant admitted under cross examination that he is a member of Umunwaobiekwe family.
f. The trial Court failed to make a finding on this point which the Defendants canvassed at the trial.
After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
THE APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief of argument was filed on 1/7/2015. It was settled by M. O. Igwe Esq.
Learned counsel for the Appellant formulated four (4) issues for determination to wit:
1. Whether the trial Court was right in failing to make any specific finding as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants’ defended. (this issue is distilled from ground 4 of the grounds of appeal)
2. Whether the trial Court was right to have relied on the reports of Eze George Ugorji (Exhibits 13-131) in arriving at its decision and making it part of the judgment of the Court (This issue is distilled from ground 3 of the grounds of appeal).
3. Whether on a proper evaluation of the evidence the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants (distilled from ground 2 of the ground of appeal).
4. Whether the judgment of the trial Court is indeed against the weight of evidence in the case. (distilled from ground 1 of the grounds of appeal).
ISSUE ONE
Whether the trial Court was right in failing to make any specific finding as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants’ defended (This issue is distilled from ground 4 of the grounds of appeal)
In arguing issue one (1) the learned counsel to the Appellant submitted that all the paragraphs of the statement of claim, the documents authored and filed by the Respondent and his witnesses in this suit referred to the Defendant (i.e. the deceased original Defendant) as the head of Umuobiekwe family and in their statement of defence and in all the documents authored by the late Peter Ekeh, the Appellants stated that the proper family name as ‘Umunwaobiekwe’ (See Exhibit 1, 5, 6, 9 and 11. See also Exhibit 4 and 6) (Further see page 452 line 4&8).
He also contended that in Igbo Tradition, a person answered the name given to him by his parents and the descendants of such a person proudly answered the name as a collective by adding the prefix ‘Umu’ to it to identify themselves as the blood descendants of the Owner of the name. (see pages 449).
The Appellant counsel argued that in spite of the overwhelming evidence in proof that the correct and proper family name was ‘Umunwaobiekwe’ family and notwithstanding the evidence of DW1 that Ekeobi Nwaobiekwe established Umunwaobiekwe family and the submissions of the Appellant’s counsel on this point in his final address to which the Respondent had no answer, the trial Court failed to make any definite finding as to the correct family name of the parties. (see pages 427;494-509).
He finally submitted that the failure of the trial Court to make a specific or definite finding on the issue of the correct family name and thus resolved the point one way or the other had led to gross miscarriage of justice and that this was more so when the reliefs claimed by the Claimant and granted by the Court were with respect to Umuobiekwe family whilst evidence abound on the proceedings and judgment that the Respondent and his witnesses agreed that Umunwaobiekwe was the name of the family and submitted that the law was that he who asserted must prove. He relied on the case SONGHAI LTD v. UBA (2003) 14 WRN 121; WACHUKWU v. OWUNWANNE (2011) 25 WRN 1 SC and SECTION 131 OF THE EVIDENCE ACT 2011.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant.
ISSUE TWO
Whether the trial Court was right to have relied on the reports of Eze George Ugorji, (Exhibits 13-131) in coming to its decision and making it part of the judgment of the Court (distilled from ground 3 of the grounds of appeal).
Learned counsel for the Appellant argued that the Respondent filed his suit in Court against Peter Eke (the original Defendant at the trial Court who was substituted by his children because of Peter Eke demise) on 17th March, 2008. PW3 his Royal Highness, Eze George Ugorji as the traditional ruler of Umuguma the home community of the parties to the suit applied to Court by a hand written application dated 10th April, 2010 for opportunity to look into the case with a promise to try his best to settle it and get back to Court as soon as possible. The Court granted him leave to settle same, however the settlement broke down irretrievably but he cooked up a purported arbitration verdict.
Learned counsel to the Appellant contended that on the 9th September, 2011, the respondent filed an application dated 19th August, 2011 seeking leave of the Court to file additional deposition of witnesses with copies of documents purporting to be his report to the trial Court of his mediation in the case which the trial Court granted and the Respondent never amended his statement of claim to plead either the facts of the arbitration or the purported written reports thereon.
He submitted that it was the law that parties in a case and the Court were bound by the pleadings and could not go outside it to make a case different from that which the pleaded. He relied on the following cases AREGBESOLA v. OYINLOLA (2011) 1 WRN 33; ORJI v. ORJI (2011) 36 WRN 111; EMEGOKWUE v. OKADIGBO (1973) 4 SC 113; I. M. B. PLC v. S.P.C. LTD (2000) 15 NWLR (PT 690) 232.
He argued that the proceedings in and the report of Eze George Ugorji (PW3) mediation which the Respondent tendered and the Court below admitted as evidence and relied upon in coming to its decision (see page 577 of the records) in the case, having not been pleaded was not relevant in the case and ought not to have admitted in evidence or relied upon by the Court and that any evidence on the arbitration ought to be expunged same having not been pleaded (see page 461 lines 8-9; pages 462-469). He relied on the case of OKWEJIMINOR v. GBAKEJI (2008) 17 WRN 1 SC.
He contended that it did not matter whether if the proper thing was done, the decision would have been the same. He relied on the cases of FBN PLC v. FAS INDUSTRIES LTD (2010) 38 WRN 1 SC; OGBOBE v. OLIJI (2011) 45 WRN 162.
He finally submitted that the Court should not only refuse to accord any weight or probative value to the purported reports made by PW3 and tendered as Exhibit 13-131 in the proceedings through him, but to also reject and expunge them and any other evidence on the said arbitration totally from the records, being inadmissible evidence that were wrongly admitted. He relied on the cases of OLUKADE v. ALADE (1976) 2 SC 183; IGBODIM & ORS v. OBIANKE & ORS (1976) 1 NMLR 212.
Learned counsel to the Appellant urged this Court to resolve this in favour of the Appellant.
ISSUE THREE
Whether on a proper evaluation of the evidence the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants. (This issue is distilled from ground 2 of the grounds of appeal).
Learned counsel to the Appellant submitted that the trial Court was wrong to have held that the case of the Respondent was more believable than that of the Appellants when the Respondent did not prove any essential component of his pleadings and the reliefs he sought by credible evidence.
He argued that what validly made a written statement a sworn deposition was that it ought to be signed and sworn before the commissioner for oaths in the registry of the Court, a requirement of the law which the Respondent did not fulfil. He relied on the following authorities. Section 117 (4) of Evidence Act 2011; ORIJA v. AKOGUN (2009) 27 WRN 98; Order 3 Rule 2(1)(c) of the Imo State High Court (Civil Procedure) Rules 2008.
He submitted that there was no valid evidence in chief given by the Respondent on PW1, in proof of the averments in his pleadings, the same was in law regarded as abandoned and unproved. He relied on the cases of OLUSEGUN v. AJADI (2010) 46 WRN 135; AREGBESOLA v. OYINLOLA (2011) 1 WRN 33.
Learned counsel to the Appellant argued that since the written statements of PW1 and PW3 did not meet the requirement of a valid statement on oath as required by Order 3 Rule 2 (1) (c) of the Imo State High Court (Civil Procedure) Rules 2008, the trial Court ought not to have attached any weight or probative value to them as they were not capable or qualified to be put on the imaginary scale and they ought to have been disregarded instead and that the evidence to be put on the scale of justice ought to be evidence that was legal, valid and credible. He relied on the case of OGUANIHU v. CHIEGBOKA (2003) 25 WRN 113.
He contended that Exhibit 11 (hand written draft minutes of Umuobiekwe family) tendered by the PW2 was neither signed by the Chairman nor the Secretary, thus the law was that an unsigned document was worthless in law. He relied on the cases of U.B.N. PLC v. TOYINBO (2009) 13 WRN 143; AREGBESOLA v. OYINLOLA (2011) 1 WRN 33.
The learned counsel for the Appellant submitted that since it had been established that the Respondent gave no valid evidence in chief in proof of the averments in his pleadings, the trial Court was in error when it held that the evidence in support of Respondent’s case was more believable than that of the Appellants’ and on that basis awarded all the reliefs the Respondent sought.
He contended that after the close of the case by the parties and submission of written addresses by counsel, the Respondent filed a motion for leave of Court to amend his processes by only adding ‘s’ wherever the word ‘Defendant’ appeared so as to now read ‘Defendants’ which motion was granted by the trial Court, but the Respondent did not effect the amendment and did not file any amended process. He argued that what appeared in pages 533 to 544 of the records as statement of claim was not only a complete departure from the prayers sought on the motion paper, it was an exhibit used to obtain leave to amend and which was not filed in Court as amended statement of claim after the trial Court granted the motion to amend same. He submitted that a Court would not take cognizance of a process not duly filed by payment of the appropriate fee. (see pages 522-544 and 559 of the records). He relied on ONWUGBUFOR v. OKOYE (1996) 1 SCNJ 1.
The learned counsel to the Appellant argued that the Respondent sold family land to his friend, received the money and did not pay same to the family but claimed to have done so. The Respondent when asked, said he paid the money into a family trust foundation but contradicted himself when he admitted that no such foundation was established. (see page 579).
He finally submitted that the trial Court was in gross error which led to a perverse decision and miscarriage of justice when it held that the case of the Respondent was more believable than that of the Appellant and the law was that the Court ought not to believe a witness on any issue to which he testified if he could lie about a matter within his knowledge. He relied on the following cases AKANDE v. OYEWOLE (2003) 6 WRN 36; NNAJIOFOR v. UKONU (1986) 4 NWLR (PT 36) 505.
Learned counsel to the Appellant urged this Court to resolve this in favour of the Appellant.
ISSUE FOUR
Whether the judgment of the trial Court is indeed against the weight of evidence in the case. (Distilled from ground 1 of the grounds of appeal).
Learned counsel to the Appellant contended that the principal reliefs sought by the Respondent in this suit were declaratory in nature and the law was that in a declaratory action, whether in respect of land or not, the Plaintiff had to succeed on the strength of his own case and not rely on the weakness, if any of the Defendant’s case. He relied on the cases of BELLO v. EWEKA (1981) 1 SC 109; AREGBESOLA v. OYINLOLA (2011) 1 WRN 33.
He submitted that from the totality of the evidence on record, the Respondent failed woefully to prove either that a family known as Umuobiekwe existed or that Peter Eke and the Appellants were members or head of such a family. He argued that the Respondent’s pleadings varied diametrically with his evidence and the law was that you could not put something on nothing and expected it to stand. He relied on the following cases. SOKWO v. KPONGBO (2008) 34 WRN 1 SC; MACFOY v. UAC LTD (2000) 15 WRN 189.
He submitted that since the Respondent’s case as pleaded was personally against Peter Eke as head of family whatever Peter Eke did wrong as head of family attached personally and with to him as the cause of action did not survive him and that if even the cause of action survived him, he had another person who succeeded him to the office of family head.
He argued that any duty Peter Eke failed to perform as head of family fell on his successor to that office who had been proved to be alive and not the Appellant who were his sons.
The learned counsel to the Appellant submitted that a person whom a deceased party’s interest in the subject matter of proceedings had not been transmitted on the death of the party would not be substituted as a party to the proceedings in place and stead of the deceased. He relied on the cases of MBANU v. MBANU (1961) ALL NLR 652; OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) 2 SCNJ 266 (see page 440 of the records).
He submitted that a Plaintiff who sued a wrong person could not in law be heard to say that the Court should give judgment in his favour against the wrong person, for no Court had the jurisdiction to repair parties in a case with a view to making the wrong party wear the garb of the correct party.
He relied on the case of ABUBAKAR v. YARADUA (2009) 5 WRN 1 SC (see pages 581-582 of the records).
Learned counsel to the Appellant argued that the judgment order was issued and signed on 20/2/2013 before the records of appeal were settled but there were variations in the orders of the Court contained in the judgment in the same records (see pages 579-580 of the records) and these variations appeared to have been effected after the judgment order had been drawn. He submitted that the trial Court at that stage could not effect the amendments. He relied on the case of OKORODUDU v. EJUETAMI (1967) NMLR 282; ASIYANBI v. ADENIJI (1967) NMLR 283.
He submitted that any judgment given against a dead Defendant was invalid and therefore null and void since from the day of his death he ceased to be a juristic person (see pages 581-582 of the records). He relied on the case of OKETIE & ORS v. OLUSHOR (1995) 5 SCNJ 217 MANAGEMENT ENTERPRISES LTD & ANOR v. OTUSANYA (1987) 4 SCNJ 110.
Learned counsel to the Appellant argued that the Respondent did not in any way prove his claims and the reliefs in his statement of claim particularly relief 3 was vague without certainty as to the lands involved. He submitted that the law was that where there was no certainty of claim, it was unsafe for the Court to grant a declaration. He relied on the case of JODI v. SALAMI (2009) 27 WRN 24.
He argued that in this case neither the head of Umunwaobiekwe family that allegedly alienated the lands nor his successor in office, nor any of the alleged grantees was a party to this suit. He submitted that the Court should not make orders to bind a person that was not before it. He relied on the case of SUN INSURANCE OFFICE LTD v. OJEMUYIWA (1965) NMLR 451; BELLO v. INEC (2010) WRN 1 SC.
Learned counsel to the Appellant finally submitted that Court should not make unenforceable orders thereby making a mockery of itself. He relied on the case of KEMTAS NIG. LTD v. FAB A. NIG LTD (2007) 7 WRN 118.
Learned counsel to the Appellant urged this Court to resolve this issue in favour of the Appellant and allow the appeal.
APPELLANTS’ REPLY BRIEF
The Appellants Reply Brief was filed 5/7/2017. It was settled by his counsel M. O. Igwe Esq.
ISSUE ONE
Learned counsel to the Appellant argued that the question was not whether any of the parties was misled by the Respondent’s use of false family name to institute and prosecute the case, the question was whether the false family name of ‘Umuobiekwe’ used by the Respondent was shown by evidence to have any traceable historical background. He argued that there was no trace of the name in this case, therefore the name did not exist.
He contended that the latin maxim ?FALSA DEMONSTRATIO and the case of TAFIDA v. BAFARAWA (1999) 4 NWLR (PT. 597) 70 @ 85-86 PARAS H-A were misconstrued and misapplied by the Respondent?s counsel relating to the case at hand.
Learned counsel to the Appellant submitted that the Respondent had the opportunity of amending his writ and claims to reflect the true family name but failed to do so.
ISSUE TWO
Learned counsel to the Appellant contended that the cases of BOWAJE v. ADEDIWURA (1976) 6 SC 143; UDE v. IKEMEFUNE & ORS (1968) 1 ALL NLR 257 were inapplicable to the case at hand.
He submitted that it was one thing for a Court to admit a document in evidence during trial, it was quite another thing for the Court to decide what probative value or weight to attach to such document at the judgment stage. He argued that if a document was admitted in evidence at the trial, whether rightly or otherwise, and during cross examination its probative value was destroyed the trial Court was not justified in law to accord any probative value to such documentary evidence in coming to a decision. If it did, an aggrieved party was entitled to raise the issue on appeal. He relied on the case of INTERNATIONAL AGRICUTURAL INDUSTRIES LTD & ANOR v. CHIKA BROTHERS LTD (1990) 1 NWLR (PT. 124) 70 AT 80.
Learned counsel for the Appellant submitted that it was not even the law that if a party in a case objected to the admission of a document in evidence at the trial and his objection was overruled, he must appeal on the ruling of the trial Court at that stage of the trial otherwise he would be shut out from raising the issue on appeal rather the correct position of the law was that where a matter had seen wrongly received in evidence in the trial Court, especially when an objection was raised, it ought to be the duty of the Appellate Court to reject it and to decide the case on legal evidence. He relied on the case of OWONYIN v. OMOTOSHO (1961) 1 ALL NLR 304.
He contended that the Respondent?s Brief of argument with regard to the arbitration by PW3 lacked any foundation in the pleadings, therefore not being part of the case or issue raised by the parties in their pleadings, they went to no issue at all and ought not to have been taken into consideration by the Court in arriving at its judgment. He relied on the case of ETIM v. CLASEN VENTURES (2011) 45 WRN 79.
Learned counsel to the Appellant submitted that the said reports were inadmissible evidence which the trial Court admitted wrongly and having failed to expunge them from the records, this Appellate Court was enjoined by law to expunge them. He relied on the case of OKAFOR & ANOR v. OKITIAKPE (1973) 2 SC 97.
Learned counsel to the Appellant contended that if the Appellants and their deceased father participated in the purported settlement by PW3 and the alleged Unification feast, since the suit continued in Court thereafter, any statement made or action taken in rebutting thereto were at best made or taken without prejudice in an effort to resolve their agreement and the trial Court ought not to allow evidence thereof to be given as they were privileged from disclosure and inadmissible. He relied on Section 25 of Evidence Act Cap E14 (Laws of the Federation of Nigeria 2004) now Section 26 of Evidence Act 2011 (HB 214), POPOOLA v. OWENA PRESS LTD (2011) 52 WRN 85.
He finally argued that it was settled that the evaluation of evidence and ascription of probative value to same was the primary duty of the trial Court, but when the trial Court failed to properly evaluate the evidence by making a finding(s) not supported by pleadings or valid and credible evidence on record and thereby came to a perverse decision, an Appellant Court was entitled to interfere with the findings and return a proper verdict. He relied on the case of NWACHUKWU v. NWOSU (1990) 7 NWLR (PT 160) 72.
ISSUES THREE AND FOUR
Learned counsel to the Appellant contended that contrary to the Respondent brief of argument at paragraph 5.02 and 5.03, the law was that cause of action totally survived for the benefits of the estate of a deceased person except in actions for defamation, seduction, inducement of spouse. However where orders were sought against or by a dead party which were personal to him the action abated as it would not survive him. He relied on the case of ABDUL RAHEEM & ORS v. OLUFEAGBA & 43 ORS (2007) 2 WRN 116; NOSPECTO OIL & GAS LTD v. OLORUNNIMBE (2012) 13 WRN 108.
Learned counsel to the Appellant submitted that contrary to the Respondent’s argument at paragraph 5.02 and 5.03, the Appellant Court could even raise and decide the issue suo motu without the necessity of an appeal against it by the Appellants. He submitted that because a point of jurisdiction could be raised at any time and even viva voce for the first time during argument. He relied on the case of OGEMBE v. USMAN (2012) 16 WRN PAGE 50 AT PAGE 65; AJAYI v. ADEBIYI (2012) 11 NWLR (PT 1310) 137 AT 176.
He submitted that contrary to the Respondent’s argument at paragraphs 5.04-5.06 of the Respondent brief of argument, what the trial Court did in this case was to concentrate on picking holes with and discrediting the evidence of the Appellants and their witnesses arising from questions under cross examination in respect of unpleaded facts thereby wrongly placing the burden of proof on the Appellants instead of the Respondent who sought the Court’s declaration in his favour based on evidence that had been seriously contradicted and discredited at the trial.
He submitted that a correct principle of law was that a document or evidence elicited from a party by his adversary under or during cross-examination could not be used against the party if the material fact relating to the evidence or document was not pleaded by the party seeking to make use of it. He relied on the case of ITA v. EKPENYONG (2011) 9 WRN 147; CHIGBO v. TONIMAS (NIG) LTD (1999) 3 NWLR (PT 593) 151.
RESPONDENT’S BRIEF OF ARGUMENT
The Respondent’s Brief of Argument was filed on 22/3/2017 it was settled by his counsel D. O. Agbo Esq.
Learned counsel to the Respondent adopted the four (4) issues for determination formulated by the Appellant to wit:
1. Whether the trial Court was right in failing to make any specific findings as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants defended.
2. Whether the trial Court was right to have relied on the reports of Eze George Ugorji (Exhibits 13-131) in coming to its decision and making it part of the judgment of the Court.
3. Whether on a proper evaluation of the evidence the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants.
4. Whether the judgment of the trial Court is indeed against the weight of evidence in the case.
ISSUE ONE
Whether the trial Court was right in failing to make any specific findings as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants defended.
The learned counsel to the Respondent submitted that the issue was misconceived in that the Appellants? late father, the original Plaintiff was the head of the family and that the Appellants called the family Umunwaobiekwe whilst the Respondent called it Umuobiekwe family. He argued that there was no confusion as to the family meant by both parties and the Court and that the Respondent admitted that he was a member of the Umuobiekwe family (see page 452 of the records). He contended that the difference in the use of names in the circumstances was immaterial and of no consequence. He relied on latin Maxim ?FALSE DEMONSTRATION NON NOCENT, CUM DE CORPORE (PERSONA) CONSTANTA?; BLACK LAW DICTIONARY SIXTH EDITION, page 600 and the case of TAFIDA v. BAFARAWA (1999) 4 NWLR (PT. 597) 70 @ 85-86 PARAS H-A.
He submitted that the Court below indeed appreciated that the Umuobiekwe family or Umunwaobiekwe family referred to the same and one family. (see page 579 of the records).
Learned counsel to the Respondent urged this Court to resolve this issue in favour of the Respondent.
ISSUE TWO
Whether the trial Court was right to have relied on the reports of Eze George Ugorji (Exhibits 13-131) in coming to its decision and making it part of the judgment of the Court.
Learned counsel to the Respondent submitted that the Court was right to have relied on the reports of Eze George Nnamdi Ugorji (Exhibits 13-131) in coming to its decision and making it part of the judgment of the Court. He argued that the thrust of Appellant attack on the report of Eze George Ugorji (Exhibit 13-131) in ground 3 of their Notice of Appeal and in paragraphs 5.05 of the Appellants Brief of Argument was that the documents were not admissible in evidence.
Learned counsel to the Respondent argued that documents were admitted in evidence after argument was taken thereon on the 8th day of July, 2012 (see pages 460-462 of the records) and the Appellants had 14 days within which to appeal against the said decision admitting the documents as Exhibit and that the Appellant waived their right of appeal within the 14th days allowed by law. He relied on Section 24 (2) (a) of the Court of Appeal Act. He also relied on the case of TUNJI BOWAJE v. ADEDIWURA (1976) 6 SC 143; UDE v. IKEMEFUNE & ORS (1968) 1 ALL NLR 257.
The learned counsel for the Respondent contended that Exhibit 13-131 were the products of the arbitration or settlement conducted by the PW3 for the Respondent and the original Defendant which both parties accepted and was sealed by the unification feast which the original Defendant also accepted voluntarily. (see page 578 of the records) and in evaluating the reports Exhibit 13-131 (see pages 578-579 of the record).
He submitted that the law was that the evaluation of evidence and the assumption of probative value to same was the primary duty of the trial Court. He relied on the following cases EIGBE v. EIGBE (2013) ALL FWLR (PT. 705) 369; JEGEDE v. OLUWASESAN (2013) ALL FWLR (PT. 671) 1484; ANYEGWU v. ONUCHE (2013) ALL FWLR (PT. 681) 1622 SC.
He finally submitted that the trial Court which saw witnesses and heard their evidence properly ascribed probative value to them including Exhibit 13-131 and that there was nothing perverse about the use to which the Court below put Exhibit 13-131.
Learned counsel to the Respondent urged this Court to resolve this issue in favour of the Respondent.
ISSUE THREE
Whether on a proper evaluation of the evidence the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants.
ISSUE FOUR
Whether the judgment of the trial Court is indeed against this weight of evidence in the case. These two issues were argued together by the Respondent’s counsel.
Learned counsel for the Respondent submitted that on a proper evaluation of the evidence, the trial Court was right to have that the case of the Respondent was more believable than that of Appellants and the judgment was therefore not against the weight of evidence. He argued that the complaint of the Appellant in this issue can be seen from the particulars of error supporting ground two of the grounds of appeal (see page 588 of the records).
He submitted that the complaint of the Appellant was misconceived and it was not in doubt that the case at the trial Court was against the original Defendant, Pa Peter Ekeh. He argued that when Peter Ekeh died, the Appellant substituted him because the cause of action survived him not being a case of defamation, seduction or including one spouse to leave or remain apart from the other or to claims for damages on ground of adultery. He relied on Section 15(1) and (2) of the Administration of Estate Law, 1994 of Imo State, IFEJIAKA v. OPUTA (2002) FWLR (PT. 84) 135 AT 143-144 PARAS A-A; MANUWA v. N. J. C. (2012) ALL FWLR (PT 612) 1805 AT 1814-1815 PARAS A-D.
The learned counsel to the Respondent contended that both parties admitted that the deceased original Defendant was the head of the family and that the family owned several parcels of land. He argued that it was also admitted that the head of the family was the trustee and custodian of the family property and accordingly he was bound to render account of what he did with the family property but the account was not given in this case (see pages 579-578 of the record of appeal).
Learned counsel to the Respondent submitted that these findings of facts were not appealed against by the Appellants therefore remained binding on the parties. He relied on the following cases OLUKOYA v. ASHIRU (2006) ALL FWLR (PT. 322) 1479 ALL FWLR (PT 463) 1366 AT 1425 PARAS A; LADOJA v. AJIMOBI (2016) ALL FWLR (PT. 843) 1846 AT 1902 PARAS A-C; ALADEGBEMI v. FASANMADE (1988) 3 NWLR (PT. 81) 129.
Learned counsel to the Respondent argued that the Appellant challenged the validity of the written statement on oath of the PW3 which was adopted on the 9th day of July, 2013 without objection (see pages 460-461 of the record) and that there was no appeal against the acceptance of the written statement on oath of the PW3.
Learned counsel to the Respondent urged this Court to resolve issues three and four in favour of the Respondent against the Appellant.
I have carefully considered the arguments canvassed by learned counsel in their respective briefs of argument. Both sides are agreed on the issues formulated for determination in this appeal.
The four issues are as follows:
i. Whether the trial Court was right in failing to make any specific findings as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants defended.
ii. Whether the trial Court was right to have relied on the reports of Eze George Ugorji (Exhibits 13 ? 131) in coming to its decision and making it part of the judgment of the Court.
iii. Whether on a proper evaluation of the evidence the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants.
iv. Whether the judgment of the trial Court is indeed against the weight of evidence in the case.
I shall adopt the above issues for the purpose of this judgment and resolve them seriatim.
ISSUE NUMBER ONE
Whether the trial Court was right in failing to make any specific findings as to whether the proper family name of the parties in the case is Umuobiekwe with which the Respondent sued or Umunwaobiekwe with which the Appellants defended.
I have deeply considered the submission of learned counsel on this issue.
A finding of fact according to Augie J.S.C. in IKPA v. STATE (2017) LPELR-42590 means
a determination of a fact by the Court averred by one party and denied by the other and founded on evidence in a case BLACKS LAW DICTIONARY 6TH EDITION. See also FIONTRADES LTD v. UNIVERSAL ASSOCIATION CO. LTD (2002) NWLR (PT 770) 699 wherein it was held that although any affirmation of a fact embodied in a judgment may loosely be referred to as a finding on that fact, the term ‘finding of fact is more appropriately used to describe an affirmation of fact made after considering evidence’. See also EGBE v. ADEFARASIN (1987) 1 NWLR (PT 47) 1.
A finding of fact is necessitated when there are divergent or conflicting averments on facts necessary for the just determination of a case. Evidence adduced is then resolved. The conclusion arrived at as a result of the resolution of the conflicting facts is the finding of fact. In the instant case now on appeal the pleadings at the lower Court disclose that the parties were ad idem on the names of their family.
Paragraphs 1-3 of the Statement of Claim of the Plaintiff (now Respondent) read as follows:
1. ?The Plaintiff is a member of Umuobiekwe family, a native of Umunkwo, Umuguma in Owerri West Local Government Area of Imo State.
2. The Defendant is also a member of Umuobiekwe family and in fact the present family head of Umuobiekwe family, Umunkwo Umuguma in Owerri West Local Government Area of Imo State and within the jurisdiction of this Court.
3. The Plaintiff in this suit and the Defendant are related by blood by virtue of their forefather who was the founder of the famous family of Umuobiekwe in Umunkwo Umuguma in Owerri West Local Government Area of Imo State?.
The Defendants (now Appellants) in their joint statement of defence admitted paragraphs 1, 3 and 4 of the statement of claim.
The said paragraphs of the statement of defence read thus:
1. The Defendants admit paragraphs 1, 3 and 4 of the statement of claim. They however, deny that any of the Defendants is the present head of Umunwaobiekwe family but admit that they are bonafide members of Umunwaobiekwe family, Umunkwo, Umuguma, Owerri West Local Government Area, Imo State.
The meaning of this is the family of the Appellant and that of the Respondents is called Umuobiekwe family or Umunwaobiekwe. It is elementary law that parties are bound by their pleadings. See N.I.P.C. LTD v. THE THOMPSON ORGANISATION LTD & ORS (1969) 1 ANLR p. 134; N.B.C. PLC v. UBANI (2014) 4 NWLR PT 1398 p. 421; ALAHASSAN & ANOR v. ISHAKU (2016 LPELR 40083 (SC.)
This explains why the learned trial Judge held as follows:
‘In the main the grouse of the Claimant is his contention that there is gross and flagrant abuse of the family property by the Defendant. Every other thing claimed revolves on this. Whether the parties decide to answer Umuobiekwe or Umunwaobiekwe the bench mark is that both of them have a common ancestor’.
In my respectful view, the finding of the lower Court on Umuobiekwe (as far as the name is concerned) is unimpeachable. It is supported by the evidence before the lower Court and the pleadings. The Appellants admitted that the Respondent was a member of Umuobiekwe family in their pleading. They also averred that the Respondent belonged to Osuji subfamily within Umunwaobiekwe family.
I resolve this issue in favour of the Respondent in the circumstance.
ISSUE NUMBER TWO
Whether the trial Court was right to have relied on the reports of Eze George Ugorji. (Exhibits 13-131) in coming to its decision and making it part of the judgment of the Court.
Exhibits 13-131 contain the Arbitration Award prompted by PW3 HRH Eze Dr. George Nnamdi Ugorji. It is a customary arbitration award.
The law is settled on when such an arbitration award can be valid and binding.
Edozie JSC. in OKEREKE & ANOR v. NWANKWO & ANOR (2003) 9 NWLR PART 826 p. 592 explained the position of the law thus ,From the principles enunciated in their decision, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons
2. That it was agreed by the parties either expressly or by implication that the decision of the arbitration will be accepted as final and binding.
3. That the arbitration was in accordance with the custom of the parties or of their trade or business.
4. That the arbitrations reached a decision and published their award and.
5. That the decision or award was accepted at the time it was made. See OHIAERI v. AKABEZE (SUPRA).
The learned trial Judge rightly considered the compliance of Exhibits 13-131 with the above conditions before accepting the award as part of the judgment of the lower Court. His lordship on pages 578-579 of the record of appeal stated thus:
‘In his evidence in chief, DW1 Sir Michael Eke testifying agreed that in the life time of his late father (Pa Peter Eke) the original Defendant that he subjected himself to arbitration before this their Traditional Ruler. He however added ‘but it was to some extent’. To what extent witness did not tell the Honourable Court. He agreed that they went for the proceedings there three times and that he himself participated. He at the same time agreed that at the end of the arbitration, there was a feast to seal the outcome but here again added that the feast was imposed by the Eze. This Honourable Court was not told how the Eze imposed this neither was the Honourable Court showed any guns used by the Eze or threats of life and death. The minutes of the family General Meeting of 29/12/2004 was ratified on 1/10/2010 by both parties. The law regarding native arbitration is that there must be an agreement by both parties to attend the arbitration. In this instant case, evidence abound that both sides agreed to attend willingly and willfully. Another is that agreement therein will be binding unless one side to the dispute disagrees. That this disagreement must be made on the spot and not days, weeks months after. Since things are these days documented, the refusal and or disagreement must be documented. In this instant case there is nothing to show that the Defendant disagreed with the findings of the Traditional Ruler. Rather, there was merriment on the 25/9/2010′.
I need to add that the learned trial Judge went further to evaluate the evidence adduced before him apart from Exhibits 13-131.
I resolve this issue also in favour of the Respondent.
ISSUE NUMBER THREE
Whether on a proper evaluation of the evidence of the trial Court was right to have held that the case of the Respondent was more believable than that of the Appellants.
In considering the evaluation of evidence by a trial Court one must bear in mind that findings of facts of a trial Court who saw and heard the witnesses should not be lightly disturbed by an appeal Court unless such findings are perverse. According to Nnaemeka Agu JSc. in IDIKA & ORS v. ERISI & ORS (1987) 4 NWLR PART 66 p. 503, ?the making of findings of fact is a function pre-eminently within the function of the Court of trial. See MOGO CHINWENDU v. MBAMALI.
The attitude of an Appellant Court to findings of fact of a trial Court was explained by Muhammed JSC. in VAB PETROLEUM INC. v. MOMAH (2013) 14 NWLR p. 284: thus:
‘In a trial, there are generally two sets of findings of facts. A finding of fact may be based on the credibility of witnesses or may be informed from other facts proved before the trial Court where a witness gives direct evidence that is the evidence of the facts in issue as seen heard or perceived by any other sense by him (Section 77 of the Evidence Act). The finding of the trial Court on such evidence depends on whether or not it believes that witness (credibility of the witness) such a finding on such evidence is a primary finding of fact. i.e. the way the witness testifies, his demeanor in the box tells much of his credibility.
The trial Court that saw and heard the witness is in the best position to assess his credibility and make findings of primary facts. But where on the other hand other facts are put in evidence from which the facts in can be inferred, or where a finding of the trial Court on the facts in issue depends on inference. This is secondary finding of fact as it is not based on the credibility of the witness but on logical process of inference. In the former case i. e. primary findings of facts an appeal Court should always be loathe in interfering with such a finding as it did not have the privilege of seeing, hearing or observing the demeanor of the witness. There are several decided authorities on this EBBA v. OGODO & ANOR (1962) 1 ALL NLR 224; FATOYINBO v. WILLIAMS (1956) 1 FSC. 87; EGRI v. UKPERI (1974) 1 NMLR 22. Just to mention a few. In the latters case i. e. where findings of fact are secondary, i. e. drawn from inferences an Appeal Court is in as good position as a Court of trial to do this. It can differ from the trial Court. See AKPAPUNA v. NZEKA (1983) 2 SCNLR
It is not the function of the Appellant Court to substitute its aim and view for those of a Court of first instance with respect to facts found by the Court and based on a dispassionate appraisal of the evidence before it. See AG EKITI STATE & ORS v. DARAMOLA & ORS (2003) 10 NWLR PART 827 p. 104.
Did the lower Court properly evaluate the evidence adduced before it? I have carefully gone through the proceedings at the lower Court as contained in the record of appeal. It seems clear the learned trial Judge who saw and heard the witnesses accepted the evidence of the witnesses for the Plaintiff, His lordship however rejected the evidence of the witnesses for the Defendants. In respect of DW1 the learned trial Judge said on page 577 of record of appeal. ?It is remarkable to note that in almost all the above it is not easy getting answers from the witness who kept evading the questions emanating from the above.
And on DW2 his lordship said ‘DW2 one Kevin Osuji impresses me as a man who has no idea of what it is to be truthful and sincere. Not only was he evasive he was an artful dodger’.
Since there is nothing on record to show that the findings of the Court are perverse, as there is abundant evidence from the Plaintiffs witnesses to support the said findings. I cannot substitute my view for that of the learned trial Judge.
According to Belgore JSC. (as he then was) in BUHARI & ANOR v. OBASANJO & ORS (2005) 13 NWLR (PART 941) 1.
The golden rule has always been to leave undisturbed the findings of trial Court on facts before it unless the finding can be vitiated by inadmissible evidence or is perverse or there is no evidence to those facts before it. This stand of an Appellant Court is justified by deep principle of fairness and justice whereby no facts legally admitted by trial Court should lightly be disturbed by an Appellate Court.
Learned Appellants counsel had contended that the statement on oath of PW1 and PW2 did not meet the requirements of a valid statement on oath as required by Order 3 Rule 2(1)(c) of Imo State High Court Civil Procedure Rules in that they were not sworn to before the Commissioner for Oaths. Since the statements on oath were stamped by the Commissioner for Oaths on 2/2/2009, my understanding, of the contention of the Appellants counsel is that the said stamp and signature of the Commissioner of Oath were fraudulently procured.
Learned Appellants counsel had the opportunity to adduce evidence to that effect to prove such a serious allegation. He not only proceeded to cross-examine the said Plaintiffs witnesses which presupposes that their respective statements on oath were validly made and adopted, he also did not call the Commissioner for Oaths to deny his signature or state how his stamp and signature were obtained in his absence. He who asserts must prove. See OKABULE v. OYAGBOLA (1996) 4 NWLR (PT 147) 723 at 736 see also Section 136(1) of the Evidence Act 2011.
This argument therefore holds no water.
Another contention of Appellants counsel was that the subject matter of the proceedings were the alleged acts of commission or omission by the deceased Peter Eke as head of family. It was argued that the Respondent having failed to substitute the new head of family for the deceased, the suit ought to have been struck out or dismissed for being improperly constituted.
My lords, it appears to me we crossed this bridge earlier in this matter. At the lower Court by his motion on notice filed on 1/2/2011 (see pages 165 of record of appeal) the Claimant (now Respondent) sought leave of the Court to substitute the deceased Defendant. The motion on notice was supported by affidavit paragraphs 3-5 of the supporting affidavit read as follows:
3. That, indeed, both Nnayi Nze Ude, Osuji Ibekwe and Nnayi Osuji Ibekwe aforementioned were heads of Umuobiekwe family and thus administrators/trustees/caretakers of Umuobiekwe Estate, consecutively for more than 75 years until 2001 when the Defendant/Respondent, Pa Peter C. Ekeh (who died about 6th November 2010) became head of family.
4. That the Reliefs sought in this suit are clear that Defendant/Respondent was sued in his representative capacity as head of family in order to return the management of the family estate to the path of rule of law, due process, restore the supremacy of family general meetings as the highest decision making organ of the family land estate, identify the culprit(s) in the fraudulent conversion of the family estate, et cetera. The copy of the Relief sought is hereby attached as Exhibit ‘A’.
5. That the Defendant/Respondent, Pa Peter C. Ekeh (now deceased), was sued in his representative capacity as head of family because he, in collaboration with his children, were using the office of family head to vandalize, mismanage and fraudulently convert family estate to themselves, thus necessitating this suit to compel him, his children, agents and his legal representatives to stop, as well as, prevent them from the illegal and fraudulent practices in the management of the family estate?.
This application was granted and leave to consequentially amend the processes was subsequently granted. There is no appeal against the order of substitution and leave to amend the processes as a result of the substitution. In my respectful view it is too late in the day to flog the dead horse. An appeal against the two orders would have provided a platform for the Appellant to challenge the order of substitution.
This is more so when the averments in the affidavit supporting the motion for substitution were not challenged. In fact the application for substitution was granted without any objection. See page 163-164 of record of appeal. The order of substitution was a consent order.
The arbitration report of the Eze in council which was accepted by the entire family was made part of the judgment of the lower Court.
Eze Dr. George Nnamdi Ugorji, the Eze Ohamere of Umuguma Autonomous community, in his deposition on oath deposed inter alia thus:
14. That by the day the peace feast was performed on my supervision, the verdict of the case had been given with Sir Michael Ekeh and other family members in attendance.
15. That I looked into the matter between the two parties in this suit and arrived at a verdict. That Sir. Michael Ekeh was part and parcel of the arbitration and did not object to using my Arbitration Award as the judgment of this Court.
16. That to the best of my knowledge, Pa Peter Ekeh was still alive when the verdict of the case was given and it was acceptable by both parties.
17. that on 25/9/2010 during the Peace Feast, Sir Michael Ekeh was not present. On noticing this, I personally called him (Sir Michael Ekeh) on phone immediately whereupon he apologized for his unavoidable absence and confirmed that he was in agreement with his entire family members including Mr. Basil Ekeh, Jude Ekeh (Chief) and Mr. Raphael Ekeh who were all present at the feast meeting and promise to be present for the emergency family general meeting.
18. That it was Sir Michael Ekeh that suggested the 1st of October 2010 subject to his convenience for the emergency general meeting in which the minutes of 29/12/2004 was adopted under my supervision.
19. That there was no time that this panel of Arbitration emergency general meeting of 1st October, 2010 and the meeting ended without rancor.
20. That there was no time that this panel of Arbitration was challenged by any of the parties to this case?.
Michael Ake Ekeh referred to in the Deposition is the 1st Appellant.
Also Pa Chukwukere Akalonu, the oldest man in the family of Umuobiekwe had this to say in his deposition on oath.
4. That since I assumed the leadership of Umuobiekwe family following the demise of Pa Peter Eke late last year, I share out assignments and duties to any member of the family as the need arises, in the management of the family land estate.
5. That in conjunction with other members of Umuobiekwe family and late Pa Peter Ekeh, I attended the Arbitration at the Palace of the Traditional Ruler (Eze) of Umuguma Autonomous Community from the beginning till the day the Ruling was given.
6. That the family members, including late Pa Peter Ekeh and his male children accepted the ruling in good faith and thanked the Traditional Ruler for a job well done.
7. That Pa Peter Ekeh was still alive at the conclusion of the Ruling by the Traditional Ruler and died in November, 2010.
8. That I was surprised when I learnt that Sir Michael Ekeh and his brothers are given excuses about the Ruling which they never did at the day the ruling was delivered by this Eze-in Council at his palace.
9. That after the ruling, there was a peace feast and subsequently a family general meeting in which the minutes of 24/12/2004 was adopted.
In the face of all the above the failure to formally make consequential amendment to the processes to reflect the order of substitution does not vitiate the justice of the case. It is clear the Defendants were sued in representative capacity.
Iguh JSC in KYARI v. ALKALI (2001) 11 NWLR PT 724 p. 412 had this to say on this point.
It is long settled that once the pleadings and the evidence of a party conclusively disclose a representative capacity and it is clear that the case was fought throughout in that capacity, the trial Court can properly and justifiably enter judgment for and or against the party concerned in such representative capacity, even if an amendment to reflect that capacity had not been applied for and obtained. See AFOLABI & ORS v. ADEKUNLE & ANOR (1983) 2 SCNLR 141 OR (1983) 14 NSCC 398 OR (1983) 8 CSC 98; AYENI v. SOWEMIMO (1982) 5 SC 60; DOKUBO v. BOB-MANUEL (1967) 1 All NLR 113 at 121, MBA NTA & ORS & ANOR v. EDE ANIGBO & ANOR (1972) 5 SC 156 at 174-176. It would be otherwise if the case is not made out in a representative capacity. See ONWUNALU NDIDI & ORS v. OSADEME (1971) 1 ALL NLR 14 at 16. This is because the law in such circumstance is that the Court should do substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought or defended so as to bring it in line with the pleadings and the evidence.
I resolve this issue against the Appellants in the circumstance
ISSUE NUMBER FOUR
Whether the judgment of the trial Court is against the weight of evidence in this case.
Having regard to the aforesaid earlier in this judgment, I resolve this issue against the Appellants. There is abundant evidence on record to support the findings of fact of the learned trial Judge. I have no doubt in my mind that the judgment is in line with the weight of evidence at the lower Court.
Conclusively, I hold that this appeal lacks merit. It is therefore dismissed. Parties are to bear their respective costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now the lead Judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA. I agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. I also subscribe to the order made therein with regard to costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment by my learned brother. T.O AWOTOYE JCA. My lord, painstakingly, identified and resolved the contending issues, admirably and i agree with his reasoning and conclusion, that there is no merit in the appeal.
In the case of Solomon & Ors Vs Mogaji & Ors (1982) LPELR -3102 SC, the law was again stated that:
“…sale of family property by the head of the family alone, without the consent of the other family members is voidable. See Bello Adedibu Vs Makanjuola 10 WACA 33 (the head of the family cannot dispose of family properties without the consent of the family. Such sale is voidable and can be avoided as “the native law and custom throughout West Africa in regard to the alienation of family land, quite naturally has, as its basis, the interest of the family and not the interest of strangers who may wish to acquire family land) Adewuyi Vs Ishola (1958) WRNL 1120.
… I can only add that after the days of the West African Court of Appeal (WACA), it would be unwise to generalize about the native law and custom throughout West Africa. Suffice it to say that in so far as the Yoruba Customary Law is concerned this is still the law.”
Of course, the above is also true of Igbo Customary Law. See the case of Alaribe Vs Okwuonu (2015) LPELR -24297 (CA), Where it was held that:
“…family land can only be sold or disposed of with the consent of the head/principal members of the family. Even where a family head makes the sale, he must receive the consent or ratification of the other principal member of the family for the sale to be validated.
See Okonkwo Vs Okonkwo & Ors (1998) LPELR -2487 (SC);(1998) 10 NWLR (Pt. 571) 554; Folami & Ors Vs Cole & Ors (1990)2 NWLR (Pt.133) 445, Akano Vs Ajuwon (1966)1 All NCR-246 at 249.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances:
M. O. IGWE, ESQ.For Appellant(s)
D. O. AGBO, ESQ.For Respondent(s)
Appearances
M. O. IGWE, ESQ.For Appellant
AND
D. O. AGBO, ESQ.For Respondent
