MR. ANAYO ELEAZU v. MR. GODFREY UKAONU (2019)

MR. ANAYO ELEAZU v. MR. GODFREY UKAONU

(2019)LCN/13918(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of June, 2019

CA/OW/113/2014

RATIO

EVIDENCE: WHETHER ISSUES OF EVALUATION OF EVIDENCE OR PROPER ADMISSION OF DOCUMENTS ARE QUESTIONS OF CUSTOMARY LAW

It has also been decided in many cases, that issues relating to evaluation of evidence or proper admission of documents and ascription of probative value to same, are not issues or question(s) of customary law. See Pam Vs. Gwom (2000) LPELR ? 2896 SC, Ihuoma Vs. Wachukwu (2017) LPELR 42621 (CA), Enyinnaya Vs. Otikpo & Ors. (2015) LPELR 25529 (CA); Onyeme 7 Anor Vs. Onumaegbu & Anor (2016) LPELR ? 41092 CA, and Chieke Vs. Nosike (2017) LPELR-42618 (CA) where it was held:
I find it difficult to locate the complaint of the Appellant, which in the main is a quarrel with evaluation of evidence, within the rights of Appellants to appeal under Section 245(1) of the 1999 Constitution, which confines the right of appeal to question(6) of customary law. Issues and questions relating to evaluation of evidence and restraint of Appellate Court from tampering with findings of fact of the trial Court? appear to belong to the realms of common law and procedure of Court, outside the contemplation or purview of customary law. See also the case Ukachukwu & Ors Vs. Ihejirika & Ors (2014) LPELR ? 24102 CA and Duru Vs. Okoro (2015) LPELR ? 24483 CA. See also Tella & Anor Vs. Daniel (2013) LPELR-22620 CA; Usman Vs. Umaru (1992) 7 NWLR (Pt. 254) 377. PER ITA GEORGE MBABA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE
The law is trite, that documentary evidence is the best evidence and speaks for itself; and that oral evidence cannot be used to discredit, contradict, undermine or defeat a written document. See Egharevba Vs Osagie (2009)18 NWLR (Pt.1173) 299; Esekhaigbe Vs FRSC (2014) LPELR ? 24388 (CA); Skye Bank Plc and Anor. Vs Akinpelu (2010) LPELR ? 3073 (SC). PER ITA GEORGE MBABA, J.C.A.

 

 

Before Their Lordships

RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

Between

MR. ANAYO ELEAZUAppellant(s)

 

AND

MR. GODFREY UKAONURespondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the Customary Court of Appeal of Imo State in Appeal No. CCA/OW/A/1/2009, delivered on 30/6/2011 by their Lordship: Hon. Justice P. I. Okpara., (Presiding Judge) Hon. Justice V.U. Okorie (Judge) and Hon. Justice F. C. Abosi (Judge), wherein their Lordships reversed the decision of the trial Customary Court, which gave judgment to the Plaintiff. The Plaintiff (who was respondent at the lower Court) now appeals to this Court against that decision of the Customary Court of Appeal.

At the trial customary Court, the Plaintiff, in Suit No. CC/OU/111/99, had sought the following reliefs:
(1) A declaration that the Plaintiff is entitled to the grant of the customary Right of occupancy to the piece or parcel of land known as and called ?EGENTI? situate at Umualum Uratta within Owerri Customary Court District.
(2) N200,000.00 (Two Hundred Thousand Naira), being general damages for trespass on the said family land of the Plaintiff.
(3) Perpetual injunction to restrain the Defendants and their agents/servants and assigns from committing further acts of trespass on the said land of the Plaintiff.

After hearing the case and considering the evidence adduced by the parties and addresses of counsel, the trial customary Court had held for the plaintiff thus:
Placing the totality of the evidence adduced in this trial on an imaginary scale, the weight undoubtedly tilts in favour of the plaintiff, Augustine Eleazu, who has unequivocally proved his case through his attorney. The Court therefore finds in favour of the Plaintiff and hereby makes the following orders:
(1) A declaration that the Plaintiff is entitled to the grant of the Customary Right of Occupancy to the piece, or parcel of land known as and called ?Egent? situate at Umualum, Uratta.
(2) N75, 000.00 (Seventy Five Thousand Naira) being general damages for trespass on the said family land of the Plaintiff.
(3) Perpetual injunction restraining the defendants and their agents/servants and assigns from committing further acts of trespass on the said land ?.
(See pages 78 ? 79 of the Records of Appeal)

The Appeal by the Defendants against the above decision succeeded, giving rise to this Appeal. The lower Court (Customary Court of Appeal) faulted the decision of the trial Court, when it said:
?I have read through the records of appeal and considered the arguments of Counsel in their respective briefs of argument. The issue here is whether the plaintiff proved entitlement to customary Right of occupancy, damages for trespass to the land in dispute and perpetually (sic) injunction? It is the law that the plaintiff should rely on the strength of his case but not on the weakness of the defence in proving his entitlement to the land in dispute? The evidence of PW1 centred on traditional history and pledge? The traditional history deliberately did not state the fact of the existence of any other branch of the family or the fact that the Egenti land was shared into two between the sons of Azunwanna.
At page 70 lines 7 ? 12 the Court below stated thus in its judgment:
Under cross examination, PW1 admitted that both plaintiff and Uchegbulam Oguike had a common ancestor called Nwogo and that Nwogo deforested this Egenti land; but however denied both plaintiff and Uchegbulam Oguike shared this Egenti land which belonged to Nwogo. Oguike has his own land near the Catholic Mission. The Egenti land, subject of this is also near the catholic mission.
The Court, during the visit to the locus, did not find out the name of the land of Oguike that is near the Catholic Mission?
Did the Court below notice the Ovuru boundary mark during the inspection of the land in dispute? The report of the inspection appeared as part of the judgment in pages 67 to 68 of appeal (sic). It was silent on the boundary mark called Ovuru. His traditional history failed to show that the plaintiff ancestor and the late second defendant?s ancestor had land at Egenti land. It was under cross examination that the said fact was admitted. But the DW1 proved that the Egenti land of the parties was shared into two with Ovuru as their boundary. It then became clear that the parties had land within the same area and called by the same name Egenti. The issue that the lower Court was then called upon to decide was who pledged the land and who redeemed it.
?The PW1 said the land was pledged by the ancestor of the plaintiff and redeemed by the plaintiff. He was not sure of the date of redemption and the sum for which the land was pledged. PW2 was the traditional Ruler of the parties and was part of the of the arbitration panel that looked into the matter ? In Exhibit 2 part of the cross examination read?.
Q: The land was eventually redeemed by Oguike from the Olugazie family?
A: I learnt that during the cause (sic) of the arbitration?
But the PW3, Chief Christopher Akuta, testified otherwise. Part of his cross examination read. ?This land was never redeemed by Oguike. The land is still on pledge? (See pages 164 ? 166 of the Records).

The Court below admitted Exhibit 4 which was the document evidencing the redemption and settlement of their civil matter out of the Magistrate?s Court 4, Owerri, in Suit No. OW/33/74: Between Boniface Olugazie and Mgbake Oguike & Ugwagbachi. The document reads, in part:
SETTLEMENT OUT OF COURT
1. Boniface Olugazi, plaintiff in the above suit, have (sic) this day received from the 1st defendantMagbaku Oguike, the sum of N66.00 (Sixty-Six Naira) for ?33-0-0d, in full and complete settlement of my claim in this suit. The land in dispute is hereby fully redeemed from me by the defendants; and as I hereby drop this claim in the above suit and any further claim from the defendants in respect of this land, the pledge is hereby extinguished and the claim/suit is hereby withdrawn as satisfied. Dated this 22nd April, 1978?
From the evidence of PW2 under cross examination, it is not disputed that the Appellant withdrew from the arbitration and stated that he would protest the outcome? Would this award of the arbitration be binding on the Appellant? I think not and I so hold. The conditions for a binding customary arbitration award were not complied with. Agu and Ikewibe (1991) 3 NWLR (Pt. 180) 285; Dikeocha V  Dike (2006) 2 FWLR (Pt. 312) 2534; Egesimba V Onuzuruike (2002) 15 NWLR (Pt. 791) 466? it is my view, and I hold that the lower Court was in error when it held placing the totality of the evidence adduced in this trial on an imaginary scale the weight undoubtedly tilts in favour of the plaintiff.?
This issue is therefore succeeds and is resolved in favour of the Appellant. The 2nd issue of whether the Egenti land was shared between Oguike and Orji is subsumed into the first issue, already resolved? This appeal therefore succeeds and is allowed.(See pages 166 to 168 of the Records of Appeal).

Appellant, who was the Respondent at the lower Court, is appealing against the above decision which reversed his gains at the Customary Court. He filed Notice of Appeal, as per pages 172 to 175 of the Records, disclosing 3 grounds of Appeal. He filed an Amended Brief of argument on 9/1/2019, after regularizing the Records of Appeal on 11/10/18. He donated two (2) Issues for the determination of the appeal, namely;
1. Whether the learned Justices of the Customary Court of Appeal? were not wrong in law to reverse the decision of the Judges of the Customary Court, Owerri Urban, Imo State, who decided that the Plaintiff/Appellant had proved his claim on preponderance of evidence, which when weighed on the imaginary scale, tilted in favour of the Plaintiff/Appellant (Ground three).
2. Whether the learned Justices of the Customary Court of Appeal, Imo State of Nigeria, were not misconceived/misdirected in law by holding in their judgment that the document tendered in Court below as Exhibit 4 (the alleged document of settlement out of Court) proved that one Uchegbulam Oguike redeemed the land in dispute from PW1, (Boniface Olugazie), and not Augustine Eleazu, whose grandfather, Orji, pledge (sic) the land in dispute to Ejeka, the grandmother of PW1 (Boniface Olugazie) (Grounds one and two).

The Respondent adopted the above Issues for determination in his Brief filed on 30/1/2019, with slight modifications, as follows:
(1) Whether the learned Justices of the Customary Court of Appeal, Imo State were wrong in law, when it reversed the decision of the trial Court, based on improper evaluation of evidence laid at the trial (Ground 3).
(2) Whether the learned Justices of the Customary Court of Appeal, Imo State were misdirected in law when it gave credence to Exhibit 4 as terms of settlement, which shows that Ucheghulam Oguike redeemed the land in dispute from PW1 Boniface Olugazie. (Grounds 1 and 2).

The Appeal was heard on the 10/4/19, when the Counsel, on behalf of the parties adopted their briefs. While summarsing his argument and submissions, Appellant?s Counsel Okechukwu Ajoku Esq., said that the identity of the land in dispute was not an issue during the trial as both parties and the Court knew the land in dispute. To prove his ownership, Appellant had relied on traditional history/evidence beginning from his founding ancestor, Nwogo, who deforested the land, and the land devolved down to Orji, who pledged it to Ejeka, and was finally redeemed by the Plaintiff/Appellant from Boniface Olugazie (PW1). He referred us to the evidence of PW1, on pages 5 and 6 of the Records, and to PWs 2 and 3, on pages 91 ? 92 of the Records. He argued that the lower Court (Customary Court of Appeal) made substantial error in law by wrongly attaching probative value to the document wrongly tendered and admitted a