MR. SUNDAY OKEGBE & ORS v. EJIGHE AKPOME & ORS
(2013)LCN/6653(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of December, 2013
CA/B/413/2010
RATIO
WHETHER THE BURDEN ON THE PARTY WHO ASSERTS THE EXISTENCE OF A THING TO PROVE SAME
The law remains settled till date that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove. See: Section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD [2013] 1 NWLR (Pt. 1336) 618. It is my considered view that it has been sufficiently demonstrated that the Respondents failed woefully to prove the custom and tradition regarding family headship in Uzere which they predicated the Obaship and headship of Erue family by the 1st Respondent upon. This being the situation there was no evidence talk less of credible evidence in justification of the finding of the lower court to the effect that the 1st Respondent is the head of Erue family at all time material to the instant suit. Indeed the said finding of the lower court having been shown as not being based on a proper evaluation of the evidence on record is perverse and cannot be allowed to stand. See: EJIEMELE V. OPARA (2003) 14 NSCQLR 319. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
CONDITIONS TO PROVE A VALID TITLE BY PURCHASE UNDER CUSTOMARY LAW
Where the transfer is made by the head of family alone acting for an on behalf of the family, such a transfer is prima facie voidable and the family may set aside such disposition of their land if the non-consenting members act timeously. However a transfer of family land other than by the head of family or the head and principal members of the family is absolutely void ab initio. So too, as the head of family cannot transfer family land as his own exclusive personal property as such a transfer is void ab initio. Furthermore, it is settled law that in order to prove a valid title by purchase under customary law, it is not only necessary for the purchaser to prove the payment of the purchase price, but also the actual handing over of possession in the presence of witnesses who should testify to that fact. See: EJILEMELE V. OPARA (supra); ETAJATA V. OLOGBO (2007) 30 NSCQLR 966; and FOLARIN V. DUROJAIYE (1988) NSCQR 581. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHETHER A PARTY SEEKING FOR A DECLARATION OF TITLE TO LAND CAN SUCCEED ON THE STRENGTH OF HIS OWN CASE
The position of the law regarding a party seeking for a declaration of title to land has been stated hereinbefore. The burden is on the party seeking for the relief to succeed on the strength of his own case. Where the party fails to show a prima facie case in respect of his entitlement to the relief, there is even no need for the court to consider the case of the defence. See OLOHUNDE V. ADEYOJU (supra). Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. MR. SUNDAY OKEGBE
2. MR. OSADEBE OBARO
3. OKPALAKO ADIEMO
4. MR. IGBIRENO ARENO
5. MR. EMEMERUZE OBARO
6. MADAM ALADIN ENIWEZI
7. MR. BLOCK ODHEGEDA Appellant(s)
AND
1. EJIGHE AKPOME (The Head of Erue Family)
2. MR. SIMON EMOVIEFE (For themselves and on behalf of members of Erue Family of Uheri Quarters Uzere, excepting the Defendants)
3. MRS. GLADYS UYOYOU EGBEDE (Nee Edheroveno) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:(Delivering the Leading Judgment): This is an appeal against the judgment delivered on 19/5/2010 by the High Court of Justice, Delta State holden in the Oleh Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice M. Umukoro (hereafter simply referred to as “the learned trial Judge”).
The Appellants herein were Defendants before the lower court; while the Respondents instituted the instant case as Plaintiffs before the lower court and the said court in its judgment granted all the reliefs claimed by the Respondents against the Appellants.
The instant action was commenced by a Writ of Summons which issued on 6/4/2006. Pleadings were filed and exchanged by the parties and amended as considered appropriate. The pleadings of the parties upon which the case was tried before the lower court are the “Amended Statement of Claim” and “Reply to 1st – 7th Defendants (sic) Joint Statement of Defence” (hereafter simply referred to as “Respondents’ pleadings” where the con so admits); and the “Joint Amended Statement of Defence of the 1st – 7th Defendants” (hereafter simply referred to as “Appellants’ pleading”). The reliefs which the Respondents claim against the Appellants jointly and/or severally are for:-
“1. A declaration that the 3rd plaintiff is entitled to all that piece and/or parcel of land forming part of Erue family land measuring about 200ft x 300ft well known to the parties to this Suit and lying, situate and being at Ukuame Bush along Owe Road, Uzere in the Isoko South Local Government Area of Delta State; the 3rd Plaintiff having purchased the said piece of land from the Erue family of which said family all the parties to this Suit (excluding the 3rd Plaintiff) belong; and which said sale was effected to 3rd Plaintiff by the Head and accredited representatives of Erue family of which said family all the parties to this Suit (excluding the 3rd Plaintiff) belong; and which sale was effected to the 3rd Plaintiff by the Head and accredited representatives of Erue family some of whom are suing herein as Co-plaintiffs with 3rd Plaintiff(s).
2. The sum of N10,000,000.00 (Ten million Naira) being damages for the trespass on the aforesaid land in that sometime in the month of November, 2005, Defendants without 3rd Plaintiff’s consent broke into the land subject matter of this Suit and destroyed Plaintiff’s economic crops such as palm trees and cassava etc.
3. AN ORDER of Perpetual Injunction restraining jointly and/or severally the Defendants, their Servants, Agents, Privies and/or whomsoever that may be acting under/through and/or on their behalf from further trespassing on the piece or parcel of land formerly forming part of Erue family land measuring 200ft x 300ft and which land is well known to the parties to this suit, lying and situate at Ukuame Bush along Owe Road, Uzere, Isoko South Local Government Area of Delta State of Nigeria.
Any other Relief(s) which this Honourable Court may deem fit to make Ex Debito Justiciae.”
(See page 86 of the record of appeal).
The case set up by the Respondents in their pleadings and upon which the reliefs re-produced above, are predicated, is to the effect that the land in dispute formed part of land belonging to Erue family until it was purchased by the 3rd Respondent from the said Erue family of which the 1st Respondent is the head or ‘Oba’ and which family all the parties in the action except the 3rd Respondent, equally belong. The Respondents averred to the effect that the land in dispute purchased by the 3rd Respondent was earlier loaned to one Oke and its redemption/retrieval was later secured by the 2nd Respondent. The redemption/retrieval of the land in dispute culminated in an outright sale by virtue of an agreement dated 9/4/2003 transferring title/ownership to the land to the 2nd Respondent and later to the 3rd Respondent by a conveyance dated 11/4/2003. The Respondents narrated the sequence of events to be that sometime in 2003, the 2nd Respondent being desirous of having a big plot of land which he intended to sell to the 3rd Respondent consulted the 1st Respondent (who is the custodian of the Evuo or staff of Erue family). It should be noted that “Evuo” and “Evo” were used interchangeably freely, in the pleadings of the parties; record of appeal; and Briefs of Argument of the parties.
The 2nd Respondent was advised to seek the consent and authorization of the entire members of his lineage to enable him deal with the said land. Thereafter the 1st Respondent proceeded to call a family meeting to deliberate on the request of the 2nd Respondent and after series of meetings the consent and authorization of the family was obtained with the family affirming to stand by or to be bound by whatever decisions that were arrived at or taken on their behalf by the 1st Respondent more especially in recognition of the position he occupies or the role he plays in the family. It is the case of the Respondents to the effect that the 2nd Respondent having successfully redeemed/retrieved the land in dispute formally bought the same from the family and for this purpose, paid an additional sum of N14,000.00 therefore on 9/4/2003 thereby paying a total sum of N34,000.00. That the 2nd Respondent had to pay the additional N14,000.00 because the initial sum of N20,000.00 paid by him was rejected at a family meeting held on 18/3/2003. It is the position of the Respondents that it was after the 2nd Respondent had secured the authorization of the family to resell the land to the 3rd Respondent and paid homage with drinks to the 1st Respondent, and two others as advised by the 1st Respondent, that the 1st Appellant as well as 3rd Appellant came to the 1st Respondent urging him (1st Respondent) to renege on the arrangement reached by the family upon the offer of various sums as bribes. It is the case of the Respondents that it was in 2005 and after the matter of the land had been closed since 2003 that the Appellants started trespassing on the land of the 3rd Respondent and that this resulted in the report made to the Ogba Oletu Ovrawa (the local arbitration committee at Uzere) and which committee ruled that there was a valid sale in the light of the documents presented to it and actions taken by the parties that resulted in the making of documents in relation to the land in dispute. The Respondents claimed that the Appellants being dissatisfied with the outcome of the matter before the Ovrawa committee took the matter before Odiologbo at the Ovie’s palace. That the Appellants got a verdict favourable to them at the palace as the Odiologbo was a bosom friend of the Appellants and also connived with the DPO to harass them, (Respondents). That they (Respondents) were constrained to institute the instant case in the light of the facts narrated above.
The Respondents contended that in the tradition and custom of Uzere, once a person (no matter the age) is chosen by the family as the ‘Oba’ (otherwise known as the custodian or bearer of the Evuo or staff of the family) he is the head of the family and presides over issues relating to the interest of the family. Facts in respect of the origin of the Evuos of Erue family and how the 1st Respondent became the ‘Oba’ of the family were narrated or recounted in the Respondents’ pleadings. The Respondents also contended that the sale of the land in dispute to the 3rd Respondent was in accordance with custom, tradition and practices with regard to Erue family in particular and that as the Appellants actively participated in the sale, they are estopped from harassing them, i.e. Respondents, two years after.
In their pleading, the Appellants did not dispute the facts that all the parties in the instant action save the 3rd Respondent, belong to the same family – Erue family and/or that the land in dispute sold to the 3rd Respondent is within the land of the said family. The Appellants however controverted the case of the Respondents depicting the 1st Respondent as the ‘Oba’ (family head) of Erue family and also challenged the validity/legality of the sale of Erue family land to the 3rd Respondent. The Appellants not only denied the assertion of the Respondents that Erue family has “Evuos” or staff of family ancestors, but also claimed that the ‘Oba’ or “Head” of Erue family is one Mr. Eniwezi Ogbodabor. The Appellants averred to the effect that the 1st Respondent not being the head of family lacked the capacity to summon Erue family meetings and that the said family did not at any time sell the land in dispute to the 3rd Respondent or any other person and never executed agreements dated 9/4/2003 and 11/4/2003 respectively. The Appellants not only averred to the effect that the 1st Respondent is too junior in the family to preside over family issues especially the sale of family land, but also set out in their pleading the names of the heads of the sub-families who are principal members that needed to have consented to and authorized the sale of Erue family land. It is the case of the Appellants that these principal members were not consulted before the family land was purportedly sold to the 3rd Respondent. That even the 3rd Appellant who is the head of the 2nd Respondent’s lineage was not aware of the purported sale of the land in dispute. The Appellants conceded that they put a caveat on the land upon discovering acts of trespass thereon acting on the instruction of the entire Erue family and also conceded that this resulted in the matter being taken before Oletu Ovrawa and thereafter before the Ovie’s palace whereat a decision was handed down in their favour. “A”
The Appellants pleaded the custom and tradition in Uzere in respect of family headship and further contended that under the said custom and tradition, the man who worships Evuo is not necessarily, the head of family.
Parties adduced evidence in their own behalf and through witnesses, in the proof of their respective cases as set out on the pleadings. Exhibits were also tendered. Having had the benefit of the written addresses of the parties, and after evaluating the evidence before it, the lower court came to the conclusion that the case of the Respondents is far more preferable to that of the Appellants and consequently concluded at pages 200 – 201 of the record thus:-
“I find defendants liable to the plaintiffs upon these terms that is to say that the 3rd plaintiff – Mrs. Gladys Uyouyou Ugbede (nee Edheroveno) is entitled to all that piece and/or parcel of land forming part of Erue family land measuring about 200ft x 300ft well known to the parties to this suit and lying, situate and being at Ukuame bush along Owre (sic) road, Uzere in the Isoko South Local Government Area of Delta State of Nigeria, the 3rd plaintiff having purchased the said piece of land from the Erue family of which said family all the parties to this suit excluding (the 3rd plaintiff) belong and which sale was effected to 3rd plaintiff by the Head and accredited representatives of Erue family some of whom are suing herein as co-plaintiffs with 3rd plaintiff.
The defendants are liable to pay the 3rd plaintiff the sum of #20,000.00 (twenty thousand naira) only being damages for trespass on the aforesaid land.
The defendants are jointly and/or severally perpetually restrained by themselves, their servants, agents, privies and/or whomsoever that maybe acting under/through and/or on their behalf from further trespassing on the piece or parcel of land formerly forming part of Erue family land measuring 200ft x 300ft of which land is well known to the parties to this suit, lying and situate at Ukuame Bush along Owre (sic) road, Uzere, Isoko South Local Government Area of Delta State of Nigeria.”
Being dissatisfied with the judgment of the lower court, the Appellants lodged the instant appeal vide a Notice of Appeal dated 11/8/2010 and filed on the same date. The Notice of Appeal contains three grounds of appeal with the Appellants seeking therein from this Court (i) that the appeal should be allowed; (ii) the judgment of the lower court should be set aside; and (iii) judgment dismissing the Plaintiffs’/Respondents’ claim, be entered.
In accordance with the current Rules of this Court, parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument settled by A. Irogbo, Esq. is dated 24/2/2011 and filed on 14/3/2011 but deemed to have been properly filed and served on 23/5/2012. Respondents’ Brief of Argument dated 18/3/2013 and filed on the same date was deemed to have been properly filed and served on 12/7/2013. It was settled by A.E. Icheghe, Esq. A. Irogbo of counsel for the Appellants and A.E. Icheghe, learned lead counsel for the Respondents at the hearing of the appeal on 9/10/2013 adopted and relied on the Briefs of Argument of their respective clients as hereinbefore identified, in the aid of their positions in the appeal.
In their Brief of Argument, the Appellants formulated the two Issues for determination in the appeal. The Issues are: –
1. Was the learned trial judge right when he held that he found it very easy to reach the conclusion that the sale of the land to the 3rd plaintiff cannot be vitiated on the basis of the evidence before it? (GROUND 2).
2. Was the learned trial judge right in holding that on the evidence before it the 1st plaintiff – Ejighe Akpome is the head or Oba of Erue family, Uheri Quarters, Uzere, Isoko South Local Government Area of Delta State at all times material to this suit? (GROUND 1)
In their Brief of Argument the Respondents expressly adopted the Issues formulated by the Appellants for determination in the appeal. The appeal will therefore be determined upon the Issues re-produced above; but in doing this; I do not intend to follow the order in which the Issues were argued by the parties in their respective Briefs of Argument. I intend to consider Issue 2, first. This is in the light of the fact that the Issue questions the correctness of the decision of the lower court relating to the headship of Erue family by the 1st Respondent (which the Appellants dispute) and who undertook the sale of the land in dispute in that capacity.
ISSUE 2:
The stance of the Appellants on this Issue is that this Court should hold that the failure of the 1st Respondent to lead credible evidence to prove that he is the head (Oba) of Erue family is fatal to the Respondents’ case. The Appellants stated to the effect that the case of the Respondents as set up in their pleadings is that the 1st Respondent is the head of Erue family otherwise known as “Oba” at all times material to the sale of the land in dispute. That the 1st Respondent claimed that he became the family head through appointment by the elders of the family. That on the other hand they (Appellants) pleaded and gave oral evidence to the effect that the oldest surviving male descendent of Erue family is always the head as against the Respondents’ claim that one can become family head by appointment. The Appellants stated to the effect that it was clear from the evidence of the 1st Respondent that he was not the oldest male in Erue family when Exhibit “A” was made. That the oldest male was Umukoro Egedi who the 1st Respondent claimed delegated him and one other, to so act. The Appellants observed that the “other person”, whom Umukoro Egedi delegated 1st Respondent alongside to act, was not called to give evidence. That curiously too, no family member was called to testify regarding the appointment of the 1st Respondent as family head and that he had been acting in that capacity. That the elders who the 1st Respondent claimed to have appointed him, as family head (Oba) were neither called to attest to this fact. That the headship of Erue family by the 1st Respondent was therefore known to the 1st and 2nd Respondents only, in the light of the evidence before the lower court.
The Appellants stated to the effect that they reacted to the claim of the Respondents concerning the headship of the family by the 1st Respondent in paragraphs 23 and 41 of their pleading and duly led evidence in support of the averments therein through the 1st and 2nd Appellants respectively, and DW4. It is the submission of the Appellants that the Respondents failed to prove that the 1st Respondent was the head of Erue family at all times material to the sale of the land in dispute, as they failed to buttress this assertion by calling any family member to testify to this fact. It is the stance of the Appellants that the evidence which they adduced on the question of the headship of the family accords with decision of the Supreme Court in the case of Otun v. Otun (2004) All FWLR (Pt.227) 407 at 420.
Dwelling on Issue 2, the Respondents submitted that the lower court was right in holding that the 1st Respondent is the head or ‘Oba’ of Erue family, Uheri Quarters, Uzere, Isoko South Local Government Area of Delta State at all times material to this suit, on the evidence before it. They referred copiously to averments in their pleadings and evidence adduced by them in aid of the submission. The Respondents also submitted to the effect that as it was never suggested to the 1st Respondent under cross-examination that he was not the ‘Oba’ of Erue family of Uheri Quarters, Uzere and/or that Erue family has no “Evos” which the ‘Oba’ worships/serves, the failure in this regard tantamount to admission of these material facts by the Appellants and that the subsequent evidence of the DW2 that Erue family has no “Evos” is an afterthought. The case of Oforlette v. The State (2000) FWLR (Pt.12) 2081 at 2102 was cited in aid. It is also the stance of the Respondents that the evidence they adduced regarding the native law and custom in Uzere/Isoko on family headship was equally admitted by DWs 2 and 3. In the circumstances, this Court was urged not to interfere with the finding of the lower court regarding the headship of Erue family by the 1st Respondent at all times material to this suit. It is the stance of the Respondents that the submission of the Appellants that the 1st Respondent did not discharge the burden of proof in respect of his appointment as head of Erue family is misconceived as no particular number of witnesses is required to prove any fact except as may be required in exceptional cases by law and reference was made to Section 200 of the Evidence Act, 2011. The Respondents submitted that the Appellants had the duty of calling Ogbodabor Eniwezi or any of the elders of Erue family to prove that the 1st Respondent was not appointed as the head or ‘Oba’ of the family and the case of Oyovbaire v. Omamurhomu (2001) FWLR (Pt. 68) 1229 at 1239 was cited in aid.
It has earlier been stated in this judgment, that the instant case was tried upon pleadings filed and exchanged by the parties. Implicit in a trial by or on pleadings, is that the facts upon which the Respondents (being Plaintiffs before the lower court) predicate the reliefs they claim against the Appellants (being Defendants before the lower court) must be pleaded in their pleading(s); just as the facts relied upon by the Appellants in resisting the claims of the Respondents, must be pleaded in their own pleading as well. This is against the backdrop of the settled position of the law that it is the pleadings of the parties that fix and circumscribe the issues that call for resolution in a case because it is therefrom that the issues in respect of which parties are in agreement as well as those in respect of which they are not in agreement are discerned, distilled or made out.
Another postulation of the law given the nature and functions of pleadings is that parties are not only bound by the case they set up in their respective pleadings, but also that they are to adduce evidence in respect of the facts pleaded in relation to their respective cases only, as evidence adduced in relation to facts which are not pleaded goes to no-issue and is inadmissible. And where such evidence that goes to no-issue is admitted, same is liable to be struck out or discountenanced by the court. In the same vein, it is a settled position of the law that where a party does not adduce evidence in respect of facts pleaded by him, such facts are deemed abandoned as a party’s pleading by itself or standing alone, does not constitute evidence. See: OLUSANYA V. OSINLEYE [2013] All FWLR (Pt. 693); ITA V. DAZIE [2013] All FWLR (Pt. 683) 1880; and AGBOOLA V. UBA PLC (2011) 45 NSCQR 335 at 358; amongst many others. In other words, pleadings constitute the solid foundation on which parties are to erect their respective cases by relevant evidence. It is therefore incumbent on parties to understand the facts of their respective cases properly, before applying the law to the said facts. This view is fortified by what the Supreme Court per Pats-Acholonu, JSC; said in the case of OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 21 NSCQLR 275 at page 288, thus:-
“It is always tempting for lawyers to concentrate on the law and relegating the facts which give rise to the law to the background. The tool or magic that should be in the possession of a seasoned advocate is the mastery of the facts of the case. I have always stated that knowledge of the facts of a case must be assiduously and painstakingly pursued. The facts must then be subjected to scrupulous analysis/and serious efforts made by the Counsel to know how to elevate them to the pedestal that would convince the Court to find in the favour of the party seeking the Court’s intervention. I fail to see how very sparse or improvised stories or crass ignorance of essential facts by the Appellant in this case could readily persuade a Court to find in its favour. The passion for facts must be so all embracing and encompassing that it should always be in the mind of a Counsel to a Plaintiff, and reach a crescendo of addiction – metaphorically speaking. With such a weapon craftily grafted in a beautiful flowing pose in the pleadings a good case for the proponent of the action is made unless the story told is riddled with falsehoods conjectures and speculations.”
Indeed, it is not only the parties that must scrupulously or thoroughly understand the facts of their respective cases, but the court as well, should. This is particularly so as the court in adjudicating on the case before it, must always bear it in mind that it is the plaintiff who brings a suit before it that also primarily nominates the issues for decision in the case. See LONGE V. FIRST BANK OF NIGERIA PLC [2012] All FWLR (PT. 525) 258; and NKUMA V. ODILI [2006] All FWLR (Pt. 313) 24. It is against this backdrop that an appellate court would normally consider the pleadings of the parties in order to have a clear understanding of the nature of the dispute between the parties in an appeal and how the lower court approached the issue. See KOPEK CONSTRUCTION LTD V. EKISOLA [2010] All FWLR (Pt. 519) 1035.
Given the stance of the Appellants that the Respondents did not adduce credible evidence to prove that the 1st Respondent is the head (Oba) of Erue family and that of the Respondents that there was abundant evidence before the lower court to support the finding, I therefore not only see the need give the pleadings of the parties as they relate to how one emerges as or becomes the head of Erue family in-depth or thorough consideration but also to determine whether or not the lower court properly evaluated the evidence adduced by the parties in coming to the conclusion that the 1st Respondent is the head or ‘Oba’ of Erue family at all times material to the instant suit.
Suffice, it to say that the parties as well as the lower court, saw the need for determination in the instant suit, of the question as to how the head of Erue family emerges, having regard to the issues for determination in the case as formulated by the parties respectively; and the first three of the nine issues the lower court formulated by itself; having expressed the view that the issues formulated by the parties, glossed over the controversies in the case. The first three issues in question, which are undoubtedly designed for the purposes of determining how one becomes a head of family in Uzere and whether the 1st Respondent is the head of Erue family can be found at page 191 of the record. They read thus: –
“(1) Who is the head of a family in Uzere?
(2) Shall the head or Oba be the eldest surviving male or the male so designated and accepted by the family members.
(3) Whether the 1st plaintiff – Ejighe Akpome was the head or Oba of Erue family in Uzere at all times material to this suit?
It would appear glaring from its judgment that the lower court resolved these three issues together. In this regard the lower court stated at pages 193 -194 of the record thus:-
“To precede the treatment of the above issues, be it noted that the plaintiffs and defendants are in agreement on these facts: –
(1) That the plaintiffs and defendants except the 3rd plaintiff are members of Erue family in Uzere, Isoko South Local Government Area of Delta State.
(2) That the land subject matter of this suit is located and lying at Owe road, Ukwuame (sic) bush, Uzere, Isoko South Local Government Area of Delta State.
(3) That the land in dispute measures 200ft x 300ft.
(4) That the land was originally owned by Erue family, Uheri quarters, Uzere, Isoko South Local Government Area of Delta State.
Testifying as 1PW the 1st plaintiff stated that he became the Oba or Head of Erue family, in Uzere because Diamond who was supposed to take the post declined because of his Christian beliefs. Umukoro Egedi the next in age also refused. Inweh Ogaga also declined. That it was as a result of the refusal of these persons and to protect the Evo of Erue family that he became the Oba or Head of the Erue family some 11 years ago as 22/4/08 when he testified. He admitted that he was already in the post of a Head or Oba though Eniwezi Ogbadobor was the eldest male having been so appointed by the family elders. These assertions of the 1PW were corroborated by the 2PW, 3PW and 4PW.
What can be distilled from the plaintiffs on this issue are as follows: –
(1) That the head or Oba of family in Uzere is the oldest male.
(2) That the head or Obaship of a family in Uzere can be delegated to a junior male member if the eldest male is a Christian.
How did the defendants react to the above evidence of the plaintiffs.
Testifying as DW2 – Akpalako said: –
“Oba is the male descendant who is alive and the eldest. Oba is the head of the family whether Christian or not. If the Oba is a Christian he can call in aid a person not a Christian to perform his duties. The Oba is in charge of the traditional activities of the family. The Oba serves the Evo of the family.”
The DW3 – Eyeduoma Felix had this to say:-
“In Uzere custom and tradition to the best of my knowledge the Oba is a male off-spring of an extended family paternally. An Oba may be a younger male child but paternally. The Oba is the head of the family but paternally.”
The last witness for the defendants said that if Oba is a Christian, he can delegate the juju functions to a pagan.
It is thus very clear that the plaintiffs (sic) evidence on who is the head or Oba of a family in the con of this suit is preferable to that of the defendants. The plaintiffs asserted that an Oba or head of family can be a younger person who is a male so delegated to so act by the elders of who are Christian (sic) who declined the positions. The defendants agreed with them and for me I have no choice. I therefore hold that on the evidence before me, the 1st plaintiff – Ejighe Akpome is the head or Oba of Erue family, Uheri quarters, Isoko South Local Government Area of Delta State at all times material to this suit.”
I have earlier stated to the effect that there is need to give the pleadings of the parties as they relate to how one emerges as the head of Erue family in-depth or thorough consideration and also to determine whether or not the lower court properly evaluated the evidence adduced by the parties in coming to the conclusion that the 1st Respondent is the head or ‘Oba’ of Erue family at all times material to the instant suit. This is in the light of the position of the law that an appellate court such as this Court, is eminently in a position to evaluate or re-evaluate the evidence adduced in a case for the purpose of determining the correctness of the finding of a lower court (which has the primary duty in that regard) once the exercise will not entail the demeanour or credibility of witnesses but simply involves the examination of oral and documentary evidence and making necessary deductions therefrom. See: TUKUR V. UBA (2013) 4 NWLR (Pt. 1343) 90 at 128 and 129; TERIBA V. ADEYEMO [2010] All FWLR (Pt. 533) 1868; and ANYANWU V. UZOUAKA (2009) 40 NSCQR 1 at 16; amongst many others.
It would appear glaring from the facts of the instant case as set up in the respective pleadings of the parties and as summarized hereinbefore, that the Respondents not only nominated the issue of the headship of Erue family by the 1st Respondent for resolution by the lower court but that parties are not ad idem on the headship of Erue family by the 1st Respondent. It is also glaring from the pleadings of the parties that just as the Respondents relied on the custom and tradition in Uzere for the purpose of establishing the fact that the 1st Respondent is the head of Erue family, the Appellants too relied on the custom and tradition applicable to headship of family in Uzere, in controverting the case of the Respondents that the 1st Respondent is the head of Erue family. From the pleadings of the parties it is therefore glaring that parties not being ad idem on the custom and tradition in Uzere applicable to the headship of family are a fortiori not ad idem on how the 1st Respondent came to be the head of the said family.
Now, what is the version of the custom and tradition in Uzere regarding the headship of family as pleaded by the Respondents?
The custom and tradition in Uzere regarding the headship of family as pleaded by the Respondents can be found in paragraph 28 of their Amended Statement of Claim which reads thus: –
“The 1st Plaintiff contends that according to Uzere tradition once a person is chosen by the family as ‘Oba’ otherwise known as the Custodian or bearer of the ‘Evuo’ of the family staff, whether it is a little boy of ten years, he is the head of that family and he presides over issues relating to the family’s interest, among the duties he performs includes performing “Iwe esemo” every month of May after his Royal Highness [HRH] has performed his own, serving the forefathers; summoning meetings for settlement between members of family e.g. settled Obakpaheno Owhala and Oshare Egbede; calls meetings for land sharing and ponds [“Igwiemu”] lake (sic) – [Gabriel E. Egbe being the P.R.O. for such meetings in the family acted as interpreter as well as witness in the agreements made]; Adi oya se oba [fish killed for the ‘Oba’ at Ekweni lake; every January, the ‘Oba’ appeases the forefathers invoking them through the ‘Evuo’ on behalf of the family members, home and abroad; and generally summoning meetings to resolve any issue of importance to the family.” (Underlining supplied by me).
Having expressly pleaded their version of the custom and tradition in Uzere in relation to the headship of family to be predicated on the holder of the office being chosen or preferred for the office of ‘Oba’ otherwise known as the custodian or bearer of the ‘Evuo’ of the family staff, the Respondents proceeded to narrate how Erue family came to have ‘Evuos’. They also narrated the events that led to the 1st Respondent being offered and subsequently being appointed as the ‘Oba’ of Erue family by the elders. The word “late” was written against the names of the elders who had since died and it was disclosed that Mr. Sunday Okegbe (i.e. 1st Appellant) played a role in the jubilation to mark the declaration of the 1st Respondent as the ‘Oba’ or head of Erue family. In their Reply to the 1st – 7th Defendants’ Joint Statement of Defence (and not Amended Statement of Defence) the Respondents, aside from averring to the effect that Ogbodabor Eniwezi had on 20/11/2005 admitted certain things before the Ovrawa committee, also stated that the said Eniwezi declined to be ‘Oba’ or head of family “nine years ago” on the ground that he is a Christian and that his faith was opposed to performing the customary rites required of the office, and that he gave his consent to the family to appoint someone else to the office. The Respondents further averred to the effect that Eniwezi who was yet to resettle in Uzere in order to perform the role of ‘Oba’ or family head at the time of the sale of the land in dispute should produce any other person apart from the 1st Respondent to whom he – Eniwezi delegated the performance of his functions. (Underlining by me).
The version of the custom and tradition in Uzere regarding the headship of family as pleaded by the Appellants in paragraph 35 of their pleading goes thus:-
“In Uzere custom and tradition, one becomes the head of family (a patriarch) if he is the eldest surviving male descendant of a family by virtue of his paternal right/link to the family. Also, one does not become a family head because he worships the ancestors of the family.”
Reacting specifically to paragraph 28 of the Respondents’ Amended Statement of Claim, the Appellants in paragraphs 41 and 42 of their pleading averred thus:-
“Paragraph 41
In answer to paragraph 28 of the amended statement of claim, in Uzere custom and tradition and also that of Erue family, the head of family is not chosen, but rather on the death of a family head, the headship devolves on the next eldest surviving male descendant whose right/link is paternal to the family.
Paragraph 42
In further answer to answer to paragraph 28 of the amended statement of claim, the Erue family does not have “Evuos” that the family worships. If at all “Evuos” exists, it is for the traditional worshippers of the family and the observance/worship of Evuo has no connection with the sale of family land. In Uzere custom and tradition, the man who worships “Evuo” is not necessarily the head of family.”
It is my considered view that implicit in the version of the custom and tradition in Uzere regarding headship of family as pleaded by the Respondents, is that all families in Uzere have “Evuos” and that a male member of the family that does not serve the Evuos or is not willing to serve the Evuos cannot ascend the position of ‘Oba’ and ipso facto head of family. Hence, a male member of family (notwithstanding the age) once he worships or serves the “Evuos” upon being chosen or preferred becomes the ‘Oba’ and head of family.
On the other hand, the version of the custom and tradition in Uzere regarding headship of family as pleaded by the Appellants is that headship of family devolves on the eldest male of the male line in a family and that where a family has an Evuo, the member of the family that worships it, is not necessarily the head of family (that is to say that the ‘Oba’ as described by the Respondents, is not necessarily the head of family in all cases). It is however the position of the Appellants that Erue family has no Evuos.
The question as to the custom and tradition in Uzere applicable to the headship of family it must be borne in mind must be resolved in the light of the facts as pleaded by the parties. This is against the position of the law regarding pleadings vis-a-vis evidence adduced at trial as hereinbefore stated, as well as the position of the law to the effect that customary law being a fact must be specifically pleaded and established by evidence before the court. See OLUBODUN V. LAWAL (2008) 35 NSCQLR 574 wherein Aderemi, JSC; dwelling on custom or customary law stated to the effect that it is a set of rules of conduct applying to persons and things in a particular locality. That it is of the characteristics of a custom or customary law that it must be in existence at the relevant time and must be recognised and adhered to by the inhabitants of the community to make it binding. That in relation to adjudication, custom is a question of fact which must be pleaded and proved by independent witness or witnesses. See: also OGOLO V. OGOLO (2003) 18 NWLR (Pt. 852) 494. I am aware of the position of the law that a custom that is of such notoriety and has been frequently followed by the courts can be noticed judicially. See: TORIOLA V. WILLIAMS NSCQR (1982) 890.Clearly all that this implies is that a party relying on a custom that has attained notoriety and having pleaded such custom, is relieved of adducing evidence to establish the same. However, it is not the position of the parties in the instant case that the custom and tradition relating to headship of family in Uzere has attained any notoriety that renders it to be judicially noticed.
In the evidence before the lower court the 1st Respondent testified concerning the custom and tradition in Uzere relating to headship of family and the fact of his headship of Erue family amongst others matters. The 1st Respondent testified as 1PW and the totality of his evidence spans pages 131 – 140 of the record. Relevant excerpts of the evidence of the 1st Respondent are hereby reproduced.
“I am the head and Oba of the Erue family. I brought this case to court in my capacity as the Oba of the family. As the Oba of the family I am in custody of the Evo of Erue. I am the priest of Evo. …….. I have one of the Evo here with me in court. …………..I am the Oba of the family. I became the Oba of the family. I was in my house when I was invited to become the Oba the rest people have died. I became the Oba because the man who was serving the Evos of the family died. One of our fathers named Diamond resident in Lagos who was to take over declined because of his Christian beliefs. The next person – Umokoro Egedi also refused. Inweh Ogaga also refused. It was then its (sic) issue of who becomes the Oba came to me. I refused but I was persuaded that I so refuse (sic) the Evos would get lost. I then accepted to be Oba. The Evos were brought to me. I accepted the Evos. The Evos stand for the protection of the family. Whenever the king is serving the Uzere’s Evo, we serve the Evo of the family (sic). The Evo is our god. I took over the Evo from Odiete. ……… Under Uzere custom, the Oba that serves the Evo is the head of the family.
Irogbo cross examined the 1PW and 1PW answers: –
I became the head of our family about 11 years ago. I said that I have been the head of Erue family for the past 11 years. I am not literate. All what I know is that I have been the head of Erue family for 11 years. It is not correct that Odiete Adhimo was the family head eleven years ago. Erue family instituted this suit. ………………….. As at the day exhibit A was entered into, I was not the oldest male in the family but it was Umokoro Egedi who delegated me and one other to do so. As at the day exhibit A was made Umukoro Egedi was in Uzere. Umukoro was a retired teacher. As at the time exhibit B was made I was not the eldest male but the elders appointed me to so act as the eldest. As at 2005 I was not the oldest but the elders appointed me. Egedi Umukoro was still alive. Eniwezi Ogbodabor was the eldest but at the time he returned to Uzere I was already acting as the eldest having been so appointed by the elders of the family. As at today Eniwezi is still oldest male child but that is not the issue in this court. …………………. The land was not sold solely by the female descendants. In 2003, Idio Uwala was in Benin. He was not in Uzere. That was when I was called upon to become the Oba, I refused because others were senior to me. The seniors refused because some said since others who are older refused. But on the third occasion when I was approached I agreed to be the Oba of the family. I am from Esievihor gate. In 2003 I was not the eldest. It was Umukoro Egedi but the elders made me the Oba. ……………. Thereafter the N34,000.00 was gradually spent to serve the Evos. We that serve the Evos spent the money. There is still balance out of the N34,000.00. The Evos is worshipped by traditional worshipper alone. There are also Christians in Erue family.
The 2nd Respondent testified as 2PW before the lower court. The totality of his evidence spans pages 140 – 143 of the record. During his examination-in-chief, the 2nd Respondent did not testify regarding the Respondents’ version of the custom and tradition in Uzere in respect of headship of family. He however testified on the matter under cross-examination as questions relating to the matter were put to him. Relevant excerpts of the evidence of the 2nd Respondent in this regard are hereunder reproduced.
“2PW further (sic) cross examined by Irogbo and he answers:-
I am about 47 years old. ……….. I know the custom of Uzere regarding headship of family. The head of family is usually the person that serves the Evos. I am a Christian. It is not in all cases the oldest surviving male becomes the head of family in Uzere. In some cases the oldest surviving male is too old to serve the Evos. The oldest surviving male is the oldest man. As a Christian I can never be head of family. We, the Christians are more than non-Christians. ……… The 1st plaintiff is the head of family because he serves the Evo upon his appointment by the family elders. His age is immaterial so long as the elders crowned him to serve the Evos. None of the Christian elders agreed to serve the Evos. …………. In 2003, the oldest man in the family refused to serve the Evos hence the 1PW was anointed by the family elders. I met the 3rd defendant tell (sic) the 1PW to cancel the sale. A fight almost ensued between me and the 3rd defendant. It was the Erue family members who appealed to the 3rd defendant who is the oldest surviving male in the Ebe lineage in Erue family. The 3rd defendant is a confusionist. He just came from Port Harcourt. It is not necessary that head of family in Uzere must reside within……..”
The 3rd Respondent as disclosed by the Respondents in their pleadings is not a member of Erue family. The 3rd Respondent testified as 3PW and her evidence runs from pages 144 – 147 of the record. The only part of her evidence that relates to the custom and tradition in Uzere concerning headship of family, is when the party cum witness stated at page 144 thus: “In Uzere the head of family is called Oba.”
The 4PW like the 3rd Respondent is not a member of Erue family. However, he is a member of the Oletu Ovrawa committee to which the Respondents pleaded that they submitted the matter concerning the land in dispute at a point in time. The evidence of the 4PW runs from pages 147 – 149 of the record. Excerpts of the evidence of the witness in relation to the custom and tradition in Uzere on headship of family read:-
“….. In Uzere, an Oba is usually a male descendant in a family. An Oba is expected to summon meeting when the family want to sell land. The Oba is the Chief Priest of the family and not the oldest male member. ……… I know the 1st plaintiff. The 1st plaintiff is the Oba of Erue family. He also signed document that he is the Oba of Erue family that sold the land.
Irogbo cross examined the 4PW and 4PW answers:-
I am 50 something years old. I am almost 60 years old. In Uzere, a Christian can delegate the Obaship to the next person in age to perform so long as the person is a male descendant………… Ejighe Akpome is not the eldest male in Erue family but the eldest male who is a Christian delegated the Obaship to the 1st plaintiff. ………… in spite of passing the Obaship to a junior the eldest male is still recognized. In Uzere, the oldest male in a family is not necessarily the Oba because in some families there are some people older than the Oba. Though the Oba is a junior person, the older members of the family become his advisers. Even if the oldest man is present, the Oba presides. In Uzere, there is a specific venue for meetings in some families. Small families do not have Obas.”
The Appellants equally adduced evidence in respect of the custom and tradition in Uzere regarding the headship of family as pleaded by them. The 1st Appellant testified as DW1 and his evidence runs from pages 150 – 153 of the record. Relevant excerpts of the evidence DW1 on the matter read thus: –
“……. A man becomes family head in Uzere so long as he is the oldest surviving male child. In 2003, the head of Erue family was Umukoro Egedi. Umukoro Egedi is dead and that was in 2003. Upon his death, Ogbodabor Eniwezei became the head of Erue family. The 1st plaintiff has never been the head of family. It is not yet his turn because there are several other male children senior to him. Those senior to him are: –
(1) Ogbodabor Eniwezei
(2) Akpalako Adiemo
(3) Inwe Ogaga
(4) Akukuwafe Ogode
(5) 1st plaintiff.
……….. As a member of Erue family, I am not aware that the 1st plaintiff was appointed the Oba of Erue family. The person who worships Evo in Uzere is a traditional worshipper. Worship of Evo does not make one a family head.
The witness was not cross-examined at all on the custom and tradition in Uzere in relation to headship of family as testified to by him.
The 3rd Appellant testified as DW2 before the lower court. His evidence spans pages 153 – 155 of the record. Relevant excerpts of the evidence of the party on the custom and tradition in Uzere in relation to family headship read:-
“As at 2003, the head of Erue family was Umukoro Egedi. Egedi Umukoro died in 2003. Upon his death the head of family became Ogbodabor Eniwezi. The head of (sic) Erue is the oldest surviving male descendant. I am not aware of any sale of land to the 3rd plaintiff by Erue family. I did not offer N8,000.00 to the 1st plaintiff to revert the sale of the land to the 3rd plaintiff (sic). I am senior to the 1st plaintiff.
Ikede cross examine (sic) the DW2 and DW2 answers: –
Oba is the male descendant who is alive and oldest. Oba is the head of the family whether Christian or not. If the Oba is a Christian he calls in aid, a person not a Christian to perform his duties. The Oba is in charge of the traditional activities of the family. The Oba serves the Evo of the family. The Erue family have (sic) no Evo. I am a retiree of Customs and excise for 24 years. I was in the East of Nigeria in my service years in the Customs. I retired in 1996. I came home to Uzere in 2000. In 2000 the Oba of Erue family was Diamond Ogode who was succeeded by Umukoro Egedi.”
DW3 is not a party in the instant case. The evidence of the witness spans pages 154 – 155 of the record. Relevant excerpts of the evidence of the witness on the custom and tradition in Uzere concerning family headship read: –
“I am a native of Uzere. I am 63 years old. In Uzere custom and tradition, to the best of my knowledge, Oba is a male offspring of an extended family paternally. An Oba may be a younger male child but paternally. The Oba is the head of family but paternally. It was an error committed by me. An oba is the eldest male surviving child in the father’s family.
Ikede cross examine (sic) the DW3 and DW3 answers: –
Oba and head of family are the same thing. Oba is head of family. I know Erue family in Uzere. My mother is from Erue. In Uzere, most of the families have Evo. Evo are pagan things. Evo are used to pour libation. I do not know what Evo stands for. Evo are kept by the Oba if he is a pagan. If not a pagan, the Evo are written off. Evo can be manufactured by man. The man cut (sic) any stick that pleases him to make the Evo. The Evo symbolises unity in the family. Evo stands as the symbol of authority of an Oba if he is a pagan. There may be some ancestral shrines in Erue family.”
DW4 is also not a party in the instant case. However, he is a member of Erue family. The evidence of the witness spans pages 155 – 156 of the record. Relevant excerpts of the evidence of the witness regarding the custom and tradition in Uzere on headship of family are as follow: –
“I know the Erue family. I am from Erue family paternally……………….. In the year, 2003, the head of Erue family was Umukoro Egedi. Umukoro Egedi is late. Upon his death, he was succeeded by Ogbodabor Eniwezi. As at today, the head of Erue family is Ogbodabor Eniwezi. Ogbodabor Eniwezi is very old. He cannot walk by reason of age. I know the land in dispute. The land in dispute is owned by Ogbodabor Eniwezi being the head of family. The Oba is the oldest person in Erue family. ………………….
Ikede cross examine (sic) the DW4 and DW4 answers: –
“In 2003, Umukoro Egedi was the Oba of Erue family in Uzere. Umukoro Egedi was a Christian while alive. Ogbodabor Eniwezi succeeded Umukoro Egedi. Eniwezi is a Christian. The family head if a Christian has nothing to do with the Evos. If a Christian the Oba has nothing to do with paganism. Erue family consists of Christians and pagans. In any fetish or paganistic rites, the Christian Obas would not take part. Ogbodabor Eniwezi and Umukoro Egedi had no business with juju practices. An Oba who is a Christian in Erue can delegate the juju function to a pagan in the family to discharge. An Oba who is a Christian can also delegate the custody of the Evos to the pagan. …………”
It is clear from the portion of the judgment of the lower court at pages 193 – 194 as reproduced hereinbefore, that it is on the evidence adduced by the Respondents (excerpts of which have hereinbefore been reproduced) that the lower court not only stated at page 193 thus: –
“Testifying as 1PW the 1st plaintiff stated that he became the Oba or Head of Erue family, in Uzere because Diamond who was supposed to take the post declined because of his Christian beliefs. Umukoro Egedi the next in age also refused. Inweh Ogaga also declined. That it was as a result of the refusal of these persons and to protect the Evo of Erue family that he became the Oba or Head of the Erue family some 11 years ago as 22/4/08 when he testified. He admitted that he was already in the post of a Head or Oba though Eniwezi Ogbadobor was the eldest male having been so appointed by the family elders. These assertions of the 1PW were corroborated by the 2PW, 3PW and 4PW.
What can be distilled from the plaintiffs on this issue are as follows: –
(1) That the head or Oba of family in Uzere is the oldest male.
(2) That the head or Obaship of a family in Uzere can be delegated to a junior male member if the eldest male is a Christian.
but predicated its finding regarding the headship of Erue family by the 1st Respondent on.
I have before now stated that implicit in the version of the custom and tradition in Uzere regarding headship of family as pleaded by the Respondents, is that all families in Uzere have “Evuo” and that any male member of the family that does not serve the Evuo or is not willing to serve the Evuo(s) cannot ascend the position of head of family. Hence, a male member of family (notwithstanding the age) once he worships or serves the “Evuos” upon being chosen or preferred can become the ‘Oba’ and head of family. This being the position of the Respondents on the custom and tradition in Uzere regarding headship of family, it behooved the Respondents to have led or adduced evidence showing that Erue family has Evuos as pleaded in paragraph 28 of the Amended Statement of Claim and to have also adduced evidence through the person or persons who the Respondents claimed appointed the 1st Respondent as the ‘Oba’ of Erue family in accordance with the custom and tradition they pleaded.
The Appellants made the point in this regard in their submissions on the issue when they said that it was curious that no family member was called to give evidence that the 1st Respondent was appointed as family head and had been acting in that capacity, and that the headship of Erue family by the 1st Respondent is known to him and the 2nd Respondent only. The reaction of the Respondents to the submissions of the Appellants alluded to, is that it was never suggested to the 1st Respondent under cross-examination that he was not the ‘Oba’ of Erue family; nor was it suggested to him that Erue family has no Evuos. That the failure of the Appellants to cross-examine the 1st Respondent on these material facts, amounts to an admission and that the subsequent evidence of DW2, that Erue family has no Evuos is an afterthought. They relied on OFFORLETTE’S case (supra) in aid of their submission.
It is my considered view that the Respondents given their submissions stated above, appreciate the fact that the existence of the “Evuo” in the Erue family being what an ‘Oba’ worships, is at least a material fact that needed to be proved in order to establish the proper emergence of the 1st Respondent as the head of Erue family in the light of the custom and tradition they pleaded.
In the case of OFFORLETTE V. STATE (relied upon by the Respondents), Achike, JSC; indeed stated to the effect that where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. His lordship further disclosed the usefulness of cross-examination when he stated thus: –
“After all, the noble art of cross-examination constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradict him or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent the unchallenged evidence.
On his own part Ayoola, JSC; in the same case after stating the effect of failure to cross-examine stated thus:-
“In a strict sense “unchallenged” and “uncontroverted” evidence may not mean the same thing. To challenge is to object or except to something or to put it dispute or render doubtful. To controvert is to dispute or deny, oppose or contest. (For both definitions see Black’s Law Dictionary 6th Edition). Challenging the witness is more appropriate in cross-examination while leading contrary evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction, in most cases the consequences would be the same whether evidence is unchallenged or whether it is uncontroverted. Where evidence is challenged and rendered doubtful or without weight by cross-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that the evidence is not true.”
Against the backdrop of the pronouncements of their lordships, Justices of the Supreme Court reproduced above, I am of the considered view that the Appellants are in total misapprehension of the purpose of cross-examination and the uses to which it can be put as it clear from the answers elicited during the cross-examination of the 1st Respondent as hereinbefore re-produced, that the Appellants not only embarked on rendering doubtful the evidence of the 1st Respondent regarding his headship of Erue family as claimed by the Respondents, but were also using the lethal weapon of cross-examination to establish the aspect of their case on their pleading regarding the custom and tradition in Uzere on headship of family. It is clearly a serious misconception of law for the Respondents to think that unless the 1st Respondent is pointedly asked whether or not he is the ‘Oba’ of Erue family that the evidence of the 1st Respondent in that regard stands challenged.
It would also appear that it is in the serious misapprehension of the uses to which cross-examination can be put, that the Appellants submitted that the evidence of DW2 that Erue family has no Evuos, was said to be an afterthought. It has not been suggested by the Respondents anywhere in their Brief of Argument that whether or not Erue family has Evuos is, or was not an issue in the instant case. In any event, it is glaringly a matter on which parties joined issue as the Appellants unequivocally averred in paragraph 42 of their pleading that Erue family has no Evuos. The averment in paragraph 42 of the Appellants’ pleading was in further answer to paragraph 28 of the Amended Statement of Claim which is to the effect that Erue family has Evuos. It was under cross-examination of DW2 that the Respondents elicited the answer that Erue family has no Evuos and in my considered view thereby helped the Appellants in establishing the aspect of their case that Erue family has no Evuos. This is because the evidence of DW2, under cross-examination that Erue family has no Evuos went in aid of the Appellants’ pleading on that fact.
The Respondents were the one who relied on the custom and tradition that revolved around Evuos and existence of Evuos in Erue family upon which the appointment of the 1st Respondent as ‘Oba’ and a fortiori his (1st Respondent) headship of the family was predicated. I cannot but say that in the light of the evidence adduced by the Respondents they failed most woefully to prove the custom and tradition as per their pleadings and particularly that Erue family has Evuos as per the custom and tradition they pleaded. Evuo(s), having regard to the relevant averments in the pleadings of the Respondents is not immovable. It is something capable of being moved from Uruse to Uheri quarters and which as per the Respondents’ case on the pleading was eventually delivered or handed over to the 1st Respondent. I am aware that the Respondents stated in their Brief of Argument that the 1st Respondents came to court with the Evuos. True it is that the 1st Respondent testified that “I have one of the Evo here with me in court”. What beats me hand down however, is why the Evuo that was said to be in court with the 1st Respondent was not tendered in evidence. It would appear that the Respondents failed to appreciate the fact that the tendering of the Evuos or Evuo was the best proof of the fact that there was anything like that. The Respondents had the opportunity of establishing the existence of the Evuos through cross-examination of the Appellants and their witnesses. And as if to worsen the position of the Respondents, 4PW under cross-examination made it clear in his evidence that not all families in Uzere have Oba. The witness stated to the effect that small families don’t have ‘Obas’. Yet to be an Oba as per the custom and tradition in Uzere pleaded by the Respondents, one must be a worshipper of Evuo or Evuos. 1st Appellant was not cross-examined at all on the matter of Evuos. DW3 gave an ambivalent answer regarding the matter of Evuos. DW4 was also not cornered into admitting whether or not Erue family has Evuos. Again, it is indeed curious as submitted by the Appellants that the Respondents called none of the elders who appointed the 1st Respondent to the office/post of ‘Oba’ to testify to the fact of such appointment. Evidence concerning the appointment definitely cannot come from anybody else other than the persons or one of the persons who did the act. It was therefore of no moment for the 1st Respondent to have testified that he was appointed ‘Oba’. He did not appoint himself. So whether or not the 1st Respondent was pointedly asked if he was the ‘Oba’ of Erue family, is of no moment as it is not the case of the Respondents that all the persons who did the appointment of the 1st Respondent were/are dead.
Given all that has been stated, it is in my considered view undisputable that the Respondents who pleaded a custom and tradition predicated on the possession by their family of Evuos and which is what resulted in the appointment of the 1st Respondent as ‘Oba’, by failing to prove the fact that Erue family has Evuos cannot be heard to say that the evidence before the lower court sufficiently proved the headship of Erue family by the 1st Respondent. Indeed, it is clear from what the lower court stated at page 193 of the record to wit:
“Testifying as 1PW the 1st plaintiff stated that he became the Oba or Head of Erue family, in Uzere because Diamond who was supposed to take the post declined because of his Christian beliefs. Umukoro Egedi the next in age also refused. Inweh Ogaga also declined. That it was as a result of the refusal of these persons and to protect the Evo of Erue family that he became the Oba or Head of the Erue family some 11 years ago as 22/4/08 when he testified. He admitted that he was already in the post of a Head or Oba though Eniwezi Ogbadobor was the eldest male having been so appointed by the family elders. These assertions of the 1PW were corroborated by the 2PW, 3PW and 4PW.
What can be distilled from the plaintiffs on this issue are as follows:-
(1) That the head or Oba of family in Uzere is the oldest male.
(2) That the head or Obaship of a family in Uzere can be delegated to a junior male member if the eldest male is a Christian.
that the said court was very wrong and totally jettisoned the case of the Respondents on their pleadings. This is so as it is not the case of the Respondents on their pleadings that becoming an Oba as per the custom and tradition in Uzere which they pleaded was predicated on seniority by age. Also it is not the case of the Respondents on their pleadings that it was the Obaship of an eldest male Christian that was delegated to him. I have earlier stated that parties must know their respective cases properly, and that the same is applicable by the court. I am of the considered view that if the lower court had properly appreciated the facts of the Respondents’ case as disclosed in their pleadings, it would have seen that the two points it distilled from the evidence of the Respondents relating to the custom and tradition in Uzere on headship of family (which have been reproduced hereinbefore) were totally at variance with the custom and tradition the Respondents pleaded and therefore that the evidence from which the two points were distilled went to no-issue. On the contrary, if the lower court had properly appreciated the case of the Appellants on their pleading, it would have seen that the first of the two points it distilled was more in line with the custom and tradition in Uzere as pleaded by the Appellants, while the second point equally went to no-issue having regard to the case of the Appellants’ on the pleadings.
The law remains settled till date that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove. See: Section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD [2013] 1 NWLR (Pt. 1336) 618. It is my considered view that it has been sufficiently demonstrated that the Respondents failed woefully to prove the custom and tradition regarding family headship in Uzere which they predicated the Obaship and headship of Erue family by the 1st Respondent upon. This being the situation there was no evidence talk less of credible evidence in justification of the finding of the lower court to the effect that the 1st Respondent is the head of Erue family at all time material to the instant suit. Indeed the said finding of the lower court having been shown as not being based on a proper evaluation of the evidence on record is perverse and cannot be allowed to stand. See: EJIEMELE V. OPARA (2003) 14 NSCQLR 319.
Flowing from all that has been said above is that Appellants’ Issue 2 is resolved in their favour.
APPELLANTS’ ISSUE 1:
The Appellants submitted to the effect that the lower court was wrong in holding that the sale of the land in dispute to the 3rd Respondent cannot be vitiated on the basis of the evidence before it. This is because a holistic consideration of the evidence revealed that the sale of the land was not proper in law. The Appellants stated that the Respondents’ case is that the land in dispute was sold to the 2nd Respondent by Erue family vide Exhibit ‘A’ and later sold to the 3rd Respondent by the 2nd Respondent vide Exhibit ‘B’. It is the stance of the Appellants that the oral evidence adduced by the Respondents through the 1st Respondent who claimed to be the head of family revealed that the family did not sell the land to the 2nd Respondent. In this regard, the Appellants submitted to the effect that as the evidence of the 1st Respondent before the court showed that the entire Erue family said they were no longer selling the land in dispute when the 1st Respondent convened the entire family and presented the money paid by the 2nd Respondent, this meant that the land in dispute was never sold. That it was obvious that there was no delivery of the land to the 2nd Respondent, and therefore the 2nd Respondent cannot pass title over what he does not have to the 3rd Respondent. In the circumstances, the Appellants submitted that the lower court ought not to have held that the sale of the land in dispute to the 3rd Respondent cannot be vitiated. That the lower court ought to have vitiated the sale of the land in dispute on the basis of the opposition timeously made by the Appellants that there was no sale of the land to the 2nd and 3rd Respondents which accords with the evidence of the 1st Respondent and the case of Animashaun v. Onyekwulueje (2006) All FWLR (Pt. 340) 1150 at 1161 was cited in aid.
Also stating that even if the 1st Respondent was head of Erue family (but which was not conceded) the Appellants submitted that he could not have passed a valid title to the 2nd Respondent when the entire family he convened said they were no longer selling the land. The Appellants referred to the averments in paragraphs of 22 and 23 of the Respondents’ pleading as disclosing some named persons to have been present when the land was sold to the 2nd Respondent and how the approval of the family was sought and obtained. The Appellants said that the 1st Respondent in his evidence named some Erue family members other than the Appellants who were present when Erue family sold the land but that surprisingly, the Respondents did not call any of the persons whose names were pleaded to testify to witnessing the sale of the land to the 2nd Respondent. The Appellants submitted that a valid sale of land under customary law is said to be created upon the payment of the agreed price for the land and delivery of possession of the land in the presence of witnesses and the cases of Onafewokan (sic) v. Shopitan (2009) All FWLR (Pt. 450) 685 at 704; and Onanubi v. Ogunfolu (2009) All FWLR (Pt.496) 1926 at 1949, were cited in aid. Again, the Appellants submitted that though the 1st Respondent named one Oba Aratu as one of the signatories to Exhibit ‘A’ (the document that evidenced the sale of the land to the 2nd Respondent) the said Oba Aratu, or any other person that signed Exhibit ‘A’ was not called to testify and no reason was given for this.
Stating that the position of the law is that the burden of proof is on the party who alleges the affirmative, the Appellants submitted that the Respondents did not discharge the burden of proof of a valid sale under customary law given their failure to call those that witnessed the delivery of the land to the 2nd Respondent and/or any of the persons that executed Exhibit ‘A’ alongside the 1st Respondent. Reference was made to Sections 135 – 137 of the Evidence Act, Cap 112 LFN 1990 as well as the case Calabar Central Cooperative Thrift and Credit Society Ltd v. Ekpo (2008) All FWLR (Pt. 418) 224 in this regard. It is the stance of the Appellants that in the light of all that had been said, the lower court was wrong to have found that the sale of the land to the 3rd Respondent cannot be vitiated. That the lower court ought to have held that the title the 2nd Respondent passed to the 3rd Respondent was defective.
Dwelling on Issue 1, the Respondents submitted to the effect that the lower court rightly held that the sale of the land in dispute to the 3rd Respondent cannot be vitiated on the basis of the evidence before it as this was a finding of fact made upon a proper evaluation of evidence before the said court. The position of law the Respondents stated, is that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and duly assessed the witnesses. That where a trial court has satisfactorily carried out its primary functions, an appellate court has no business to substitute its own views for those of the trial court. That what is required of the appellate court is to ascertain whether or not there is evidence upon which the trial court acted and once there is such evidence, the appellate court must not intervene. The case Usung v. Nyong (2010) All FWLR (Pt. 523) 1966 at 1990 was cited in aid. It is the stance of the Respondents that there is/was abundant evidence upon which the lower court acted and this Court was urged not to interfere with the findings of the lower court.
Having made copious references to the evidence adduced by them (Respondents) on record, it is the stance of the Respondents that the graphic account of the entire sale transaction was not challenged under cross-examination by the Appellants. The case of Broadline Enterprises Ltd v. Monterey Maritime Corporation (1995) 9 NWLR (Pt. 417) 1 at 27 was cited as to the consequence of this. Again, narrating the evidence on record, it is the stance of the Respondents that the Appellants never denied the existence of the signatories to Exhibit ‘A’ and that none of the persons named therein was called by the Appellants to deny signing the exhibit. That it was proper in the circumstances for the lower court to have had no difficulty in finding thus:-
“Testifying as 1PW, the 1st plaintiff in line with paragraph 22 of the amended statement of claim said that Umukoro Egedi, Ekokofe Esharize, Ogbogho, Joel Obaro, Sunday Okegbe, Mock Odigada, Oba Arato, Emonena Egbe, Ookpaino Owala supported the sale of the land to the 2nd plaintiff. The defendants did not deny the existence of these persons in paragraph 24 of their amended statement of defence. They did not call those persons to deny the allegation either. In court, none of the witnesses denied the consent of the persons so named in the pleadings and evidence of the plaintiff. The averment in paragraph 24 of the amended statement of defence was not sufficiently pointed to the allegation made by the plaintiffs. In my view, it is not difficult to hold and believe the 1PW, 2PW that 1PW in his status as Oba or head of Erue family in concert with those named in paragraph 22 of the statement of claim and energized in his oral evidence passed the title over the disputed land to the 2nd plaintiff as documented in Exhibit A”.
The Respondents stressed to the effect that it was after the sale of the land in dispute to the 2nd Respondent by Erue family, that the 2nd Respondent eventually sold the land the land to the 3rd Respondent and that it was out of the abundance of caution that the 3rd Respondent insisted that the 2nd Respondent take her to Erue family which he eventually did as evidenced by Exhibit ‘B’ and that none of the persons named therein as principal members was called by the Appellants to deny their existence or signing of Exhibit B. The Respondents also submitted what the evidence of the 1st Respondent actually established is that the sale of the land in dispute to the 2nd Respondent by Erue family was complete as soon as the dimension sold (which is 200 feet by 300feet) was agreed upon; the amount of N34,000.00 was agreed upon and paid to the family through the head of the family; and the 2nd Respondent re-demarcated the land after giving money to the three most elderly members of the family for drinks, thereby taking possession. That the fact that some members of the family (excluding the family head, or oba, i.e. the 1st Respondent) in a subsequent meeting refused to accept the money paid for the land from the family head and which money is still with the family head who received same on behalf of the family, is of no moment. The case of Mini Lodge Ltd v. Ngei (2010) Vol. 182 LRCN 172 at 203 was cited in aid. It is the stance of the Respondents that in any event the Appellants did not plead the fact that the family initially agreed to sell the land to the 2nd Respondent but that they later reneged and the family head asked to refund the money already paid by the 2nd Respondent to him. That evidence elicited under cross-examination in this regard and which is not on facts pleaded by the Appellants therefore goes to no issue and the case of Akomolafe v. Guardian Press Ltd (2010) Vol. 182 LRCN 63 at 76 was cited in aid. It is also the stance of the Respondents that requirements of the conditions for a valid sale of land under customary law was satisfied as they (Respondents) proved the payment of the purchase price which is N34,000.00, signing of Exhibit ‘A’ by the head of the family and the re-demarcation of the land on the orders of family after the payment. Based on all they stated, the Respondents urged this Court to resolve Issue 1 in their favour.
What Appellants’ Issue 1 questions in my considered view is whether the Respondents who claimed to have sold the land in dispute to the 3rd Respondent proved the fact of a valid sale under customary to the said 3rd Respondent.
It is not in doubt in the light of the pleadings of the parties that the radical title to the land in dispute being part of a larger parcel of land owned by Erue family resided in the said Erue family. It is however the case of the Respondents that Erue family sold the land in dispute to the 2nd Respondent and that it was the 2nd Respondent that resold as it were, the land in dispute to the 3rd Respondent. These being the facts of the case as known to the Respondents prior to the institution of the instant case, it is in my considered view a serious misapprehension of the law for the Respondents to have initiated the instant action as the vendors to the 3rd Respondent. The position of the law is that one cannot sell what is not his. It would appear that the lower court appreciated this much to be the position of the law when it said at page 196 of the record thus:-
“……. In the eyes of the law, by exhibit A, the Erue family had no interest on the land. In fact it was only the 2nd plaintiff that ought to have transacted the business of the passage of title to the 3rd plaintiff. However, out of abundance of caution, the 3rd plaintiff and the Erue family entered into Exhibit B a receipt of purchase of the land from the Erue family to herself. I find it very easy to reach the conclusion that the sale of the land cannot be vitiated on the basis of the evidence before me.”
I cannot but state that I have thoroughly perused the pleadings of the Respondents, who claimed that the 1st Respondent sold the land in dispute to the 3rd Respondent for and on behalf of Erue family, and that it is not pleaded therein that the 3rd Respondent caused Erue family to re-sell the said land to her out of caution. It is my considered view that the lower court must have made the inference that the 3rd Respondent entered into the land transaction with Erue family out of caution from the evidence adduced by the Respondents through the 3PW (i.e. 3rd Respondent) which spans pages 144 – 147 of the record. The relevant excerpts of the evidence of the party cum witness are reproduced hereunder.
“…… The 2nd plaintiff is known to me. He is a member of Erue family. The 2nd plaintiff bought a land from Erue family and later with the consent of the family sold same to me……. 1st and 2nd plaintiffs together with their family sold the land to me. …….. the 2nd plaintiff came to me with a handwritten agreement given to him by the Erue family. To be double sure I went to the Erue family head – 1st plaintiff to confirm the interest of the 2nd plaintiff. Later the plaintiffs signed a conveyance over the land in my favour.
3PW reminded of her previous oath and states further under cross-examination by Irogbo to wit:-
The 2nd plaintiff together with Erue family are my vendors of the land in dispute in this suit. I was aware that the Erue family had sold the land to the 2nd plaintiff. When the 2nd plaintiff showed me the agreement I had to go to the Erue family to confirm same and get their consent. Before I paid to the 2nd plaintiff he sought the consent of the Erue family. I went personally to see the Head of Erue family and those who signed the agreement to confirm the assertion of the 2nd plaintiff. To the best of my knowledge the 2nd plaintiff paid to the Erue family before I paid to the Erue family. The signatories to the handwritten agreement were confirmed by me. The 1st plaintiff me that those who were supposed to know knew before the 2nd plaintiff sold the land to me with the consent of the Erue family. …………” Despite the fact that the lower court chose to introduce into the case the fact of the 3rd Respondent having re-purchased as it were, the land in dispute from Erue family, I am however of the considered view that what actually calls for determination in the main, under this Issue is whether the Respondents established the aspect of their case that Erue family validly transferred the land in dispute to the pleaded root of title of the 3rd Respondent in the eyes of the law (i.e. the 2nd Respondent). See: OJOH V. KAMALA (2005) 24 NSCQLR 256. Or to put it in another way – whether the evidence before the lower court established that the 2nd Respondent properly acquired the land in dispute from Erue family? This is against the position of the law to the effect that it is settled that a plaintiff when claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case. See: OLOHUNDE V. ADEYOJU (2000) 24 NSCQLR 1472. Hence the requirement of the law, that in order for a plaintiff to succeed in a claim for declaration of title to land, the court must be satisfied as to: –
“The precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise and; evidence establishing title of the nature claimed.
See ADESANYA V. ADERONMU [2000] 6 SCNJ 242; and OKELOLA V. ADELEKE [2004] All FWLR (Pt.224) 1980.
It is not in dispute that the land in dispute is family land and that the Respondents claimed to have sold it to the 2nd Respondent under customary law. I cannot but say that the position of the law regarding sale of land under customary law is not abstruse, recondite or shredded in mystery. There are cases galore, decided by the appellate courts of this country over the years enunciating the principles governing transactions involving land subject to customary law such as family land is. The position of the law is that a valid alienation of family land requires the grant or transfer to be made by the head of family with the principal members concurring. Where the transfer is made by the head of family alone acting for an on behalf of the family, such a transfer is prima facie voidable and the family may set aside such disposition of their land if the non-consenting members act timeously. However a transfer of family land other than by the head of family or the head and principal members of the family is absolutely void ab initio. So too, as the head of family cannot transfer family land as his own exclusive personal property as such a transfer is void ab initio. Furthermore, it is settled law that in order to prove a valid title by purchase under customary law, it is not only necessary for the purchaser to prove the payment of the purchase price, but also the actual handing over of possession in the presence of witnesses who should testify to that fact. See: EJILEMELE V. OPARA (supra); ETAJATA V. OLOGBO (2007) 30 NSCQLR 966; and FOLARIN V. DUROJAIYE (1988) NSCQR 581.
It is therefore clear from decided cases what the Respondents who by themselves nominated the fact of the sale of the land in dispute owned by Erue family to the 2nd Respondent (albeit a member of the family) must plead and establish by evidence before it can be said that the said 2nd Respondent acquired a valid title to the land in dispute under customary law. It is by establishing the valid transfer of Erue family land in dispute to the 2nd Respondent; that the said 2nd Respondent will have a valid title to pass to the 3rd Respondent. Otherwise title to the land in dispute acquired by the 3rd Respondent by whatever method or means would be defective.
The position of the law regarding a party seeking for a declaration of title to land has been stated hereinbefore. The burden is on the party seeking for the relief to succeed on the strength of his own case. Where the party fails to show a prima facie case in respect of his entitlement to the relief, there is even no need for the court to consider the case of the defence. See OLOHUNDE V. ADEYOJU (supra).
From all that has been said regarding to land under customary law, it would therefore appear clear that it was for the Respondents to have called witnesses to prove amongst others, the principal members of Erue family that concurred to the sale of the land to the 2nd Respondent and the witnesses before whom the land in dispute was handed over to the said 2nd Respondent.
It is alarming that the lower court despite having decided cases to guide it, either deliberately decided to ignore the cases in that regard, or for reasons best known to it, decided to shift the burden of proof concerning the valid sale of the land in dispute on the Appellants and expressed the view that it was for them to have called those whom the Respondents claimed to have transacted the land matter with the 1st Respondent and the 2nd Respondent. Even without the benefit of the positions of the law as stated above, the position of the lower court can hardly be said to be reasonable at all.
Suffice it to say that I have read the record over and over in order to see whether there is anything in it that made the lower court to accidently derail as it were, on the evaluation of the evidence before it in the light of the pleadings of the parties and in particular the pleadings of Respondents, who had the burden of establishing the fact that land in dispute which admittedly is family land, had been validly sold to the 2nd Respondent but I could see nothing in that regard. The lower court in my considered view not only deliberately misapprehended the case of the Respondents but also misplaced the burden of proof on the Appellants and evaluated the evidence before it to support the Respondents’ case as misapprehended by it. The Respondents never established the fact of a valid sale of Erue family land to the 2nd Respondent under customary law having regard to the evidence on record. This is so even if the Respondents had established the fact that the 1st Respondent was the head of Erue family at all times material to the suit as held by the lower court but which finding I had earlier in this judgment held to be wrong and indeed perverse, in the consideration of Issue 2.
Against the backdrop of all that has been said before now and particularly in the light of the earlier resolution of Appellants’ Issue 2 in their favour, the lower court was very wrong in holding that there was no ground to invalidate and/or vitiate the sale of the disputed land to the 3rd Respondent. The Respondents having failed to establish a valid transfer of the land in dispute to the 2nd Respondent (i.e. the 3rd Respondent’s pleaded root of title in the eyes of the law) under customary law, it follows that they could not cure the defective title of the 2nd Respondent by consenting to the sale of the land to the 3rd Respondent. Furthermore, as it is the case of the Respondents that Erue family had earlier sold the land in dispute to the 2nd Respondent, the 1st Respondent acting for Erue family could not have re-sold the said land without Erue family first re-acquiring the land in dispute from the 2nd Respondent or without establishing that the 2nd Respondent renounced or repudiated and duly surrendered the land back to Erue family before the sale to the 3rd Respondent. Alas, this is not the position of the Respondents on their pleadings. They engaged in double talk as it were and forgot that while many people (such as members of a family) can collectively be the root of title in relation to a piece or parcel of land as a family, two separate and distinct entities cannot be a root of title in respect of a piece or parcel of land, without their becoming joint owners at a point in time.
The lower court not only found the Appellants liable to the 3rd Respondent in trespass but granted an order of perpetual injunction against them. Given my finding as hereinbefore stated that the 2nd Respondent had no valid title to pass to the 3rd Respondent, it also follows that the land in dispute remained Erue family land, and this being so, the Appellants who are acknowledged members of Erue family cannot be liable to the 3rd Respondent in trespass and/or prevented from entering their family land by way of the perpetual injunction granted by the lower court against them. The Appellants clearly have superior title to the land in dispute while the 3rd Respondent became the trespasser thereon.
Flowing from all that has been said is that Appellants Issue1 is resolved in their favour.
In the final analysis, the appeal is meritorious, the two Issues formulated for its determination having been resolved in favour of the Appellants and against the Respondents. The appeal is allowed and the judgment of the lower court delivered on 19/5/2010, is hereby set aside in its entirety. Judgment is hereby entered dismissing the case of the Respondents (i.e. Plaintiffs before the lower court) in its entirety.
Costs of N50,000.00 is awarded the Appellants jointly and against the Respondents jointly and severally.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA. I agree with his thorough reasoning and clear considerations of the issues in controversy and the conclusion that the appeal has merit and should be allowed. I have nothing useful to add. I abide by the order as to costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment in-draft prepared and just delivered by my learned brother, the Hon. Justice A.O. Lokulo-Sodipe, JCA, I have no hesitation in concurring with the reasoning and conclusion reached there in, to the effect that the instant appeal is meritorious. Hence, it’s my privilege to adopt the said reasoning and conclusion as mine since and accordingly allow the appeal. Consequently, the judgment of the Delta State High Court, Oleh Judicial Division, delivered on 19/5/2010, is hereby set aside. The case of the Respondents (Plaintiffs) is dismissed.
I abide by the consequential Order awarding costs of N50,000.00 in favour of the appellants, against the Respondents.
Appearances
A. IrogboFor Appellant
AND
A.E. Icheghe with U.V. Awhefeada (Mrs.)For Respondent
