OKOLIE & ORS v. ONYEBUCHI & ORS (2021)

OKOLIE & ORS v. ONYEBUCHI & ORS

(2021)LCN/15517(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/E/134/2012

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

1. NICHOLAS OKOLIE 2. EZECHI CHIWETOKE 3. CHIBUOKE NWONUKU 4. OBUEMEZIE IBEKWE 5. RAPHAEL OZOEMIEKE 6. CHIEF OSSY NNAKWE APPELANT(S)

And

1. NZEADACHIE ONYEBUCHI 2. OBIEKEH NNAEKWE 3. ANIEZE OKPOKO 4. NWANNEBUIKE CHIAHA RESPONDENT(S)

 

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal, as per the Amended Notice and Grounds of Appeal filed on 19/1/2018, pursuant to the Order of this Court, obtained on 15/1/2018. The Appeal is against the judgment of the Customary Court of Appeal, Enugu State, in Appeal No. CCAE/E/16/2010, delivered on 2nd day of July, 2011, whereof the Lower Court, allowed the Appeal by Appellants (Respondents herein) and set aside the decision of the trial Customary Court in Suit No. CC/11/6/2006, delivered on 2/7/2007, against the Plaintiff.

At the said Customary Court, the plaintiffs (now Respondents) had sought the following reliefs:
(a) Order of the Court granting customary right of occupancy over the said piece/parcel of land called Ani Isinkpume.
(b) Order (sic) the defendants, their agents or privies/servants from further entering the disputed piece/parcel of land, pending the determination of the case.
(c) And any other Order(s) this honourable Court may deem fit to make in this regard.

After hearing the case and considering the evidence and addresses of Counsel, the trial Customary Court had held against the plaintiffs, dismissing the claim. On appeal to the Customary Court of Appeal, the decision of the trial Customary Court was reversed, as the lower Court (Customary Court of Appeal), per Hon. Justice C.D. Onyia who read the lead judgment of the Court, and endorsed by Hon. Justice V.N. Nebo (President) and Hon. Justice .N.N. Nnamani, held:
“The claim by DW1 that they worship the Okube shrine at the stream on the disputed land was not established with any measure of certainty. Under cross examination by the Plaintiffs star witness, he acknowledged that the Appellants, Umuezeaneke were the most senior of Obunagu Iwollo stock. It is therefore, debatable whether a junior could be worshipping a shrine when the senior is there. In fairness to DW1, he stated that Appellants did not own the land with them. But how come the Appellants have been in possession to the exclusion of the Respondents, since the Respondents (sic) failed to establish with certainty that the Appellants who are their brothers were their customary tenants. For the singular reason that the plaintiff/ Appellants case at the lower Court was in totality, unassailable and that the Defendant/Respondent’s case was incurably defective as hereinbefore high-lighted, it is rational to hold that on balance of probability the plaintiff/Appellants proved their case, especially as the identity of Ani Isimkpume was never in issue. It was well known to the parties… Issue 1 is resolved in favour of the Appellants.
On the conclusion drawn by the Customary Court, I will take them ad Seriatim:
(1) I have earlier stated in this judgment that the Plaintiffs/Appellants, through PW1 informed the Court that the Chief Priest of Ofufe Owoloti was not willing to attend Court, unless there was a subpoena, and that the Court subsequently ordered that subpoena be issued, but the order was not carried. The Appellants participated in the proceedings before Ofufe Owoloti and gave evidence on what transpired there. If the Court had to make heavy weather of evidence which ought to be produced, it should have extended the same treatment to the missing link in the evidence of DW2, who said that the matter for which he was testifying was recorded during the proceeding at Igwe’s Palace. The observation or conclusion of the Customary Court was perverse in this regard and is hereby set aside.
(2) Wisdom of Solomon- The conclusion of the Court here is as bizarre as it is perverse. The Appellants never suggested that the land be destroyed or given away to a stranger who had nothing to do with the land. They merely agreed to share what was in fact sharable, unlike the child on Solomon’s judgment, who was not sharable by division. Besides, the evidence of PW1, under cross examination, that the Respondents enjoyed numerical strength over them and were in a position to be intimidating them was not negatived. It was clearly in the interest of peace and brotherly love that they conceded to partition, especially as it was in evidence that the land area was massive and there had been encroachment by Awha and Okpogho communities. A house divided among (sic) itself cannot stand. The conclusion of the Customary Court is also set aside as being perverse.
(3) Refusal to present oath for Respondents to take – The oath taking issue was inconclusive. The Appellants did not provide oath and the Respondents were not put at any peril. The Court had ample evidence upon which to decide the controversy before it. It is equally funny that the Court totally ignored the earlier attempts at mediation and relied on oath taking that was not administered and which the Appellants have not accepted that they participated in. See Bakare’s case supra for the conditions under which the Court will accept arbitration through oath taking. The conclusion of the Customary Court is perverse and is hereby set aside.
(4) The conclusion on the reliance on the evidence of DW2 is also perverse and is also set aside for reasons earlier given in this judgment.
Grounds 1,2 and 3 of the Appeal succeed while ground 4, fails.
There is no need to inquire into the alternative relief of No-Suit. The Appellants are entitled to Customary right of occupancy of Ani Isinkpume, Iwollo, subject matter of the case at the lower Court and of this appeal- and it is so ordered. If Appellants wish to concede any portion of Ani Isinkpume to the recalcitrant Respondents, they are at liberty to do so, but that does not form part of this judgment.
The judgment of the lower Court is hereby set aside as well as the consequential order, with N10,000.00 cost in favour of the Appellants.”
(See pages 119 to 120 of the Records of Appeal and note that Appellants, in the Appeal, were Respondents, at the Court below).

Aggrieved by the above decision, the Appellants, who were the Respondents at the Customary Court of Appeal, filed this Appeal. They also filed their brief of Arguments- Amended Brief, on 1/11/2018 and distilled 5 issues for the determination of the Appeal, from 5 grounds of Appeal, as follows:
(1) Whether the Customary Court of Appeal was right in giving judgment to the Respondents, when they did not prove their case on preponderance of evidence.
(2) Whether the issue of rent not proved, is enough, in view of other compelling facts in evidence by the Respondents, not enough to make the Court decline from giving judgment to the Respondents, having misdirected itself in law and facts, thereby occasioned a miscarriage of justice.
(3) Whether the Customary Court of Appeal speculated and imported evidence which adversely affected the judgment.
(4) Whether the refusal of a party to take an oath or present one to the adverse party has no effect on his claim, the claim of one, who claimed ownership of the land in dispute.
(5) Whether the onus was not on the Respondents to prove their case on balance of probability before it would shift to the Appellants.

Appellants did not formally relate the issues for determination of the Appeal to the grounds of Appeal. But a perusal of the 5 grounds of Appeal in the Amended Grounds of Appeal, vis-a vis the 5 Issues, appear to suggest that the 5 Issues were distilled from the 5 grounds of Appeal, serially. For a check the grounds Appeal, as per the Amended process, were as follows (without their particulars):
(1) The Customary Court of Appeal erred in law and facts by holding that the Appellants proved their title to the land in dispute thereby giving a judgment which occasioned a miscarriage of Justice.
(2) The Customary Court of Appeal erred in law and misdirected itself in facts by stating that since two witnesses did not accept evidence of rent that the Respondent have not established that the misdirection occasioned a miscarriage of Justice.
(ii) Where material evidence is wrongly applied by Court and is relied upon to arrive at a decision.
(iii) Where evidence adduced in a trial is not rebutted, Courts regard them as admission of facts arrived.
(3) The Customary Court of Appeal, Enugu State, erred in law and facts by importing evidence which were not adduced during hearing and in arguments, thereby occasioning miscarriage of justice.
(4) The Customary Court of Appeal was in error not to realize that the party which refused to take an oath or present one for the adverse party to take should be the party to lose.
(5) The Honourable Court erred in law by holding that the onus of proof shifted to the Appellants.
(Whether the above grounds of Appeal and the issues therefrom, disclosed any question of customary law, required to found a ground of Appeal from decisions of the Customary Court of Appeal, shall be discussed later, in the light of the Respondents Notice of Preliminary Objection, filed on 21/01/2021).

​The Respondents did not file any Brief in this Appeal, but their Counsel, Chief G.C. Amuzie, filed Notice of preliminary Objection, which the Respondent relied upon at the hearing of the Appeal on 21/1/2021. He had earlier filed the objection on 19/6/2018 and another on 21/1/2021 and relied on the latter. In the Notice of Preliminary Objection, the Respondents, relying on Order 10 Rule 1 of the Court of Appeal Rules 2016, and Section 245(1) of the 1999 Constitution of Nigeria (as amended), and under the inherent jurisdiction of this Court, said:
(1) “This Honourable Court lacks the jurisdiction to entertain the appeal and same ought to be struck out, as no leave of Court was sought and obtained before filing the Appellants’ Notice of Appeal.
(2) None of the five grounds of appeal involves question of Customary Law.
(3) The five issues formulated and argued in the Appellants’ Brief of Argument are incompetent and ought to be struck out having been from incompetent grounds of appeal.
(4) The Appellants Brief is incompetent and ought to be struck out.”

Counsel gave the grounds of this objection, as follows:
(a) The Appeal is against the judgment of Customary Court of Appeal, Enugu State.
(b) By Section 245(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), this Honourable Court can only entertain appeals from the Customary Court of Appeal, where the ground of appeal involves question of Customary Law.
(c) None of the grounds of Appeal in the instant case involves question of Customary Law.
(d) This Honourable Court lacks the jurisdiction to entertain this appeal and it ought to be struck out.’’

As earlier stated, the Respondents did not advance any argument on the said Preliminary Objection, as they filed neither a Respondent Brief to articulate the objection, nor an address in support of the Preliminary Objection. But this Court is bound to take cognizance of the Preliminary Objection and resolve it, being one that can dispose of the Appeal, in Limine, if upheld.

The Appellants had filed a Reply Brief on 3/7/2019 to contest the earlier Preliminary Objection, and queried “Whether the Respondent Notice of Preliminary Objection, dated 7/06/2019, is competent.” He answered the query in the negative, saying the five grounds of the Appeal and issues therefrom, were founded on question(s) of Customary Law. They sought protection in the case of Ozoemena & Anor Vs Nwokoro & Ors (2018) LPELR – 44462 SC. Counsel further argued that the process by the Respondent, filed on 19/6/2019 (dated 17/6/2019) was incompetent, not being properly endorsed by Counsel with requisite Legal Practitioner’s seal and stamp.

It is clear that Appellants did not react to the later Preliminary Objection, filed on 21/1/2021, and so their arguments, founded on the earlier preliminary objection, filed on 19/6/2019 cannot in law, be lifted to apply to the later preliminary objection, filed on 21/1/2021, which appeared properly endorsed by the Respondents’ Counsel, with requisite practicing stamp and seal. See the case of Abubakar & Anor Vs INEC & Ors (2019) LPELR – 48488 (CA), on the need to react to an instant process of Court, after the striking out of an earlier one.

RESOLUTION OF THE PRELIMINARY OBJECTION
I have taken a close look at and appraised the five grounds of Appeal and the Issues distilled, therefrom, for the determination of this Appeal by the Appellants. I think the said grounds and Issues, except one, (ground 4 and Issue 4) are incapable of invoking the powers of this Court to hear and determine the Appeal by the Appellants, the same not being founded on any question of Customary Law, save the ground 4 (and Issue 4, thereform).
Appellants’ grounds 1, 2, 3 and 5 were on evaluation of evidence, and/or improper application of evidence, or wrong placement of the burden of proof in the case by the lower Court. These are not issues or questions of Customary Law. The authorities on this are replete, that appeal from Customary Court of Appeal to this Court can only be on question of Customary Law. See the recent decision of this Court in the case of Chukwuma & Anor Vs Chukwuma & Anor (2021) LPELR – 52686 (CA), where we held:
I should also observe that the Respondents’ lone ground of Appeal, complaining that the judgment of the trial Customary Court was against the weight of evidence, failed short of a ground of appeal capable of invoking an appeal against a decision of Customary Court, to the Customary Court of Appeal, that not being a question of Customary Law, as stipulated by Section 282(1) of the 1999 Constitution of Nigeria. See also the long line of cases, which state that appeal against a decision of Customary Court to the Customary Court of Appeal, or from the Customary Court of Appeal to this Court (Court of Appeal) must be on question of Customary Law. Customary Court of Appeal Edo State Vs Aguele & Ors (2017) LPELR – 44632 SC; Mbagwu Vs Ohalete & Anor (2020) LPELR – 49543 CA; Duru Vs Okoro (2015) LPELR – 24483 CA; Onyeme & Anor Vs Onumaegbu & Anor (2016) LPELR – 41092 CA. We have also stated, several times, that issues of evaluation of evidence (which an allegation that judgment is against the weight of evidence is all about) is not a question of Customary Law. See Obiangwu Vs Nwosu & Ors (2015) LPELR – 40209 (CA); Okereke & Anor Vs Adiele (2014) LPELR – 24103 (CA); Adiole & Anor Vs Njoku (2020) LPELR – 49842 CA.
I therefore strike out the grounds 1, 2, 3 and 5 of the Appeal, and the Issues distilled, therefrom, for being incompetent to found an appeal in the Court of Appeal, same not being on question(s) of Customary Law.

On the ground 4 (Issue 4) wherein Appellants argued “whether the refusal of a party to take oath or present one to the adverse party has no effect on his claim, the claim of one, who claimed ownership of the land in dispute”, their Counsel had answered in the affirmative, asserting, strongly, that oath taking is part of Customary Law to claim title to land, and that, where an arbitration has resulted in oath taking, the party that tends to shy away from the oath taking, or refuses to take the oath, is deemed to concede ownership of the land to the one who is ready to take the oath, and/or takes the oath, and survives it. He relied on some cases including Ozoemena & Anor Vs Nwokoro & Ors (2018) LPELR – 44462 SC, where resort to oath taking, under the rules of Customary Law, as means of resolving disputes or establishing title in Customary arbitration, was acknowledged.

RESOLUTION OF THE ISSUE
In this case, at hand, the Lower Court had held:
“Refusal to present oath for Respondents to take – The Oath taking issue was inconclusive. The Appellants did not provide Oath and the Respondents were not put in any peril. It is equally funny that the Court totally ignored the earlier attempts at mediation and relied on Oath taking that was not administered and which the Appellants have not accepted that they participated in. See Bakare’s case supra for the conditions under which the Court will accept arbitration through Oath taking. The conclusion of the Customary Court is perverse and is hereby set aside.” (Page 120 of the Records of Appeal)

It should be noted, again, that the Appellants herein were the Respondents, referred in the above decision, and the Respondents herein, Appellants in that decision. It should also be stated that the above findings and holding of the Lower Court, has not been challenged and/or appealed against by Appellants in this Appeal. The law is trite that, a findings of Court or holding, not appealed against remains valid, binding and conclusive. See the case of Awosanya (Rtd) Vs F.M.E.H & U.D. & Ors (2021) LPELR – 52707 (CA); Ezike & Anor Vs Egbuaba (2019) LPELR – 46526 (SC); Dabo Vs Abdullahi (2005) 2 SC (Pt.1) 75; (2005) 1 NWLR (Pt.923) 181.

​Thus, Appellants’ attempt to raise issue on the Oath allegation is misplaced and unfounded, as the decision of the Lower Court remains, that the Oath taking was inconclusive, as that Oath was not provided and the Appellants were not put in any peril; that the Respondents herein had not accepted participating in any Oath taking.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The law has also been developed to the effect that, one who does not accept or believe in Oath taking, under Customary arbitration, cannot be compelled to be governed by it, as that would violate his fundamental rights to his belief, under Section 38(1) of the 1999 Constitution of Federal Republic of Nigeria. See the case of Mbajiuka & Ors Vs Anyanwu (2018) LPELR – 44472 CA, where we held:
“Appellants had argued that the said arbitration decision did not satisfy the conditions needed to make it valid and binding; that there was no voluntary submission of the matter by the parties for arbitration, especially as the 1st Appellant did not submit to the Oath taking, and so did not agree to be bound by the said decision… Appellants also argued that the idea of Oath taking, in the circumstances, as proof of ownership, was repugnant to natural justice, equity and good conscience, and is incompatible with the constitutional rights of the 1st Appellant, as per Sections 16(1) (2) (d) of the Customary Court Laws of Imo State, 1984, and Section 38(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

I tend to agree with the Appellants about the dangers of resort to Oath taking in Customary arbitration (before shrines/juju) as means of determining ownership of land; that it can infringe on the constitutional rights of a party who abhors such fetishes. It should also be seen that the practice of Oath taking, as a means of acquiring land/properly is rooted in voodooism/magic or speculation, devoid of any rational/logical or legal effort to resolve a problem. It is, in my view, a lazy man’s way of addressing or tackling a problem and appears to be ingrained in mischief/malice, as it seeks assistance of diabolical or unseen spirits/powers to kill or harm/vindicate one who takes the Oath.”
See also the case of Atuona & Anor Vs Ozobia & Ors (2015) LPELR – 25759 (CA), where my lord, Agim JCA (as he then was – now JSC) criticized Oath taking in Customary arbitration to acquire land, as being:
“subjective and metaphysical way of ascertaining which party’s claim is true…” By its nature and the inherent lack of rationality and certainty of outcome, its outcome remains shrouded, in doubt and vulnerable to disputation. Because of this inherent character of unreliability, the Oath taking method of Customary Law is not popular in many of our communities today.”

Of course, in this case, at hand, there was no Oath taking, let alone the reliability of same. Appellants’ attempt to cling to the old, discarded means of proof of ownership of land, when the Oath was not even produced, accepted and/or sworn to, appears to be an act of desperation.
I see no merit in this Appeal, as I resolve the Issue against the Appellants and dismiss the Appeal.
Appellants shall pay the cost of this Appeal, assessed at Fifty Thousand Naira (N50,000.00) only, to Respondents.

AHMAD OLAREWAJU BELGORE, J.C.A.: I have the advantage of reading before now, the Judgment just delivered by my Learned Brother ITA G. MBABA, JCA.
I agree that the Appeal lacks merit and should be dismissed.
I dismiss the Appeal and abide by the consequential order contained in the lead judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.

​For the more detailed reasoning in the lead judgment I equally hold that jurisdiction was wrongfully declined in this instance. I equally hold that the appeal is devoid of merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

O. IKWUKA ESQ (who settled the brief) For Appellant(s)

CHIEF G.C. AMUZIE who filed the Preliminary Objection, with him, EMME AWUJA, ESQ. who adopted the Preliminary Objection For Respondent(s)