OZO (PROF) CHIWEYITE EJIKE (OGUOWULU) & ANOR V. CHREF ANAKO ONUZULIKE (EZEDIORANMA) & ORS (2013)

OZO (PROF) CHIWEYITE EJIKE (OGUOWULU) & ANOR V. CHREF ANAKO ONUZULIKE (EZEDIORANMA) & ORS

(2013)LCN/6725(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2013

CA/E/381/2007

RATIO

DUTY OF THE TRIAL COURT TO EVALUATE AND ASCRIBE PROBATIVE VALUE TO EVIDENCES OF WITNESSES

It has been restated in several decisions of this court and the Supreme Court that it is the trial court which heard the witnesses and observed their demeanour that is in the preeminent position to evaluate the evidence of the witnesses and ascribe probative value thereto. Where that court has satisfactorily carried out the exercise of evaluation and appraisal of facts and correctly ascribed probative value to the evidence received, the appellate court that does not possess the same opportunity as the trial court will not readily substitute its own views for those of the trial court. See FAGBENRO V. AROBADI (2006) 7 NWLR (PT. 978) 174; OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT. 565) 226; SHA V. KWAN (2000) 5 SC 178; OSUJI V. EKEOCHA (2009) ALL FWLR (PT. 490) 614; ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) 1.

In carrying out the duty of evaluation of evidence, the trial judge is to examine the credible and admissible evidence the parties have adduced before it and place the evidence on an imaginary scale, weigh them together to see which one out weighs the other and decide upon the preponderance of the evidence. See MOGAJI V. ODOFIN (1978) 4 SC 91; AYORINDE V. SOGUNRO (2012) VOL. 5-7 MJSC (PT. iii) 1.

The learned trial judge has properly analysed, evaluated and applied the evidence (oral and documentary) in this case and I find no basis to embark on another or fresh exercise of evaluation.

I probably need to emphasise here again that the declaratory and injunctive reliefs sought by the appellants are granted or refused purely on the exercise of the discretion of the trial court. It is equally the law that an injunction as an equitable remedy can only be granted to support a right known to law and/or equity. See YALAJU-AMAYE V. A.R.E.C. LTD (1990) 4 NWLR (PT. 145) 422; AFROTEC TECHNICAL SERVICES NIG. LTD. V. MIG AND SONS LTD (2001) SCNJ 1.

WHETHER A PARTY ALLEGING A CUSTOM OR BASING HIS CLAIM ON THE SAME CAN BE THE ONLY WITNESS

As a matter of law a party alleging custom or basing his claim thereon has a duty to prove it strictly though not by number of witnesses. It is however undesirable that the party asserting the custom should be the only witness, rather it is important that another witness who is versed in the alleged custom should also testify. See ORLU V. GOG-ABITE (2010) ALL FWLR (PT. 5241, (2010) VOL. 1 (PT. II) MJSC 186. Per ISAIAH OLUFEMI AKEJU, J.C.A.

WORDS AND PHRASES: CUSTOMARY LAW

Custom or Customary Law has also been defined as a set of rules of conduct applying to persons and things in a particular locality which must be in existence at the relevant time, recognized and adhered to by the inhabitants of the community to make it binding. In NWAIGWE V. OKERE (2008) ALL FWLR (PT. 431) 843 at 870. TOBI JSC defined customary law as follows:-

“And what is Customary Law? Customary Law generally means relating to custom or usage of a given community. Customary Law emerges from the tradition, usage and practice of people in a given community which, by common adoption and acquiescence on their part and by long and unvarying habit, has acquired, to some extent, element of compulsion and force of law with which it has acquired over the years by constant, consistent and community usage, it attracts sanctions of different kinds and is enforceable.

Putting it in a more simplistic form, the customs, rules, traditions, ethos and cultures which concern the relationship of members of a community are generally regarded as the Customary Law of the people”. Per ISAIAH OLUFEMI AKEJU, J.C.A.

WHETHER A PARTY CLAIMING DECLARATORY RELIEFS MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE

In any event it is now fully settled that a party who claims declaratory reliefs has the onus of proof and he has to succeed on the strength of his own case, and not on the weakness of the defence except where the case of the defence supports that of the claimant. See NKWO V. IDOE (1998) 7 NWLR (PT. 558) 354; UCHE V. EKE (1998) 9 NWLR (PT. 564) 24; OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413; NDAYAKO V. DANTORO (2004) 13 NWLR (PT. 889) 187. Per ISAIAH OLUFEMI AKEJU, J.C.A.

WHETHER A DECLARATION CAN BE GRANTED WITHOUT ORAL EVIDENCE FROM THE CLAIMANT.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. OZO (PROF) CHIWEYITE EJIKE (OGUOWULU)
2. CHIEF EKWENUGO MIKE EJIKE
(SUING-BY THEMSELVES AND ON BEHALF OF THE ENTIRE LATE IGWE OZO EJIKE WAOZO NZE EXTENDED FAMILY OF OZOM AGUOBU OWA COMMUNITY OF EZEAGU CENTRAL LOCAL GOVERNMENT OF ENUGU STATE) Appellant(s)

AND

1. CHREF ANAKO ONUZULIKE (EZEDIORANMA)
2. CHIEF (DR) S.I. NEIFE (OMELUOHA)
3. CHIEF ISAAC IGWENAGU (OCHENDO)
4. CHIEF FELIX NGWUECHE (AGUNACHEIBE)
5. CHIEF BARR. J.C. ONUOHA (OKWULUOHA)
(DECEASED)
6. MR. CHRISTOPHER OBUAYO
7. CHIEF C.C. AFAMEFUNA (EZEUDO)
(SUED BY THEMSELVES AND ON BEHALF OF OZOM AGUOBU OWA AUTONOMOUS COMMUNITY OF ENUGU STATE)
8. HON. RICHARD ANIEKWU
(SUED BY HIMSELF AND AS REPRESENTING ALL MEMBERS OF IGWESHIP COMMITTEE NZEAGU CENTRAL LOCAL GOVERNMENT AREA OF ENUGU STATE)
AND
9. CHIEF OKOLO DONATUS
(SUED BY HIMSELF AND AS REPRESENTING ALL MEMBERS OF OZOM AGUOBU OWA COMMUNITY/TOWN UNION CONSTITUTION/REVIEW/DEBATE COMMITTEE) Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment delivered on 24/4/2007 by Hon. Justice A.A. Nwobodo sitting at Enugu Division of the High Court of Enugu State in respect of Suit No. E/2/2004 which the appellants as plaintiffs instituted through the Writ of Summons dated 2/1/04 and filed on same date and the Statement of Claim that was subsequently filed. The plaintiffs had claimed the following reliefs:-
1. A declaration that the Ozom Aguobu Owa Autonomous Community of Ezeagu Central Local Government Area is bound by the age long convention, custom, usage and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected.
2. A declaration that the Code of Conduct/Constitution dated 1st August 1976 governing relationship between the traditional head of Aguobu-Owa and the people of Aguobu Owa is binding on the Ozom Aguobu-Owa Autonomous Community in Ezeagu Central Local Government Area of Enugu State.
3. A declaration that the Ozom Aguobu Owa/Town Union Constitution/Review/Debate Committee cannot amend or tamper with the age long convention, custom, usage, and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected.
AND/OR
4. A declaration that any amendment of the age – long convention, custom, usage and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected by the Ozom Aguobu-Owa Community/Town Union Constitution Review/Debate Committee without hearing from the plaintiffs runs contrary to the fair hearing provision of the Constitution of Nigeria and is thus null and void and of no effect.
5. A declaration that the Ozom Aguobu Owa Community/Town Union Constitution Review/Debate Committee as set up is ultra vires and illegal.
6. An order of Court directing the Igweship Committee of Ezeagu Central Local Government Area of Enugu State not to be guided or influenced by any thing recommended to it by either the 1st set of defendants or the 3rd set of defendants except as accepted and concurred to by the plaintiffs on the issue of selection of traditional ruler of Ozom Aguobu Owa in Enugu State.
7. An order of injunction restraining all of the defendants either by themselves or their servants, agents or privies from accepting and/or relating with any position or situation or doing anything whatsoever which contradicts the age-long convention, custom, usage and tradition to the effect that Ozo Ejike family is the well known dynasty from which a chief or traditional ruler must be selected.
8. An order of Injunction restraining the Ozom Aguobu Owa Community/Town Union Constitution/Review/Debate Committee from further sitting and deliberation forthwith.
The respondents as defendants filed a Statement of Defence and denied the plaintiffs’ claim while the plaintiffs filed a Reply to Statement of Defence. At the trial, evidence was adduced by the parties, the plaintiffs called four witnesses as PW1 – PW4 while two witnesses DW1 and DW2 testified on the side of the defence. After the learned Counsel for the parties had filed and adopted their respective written addresses the learned trial judge in the judgment on pages 257 -272 of the record of appeal dismissed the plaintiffs’ claim.
Aggrieved by the decision of the learned trial judge, the plaintiffs (now called the appellants) filed their Notice of Appeal on 18/6/2007 in commencement of this appeal with eight grounds of appeal (a-h) as amended with the leave of this court granted on 28/9/10 in respect of ground (d) thereof.
In the Appellants’ Brief of Argument prepared by Osmond Afam Aputa of Counsel, dated 11/10/10 and filed on 12/10/10 the following issues were formulated for determination: –
1. Was Ozo Nze Wa Ozo Nevo a Traditional head of Ozom Aguobu Owa?
2. Was Ozo Ejike a traditional ruler of Aguobu Owa and Is the traditional Stool reserved for Ozo Ejike family?
3. Did the appellants fail to prove that Chief I.N. Ejike was selected and presented in accordance with law?
4. Does exhibit D or the age old custom to the effect that Ozo Ejike family is the functional dynasty from which traditional rulers is selected apply in present day Ozom Aguobu Owa.
The Respondents’ Brief of Argument was settled by their learned Counsel, G.E. Ezeuko Jnr and filed on 16/3/11 but deemed properly filed on 25/4/12. The learned Counsel raised two issues for determination as follows:
1. Whether Ozo Nze Wa Ozo Nevo was the traditional ruler of Ozom Aguobu-Owa and head of the dynasty.
2. Whether exhibit D has any evidential value in establishing the appellants’ dynasty in Ozom Aguobu-Owa.
A Reply Brief was filed by the appellants on 8/5/12.
At the hearing of the appeal the learned Counsel for the parties adopted their respective briefs and relied thereon to urge this court to grant the prayers sought therein.
In arguing the issues in the appellants brief, the learned Counsel submitted on issue 1 that paragraphs 5-7 of the Statement of Claim show the pleadings of the appellant that Ozo Nze Wa Ozo Nevo the appellants’ forebear was a traditional head of Ozom Aguobu Owa, and a mere denial by the defendants without answering the material points raised therein is not a proper traverse or answer to averments in the Statement of Claim; citing ADELEKE V. ASERIFA (1990) 3NWLR (PT. 136) 113. It was submitted that an evasive traverse in pleading amounts to an admission.
It was contended that paragraph 5 of the Statement of Claim that ancient Owa was a republic without kings is a statement of historical development of rulership in the original clan and ancient Owa does not refer only to Aguobu Owa or Ozom Aguobu Owa. It was argued that the evidence of the PW1 shows that the appellants’ forebear Ozo Nze Wa Ozo Nevo emerged as the natural leader or head of the people of Aguobu Owa in the 19th Century and that was the origin of the dynasty while the procedure of succession was documented subsequently.
It was contended that the respondents admitted on the strength of the pleadings that Ozo Nze Wa Ozo Nevo was the traditional head of Ozom Aguobu Owa and the learned Counsel submitted with reliance on ONWUANUMKPE V. OWOUANUMKPE (1993) 8 NWLR (PT. 310) 186 and O.A.U. COOPERATIVE SOCIETY V. NACB (1999) 2 NWLR (PT. 590) 234 that facts that have been admitted do not require to be proved further. The learned Counsel submitted also that the respondents in this case had an opportunity to challenge the testimony of the PW1 that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa but they failed to do so through their witnesses and a court faced with such a situation of unchallenged evidence can validly hold such evidence as establishing the issue, citing MAINNAGE V. GWAMMA (1997) 11 NWLR (PT. 528) 191; OBI V. UZOR (1991) 9 NWLR (P. 213) 94; NGENE V. EGBO (1991) 7 NWLR (PT. 203. Counsel submitted also that courts are entitled to make inferences, citing LION OF AFRICA V. FISAYO (1986) 4 NWLR (PT. 37) 674.
It was contended that the inference to be drawn from the evidence of the PW1 and the DW1 is that Chief Ozo Nze Wa Ozo Nevo is the father of Chief Ozo Ejike and that the same Chief Ozo Nze Wa Ozo Nevo was the Warrant Chief mentioned by the DW1 and therefore a traditional head. It was submitted that appellants can rely on the portion of respondent’s case that is supportive of their claim on the matter in issue and project their contention that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa, citing IPINLAIYE V. OLUKOFUN (1996) 6 NWLR (PT.453) 148.
It was the contention of appellants’ Counsel that the finding of the learned trial judge that the appellants did not prove that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa did not agree with the pieces of evidence available in this case and is not the result of the proper consideration and avaluation of the evidence adduced by both sides.
Counsel has urged this court to embark on a consideration and evaluation of the evidence so as to make proper findings, that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa, citing OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 785; OKORO V. UZOKA (1958) 4 SC 77; ABUMSOMWAN V. MERCANTILE BANK (1987) 3 NWLR (PT.60) 160.
On the second issue, the learned Counsel contended that the testimony of the PW1 is consistent with the appellants’ Statement of Claim that Chief Ozo Ejike Wa Ozo Nze (chief Ozo Ejike) ruled Aguobu Owa from 1928 to 1966 while the respondents did not give evidence to the contrary and did not challenge that fact. It was submitted that a party is entitled to rely on admission against interest to defeat his opponents’ claim, citing, IPINLAIYE V. OLUKOFUN (1996) 6 NWLR (PT.453) 148.
It was contended that the judgment of the lower court shows that ambiguity exists in exhibit B as to the reference to Chief Ozo Ejike as ISIANI Ozo Ejike of Aguobu which the learned judge held meant a reference to his place of origin rather than his place of rulership. The learned Counsel submitted that as a general rule, oral evidence is allowed to be heard in respect of matters ambiguously described in a document, citing SCOA V. BOURDEX (1990) 3 NWLR (PT. 138) 389; ODUNEYE V. ALAKATTA (1977) 4 SS 133. It was argued that from the evidence of the PW1 and DW1, the statement, “Isiani Ozo Ejike of Aguobu Owa” can only go to the place of rulership, and not otherwise.
The learned Counsel referred to exhibit D and submitted that documents in support of pleaded facts also constitute evidence, citing M.C.C. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 86; THANNI V. SAIBU (1977) 2 SC 89. It was argued that by the purport of exhibit A which shows that Chief Ozo Ejike was the clan head of Owa and that government did not appoint but recognized him as such, it follows that his status as clan head of Owa was in existence before exhibit A was issued to recognize him, and inferentially that he was the traditional head and traditional ruler of Aguobu-Owa; OGBUNYIYA V. OKUDO (1990) 4 NWLR (PT 146) 570 was cited.
It was submitted that the view of the learned trial judge that exhibit B did not unequivocally say that Ozo Ejike was the traditional ruler of Aguobu-Owa amounted to a serious misdirection and misconception of facts and the law. It was submitted also that a document in the absence of allegations of fraud or improper execution or custody speaks for itself, citing BEREDUGO V. COLLEGE OF SCIENCE AND TECHNOLOGY (1991) 4 NWLR (PT. 187) 660.
The learned Counsel contended that the inference from the evidence of the DW1 is that he gave support for the appellants’ case on the issue that Ozo Ejike was traditional head of Aguobu-Owa though described as a Warrant Chief and natural head of Aguobu-Owa in exhibit B1.
It was contended that exhibit D has made it clear that the traditional stool of Aguobu-Owa, nay Ozom Aguobu Owa is reserved for the Ozo Ejike family, that is to say, the family of the appellants, and the members of appellants’ lineage, namely Ozo Nze Wa Ozo Nevo, Ozo Ejike Wa Ozo Nze, Chief Azubuike Ozo Ejike and Igwe Joseph Nnadozie Ejike had successively become traditional heads of Aguobu Owa for nearly 100 years whereby a dynasty is established in favour of the appellants.
It was submitted that the finding of the learned trial judge that Chief Ozo Ejike is not a traditional ruler of Aguobu Owa and that the traditional stool of Aguobu-Owa is not reserved for the family of Chief Ozo Ejike is not supported by evidence and as such should be reversed, relying on LENGBE V. IMALE (1959) WRNLR 325; NWAOBA V. IHEBIE (1990) 2 NWLR (PT. 134) 596; OKPIRI V. JONAH (1961) 1 SC NLR 174; ATOLAGBE V. SHORUN (1985) 1 NWLR (PT. 2) 360; SHADIPE V. LION BUILDINGS LTD (1976) 12 SC 135.
On the third issue it was submitted that a trial court is only bound to make findings of facts on issues joined by the parties i.e. where there is a claim and an opposition; KARIBO V. GLEND (1992) 3 NWLR (PT. 230) 429; AKINTOLA V. SOLANO (1986) 2 NWLR (PT. 24) 601; OBI V. UZOR (1991) 9 NWLR (PT. 213) 94; OLALE V. EKWELBNDU (1989) 4 NWLR (PT. 115) 326: EHIMARE V. EMHOYON (1985) 1 NWLR (PT. 2) 177 were cited in support thereof.
It was contended that the respondents did not plead that Chief J.N. Ejike was not selected or presented in accordance with the provisions of Section 5 of Chieftaincy Edict 1976 and there was no such evidence from the respondents’ two witnesses even where it was so pleaded as pleadings or even the address of Counsel cannot take the position of evidence as cases are determined on the basis of evidence; BIJOU V. OSADAROHWO (1992) 6 NWLR (PT. 249) 650; NDU V. STATE (1990) 7 NWLR (PT. 164) 550.
Learned Counsel contended that exhibit C, a certificate of recognition issued to Chief J.N. Ejike has established that he was duly selected and presented according to law otherwise the Military Governor would not have issued the certificate. It was further contended that the onus of proof that Chief J.N. Ejike was not selected according to the usages, tradition custom and convention of Aguobu-Owa should shift to the respondents
It was submitted that even if the respondents had given evidence that Chief J.N. Ejike was not selected and presented according to law, such evidence cannot stand or prevail against the contents of exhibits C and D, citing DAROCHA V. HUSSEIN (1958) SCNLR 280. It was submitted also that evidence to contradict the express statements in exhibits C and D on whether Chief J.N. Ejike was selected and presented according to Law is inadmissible, and if any evidence had been presented to the effect that Chief J.N. Ejike was not presented according to law, the court would have been expected to expunge or ignore such evidence as irrelevant; REAN V. ASWANI ILES (1991) 2 NWLR (PT. 176) 696; RAIMI V. AKINTOYE (1986) 3 NWLR (PT. 26) 96; AYANKORA V. OBIAKOR (1990) 2 NWLR (PT. 130) 67.
The learned Counsel submitted that the finding of the learned trial judge that Chief J.N. Ejike was not selected and presented in accordance with Law is perverse having not been supported by any evidence and should be reversed, citing UNION BANK V. NNOLI (1990) 4 NWLR (PT. 145) 547; AKIBU V. OPALEYE (1974) 11 SC 189: WOLUCHEM V. GUDI (1981) 5 SC 291; ONWUBE V. NDUBE (1972) 4 SC 106.
As far as the fourth issue is concerned, the learned Counsel conceded that the answer to that issue will entail delving into the arena of facts of the case. The learned Counsel made reference to portions of the pleadings and argued that the parties had raised issues about the applicability of exhibit D to present day Ozom Aguobu Owa.
It was contended that contrary to the argument of the respondents that since the appellants’ family held the traditional rulership of Aguobu Owa made up of the present Ozom Owa and Ezi Owa, the appellants would cease to produce the traditional ruler of Ozom Owa as Aguobu Owa no longer exists, the appellants remain the holders of the traditional stool of Ozom Owa which remains from Aguobu Owa after Ezi Owa had been carved out, until the appellants are removed in accordance with the law. It was further contended that the rights of the appellants to a dynasty are vested in exhibit D and any amendment of that document will lead to the removal of the vested rights, citing ADESANOYE V. ADEWOLE (2000) 78 RCN 1587.
The learned Counsel submitted that issues were joined on the applicability of the age old custom contained in exhibit D to the effect that appellants represent a functional dynasty with regard to the traditional stool of Aguobu Owa which applies in the present day Ozom Owa, but the learned trial judge failed to make findings thereon which he was bound to do. The cases of KARIDO V. GLEND (1992) 3 NWLR (PT. 230) 429; ASEMO V. AMOS (1975) 2 SC 57; MADUABUCHUKWU V. UMUNNAKWE (1990) 2 NWLR (PT. 134) 607; IMANA V. ROBINSON (1979) 3-4 SC 1; OLUFOSOYE V. OLORUNFUNMI (1989) 1 NWLR (PT. 95) 26.
It was submitted that this court as an appellate court has the power to make proper findings where the trial court has failed to do so. The cases of OKORO V. UZOKA (1958) 4 SC 77; ABUMSOMWAN V. MERCANTLE BANK and OGUNLEYE V. ONI supra were cited in support.
We were urged to grant the prayers sought by the appellants including prayers 2, 3 and 4 of the amended Notice of Appeal which learned Counsel described as consequential reliefs predicated upon the success of this appeal, relying on ODUNTAN V. GIWA (198) 5 SC 138.
In the argument of the two issues formulated in the Respondents’ Brief of Argument, the learned Counsel for the respondents argued on issue 1 that the appellants’ cause of action is set out in paragraphs 5, 23 and 24 of their Statement of Claim.
The learned Counsel argued that it was mutually agreed by the parties that Owa started with Owa Agbaja or Imezi Owa followed by Mgbagbu Owa, Aguobu Owa and Ozom Owa which was a later creation in 2003, and the appellants failed to prove that they ruled Owa, Imezi Owa, Mgbagbu Owa or Aguobu Owa from which the present Ozom Aguobu Owa was created in 2003 but have consistently misconceived the position of a warrant Chief and president of native court to that of kingship thereby claiming a dynasty. It was contended that the position of a warrant chief is a creation of the white man who arbitrarily chose somebody to the position and not on basis of any local tradition.
It was argued that exhibit A, a certificate issued without any imput from the community and exhibit C that fails to meet the requirement of Section 5 of the Chieftaincy Edict there being no evidence of how Chief Ozo Ejike was selected and presented to the Military Governor cannot establish the appellants’ claim of providing traditional rulership of Ozom Aguobu Owa since time immemorial.
It was contended by learned Counsel that the learned trial judge was right in his findings after summing exhibits B, B1, and B2 that the appellants failed to prove that Ozo Nze Wa Nevo was a traditional head of Ozom Aguobu Owa. It was further contended that appellants’ claim to a dynasty cannot be sustained since there was no Ozom Aguobu Owa existing as an autonomous Community until 2003. The learned Counsel argued that the finding of the trial court that Ozo Ejike was an “Isiana” or natural head of Umuagba quarter was based on evidence and can therefore not be faulted. It was submitted that the position of appellants’ Counsel that the respondent did not properly traverse the material paragraphs of the Statement of Claim and are deemed to have admitted the facts therein is misplaced since in an action for declaration, the plaintiff must lead cogent and credible evidence to succeed and such a declaration cannot be made even on admission by the defence, citing BELLO V. EWEKA (1981) 1 SC 101. Counsel submitted also that pleadings are not read in isolation, citing EKE V. OKWARANYIA (2001) 12 NWLR (PT. 726) 181. It was contended that the respondents denied the claims of the appellants and cannot by any stretch of imagination be said to have made imperfect denial or to have admitted the claim of the (plaintiffs) appellants.
On whether the respondents had the opportunity to challenge facts relied upon by the appellants but failed to do so and such facts should be deemed as established, the respondents’ Counsel submitted that a party who desires that the evidence of the adversary be disbelieved has the responsibility to challenge the evidence under cross examination and adduce a rebuttal evidence, citing OWENA BANK PLC V. OLATUNJI (2002) FWLR (PT. 124) 529. In this case according to learned Counsel, the witnesses for the appellants were extensively cross examined and it is incorrect to state that appellants’ evidence remained unchallenged. It was submitted that the findings of the learned trial judge are not perverse but amply supported by evidence and should not be disturbed by this court.
On the second issue which is whether exhibit D has any evidential value in establishing the appellants’ dynasty in Ozom Aguobu Owa, the respondents contend that exhibit D is a document purported to have been written by some literate and illiterate persons on the 11th day of July 1976 and addressed to the Senior Divisional Officer, Divisional Office Ezeagu, Aguobu-Owa and was purportedly signed by five persons and thumb printed by seven persons purportedly representing the people of Aguobu-Owa. It contains no Jurat contrary to Section 3 of the Illiterate Protection Law and the Interpreter did not sign the Certificate of Compliance. On who is an illiterate, Counsel refers to the Illiterate Protection Law and the case of GIRIGIRI V. ELF NIG. LTD (1997) 2 NWLR (PT.487) 371; P.Z. COMPANY LTD. V. GUSAU (1962) 1 SCNLR 383.
It was further argued by Counsel that exhibit D made in 1976 is not of any probative value because Ozo Ejike Wa Ozo Nze was challenged by Ozo Obulu Ozo Okeke in an election held at Akwuke native court while Thomas Nosike challenged Chief Ozo Ejike to a contest over the Chieftaincy. Exhibit D according to Counsel has nothing to do with Ozom Aguobu Owa which became an autonomous Community in 2003, and exhibit A which is earlier in time clearly described Chief Ozo Ejike as the Clan head of Owa and not the traditional ruler of Aguobu Owa.
We were urged to dismiss the appeal.
In the Reply Brief filed on 8/5/12, the learned Counsel for the appellants made an analysis or explanation of the evidence of the PW1 while reference was made to paragraphs of the Statement of Claim and argued that the appellants had ruled Aguobu Owa and by implication, Ozom Aguobu Owa. We were urged to look at exhibit D in which, according to Counsel, the respondents had conceded that the appellants had a dynasty and will now be estopped from stating anything to the contrary.
The learned Counsel contended that in exhibit A the instrument with which the colonial administration appointed the appellants’ forebear the word recognition was used which means the act of accepting that something had existed and this means that Chief Ozo Ejike recognized in exhibit A and Chief Nnadozie Ejike recognized in exhibit D existed before their recognition.
It was contended that exhibit D has great evidential value in establishing appellants’ dynasty in Ozom Aguobu Owa as the people of Aguobu-Owa/Ozom had therein made it clear that the Ozo Ejike family is in authority over them as a dynasty. It was submitted that the argument of the respondents on exhibit D is that they are challenging its compliance with the law and therefore a challenge to the finding of the trial court that exhibit D is not void, and they ought to have either filed a cross appeal or a respondents’ notice which they failed to do. IGWE v. KALU (2002) 14 NWLR (PT. 787) 435; OMEREGIE V. OMIGIE (1990) 2 NWLR (PT. 130) 38 were cited.
It was submitted that issues for determination in any appeal must be related to the grounds of appeal, and since none of the grounds of appeal filed by the appellants raise the issue that exhibit D failed to comply with the legal requirements expected of it as raised by the respondents that issue/point is incompetent and must be discountenanced, citing the following cases; IFABIYI V. ADENIYI (2000) 78 LRCN 1402; SHA V. KWAN (2000) 78 LRCN 1664; ALLI V. ALESINLOYE (2000) 77 LRCN 795; OKOLO V. UBN (1998) 2 NWLR (PT. 539) 618; BOARD OF CUSTOMS V. BARAU (1982) 10 SC 48; JAMES V. MID MOTORS (1978) 11-12 SC 31; LEMBOYE V. OGUNSEJI (1990) 6 NWLR (PT.155) 210; IDIKA V. ERISI (1988) 2 NWLR (PT. 78) 563.
It was contended that the trial court failed to justly evaluate the exhibits A, B, B1, B2, C, D, E, F, G, H and J tendered by the appellants especially exhibit D which according to Counsel defined the success of the appellants claim but the trial court failed to give the document its full weight while the evidence of the PWI was not put on an imaginary scale. It was submitted that in construing a document, the Court of Appeal is in as good a position as the trial court to evaluate and draw its own conclusion from it, citing FASHAMI V. ADEKOYE (1974) 6 SC 83.
It was further contended that the learned trial judge failed to appropriately evaluate the evidence of the PW1 and to assign probative value thereto which occasioned a miscarriage of justice, moreso that the records has not shown any substantial challenge or weighty rebuttal of the appellants’ evidence either by way of pleading or evidence. On how evaluation of evidence is done by a trial court, the cases of DALFARM (NIG) LTD. V. OKAKU INT. LAND (2001) 15 NWLR (PT. 735) 203; WESTAC (NIG.) LTD. V. SOKOTO STATE GOVERNMENT (2001) 4 NWLR (PT. 703) 301; MILITARY GOVERNOR OF LAGOS STATE V. ADEYIGA (2012) SC 112 were cited.
We were urged to allow he appeal.
I had earlier on in this judgment set out the reliefs sought by the appellants in their Statement of Claim and I am convinced that reliefs 1, 2, 3, 4 and 5 are for declarations while relief 6 is for order directing the Igweship Committee of Ezeagu Central Local Government Area of Enugu State not to be guided or influenced by anything recommended to it either the 1st set or third set of defendants (now respondents) except as accepted and concurred to by the appellants on the selection of traditional rulers of Ozom Aguobu Owa in Enugu State. The 7th and 8th reliefs are for injunctions.
It is also clear that the case of the appellants as derived from these reliefs is that the Ozom Aguobu Owa Autonomous Community is bound by the age long convention, custom, usage and tradition that held out and recognized Ozo Ejike family as a well known dynasty from which a Chief or traditional ruler must be selected and that such usage, custom and tradition cannot be amended as the Constitution of 1st August, 1976 governing the relationship between the traditional head and the people of Aguobu Owa is binding on Ozom Aguobu Owa Autonomous community. Any amendment of that Constitution by the Ozom Aguobu Owa Town Union/Constitution Review/Debate Committee which was set up (illegally) without hearing from the appellants will be null, void and of no effect. The injunctive orders were sought to restrain the defendants (now respondents) from doing anything that contradicts the custom, usage, convention and tradition that Ozo Ejike family is the dynasty from which a chief or traditional ruler must be selected in Ozom Aguobu Owa and restraining the Ozom Aguobu Owa Community Constitution Debate/Review Committee from further sitting and deliberations.
The respondents filed their defence to the action and witnesses were called at the trial after which the learned trial judge dismissed the claim of the appellants.
The appellants had contended in their first issue for determination in this appeal that the respondents had by their pleadings made improper denial of facts in the Statement of Claim or even admitted portions thereof and the appellants are entitled to judgment against the respondents on the principle that admitted facts do not require further proof.
The respondents’ statement of defence of 24 paragraphs is copied on pages 103 to 108 of the record of appeal, and I should state that my understanding of the defence after according it a community reading is that the respondents actually controverted, challenged and denied the claim of the appellants. In any event it is now fully settled that a party who claims declaratory reliefs has the onus of proof and he has to succeed on the strength of his own case, and not on the weakness of the defence except where the case of the defence supports that of the claimant. See NKWO V. IDOE (1998) 7 NWLR (PT. 558) 354; UCHE V. EKE (1998) 9 NWLR (PT. 564) 24; OWOADE V. OMITOLA (1988) 2 NWLR (PT. 77) 413; NDAYAKO V. DANTORO (2004) 13 NWLR (PT. 889) 187.

It is also the law that a declaration is equitable in nature and therefore requires the exercise of the court’s discretionary powers and cannot be granted without oral evidence from the claimant even where the defendant has expressly admitted same in the pleadings. See DADA V. DOSUMU (2006) ALL FWLR (PT. 343) 1605; OGOLO V. OGOLO (2006) ALL FWLR (PT.313) 1; CHIEF ODOFIN V. AYOOLA (1984) 11 SC 72. I am of the view based on the foregoing that the learned Counsel with respect missed that point and got it all wrong in his argument that the admission by respondents in pleadings (if any) entitles the appellants to judgment.
Now the claim of the appellants relate to conventions, custom, usage and tradition of Ozom Aguobu Owa, and by its definition in the 9th Edition of the Blacks Law Dictionary, Custom means a practice that by its common adoption and long unvarying habit has come to have the force of law.
Custom or Customary Law has also been defined as a set of rules of conduct applying to persons and things in a particular locality which must be in existence at the relevant time, recognized and adhered to by the inhabitants of the community to make it binding. In NWAIGWE V. OKERE (2008) ALL FWLR (PT. 431) 843 at 870. TOBI JSC defined customary law as follows:-
“And what is Customary Law? Customary Law generally means relating to custom or usage of a given community. Customary Law emerges from the tradition, usage and practice of people in a given community which, by common adoption and acquiescence on their part and by long and unvarying habit, has acquired, to some extent, element of compulsion and force of law with which it has acquired over the years by constant, consistent and community usage, it attracts sanctions of different kinds and is enforceable.
Putting it in a more simplistic form, the customs, rules, traditions, ethos and cultures which concern the relationship of members of a community are generally regarded as the Customary Law of the people”.
It follows from the foregoing that for custom, usage, convention or tradition to be binding and enforceable among the people of a particular community it must have either been accepted, adopted or acquiesced to over a long period of time.
As a matter of law a party alleging custom or basing his claim thereon has a duty to prove it strictly though not by number of witnesses. It is however undesirable that the party asserting the custom should be the only witness, rather it is important that another witness who is versed in the alleged custom should also testify. See ORLU V. GOG-ABITE (2010) ALL FWLR (PT. 5241, (2010) VOL. 1 (PT. II) MJSC 186.
Still on this matter of proof of custom, it is significant to state that by virtue of Sections 18 (1) and 16 (2) of Evidence Act, 2011, an issue of custom, unless it has been judicially noticed, must be proved as a fact and the burden of proof is upon the person alleging its existence to be discharged by calling witnesses from the community that they regard the custom as binding on them. See the decision of this court in OSEKU V. THE MINISTER, FEDERAL CAPITAL TERRITORY, ABUJA (2007) LPELR -3560 per Peter Odili JCA (as he then was).Now to the evidence of the parties, i.e. appellants who were the proponents of the custom as plaintiffs and the respondents who denied its existence or applicability.
Ozo Professor Chinweyite Ejike who himself was the 1st plaintiff testified as the PW1. According to him, in the laws of the ancient Owa, the clan was a republic and traditional authority derived from a Corp of Ozo titled nobility and the distinguished elders with the head of Ozo society in charge and the head of this major Ozo society in Ozom Aguobu Owa has never changed from Ozo Ejike family from the early times to date. The appellants’ family had been in charge of the traditional headship of Ozom Aguobu Owa even from time immemorial. This witness stated further that the appellants’ ancestor, Chief Ozo Nze Wa Ozo Nevo was recognized and appointed a Chief by the colonial authority and upon his death, his son, late Chief Ozo Ejike ruled over Ozom Aguobu Owa and the entire Aguobu Owa and was recognized and accepted as traditional clan head of Owa and was conferred with recognition as a second class chief in the former Eastern Rgion of Nigeria.
The PW1 said when Chief Ozo Ejike died in 1966, there was a period of interregnum but the Ozo Ejike family provided traditional headship for Ozom Aguobu Owa while Augustine Azubuike Ejike was recognized and appointed as the Chief or Serikin of Aguobu Owa. Late Chief Joseph Nnadozie Ejike was unanimously selected as Chief/traditional head/ruler of Aguobu Owa in line with native law, custom and convention and was recognized by the Military Governor of Anambra State who issued him a Certificate of recognition.
This witness testified further that the family of late Chief Ejike has remained the functional dynasty from which the chief or traditional ruler of the town has been selected and they have been furnishing consideration for this recognition as the functional dynasty. PW1 tendered Certificates of recognition of Chief Ozo Ejike as exhibit A and Certificate of recognition of Joseph Nnadozie Ejike as exhibit C.
The PW2, Engineer Obieke Ejike and the PW4, Dr. Obuoha Ejike both of who are related to Ejike family testified that they attended a meeting of the committee for review of the Constitution of Ozom Aguobu Owa but while PW2 resigned his membership of that body because the process adopted by the 2nd and 3rd set of respondents was fundamentally flawed, PW4 stopped attending the meeting because a document prepared by certain elements desirous of dismantling the age long position as established in exhibit D was briefly discussed.
The first defence witness, DW1, Chiawaeze C. Afamefuna said Aguobu Owa came into existence as an autonomous society in 2002 or thereabout as a result of the split of Aguobu Owa autonomous community into two autonomous communities of Ezi Owa and Ozom Owa.
The witness said there was nothing like the traditional ruler of all the people of Owa, a clan founded by a man with seven sons from two wives and the community was republican in nature. The issue of traditional rulership came into being when the colonial rulers selected persons and called them Warrant Chiefs. According to the DW1, the territory over which Ozo Ejike was issued a certificate of recognition had been split into Ezi Owa and Ozom Owa autonomous communities each of which has drawn up the constitution to guide them on how they will be ruled. While the Ezi Owa people have settled for selection of their traditional head by rotation, which the government has approved and recognized, the people of Ozom Owa met and agreed to finetune the guidelines of Aguobu Owa made for the selection of their ruler and draw up a Constitution for Ozom Owa autonomous community with no attempt to sideline the Ozo Ejike family.
In this exercise of trying to fashion out a constitution, DW1 continued, three representatives from each of the three villages that make up Ozom Owa, i.e. Ogwofia, (the eldest), Umuezediume (the second) and Okunito (the youngest) came together to form a 9 member committee and Dr. Obuoha Ejike, the PW4 was a member with Chief Isaac Igwenagu as the Chairman. The committee recommended the rotation of the traditional rulership of the community which recommendation received the approval of the community and the Constitution was signed.
Chief Isaac Igwenagu was the DW2. He said he was the Chairman of the 9 member Committee that met and drafted the Constitution of Ozom Owa that was presented to a 30 – man review committee which read it before it was finally adopted. He tendered the Constitution as exhibit S.
It thus becomes clear from evidence that Ozom Owa the community to which the parties belong and the custom of which the appellants seek to establish has recently been granted autonomous status when Aguobu Owa was split into Ezi Owa and Ozom Owa. This is not disputed, but the learned Counsel for the appellants has urged us to infer that the people of the present Ozom Owa community are bound by the usage, custom, convention and the custom of the old Aguobu Owa or even those of the medieval Owa clan.
The evidence however does not warrant or justify such an inference, for I make bold to state that the appellants have not established the tradition, custom or convention under which any of their members was selected even in the old Owa that would lead to an inference that all other members of the community are excluded from being appointed the traditional head. The incidences of the creation of Warrant Chieftaincy and/or recognition by government as established are not, and cannot take the position of the tradition and custom of the people on the selection of their ruler.
It is a basic characteristic of custom that it is dynamic, it must be in existence at the relevant time and must be recognized and adhered to by the community. See KIMDEY V. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT. 77) 445. In the case of OSEKU V. THE MINISTER. FCT ABUJA (supra) Peter Odili JCA (as at then) said and I agree entirely that “It is to be emphasized that native law and custom which the courts enforce must be existing native law and custom and not that of by gone days”. See also LEWIS V. BANKOLE 1 NLR 81 at 83 that “it must be existing, native law or custom and not the native law or custom of ancient times.”In my candid view, it is an unalloyed incident of the grant of an autonomous status to a community such as Ozom Owa in this case that they should have and enjoy the right to self determination without let or hindrance, and should be allowed to fashion for themselves those rules or conventions under which they will enjoy their new found autonomy. It is inequitable to tie such an autonomous society to the apron strings of old, archaic or moribund custom (if any) of the very old dispensation.
As I had stated earlier, the appellants formulated four issues for determination in this appeal while the respondents have formulated two. On the first issue in the respondents’ Brief which is whether Ozo Nze Wa Ozo Nevo was the traditional ruler of Ozom Aguobu Owa, I agree entirely with respondents’ Counsel that the appellants have not succeeded in showing that their reign was over Ozom Owa or even Aguobu Owa from which that community was created in recent times. The appellants have also failed to show graphically the tradition or custom under which their family members were selected, but they have relied on their appointment as warrant chief or letter of recognition by government which did not have any input from the community. The learned Counsel for the appellants has however contended in his reply Brief that the 2nd issue by the respondents which is whether exhibit D has any evidential value in establishing the appellants’ dynasty in Ozom Aguobu Owa is not a product of any of the grounds of appeal filed by the appellants and the said issue is incompetent and must be discountenanced.
Truly it is the law that an issue that does not arise from any of the grounds of appeal is incompetent and must be discountenanced. See KALA V. POTISKUM (1998) 3 NWLR (PT. 540) 1. In the instant appeal however, the appellant has made an issue of the same exhibit D under issue No. 4 of the appellants’ brief of Argument and has stated that the issue has been based on ground (d) of the notice of appeal (as amended). It is therefore in my view not out of place for the respondents to formulate an issue based on the same ground (d) of the same appellants’ notice of appeal. I do not accept the submission of the learned Counsel for the appellants on this point. I rather agree with the respondents that exhibit D has nothing to do with Ozom Owa.
It is clear to me that the gravamen of the contention of the appellants on the four issues they formulated in the Appellants’ Brief as well as the argument in the Appellants’ Reply Brief is the evaluation of evidence by the learned trial judge with the appellants dwelling specifically on the evidence of the PW1 and the document admitted as exhibit D. I have highlighted the testimony of the PW1 in the course of this judgment and I have calmly gone through the review and analysis of that evidence by the learned trial judge from which I realize that the two of us are adidem. I have also analysed the evidence of the other witnesses.
It has been restated in several decisions of this court and the Supreme Court that it is the trial court which heard the witnesses and observed their demeanour that is in the preeminent position to evaluate the evidence of the witnesses and ascribe probative value thereto. Where that court has satisfactorily carried out the exercise of evaluation and appraisal of facts and correctly ascribed probative value to the evidence received, the appellate court that does not possess the same opportunity as the trial court will not readily substitute its own views for those of the trial court. See FAGBENRO V. AROBADI (2006) 7 NWLR (PT. 978) 174; OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT. 565) 226; SHA V. KWAN (2000) 5 SC 178; OSUJI V. EKEOCHA (2009) ALL FWLR (PT. 490) 614; ADIMORA V. AJUFO (1988) 3 NWLR (PT. 80) 1.

Thus the duty of the appellate court where there is a complaint of improper evaluation of evidence in an appeal is to find out the evidence before the trial court and whether that court has correctly assessed the same by weighing them on the imaginary scale of justice and had appreciated the side to which the scale tilts having regard to the burden of proof. See DARAMOLA V. ATTORNEY GENERAL ONDO STATE (2000) 7 NWLR (PT. 665) 440; OSOLU V. OSOLU (2003) 11 NWLR (PT.832) 608.
The learned trial judge has properly analysed, evaluated and applied the evidence (oral and documentary) in this case and I find no basis to embark on another or fresh exercise of evaluation.
I probably need to emphasise here again that the declaratory and injunctive reliefs sought by the appellants are granted or refused purely on the exercise of the discretion of the trial court. It is equally the law that an injunction as an equitable remedy can only be granted to support a right known to law and/or equity. See YALAJU-AMAYE V. A.R.E.C. LTD (1990) 4 NWLR (PT. 145) 422; AFROTEC TECHNICAL SERVICES NIG. LTD. V. MIG AND SONS LTD (2001) SCNJ 1.

Where a trial court has properly exercised its discretion, an appellate court will not lightly interfere with such discretion simply because it would have exercised the discretion differently. For an appellate court to interfere with the exercise of discretion by a lower court, it must be satisfactorily shown that the lower court acted upon wrong principles or mistake of law or under a misapprehension of facts which occasioned injustice. See OYEKANMI V. NEPA (2000) 15 NWLR (PT. 690 414. Again, I find no basis to disturb the findings of the trial court.
The appellants have failed to establish by evidence that the recognition accorded by government to Chief Ozo Ejike and Joseph Nnadozie Ejike in the old Owa clan should constitute the basis of the custom of the people of the new and autonomous Ozom Owa community in which members have shown the desire to fashion out a new atmosphere for themselves in the matter of how the community will be administered generally and in particular the selection of their traditional ruler.
In concluding his judgment on page 272 of the record of appeal, the learned trial judge, after considering all the four issues placed before him by the plaintiffs (now appellants) said;
“Sequel to the decisions which I have reached on the issues which have arisen for determination in this case, I am not able to grant any of the reliefs sought by the plaintiffs the consequence of these decisions is that the plaintiffs case has failed and is hereby dismissed.”
I do not find any convincing reason to upturn that decision of the learned trial judge.
Indeed based on all I have said in this judgment I resolve the issues in this appeal against the appellants and the consequence is that I do not find any merit in the appeal which I accordingly dismiss.
I award N30,000.00 costs in favour of the respondents and against the appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother I. O. AKEJU JCA. I agree with the reasoning and conclusions.
I also dismiss the appeal and abide by the consequential orders.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the judgment delivered by my Learned brother AKEJU JCA. I agree with his reasoning and conclusion. I also hold that this appeal lacks merit and is accordingly dismissed. I abide by the consequential orders including the award of costs.

Appearances

O.A. Akputa (with C.C. Abonyi)For Appellant

AND

G.E. Ezeuko (with A.C. Eze Odili Mrs, F.C. Mbadugba and A.C. Ezeuko for the three sets of respondents.For Respondent