PHILIP IHEMEKA MBA v. HRH EZE OKECHUKWU OGBUEWU & ORS
(2019)LCN/13507(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/OW/175/2013
RATIO
A DOCUMENT NOT PRODUCED IN THE OFFICIAL LANGUAGE OF THE COURT CANNOT BE DISCARDED ON THAT GORUND
I should also state that where a document is written and produced in the language other than the official language of the Court (English) the same cannot be discarded, except where it is not possible to get an interpreter/translator of the document into the language of the Court, and the person seeking to benefit from the translation of the document has a duty to produce a witness/interpreter thereof or the Court registrar/official interpreter of the Court cannot render/satisfy such services, in the interest of justice.
And in such circumstances, I do not see the need to insist that such interpretation be signed by the interpreter, if it is done in the face of the Court, during the trial or tenderingof the document. (See the case of Ojengbede vs Esan (2001)18 NWLR (Pt.746)771 at 776 (cited by Appellant):
The official language of superior Courts of record in Nigeria is English. Therefore, if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.PER ITA GEORGE MBABA, J.C.A.
CONSOLIDATION: NATURE
Consolidation merely unites the case for the purpose of the trial. The suits retain their identities. They remain different suits for all intents and purposes, except only for the purpose of the trial. Accordingly, judgment is separately entered in each case and costs separately awarded in each case.?
See also Sawuta & Anor. Vs Ngah (1998)13 NWLR (Pt.580)39 at 43 ? 44:
Although consolidated action are tried and determined in the same proceeding, each action remains a separate action and should be given its own judgment at the end of the common and joint trial. The trial Court cannot determine one suit and ignore the other. In the instant case, at the end of the joint trial, the trial Court ought to have made pronouncements in respect of each of the two suits to show that each case has its own separate and individual existence.PER ITA GEORGE MBABA, J.C.A.
WHETHER CONSOLIDATED SUITS SHOULD HAVE DIFFERENT JUDGMENTS
I think, it should be emphasized that the requirement to write separate judgments to reflect the distinct cases that were tried together in a consolidated suits, does not, in my opinion, suggest that the trial judge has to set out, formally, to write two or more judgments (depending on the number of suits consolidated), with separate headings, and conclude them, separately, with separate signatures. It may not require review of the same evidence, separately, in a repetitive fashion and consideration of the issues (if the same and common to each) separately, etc. I think the correct perspective was captured in the case of Nkuma Vs Odili & Ors (2006) LPELR 2047 SC; (2006)137 LRCN 13011, where the Supreme Court held:
Whilst it is correct that in a consolidated matter a Court must come to separate decision on the issues agitated in each of the cases, it must be borne in mind that what is required is that the judgment of the Court must show that the trial judge adverted his mind to all the issues arising from the consolidated suit. The manner in which a judge does this very often depends on the nature of the consolidated cases. Per Oguntade JSC.PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
PHILIP IHEMEKA MBA
(For himself and as representing Members of Mba Okoroafor’s Family of Ndikpa Umuezewuzie, Eziama, Nneato) Appellant(s)
AND
1. HRH EZE OKECHUKWU OGBUEWU
2. EZEKIEL OGBUEWU
3. RAYMOND OGBUEWU
4. ONWUAKPOKE OGBUEWU Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision Abia State High Court, in Suit No.HUM/20/2008, and NO.HUM/21/2008 (consolidated), delivered on 16th January, 2013 by Hon. Justice C.O.C. Izuima, wherein his lordship dismissed Appellant?s claim in HUM/21/2008 and granted the claim of Respondent in HUM/20/2008.
At the lower Court, the Suit No.HUM/20/2008, was filed by the plaintiff (now Respondent) on 3/6/08, seeking the following reliefs against the Defendant (now Appellant):
1) A declaration that the plaintiff is entitled that vast piece or parcel of land known as and called ?Ala Obi Ogbuewu? situated and being at Ndikpa Ogbuewu Elugwu Eziama Nneato in Umunnochi LGA of Abia State.
2) An order of Court restraining the defendant and his family members from further entry into the said ?Ala Obi Ogbuewu?
3) One Million Naira (N1,000,000.00) being general damages against the defendant for the economic trees maliciously destroyed on the said ?Ala Obi Egbuewu?
?4) An order of forfeiture against the defendant over
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and in respect of the land where the defendant presently resides.
(See page IC of the Records of Appeal).
The Appellant (as plaintiff in HUM/21/2008) filed the suit on 5/6/08 against the Respondent (HRH OKECHUKWU OGBUEWU) and 3 Ors, seeking against them, jointly and severally:
1) Declaration that the plaintiff is entitled to the grant of Customary right of occupancy over part of that piece of land known as ?UGWU ? OBU? situate at Ndikpa Umuezewuzie Eziama Nneato, Umunneochi LGA
2) An order of forfeiture in respect of that part of ?UGWU-OBI? where the defendants currently reside
3) N1,000,000.00 (One Million Naira) being damages suffered by the plaintiff as a result of the unlawful entry into the plaintiff?s land
4) An order of perpetual injunction restraining the defendants, their servants, agents, workmen or privies from further entry into or interference, with the plaintiff?s user of the said land?.
(Page 2 of the Records of Appeal)
The two suits were consolidated on 23/2/2009, whereof the Plaintiff in Suit HUM/20/08 (H.R.H. OKECHUKWU OGBBUEWU) remained
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the Claimant while the Defendant therein (Philip Ihemeke Mba) remained Defendant (though plaintiff HUM/21/08).
After hearing the case and considering the evidence and addresses of Counsel, the learned trial judge held:
?Indeed, I agree with the submissions of the learned counsel to the claimants, that apart from traditional history, the title of the 1st claimant was sustained by acts of long possession in and over the land in dispute extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons in possession are the true owners. By his pleadings and evidence, the 1st Claimant claimed and proved possession, from the founder, Ewuzie, down to the 1st Claimant. See paragraphs 10 and 11 of PW1?s evidence-in-chief, and cross examination of DW1. The Defendant, under cross examination conceded that the 1st Claimant and his kinsmen from Ogbuewu lineage, have been in possession of the land now in dispute until 2007, and when the DW1 first challenged him. I agree with the submissions of the learned Counsel to the claimants that, given the ages of the parties and historical account of their
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forebears, it is obvious that possession has been with the 1st Claimant, his father and grandfather (and kinsmen) for at least, the past 200 years. It is my respectful holding, therefore, that this possession has been exclusive, positive and without any proven challenge by the Defendant and his forebears? It has been decided in a plethora of cases that a party claiming a declaration of title to a statutory or customary right of occupancy does not need to plead and prove any more than one of the five methods of proving title. Where the claimant pleads and/or relies on more than one method to prove his title, he merely does so ex-abundante cautela, as proof of one of the five different ways of establishing title to land is the minimum the law requires. Onwugbufor Vs Okoye (1996)1 NWLR (Part 424) 253; Balogun Vs Akanji (1988)1 NWLR (Pt.70)301; Nkado Vs Obiano (1997)5 NWLR (Pt.503)31 ?(pages 213 ? 214 of the Records of Appeal).
And on pages 217 – 218 of the Records, of the trial Court held:
?In the final analysis, the action of the 1st Claimant in Suit No.HUM/20/2008 ? HRH Eze Okechukwu Ogbuewu vs Philip Ihemeke Mba-
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succeeds. Accordingly I hereby grant the Claimant in the suit the following reliefs: –
a) A declaration is hereby made that the plaintiff/claimant is entitled to that vast piece or parcel of land known as and called ?Ala Obi Ogbuewu?, situate and being at Ndikpa Ogbuewu, Elugwu Eziama, Nneato in Ununneochi LGA of Abia State.
b) An order is hereby made restraining the defendant and his family members from further entry into the said ?Ala Obi Ogbuewu?
c) The defendant is hereby ordered to pay the 1st Claimant the sum of N100,000.00 (One Hundred Thousand Naira) as general damages for the economic trees he maliciously destroyed on the said ?Ala Obi Ogbuewu?
d) An order of forfeiture is hereby granted against the defendant over and in respect of the land where the defendant presently resides.
In addition to the foregoing, the defendant is hereby ordered to pay the 1st Claimant the sum of N20,000.00 as cost in respect of suit No.HUM/20/2008.
In respect of the other Suit, No.HUM/21/2008, it is my respectful view that the defendant failed to prove his case against the defendants.
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Consequently. The Suit No. HUM/21/2008; Philip Mba Vs HRH Eze Okechukwu Ogbuewu & Ors is hereby dismissed, with cost of N10,000.00 awarded in favour of all the claimants.?
That is the decision Appellant herein appealed against, as per the Amended Notice of Appeal, filed on 28/9/2015, with the leave of this Court, obtained on 21/9/2015. Appellant filed his brief of arguments on 12/11/2015. The Records of Appeal were regularized on 21/9/2015.
Appellant distilled four (4) issues for the determination of the appeal, namely:
1) Was the lower Court right to have delivered one judgment in the consolidated suits ? HUM/20/2008 and HUM/21/2008. (Ground 1)
2) Was the lower Court right to have rejected in evidence the written arbitration of the Umuogbuewu kindred of the parties and if the answer to the above is in the negative, did the rejection of the written arbitration not occasion a serious miscarriage of justice. (Grounds 2 and 3)
3) Is the Appellant a customary tenant of the 1st Respondent? (Grounds 4, 5 and 6).
4) Which of the parties led more credible evidence so as to be entitled to judgment. (Grounds 7 & 8).
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The Respondents filed their Brief on 6/7/2018 and it was deemed duly filed on 9/7/18. In it, the Respondents adopted the issues as distilled by Appellant, for the determination of the appeal. Appellant filed a Reply brief on 23/7/18.
Arguing the appeal on 9/4/19, Appellant?s Counsel. Uke Obeta, Esq., on issue one, said that the trial Court was totally wrong to have delivered one judgment in respect of the two suits (consolidated) which were filed separately and in respect of which pleadings in each of them was different.
He relied on the case of Sawuta & Anor. Vs Ngah (1998)13, NWLR (Pt.580)39 at 43 ? 44, where it was held:
?Although consolidated actions are tried and determined in the same proceedings, each action remains separate action and should be given its own judgment at the end of the common and joint trial. The Court cannot determine one suit and ignore the other. In the instant case, at the end of the joint trial, the trial Court ought to have made pronouncements in respect of each of the two suits to show that each case has its own separate and individual existence.?
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Counsel also relied on Okene Vs Orianwo (1998)9 NWLR (Pt.566) 408 at 420-
?Consolidation merely unites the cases for the purpose of trial. The suits retain their identities. They remain different suits for all intents and purposes, except only for the purpose of the trial. Accordingly, judgment is separately entered in each case and costs separately awarded in each case.?
Counsel said that since the suits retain their separate identities, the burden of proof rests on the claimant in each case. And each has to succeed on the strength of his own caseOkene Vs Orianwo (Supra); Akinola Vs Oluwo (1962) ANCR (Pt.1) 225. Counsel said the judge in this matter delivered only one judgment, erroneously, and dwelt on HUM/20/2008, extensively.
Counsel however admitted that Appellant?s statement or oath (paragraphs (a) to (g) in HUM/21/2008 was the evidence he (Appellant) gave as DW1 in the consolidated suits; but said that the evidence was never challenged during cross examination; that evidence which is unchallenged and uncontradicted must be acted upon.
He relied on IRIRI VS ERHURHOBARA (1991)2 NWLR (Pt.173) 252 at 262, and added that, if the
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trial Court had written 2 separate and distinct judgments, it would have definitely come to the conclusion that Appellant?s testimony was unchallenged and would have acted on it, accordingly.
On issue 2, Counsel said the trial Court was wrong to have rejected in evidence the written arbitration of the Umuogbuewu kindred of the parties and that the rejection occasioned a serious miscarriage of justice.
Counsel said DW1 had sought to tender the evidence of arbitration by Umuogbuewu kindred between the parties on the land in dispute, but the same was rejected by the trial Court based on the objection by the Respondent?s Counsel, who had said that only the translator of the document (written in Igbo language (foreign to the Court) and translate into English, can tender it, and that the English version of the report was not signed and so was useless, relying on the case of Asiniola vs Fatodu (2009)6 NWLR (Pt.1136).
Counsel said that upon raising of the objection to the tendering of the arbitration report, plaintiff did apply to withdraw the said documents, but the trial Court refused the application to withdraw same, as defence counsel
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had opposed the application to withdraw the documents. Counsel said that the trial Court was wrong to refuse the withdrawal of the documents, saying that the plaintiff was playing hide and seek game with the documents. He relied on the case of Oguntoye Vs Adelaja (2019)15 NWLR (Pt.1163)150 at 186. Counsel argued that a party seeking to tender a document as exhibit is at liberty to withdraw the document, provided issues have not been joined in respect of the objection.
He relied on the case of Asiniola Vs Fatodu (2009)6 NWLR (Pt.1136)184 at 188 (supra) where it was held:
?Where a party tenders a document in evidence and an objection is raised to the admissibility, and he does not join issues with his adversary, but withdraws the document, the Court will be in error, if it refuses to allow the party to withdraw the said document which he had sought to tender. This is so because a refusal by the Court to allow a party to withdraw the document in such circumstance will foreclose another opportunity of tendering the document at a more auspicious moment when the admissibility requirements have been consummated. It would only be necessary to reject the
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request to withdraw the document, if the party seeking to tender it had argued that it was receivable in evidence, that is, had replied to the argument on its admissibility?.
Counsel said in the present case, immediately the 1st Respondent?s Counsel raised an objection to the admissibility of the documents, the Appellant?s Counsel did not join issue with the objection, but sought to withdraw the documents. Thus, the trial Court was in error to refuse the withdrawal of the documents, saying a party is not expected to play hide and seek game only to try his luck over the admissibility of documents! And after refusing to allow the withdrawal of the documents, the trial Court ordered that they be marked ?Rejected?, and even ruled on the merit of the documents, saying the document translated into English language ? official language of the Court, was not signed! He (Counsel) relied on the case of Isitor Vs Fakarode (2008)1 NWLR (Pt.1069) 602 at 629, and Ojengbede Vs Esan (2001)18 NWLR (Pt.746)771 to the effect that a document written in a language which is foreign to the Court can be interpreted, even by the Court registrar,
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for the acceptance of the Court and it is not expected to be signed as the original copy from which it is translated. He relied again on Asiniola Vs Fatodu (Supra).
Counsel said that the rejection of the documents occasioned a serious miscarriage of justice; that by section 16 of the Court of Appeal Act, this Court is in a good position, as the trial Court, to evaluate any documentary evidence, which the lower Court had the opportunity to evaluate, and to draw proper inference from the document. He relied on Nwabuokei Vs Iwenjiwe (1978)2 SC 61 at 69; Onibudo Vs Akibu (1982)7 SC 60 at 90 S.S. GMBH Vs T.D. IND. LTD (2010)11 NWLR (Pt.1206)589 at 596. Counsel drew our attention to the contents of the documents, which were rejected, being arbitration decision, dated 28/2/07.
Counsel also referred us to the evidence of Appellant?s witnesses, DW1, DW2 and DW3 in HUM/21/2008 on the said customary arbitration, as per their statements on oath and cross examinations, which he said the Respondents did not challenge and so deemed admitted. He argued that even the denial of the 1st Respondent of the arbitration, exposed the falsity of his position/assertion,
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when viewed in the light of the evidence by other witnesses. He founded on the evidence of PW2 (on the point ? on page 132 of the Records), PW5 (on page 157 of the Records), who all affirmed the arbitration and the decision of same.
Counsel also relied on Kodilinye Vs Odu (1935) WACA 336; Mogaji Vs Odofin (1978) 4SC 91 on the law that a plaintiff, in a declaratory action, has the burden of proof, and to establish his case on the strength of his case, though he can take advantage of evidence admission by defendant that support his (plaintiff?s) case. Akinola Vs Oluwo (1962) ANLR 225 at 226. Counsel said that Appellant was entitled to take the benefit of the evidence/admission by PWS1 and 5 (Respondent?s witnesses) about the fact of the arbitration and the decision of it. He relied on the cases of Okereke Vs Nwankwo (2003)9 NWLR (Pt.826)5921 at 590 and Oparaji Vs Ohanu (1999)9 NWLR (Pt.618) 290 at 293, on the effect of customary arbitration by Umuogbewu kindred of the parties ? that the decision was binding on parties, who submitted to it.
?He stressed that the arbitration by Umuogbuewu kindred to which the parties belong, had
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decided that the parcels of land claimed by the Appellant were granted by the Appellant?s forbear to the Respondent?s grandfather, which parcels of land the Respondents later vacated; and that under Nneato law and custom, if a grantee of a parcel of land vacates the land, the same reverts to the grantor and/or his successors ?in-title. Counsel urged us to give effect to the said customary arbitration.
On issue 3, whether Appellant was customary tenant of the 1st Respondent, Appellant answered in the negative. Counsel said the 1st Respondent had maintained in his evidence that Appellant was customary tenant of the Respondent; that Appellant?s grandfather, Okoroafor, was settler from Ihitte, now in Orumba South Local Government Area of Anambra State; but Appellant had maintained that he was a descendant of Ogbuewu, the common ancestor of the parties, Counsel said that the evidence of Appellant that he was not a customary tenant of 1st Respondent, and was/is a descendant of Ogbouewu, was corroborated by all the witnesses for the Appellant, (who are all descendants of Ogbuewu and members of Umuogbuewu kindred).
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Counsel said the trial Court was therefore wrong to hold that Appellant was 1st Respondent?s customary tenant; he said that the trial Court failed to properly evaluate the evidence by the Respondents in respect of whether the Appellant?s grandfather migrated from Ihitte and/or was a customary tenant of the 1st Respondent; that if the trial Court had evaluated the evidence, properly, it would have discovered that the evidence of the Respondent?s witnesses on the issue conflicted with Respondents assertion and that the evidence rather supported the case of Appellant. He relied on Sections 131 and 132 of the Evidence Act 2011, to the effect that a party who asserts has the burden of proving his assertion.
?Counsel, again, referred us to the evidence of PW2 and PW3 (Mrs. Martina Chiuzo Ukoh and Mose Onu) on pages 134 and 141 of the Records of Appeal, respectively, who testified for 1st Respondents and denied knowing Okoroafor Ndula, the alleged grandfather of the defendants, PW2 said she only heard at the arbitration that the said Okoroafor Ndula (alleged grandfather of Defendant) migrated from Ihitte. Counsel also relied on the evidence of PW5 (Chief Peter
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Chukwu) who said he had never heard that the grandfather of the Defendant ?migrate from Ihitte in the present Orumba of Anambra State, until that day of arbitration, and he cautioned them (Respondents) to stop raising that history?.
See page 159 of the Records of Appeal, where the following ensued:
Q: Did you know Okoroafor Ndula mentioned in paragraph 5 of Exhibit ?A? in his lifetime.
A: No my lord
Q: Did you know the biological father of Philip Mba late Mba Okoroafor in his life time?
A: Yes, my lord
Q/Put: The grandfather of Philip Mba, the defendant was one Okoroafor Ezehidoro?
A: I have never heard that his grandfather was called Okoroafor Ezehidoro
Q/Put: The defendant?s grandfather was neither a native nor migrant from Ihitte in Orumba South of Anambra State.
A: I had never heard that the defendant?s grandfather migrated from Ihite in the present Orumba of Anambra State until that day of arbitration and I cautioned them to stop raising that history.
Q: Apart from this very dispute between the disputants, has there been any other case
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settled by Umuezewuzie Peace Committee?
A: I attended this very one I was invited to participate
Q: Who invited you to this Umuezewuzie Arbitration?
A: The 1st Claimant invited me
Counsel said that the above evidence totally knocked off the bottom of the Respondent?s spurious and porous allegation that Appellant?s grandfather migrated from Ihitte in the present Orumba South L.G.A of Anambra State;and that evidence was an admission against the interest of the Respondent, and in favour of Appellant.
He relied on Awote Vs Owodunni (No.2) (1987)3 NWLR (Pt.57)367; Atanze Vs Attah (1999)3 NWLR (Pt.596) 647.
Counsel argued that apart from the above evidence of PW5 being an admission against the interest of the Respondents, the evidence also contradicts the entire case of the Respondent, vis a vis, the status of the Appellant. He said that the Position of the law is that contradiction in the evidence of a party is disastrous to the case of the party. He relied on Audu Vs Guta (2004)4 (NWLR 864) 463.
?Counsel further submitted that PW3, PW4 and PW5, all testified that the respondent?s
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forebear granted to their (witnesses) predecessors-in-title, the respective parcels of land where they live and admitted that their kindred (Obu) was different from the Ogbuewu kindred (Obu) of the Appellant and the Respondents; Counsel added that the said PW3 to PW5, equally added that they pay customary tributes to the Respondent?s family. He relied on the case of Kano Vs Maikaji (2011)17 NWLR (Pt.1275) 139 at 183 to say that there was no pleading nor proof that Appellant?s forebears ever paid any customary tribute to Respondent?s forebears ever since the alleged grant of customary tenancy. He said that payment of tribute to overlord by customary tenant is proof of customary tenancy. Thus, Counsel said, the findings of the trial Court that Appellant was a customary tenant of the 1st Respondent was perverse. He relied on Ogunbiyi Vs Adewunmi (1988)5 NWLR (Pt.93) 220; Abisi Vs Ekwealor (1993)6 NWLR (Pt.302) 643; Nor Vs TARKAA (1998)4 NWLR (Pt.544) 130.
?On issue 4 – which of the parties led more credible evidence so as to be entitled to judgment, Counsel said it was the Appellant. He referred us to the submissions he earlier made on issue
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3 and adopted the same to this issue. Counsel noted that none of the other Respondents ? Ezekiel Ogbuewu, Raymond Ogbuewu and Onwuakpaoke, Ogbuewu, sued with 1st Respondent in HUM/21/2008, offered any evidence in their defence in the suit or in support of the claims of the 1st Respondent!
He argued that a party is bound to call vital witness ? Amusa Vs State (1986)3 NWLR 536 at 537; Archibong Vs State (2004)1 NWLR (Pt.855) 488; Counsel said other member of Ogbuewu kindred/family should have been called by Respondent as witnesses, apart from PW5, who gave conflicting evidence that contradicted the case of Appellant. He added that PW3 even and PW4 were not credible witnesses; that they did not know the grandfather of the Appellant and PW3 said he did not know the land in dispute, very well; he said that PW1, PW2 and PW4 contradicted themselves in some materials particulars in respect of the case. He relied on Onuoha Vs State (1989)2 NWLR (Pt.101) 23 at 34 on what to do with evidence of witnesses who are not credible. He added that the Respondent did not prove the boundaries in HUM/20/2008 and so could not have succeeded. He relied on
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Ekpemupolo Vs Edremoda (2009) All FWLR (Pt.473) 1220; Ukaegbu Vs Nwololo (2009) All FWLR (Pt.466) 1852.
Counsel said the 1st Respondent failed to establish the identity of the land; that whereas, from the pleading and evidence, he relied on traditional history and long possession to establish his claim of title, the law is that where one fails to establish his claim by traditional history upon which he predicates his claim, he cannot rely on evidence of long possession. He relied on Ukaegbu Vs Nwololo (supra).
He urged us to resolve the issues for Appellant and allow the appeal.
Responding, Dr. Innocent Okoronye, Counsel for the Respondents, on issue one, said that the judgment delivered by the trial Court had pronounced on the two suits consolidated, and so it is wrong for Appellant to say that the trial Court delivered one judgment and did not deliver judgment in respect of HUM/21/2008.
He argued that a good judgment is one that identified the issues for determination, evaluated the evidence adduced, made clear findings of facts and arrived at a definite conclusion (Ohakim Vs COP Imo State (2009)13 NWLR (Pt.1164) 229; Uzuda Vs Ebigah (2009)15
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NWLR (Pt. 1163) 1. He added that in a consolidated action, the requirement that the judge should write judgment on the consolidated cases, does not mean there should be two completely different judgments signed differently by the judge, but that the respective cases of the parties should be considered and separate pronouncements made in respect of the merit or otherwise of the separate suits. He relied on the case of Sawuta & Anor. Vs Ngah (1998) 13 NWLR (Pt.580)39.
Counsel said the trial Court had complied with the law, because after evaluating the respective cases of both parties, the trial Court entered judgment in favour of the plaintiff in Suit No.HUM/20/2008, and also pronounced on HUM/21/2008, which it said failed, and dismissed it. He referred us to page 218 of the Records of Appeal and to the case of Nkuma v. Odili (2006)137 LRCN 1301, where it was held:
?Whilst it is correct that in a consolidated matter, a Court must come to a separate decision on the issue agitated in each of the cases, it must be borne in mind that what is required is that the trial judge adverted his mind to all the issues arising from the consolidated
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suit. The manner in which a Judge does this very often depends on the nature of the consolidated cases.? Per Oguntade J.S.C.
Counsel said that the trial Court did not confuse the situation, when, after the consolidation of the two cases, stated in its judgment, thus: ?In the final analysis, the action of the 1st Claimant in Suit No.HUM/20/2008: HRH EZE Okechukwu Ogbuewu Vs Philip Ihemeke Mba succeeds That though the said HRH Eze Okechukwu Ogbuewu was the only claimant in the suit and the others ? Ezekiel Ogbuewu, Raymond Ogbuewu and Onwuakpoke Ogbuewu, were defendants in HUM/21/2008, and not part of HUM/20/2008, (when the suits were consolidated the other defendants in HUM/21/2008 because Claimants with HRH Eze Okechukwu Ogbuewu in HUM/20/2008), that there was no confusion as it was clear that only the 1st Claimant (Eze Okechukwu Ogbuewu) who was seeking relief in the Court in HUM/20/2008, that was given judgment, as shown in the above ruling of the trial Court! He urged us to resolve the issue against Appellant.
?On issue 2, Counsel said the trial Court was right in refusing to admit the written arbitration report
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of Umuogbuewu, kindred of the parties; he said that the said written report was written in Igbo Language, which is not the official language of the Court; and that the English translation of the same was not signed; and that the DW1, who tendered the document, was not the maker nor translator of it, that the requirements stated in Asiniola Vs Fatodu (2009)6 NWLR (Pt.1136) 184 were not complied with. Regarding the refusal of the Court for Appellant to withdraw the documents (Arbitration reports), Counsel referred us to the case of Oguntayo Vs Adelaja (2009)15 NWLR (Pt.1163)150 at 186 where Niki Tobi JSC (of blessed memory) said:
?In my view, the moment a document is tendered and its admissibility is opposed document should satisfy the Court why the document should be admitted. If the party fails to satisfy the Court, the document can be rejected. This is what learned trial judge did and I cannot fault him. In litigation parties are required to place their case honestly, frankly and openly before the Court. Parties are not expected to involve themselves in tricks or artifice to outsmart the opponent. The well settled principle of equity will not
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allow that. Litigation is not a forum for playing games
Counsel also argued that it was wrong for Appellant to say that the translated copy of the Report needed not to be signed to be admissible; that that argument was curious, considering the holdings of Courts on importance of signing a document. He relied on O.B. NIG. PLC Vs OBC LTD (2005)123 LRCN 34, to the effect that:
?A document which is not signed does not have any efficacy in law. As held in the case examined, that document is worthless and a worthless document cannot be efficacious.? See also Ojo Vs Adejobi (1978)11 NSCC 161.
Counsel said that the translated document sought to be admitted carried two names Mr. Emeka Okonta (Secretary) and Chief S. Ogbuewu (Chairman), and did not sign it. He wondered whether the two of them were joint translators. He added that the two persons were those who signed the original version (Igbo Version) and wondered too whether they were both literate in Igbo and English languages!
?Counsel added that assuming (but not conceding) that the trial Court was wrong to refuse the withdrawal of the documents, when it was
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opposed, that the error did not occasion miscarriage of justice; that the document sought to be tendered was a mere arbitration made in 2007, which the 1st Respondent did not accept, and the children of Appellant did not also accept the decision, as can be seen on the document itself. So it was an arbitration that was not accepted by both sides. He added that it is not every error or mistake of a trial Court that will result in a appeal being allowed; that the error must have occasioned a miscarriage of Justice ? Uzondu Vs UBN Plc (2009)5 NWLR (Pt.1133)1.
On issue 3, whether Appellant was a customary tenant of 1st Respondent, Counsel answered in the affirmative and said that 1st Respondent had stated how Okoroafor Ndulu migrate from Amorie Ihitte and was received by Ogbuewu, and was running errands for Ogbuewu and helping in farm work, and Ogbuewu gave him an area within Ala Obi Ogbuewu and he settled there; he said that that evidence was corroborated by the PW2 (Mrs. Martina Chiuzo Ukoh), the only child of Ogbuewu, then living. He said that PW2?S evidence cannot be regarded as hear-say, because in historical or traditional evidence, the rule
25
of hear-say does not apply. He relied on Alade vs Awo (1975) 4 SC 215.
Counsel said the evidence of PW3 did not contradict the position of Respondent and that PW5?s evidence did not knock off the bottom of the Respondent?s case. He argued that payment of tribute is not required in every situation to establish customary tenancy; that it was enough that Okoroafor Ndula did errands for Ogbuewu. He relied on the case of Bassey Vs Bassey (supra); Mallam Ali Kano Vs Nuhu Maikaji (2011)17 NWLR (Pt.1275)139.
On issue 4, as to which of the parties led more credible evidence to be entitled to judgment, Counsel said the Respondent did, and relied on paragraphs 4,5,6,7 and 8 of his amended statement of claim, and paragraphs 5 to 9 of his written deposition on oath; he said that Respondent relied on evidence of traditional history to prove his title to the land. He relied on Oyadare Vs Keji (2005) 123 LRCN 17; and said that apart from the traditional history, the Respondent?s title can also be sustained by acts of long possession in and over the land in dispute, extending over a sufficient length of time, numerous and positive enough as to
26
warrant the inference that the person in possession is the true owner.
Counsel said within ?Ala Obi Ogbuewu? claimed by 1st Respondent is an area where Ogbuewu lived and died, verged green in the 1st Respondents survey plan; that there was unchallenged evidence Ogbuewu lived there and die there. After Ogbuewu, his son Ezehidoro took over and started faming there and reaping the economic trees; that under cross examination on pages 172 ? 173, Appellant admitted this history and stated that it was only in 2007 that he first challenged the 1st Respondent; he said that Appellant also admitted that where he lived now was where Ogbuewu granted his grandfather Okoroafor and from Okoroafor to Mba (Appellant?s father) and finally to Appellant; that Appellant further admitted selling some portion of the land Ogbuewu gave to his grandfather (which passed down to him). He said that what is admitted required no further proof. Henshaw vs Effanga (2009)11 NWLR (Pt.1151)65; Olagunju Vs Adesoye (2009)9 NWLR (Pt.1146) 225; Onwugbufor Vs Okoye (1996)1 NWLR (Pt.424)253.
?Counsel also said that Appellant?s traditional evidence was
27
self-conflicting. He urged us to resolve the issues for him and against Appellant and to dismiss the appeal.
In his Reply brief, Appellant tried to differentiate, ?separate pronouncement? from ?separate conclusions? by a judge in a consolidated suits, to drive home the point that a judge must deliver separate judgments in a consolidated suits, in respect of each of the suits consolidated. He relied again, on Sawuta & Anor. Vs Ngah (1998)13 NWLR (Pt.580)39.
Counsel acknowledged the right of individual judge to adopt his own style of writing judgment, but said that deciding a consolidated case is not a matter of style of writing of a particular judge, as the judgment must take into consideration the nature of the consolidated cases and ensure proper evaluation of evidence led in the cases. He relied on Oreitan Ishola Ameyogun Vs Alhaji Oladoja Sanusi SC/288/1989, delivered on 30/4/92. He re-stated that consolidated cases merely unite actions for the purpose of trial, but the actions retain their respective identities as separate actions and so judgment must be entered in each, separately.Abana Vs Obi (2004)10 NWLR
28
(Pt.881)319 CA; Bon. Ltd Vs Saleh (1999)9 NWLR (Pt.618) 331 at 350.
Counsel made further arguments in the Reply Brief, which I think, amounted to rehash or further argument of the Appellant?s Brief, which is not what a Reply Brief, is meant to do.
RESOLUTION OF THE ISSUES
I shall consider this appeal on the 4 issues donated by the Appellant, which were adopted by the Respondent. But in doing so, I shall take the issues 1 and 2, separately, and issues 3 and 4, together, as they relate to the evaluation of the evidence to reach the conclusion made by the trial Court.
?A brief facts of the case at the lower Court shows that both sides to the consolidated suits, actually fought over the same piece or parcel of land, though they called it by different names. While the Respondent (as claimant in HUM/20/2008) called the land ?Ala Obi Ogbuewu? deforested by Ogbuewu, the Appellant (as plaintiff in HUM/21/2008) called the land ?Ugwu-Obi?. There is also evidence, by the 1st Respondent who claimed that Appellant?s grandfather, whom 1st Respondent called Okoroafor Ndula, was a migrant; that the same was accepted and
29
settled by Respondent?s grandfather, Ogbuewu in the area of the land in dispute, many generations back. Appellant however led a rival claim and evidence to the effect that he too was of the same family with Respondents; that the land in dispute, specifically called Okpulo Land was part of ?Ugwu-Obu? land; that the entire Ugwu-obu land was deforested by Ogbuewu, who begat 4 Sons one of whom was Ezehidoro; that Ezehidoro begat two Sons Okoroafor Ezehidoro and Ogbuewu Ezehidoro; the said two Sons shared their father?s property; that Ogbuewu Ezehidoro later became a warrant Chief, with a lot of Servants and wives. He thereafter pleaded with his brother (Okoroafor Ezehidoro) to grant to him (Ogbuewu) part of the land he inherited, at ?Ugwu-obu? to enable him (Ogbuewu) accommodate his numerous wives and Servants. Okoroafor Ezehidoro obliged Ogbuewu Ezehidoro and granted him the ?Okpulo? land (part of the ?Ugwu-obu? he inherited from their common ancestor).
?There was evidence that in 2007, the parties submitted to customary arbitration over the said land (Okpulor) in dispute. The arbitration was
30
presided over by their kinsmen (the Umuogbuewu kindred) and at the Arbitration, the Appellant said he and his family were adjudged to be the owners of the dispute land.
The said Arbitration Report which was written in Igbo Language and translated into English was what Appellant sought to tender as exhibit in this case, but the trial Court refused and marked rejected.
The treatment given by the trial Court to the said documents (arbitration report in Igbo and translated into English) forms the basis of the issue 2 of this appeal. Was the Trial Court right to refuse the application by Appellant (as defendants) to withdraw the said Arbitration report, which it rather marked ?Rejected
Appellant had given evidence (as DW1) at the trial on 31/10/2011. He had stated in his statement on oath (pages 163 to 167 of the Records) that an Arbitration sat between him and the 1st Respondent over the disputed and presented by Umuogbuewu kindred, to which they belonged; that the arbitration had in 2007 given him judgment in respect of the land in dispute; that the verdict was written in Igbo language and translated English language.
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His application to tender the said documents, as exhibit, was opposed by Counsel for 1st Respondent, on the grounds that DW1 was not the maker of the documents (the Igbo version and the English version); that Igbo Language was foreign to the Court, English being official language of the Court, and that the translated English version was not signed by the makers/translators, and so was a useless document, relying on the case of Asiniola Vs Fatodu (2009)6 NWLR (Pt.1136). Appellant?s Counsel did not join issues with the 1st Respondent?s Counsel, and rather applied to withdraw the documents. But the opponent objected to the withdrawal (See pages 168-269 of the Records of Appeal).
In its ruling to the application to withdraw the documents, the trial Court said:
?Ruling is this day delivered in the open Court regarding admissibility or otherwise and withdrawal of two documents after they had been tendered. The Ruling is that both documents cannot be withdrawn and Court hereby orders that they be marked TENDERED AND REJECTED.? (Page 171 of the Records).
?I think that was a grave error and injustice by the learned trial Court,
32
especially as the trial Court gave reasons for rejecting the documents which had been withdrawn! The law is trite, that where a party applies to tender a document and the same is opposed, and the party seeking to tender the document applies to withdraw the same, thereby not joining issues with the opposition, the application to withdraw the document ought to be granted, to forestall denying the applicant fair hearing. See the case of Asiniola Vs Fatodu (2009)6 NWLR (Pt.1136)184 at 188 where it was held:
?Where a party tenders a document in evidence and an objection is raised to the admissibility, and he does not join issues with his adversary, but withdraws the document, the Court will be in error, if it refuses to allow the party to withdraw the said document which he had sought to tender. This is so because a refusal by the Court to allow a party to withdraw the document in such circumstance will foreclose another opportunity of tendering the document at a more auspicious moment when the admissibility requirements have been consummated. It would only be necessary to reject the request to withdraw the document if the party seeking to tender it had
33
argued that it was receivable in evidence, that is, had replied to the argument on its admissibility?.
The trial Court, in my opinion, jumped the gun, when it considered and rejected the documents, whereas it had been withdrawn. Of course, it is commonsensical to refrain from considering admissibility or rejection of a document on its merit, where there is a pending application to withdraw the said document by the person who tendered it, having declined to join issues with the objection/opposition to admit the document. Thus, the Court cannot, in the circumstance, proceed to consider the merit/demerit of the document, and to order its rejection, and being so marked, as that would be prejudging the document, and denying the Applicant the opportunity to tender and use the said document, at appropriate time/circumstance. It can result in a technical knockout of the entire case of the claimant by the inadvertence and/over bearing posture of the Court. See Ogoejiofor Vs Ogoejiofo & Ors (2018) LPELR- 43850 CA and FRN Vs Acho & Anor. (2017) 42660 CA, where it was held:
?I think the learned trial Judge was in error, when she hurriedly
34
rejected a document which the Appellant had sought to put in evidence but sought to withdraw it before the Court delivered its ruling. It means that, at the time the trial judge ruled rejecting the document, the same was no longer available for the order. This is because upon the application to withdraw the document, the same ceased to be available for admission or rejection. Oguntayo Vs Adelaja (2009) All FWLR (Pt.485) 1626; (2009) LPELR ? 2353 (SC).
?I should also state that where a document is written and produced in the language other than the official language of the Court (English) the same cannot be discarded, except where it is not possible to get an interpreter/translator of the document into the language of the Court, and the person seeking to benefit from the translation of the document has a duty to produce a witness/interpreter thereof or the Court registrar/official interpreter of the Court cannot render/satisfy such services, in the interest of justice. And in such circumstances, I do not see the need to insist that such interpretation be signed by the interpreter, if it is done in the face of the Court, during the trial or tendering
35
of the document. (See the case of Ojengbede vs Esan (2001)18 NWLR (Pt.746)771 at 776 (cited by Appellant):
?The official language of superior Courts of record in Nigeria is English. Therefore, if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.?
See also Asiniola Vs Fatodu (supra):
?The translation of a document, from another language to English language, must be done either by a competent witness called by the party to the proceedings who needs to prove his case or by the official interpreter of the Court
I therefore resolve the issue 2 for Appellant that the trial Court was wrong to refuse the application for the withdrawal of the documents, and to reject the same at the stage they were not yet before the Court for such consideration.
Did the trial Court deliver one judgment in the consolidated suit? Put differently, was the judgment of the trial Court only in
36
respect of HUM/20/2008 as argued by Appellant and leaving out the case in HUM/21/2008? That is the issue one by the Appellant.
As rightly argued by the parties, as per the case of Okene Vs Orianwo (1998)9 NWLR (Pt.566)408 at 420
?Consolidation merely unites the case for the purpose of the trial. The suits retain their identities. They remain different suits for all intents and purposes, except only for the purpose of the trial. Accordingly, judgment is separately entered in each case and costs separately awarded in each case.?
See also Sawuta & Anor. Vs Ngah (1998)13 NWLR (Pt.580)39 at 43 ? 44:
?Although consolidated action are tried and determined in the same proceeding, each action remains a separate action and should be given its own judgment at the end of the common and joint trial. The trial Court cannot determine one suit and ignore the other. In the instant case, at the end of the joint trial, the trial Court ought to have made pronouncements in respect of each of the two suits to show that each case has its own separate and individual existence.?
?I think, it should be emphasized that the
37
requirement to write separate judgments to reflect the distinct cases that were tried together in a consolidated suits, does not, in my opinion, suggest that the trial judge has to set out, formally, to write two or more judgments (depending on the number of suits consolidated), with separate headings, and conclude them, separately, with separate signatures. It may not require review of the same evidence, separately, in a repetitive fashion and consideration of the issues (if the same and common to each) separately, etc. I think the correct perspective was captured in the case of Nkuma Vs Odili & Ors (2006) LPELR ? 2047 SC; (2006)137 LRCN 13011, where the Supreme Court held:
?Whilst it is correct that in a consolidated matter a Court must come to separate decision on the issues agitated in each of the cases, it must be borne in mind that what is required is that the judgment of the Court must show that the trial judge adverted his mind to all the issues arising from the consolidated suit. The manner in which a judge does this very often depends on the nature of the consolidated cases. Per Oguntade JSC.
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In Eye Vs FRN (2018) LPELR ? 43599 SC, it was held:
?To get to the decision to order consolidation, the Court gets to that position satisfied that there are common questions of law and facts arising in both or all the causes or matters or even the rights to reliefs which are claimed in respect of or arise out of the same transactions or for some other reasons in which it makes it desirable to make an order under the rules of Court. Therefore consolidated, so to speak of suits or applications is generally made for expediency and convenience such that those suits or applications having same common characteristics of law or facts or stemming from a common transaction, may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and Costs. To embark on consolidation of suits or applications, the Court doing so has a bounden duty which it must discharge and that is, that each of the suits or applications must be resolved in their individual, or distinct identity in that common trial. In other words, consolidation does not take away the separate identity of a particular suit or application within that grouping. Also evidence accepted in
39
one suit or application is not evidence in any of the others. This scenario that Court must bear in mind and in the sight throughout, from the beginning of the consolidation till the conclusion at the judgment stage or ruling point… Dugbo Vs Kporoaro (1958) SCNLR 180; Diab Nasr Vs Complete Home Enterprises (Nig) Ltd (1977)5 SC 1; ILoabuchi Vs Ebigbo (2000) 8 NWLR (Pt.668) 197.? Per Peter ? Odili JSC.
Of course, because there must be some common characteristics of law and facts and some facts stemming from a common transaction, warranting the different suits to be consolidated and heard/determined at the same time or together, it means the judgments to be delivered in the consolidated suit will dove-tail, and relate and that facts/evidence used to found a given case may also apply to sustain the other (or another) suits in the bunch. Thus, what is actually required, in my view is the need to pronounce on each of the suits in the consolidated bunch and spell out the reliefs/remedies proved or not proved, applicable to each suit.
Going by the above, it appears to me that Appellant is not correct to say that the trial Court delivered only one
40
judgment, in respect of the two suits; that it dwelt extensively on suit No/HUM/20/2008, and did not consider the fulcrum of the Appellant?s claim in the suit No.HUM/21/2008. The trial Court had pronounced on the two suits, consolidated, separately, when it held on pages 217 ? 218 as follows:
?In the final analysis, the action of the 1st Claimant in Suit No.HUM/20.2008: HRH EZE Okechukwu Ogbuewu vs Philip Mba, succeeds. Accordingly, I hereby grant in the suit as follows: –
a) A declaration is hereby made that the plaintiff/claimant is entitled to that vast piece or parcel of land known as and called ?Ala Obi Ogbuewu?, situate and being at Ndikpa Ogbuewu, Elugwu Eziama, Nneato in Ununneochi LGA of Abia State.
b) An order is hereby made restraining the defendant and his family members from further entry into the said ?Ala Obi Ogbuewu?
c) The defendant is hereby ordered to pay the 1st Claimant the sum of N100,000.00 (One Hundred Thousand Naira) as general damages for the economic trees he maliciously destroyed on the said ?Ala Obi Ogbuewu?
d) An order of forfeiture is hereby
41
granted against the defendant over and in respect of the land where the defendant presently resides.
In addition to the foregoing, the defendant is hereby ordered to pay the 1st Claimant the sum of N20,000.00 as cost in respect of Suit No.HUM/20/2008
In respect of the other suit, Suit No.HUM/21/2008, it is my respectful view that the defendant failed to prove his case against the defendants. Consequently Suit No.HUM/21/2008: Philip Mba Vs HRH Eze Okechukwu Ogbuewu & 3 Ors is hereby DISMISSED with cost of N10,000.00 awarded in favour of all the claimants.?
The above, in my opinion, agrees with the decision in Sawuta & Anor. Vs Ngah (1998)13 NWLR (Pt.580)37 at 43 ? 44, where it was said:
?In the instant case, at the end of the joint trial, the trial Court ought to have made pronouncements in respect of each of the two suits to show that each case has its own separate and individual existence.?
I, therefore, hold that the component parts of the consolidated suits were pronounced upon by the trial Court, though the way it evaluated the evidence adduced may not be satisfactory. I resolve that issue 1
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against the Appellant.
The issues 3 and 4, are taken together, Issues 3 and 4 were: Whether the Appellant was a Customary tenant of the 1st Respondent, and:
Which of the parties led more credible evidence so as to be entitled to judgment.
There was evidence that the grand parents of the parties enjoyed a chummy relationship. Appellant even claims they are relations (and I do not doubt him) with a common great grandfather ? Ezehidoro, who had two Sons, Okoroafor and Ogbuewu, the grandfathers of Appellant and 1st Respondent, respectively. 1st Respondent, of course, disowned the Appellant and denied his claim of blood relationship. But he, 1st Respondent and his witness accepts some relationship between Appellants grandfather, grandfather Okoroafor; that his grandfather, Ogbuewu received and settled Okoroafor, when he (Okoroafor) migrated from Amorie Ihitte, now in Anambra State to Ndikpa Umuezewuzie, Eziama Nneato in Umuneochi L.G.A of Anambra State. 1st Respondent said Ogbuewu gave Okoroafor an area within Ala Obi Ogbuewu and he settled there; that Okoroafor was running errands for Ogbuewu and helping Ogbuewu in farm work. PW2 (1st
43
Respondent?s Aunt) corroborated the evidence of Respondent. But I think they only conspired to falsify history.
On page 133 of the Records of Appeal, the PW2 said (under cross examination):
?It was Ogbuewu Ezehidoro my father that really gave that land to Okoroafor the grandfather of the defendant. Mba the father of the defendant in-herited that portion from his father Okoroafor? Offsprings of Okoroafor have right to sell any piece of land from that portion earlier granted to them absolutely by my father? It was my father that brought Okoroafor to our place from Amorie Ihitte. The defendant?s lineage members are indeed strangers in my maiden home.?
The 1st Respondent, therefore, claimed that Appellant was his (Respondent?s) customary tenant, and so sought declaration and forfeiture of the land where Appellant resides with his family. He did not however, prove any payment of tributes on the land by the Defendant?s (Appellant) forebears, but insisted that Okoroafor, the grandfather of Appellant ran errands for Ogbuewu (Respondent?s father) and helped him in his farm work!
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It is sad to note how history could be falsified and blood ties/relationships denied, because of struggle to retain land, which the Appellant resides on and has had right/power to even sell, absolutely, according to PW2!
I think the crucial question would be, even if the account of the 1st Respondent were to be believed that Appellant was not a blood relation of 1st Respondent, and that the grandfather of Appellant was received and settled on the land by the grandfather of 1st Respondent, Ogbuewu, whether Appellant was therefore customary tenant of 1st Respondent, and so, was entitled to the reliefs sought, including forfeiture of the land?
The trial Court had resolved the issues in favour of the 1st Respondent, when it held on page 207 of the Records:
?The 1st Claimant traced his family history from Ezewuzie (who first deforested the land by clearing and farming thereon) to Ogbuewu, then to Ezehidoro and finally to the 1st Claimant, who is undisputedly the son and present head of Ogbuewu family?)
On page 209 ? 210, the trial judge further said:
?The traditional history of Umuezewuzie kindred and in
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particular Ogbuewu family as pleaded and averred by the 1st Claimant was ably supported by his witnesses PW2, Mrs. Martina Chiuzo Uko (nee Ogbuewu), the eldest and surviving daughter of Ogbuewu aged 80 years; PW3, Mr. Moses Olua Onu (whose family undisputedly migrated from Obu-Iheazo); PW4 Mr. Cosmos Obi (whose family undisputedly migrated from Obu-Elu) and PW5, Chief Peter Chukwu aged 80 years (whose family undisputedly migrated from Obu-Abba). The puerile challenge the defendant made in respect of the history of Umuezewuzie was when in the second limb to paragraph 6 of his statement of defence, he pleaded that Ezehidoro had two Sons, namely Okoroafor Ezehidoro (which he later called Okoroafor) and Ogbuewu Ezehidoro (which he later called ?The 2nd Ogbuewu?)
But under cross examination on 29/11/2011 the defendant admitted that this land he calls Ugwu-obu land, is the same land the Claimants call ?Okpulo?. He also admitted that ?Okpulo? (or Ugwu-obu) is where Ogbuewu the grandfather of the 1st claimant lived and died and was buried thereat. The Defendant as DW1 on 13/2/2013 under cross examination, admitted that the word
46
?Okpulo? means a place or home stead where someone lived and died and that in this case ?Okpulo? was referable to that of Ogbuewu.
That interpretation, in my respective view, is correct? In conformity with his pleadings, the defendant admitted that when Ogbuewu died he was succeeded by Ezehidoro, his son who lived in this ‘Ok?ulo’ land. The defendant admitted that in his life. The defendant admitted that in his life-time, Ezehidoro was reaping all the economic trees in this Okpulo land. Very importantly, on that 13/2/2012, under cross examination, the defendant admitted that after the death of Ezehidoro, his 1st son, the 1st claimant, succeeded him and that the 1st Claimant was enjoying all the economic trees on this ?Okpulo? land when he, the defendant challenged him (for the 1st time) in 2007, the cause of action.?
In substance, the Appellant had largely, admitted the traditional history by the 1st Respondent, as stated (above) by the trial Court, as the same agreed with his (Appellant) claims that they are of the same family, with respect to the right of the 1st Respondent over the vast
47
piece and parcel of land known as and called ?Ala Obi Ogbuewu.? But that, in my view, excluded the area of the said land inherited/given to the grandfather of Appellant (and inherited by Appellant), situate and being at Ndikpa Ogbuewu Elugwu, Eziama Nneato in Umunneochie L.G.A of Abia State.
I do not think the trial Court was right to make that declaration in relief (1) to 1st Respondent, and inclusive of the portions of land enjoyed by the Appellant (not in dispute). The Respondent had led evidence to say the grandfather of Appellant (Okoroafor) was granted the land by the father of 1st Respondent (Ogbuewu); that it was absolute grant and that the ?Offsprings of Okoroafor have right to sell any piece of land from that portion earlier granted to them absolutely by my father (See the evidence of PW2 on page 133 of the Records of Appeal).
Of course, I maintain that the parties are of the same family. But by the authority of the celebrated case of Ekpa & Ors Vs Utong & Ors (1991) LPELR ? 1084 (SC):
a person is completely without power or competent to revoke a completely constituted gift of
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land made inter vivos by his ancestor who let the donee into possession some one-and-a?half centuries ago, unless, perhaps, he can show that such gift was null and void ab inito or that the gift was subject to a condition which had been broken. But none is in this case here. Such a gift of land completed with delivery of possession according to custom is a transfer of ownership of the land to the done and extinction of the rights of those who claim through or under the donor? Per Nnaemeka ? Agu JSC.
The above legal position was adopted and applied by this Court in the case of Amaefula vs Mbaegbu & Anor (2018) LPELR 46627 CA, where it was held:
?It should be appreciated that even in a situation that the Respondents were to have proved that their forefathers granted the land in dispute to the Appellant, that that would not discount from Appellant?s right of ownership or possession over the land, going by the principle in the old case ofEkpa and Ors Vs Utong & Ors (1991) LPELR ? 1084 SC. See also Isiohia & Ors Vs Elechi (2018) LPELR ? 44988 CA and Ashilonu & Anor. Vs Ohale & Anor (2018)
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LPELR ? 44267 CA, where the above principle was also applied.
There was evidence by the Respondent?s witnesses that knocked out the claims of the Respondent, that Appellant?s forebears were migrants and customary tenants of Respondents forbears, particularly from PW5. Even then, they admitted Appellant?s right over the land he occupied! 1st Respondent had sought to establish his claim of Appellant being a customary tenant on the land, to suggest that Appellant breached the condition(s) of the customary tenancy. But he failed, in my view, to establish any breach of customary tenancy, which is usually oiled by payment of tribute by the customary tenant to the land over-lord, though that is not the only means of proving same. See Bassey Vs Bassey (2009)12 NWLR (Part.1156)617 where it was held that:
Payment of tribute is a recognized condition of customary tenancy, but is not always so and for all time. This is because there are situations where tribute is not paid to the overlord and yet customary tenancy exists. The Court further stated that a customary tenant is always a tenant no matter how long he is on the
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land. See also Abimbola Vs Abatan (2001) LPELR ? 38 (SC); Akinlagun & Ors Vs Oshoboja & Anor. (2006) LPELR ? 348 (SC).
The evidence of customary Arbitration over the land, strongly supports the case of the Appellant, that the parties are of a common ancestor. Even when the blunders of the trial Court, denied the Appellant the opportunity of tendering the written report, thereof, evidence (oral) of the parties affirmed the arbitration, and decision thereof. Appellant had pleaded the arbitration of Claim (in suit No.HUM/21/2008); that 1st Respondent, had summoned the Appellant before some selected individuals from Umuezewuzie, alleging that the plaintiff (Appellant) had asked them (1st Respondents and brothers in Hum/21/2008) to vacate both the Okpulo land and the present residents of the Ogbuewu, as shown on the plan; he said that after the Panel’s verdict, the 2nd defendant told Mgborie Ogo Eze to go and cultivate the Okpulo land, as the plaintiff would not do anything. Appellant, said since the December 2007 Arbitration, the plaintiff (Appellant) and his people had been exercising various acts of possess on over the Okpulo
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land. See page 19 of the Records.
And in his evidence on the arbitration, Appellant said:
?Other arbitrations followed but the last of which took place in December 2007 before our kinsmen ?Umuogbuewu?. The arbitration headed by Chief Sylvanus Eziahuru Ogbuewu decided that Eze Okechukwu Ogbuewu and his people should allow them to continue to live where they are at present. Both parties accepted the verdict. I enclose a copy of the verdict recorded in Igbo language as well as the translated English version of it. Since then I and other members of my father?s family have been harvesting the oha and other economic trees like oil palm trees on this Okpulo land?. Page 166 of the Records.
Testifying on the Arbitration, 1st Respondent said in his statement on oath, on page 118 of the Records:
Last year the Umuezewuzie Peace Committee looked into this dispute and decided that the defendant is not entitled to claim any part of the estate of Ogbuewu. I Identity the written decision dated 24/4/2007 and signed by the Chairman, Secretary and others?
Under cross examination, he said:
There is no
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Peace Committee of Eziama, no doubt, but the Peace Committee that intervened in our case is that of Umuezewuzie in Eziama Autonomous Committee (Community)? (page 123 of the Records).
On the issue of Arbitration still PW2 said (under cross examination):
It is true that I took part in the settlement of the dispute by the Umuogbuewu kindred I was the leader of the Umuadas of Umuogbuewu, when we were resolving the matter between the parties, being the eldest. Mr. Ezekiel Ogbuewu, the eldest among males was the leader of the males in Umuogbuewu at that time when we were resolving that dispute. Ezekiel Ogbuewu is the 2nd claimant in this suit The Umuogbuewu decided that the defendant should not struggle over any piece of land with the plaintiffs in Umuogbuewu family that his own father never did.
(Pages 132 and 134 of the Records).
PW5, on the issue of Arbitration said:
Sometime in 2007, Obu Ogbuewu wanted to intervene, because we want peace to exist and to ensure we lived as our fathers settled us here. The only arbitration I featured in was the one I tendered in Court? The disputants
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did not accept our decision and that is why they came to Court? The motion (was that) the disputants should live in peace and when they disagreed further Umuezewuzie came in and the result is Exhibit A. (page 157 of the Records).
Appellant had submitted that by the Arbitration, 1st Respondent was ordered to stop disturbing the Appellant and his family in the enjoyment of the land in dispute and when Appellant and his family commenced the use of the land in 2008, 1st Respondent caused Police to arrest him, and while the Police were investigating the case, 1st Respondent filed the Suit. HUM/20/2008, necessitating the Appellant to file the rival Suit HUM/21/2008.
It can be deduced from the above facts, that despite the attempt by the parties (Respondents in particular) to try to shun each other, they are relations and have lived together for many years, and are of a common ancestry; that the land they all occupy were inherited from their grandparents and ancestors, and their interests in the portion in dispute should be differentiated from their other portions (where each side occupies) in the overall Ala Obi Ogbuewu land (or
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Ugwu-Obu land) (the same expanse of land called by different names), situate in Ndikpa.
PW2 had stated in her statement on oath that ?the parties in this suit, as we all, come from Ndikpa Eziama Nneato (Page 130 of the Records).
I believe the parties are of the same family, as Appellant had claimed; that his grandfather and 1st Respondents grandfather were brothers. On the devolution history pleaded and led by the 1st Respondent, and conceded a lot to the 1st Respondent, under cross examination, which greatly questioned the other claims of Appellant that his grandfather, Okoroafor, conceded the use of the ?Okpulo? to Ogbuewu, because the latter had a large family and needed more land to accommodate them. Of course, even if that were to be believed, the fact that Appellant admitted that said Okpulo land was where Ogbuewu, the grandfather of 1st Respondent lived and died (page 172 of the Records), the Rule inEkpa & Ors Vs. Utong and others (supra), would also apply against Appellant, as he cannot revoke the gift alleged freely made by his grandfather.
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Appellant had also admitted that ?Okpulo? means a place where somebody lived and died ?that Ogbuewu during his life time, built houses for his many wives in this his Okpulo, and when he (Ogbuewu) died he was succeeded by Ezehidoro, his Son, and later by the 1st Respondent ? who succeeded Ezehidoro (Page 173 of the Records), I think that would defeat his further claims to the same ?Okpulo? land, and rather project him as the aggressor in this consolidated case, when it comes to the Okpulo land in dispute..
I have stated that I do not buy the story of 1st Respondent, that Appellant and his grandfather were migrants from Ihitte in Anambra State and so, strangers to the ?Ala Obi Ogbuewu lands? and to Ndikpa, Umuezewuzie. I believe all such stories were fabricated by 1st Respondent as a ploy for the purpose of the suits. PW5, who testified for Respondent had told the Court that ?he never heard that:
The defendant?s (Appellants) grandfather migrated from Ihitte in the present Orumba of Anambra State until that day of arbitration and he even cautioned the Respondents to stop raising such history. (See page 159 of the Records).
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I am appalled at the extent people go and the ease with which parties resort to falsifying history for the purpose of laying claims to material things, like land and other property, jeopardizing relationships that had been built and developed over the years, and putting the future of their children in peril!
Each side in this case struggled to prove that the other was customary tenant in the land in dispute, I wish each party appreciates that he is, in fact, the tenant in the land/property he occupies on earth, and will ultimately vacate it, at the end of his tenure in life. Parties should learn to nurture and cultivate the good relationship which their parents built over the years and promote atmosphere of peace for their children, and shun greed and rancor.
I therefore resolve the issue 3 in favour of the Appellant, and issue 4, partially, for him (Appellant) too.
On the whole, I hold, that this appeal succeeds (in part) and I set aside the decision of the trial Court in respect of HUM/20/2008, to the extent that:
1) The trial Court was wrong to refuse the Appellant?s application to withdraw the documents relating
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to the arbitration, and was wrong to reject the said documents and mark them rejected at that stage the documents had been withdrawn and could not be considered on their merit, and that led to miscarriage of justice.
2) Appellant was not a customary tenant of the 1st Respondent, and so 1st Respondent was not entitled to forfeiture of the portion of land in Ala Obi Ogbuewu (or Ugwu-Obu) which Appellant occupy.
I however hold, under Suit No.HUM/20/2008 that:
1) Appellant shall vacate the particular land in dispute, being the ?Okpulo land?, whereof Appellant admitted 1st Respondent?s grandfather lived and died and was succeeded by 1st Respondent?s father and later 1st Respondent. Respondents are entitled to the said Okpulo land, as well as other parts of Ala Obi Ogbuewu, which they occupy.
2) Appellant and his agents/servants privies are restrained from further trespass on the said Okpulo land adjudged for 1st Respondent.
In respect of HUM/21/2008, I set aside the decision of the trial Court dismissing it and hold as follows:
1) That Appellant is entitled to grant of Customary right of occupancy
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over the land ?Ugwu-obu?, they currently occupy, except the ?Okpulo land? adjudged for the 1st Respondent
2) The order of forfeiture is refused
3) No order for the damages
4) Perpetual injunction is granted over the Ugwu?Obu land, occupied presently by Appellant! The Respondents, their servants, privies are retrained from trespassing therein or harassing Appellant therein.
Parties shall bear their respective Costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree
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Appearances:
IKE OBETA, ESQ.For Appellant(s)
DR. INNOCENT OKORONYEFor Respondent(s)
Appearances
IKE OBETA, ESQ.For Appellant
AND
DR. INNOCENT OKORONYEFor Respondent
