UWATSE & ORS v. CHEKE & ORS
(2021)LCN/15860(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, September 24, 2021
CA/AS/136/2016
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. PA CLIFFORD UWATSE (OLARE-AJA Of Ugodede Community) 2. P.A. OVERSIDE OKOTIE 3. P.A NELSON GBEUBITSE 4. MRS DORA EDAH EVANGELIST GODWIN OKOH’ETUWEWE (FOR THEMSELVES AND ON BEHALF OF THE ENTIRE UGBODEDE COMMUNITY IN WARRI SOUTH L.G.A., DELTA STATE EXCLUDING THE RESPONDENTS HEREIN AND THEIR COHORTS) APPELANT(S)
And
1. MR. WILLIAM CHEKE 2. MR. ORITSEDUN CHEKE 3. MRS NKECHI CHEKE EDUN 4. MR WEYINMI ATOBOGHUKU CHEKE 5. MRS ROSE OKONEDO 6. MR OLAYINKA OTSEJU 7. MR BENE CHEKE RESPONDENT(S)
RATIO
WHETHER OR NOT TRADITIONAL AND CUSTOM EVIDENCE MUST BE PROVED ON THE PREPONDERANCE OF EVIDENCE
In initial stage; whether the Appellants have proved their case at the trial, the issues at stake surround traditional and custom evidence which must be proved on preponderance of evidence, CHIEF AKIN FALAKI & ORS v CHIEF ISRAEL FAGBUYIRO & ORS (2015) LPELR-25848 (CA), this Court held that its trite that where a party bases his claim on customary law, he must lead cogent, credible and convincing evidence in proof of such custom or tradition. The party who claims such customary law has the burden of proving such custom unless such custom has enjoyed frequent proof in the Court sufficient enough for the Court to take judicial notice of same, though there are times when only one single decision would be sufficient and authoritative, that is, it would suffice, see AGBAI v OKOGBUE (1991) 7 NWLR (PT 2004) 427;GIWA v ERINMILOKUN (1961) 1 ANLR P 294; FOLAMI & ORS v COLE & ORS (1990) 2 NWLR (PT. 133).
In PATRICK GODDY EKWUNO & ORS v BOSAH EKWUNO (2011) LPELR-9180(CA) this Court held that;
“in cases of custom and tradition, it is desirable that a person other than the person asserting it should also testify in support thereof. Since native law and custom must be strictly proved it is therefore unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
per ABOKI, JCA (PP.42–43, PARAS. E–B). PER OBASEKI-ADEJUMO, J.C.A.
THE POSITION OF LAW ON PROVING NATIVE LAW AND CUSTOM
In MOMODU OLUBODUN & ORS v OBA ADEYEMI LAWAL & ANOR (2008) LPELR–2609 (SC) the Court held;
“I have no doubt in my mind and this is also settled, that native law and custom not judicially noticed, can be proved by evidence of witnesses belonging to the community to show that community in the particular area, regard the alleged customary as binding on them. See Ojemen & Ors V Momodu II & Ors (1983) NSCC Vol 14 P135 At 150. It was held that it is in the interest of a party who asserts the existence of a custom, to ensure that there is sufficient and cogent evidence adduced before the Court in proof of the custom…”
per OGBUAGU, JSC (PP. 46–47, PARAS. G–E).
Again in CHIEF IDELIAGUAHAN OZOGULA II v THE QUEEN (1962) LPELR-25148 (SC), the Apex Court held that;
“It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness”
See; OLATUYI v GOVT OF ONDO STATE & ANOR (2016) LPELR-41371(CA); DEACON CHIEF ISSAC FATIMEHIN v CHIEF LAWANI (2014) LPELR–23476 (CA).
The Apex Court by Ogundare, JSC held in LASISI MORENIKE & ORS v LALEKE ADEGBOSIN & CO relying on BALOGUN v AKANJI (1988) 1 NWLR (PT 70) 301 AT 323, OPUTA JSC opined;
“When a Plaintiff has proved his title directly by traditional evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive.”
In UKARIWO OBASI & ANOR v EKE ONWUKA & ORS (1987) LPELR–2152 (SC) the Court held on the meaning of traditional evidence that;
“it is nothing but hearsay evidence removed from the hear-say rule and elevated to the status of admissible evidence by statutory provision of Sec 44 of Evidence Act …..proofs of history by traditional evidence may have its roots in ancient history, it must have its stem and branches in modern history to be conclusive…” PER OBASEKI-ADEJUMO, J.C.A.
THE POSITION OF LAW ON PROVING DECLARATORY RELIEFS
Declaratory reliefs must be proved even in the face of an admission, (which is not the case here. See NIGERIAN INSTITUTE OF TRANSPORT TECHNOLOGY & ORS v BARSHIR SHITTU (2015) LPELR–25926 (CA); BELLO v EWEKA (1981) 1 SC 101; THANKGOD ANAGO CHIBUIKE & ANOR v BONIFACE OKONKWO & ORS (2015) LPELR–40683 (CA); DUMEZ NIG LTD v PETER NWAKHOBA & ORS (2009) ALL FWLR (PT 461) 842(SC). PER OBASEKI-ADEJUMO, J.C.A.
THE POSITION OF THE LAW ON PERVERSE DECISION OF THE COURT
The Appellants on this note submitted that the judgment was perverse, the Court has held in the case of MBAKWE v ESIONE (2016) LPELR – 40954 (CA), AGIM, JCA (now JSC) held that;
“It is not enough to assert that the finding or decision of a Court is perverse because it is not supported by pleading and evidence. The party so asserting must establish that assertion by reference to the pleading and evidence that show that the decision is contrary to the pleadings and evidence”
See also; SUNDAY BARIDAM v THE STATE (1994) LPELR – 753 (SC) Where IGUH JSC held;
“A decision is perverse where the trial Judge takes into account or where he shuts his eyes to the obvious or to prove facts in favour of a party, or distorts the facts or evidence in the case so as to tilt the scale of justice in favour of a party see ADIMORA V AJUFO & ORS (1988) 3NWLR (PT 80) 1” PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Hon. Justice P.O ONAJITE-KUEJUBOLA (MRS) of the Delta State High Court, Warri Judicial division delivered on the 18th day of December, 2015 wherein the lower Court delivered judgment against the Plaintiffs/Appellants.
Thereafter the initial pleadings, the Plaintiff’s final reliefs as contained in 3rd Amended statement filed on 14th January, 2013 were;
I. A declaration that Ugbodede Community was founded by ITEYE, the crown Prince and heir apparent of Olu Akengbuwa the then Olu of Warri.
II. A declaration that Prince ITEYE the founder of Ugbodede Community did not share his landed property including Ugbodede Community during his lifetime or at all to Aroginmema (Aghariginmema) the Defendants ancestress or indeed to any of his children.
III. A declaration that Ugbodede Community does not belong to the Defendants and/or their ancestors/ancestress exclusively, but jointly owned by all descendants of ITEYE the founder of Ugbodede Community including the Plaintiffs and Defendants jointly and in equal proportion and enjoyment and as such the Defendants and/or their descendants cannot manage, administer and/or run the affairs of Ugbodede Community exclusively as their personal property to the detriment of other families in Ugbodede including the Plaintiffs herein.
IV. A declaration that the Defendants are not the true accredited representation of the Ugbodede Community and cannot so constitutes themselves without the formal approval of the Olara-Aja of Ugbodede Community.
V. A declaration that the Plaintiffs led by the 1st Plaintiffs who is the Olara-Aja and the chairman of the council of elders of Ugbodede Community are entitled to administer the affairs of the entire Community including but not limited to negotiating and transacting any business on behalf of the Community with any persons(s) and/or company/companies operating in Ugbodede Community in the absence of a validly constituted executive committee.
VI. A declaration that the Plaintiffs are entitled to be paid all financial compensation and other entitlements/benefits from all the oil prospecting companies operating in the Community, to wit Shell Petroleum Development Company of Nigeria limited and Chevron Texaco Nigeria Limited, their servants, agents and/or privies.
VII. An Order of perpetual injunction restraining the 1st–7th Defendants, their servants agents cronies, cohorts privies howsoever called from acting for and on behalf of and/or demanding and/or receiving any sums of money, compensation or benefits due to the Ugbodede Community from any individual or group, government corporation, association, or organization.
VIII. An order of perpetual injunction restraining the Defendants their servants, agents privies assigns and members of their illegal and self constituted/imposed committee from parading themselves as representatives of the Ugbodede Community and/or restraining the Defendants, their agents, servants privies and members of their self constituted/imposed committee from doing and/or engaging in any activities in the name of and on behalf of the Ugbodede Community with any person(s) or company/companies operating in Ugboedede Community.
IX. An Order compelling/direction the Defendants to render account of all monies entitlements/benefits and/or compensation monies/benefits received from Chervon Nigeria Limited, Shell Petroleum Development Company Limited their agents, contractors, and other oil servicing Companies and organizations operating in Ugbodede Community on behalf of the Community.
See pages 161-163 of the Record.
FACTS
The Respondents claim newly appointed chairman of Ugbodede community by the then Olu of Warri; HRM Ogiamen Atuwase II (of blessed memory) and instructed the newly appointed Chairman to submit a list of persons to work with him. The Appellants claimed same and sent a list which was sent to the then Olu, the Respondents also sent their list of people to work with said chairman.
The Olu of Warri in turn approved and forwarded the list of the Respondents to Chevron. The Appellants dissatisfied with this action took a writ challenging the representation in the list of people chosen to work with the 1st Respondent, in proof of this, the Appellants called one witness; 5th Appellant who tendered some Exhibits while the Respondents called four witnesses and tendered a host of documents also.
After due evaluation, the lower Court dismissed the Plaintiffs/Appellants’ case, the Plaintiffs/Appellants dissatisfied with the judgment filed a notice of appeal on 23rd December, 2015.
Sequel to the rules of Court, parties filed briefs and exchanged same. The Appellant’s brief was filed on 24th November, 2017 wherein he distilled three issues for determination. The brief was settled by A.M.A Etuwewe Esq of AMA ETUWEWE & CO thus;
1. WHETHER THE APPELLANTS IN THIS CASE DID NOT PROVE THEIR CASE AT THE TRIAL TO BE ENTITLED TO THE RELIEFS SOUGHT.
2. WHETHER THE TRIAL COURT PROPERLY EVALUATED THE EVIDENCE ADDUCED BY BOTH PARTIES IN THIS TO ARRIVE AT ITS DECISIONS.
3. WHETHER THE JUDGEMENT OF LOWER COURT WAS NOT PERVERSE.
The Respondents filed a brief on 26th June, 2018 wherein he distilled a sole issue wit;
WHETHER THE APPELLANTS WHO FAILED TO PROVE THEIR CLAIMS ON A PREPODERANCE OF EVIDENCE AT THE TRIAL COURT CAN COMPLAIN THAT THE DECISION OF LOWER COURT IS PERVERSE.
It was settled by U. M. Akpokabayen–Ase (MRS) of JAMES OGWOR & ASSOCIATES.
APPELLANTS’ ARGUMENTS
The Appellants sought leave to argue the three issues together for reason that the issues are intricately intertwined. The Appellants submitted that he proved their case satisfactorily and that it is observed that both parties share a common ancestry and rely on same facts in laying claim to the community. That Appellants have traced the traditional history of how Ugbodede Community came to be under the control and management of their families including the Respondents’ families in present day arrangement.
He cited the following cases on ways of proving traditional history; ONOVO v MBA (2014) NWLR PT 1427 PG 319.
He submitted that beyond the poof of traditional evidence that Ugbodede also belonged to the Respondents and had adduced evidence that the 1st Plaintiff as acting Olara–Aja was always given the position of pre-eminence in the affairs of the community as his position was tantamount to that of a head of the entire community and therefore his rights/privileges associated with the establishment of ownership as may be contained in the statement of claim ought to succeed. That the lower Court failed to avert her mind to this fact.
Sequel to the above was the unchallenged evidence that Ugbodede community is made up of several families apart from the Cheke family who are descendants of Iteye with same rights and privileges as the Respondents.
That having accepted this evidence then the lower Court ought to reject the claim of the Respondents that Ugbodede belonged to their progenitor Arogimena alone. He cited GBEMISOLA v BOLARINWA (2014) 9 NWLR PT. 1411 PG.1.
Appellants contend that the burden now shifted to the Respondents to discharge the facts. He relied on AJIBULU v AJAYI (2014) 2 NWLR PT 1392 483. For the fact that the Appellants called a sole witness in proof of its case as reflected in the judgment affected the psyche of the lower Court, he cited OGUNJEMILA v AJIBADE (2010)11 NWLR PT 1206 PG 556 AT 575 PARA C–E; IYERE v BENDEL FEEDS & FLOUR MILL LTD (2008) 18 NWLR PT. 1119 PG 300; KOPEK CONSTRUCTION LTD v EKISOLA (2010) 3 NWLR PT 1182 PG 618; ODUTOLA v MABOGUNJE (2013) 7 NWLR PT. 1354 PG. 522 AT 560 to the effect that the quantity of witnesses is not of much significance over and above the quantity of evidence adduced from a minimum number.
Appellants contended that the lower Court wrongly relied on Exhibit k which is a book written by R. I. OGBOBINE on the Itshekiri kingdom and the Olu’s overlordship rights in Itsekiri land and that it’s an opinion expressed by the author that, Ugbodede was founded by Crown Prince Omatseye for Princess Arogimema. He submitted that the author failed to disclose his source of opinion in the book and such an omission rendered the traditional history expressed by the author in Exhibit K as speculative unsatisfactory and unreliable and therefore renders the lower Court’s decision on it perverse and wrong and ought to be set aside, he cited CHUKWU v INEC (2014) NWLR PT 1415 PG 285.
Appellants submit that the Respondents relies on a gift inter vivos as their claim to the exclusive ownership of Ugbodede community and the burden of proving this rests on them, to plead same and that this they failed to do. He cited AYINKE v IBIDUNNI (1959) SCNLR 666; ORIDO v AKINLOLU (2012) 9 NWLR PT 1305 PG 370 AT 387, 388 PAR E–H; OKWARANONBI v MBADUGHA (2013) 17 NWLR PT 1383 PG 255 AT 275; OLODO v JOSIAH (2010) 18 NWLR 1225 PG 653; ALAO v AJANI (1989) 4 NWLR PT 113 PG1; NDUKWE v ACHA (1998) 6 NWLR PT 552 PG 25 AT 40.
Appellants posit that occupation by a family member does not pass ownership of land to the occupier and that the fact that Princess Arogimema was in charge and control of Ugbodede community in her lifetime did not transform the property Ugbodede to her personal property.
Appellants’ counsel argued further that the Respondents are by law required to prove ownership by facts which are cogently satisfactory in order to get the Court to declare title in their favour and this onus they failed to discharge. He referred to ATANDA v ILIASU (2013) 6 NWLR PT 1351 PG 529 AT 567; OKWARANOBI v MBADUGHA (SUPRA); ACHILIHU v ANYATONWU (2013) NWLR PT.1368 PG. 256; OMOLEYE v STATE (2014) 3 NWLR PT 1394 PG 232. Appellants urged that the issue be resolved in their favour.
Appellants submit that the lower Court erred in law after she held that Ugbodede community was founded by crown prince Omateye as stated by Appellants and refused to grant the declarations that it is jointly owned by Appellants and Respondents as descendants of Crown prince Omatseye. That there was sufficient evidence from both sides that the Olu handed the 1st defendant to the late Olara–aja (1st named Plaintiff) and ordered that he should be prepared with those who will work with him as Chairman of Ugbodede Community and it meant that the Appellants were co-owners of the community and were the Olare-aja of the community, he cited CHUKWU v AKINPELU (2014) 13 NWLR PT 1424 PG 359 PG 387; UBN PLC v CHIMAEZE (2014) 9 NWLR PT 1411 PD 166; AJIBULU v AJAYI (2014) 2 NWLR PT 1392 PG 483 AT 502 that the evidence that Ugbodede was given as a gift inter vivos by Crown prince Omatseye is unsupportable or based on legally inadmissible evidence.
Accordingly, Counsel urges the Court to resolve it in the Appellants’ favour.
Appellants secondly contended the Court did not follow established procedure of evaluation and critical analysis of evidence, he cited UGBA v SUSWAM (2014) NWLR PT 1427 PG 264. He referred to Exhibits A, A1, A2, A3, A4, B & B1 which are all letters written by Ugbodede community elders council to the Olu of Warri and SPDC at different dates in course of events culminating in but before the institution of this suit which confirms the existence of a council of elders in Ugbodede community. He cited AKPAN v BOB (2010) 17 NWLR PT 1223 PG 421 AT 502.
Appellants submit that failure by the Court of its duty in evaluating evidence on record renders the decision perverse, unmaintainable and same ought to be set aside by this Court. He relied on CHUKWU v INEC (2014) 10 NWLR PT 1415 PG 285; CHUKWU v AKINPELU SUPRA; OMOYELE v STATE (2014) 3 NWLR PT 1394 PG 232 AT 333 PAR A–B; EZE v GOV. ABIA STATE (2014) 14 NWLR PT 1426 PG 192 AT 216 PAR A–B.
Appellants posit that the lower Court drew an inference wrongly that since the only primary school was named after Princess Arogimena therefore Ugbodede belongs to the Respondents. That it is not in dispute that the Appellants are not stranger to the community and that there is no known rules or principle of equity in support of this fact, he cited ONOVO v MBA (2014) 14 NWLR PT 1427 PG 391; CHUKWU v INEC (SUPRA).
Appellants submitted that the lower Court erred in delivering judgment outside 90 days from address and that this was a breach of Section 294 (1) of the Constitution. He cited ODEDO v INEC (2008) 17 NWLR PT 1117 PG 554 AT 610; AKOMA v OSENWOKWU (2014) PT 1419 PG 462 AT 487.
In addition, the Appellants opined that the Court erred in holding that the suit was a challenge to the authority of the Olu of Warri and both parties being of Itshekiri extraction and that the suit is therefore not justiciable. He submitted that it is a misapprehension of the law and principles of justiciability of actions and consequently occasions a miscarriage of justice. He cited UNILORIN v ADESINA (2014 )10 NWLR PT 141 PG 159. That Section 6 (6) of the 1999 Constitution gives an inalienable and undeniable right to a person in Nigeria to approach the Court for determination of questions relating to civil rights and obligations.
He cited GYANG v COP LAGOS STATE (2014) 3 NWLR PT 1395 PG 547
That there was nothing fair in the Olu of Warri’ s unilateral selection and imposition of 1st Respondents on the Ugbodede Community as chairman of the community when 3 candidates were involved in the contest as to who becomes the chairman. He cited UGBA v SUSWAM (SUPRA); EZE v ABIA STATE (SUPRA); DONG v AG ADAMAWA STATE (2014) 6 NWLR (PT 1404) PG 555 AT 574; KAKIH v PDP (2014) 15 NWLR (PT 1430) 374; AL MUSTAPHA v STATE (2013) 17 NWLR (PT 1383) PG 350.
Finally, that the lower Court ought to have dissociated legal and procedural rules and principles from such sentiments expressed by parties.
Appellants urged the Court to allow the appeal and set aside the judgment.
RESPONDENTS’ ARGUMENT
The Respondents’ counsel submitted on his sole issue for determination and states that the Appellants have the burden of proving their claim on a preponderance of evidence but failed to do so, he referred to ADEMOLA v SEVEN UP BOTTLING CO (2004) ALL FWLR PT 239 P 974 @ PARA E–F; AGBI v OGBEH (2006) 11 NWLR PT 990 P 65; IROLO v UKA (2002) 14 NWLR PT 786 P 195 that the Appellants failed to adduce cogent and credible evidence before the Court and therefore cannot complain that the decision of the Court was perverse.
Respondents canvassed that the Appellants claims 1-6 at the lower Court are declaratory reliefs, see ENEKWE v IMB (NIG) LTD (2006) 19 NWLR PT 1013 P146 @ 172; NYESOM v PETERSIDE (2016) 7 NWLR PT 1512 PG 452.
Respondents submit that they presently run the affairs of Ugbodede a Community that for the past 10 years the Cheke family has been the chairman of the executive committee and that the Olu of Warri continued with this trend by selecting him to be the chairman of the Ugbdede executive committee because it’s widely known that the Ugbodede community was given to Arogimema by ITEYE (FOUNDER OF UGBODEDE COMMUNITY) in his lifetime therefore the community belongs to the Respondents.
They contend that the Appellants having contested that, it is for them to give reasons why the present status should change or why the rights and privileges should be taken away, he relied on EZINWA v AGU (2003) ALL FWLR PT 165 P473 @ 487. That the Appellants needed to prove that they were entitled even if the Respondents did not file any defence, HAWAD INT SCH LTD v MINA PROJ VENT LTD (NO 1) 2005) 1 NWLR PT 908, P554 2567-568 PARA G–H; OKEREKE v UMAHI (2016) 11NWLR PT 1524 PG 438 @489; DAHIRU v KAMALE (2005) 9 NWLR PT 929 P8.
Respondents submit that even though they do not need many witnesses to prove their case, a single and credible witness would suffice, that in proffering evidence of custom and tradition it is wise for corroboration by another witness hence failure to call another witness damaged their claim, he relied on LAMBE v JOLAYEMI (2002)13 NWLR PT 784 P.343, PAR 356.
He urged that Section 167 (d) of Evidence Act, 2011 should be invoked against them she cited AGBI v OGBE (SUPRA) per MUDAPHER, JSC.
Respondents further submitted that the Exhibits tendered did not refer to Ugbodede community hence they were not conclusive, certainly, the lower Court was right, there is a need to infer such documents that the Court could not attach any weight to such evidence, while the Respondents fully demonstrated that they are rightly the owners of Ugbodede Community with oral and documentary evidence to prove that the community was shared to AROGINMEMA in the lifetime of ITEYE and showed the presence of people and certain rituals performed to cement the handing over. He referred to the testimonies of Dw2, Dw3, Dw4 at pages 323, 324–327 & 340-344 respectively.
He referred to JULIUS BERGER (NIG) PLC v NWAGWU (2006) 12 NWLR PT 995 PG 518 PAR H-B; AWUSE v ODILI (2005) 16 NWLR PT 952 P416; ARABAMBI v ADVANCE BEVERAGES IND LTD (2005)19 NWLR PT 951 P1; UTB (NIG) LTD v AJAGBULE (2006) 2 NWLR (PT 965) P 447; IROLO v UKA (2002) 14 NWLR (PT 786) P.195; ENEKWE V .I.M.B (NIG) LTD (2006), GE INT’LOPERATIONS (NIG) LTD v Q OIL AND GAS SERVICES LTD (2016) 10 NWLR 1520 PG 304; SECTION 294(1) 1999;IBB IND LTD v MUTUNCI CO (NIG) LTD (2012) 6 NWLR (PT. 1297) P. 487 @528.
Respondents submitted that Exhibit K and the oral testimony of parties that the only school is named after the progenitor is a piece of evidence the Court can draw inference from because they are related to the issues in controversy. He observed that Exhibit k was not discredited or impeached by the Appellants when opportunity presented itself and that the Court rightly attached much weight to it.
On the other hand, Respondents submitted that the recent events in the community strengthen their case that a member of Cheke family has been chairman of Ugbodede community since 1989 till date.
On evaluation, he posits that the Court painstakingly did this and came to the right conclusion. That the claims are for declarations and the Claimant has to satisfy the Court by credible evidence.
Respondents on the submissions on Section 294(1) of 1999 Constitution that judgment was delivered outside the 90 days mark, he referred to Section 294 (5) of the 1999 Constitution that no miscarriage has been shown with credible and cogent evidence and therefore referred to DAHIRU v KAMALE (2005) 9 NWLR PT 929 P8 AT 58; OYEGOKE v IRIGUNA (2002) 5 NWLR (PT. 760) P. 417.
Respondents submitted that Court adjourned for judgment on 22nd July and 31st vacation began, the Court resumed in October 2015 and that vacation does not form part of the period.
On the justiciability of the case, he cited the definition of justiceable under Black’s Law Dictionary at pg. 944, 9th edition and that the authority of Olu of Warri was not in issue hence it not in dispute. Appellants had agreed that the authority of the Olu of Warri cannot be challenged in this suit, he referred to the 1st Defendant’s evidence at page 308. That the judgment of the Court cannot by any stretch be termed perverse. He referred to WILLIAMS v OGUNDIPE (2006) 11 NWLR PT. 990 P 157; MOSES v STATE (2006) 11 NWLR PT. 992 P 458.
Respondents submitted that the Court never implied that if the Appellants were aggrieved with the way, they are not to challenge the Olu of Warri, and that it is worthy of note that the conduct of the Olu of Warri in the selection of 1st Respondents was never in issue herein at the trial Court LAMBERT v NIGERIAN NAVY (2006) 7NWLR PT 980 P 514; OBIAKOR v STATE (2002) 10 NWLR (PT 776) P 612 were cited in submitting that the Court should strike the issue of selecting 1st Respondent as its being raised for the first time and leave was not sought, furthermore no evidence has been taken on this issue and all materials needed to make an informed decision is not before the Court.
I have read the issues distilled by parties and observed that the Respondents have covered the issues of the Appellants in general but the Appellants are more specific, I shall adopt the Appellants’ issues but shall resolve the three issues together.
RESOLUTION
In initial stage; whether the Appellants have proved their case at the trial, the issues at stake surround traditional and custom evidence which must be proved on preponderance of evidence, CHIEF AKIN FALAKI & ORS v CHIEF ISRAEL FAGBUYIRO & ORS (2015) LPELR-25848 (CA), this Court held that its trite that where a party bases his claim on customary law, he must lead cogent, credible and convincing evidence in proof of such custom or tradition. The party who claims such customary law has the burden of proving such custom unless such custom has enjoyed frequent proof in the Court sufficient enough for the Court to take judicial notice of same, though there are times when only one single decision would be sufficient and authoritative, that is, it would suffice, see AGBAI v OKOGBUE (1991) 7 NWLR (PT 2004) 427;GIWA v ERINMILOKUN (1961) 1 ANLR P 294; FOLAMI & ORS v COLE & ORS (1990) 2 NWLR (PT. 133).
In PATRICK GODDY EKWUNO & ORS v BOSAH EKWUNO (2011) LPELR-9180(CA) this Court held that;
“in cases of custom and tradition, it is desirable that a person other than the person asserting it should also testify in support thereof. Since native law and custom must be strictly proved it is therefore unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
per ABOKI, JCA (PP.42–43, PARAS. E–B)
The Respondents says it belongs to Cheke family who has the authority to manage the affairs of the community. Both parties filed pleadings and offered evidence to back up their claims. The Appellants pleaded at page 156, paragraphs 4-15 of the 3rd Amended statement of claim are events leading to the grievance herein which is that the 1st defendant presented a list of his executives to work with him which was accepted instead of their list which cuts across all members of the Iteye community, and that the Olu of Warri picked the 1st Respondent out of other contestants.
From paragraphs 16-27 of the further statement are complaints of the performance of the said Respondents who allegedly enrich themselves to the detriment of the Appellants and Ugbodede community while paragraphs 28-33 is the gentry of Ubgodede community.
The case of the Appellants is that the Respondents are not the only ones in the community entitled to be representatives to run the affairs of the community and that by virtue of their ancestry, the Appellants are entitled to partake in being representatives of the community.
There is no counter-claim in the suit before the lower Court therefore; the Respondents are simply defending the suit. In so doing they filed a consequential Amended statement of defence at page 164 of the record while the Appellants filed a further amended reply to statement of defence at page 189 of the record.
It is pertinent to state that the Appellants’ final reliefs after many amendments is captured in 3rd Amended statement of claim, it is against this back drop and evidence adduced that this appeal would be resolved.
The question is who are the persons qualified to be the accredited representatives of the Ugbodede community?
The evidence of the Appellants was through 5th Appellant/Plaintiff; Evangelist Godwin Okoli-Etuwewe, who testified along with his claim and tendered Exhibits A-D and testified on the founding of Ugbodede community, that the Plaintiffs are the elders of the community, and all Plaintiffs belong to elders council and are in Court for and behalf of Ugbodede community. While 1st Plaintiff was the Ola-aja and without his authority/approval the executive cannot function, they also oversee the work of the executive.
He opined that there is no higher authority than the council of elders and it is the highest decision taking body. That there are over 8 families in the community; Engho, Arogimema, Ejoh, Diden, Eneweye, Erose & Etuwewe. He said after the Olu chose the chairman, the Ola-aja and the Chairman would choose from the families to work with him and then send the list to the Olu. He testified that this was not followed but the 1st Respondent chose his work men without any of the other families and submitted same. He tendered the list done in the house of the Ola-aja as Exhibit A.
On the foundation of Ugbodede, he stated that it was founded by ITEYE who was a prince and had 54 children but never shared any of the communities to any of his children. He emphasised that there is no Itsekiri community without an Elders’ council, that there is no title known as Ojikuruku in Ugbodede Community.
There is no dispute that ITEYE founded Ugbodede except that the Appellants claim there were families on ground before he came there while the Respondents testified that ITEYE founded the Community and gave same to AROGIMEMA.
The 5th defendant/appellant was the sole witness for the Appellant.
What is traditional history or traditional evidence all about? The answer appears to have been provided in the case of DIKE v NZEKA II (1986) NWLR (PT. 34) 144 Traditional evidence is evidence as to right alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land.
The Respondents on the other hand pleaded in the 3rd Amended statement of defence at page 239 wherein they denied that 3rd & 5th Plaintiffs were not indigenes of Ugbodede and adduced evidence in paragraphs 2-36 and denied vehemently the traditional account of how Ugbodede community was founded.
Respondents called 6 witnesses to adduce traditional/historic evidence and tendered documentary evidence in proof at page 321 of the record.
1st witness (DW1); Chief Emmanuel O Jones testified that, he is a chief who sits with Olu in council, that there was nothing known as elders council nor that Olare-aja was from Cheke family and 1st Plaintiff merely acted for Madam Cheke who was a woman and needed to do rituals and needed help to act. He led traditional and historic evidence that the Ugbodede community was given to Arogimeam for keeps and she begat Cheke hence all Managers are from the family.
Dw1 was present during the picking of 1st defendant to be chairman and testified that the Olu asked the 1st Defendant to go and select those he can work with to move the community forward, he said the Olu did not tell Olare-aja to constitute Excos. That the phrase “Sekurewobire’’ means putting beads on hands and legs and such is done by the Ologbsere or Iyase apart from the Olu. He had the approval of the Olu.
On cross-examination, he stated that every community has an Olu-aja who is not necessary the oldest man and not every community has a council of elders, that where there is no council of elders, they have Ola–aja and executive council of that community.
Dw2 stated that he was once a chairman of the Usele community he testified that the community was founded by Prince Iteye and handed over to his daughter Princess Arogimema who then handed the community to Cheke. He stated that the mantle of authority of the community has been with Cheke descendants since then. He also said Ojiburuku is an appellation given to the most senior son of performing person in Cheke family.
Under cross-examination, he said Ugbodede community was handed to Arogimema and the community was assigned to her by Prince ITEYE and this account was handed over by his grandmother who died at the age of 113 (1976) born in 1862
Dw3- Oritsetsolaye Eyinagho Cheke a fisherman from Ugbodede community, he is the head of the community (Ojiburuku) a title of his grandfather, he did not know 1st Plaintiff or others and that 2nd Plaintiff is a settler. He stated that the Plaintiffs are not representing the community and the 1st Plaintiff only acted for the Olare-aja after Madam Wewe Cheke. He said the defendants are all descendants of Cheke except 5th defendant.
That Ugbodede has no council of Elders and that Ojiburuku is the highest body making organ in Ugbodede. He was also present at the palace where the Olu of warri settled 1st defendant to be chairman and that there was no protest. He said 1st defendant merely complied with the directives of the Olu in selecting the persons he can work with and that the list was sent to the Olu who signed and sent same to SHELL.
On the founder, he agreed that ITEYE founder gave same to his daughter Arogmema (Cheke) who is the Oniru of Ugbodede community. He said the Rose Okonedo was not from Cheke family (5th defendant), he said only SPDC was the operating company in the community and that the defendants did not share relief materials to themselves, it was shared to all including the Olare-aja.
That there is no Council of elders in Ugbodede. He denied paragraphs 32-33 of the Amended statement of claim and that there were no families living in Ugbodede, and there was a caveat that Ugbodede should not pay tax and must not be collected from Arogimema his daughter. The BATEREN was given to all the children ITEYE, and that Ugbodede does not belong to Iteye’s children as a whole.
He testified that 6th Respondent represented the community to the company known as Alters/Westner. He presented lease agreements to back his point; Exhibits H, H1, H2 & H3.
He stated that as “Ojiburuku”, he serves our ancestors and that only children of Cheke can answer this appellation and also a Cheke’s descendant can be chairman while an Olare-aja is for oldest male or female of Cheke family lineage. He testifies that the Cheke lineage represents the Ugbodede community and that there is a primary school named by the name of Aroginema.
Under cross-examination, he stated that Ojiburuku is an office of Cheke family and a name of Cheke descendants, That he is a direct grandson of Aroginema while she was a direct daughter of Prince ITEYE, his grandmother was 60 years when Ugbodede was handed over to Arogiemema Cheke and that Cheke has always been at the helm of affairs from time immemorial, he reiterated that it is only Aroginema that has Ugbodede, he relied on a book by Justice Ogbobine and said all other documents were burnt in 2003 crisis. That CHEKE is literate while Madam Maku Cheke is illiterate.
He traced his lineage to Aroginema and that 1st Defendant only acted interim Ola–aja of Ugbodede. That the gift to Aroginema was by swearing juju.
1st defendant testified as Dw3 – William Paul Cheke identifies 1st, 2nd and 4th Plaintiff, he did not authorise the filing of this suit neither is it with the consent of the Ugbodede community states that 3rd & 5th Plaintiffs are not from Ugbodede, 5th is from Tselu and. 1st Plaintiff was never an Olare-aja but acted as Madam Mewe Cheke appointed him to act for her when the Cheke men were in Lagos and there is no replacement now that the 1st Plaintiff is dead.
He denied that there was never a council of elders in the community only Ojiburuku the spiritual head of the community and direct descendant of Aroginema and those who have long settled in the community. He was the last chairman of Ugbodede for 16 years, he took over from 6th defendant, he confirmed the selection of the Olu of warri and directive for him to pick a working executive.
He stressed that Ugbodede does not belong to Omateye’s family but to the Arogienema family who had only Cheke, who in turn had children and these are the owners of the place. That Arogienema and her mother were relocated to compensate them. He tendered a book Exhibit K(The Iwere (Warri) kingdom on the history of Ugbodede by Justice R. A. I. Ugbobine at page 41.
DW1 was recalled to clarify issues in the amended defence. He testified on the list the Respondent forwarded to the palace he identified Rose Okonedo and Gabriel Uwatese as not of Cheke lineage, he shared relief materials to all including 1st Plaintiff who stepped it down as acceptance would be an act of betrayal of the other plaintiffs. Under cross-examination, he appointed Gabriel Omatie into his committee in recognition of other families in the town and the Olare-aja was appointed in acting capacity and same was not documented. That 5 or 6 families exist in the community but do not have equal rights with Cheke’s family. A woman can be an Olare-aja in the community, and the position of Olare-aja does not rotate in Ugbodede. He said Ugobede was different from the regular Itsekiri community and there is no elders council as they take their issues to the ruling house, if any problem. That no traditional rites are performed except in the lifetime of a person to hand over the property to a child and these rites were done when Omatie handed Ugbodede to Aroginema .
The evidence of the Respondents was unshaken as to the amended statement of defence, they largely differ from the stance of the Appellants’ 3rd Amended statement of claim.
Therefore, to answer whether the Appellants proved their case to entitle them to their reliefs would entail the basis for their reliefs if proved.
They assert that they are the accredited representatives of the Ugbodede community, and are the elders in council also that the 1st Plaintiff was Olare-aja while the 2nd Plaintiff took over. Firstly, they sued in representative capacity on behalf of the community. This the Respondents challenged in their defence and evidence that 3rd & 5th Plaintiffs are not from the community and so cannot represent the Community, while the present chairman says he did not authorize the action. This shows that the community action was only filed by a section of the members of the Community to challenge authority and dynasty of Cheke family.
In MOMODU OLUBODUN & ORS v OBA ADEYEMI LAWAL & ANOR (2008) LPELR–2609 (SC) the Court held;
“I have no doubt in my mind and this is also settled, that native law and custom not judicially noticed, can be proved by evidence of witnesses belonging to the community to show that community in the particular area, regard the alleged customary as binding on them. See Ojemen & Ors V Momodu II & Ors (1983) NSCC Vol 14 P135 At 150. It was held that it is in the interest of a party who asserts the existence of a custom, to ensure that there is sufficient and cogent evidence adduced before the Court in proof of the custom…”
per OGBUAGU, JSC (PP. 46–47, PARAS. G–E).
Again in CHIEF IDELIAGUAHAN OZOGULA II v THE QUEEN (1962) LPELR-25148 (SC), the Apex Court held that;
“It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness”
See; OLATUYI v GOVT OF ONDO STATE & ANOR (2016) LPELR-41371(CA); DEACON CHIEF ISSAC FATIMEHIN v CHIEF LAWANI (2014) LPELR–23476 (CA).
The Apex Court by Ogundare, JSC held in LASISI MORENIKE & ORS v LALEKE ADEGBOSIN & CO relying on BALOGUN v AKANJI (1988) 1 NWLR (PT 70) 301 AT 323, OPUTA JSC opined;
“When a Plaintiff has proved his title directly by traditional evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive.”
In UKARIWO OBASI & ANOR v EKE ONWUKA & ORS (1987) LPELR–2152 (SC) the Court held on the meaning of traditional evidence that;
“it is nothing but hearsay evidence removed from the hear-say rule and elevated to the status of admissible evidence by statutory provision of Sec 44 of Evidence Act …..proofs of history by traditional evidence may have its roots in ancient history, it must have its stem and branches in modern history to be conclusive…”
In clarity, the Appellants contend that they are common owners of Ugbodede community, both parties heavily relied on the Supreme Court where Ogunbiyi, JSC in the case of GODWIN ONOVO & ORS v FERDINARD MBA & ORS (2014) LPELR–23035 (SC) stated the duty of a trial Judge where parties in a suit for title to land both seek to prove ownership by traditional history evidence thus;
“law is well settled that where the Plaintiff and the defendant in a suit for title to land both seek to prove ownership by traditional history evidence, the duty of the trial Court is to weigh their traditional evidence on an imaginary scale and determine which of the two sides is weightier, see OKOLO V DAKOLO (2006) 14 NWLR (PT 1000) 401.”
In the light of the foregoing stare decisis and the summary of the evidence produced above, I shall examine the traditional evidence on the record and summarized above and see whether it is conclusive if not then acts of ownership would be next examined.
It is agreed by parties that ITEYE founded the Ugbodede community amongst others had many children. The Appellants claim and trace ancestry to him while the Respondents also trace their ancestry to him through his daughter Arogiemema who had Cheke. Respondents testified Ugbodede was given to Arogmema as a gift as against all other children while Appellants contend that it belongs to all Iteye’s children therefore they all including defendants own the place and should manage same together. In proof of this claim, they tendered Exhibits A1-A4, – D which were written in 2006 as protest against the management of the community, nothing was proved that there was an elder in council in operation or that the 1st Plaintiff and 2nd Plaintiffs were the OLARE-AJA of the community, under cross-examination all witnesses of the defendant were not shaken they stood unchallenged that there was no elder in council and the 1st Plaintiff was only an interim appointee by the substantive Olare-aja of the community a Cheke descendants.
The Appellants’ witness who said “we were at the place” who makes up this “we” is left to conjecture as to what the Olu of warri said the “Sikokun ni ewo bi esen” meant the Olare-aja- 1st Plaintiff was to go and choose the people who will work with him.
The evidence did not have a corroboration of another witness to properly ground this evidence. The Respondents’ witnesses gave contrary evidence, that the Olu said “SEKUREWOBIERE” and meant put beads on his hands and legs.
Most interesting is evidence of DW1 who is a chief and sits with the Olu in council he gave evidence of traditional evidence and custom of the people with the approval of the Olu of Warri and was present when the Olu chose the chairman. He stated the orders of the Olu and traditional history of Ugbodede community which was contrary to the evidence of the Appellants. He refuted the fact that the Appellants was told to select and compile a list, this was the genesis/plank of the Appellants’ grievance leading to this suit. He categorically stated that Ugbodede had no ruling house. This links me to the earlier finding of proper representation.
In fact, all the Respondents’ witnesses stated the same history and back it up with overwhelming evidence that the affairs of the community has been largely by Cheke family through the AROGIMEMNEM Lineage, successive OLARE – AJAS and Ojiburuku which the Appellants said was a greeting from the Respondents, by Respondent was a title of the highest organ in the community, which must come from the Cheke lineage. I cannot but agree that this kind of traditional evidence cannot be adduced by one witness especially in the absence of cogent credible documents to prove the existence and participation in the governance of the community.
Again the complaint was in addition that the list submitted by the appointee of the Olu was made up of only the “Chekes” has been proved not to be correct in that the list contained non cheke family members such as the 5th & 6th defendants and Gabriel Uwatese is not from Cheke’s family.
The defendants’ witnesses all maintained that the list was by right to be all Chekes family but they added non-members. Therefore the Appellants could not prove an “all Cheke list”, and the true meaning of what the Olu stated, the fact that the Olu signed the Respondents list and not the Appellants list is suggestive of who and what he meant on the selection day, which is as stated by the DW1.
The Appellants frowned heavily on reliance on Exhibit k but offered none nor called any on the history of the town; it was a history of the foundation of the town. The book had been pleaded to enable the Plaintiff get contrary authors. It was agreed that there was a crisis in 2003 wherein the traditional documents were burnt.
Exhibit K was pleaded in paragraph 36 of 3rd amended statement of defence to which the Appellants had no answer therefore they were put on notice of the tendering of the book which speaks on the ancestry of the Ugbodede community and was not contemplated in the controversy leading to this action. At cross-examination, the book was not discredited; the Appellant lost the opportunity to pull the book down. Therefore, the lower Court rightly attached weight to the Exhibit.
Furthermore, the Appellants did not prove that successive Chairmen were from outside the Cheke lineage or that the Ola-aja were from time immemorial from outside the lineage. Having failed to prove this they cannot fault the evaluation of the lower Court.
Declaratory reliefs must be proved even in the face of an admission, (which is not the case here. See NIGERIAN INSTITUTE OF TRANSPORT TECHNOLOGY & ORS v BARSHIR SHITTU (2015) LPELR–25926 (CA); BELLO v EWEKA (1981) 1 SC 101; THANKGOD ANAGO CHIBUIKE & ANOR v BONIFACE OKONKWO & ORS (2015) LPELR–40683 (CA); DUMEZ NIG LTD v PETER NWAKHOBA & ORS (2009) ALL FWLR (PT 461) 842(SC).
I am satisfied that the lower Court couldn’t have done better in evaluating the evidence, on record I need not remind the Appellants that evidence of such traditional history needs to be backed up by other corroborating evidence, see PATRICK GODDY EKWUNO & ORS v BOSAH EKWUNO (2011) LEPER–9180 (CA) especially where evidence that precedes the birth of parties are in question and cuts across fine lines of evidence.
The sole evidence adduced was not enough to sway the Court on preponderance of evidence in his favour it has nothing to do with the psyche of the learned trial Judge but it is trite, and coded in block figures.
Having found that the evidence adduced was conclusive that there was no proof of the Appellants ever in joint ownership and management of the Ugbodede community there is no need to examine recent acts of possession.
The Appellants also made heavy weather that the judgment was perverse and was based on the long time of delivery of judgment. The Appellant did not show the effect or mix-ups in the evaluation of evidence on record neither the mix up in names of witnesses in the judgment. The summary of this is that the Appellants has not demonstrated a credible cogent evidence leading to a miscarriage of justice occasioned by this.
The time of adoption was close to call to vacation and the resumption and activities responsible for the delay attributed to this from the Respondents’ calculation of the period in the Respondents brief.
Permit me to state that this is the danger of bowing to pressures from the Counsel to adopt written addresses very near the start of a vacation. The vacation period is not a time for Judges to carry over judicial work but a time to rest and recuperate, do medical checks on the health and bond with family. This is due to the valuable but intense hours of work done by the Judge both at the bench and continues in the confines of the home study. It is advisable for Judges to take what they can chew and proceed for holidays to avoid this kind of delay.
Howbeit, this Court cannot but find that Section 294 (5) of the Constitution of Nigeria has not been proved, see DAHIRU v KAMALE (SUPRA) where IBIYEYE, JCA held that;
“IT IS NOT ENOUGH TO SHOW THAT EVIDENCE WAS NOT PROPERLY EVALUATED. IT MUST BE SHOWN THAT FACTS WERE NOT PROPERLY REMEMBERED OR SUMMARISED BY THE TRIAL COURT”.
Finally, the Appellants has termed the judgment perverse because the lower Court stated that the suit was not justiceable as the Plaintiffs being Itshekiri could not challenge the Olu of Warri (see page 374 of record paragraphs 1-3), the Appellants’ Counsel came down heavily on the learned trial Judge and went to town on this ground.
I am of the legal view that, it was most uncalled from a senior counsel. Both Judges and counsel are officers serving in the temple of Justice, moreover Judges were first lawyers before Judges and do not claim to be perfect. The respect for the institution has not and should not change, we flow from the same training ground.
From the records the Plaintiff 5th defendant; Evangelist Godwin Okoli-Etuwewe under cross-examination at page 316 of the record stated that;
“…am an itekiri man. The Olu of Warri is the overlord of all Itshekiri. The overlordship extends to Ogbodede. The Olu takes priority over Ola-aja. The 1st defendant is now chairman of Ugbodede community was put there by Olu of Warri.’’
We are not challenging the authorities of the Olu of Warri, only that of the formed EXCO ABY THE THEMSELVES
…the 1st defendant now left the list and, went on to form the executive from all position.
1st defendant now left the list, went on his own to form executive, that is our annoyance’’
Having reproduced so far the stance of the Appellants and evidence on ground that he also sent their list to the Olu and the Respondents sent theirs but the Olu who is the overlord of the community and itshekiris signed that of the Respondents and forwarded it to Shell.
Can it be said that the Respondents acted on their own or that the words of the Olu of Warri to them at selection, meant the Olu of Warri asked the Respondents to present their Exco? The answers to these questions from the record is that the Respondents acted on the instructions of the Olu of Warri therefore a challenge of this amounts to a challenge to the authority of the Olu of Warri, and goes contrary to his evidence that the Olu is the overlord of all Itshekiri and Ugbodede community.
The above analysis means coupled with the evidence of DW1 – CHIEF EMMANUEL ORITSERAJORA JONES that this suit is a direct challenge to the Olu’s authority to select the chairman and direct the affairs of Ugbodede, Community.
Therefore, the lower Court was correct in its analysis which has irked the Appellants’ counsel. He was only caught by DW1’s words which contradicts his evidence. Parties are bound by their pleadings and cannot set up another on appeal.
Even the issue of the school being named after the Arogimema was in evidence and was not from the blues the Court was bound to take it into consideration in its evaluation, features in the land, same was not countered in evidence nor pleading. It was pleaded and was not refuted, I cannot fault the lower Court ‘s reasoning.
The Appellants on this note submitted that the judgment was perverse, the Court has held in the case of MBAKWE v ESIONE (2016) LPELR – 40954 (CA), AGIM, JCA (now JSC) held that;
“It is not enough to assert that the finding or decision of a Court is perverse because it is not supported by pleading and evidence. The party so asserting must establish that assertion by reference to the pleading and evidence that show that the decision is contrary to the pleadings and evidence”
See also; SUNDAY BARIDAM v THE STATE (1994) LPELR – 753 (SC) Where IGUH JSC held;
“A decision is perverse where the trial Judge takes into account or where he shuts his eyes to the obvious or to prove facts in favour of a party, or distorts the facts or evidence in the case so as to tilt the scale of justice in favour of a party see ADIMORA V AJUFO & ORS (1988) 3NWLR (PT 80) 1”
In the light of the above decisions, I have not found any reason for the judgment being perverse; the lower Court properly weighed the evidence of parties on a scale and arrived at its judgment which I find difficult to fault.
I resolve the three issues in one against the Appellant.
On the whole, the appeal lacks merit, fails and is hereby dismissed.
The judgment of Hon. Justice P.O ONAJITE-KUEJUBOLA (MRS) of the Delta State High Court, Warri Judicial division, delivered on the 18th day of December, 2015 is hereby affirmed.
Cost of N300,000 is awarded in favour of the Respondent.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read the draft of the lead judgment before now and agree with my lord, Abimbola Osarugue Obaseki-Adejumo, JCA that the appeal has no merit.
The evidence of tradition as led at the trial Court was clearly in support of the Respondents’ case and the judgment was not perverse as arrived at the trial Court. I adopt the reasons ably adumbrated in the lead and the appeal is dismissed.
JOSEPH EYO EKANEM, J.C.A.: I read before now, a draft of the judgment of my learned brother, Obaseki-Adejumo, JCA which has just been delivered, I agree that the appeal lacks merit and I accordingly dismiss the same.
Appearances:
T. Hamilton For Appellant(s)
U. M. Akpookabayen-Ase For Respondent(s)
