OPARA & ANOR v. OFURUM & ORS
(2020)LCN/15471(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/OW/24/2018
RATIO
GROUNDS OF APPEAL: WHETHER GROUNDS OF APPEAL MUST DERIVE FROM THE JUDGMENT OF THE LOWER COURT
It is trite law that grounds of appeal must derive from the judgment and where this is not done the grounds of appeal together with the issues(s) distilled therefrom are incompetent and must be struck out, see UMAR VS. SPEAKER, TARABA STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR 47244 (CA) PAGES 20 – 21 PARAS A – F.; MOBIL PRODUCING NIGERIA UNLIMITED VS. OKON JOHNSON & ORS (2018) LPELR – 44359 (SC). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
GROUNDS OF APPEAL: WHETHER A PARTY IS ALLOWED TO FORMULATE MORE ISSUES THAN ONE FROM ONE GROUND OF APPEAL.
A party is permitted to distill an issue from one or a combination of grounds of appeal, but no party is allowed to formulate more issues than one from one ground of appeal. See the case of EZEANOCHIE VS. OFOBUIKE & ANOR (2012) LPELR–20432 (CA) this Court, per LOKULO–SODIPE, JCA succinctly stated the position of the law regarding proliferation of issues at pages 20 – 22 paras A – D thus: –
“I have earlier stated in this judgment that both the Appellant and Respondents glaringly engaged in the proliferation of issues for determination in this appeal. Proliferation of issues by parties in an appeal has consistently been condemned by both the Supreme Court and this Court in a plethora of cases: see EKE V. IBE (2009) ALL FWLR (PT.488) 315. Indeed, in the case of AMODU V. THE COMMANDANT, POLICE COLLEGE, MAIDUGURI (2009) 195 at 203 – 204, the Supreme Court dwelled extensively on proliferation of issues for determination and stated per Muntaka-Coomassie, JSC; at pages 203 – 204 thus:- “Before I proceed further, it will be necessary to point out that the appellant herein, in his notice of appeal dated 15 July 2003 contained only one ground of appeal, in which he questioned the judgment of the lower Court as follows: “The learned Justices of the Court of Appeal erred in law when they found that the evidence of DFW2 could not be correctly applied to sustain appellant’s case, since the piece of evidence in question was not pleaded by either the plaintiff/appellant or the defendants/respondents and this has occasioned a miscarriage of justice”. It is in respect of this ground of appeal that the appellant has distilled three issues for determination. This, in my view, amounts to proliferation of issues for determination. This Court on several occasions has frowned at proliferation of issues for determination which is in excess of the numbers of grounds of appeal filed. In the case of Yadis Nigeria Ltd v. Great Nigeria insurance company Ltd (2007) All FWLR (pt.370) 1348, (2007) SCNJ 86, where a similar situation (sic) in this case occurred, this Court held follows: page 109, 2nd to the last paragraph when Onnoghen JSC, stated thus: “I have to observe that there is only one ground of cross-appeal as is contained in the notice of cross- appeal filed on 5 October 2006. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent”. In the case of Orji v. State (2008) 4 SCNJ 85, this Court, per Mukhtar JSC held as follows at page 94: “Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. They must not outnumber the grounds of appeal, for where they so outnumber them, there is the danger that some issues do not derive their source from the grounds of appeal, and therefore not related to one another. It is trite that an issue, that does not so relate will not be tolerated…” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. SAMUEL OPARA 2. TIMOTHY OPARA (For Themselves And As Representing The Chikeka Opara Oriaku Family Of Umuogbo Uratta In The Owerri North L.G.A. (Substituted By Order Of Court On The 14th Day Of January 2019) APPELANT(S)
And
1. MARTIN OFURUM (For Himself And As Representing The Ofurum Family Of Umuorii Uratta In The Owerri North L.G.A) 2. BONIFACE ARIRI EGBEWUIKE (For Himself And As Representing The Egbewuike Family Of Umuorii Uratta In The Owerri North L.G.A) 3. ANDREW NNADI OWUAMANAM (For Himself And As Representing The Nnadi Obioma Nwakeji-Ofolo Family Of Umuorii Uratta In The Owerri North L.G.A) RESPONDENT(S)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal Imo State, sitting at Owerri (Coram: Hon. Justice C. U Anwukah PJ; M. E. Njoku, J. and V. U. Okorie, J. (to be referred to as the “Lower Court”) in appeal No. CCA/OW/A/14/2015, delivered on 4/7/2017, striking out the appeal and allowing the Cross Appeal, and remitted the case back to the Customary Court Owerri Urban (to be referred to as the “Trial Court”) to be heard de novo.
The judgment of the Lower Court is contained on pages 592 – 618 of the Record of Appeal (to be referred to as the “Record” for short).
Piqued by the decision of the Lower Court, the Original Appellant on Record, Oha Emmanuel Opara filed a Notice of Appeal containing 3 grounds on 13/7/2017, (see pages 619–624 of the Record.
On 25/7/2017, Martin Ofurum, who was the Plaintiff at the Trial Court cross appealed against the said judgment on two (2) grounds of appeal. See pages 625–626 of the Record.
While the appeal was pending the Original Appellant (Oha Emmanuel Opara) died on the 23rd day of March, 2018 and was buried on the 26th April 2018. Leave of this Court was sought and obtained on 14th January 2019 to substitute the Original Appellant on record with the present Appellants, Samuel Opara and Timothy Opara. The Notice of Appeal, the Appellants’ Brief of Argument and other processes were accordingly duly amended and refiled.
The Record was compiled and transmitted to this Court on 23/1/2018 but deemed properly compiled and transmitted on 14/1/2019.
The Appellants’ brief of Argument and Reply Brief, settled by Ngozi Olehi Esq were filed on 12/3/2019 and 8/4/2019 respectively.
The 1st Respondent/Cross Appellant filed his Brief of Argument settled by A. Chiedu Mezu Esq. on 20/3/2019. The 2nd Respondent’s Brief, settled by Don Oweregbulam Esq. was filed on 27/3/2019. The 3rd Respondent’s Brief settled by E. C. Mere Esq. was filed on 23/9/2020. The 1st Respondent’s Reply Brief to the Cross Appellant’s Brief settled by Nkasiobi E. Madumere Esq. was filed on 7/3/2019.
The appeal was heard by this Court on the 29th day of September, 2020 on which date Ngozi Olehi Esq. appeared for the Appellants; A. Chiedu Mezu Esq. with C. I. Njoku Esq. appeared for the 1st Respondent/Cross Appellant; Don Oweregbulam Esq. appeared for the 2nd Respondent, while E. C. Mere Esq. with R. U. Madukolam Esq. appeared for the 3rd Respondent. All Counsel adopted their respective Briefs. The Appellants urged us to allow the appeal and set aside the decision of the Lower Court. The 1st Respondent/Cross Appellant urged us to dismiss the main appeal and allow the Cross Appeal. The 2nd and 3rd Respondents urged us to dismiss both the main and Cross Appeals and affirm the decision of the Lower Court.
The facts of the case as can be gleaned from the Record are that the Ofurum Family Umuogbe Umuorii Uratta in Owerri North L.G.A by a letter of authority dated 6/5/1999, mandated Mr. Dennis Ofurum and Mr. Martin Ofurum to file a suit against Mr. Peter Ugwuegbu Egbewuike, Mr. Boniface Ariri Egbewuike and Mr. Andrew Nnadi Egbewuike in a representative capacity in respect of their land known as and called Ndagwuru Ala Mgbaboano situate at Umugbo Umuorii Uratta in Owerri North L.G.A of Imo State. Armed with this letter of authority Dennis Ofurum and Martin Ofurum took out a summons dated 11/5/1999 against the aforementioned Defendants in the trial Court claiming the following:-
“1. A Declaration that the Plaintiffs are entitled to the grant of a Customary Right of Occupancy to all that piece or parcel of land known as and called “NDAGWURU ALA MGBABOANO” situate at Umuorii Uratta in the Owerri North Local Government Area of Imo State.
2. An Order of Court on the Defendants to accept the redemption fee of Nnu Ogodo Iri na Out now N110. 00 (one Hundred and Ten Naira) and surrender possession of the said Ndagwuru Ala Mgbaboano land to the Plaintiffs.
3. Perpetual injunction restraining the Defendants, their servants, agent and privies jointly and/or severally trespassing into the aforesaid land.” (See pages 1-3 of the Record)
After several adjournments and the case spanning almost ten years, the matter was finally decided by the Trial Court in favour of the Plaintiffs, which resulted in the appeal to the Lower Court, which decided the appeal as earlier indicated in this judgment, resulting in this appeal.
The Amended Notice of Appeal contains three grounds of Appeal, which without their particulars are: –
GROUND 1: ERROR OF CUSTOMARY LAW
The Honourable Customary Court of Appeal, Imo State sitting at Owerri erred in Customary Law when it ignored the unchallenged and cogent traditional evidence of the Appellant (sic) in striking out the Appellant’s (sic) competent appeal in respect of which the lower Court’s jurisdiction was not challenged in any manner whatsoever.
GROUND 2: ERROR OF LAW
The Honourable Customary Court of Appeal, Imo State sitting at Owerri erred in Customary Law when it failed to allow the appeal upon the ground that the Appellants proved the identity of the land in dispute and thus entitled to the customary right of occupancy.
GROUND 3: ERROR OF LAW
The Honourable Customary Court of Appeal, Imo State sitting at Owerri erred in law when it breached the Appellants’ right to fair hearing in making no pronouncement on the Appellants’ appeal in spite of the absence of any manner of challenge to the competence of the Grounds of Appeal or jurisdiction of the Court below to entertain the appeal.”
The Appellant sought from this Court the following reliefs: –
“1. Set aside the entire decision of the Court below relating to the Grounds of Appeal in this Notice of Appeal of the Appellants.
2. Set aside the Order of the trial Court by which it wrongly awarded the land in dispute to the 1st Respondent hereto who did not supply any valid traditional evidence or trace his root of title.
3. Granting the reliefs and declaration sought in the Court below pursuant to Section 15 of the Court of Appeal Act, 2004.”
From the 3 grounds of appeal the Appellants’ Learned Counsel formulated 3 issues for determination thus: –
“1. Whether the Court below did not violate the Appellants’ right to fair hearing when it struck out the Appellants’ appeal and remitted the case back to the trial customary Court without casting even a glance at the issues canvassed in the Appellants’ Brief on the mere ground that the trial Court did not consider the final written address of Counsel to the 2nd Respondent in delivering the judgment appealed against to the Court below. GROUND 3
2. Whether the Court below was right when it ignored the credible and cogent traditional evidence of the Appellants in striking out the Appellants’ appeal in respect of which neither the lower Court’s injunction nor the competence of the grounds of appeal was challenged. GROUND 1
3. Whether the Court below was right when it held that the 1st Respondent was entitled to customary right of occupancy when he did not prove identity of the land in dispute. GROUND 3.”
The 1st Respondent adopted the above issues formulated by the Appellants.
The 2nd Respondent identified 2 issues for determination which are: –
“ISSUE 1: Whether a Final Written Address of counsel is part of hearing in a suit and if so, whether non-consideration, at all, of the final written address, though duly filed, does not constitute a breach of the right to fair hearing of the party on whose behalf the address was filed.
ISSUE 2: Whether the Appellant (sic) discharged the burden of proof place (sic) on him (sic) as to be entitled to the reliefs sought in this appeal.”
The 3rd Respondent formulated 3 issues thus: –
“1) Whether this suit of the Plaintiff is grossly incompetent as the representation of the parties were for non juristic persons and persons not known to law?
2. Whether there was breach of fundamental rights of a party by the trial Court?
3. Whether the Plaintiff proved his root of title to warrant the trial Court giving him judgment?”
The 1st Respondent filed a Notice of Cross Appeal on 15/7/2017 containing 3 grounds which are as follows: –
“(A) GROUND ONE: ERROR IN CUSTOMARY LAW
The lower Court erred in Customary Law when it held that an appeal based on a ground of appeal of breach of fundamental human right qualifies as a ground of appeal under customary law and went ahead to allow the cross appeal solely on that ground.
PARTICULARS
1. The Cross Appellant/First Respondent had alleged that the trial Court did not consider his Counsels (sic) address while writing its judgment and as such it amounted to a breach of his fundamental human right to fair hearing.
2. The Customary Court of Appeal Imo State went ahead to hold that a ground of appeal based on breach of fundamental human right to fair hearing is a valid ground of appeal under customary law.
3. The Customary Court of Appeal Imo State ignored the plethora of authorities of superior Courts which hold that a ground of Appeal based on breach of fundamental human rights did not qualify as a valid ground of appeal under Customary Law.
4. This error of the Customary Court of Appeal Imo State led to a miscarriage of justice.
(B) GROUND 2:
The judgment is against the weight of evidence.
(C) GROUND 3:
Further grounds of Appeal shall be filed on receipt of the records of Appeal.”
The reliefs sought by the Cross Appellant are as follows: –
“The Honourable Court of Appeal is urged to allow the Appeal, set aside the judgment of the Customary Court of Appeal Imo State delivered on the 4th day of July, 2019 and affirm the judgment of the trial Customary Court Owerri Urban delivered on the 30th day of May, 2014.”
I note here that the Cross Appellant actually filed only two Grounds of Appeal instead of three indicated by him, with the information that further grounds of appeal would be filed on the receipt of the Record, which of course, he did not file on receipt of the said Record.
The Cross Appellant formulated a lone issue from the two Grounds of Appeal thus:-
“Whether the Customary Court of Appeal Imo State had the Jurisdiction to entertain the Cross Appeal in view of the provisions of Section 282 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Distilled from the only Ground of Appeal Ground 1.”
I shall now take the submissions of learned Counsel in their various Briefs of Argument.
MAIN APPEAL
APPELLANT
ISSUE 1:
“Whether the Court below did not violate the Appellants’ right to fair hearing when it struck out the Appellants’ appeal and remitted the case back to the trial customary Court without casting even a glance at the issues canvassed in the Appellants’ Brief on the mere ground that the trial Court did not consider the Final Written Address of counsel to the 2nd Respondent in delivering the judgment appealed against to the Court below. GROUND 3.”
Ngozi Olehi Esq. submitted that the Appellants utilized their right of appeal guaranteed by Section 282 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (hitherto in this judgment to be referred to as the “Constitution”) to appeal against the decision of the Customary Court Owerri Urban to the Customary Court of Appeal, Imo State sitting in Owerri, strictly on grounds of customary law; that there was neither any challenge to the jurisdiction of the Customary Court of Appeal nor to the competence of the grounds of appeal and the issues distilled from the grounds; that the 2nd Respondent filed a Cross Appeal in which he raised an awkward ground of appeal that the trial Customary Court Owerri Urban did not consider his Final Written Address and so alleged that his fundamental human right to fair hearing was breached; that their appeal was struck out by the Customary Court of Appeal on the basis of non-consideration of the Final Written Address of the 2nd Respondent’s Learned Counsel to give way for retrial; that the striking out of the appeal was a most unwarranted breach of Appellants’ right to fair hearing which was done just to protect the 2nd Respondent’s purported right to fair hearing at the trial Court; that the Court below did not consider that right to fair hearing is two-edged sword to the Plaintiff to be heard timeously and or the Defendant to avail itself the rights which are constitutionally extended to it by the Court to present its side of the case, in which the Courts must hear both parties, relying on the cases of NEWSWATCH COMMUNICATIONS LTD VS. ATTA (2006) ALL FWLR (PT. 318) 580 at 603 paras B–C; PATRICK D. MAGIT VS. UNIVERSITY OF AGRICULTURE & ORS (2006) ALL FWLR (PT. 298) 1313 at 1332 paras F–H; T. M. ORUGBO & ANOR. VS. BUHARI UNA & 10 ORS. (2002) FWLR (PT. 127) 1024; ACCESS BANK PLC. VS. ADEWUSI (2017) ALL FWLR (PT. 883) 1373 at 1402 paras E–B.
Learned Counsel referred to the holding of the Court below in respect of non-evaluation of the Final Written Address of the Cross Appellant at the trial Court and submitted that the Appellants have their right of appeal guaranteed by Section 282 (1) of the Constitution, which the Lower Court breached, relying on UGBA VS. SUSWAM (2014) ALL NWLR (PT. 948) 825; OTTIH VS. OGAH (2017) ALL FWLR (PT. 886) 2075 at 2115 paras B–C; that the striking out of the Appellants’ appeal by the Court below was a breach of their right to fair hearing, an aberration and a travesty of justice, relying on many cases among which are:-
(1) MFA VS. INONGHA (2014) ALL FWLR (PT. 727) 628; DEDUWA VS. OKORODUDU (1976) 1 NWLR 236; 7-UP BOTTLING CO. VS. ABIOLA & SONS (NIG) LTD (1995) 3 SCNJ 37;
(2) BUHARI VS. OBASANJO (2005) ALL FWLR (PT.273) 1;
(3) OGUNSANYA VS. THE STATE (2011) (PT. 590) 1203 (wrong citation);
(4) EFFIOM & ORS VS. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) ALL FWLR (PT. 552) 1610;
(5) LAWAN ABDULLAHI BUBA WASSAH & 2 ORS VS. TUKSHAHE KARA & 2 ORS (2015) ALL FWLR (PT. 769) 1034, etc.
Learned Counsel submitted that the trial Court had found that the 2nd Respondent had failed to prove its case and so dismissed it and therefore the question of retrial did not arise at the Court below; that the Lower Court ought to have relied on Section 21 of the Customary Courts EDICT (sic) 1984 and Order 5 Rule 4 of the Court of Appeal Rules 1989 in considering the Final Written Address and making any necessary order it deemed fit in the circumstances, rather than remitting the case back to the Trial Court for retrial; that the case ofUMA VS. EFFIOM (2014) ALL FWLR (PT. 731) 1628 relied upon by the Lower Court in sending the case back for retrial does not apply to this case; that the Lower Court did not adhere to the principles of law in ordering a retrial, relying on DURU VS. ONWUMELU (2002) FWLR (PT.89) 1194 at 1217 paras E-G; ONYEAMA VS. AMAH (1988) 1 NWLR (PT.73) 772, and urged us to resolve issue 1 in favour of the Appellants.
ISSUE 2
“Whether the Court below was right when it ignored the credible and cogent traditional evidence of the Appellants in striking out the Appellants’ Appeal in respect of which neither the lower Court’s jurisdiction nor the competence of the grounds of appeal was challenged. Ground 1”
Learned Counsel contended that the Appellants filed valid grounds of appeal and distilled valid issues from the said grounds and so were entitled to be given due consideration without being denied their right of appeal, relying on OTTIH VS. OGAH (2017) ALL FWLR (PT. 883) 2075; NGERE VS. OKURUKET (2014) ALL FWLR (PT. 742) 1766 and KATOL INVESTMENT LTD VS. UACN PROPERTY DEVELOPMENT CO. PLC (2011) 16 NWLR (PT. 1273) 211; that the Court below ought to have taken into consideration the fact that in a claim of declaration of title to land, the Plaintiff (1st Respondent) has the burden of proving his case upon the strength of his own case based on cogent and credible evidence, without relying on the weakness of the defence, citing EYO VS, ONUOHA (2011) ALL FWLR (PT. 574) 1 at 39 paras G–H; OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 614 at 659 paras F–G; AIKHIONBARE VS. OMOREGIE (1976) 12 SC 11 and ONIBUDO VS. AKIBU (1982) 7 SC 60.
Learned Counsel submitted that in the instant case which is predicated on traditional evidence, the 1st Respondent (as Plaintiff) and the Appellants (being Counter Claimants) are bound to lead evidence to establish the three basic elements of traditional evidence to writ: who founded the land, how he founded it, and how the land devolved over the years until it got to the claimant, relying onOLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT. 75) 238; that in a claim of declaration to title the Plaintiff or Counter Claimant can succeed solely on traditional evidence, relying on F. M. ALADE VS. LAWRENCE AWO (1975) 4 SC 215; RUNSEWE VS. ODUTOLA (1996) 4 NWLR (PT. 441) 143; OKOKO VS. DAKOLO (2006) ALL FWLR (PT. 336) 201 at 219 paras E–F; EZE & ORS VS. ATASIE & ORS (2000) FWLR (PT. 13) 201 at 2180 at 2193 paras E–F.
Learned Counsel also submitted that in this case the 1st Respondent could not prove the traditional history and how the land devolved to him; he referred to the evidence of 1st Plaintiff, Late Dennis Ofurum, given on 25/6/2003 and submitted that the 1st Respondent did not prove his case and so was not entitled to the grant of declaration, as opposed to the Appellants who clearly established their root of title through traditional history, relying on DIKE & 2 ORS VS. OKOLOEDO & 2 ORS (1999) 10 NWLR (PT. 623) 359; MAKINDE & ORS VS. AKINWALE & ORS (2000) FWLR (PT. 25) 1563 at 1580 paras A–B; EZEOKONKWO & ORS VS. OKEKE (2002) FWLR (PT. 109) 1652; ANYANWU VS. MBARA (1992) 5 NWLR (PT. 242) 386 at 399; ADEJUMO VS. AYANTEGBE (1989) 3 NWLR (PT. 110) 417. Counsel cited many more cases and submitted that the Appellants’ evidence of traditional history was more cogent, credible and reliable than that of the 1st Respondent and urged us to resolve this issue in favour of the Appellants.
ISSUE 3
“Whether the Court below was right when it held that the 1st Respondent was entitled to customary right of occupancy when he did not prove identity of the land in dispute. Ground 3.”
The Appellants under this issue attacked the non-compliance by the 1st Respondent with the provisions of Order 10 Rule 15 (2) of the Customary Court Rules 1989 of Imo State, which Rule provided for the use of sketch of the plan of the land in dispute duly endorsed by a licensed Surveyor by the 1st Respondent and of course other Respondents at the trial Court. He submitted that only the Appellants complied with the provision; that the trial Court refused to admit the sketch plan as an exhibit which is a breach of the fundamental rights of the Appellants; that the admissibility of the sketch (which had earlier, on 25/7/13, been admitted as Exhibit E) does not depend on whether or not the other parties filed any such sketch plan. Learned counsel urged us to treat the sketch plan as having been duly admitted in view of the fact that it was already given exhibit mark as “Exhibit E”, and take into consideration the fact that its rejection amounts to breach of Order 10 Rule 15 (2) of the Customary Court Rules 1989 and the violation of the Appellants’ fundamental human right to fair hearing; that the identity of any parcel of land in dispute must clearly and satisfactorily be ascertained; that the 1st Respondent, as Plaintiff, was expected by law to prove the identity of the disputed land with such clarity that a surveyor can draw the map of the land by looking at its description from the record of proceeding, relying on OLOSHE VS. OGUNBODE (2003) FWLR (PT. 148) 1326; OKEDARE VS. ADEBARA (1994) 6 NWLR (PT. 349) 15.
Learned Counsel submitted that the 2nd and 3rd Respondents at the trial Court did not bother to comply with the provisions of Order 10 Rule 15 (2) of the Customary Court Rules 1989; that the 1st Respondent (as Plaintiff at the trial Court) did not comply with the said provision which is fatal to his case as the Plaintiff, as he failed to prove the identity of the land in dispute and so his claim must be dismissed, relying on CHIEF J. E. BABATOLA VS. OBA ALADEJANA, THE ALAWOROKO (2001) ALL FWLR (PT. 61) 1670 at 1680; UMESIE & ORS VS. ONUAGULUCHI & ORS (1995) 5 NWLR (PT. 721) 515 at 538.
Learned Counsel submitted that the 1st Respondent could not take advantage of the visit to locus in quo to establish his case, and so urged us to resolve this issue in favour of the Appellants.
In conclusion, Learned Counsel submitted that the conduct of the Court below in allowing the cross appeal and striking out Appellants’ appeal was a breach of the fundamental right to fair hearing of the Appellants; that the Court below cannot, in purporting to uphold one’s right to fair hearing, grievously violate another fundamental right to fair hearing as to do so will be unjust; that the Court below failed to look at the traditional evidence before it in coming to the conclusion of who rightly owns the land, which is wrong in law; that the Appellants were the only parties that tendered evidence of cogent and credible traditional history and therefore ought to be declared the owner; that whoever claims title to land must give evidence of who founded the land, how the land was founded, and how the land devolved over the years, until it got to the claimant, relying on OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT.75) 238; that the 1st Respondent to whom the trial Court awarded title of the land did not prove this, and only the Appellants did through DW4; that suits in land matters are actions in rem and bind the whole world, hence a Claimant or Counter Claimant as the case may be, in a land matter must describe the land in such a way that a surveyor must be able to produce a survey plan of the land in dispute from the record of the Court as described by the Claimant, which in this case, the Appellants did, and are therefore entitled to judgment in their favour. We are urged to allow the appeal, set aside the judgment of the Court below and declare that the Appellants are entitled to their reliefs sought in this appeal and in their cross action at the trial Court.
The 1st Respondent in his Brief of Argument, summarised the facts of the case and adopted the issues as formulated by the Appellants, and submitted as follows:-
ISSUE 1
That Appellate Courts in determining appeals before them may consider deciding on all issues raised mere academic exercise if it is considered that one of the issues raised, if in the negative, was enough to dismiss the appeal, and that none of the other issues raised if positive, could remedy or save the appeal; that by Section 245 (1) of the Constitution Ground 3 of the Grounds of Appeal from which this issue 1 is distilled is not a valid ground of appeal in matter grounded in customary law; that a question of customary law arises only when the controversy involves a determination of what the relevant customary law is and the application of the customary law so ascertained to the question in controversy, relying onPAM VS. GWOM (2000) 4 LRCN 23; HIRNOR VS. YONGO (2003) 9 NWLR (PT. 824) 77. Learned Counsel then urged us to hold that ground 3 of the Appellants’ Grounds of Appeal is incompetent having not raised any question of customary law, and then resolve issue 1 in favour of the Plaintiff/1st Respondent.
ISSUE 2
That the Appellants having counter claimed, the onus is upon them to prove that the land in dispute was theirs by credible and cogent evidence on the balance of probability, which the Appellants failed to do in this case, as they did not establish the alleged pledge of the land to the 3rd Respondent, relying on MELIFONWU VS. EGBUJI (1982) 9 S.C 145. Learned Counsel argued that the Appellants did not prove their claims of a pledge and their Counter-Claim was clearly overreaching, referring to DW4’s evidence at page 79 lines 15 – 24 of the Record; that where there are 2 competing histories/traditional evidence in proof of title to land as in this case, traditional evidence should be tested by reference to facts in recent years, as established by evidence and by seeing which of the two competing histories is more probable; that it is improbable to determine it by mere reliance on the demeanor of the witnesses, relying on THANNI VS. SAIBU (1977) 2 SC 89; that the Appellants’ traditional evidence was further vitiated by the fact that no member of the Chikeka Oriaku Family whom the Plaintiff/1st Respondent and 2nd Respondent specifically mentioned as the Family from which one of their sons was involved in the events surrounding the land showed any interest in the land in dispute; that at the time this matter was before Oha Umuorri and Oha Uratta, a member of the Chikeka family was the village head of Umuorii and never said the land in dispute belonged to his family; that the inference to be drawn from this is that the 3rd Respondent dragged the Appellants into this matter but their greed could not allow them present a common front. Learned Counsel then referred us to pages 343-398 of the Record and submitted that the land in dispute originally belonged to the 1st Respondent/Cross Appellant as held by the Oha Uratta in their traditional arbitration award Exhibit A and corroborated by DW3 at the trial Court, and then urged us to resolve this issue against the Appellants and in favour of the 1st Respondent.
ISSUE 3
Learned Counsel submitted under this issue that the identity of a piece of land in dispute can be proved by: –
1. Description of the disputed land such that a surveyor could draw a plan from such description.
2. By means of a survey plan.
3. By a sketch.
4. By visit to the locus by the Court and the parties, relying on ARABE VS. ASANLU (1980) 5–7 SC 78 at 90; OKE & ORS VS. EKE & ORS (1982) 12 SC 218 at 232.
Counsel submitted further that the 1st Respondent in his evidence in Court gave a valid description of the farm in his evidence and tendered his sketch and had closed his case long before the Appellants decided to join in the case and sought to tender their sketches amid strong oppositions which made the Trial Judge to reject their sketches and preferred to visit the locus. We were urged to reject the plea of the Appellants to readmit the sketch referred to as Exhibit E as same was overreaching to the 1st Respondent.
Learned Counsel contended that the 1st Respondent gave a vivid description of the land in dispute and produced his boundary neighbours at the locus to show their respective boundaries while the Appellants on the other hand Counter-claimed for “ALA NDAGWURU ALA MGBABOANO” but gave evidence in respect of “ALA NDAGWURU or ISHINKPORO”, which land was not known by any other name; that in the rejected sketch the land was referred to as “ALA UMUODARO” land of the 3rd Defendant as if the land personally belonged to the 3rd Defendant; that at the locus the Appellants could not identify the “ALA NKWAPITU ORU” which he said his father left to show that the land belonged to them (which was an imitation of the Plaintiff/1st Respondent’s evidence); that he could not show the boundaries of the land in dispute and could not also produce boundary men to show their respective boundaries; that there was no doubt created in the mind of the trial Court about the identity of land in dispute; that survey plans or sketches are only necessary in land matters where it is not possible to ascertain the location or identities or boundaries of the land in dispute, referring toSALAMI VS. GBODOOLU (1997) 49 LRCN 1020; that the absence of survey plans or sketches is not fatal to the case of a Plaintiff if proper description of the land has been given in the proceedings, relying on ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; EMIRI VS. IMIEYEH (1999) 4 NWLR (PT. 599) 442; ALLI VS. ALESINLOYE (2000) 6 NWLR (PT. 660) 177; learned Counsel then urged us to hold that the Plaintiff proved the identity of the land in dispute and then resolve this issue in favour of the Plaintiff/1st Respondent.
In conclusion learned Counsel submitted that: –
“a. Ground 3 of the Appellants’ Grounds of Appeal from which issue 3 was distilled is incompetent; moreover, the Courts dismiss an appeal after considering only one issue if in its considered opinion the other issues raised in the Appeal no matter their outcome cannot save the Appeal.
b. The evidence led by the Plaintiff/1st Respondent and his witnesses at the trial Court was more cogent and credible and that the trial Court was right in awarding the 1st Respondent title to the Customary Right of Occupancy of the disputed land.
c. The 1st Respondent sufficiently described the land in dispute at the trial Court which was more cogent and credible and that the trial Court was right to have awarded the land in dispute to the 1st Respondent as being entitled to the Customary Right of Occupancy of the disputed land.
d. The 1st Respondent sufficiently described the land in dispute at the trial and went ahead to produce his boundary neighbours who showed their respective boundaries with him; that throughout the trial no single witness said they could not identify the disputed land.”
Learned Counsel then urged us to dismiss the appeal, set aside the judgment of the Customary Court of Appeal Imo State and affirm the judgment of the Customary Court Owerri Urban.
The 2nd Respondent on his own part formulated two issues which are: –
“ISSUE 1:
Whether a Final Written Address of Counsel is part of hearing in a suit and if so, whether non-consideration, at all, of the Final Written Address, though duly filed, does not constitute a breach of the right to fair hearing of the party on whose behalf the address was filed.
ISSUE 2:
Whether the Appellant discharged the burden of proof place (sic) on him as to be entitled to the reliefs sought in this appeal.”
Issue 1 is said to be a response to issue 2 of the Appellants. At the trial Court the 2nd Respondent had submitted a written address like the other parties. However, in its judgment the trial Court had commented thus: –
“1st defendant’s Counsel did not formulate any issue for determination rather argued his case in reply to each Counsel’s address.”
Miffed by the above comment, the 2nd Respondent’s Counsel has formulated issues in which he referred to the comment as “reckless oversight”.
The trial Court had adopted the lone issue formulated by the 2nd Defendant’s Counsel in his written address thus: –
“As between the Plaintiff, the 1st Defendant, the 2nd Defendant and the 3rd Defendant, who is the rightful person, based on the evidence tendered, entitled to the Customary Right of Occupancy over the land in dispute.”
Learned Counsel stated that the 2nd Respondent did not initiate any action whether by way of cross-action or counter claim at the trial Court. Therefore, the adoption of the lone issue (which learned Counsel termed “perverse adoption”) was regarded as a flaw. He submitted that the 2nd Respondent, being no more than a Defendant, was now unduly straitjacketed by the trial Court; that a party’s Counsel’s Final Written Address is a summation of such party’s case, with highlights on the strengths of the case of such party and the weaknesses of the other parties in the suit; that an exclusion of a final written address, if duly filed, is a fetter on the ventilation of such a party’s case and therefore a breach of his fundamental right to fair hearing which calls for the nullification of the proceedings, relying on UGWU VS. ALAEBO (2006) ALL FWLR (PT. 309) 1474. He submitted that the breach should make the Appellate Court set aside the judgment of the trial Court and alternatively the parties be non-suited, citing UNION BANK PLC VS. OMNI PRODUCT (NIG) LTD (2006) ALL FWLR (PT. 323) 1726.
Learned Counsel referred to the written address of the 2nd Respondent at pages 103 – 114 of the Record and submitted that the final written address of Counsel to parties in a suit is an integral part of the trial proceedings and a failure of a trial Court to consider submission made in the final written address of Counsel to a party is a deprivation or breach of such party’s fundamental right to fair hearing, relying on J.S.C CROSS RIVERS STATE VS. YOUNG (2014) ALL FWLR (PT. 714) 40 at 59 paras E – H; that the purpose and purport of a final written address of Counsel is to weave the case of a party into a composite whole by marrying the facts in the evidence led before the Court, with the law applicable thereto so as to bring the issues in controversy into sharp focus for better appreciation by the Court, referring to HARUNA VS. UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT. 304) 432; that a breach of a party’s fundamental right to fair hearing nullifies the entire proceedings, which issue can be raised at any time and stage by the affected party, relying on UMA VS. EFFIOM (2014) ALL FWLR (PT. 731) 1628 at 1645 paras G–H and PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL LTD (2011) FWLR (PT. 571) 1428 at 1477 paras F–G; that in the instant case, the adoption of the lone issue of the 2nd Defendant’s counsel is akin to the trial Court foisting upon the 2nd Respondent a burden which the law does not place on him or permits to be placed on him, which is prejudicial to him as the burden of proof remains with the Plaintiff and the Counter-claimant. We were urged to resolve this issue in favour of the 2nd Respondent.
ISSUE 2
Learned Counsel noted that a significant point which appears to have eluded Appellants’ Counsel is that the 2nd Respondent was not a Claimant or Counter-Claimant at the trial Court; that this is understandable because for the 12 years that the battle on the suit raged on to the knowledge of the Appellants’ family, the Appellants ignored or failed to bring themselves into the picture only to swoop down when the feast of the evidence from other parties have been laid out on the table of justice, the fabric of which their then representative, Oha Emmanuel Chikeka Opara, then smartly weaved into an ingenious tapestry of truth, half-truths and outright fallacy, which his Counsel then garnished with the sagacity of a resourceful Counsel.
Learned Counsel then put this poser “the question that begs for an answer is, how come the 2nd Respondent’s family had, for decades, been, and until date, still is in possession of the land in dispute?” Counsel then stated that the 2nd Respondent had, in his evidence at the trial Court shown his family’s root of title, to wit, grant from Plaintiff/1st Respondent’s family thought dead or sold into slavery. He submitted that there was no legal duty on 2nd Respondent to trace the root of title of the Plaintiff/1st Respondent’s family at the trial, when Plaintiff/1st Respondent’s family is itself, a party in the suit and claiming entitlement to the same said land in dispute.
Learned Counsel submitted further that the 2nd Respondent as the Defendant without more, had no legal obligation to give evidence at the Trial Court, and the Appellants as Counter-claimants and the 1st Respondent, as the Plaintiff failed to prove their claims respectively; that it is only when they succeeded in the proof that the burden could shift on the 2nd Respondent; that in this case the burden never shifted; that the Appellants who came into this suit late barged in on this suit which could well have ended years before he even thought of coming in, but that the Appellants made an over-kill when they Counter-claimed in the suit, thus placing on themselves, such a heavy burden of proof that they buckled under its weight giving inchoate, contradictory, wholly rebutted evidence they led at the trial Court; that the efforts of their Counsel to garnish and butter up their evidence through final written address did not succeed in swaying the view of the trial Court. We were urged not to countenance the written address of the Appellants, though persuasive, on the real question in controversy in this appeal given the grounds thereof and the issues therefrom.
Learned Counsel further submitted that a party seeking declaration of title to land must specifically identify the land in dispute, and that the Appellants in this case did not even know the land they were counter-claiming and asking for declaration of entitlement over as in their counter-claim they called the land in dispute “NDAGWURUGWU ALA MGBABOANO” but in their evidence in chief they called it “ALA NDAGWURUGWU” and went further to import a strange name “ISHI NKPORO” which was never mentioned in their counter-claim at the trial Court; that the Appellants’ position was not made any better when their witness testifying as DW5 at the trial, called the land he came to testify on to be MPORO ALAEGBU, a distinct, distant and separate parcel of land from the land in dispute. Learned Counsel stated that the Appellants made frantic effort to smuggle in a sketch which could not stand the fire of objection and the trial Court wisely jettisoned the sketch and rather relied upon visual inspection of the land in dispute; that at the locus, the Appellants’ representatives as 3rd Defendant could not identify any features he alleged to be on the land including the boundary neighbours who are different from those mentioned in their evidence at the trial Court.
In respect to Order 10 Rule 15 (2) of the Imo State Customary Court Rules 1989, learned Counsel submitted that at best, it is directory and only as regards a Plaintiff and not mandatory on a defendant and therefore there was no question of an order that needed to be complied with by the 2nd Respondent.
It is further submitted that the Appellants’ fundamental right to fair hearing was not breached by the trial Court as all parties were given the opportunity to call their witnesses at the locus in quo.
On the pledge, it is submitted that the Appellants relied heavily on the pledge of the disputed land by their family to the 3rd Defendant’s family simply because the 2nd Defendant who is the most clueless of all the parties in this suit, and embarrassingly bereft of the history of the land in dispute had said so in his evidence in chief at the trial Court; that curiously enough, whatever argument Appellants proffer, relying on the 2nd Defendant’s evidence, equally worked against them (the Appellants) given that the 2nd Defendant left his evidence still birthed at the trial Court, so that the Appellants cannot in one breath decimate the evidence of the 2nd Defendant and in the same breath seek to rely on it to authenticate and validate Appellants’ family evidence of the pledge; that the Appellants’ evidence on the pledge crashed with the decimation of the evidence of the 2nd Defendant on the issue of the pledge, which the law forbids a party from approbating and reprobating on the same issue; that the law requires a claimant/counter claimant relying on a pledge to prove and show: –
i. Which family member or head that pledged the land;
ii. How much the land was pledge for;
iii. To whom it was pledged and
iv. Those who witnessed the pledge transaction.
Learned Counsel raised the questions: if the pledge claim was true, why was it that Bernard Chikeka, who was the Appellants’ family member and chairman at the Oha Umuorri and Oha Uratta council of elders when the arbitration was being conducted, did not challenge the issue of a pledge nor raise any issue but remain nonchalant over it? Why did Bernard Chikeka remain aloft when the matter was being litigated at the trial Court? Learned Counsel submitted that neither the Appellants nor the 1st Respondent proved the pledge they alleged and so could not succeed in their declaratory relief being sought; that possession is nine-tenth of the law and so there was no doubt, which was admitted by the Appellants, that the 2nd Respondent has been in possession of the land in dispute, which fact was confirmed at the locus in quo; that a person in possession can only be ousted by a person who has a better title; that Appellants failed to discharge the enormous onus on them to show that 2nd Respondent’s possession of the land in dispute derived from Appellants’ family and so ought to fail in their claim, referring to EZEWUSIM VS. OKORO (1993) 5 NWLR (PT. 294) 478; Counsel further submitted that the 2nd Respondent, as 1st Defendant at the trial Court, did not need to prove anything when the Appellants as Counter-Claimants failed to establish their case at the trial Court, relying on NEBO VS. OKWUELUME (2009) ALL FWLR (PT. 484) 1508 at 1510 where it was held inter alia that “the claimant must satisfy the Court by cogent and credible evidence called by him that he is entitled to the declaratory relief. It is for the Claimant to prove his case and not for the Defendant to disprove Claimant’s claim.
Counsel submitted that the Appellants failed to discharge the burden of proof on them to show that the 2nd Respondent is not the owner of the land in dispute in which possession he was, or that they (Appellants) have a better title over the land, relying on AKWAFUO VS. ANYANWU (2006) ALL FWLR (PT. 302) 89 at 99 paras G–H; again, that the Appellants did not produce any other witness in support of the pledge transaction even when the evidence of DW4 was effectively controverted and so the Appellants have failed woefully to prove their counter-claim for declaration of entitlement to the land in dispute and so are not entitled to their relief sought, relying on AYANRU VS. MANDILAS LTD (2007) ALL FWLR (PT. 384) 1847 at 1849. Counsel drew our attention to the fact that it took 10 years of the pendency of this suit and litigation thereon before the Appellants vide their representatives woke up from their sleep/lethargy to apply to be joined in the suit, a move the 2nd Respondent vehemently opposed; that the Appellants are nothing more than meddlesome interlopers who embarked on an adventure of fishing in troubled waters in the hope that they would land a big catch.
Learned Counsel also asked us to note that the Plaintiff/1st Respondent and the 2nd Respondent were ad idem in the evidence as to the saga involving Chikeka Opara, the loss of Osuigwe Merenyi’s snuff box, kidnapping and sale of Egbuwuike; that it is at this stage that the Plaintiff/1st Respondent and 2nd Respondent parted ways as the 1st Respondent stated that it was a pledge while the 2nd Respondent claimed it was an outright compensation for the loss of a human being/person; that of all the parties it was only the 2nd Respondent’s account of the pledge made by his family to the Osuigwe family of Awaka, that was supported by documentary evidence (a receipt) and satisfied all the criteria for a valid pledge, which pledge his father was still able to redeem, 39 years after. Learned Counsel further submitted that had the trial Court properly evaluated the 2nd Respondent’s case which would have resulted from the consideration of the final written address, would have led the trial Court to find that:-
i. Under the custom of Uratta people, there need not be blood- shed for land to be on “ISHIMMANU” (human life).
ii. Slaves are chattels of valuable consideration under custom of Uratta people and not “mere articles” as derisively put by the Trial Court.
Learned Counsel submitted further that the acts of ownership and possession of the 2nd Respondent’s family were not considered in their proper perspective and given the appropriate probative value, which would have aided the trial Court in arriving at the proper conclusion of the case. Again, that the Appellants ought not to have been joined in the suit in the first place as they are caught by the doctrine of laches, having been in slumber for the 10 years the battle on the suit raged on at the trial Court, only to join for no other reason than to be the “one bad apple that spoiled the bunch” for the 2nd Respondent.
Reacting to the Appellants’ Brief, learned Counsel to the 2nd Respondent submitted that the non-user of the Final Written Address of Counsel by the trial Court was such that it affected the proper ventilation of the 2nd Respondent’s case and the full exhaustion of the hearing procedure as it affected the 2nd Respondent; that the lower Court accepted this position as founded; that every other Counsel’s address was considered by the trial Court except that of the 2nd Respondent, which made the opportunities availed the parties to be lopsided, unequal and inequitable, thereby breaching the 2nd Respondent’s fundamental right to fair hearing; that where a violation of a fundamental right to fair hearing is established in a legal proceeding, it renders the proceeding null and void, no matter how well conducted; that the lower Court properly dwelt on this and properly decided the case. Counsel referred to page 616 of the Record (page 25 of the judgment) and submitted that it is not only on grounds of jurisdiction or incompetence of grounds of appeal or issues for determination that an appeal can be struck out as canvassed by the Appellants’ Learned Counsel at pages 403 of the Brief; that the lower Court was categorical when it held that the trial Court breached the fundamental right to fair hearing of the 2nd Respondent; relying on UAC VS. MACFOY (1961) 3 ALL NLR 1169 learned Counsel submitted that one cannot place something on nothing and expect it to stand, but it will collapse.
On reliance of the lower Court on the case of UGWU VS. ALAEBO (2006) ALL FWLR (PT. 309) 1474, in reaching its decision, learned Counsel submitted that the lower Court did not rely on the case in reaching its decision; that it is a deliberate attempt by the Appellants to hook wink this Court by assigning to the lower Court an indictment which it did not deserve, just so as to score a cheap point, referring us to page 610 line 30 of the Records where the lower Court mentioned the case of UGWU VS. ALAEBO (Supra).
On the issue of fair hearing learned Counsel drew our attention to the case of UMA VS. EFFIOM (2014) ALL FWLR (PT. 731) 1628 at 1645 paras G–H to buttress the position that there was breach of fair hearing of the 2nd Respondent, which position was accepted by the Appellants in their Brief of Argument and yet they turned around to complain at page 4. 08 of their brief of being shut out, citing OTTI VS. OGAH (2017) ALL FWLR (PT.886) 2075 at 2115 paras B-C, which is the same reason the lower Court relied upon in holding that there was breach of fair hearing of the 2nd Respondent. He urged us to discountenance the submission of the Appellants relying on OGUNSANYA VS. THE STATE (2011) PP 590 1230 (wrong citation) which is distinguishable from this case at hand and does not apply; that the case of EFFIOM & ORS VS. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) ALL FWLR (PT. 552) 1610 cited and relied upon by the Appellants rather supported the case of the 2nd Respondent which was accepted and acted upon by the lower Court that the denial or failure of the trial Court to hear the 2nd Respondent was a miscarriage of justice (referring us to page 614 paras 5–30 of the Records).
Learned Counsel further submitted that the case of LAWAN ABDULLAHI BUBA WASSAH & 2 ORS VS. TUKSHAHE KARA & 2 ORS (2015) ALL FWLR (PT. 769) 1034 cited by the Appellants’ Counsel at paragraphs 4.17 of his brief is distinguishable from the position of the 2nd Respondent; that as Cross Appellant at the lower Court and especially 1st Defendant at the trial Court, the 2nd Respondent herein never claimed any reliefs at the trial Court, but simply defended the suit, and was not even a counter-claimant, so the claim of the Appellants that he wanted to have a “second bite at the cherry” was inappropriate.
On Section 21 of the Customary Courts Edict 1984 cited by the Appellants’ learned Counsel, it was submitted that the Appellants cannot give jurisdiction to the lower Court when there was none provided by the law. Learned Counsel therefore urged us to resolve all the issues in favour of the 2nd Respondent and against the Appellants.
In conclusion, learned Counsel urged us: –
“1. To reach the conclusion that the 3rd Defendants/Appellants did not prove their case on the grounds that:-
(i) 3rd Defendants/Appellants failed to prove with certainty the identity of the land in dispute, which itself, contradicted their evidence at the locus in quo, where the features alleged to be on the land could not even be identified.
(ii) As in the case of the Plaintiff/1st Respondent, the pledge transaction claimed by the 3rd Defendants/Appellants, was not proved as to when it took place, and those that were present as witnesses, defects which are fatal to 3rd Defendants/Appellants’ case. If, as contended by the Appellants, their family pledged the land in dispute to 2nd Defendant’s family, then how come the land is, and has ever been in possession of the 2nd Respondent? How come the Plaintiff/1st Respondent had to include 2nd Respondent’s family in the suit and not just the 2nd Defendant’s family?
(iii) It rhymes with custom and tradition of Uratta, which is rooted in natural course of events, that one does not pledge out a parcel of land that is not his own or which he holds under a pledge (i.e. repledge). It was proved in evidence that it is not the custom of Uratta people to re-pledge land which is already pledged out.
(iv) This uncontroverted piece of evidence knocks the bottom off the accounts of the pledge transactions as given by the Plaintiff/1stRespondent and 3rd Defendants/Appellants; (sic) leaving that of 1st Defendant/2nd Respondent as the only credible one. It is trite law that oral evidence cannot be used to alter the contents of a document. SHOBANKE VS. SARKI PT. 292 131 (sic) (wrong citation).
1st Defendant/2nd Respondent supported his account of his family’s pledge transaction with a document.
2. Of all the evidence of the parties on the pledge transactions, only the one recounted by the 1st Defendant/2nd Respondent remains unimpeachable. It is therefore submitted that the root of 1st Defendant/2nd Respondent’s ownership and continuing possession of the land in dispute, to wit; (sic) compensation for loss of life, was not shaken or rebutted by any of the parties at the trial Court.
3. What the trial Court ought to have done is to have found as a fact that Plaintiff/1st Respondent’s family was the original owner of the land; then proceed to refuse to grant the relief sought by the 1st Respondent on account that his family divested its interest on the land in dispute when it gave it up to 2nd Respondent’s family as compensation for the loss of one of 2nd Respondent’s family members.
It was indeed an appropriate case for an order of non-suit by the lower Court, of the Plaintiff/1st Respondent as claimant, and the 3rd Defendants/Appellants as counter claimant, at the trial Court.
4. It is this realization that would have weighed on the wind of the lower Court, i.e. the Imo State Customary Court of Appeal, Owerri, when it sent back the suit to the trial Court for retrial. The order to non-suit the Plaintiff/1st Respondent and 3rd Defendant/Appellant can still be made by this Honourable Court, given that none of the Plaintiff/1st Respondent and 3rd Defendant/Appellant made out a case sufficient for them to be granted their respective reliefs at the trial Court and at the lower Court. This will meet the justice of the case.”
The 3rd Respondent argued his issues vide his Counsel thus: –
ISSUE NO. 1
Learned Counsel answered this issue in the affirmative, that it is to say, the suit of the Plaintiff is grossly incompetent as there are no competent parties before the trial Court because both the Ofurum and the Egbewuike families are non juristic persons unknown in law and as such cannot sue and be sued; that it is only juristic persons i.e. natural or artificial persons created by law that can be represented in litigation, sue and be sued; that in case of representative capacity the actual party is the non-natural/juristic person represented, relying on EJIOFOR APEH & ORS. VS. PDP & ORS. JAN–MARCH 2016, 65 NSCQLR P 1130 ratio 2. The learned Counsel stated that this issue turns on “who has capacity to sue and be sued in an action”, and submitted that it is only natural and juristic persons that can or are competent to sue or be sued, relying onANOZIA VS. A. G. LAGOS STATE (2010) 15 NWLR (PT. 1216) 207 at 238–239 paras H–A; FAWEHINMI VS. NBA (NO.2) (1989) 2 NWLR (PT. 105) 558 and MANAGEMENT ENT. LTD VS. OTUSANYA (1987) 2 NWLR (PT.55) 179.
Learned Counsel defined the terms natural persons and juristic corporate bodies and submitted that juristic corporate bodies in Nigeria are largely of two categories which are companies registered under Part A of the Companies and Allied Matters Act and statutory corporation and trustees of association registered under Part C of the said Act; that in the case of statutory corporation, legal personality is conferred upon it either expressly or impliedly by the statute creating it, which ideally provides therein to the effect that the corporation shall be a body corporate with perpetual succession and a common seal, and may sue or be sued in its corporate status, relying on ANOZIA VS. A. G. LAGOS STATE (Supra) page 239 paras B, C, D–E.
Learned Counsel submitted that in the instant case the Plaintiff on record, Ofurum family of Umuorii Uratta, does not qualify into any of the persons clothed with legal personality as it is neither a natural person nor artificial person or entity that is duly accorded recognition by law as having the rights and duties of an association incorporated or an un-incorporated or registered under Part A or Part C of the Companies and Allied Matters Act, neither is it a creation of a statute. Therefore, the Plaintiff, according to learned Counsel, has no juristic personality and has no competence to sue or be sued, so any action brought by the Plaintiff is incompetent and liable to be struck out, relying on AGBONMAGBE BANK LTD VS. GENERAL MANAGER G. B. OLIVANT (1961) 1 ALL NLR 166.
Learned Counsel argued that in this proceedings the action was initiated by two named individuals “for themselves and on behalf of Ofurum family” and then submitted that when an action has been instituted by representatives of a family or community, and facts are pleaded and reliefs are claimed indicating that it is in respect of the representatives or corporate interest in the subject matter, then the real Plaintiff(s) should be seen as the family or community and not the individuals who have sued in a representative capacity; that such members appear on the record as suing for the class or family or community of which they are members and so there should be no confusion as to who are suing, relying on PRINCE LADEJOBI & 2 ORS VS. OTUNBA OGUNTAYO & 9 ORS (2004) 18 NWLR (PT. 904) 149 at 170 paras D–G; OTAPO VS. SUNMONU (1987) 2 NWLR (PT.58) 587; that the Plaintiffs are neither natural persons nor a corporation sole or aggregate that can sue or be sued, being Owerri Community; that is not a juristic person and therefore it cannot be represented in an action, rendering the suit incompetent and liable to be struck out, relying on SHARON PAINT AND CHEMICAL CO. LTD & 2 ORS VS. EZENWAKU & 2 ORS (2001) FWLR (PT. 43) 290 at 312 paras A-B or NDUKA VS. EZENWAKU (2001) 6 NWLR (PT. 709) 494 at 512 paras C–E; QUO VADIS HOTELS LTD VS. COMMISSIONER FOR LANDS, MIDWESTERN STATE (1974) 6 SC 71; HIGHLOW FARM INDUSTRY LTD VS. UNIVERSITY OF IGBADAN (sic) (IBADAN?) (1993) 8 NWLR (PT. 312) 382; ANYA VS. IYAYI (1993) (sic) 7 NWLR (PT. 305) 290.
Learned Counsel argued that in this suit the Plaintiff had placed something on nothing which cannot stand, referring to WESTERN STEEL WORKERS LTD VS. IRON AND STEEL WORKERS UNION OF NIGERIA (1986) 2 NWLR (PT. 30) 017 (sic); ABAKALIKI LOCAL GOVERNMENT COUNCIL VS. ABAKALIKI RICE MILL OWNERS (1990) 6 NWLR (PT. 135) 182; MCFOY VS. U.A.C. LTD (1962) AC 152.
Learned Counsel submitted that since this suit was incompetent, jurisdiction of the Court was never activated, referring us to MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 and urged us to strike out the suit, so as to save time, cost and the rigours attendant in the full trial of the case, relying on WEMA SECURITIES AND FINANCE PLC VS. NIGERIA AGRICULTURAL INSUANCE CORPORATION (2015) 16 NWLR (PT. 1484) 93 at 124 paras D-F; OSADEBAY VS. C.B.N (1991) 9 NWLR (PT. 214) 126; that where a Court lacks jurisdiction but yet proceeds to hear and determine a case, the proceedings, no matter how well conducted and decided are a nullity ab initio and remain so; that a defect to the competence of a Court is extrinsic rather than intrinsic to the entire process of adjudication; thus since jurisdiction being similar to the blood which sustains the human life, is therefore of overriding importance, relying on YARADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) 123 at 156 paras B–D; DAPIANLONG VS. DARIYE (NO. 1) (2007) 8 NWLR (PT. 1036) 332.
Learned Counsel submitted that the originating process in this suit is incompetent, null and void having been initiated by a person not known to law and against persons also not known to law, accordingly a Court of law would have no jurisdiction to hear and determine any suit or action so commenced, and then urged us to resolve this issue in favour of the 3rd Respondent and then strike out this suit, relying on PROFESSOR ELAIGWU VS. CYRIL TONG & ANOR (2016) 14 NWLR (PT. 1532) 165 at 189 paras C, D, G; TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 112) 517 at 550.
ISSUE NO. 2
Learned Counsel to the 3rd Respondent submitted under issue 2 that the trial Customary Court (not the Customary Court of Appeal) denied the 3rd Respondent fair hearing, therefore breaching his fundamental right to fair hearing under Section 36 of the Constitution, when the trial Customary Court failed to holistically consider the submission of Counsel on the matter as it considered those of other Counsel thereby upholding the principle of audi alteram partem (hear the other part).
Learned counsel submitted that fair hearing is applicable in native and customary trial and arbitration, relying on SKY BANK PLC VS. AKINPELU (2010) 19 WRN 76 at 98–99; UMA VS. EFFIOM (2014) FWLR (PT. 731) 1628 at 1645 paras G–H; STONE BANK PLC VS. OMNI PROJECT (2006) ALL FWLR (PT.323) 1726; further that the trial Court is duly bound to consider all issues raised before it otherwise the judgment will become nullity, relying on EDEM VS. CANON BALLS LTD (2005) ALL FWLR (PT. 216) 613 at 716 paras G–H; EBAMAWO VS. FADIYO (1973) 1 ALL NLR 134; OKONJO VS. NJOKANMA (1991) 7 NWLR (PT. 202) 131; ATANDA VS. AJANI (1989) 3 NWLR (PT.111) 19. Learned Counsel submitted, citing ADEKOYA VS. NSPMC LTD (2009) 5 NWLR (PT. 1134) 322, to the effect that where an issue of jurisdiction is raised and sustained, the resolution of other issues becomes a mere academic exercise, that the Customary Court of Appeal was right in deciding the case purely on well-founded issue of jurisdiction while abandoning the other issues of identity of the land and traditional history. Learned Counsel then urged us to hold that there was breach of fair hearing by the trial Court which did not consider the final written address of the Cross Appellant in the Customary Court, that we should resolve this issue in favour of the 3rd Respondent.
ISSUE NO. 3
Learned Counsel submitted that the judgment is not against the weight of evidence, since the issues of jurisdiction raised before the Court below has settled all the other issues, which being ancillary issues, are of no consequence. Finally, learned Counsel urged us to resolve issue 3 in favour of the 3rd Respondent by dismissing the appeal.
The Cross Appellant in his Brief identified a lone issue for determination thus: –
“Whether the Customary Court of Appeal Imo State had the jurisdiction to entertain the cross appeal in view of the provision of Section 282 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Distilled from the only Ground of Appeal Ground 1.”
Learned Counsel submitted that the lower Court lacked the jurisdiction to entertain the Cross Appeal because it did not satisfy the requirements of Section 282 (1) of the 1999 Constitution in that it did not raise any question of customary law, relying on SHELIM VS. GOBANG (2009) 173 LRCN 36; PAM VS. GWOM (2000) 4 LRCN 23; HIRNOR VS. YONGO (2003) 9 (PT. 824) 77; furthermore that the Customary Court Owerri Urban considered the Final Written Address of the Cross Appellant at the Court below yet the Court held that it did not, thereby breaching his right to fair hearing; counsel then urged us to resolve the issue in favour of the Cross Appellant and to allow the Cross Appeal and set aside the judgment of the Court below and affirm the judgment of the trial Customary Court Owerri Urban.
The 1st Respondent in his Reply Brief to Cross Appellant’s Brief of Argument settled by Nkasi E. Madumere Esq., and filed on 7/3/19, distilled 2 issues for determination thus: –
“1. Whether a Final Written Address of Counsel is part of hearing in a suit and if so, whether non-consideration, at all, of the Final Written Address, though duly filed, does not breach the right to fair hearing of the party on whose behalf the address was filed.
2. Whether the declaration of entitlement to the land in dispute made in favour of the Plaintiff/Cross Appellant by the trial Court is proper having regard to the evidence led by the parties.”
Arguing issue 1, Learned Counsel attacked the holding by the trial Customary Court to the effect that the 1st Defendant’s Counsel did not formulate any issues for determination, but rather argued his case in reply to each Counsel’s address as “unwarranted, inexcusable oversight” by the trial Court which did not even as much as look at the Final Written Address of the 3rd Defendant/1st Respondent’s Counsel and issues raised therein, how much more considering the contents (page 306 lines 6 – 9 of the Record).
Learned Counsel complained that the trial Court only adopted the lone issue of the 2nd Defendant’s Counsel which is at page 304 lines 12 – 15 of the Records thus: –
“As between the Plaintiff, the 1st Defendant, 2nd Defendant and the 3rd Defendant, who is the rightful person, based on the evidence tendered, entitled to the Customary Right of Occupancy over the land in dispute?”
Learned Counsel submitted, relying on the cases of UGWU VS. ALAEBO (2006) ALL FWLR (PT. 309) 1474 and UNION BANK PLC VS. OMNIPRODUCT (NIG) LTD (2006) ALL FWLR (PT. 323) 1726, that a party’s Final Written Address is a summation of such party’s case, with highlights on the strength of the case of such party, and the weakness of the other parties in the suit; an integral part of the trial proceedings and failure of a trial Court to consider submission made in the final written address of a Counsel to a party, when duly filed, is a deprivation or breach of such party’s fundamental right to fair hearing, referring further to J.S.C CROSS RIVERS STATE VS. YOUNG (2014) ALL FWLR (PT. 714) 40 at 59 paras E–H.
Learned Counsel noted that the purpose and purport of a final written address is to weave the case of a party into a composite whole by marrying the facts in the evidence led before a Court, with the law applicable thereto so as to bring the issues in controversy into sharp focus for better appreciation by the Court, as decided in HARUNA VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT. 304) 432, and submitted that breach of party’s fundamental right to fair hearing nullifies the entire proceedings relying on UMA VS EFFIOM (2014) ALL FWLR (PT. 731) 1628 at 1645 paras G–H and that an issue of breach of fundamental rights can be raised by a party at any stage of the proceedings, relying on PEENOK INVESTMENT LTD VS. HOTEL PRESIDENTIAL LTD (2011) FWLR (PT. 571) 1428 at 1477 paras F–G.
Learned Counsel contended that the adoption by the Trial Court of the lone issue raised by the 2nd Defendant’s Counsel had put the 1st Defendant who did not counter-claim for any entitlement on the same evidence pedestrial as the other Defendants, who respectively counter claimed in the suit asking for declaration and injunction reliefs, and so having huddles to cross in order to succeed. He submitted further that there is no law that placed such burden on the 1st Defendant/1st Respondent as a defendant simplicita, as against a counter-claimant or cross-claimant which is what the trial Court did by foisting upon the 1st Defendant a burden which the law did not place on him or permits to be placed on him, thereby putting him on disadvantage.
Learned Counsel stated that the 1st Respondent merely defended his right to continue in possession, use and ownership of the disputed land which is already being enjoyed by him, and submitted that the holding of the trial Court at page 156 of judgment (page 314 lines 14 – 16 of the Record) is perverse and unwarranted; that since the trial Court did not use the final written address of the 1st Respondent, it was not in a position to hold that “however none of the Defendants made out stronger case than that of the Plaintiff” as it did; that the placing upon the 1st Respondent of the burden of proof influenced the trial Court to discountenance the account of his proof of title which was rooted on the fact that the land in dispute came into the possession of the 1st Respondent as a compensation for loss of human life. Learned Counsel then urged us to resolve this issue in favour of the 1st Respondent.
ISSUE 2
Whether the declaration of entitlement to the land in dispute made in favour of the Plaintiff/Cross Appellant by the trial Court is proper having regard to the evidence led by the parties.”
Learned Counsel submitted that the burden of proving entitlement to land is on the party seeking the declaration of the Court thereon, as was in the case of the Plaintiff/Cross Appellant in this case, with the 2nd and 3rd Defendants counter-claiming same reliefs, implying in law that there is no burden of proof on the 1st Respondent to prove his entitlement to the disputed land and that the parties which claimed title were enjoined by law to prove their claim on the strength of their cases and not on the bases of the weakness of the case of the 1st Respondent, relying on the case of NWABUOKU VS. ONWORDI (2006) ALL FWLR (PT. 331) 1236 at 1240 para C which he quoted; that the 1st Respondent needed not prove anything since the Plaintiff, 2nd and 3rd Defendants have failed to prove their title. We were urged to hold that the Plaintiff/Cross Appellant, 2nd and 3rd Defendant/3rd and 4th Respondents herein failed to prove their title for the following reasons: –
1. The Plaintiff/Cross Appellant did not name the person that deforested the land over which he sought the declaration, but named only the person that inherited it from his unnamed “ancestor” as was contrary to the case of NRUAMA & ORS VS. EBUZOEME & ORS (2007) ALL FWLR (PT. 347) 723 at 738.
2. The Plaintiff/Cross Appellant failed to show what Onugha, Ofurum and Benjamin (whom he named as his ancestors) were doing on the land in dispute, which failure has left unfilled gabs or space in his account of the history of the land in dispute, relying on IDUNDUN VS. OKUMAGBA (1976) 9–10 SC 247.
3. The Plaintiff/Cross Appellant failed to proffer any explanation of how the admitted evidence of 1st Defendant/1st Respondent on loss of life, veered off to become the pledge transaction is fatal to his case.
4. Plaintiff/Cross Appellant’s evidence restricted his presentation to only “Benjamin Olekaibe Ofurum” which is at variance with the representation capacity shown on the face of his claim, implying that it leaves for speculation which family unit that is being represented whether it is only a unit of the Ofurum family or the embracive Ofurum family.
5. The trial Court did not consider the awkward state of the representative standing of the Plaintiff/Cross Appellant in view of his evidence and so made an unwarranted prescription/speculation when it decided in his favour, which mischief that Order 7 Rule 7 of the Customary Court Rules 1989 of Imo State aims to cure.
6. Plaintiff/Cross Appellant corroborated 1st Defendant/1st Respondent’s case when he by implication, admitted the traditional evidence led by 1st Defendant/1st Respondent as to his root of title on:
i. Kidnapping of Ugwuegbulam (a.k.a) Ugwuegbu/Egbewuike.
ii. Sale of Ugwuegbulam Egbewuike into slavery.
iii. Compensation with land for loss of life as one of the five ways a person can acquire land under custom of Uratta.
iv. The major players in the kidnap saga being Osuigwe Merenyi, Egbewuike, Chikeka Oriaku and Ugwuegbulam Egbewuike.
v. There being blood linkage between the 3rd Defendant/3rd & 4th Respondent’s Oriaku family and Cross Appelalnt’s Ofurum family who are respective descendants of Ukanwata and Emeibe, who themselves were brothers; thus explaining why the Ofurum family members are cousins to the Opara family members, for which the Plaintiff/Cross Appellant’s Ofurum family had to intercede on behalf of 3rd Defendant/3rd & 4th Respondents Chikeka Opara family, to offer the land in dispute as compensation when 1st Defendant/1st Respondent’s family wanted to avenge the loss of their relation, Ugwuegbulam Egbewuike, on 3rd Defendant/3rd & 4th Respondents’ Chikeka Opara family.
Learned Counsel then submitted that where a claimant fails on his evidence to prove his claim for declaration, his claims must be dismissed, relying on NEBO VS. OKWELUME (2009) ALL FWLR (PT. 484) 1508 at 1510.
Learned Counsel referred to the finding of the trial Court at page 308 of the Record to the effect that “Egbewuike parted with two of his slaves to recover Ugwuegbulam his son and slaves were articles that did not have much value at the time under consideration” and submitted that throughout the gamut of evidence by the parties before the trial Court, there was no place, even under cross examination, that any evidence was led from which the trial Court came to that misplaced and perverse conclusion as quoted above; that the trial Court abdicated its duty when it suo motu made forays into uncharted evidential waters; that it was presumptuous of the trial Court to hold that because there was no bloodshed, then the land would not have been held on ISHIMMANU by the 1st Defendant/1st Respondent’s family. Learned Counsel reproduced the evidence of the 1st Defendant in respect to the complete compensation of the land in dispute and submitted that title in the land had already passed to the 1st Defendant’s family as compensation before Ugwuegbulam Egbewuike was recovered by the sheer dexterity and determination of his father Egbewuike, though at the cost of two slaves, who were valuable chattels, purchased and disposed of for valuable consideration; furthermore Learned Counsel submitted, referring to page 205 of the Record, that the land was compensation for the loss of the two slaves used to recover Ugwuegbulam which evidence was not properly evaluated by the trial Court; that land given up as compensation for loss, whether of life or chattels under Uratta custom, is not recoverable, referring to the evidence of DW1 which was not challenged by any of the parties in this case.
Learned Counsel then urged us to resolve this issue in favour of the 1st Respondent to the Cross Appeal.
ISSUE 2
Learned Counsel contended that the Cross Appellant’s submission in respect of the sole issue distilled from the sole ground of cross appeal, was erroneous, as the ground 3 of cross appeal at the lower Court was based on fundamental right to fair hearing; that it was a complaint against the conduct of the trial Court wrongly placing the burden of proof on wrong party; that fair hearing has been decided to be a question of customary law, referring to GUMAU VS. BUKAR (1991) NWLR (PT. 168) 439 that Ground 7 of the 1st Defendant’s Amended Notice and Grounds of the Cross Appeal at the lower Court is on the award of cost by the trial Court to the Plaintiff/Cross Appellant which deals with the quantum of arbitral award and sanction, all of which deal with or are features of traditional customary arbitration procedure and therefore compliant with customary law.
It is further submitted that the words “customary law” need not be included in the couching of a ground of appeal for it to be one that raise issue of customary law, thereby complying with the provision of Section 280 (1) and 282 (1) of the 1999 Constitution, relying on OYEWUNMI VS. OGUNESAN (1990) 3 NWLR (PT. 137) 182.
Learned Counsel argued that the question of customary law should be determined from the nature of the proceedings, and not in the nature of the questions raised in the grounds of appeal, relying on ALIMUAEMWOSA VS. JOSHUA I. C. C. A. L. R. 184, as far as the appellate jurisdiction of the Court of Appeal as enshrined in Section 282 (1) of the Constitution; that if the legislation had intended to limit the appellate jurisdiction of this Court under Section 282 (1) and 245 (1) of the Constitution, it would have expressly stated so as that used in Section 233 (2) (a) and 241 (1) (b) of the same Constitution.
The learned Counsel urged us to hold that the interpretation of Section 282 (1) and 245 (1) of the Constitution by the Cross Appellant is tantamount to importing into the legislation what is not there. He also referred us to GOLOK VS. DIYALPWAN (1990) 3 NWLR (PT. 139) 411 and PAM VS. GWOM (2000) 4 LRCN 23 for what customary law is.
It is further submitted that in carrying out its interpretative function, the Court must be cautious not to read into the Constitution what is not therein provided; that ideally all appeals from customary Courts concerning customary law matters should go to the Customary Court of Appeal where all issues in respect of the applicable customary law and other ancillary matters like procedure and weight of evidence can be exhaustively dealt with; that in order that both Customary Court of Appeal and this Court (i.e. Court of Appeal) function properly and effectively they must have incidental powers to deal with all ancillary matters in as far as the subject matter relates to customary law, referring to Section 10 (1) and (2) of the Interpretation Act; in respect of the issues of fair hearing not being a question of customary law, Counsel referred us to the case of GUMAU VS. BUKAR (Supra) and then urged us to resolve the cross Appellant’s lone issue in favour of the 1st Respondent.
In conclusion, learned Counsel submitted that the Cross Appellant vented his legal arsenal on a wrong party i.e. 2nd Respondent, leaving the real adversary, the main Appellants virtually unscathed. He then urged this Court to discountenance the entire submissions of the learned Counsel for the Cross-Appellant.
RESOLUTION
I have earlier in this judgment reproduced the grounds of this Appeal as contained in the Amended Notice of Appeal filed on 8/4/2019, from which 3 issues were distilled, which I have also reproduced.
It is to be observed that issues 1 and 3 are distilled from one and the same ground 3 of appeal. For the avoidance of doubt I hereby reproduce the issues affected as follows: –
“1. Whether the Court below did not violate the Appellants’ right to fair hearing when it struck out the Appellant’s appeal and remitted the case back to the trial Customary Court without casting even a glance at the issues canvassed in the Appellants’ Brief on the mere ground that the trial Court did not consider the Final Written Address of Counsel to the 2nd Respondent in delivering the judgment appealed against to the Court below GROUND 3
3. Whether the Court below was right when it held that the 1st Respondent was entitled to customary right of occupancy when he did not prove identity of the land in dispute. GROUND 3”
It is clear from the above that the Appellants have proliferated issues in their Brief of Argument. It has been held in a plethora of cases that parties should not distill more than one issue from a particular ground of appeal. A party is permitted to distill an issue from one or a combination of grounds of appeal, but no party is allowed to formulate more issues than one from one ground of appeal. See the case of EZEANOCHIE VS. OFOBUIKE & ANOR (2012) LPELR–20432 (CA) this Court, per LOKULO–SODIPE, JCA succinctly stated the position of the law regarding proliferation of issues at pages 20 – 22 paras A – D thus: –
“I have earlier stated in this judgment that both the Appellant and Respondents glaringly engaged in the proliferation of issues for determination in this appeal. Proliferation of issues by parties in an appeal has consistently been condemned by both the Supreme Court and this Court in a plethora of cases: see EKE V. IBE (2009) ALL FWLR (PT.488) 315. Indeed, in the case of AMODU V. THE COMMANDANT, POLICE COLLEGE, MAIDUGURI (2009) 195 at 203 – 204, the Supreme Court dwelled extensively on proliferation of issues for determination and stated per Muntaka-Coomassie, JSC; at pages 203 – 204 thus:- “Before I proceed further, it will be necessary to point out that the appellant herein, in his notice of appeal dated 15 July 2003 contained only one ground of appeal, in which he questioned the judgment of the lower Court as follows: “The learned Justices of the Court of Appeal erred in law when they found that the evidence of DFW2 could not be correctly applied to sustain appellant’s case, since the piece of evidence in question was not pleaded by either the plaintiff/appellant or the defendants/respondents and this has occasioned a miscarriage of justice”. It is in respect of this ground of appeal that the appellant has distilled three issues for determination. This, in my view, amounts to proliferation of issues for determination. This Court on several occasions has frowned at proliferation of issues for determination which is in excess of the numbers of grounds of appeal filed. In the case of Yadis Nigeria Ltd v. Great Nigeria insurance company Ltd (2007) All FWLR (pt.370) 1348, (2007) SCNJ 86, where a similar situation (sic) in this case occurred, this Court held follows: page 109, 2nd to the last paragraph when Onnoghen JSC, stated thus: “I have to observe that there is only one ground of cross-appeal as is contained in the notice of cross- appeal filed on 5 October 2006. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, learned counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent”. In the case of Orji v. State (2008) 4 SCNJ 85, this Court, per Mukhtar JSC held as follows at page 94: “Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. They must not outnumber the grounds of appeal, for where they so outnumber them, there is the danger that some issues do not derive their source from the grounds of appeal, and therefore not related to one another. It is trite that an issue, that does not so relate will not be tolerated…”
The effect of proliferation of issues is that they, as a virus, will corrupt the grounds from which they are distilled and therefore become incompetent, and are liable to be struck out.
Consequently, issues 1 and 3 distilled from ground 3 are hereby struck out and exiting with them are submissions and arguments of Learned Counsel made thereupon. Ground 2 from which no issue has been distilled also vacates its position and relevance in this appeal as it has been abandoned.
The Appellants are now left with issue 2 distilled from ground 1 of the Amended Notice of Appeal to be considered in this appeal.
Issue 2 is as follows: –
“2. Whether the Court below was right when it ignored the credible and cogent traditional evidence of the Appellant (sic) in striking out the Appellants’ appeal in respect of which neither the lower Courts’ jurisdiction nor the competence of the grounds of appeal was challenged. GROUND 1.”
The ground 1 of the Amended Notice of Appeal from which issue 2 is distilled reads as follows: –
“GROUND 1: ERROR OF CUSTOMARY LAW.
The Honourable Customary Court of Appeal, Imo State sitting at Owerri erred in customary law when it ignored the unchallenged and cogent traditional evidence of the Appellant in striking out the Appellant’s competent appeal in respect of which the lower Court’s jurisdiction was not challenged in any manner whatsoever.
I have thoroughly read the judgment of the lower Court at pages 592 – 616 of the Record. The crux and import of the judgment is based on the cross appeal by the 2nd Respondent therein who is Boniface Ariri Egbewuike, who is also the 2nd Respondent in this current appeal. He was the cross Appellant at the lower Court whose complaint in his cross appeal was that the trial Customary Court, Owerri Urban did not consider the Final Written Address duly filed by his Counsel. The lower Court, after considering the submission of learned Counsel in the appeal, upheld the cross appeal.
The thrust of the judgment can be seen from page 613 line 30 to page 615 line 30. For its relevance it is hereby reproduced: –
“In the case at hand, pages 103 – 114 of the Record of Appeal show that there was a duly filed and adopted Final Written Address of Counsel to the 1st Defendant/Cross Appellant and that three fundamental or recondite issues were raised therein. The trial Court was therefore in gross error when it stated at page 147 of the judgment (page 304 of the Record of Appeal) that: “1st Defendant’s Counsel did not formulate any issue for determination, rather argued his case in reply to each Counsel’s address.”
The inference which must be drawn from the above statement is that the trial Court did not even as much as look at the issues raised by the learned Counsel for 1st Defendant/Cross Appellant, how much more considering them in any manner whatsoever in its evaluation of the evidence adduced by the parties before arriving at the decision it reached in the suit. Had the trial Court even merely recognized the existence of the said Final Written Address filed and adopted by the Counsel at the conclusion of trial and then went ahead to choose how to formulate its own issue or which of the issues formulated by the parties before it, to adopt as that of the Court; such a step would have fallen in line with the law and the recognized practice & procedure of the Courts; but regrettably in the instant case, the 1st Defendant/Cross Appellant’s Counsel’s Address was treated as if it did not exist at all, when it undeniably does exist. Undoubtedly, it was in the said Final Written Address, which was not considered at all, that the 1st Defendant encapsulated his case and the grounds upon which he sought to prove to the Court that Plaintiff/1st Respondent’s case ought to fail.
Therefore, not considering and holding a view either way, on the said address was prejudicial to the 1st Defendant/Cross Appellant as it amounted to a deprivation of his right to be heard presenting his case through Counsel.
In the absence of the consideration of 1st Defendant/Cross Appellant’s case from the perspective of his Counsel’s Final Written Address, the trial Court was definitely not in any vantage position to properly evaluate the case of the 1st Defendant/Cross Appellant against that of the Plaintiff/1st Respondent as to know which is stronger. Accordingly, the trial Court made a perverse evaluation and findings of the 1st Defendant/Cross Appellant’s case when it stated at page 156 of its judgment thus:
“From the totality of the evidence adduced by the parties before this Court, it is very clear that the defendants have the same aim which is to oust the Plaintiff from the subject matter”, and that “However, none of the Defendants made out a stronger case than the one professed by the Plaintiff.”
It was this failure to use and consider the 1st Defendant’s Counsel’s Final Written Address that made the trial Court to lose sight of areas of emphasis and serious evaluation. A scenario, almost similar to the one at hand was considered by the Supreme Court in the case of SKY BANK PLC VS. AKINPELU (2010) 19 W.R.N 76 at 98 – 99 where the lower Court had erroneously stated that the appellants had not canvassed any arguments or submissions on some issues as formulated in their brief, whereas it was discovered from the records that they had indeed proffered arguments to cover the issues. In upholding the appeal, the Supreme Court per Mukhtar, JSC (as she then was) held that the position of the law is that arguments canvassed in respect of a validly formulated issue for determination must be considered by the Court and found on that the lower Court therefore failed in its duty to deal with the argument proffered by the Appellant’s Counsel in their brief of argument and that it was in error in that respect.
In the instant case, I had earlier stated that the trial Court’s failure to consider the submission made in the Final Written Address of the learned Counsel for the 1st Defendant/Cross Appellant has undoubtedly resulted in breaching the Cross Appellant’s right to fair hearing and has most regrettably rendered the entire decision thereof a nullity, thus liable to be set aside. See UMA VS. EFFIOM (2014) ALL FWLR (Part 731) 1628 at 1645, paras G–H; UNION BANK PLC VS. OMNIPRODUCT (NIG) LTD (2006) ALL FWLR (Part 323) 1726.
Thus, in the light of the foregoing, there is every reasonable cause for me to hold that the answer to issue No. 3 is in the negative, and same is hereby resolved in the favour of the 1st Defendant/Cross Appellant.
Having resolved issue No. 3 in the favour of the Cross Appellant, there is no gainsaying the fact, that to resort to determine the remaining issue No. 2 would amount to a sheer futile academic exercise. I also have no hesitation whatsoever in coming to the inevitable conclusion that the Cross Appeal succeeds, and same is hereby allowed by me. Consequently, the judgment of the trial Court delivered on 30th May, 2014 in Suit No. CC/OU/108/99 is hereby set aside for nullity.
There is every cogent reason for me to hold that the justice of the case demands that the suit should be remitted back to the trial Court for retrial. And I so hold. According, I hereby order that the suit be remitted to the trial Court, that is to say, to the Customary Court of Owerri Urban for retrial de novo since the former Chairman of the Court who delivered the judgment in question, is no longer there. Parties are to report to the said Court on Monday, 31st July, 2017 for retrial de novo.
I make no order as to costs.”
Coming to the main appeal the lower Court relied on ARC AKIN OLUSOLA ASSOCIATES & 3 ORS VS. TRUSTHOUSE PROPERTIES & ANOR (2011) 3 WRN 109 at 140 and held that the determination of the cross appeal had effectively disposed of the main appeal and then struck out same.
It is ordinarily thought that the grounds of appeal should have been predicated on or derived from the ratio decidendi of the judgment but the Appellants in this appeal dwelt on evidence adduced before the trial Court dealing with traditional evidence.
It is trite law that grounds of appeal must derive from the judgment and where this is not done the grounds of appeal together with the issues(s) distilled therefrom are incompetent and must be struck out, see UMAR VS. SPEAKER, TARABA STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR 47244 (CA) PAGES 20 – 21 PARAS A – F.; MOBIL PRODUCING NIGERIA UNLIMITED VS. OKON JOHNSON & ORS (2018) LPELR – 44359 (SC).
The pith and thrust of the decision of the lower Court is the non-consideration of the Final Written Address of the learned Counsel to the 2nd Respondent by the trial Customary Court, which was held to be denial of fair hearing, upon which the Appellants did not base their grounds of appeal and/or particulars thereof.
It is trite, and the law is well settled, that a decision or findings of Court on any point of law or fact which is not appealed against is valid, subsisting and binding on the party or parties. See APGA VS. ANYANWU & ORS (2014) Vol. 231 LRCN 1 at 33 paras A–F.
I hold the firm view that the Appellants either through oversight or inadvertence did not appeal against the finding of the lower Court in respect of the non-consideration of the Final Written Address of the 2nd Respondent by the trial Customary Court Owerri Urban and so are considered to have conceded to the said findings and holding of the lower Court.
In the final analysis, this issue 2 distilled from ground 1 of the Amended Notice of Appeal is hereby resolved against the Appellants.
The submissions of other learned Counsel based on the struck out issues 1 and 3 and ground 2 of the Appellants’ Amended Notice and Grounds of Appeal are rendered otiose. The appeal is hereby dismissed for lacking in merit.
Now to the Cross Appeal. In its cross Appellant’s Brief filed on 7/6/18 but deemed properly filed and served on 14/1/2019, a sole issue was distilled from the lone ground of cross appeal thus: –
“Whether the Customary Court of Appeal Imo State had the jurisdiction to entertain the Cross appeal in view of the provision of Section 282 (1) of the 1999 Constitution of the Federal Republic of Nigeria, Distilled from the only Ground of Appeal Ground 1.”
Learned Counsel for the Cross Appellant reproduced the provision of Section 282 (1) of the Constitution and submitted that the Customary Court of Appeal of a State is a creation of Statute and its jurisdiction is set out in the said Section of the 1999 Constitution, thus for it to assume jurisdiction in any matter it must be in accordance with the said Section. He referred to the SHELIM VS. GOBANG (2009) 173 LRCN 36 to the effect that it is competent to challenge the decision of the Customary Court of Appeal before the Court of Appeal on grounds that the Customary Court of Appeal had no jurisdiction to hear the appeal. Learned Counsel then challenged the decision of the lower Court in respect of its finding that the issue of breach of fundamental right to fair hearing qualified for a question of customary law, relying on PAM VS. GWOM (2000) 4 LRCN 23 and HIRNOR VS. YONGO (2003) 9 NWLR (PT. 824) 77.
Learned counsel strongly submitted that the sole ground of appeal raised by the Cross Appellant before the Court did not raise any question of customary law, relying on EFFIOM & ORS VS. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) ALL FWLR (PT. 552) 1610. I have earlier summed up the submission in this wise so that I need not dwell too much on it. What is important in this cross appeal is that the Cross Appellant is attacking the decision of the lower Court based on the non-consideration of the final written address of the 2nd Respondent by the trial Customary Court.
Learned Counsel has argued that a denial of a final written address of Counsel per se does not occasion a miscarriage of justice and therefore cannot vitiate a decision of a Court, unless it is shown that such denial or failure to hear him has occasioned a miscarriage of justice. He submitted that the reliance by the Cross Appellant at the lower Court on a statement made by the trial Customary Court in respect of the issues formulated by learned Counsel was done in error as the statement did not mean or portray that the trial Customary Court did not look at the Final Written Address of Counsel. He then urged us to resolve the sole issue in favour of the Cross Appellant herein.
The 1st Respondent Boniface Ariri Egbewuike in his Reply to the Cross Appeal has submitted, which I have earlier summed up, that a Final Written Address forms an integral part of hearing proceedings in a suit and should be considered by the Court.
The case of SHELIM & ANOR VS. GOBANG cited and relied upon by learned Counsel to Cross Appellant is inappropriate and so inapplicable in this case. That case deals with incomplete composition of the Customary Court of Appeal which sat and granted a motion for additional grounds of appeal, which in this case the lower Court was properly constituted and the issue deals with lack of fair hearing due to non-consideration of a Final Written Address of Counsel.
From the Record page 306 lines 6 – 9 the trial Customary Court made the following statement: –
“1st Defendant’s Counsel did not formulate any issue for determination rather argued his case in reply to each Counsel’s address.”
It is quite clear that the trial Court did not look at the Final Written Address of Counsel which was duly filed containing 3 issues. By the authority of UGWU & ORS VS. ALAEBO & ORS (2016) LPELR – 41510 (CA) every party appearing in Court should be given fair hearing which includes fair trial also.
The Supreme has pronounced in the case of KOTOYE VS. C.B.N (1989) 1 NWLR (PT. 98) page 419 at 444 as follows: –
“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include: (i) That the Court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at p. 578. (ii) That the Court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this: Adigun v. Attorney General, Oyo State and Ors. (1987) 1 N.W.L.R. (Pt.53) 678. (iii)that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and (iv)That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. v. Sussex Justices, ex parte McCarthy (1924) 1 K.B. 256, at p.259; Deduwa and Ors. v. Okorodudu (1976) 10 SC. 329. Thus, fair hearing in the context of Section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice – audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”
See also UGWU & ORS VS. ALAEBO & ORS (2016) LPELR – 41510 (CA) pages 28 – 31 paras D – A.
It has been argued that a final written address does not form part of hearing proceedings and that non-consideration of such is not fatal to a proceeding unless it is shown that a miscarriage of justice has been accessioned. In as much as this is true it depends on the circumstances of each case. In the instant case the non-consideration of the final written address of learned counsel substantially affected the case of the cross appellant at the Court below, particularly that it affects the rule of natural justice, which is now applicable in Customary Courts in Nigeria. I draw support from the decision of the Supreme Court in the case of CUSTOMARY COURT OF APPEAL OF EDO STATE VS. AGUELE & ORS (2017) LPELR – 44632 (SC) per EKO JSC at pages 45 – 48 para A where the learned Justice stated as follows: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“The lower Court like the trial Court, fell into the error of isolating the mandatory procedural rules of fair hearing or fair trial contained in Section 36(1) of the 1999 Constitution from civil proceedings at the customary Court involving questions of customary law. The Customary Court is a Court of record established by statute. It is imperative, by virtue of Section 36 (1) of the 1999 Constitution that the Customary Court, established by Law, for the Customary Court in its adjudicatory function to observe and make affordable to all parties in every proceeding the right to fair hearing. It is a right the Customary Court cannot deprive any party to in any proceedings before it. Fair hearing, whether in the context of customary natural justice principles or under the express provisions of Section 36(1) of the Constitution, is in severable from any proceedings before the Customary Court. It is now dictated and driven by Section 36(1) of the Constitution. It is also inherent in every Customary Law or proceedings before every Customary Court. Any rule of Customary Law that repudiates the principles of fair hearing is invalid for being repugnant to natural justice, equity and good conscience. I dare say that rules of fair hearing either, as rules of natural justice or rules incorporated into Section 36(1) of the Constitution, are now integrated into customary law principles. Let me reproduce Section 36(1) of the Constitution to demonstrate and emphasis my point. That is:- “36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. I deliberately underlined “in the determination of his Civil rights and obligations – a person shall be entitled to a fair hearing – by a Court – established by law”. When Section 36(1) is read together with the supremacy provisions of the same Constitution in Section 1 thereof it becomes obvious that the rules of fair hearing have been infused into the practice and procedure of Customary Courts. Any decision of the Customary Court and any proceeding of that Court delivered or conducted in breach of the rules of fair hearing will be a nullity either by operation of the repugnant test or direct operation of Sections 36(1) and 1 of the Constitution read together. The rules of fair hearing have diffused into the rules of customary law. By the far reaching provisions of Section 36(1) of the Constitution the Customary Courts are bound to observe the rules of fair hearing. See Adesina v. Afolabi (2001) 31 WRN 159 at 168; Falodun v. Ogunse & Anor. (2009) LPELR – 3735 (CA). The rules of fair hearing are simple and basic principles of law based on common sense and the sense of administering justice. They are applicable in Customary Courts. See Ekpa v. Utong (1991) 6 NWLR (Pt.197) 258 at 278. Every customary law has rules of fair hearing, particularly audi alteram partem. The Customary Court of Appeal was right in my view therefore, when it assumed jurisdiction to hear and determine the appeal from the Customary Court on the issue of fair hearing and the service of the processes of the Customary Court for the hearing of 1st respondent’s petition for divorce brought against the 2nd respondent.”
From the above, it is clear that the lower Court was right in holding that non-consideration of the Final Written Address of Counsel was a denial of fair hearing which vitiated the proceedings. I so hold.
Consequently, I hereby dismiss the cross appeal. I affirm the decision of the lower Court including the order for retrial. I do this, conscious of the tortuous road this case has trodden and the length of time it has taken. But justice must be done, and not only that, but it must be seen to be done. In view of the above I do not order for costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree.
Appearances:
Ngozi Olehi Esq. For Appellant(s)
A. Chiedu Mezu Esq., with him, C. I. Njoku Esq. – for 1st Respondent/Cross Appellant
Don Oweregbulam Esq. – for 2nd Respondent
E. C. Mere Esq., with him, R. U. Madukolam Esq. – for 3rd Respondent
For Respondent(s)
