LEAD JUDGMENT DELIVERED BY HON. JUSTICE OKEY I. NWAMOH(JCCA)

Transcription

1 IN THE CUSTOMARY COURT OF APPEAL OF ABIA STATE NIGERIA HOLDEN AT UMUAHIA BEFORE THEIR LORDSHIPS: HON. JUSTICE S.M.C.URURUKA-ONYENSOH - PJCCA HON. JUSTICE E.U. ONUOHA - JCCA HON. JUSTICE OKEY I. NWAMOH - JCCA ON TUESDAY THE 13 TH DAY OF NOVEMBER, 2012 CCA/UM/A/68/90 BETWEEN: SIMEON IHEZUKWU - APPELLANT/APPLICANT AND SABASTINE OGBUAGU - PLAINTIFFS/RESPONDENTS (For himself and as representing Umuavueme excluding the Defendant) Parties are present. N.O. Ukadike Esq. for the Appellant. I.O Ndukwe holding the brief of Ahanonu Chikezie for the Respondents LEAD JUDGMENT DELIVERED BY HON. JUSTICE OKEY I. NWAMOH(JCCA) This is an appeal against the judgment of Customary Court Isuikwuato holden at Oghighe delivered on 23/7/90 against the Defendant now the Appellant in suit No:CC/IS/37/89 in favour of the Plaintiff now the Respondent. The Plaintiffs/Respondents claimed against the Defendant/Appellant at the lower court in the claim dated 30/5/1989 and filed on 16/6/1989 as follows: 1. A declaration that within the meaning and intendments of the LAND USE ACT 1978 the landed property known as and called OGWUGWU URO situate at Avuvu Nnunya in the Isuikwuato Local Government Area is the 1

2 common landed property of Umuavueme of Avuvu Nnunya within jurisdiction. 2. A declaration that the Defendant is not entitled to cut, clear or otherwise develop or deal with the land aforesaid without first obtaining the consent of the head and principal members of Umuavueme Avuvu Nnunya Isuikwuato. 3. N (two thousand Naira) special and general damages for trespass. 4. Injunction restraining the Defendant, his agents, workmen, heirs, and assigns from further acts of trespass and interference pending the determination of this court. PARTICULARS OF CLAIM 1. Both parties to this suit belong to Umuavueme family Avuvu Nnunya, Isuikwuato Local Government Area of Imo State within jurisdiction of the court. 2. The first Plaintiff is the head of Umuavueme family; the second to third Plaintiffs are principal members of the family while the Defendant is a member of the family. 3. The land in dispute known as and called OGWUGWU URO is the common property of Umuavueme which has not been shared but which is under the custody and administration of the head and principal members of the family, the Plaintiffs in this suit. 4. The Defendant who is a member of the family without consulting with the head and principal members of the family went and broke into the land cleared a greater portion of it, cut about 10(ten) palm trees tipped sand and is getting ready to develop the land without permission. Numerous appeals made to him to abandon this attitude and consult with the head and principal members of the family has not yet been heeded. Wherefore the Plaintiff claims as per their writ of summons. 2

3 The Plaintiff in proof of their case called three (3) witnesses including the second Plaintiff who was said to be the spokesman for other Plaintiffs while the Defendant called fourth witnesses including himself and closed their case before the lower court adjourned to the locus where apart from the parties evidences, additional witnesses and evidence were taken before judgment was delivered against the Defendant/Appellant. The Plaintiffs case is that OGWUGWU URO is communally owned by them including the Defendant but is managed and controlled by the Plaintiffs who are the head and principal members of the family who allots them to members of the community upon performance of certain customary rites but that the Defendant did not obtained their consent before entering the land viat et amis and started to build despite repeated warnings not to do so. That the Defendant is excommunicated by the community because of his marriage to his sister and the continued marriage to his sister would make it impossible for them to live together as deaths could result from it as had happened in the past. The Defendant case is that he obtained the permission of the Plaintiffs and did perform the customary rites before he was allotted the land and that all that he did was never rejected by the Plaintiffs before he went in to build on the land and denied not obtaining permission before entering and building on the land. The lower court at the close of the case and the inspection of the land gave judgment in favour of the Plaintiffs restraining the Defendant from building on the land until he has met certain customary conditions that will enable him live in harmony with his kit and kin. The Defendant being dissatisfied with the above judgment filed his notice of appeal on 23/7/90 as follows: 1. The judgment is against the weight of evidence adduced in court by both parties. 2. The court went out of its way to consider issues which was not raised by parties. 3. The court did not consider any legal issues raised by the defence counsel. 3

4 The Defendant on 6/2/91 pursuant to the leave of court filed an additional or amended grounds of appeal of seven (7) grounds which he wrongly numbered six (6) grounds and I shall reproduce them without their particulars as follows: GROUND ONE (1) 1. That the judgment of the court below is against the weight of evidence adduced in court by both parties. GROUND TWO (2): ERROR IN LAW The trial court erred in law when it held that the Defendant was not entitled to his right in the land in dispute on the bases of matters completely irrelevant to the ownership or possession of the said land. GROUND THREE (3): ERROR IN LAW The trial court erred in law when it disregarded the issue presented by the parties but proceeded to consider and base its decision on matters that were not before the court. GROUND FOUR (4): ERROR IN LAW The trial court erred in law when it set out to make for the parties a case not made by any of them. GROUND FIVE (5): ERROR IN LAW The trial court erred in law when it failed to evaluate the evidence before it and make findings thereon. GROUND SIX (6): ERROR IN LAW The trial court erred in law when it granted reliefs not claimed by any of the parties. GROUND SEVEN (7): ERROR IN LAW The trial court erred in law when it failed to consider the defence counsel s address and the legal issues raised therein. 4

5 From the above seven (7) grounds of appeals, Appellant counsel formulated and argued five (5) issues as follows: 1. Was the trial court right in holding that the Defendant was not entitled to his right in the land in dispute on the bases of matters extraneous and contrary to the issues presented before the court by the parties. 2. Was the trial court entitled to grant reliefs not claimed by the parties. 3. Can the judgment of the court stand in view of the failure of the court to evaluate the evidence before it and make findings on crucial issues before it. 4. Did the failure of the court to consider the defence counsel s address not occasion a miscarriage of justice. 5. Was the court justified in giving judgment in favour of the Plaintiff having regards to the evidence before the court. Arguing issue one(1) which counsel says it relates to grounds 1,2,3 and 4 above dabbed double ground two(2), counsel submits that the land in dispute is the undisputed common property of the parties and that the Appellants marriage to the sister which was not in issue did not from the evidence divest the Appellant his right to the family property and the court was therefore in error when it held that the Appellant building on the land in dispute will be contrary to the custom which is a speculation relying on AGHOLOR V A.G. (1990)6 NWLR (pt155)150 and OVERSEAS CONST. CO. V GREEK ENTERPRISES(1985)2 NWLR (pt 13)409. He submitted further that the court was in error by learing out the issue of obtaining consent of the family before building and relying on issue of the Appellant marriage as basis for its judgment which amounted to making out case for the parties which they did not make and urged the court to set aside the judgment relying on ORIZU V ANYAEGBULAM(1978)5 SC, CARLEN NIG.LTD V UNIVERSITY OF JOS(1994)1 NWLR (pt323)631 and OLUBODE V SALAMI (1985)4 SC (pt.1)41. On issue two(2) counsel submitted that the order for the conditions for winning the goodwill of the Plaintiffs by making amend before being entitled to build on the land was not one of the reliefs sought and therefore the order was made without jurisdiction and therefore null and void relying on EKPEYONG V NYONG 5

6 (1975)2 SC 71, ADENIYI V FABIYI(1992)5 NWLR (pt242)489 and EKPA V UTANG(1991)6 NWLR (pt 187)258. On issue three (3) counsel submitted that the cardinal issue was whether or not the Defendant obtained the consent before building on the communal land but the court which ought to evaluate an evidence and make a finding on this issue failed to do so relying on MOGAYI V ODOFIN (1978)4 SC 91 and ANYAKORA V OBIAKOR (1990)2 NWLR (pt 130)152. He further submitted that where a court fails to make a finding by properly evaluating evidence before giving judgment, such judgment ought to be set aside relying on OKPIRI V JONAH (1961)1 ANLR 102, SHELL DEV LTD V OTOKO (1990)6 NWLR (pt 156) 693 and OKONJI V NJOKANMA (1991)7 NWLR (pt 202)13 and urged the court to set aside the judgment on this ground as no finding was made on the crucial issue of consent. On issue four(4) counsel submitted that the lower court failed to give consideration to the Defendant counsel s address and the issues raised therein which the court is bound to do failure of which occasioned miscarriage of justice relying on NIGER CONST. CO. LTD V OKUGBERI (1987)4 NWLR (pt 67)787 and ESEIGBE V AGHOLOR (1990)NWLR (pt 161)234. On issue five(5) counsel submitted that the Plaintiff did not prove his case on the balance of probability and on the contrary the Defendant case was consistent and corroborated by his witnesses whose evidence was never challenged under crossexamination by the Plaintiffs and therefore deemed admitted relying on AKIBU V OPALEYE (1974)11 SC 189 and AMADI V NWOSU (1992)5 NWLR (pt 241)273. He also urged the court to assume that it was the Defendant that hosted the ceremony of 26/12/88 admitted by some of the Plaintiffs which goes to show that the Defendant obtained the consent of the Plaintiffs before entering the land and building on it and also the Plaintiffs and their witnesses lied and a proper evaluation of the evidence would have shown this contrary to the holding of the court which would have dismissed the Plaintiffs case. He finally urged the court to set aside the judgment of the court. Respondent counsel filed his brief of argument dated 20/7/1992 on 30/10/2012 wherein he formulated and argued four (4) issues for determination as follows: 1. Did the Appellant obtain the necessary consent and perform the mandatory customary rites/ceremony before commencing the development of residential building on the land in dispute. 6

7 2. Whether the Appellant who is ostracized by the Umuavueme kindred for his abhorred behaviour in marrying and raising issues with his sister considered abominable conduct at Avuvu Nnunya and infact the whole Ibo land did obtain the consent and permission of the head and principal members of Umuavueme family of Avuvu Nnunya and also performed the mandatory customary rites/ceremony before commencing his building operation on the land in dispute since it was proved that since 1980 when he committed the abominable act he does not associate with Umuavueme. 3. Whether by virtue of section 21 of the customary court Edict it can rightly be said that the lower court relied on irrelevances and extraneous matters in coming to a decision in this case. 4. Can it be rightly said and contended that the customary court cannot grant declaratory relief. Arguing issue one (1) counsel submitted that the Respondents established with credible evidence that the Appellant did not secure the consent and permission of Umuavueme family and did not perform the mandatory customary rites/ceremony before going into the family communal land to erect a residential house. That family property is placed under the care and management of the head and principal members of the family who administers same in trust for others and no member of the family can deal with the family estate in a manner inconsistent with the interest of the family as represented by the head and principal members of the family and any such act is void abi initio relying on EKPENDU V ERIKA(1959)4 FSC 79, OYEBANYI V OKWUWOLE (1968)NWLR 221, AKERELE V ATUNRASE (1968)1 NWLR 201, LUCAS V OGUNSUSI(1972)1 AWLR (pt2)41 and SOLOMON V MOGAYI (1982)1 SC. He submitted that where such consent is lacking the family can bring such action to restrain the offender relying on SAMUEL YOYE V LAWANI OLUBODE & 4 ORS (1974)10 SC 209 and that the court has the powers to entertain such a declaratory action relying on SCHEDULE 3 OF EDICT NO 7 of 1984 as amended by Edict No 10 of 1986 vide section 14 of the Customary Court Edict No 7 of He urged the court to dismiss this appeal on this issue. On issue two (2) counsel submitted that there is abundant evidence to show that the Appellant has not been relating with his people since 1980 he married his sister and raised issue with her which led to his being ostracized by the family and since 7

8 then does not relate or associate with them and therefore would not have obtained the consent nor performed the requisite customary rites to entitle him to build on the land. Counsel further submitted that contrary to the Appellant counsel submission that Appellant marriage is not extraneous to the case that the issue of the said marriage gives credence to the fact that no consent was obtained and no customary rites were performed before the appellant went to build on the land as such consent and performance of ceremony can only be obtained if the Appellant relates cordially with the family which is lacking in this case because of the Appellants marriage which forms the basis of absence of cordial relationship with the family and this is a question of evidence not an issue that must be stated on the writ placing reliance on ORDER 11 RULE 1 OF THE CUSTOMARY COURT RULES On issue three(3) counsel submitted that by virtue of section 21 of the Customary Court Edict, the customary court is enjoined to do substantial justice without undue regard to technicalities and the what the Appellant counsel referred to as extraneous and irrelevant are necessary ingredients of the Respondents case to show that no consent was obtained and no customary rites were performed relying on EKPENEM V AKPAN (1991) 8 NWLR (pt 211)616 at 637 and AJAGUNJEUN V OSHO of Jeku village (1977)5 SC 87, ALADEPO V AKONSOWON (1958) NWLR 215, and UBA LTD V OWOLOLU (1992)5 NWLR (pt 241)312 and urged the court to hold that the judgment of the lower court is in line with the evidence led and orders made was the outcome of the evidence of the parties and therefore urge the court to dismiss the appeal. On issue four (4) he submitted that schedule 3 of the Customary Court Edict No 7 of 1984 as amended by Edict No 10 of 1986 and sections 14 and 15(4) of the same Edict vest the court with the jurisdiction to grant declaratory reliefs in land matters since the court is vested with unlimited jurisdiction in respect of land subject of Customary Right of Occupancy. He finally urged the court to strike out issue one(1) of the Appellant brief of argument since it is not distilled from any ground of appeal relying on AGINA V AGINA (1991)4 NWLR (pt185)358 and ADELGA V FANOIKI (1990)2 NWLR (pt131)137. He finally urged the court to dismiss the appeal and affirm the decision of the lower court. I have carefully gone through the briefs of argument of counsel in this case and their arguments in amplification and I have scrupulously gone through this case 8

9 file noting that this appeal was filed since 1990 by the Appellant or his counsel at a time when the Respondents were unrepresented by counsel especially the very day judgment was delivered before the lower court. After the filing of the original grounds of appeal on 23/7/1990 as earlier reproduced in this judgment, Appellant counsel by a motion filed on 11/12/90 sought to file a proposed additional grounds of appeal which said additional grounds of appeal dated 5/2/91 was filed on 6/2/91 said to have been with the leave of court made on 31/1/91. There is no record of such leave. From the records, the Appellant filed their brief of argument dated 18/2/91 on 21/2/91 which Appellant brief of argument was amended by the amended Appellant brief of argument dated 8/7/94 and filed on 30/10/2012 pursuant to the leave of this court granted on 2/10/2012. The Respondent also with the leave of this court granted on 30/10/2012 filed his Respondent brief of argument dated 20/7/92 on the same 30/10/2012. It is worthy of note that this appeal was entered at Owerri when Abia State was part of Old Imo State and at a time the parties appears to have lost interest in the appeal and it was struck out and later relisted with some transmission on the parties to the original appeal having taken place. Before I go into the substance of this appeal, it is my view that the competence of it becomes relevant as the appeal was fought based on the amended or additional grounds of appeal. It is trite that for a Court of Appeal to entertain an appeal of instant nature, the original notice and grounds of appeal must be competent for the additional or amended grounds to be competent and that vest the court with the power to entertain same. See JUMANG SHELIM & ANOR V FWENDIM GOBANG 2009 VOL. 39 NSCQR page 195 R. 13. Where the original grounds upon which the amended or additional grounds of appeal is based are incompetent, the appeal itself is incompetent and would be struck out. See JUMANG SHELIM case supra. Where also the court had previously exercised its discretion in granting a prayer making an order which if later finds out that it ought not to have made the order or prayer it made, the said court is vested with the requisite powers to vacate or set aside the order. See ADEGOKE MOTORS LTD V ADESANYA (1989)3 NWLR (pt 109)1 page 250 Ratio 25 and 26. 9

10 I have taken time to go through the original grounds of appeal and for purpose of clarity I shall reproduce them again i.e. GROUND ONE (1) The judgment is against the weight of the evidence. GROUND TWO (2) The court went out of its way to consider extraneous issues which was not raised by parties. GROUND THREE (3) The court did not consider any legal issues raised by the defence counsel. From the above grounds filed in 1990, the operational constitution was 1979 constitution with section 247(1) vesting powers on the Customary Court of Appeal to hear and determine civil matters involving question of customary law which section is replicated in section 282(1) of the 1999 constitution being the current operative constitution. A close examination of these original grounds clearly show that they offend the said S.247(1) of 1979 constitution or S.282(1) 1999 being the grund num of this court for its exercise of jurisdiction as none of the above grounds reproduced involved question of customary law as to confer jurisdiction on this court to entertain same. See DANG PAM V SALE DANG GWEM (2000)1 SCNQR VOL.1 page 23. Since from the above there is nothing upon which amendment or additional grounds could be made, it therefore follows that the additional grounds of appeal upon which this appeal was fought is incompetent and cannot stand as there is no doubt that the counsel that filed the original grounds filed same without the records as could gleaned from the file however, this unfortunate situation could have been avoided by counsel totally discontinuing the appeal and bringing a fresh appeal. It is therefore very disheartening that an appeal that had been filed since 1990 will end up this way without the rights of the parties being determined or the issues raised being considered. 10

11 In the light of the above, I am left with no choice than to strike out this appeal for its incompetence which is accordingly struck out. I make no orders as to cost. SGD: HON. JUSTICE OKEY I. NWAMOH JCCA 13/11/2012 CERTIFIED TRUE COPY LADY E.U. NWANKPA (JP) COURT ADMINITRATION 11

12 IN THE CUSTOMARY COURT OF APPEAL OF ABIA STATE NIGERIA HOLDEN AT UMUAHIA BEFORE THEIR LORDSHIPS: HON. JUSTICE S.M.C.URURUKA-ONYENSOH - PJCCA HON. JUSTICE E.U. ONUOHA - JCCA HON. JUSTICE OKEY I. NWAMOH - JCCA ON TUESDAY THE 13 TH DAY OF NOVEMBER, 2012 CCA/UM/A/68/90 BETWEEN: SIMEON IHEZUKWU AND - APPELLANT/APPLICANT SABASTINE OGBUAGU - PLAINTIFFS/RESPONDENTS (For himself and as representing Umuavueme excluding the Defendant) Parties are present. N.O. Ukadike Esq. for the Appellant. I.O Ndukwe holding the brief of Ahanonu Chikezie for the Respondents SUPPORTING JUDGMENT BY HON. JUSTICE S.M.C.URURUKA ONYENSOH PJCCA I have read in draft the lead judgment just delivered by my learned brother Okey Nwamoh JCCA and I agree with him that the appeal is incompetent and the only order is that of striking out and is hereby struck out. SGD: HON. JUSTICE S.M.C. URURUKA ONYENSOH PJCCA 13/11/2012 CERTIFIED TRUE COPY LADY E.U.NWANKPA (JP) COURT ADMINISTRATOR 12

13 IN THE CUSTOMARY COURT OF APPEAL OF ABIA STATE NIGERIA HOLDEN AT UMUAHIA BEFORE THEIR LORDSHIPS: HON. JUSTICE S.M.C.URURUKA-ONYENSOH - PJCCA HON. JUSTICE E.U. ONUOHA - JCCA HON. JUSTICE OKEY I. NWAMOH - JCCA ON TUESDAY THE 13 TH DAY OF NOVEMBER, 2012 CCA/UM/A/68/90 BETWEEN: SIMEON IHEZUKWU AND - APPELLANT/APPLICANT SABASTINE OGBUAGU - PLAINTIFFS/RESPONDENTS (For himself and as representing Umuavueme excluding the Defendant) Parties are present. N.O. Ukadike Esq. for the Appellant. I.O Ndukwe holding the brief of Ahanonu Chikezie for the Respondents SUPPORTING JUDGMENT BY HON. JUSTICE E.U. ONUOHA (JCCA) I had the preview of the judgment just delivered by my learned brother Hon. Justice Okey Nwamoh. I am in agreement with the said judgment and I adopt same as my own. CERTIFIED TRUE COPY SGD: HON. JUSTICE E.U. ONUOHA JCCA 13/11/2012. LADY E.U. NWANKPA (JP) COURT ADMINISTRATOR 13