(2018) LPELR-45250(CA)

Transcription

1 MBAH & ORS v. AKPA & ORS CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Benin Judicial Division Holden at Benin MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO ON MONDAY, 4TH JUNE, 2018 Suit No: CA/B/375/2014 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal 1. MR. GODWIN OVILI MBAH 2. MR. MONDAY MBAH 3. MR. ODILI OJIE MBAH 4. MR. VICTOR OVILI MBAH 5. MR. PAUL ENIETEM MBAH 6. MR. ISAAC OVILI MBAH (for themselves and on behalf Of Umu-Mbah family) 7. MR. JOSEPH NWANWENE KABI And 1. OKWA OTONYE JOHNSON AKPA (General Head of Osamuele family and head of Umu-Akpa Sub-family of Osamuele family) 2. MR. UZU OSAMUZU AKPA 3. MR. GEORGE OSAMEZU AKPA 4. MR. PETER OSAMEZU AKPA 5. MR. BENJAMIN OSAMEZU AKPA (for themselves and on behalf of Umu-Akpa family) RATIO DECIDENDI - Appellant(s) - Respondent(s)

2 1. JUDGMENT AND ORDER - CONCURRING JUDGMENT: Whether Judges can cosign a judgment without preparing individual judgments "On the second issue which has to do with all the Judges co-signing the judgment of the Court without preparing individual judgments; whether the Court below was in breach of any law and whether the breach, if at all is capable of impeaching the judgment of the Court below in any way whatsoever. The position of the law is that what a concurring judgment does is to compliment, edify and add to the lead judgment. In some cases, it could be an improvement of the lead judgment when the justices add to it certain aspect which the writer of the lead judgment did not remember to deal with. In situations where a case is heard by a plurality of judges, akin to the situation before the Court below some of the judges may enter their individual arguments in their own way outside the lead judgment which results in what is known as a dissenting judgment. The position is that dissenting judgments are minority judgments, which are not binding on the parties. See the cases of OSUN STATE INDEPENDENT ELECTORAL COMMISSION AND ANOR vs. ACTION CONGRESS AND ORS. (2011) ALL FWLR (PT. 567) 622 AT 685 PARAGRAPHS B-F; AKPOKU vs. ILOMBU (1998) 8 NWLR (PT. 561) 283; NWANA vs. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2004) ALL FWLR (PT. 220) 1243; ORUGBO vs. UNA (2002) FWLR (PT. 127) 1024, (2002) 16 NWLR (PT. 792) 175. This Court is of the clear view that the Court below did not in any way whatsoever err in law by the mere fact that judges unanimously signed the judgment without assigning the lead judgment to a particular judge amongst them to write, while the others write concurring or dissenting opinions. The attitude of this Court on the subject is that as long as the judges of the Court below have adhered strictly to the provisions of Section 26 of Customary Court of Appeal law, 2006 Volume 1 Cap C24 Laws of Delta State of Nigeria, there will absolutely be no need to disturb the findings and decisions of the said Court. By the said Section 26; "When Court is duly constituted the Court shall be duly constituted for the purpose of hearing and determination of any civil Appeal if it consists of at least three Judges. Provided that nothing in this Section shall preclude a Judge who does concur with the Judgment of the other judges from delivering a dissenting judgment." In the instant Appeal the complaint of learned Appellant's Counsel is against the fact that the Court below delivered a unanimous judgment against, which each Judge appended its signature as a mark of its concurrence with the lead judgment. It is important to note that apart from the fact that the matter was heard by a full panel of the Court, probably due to the serious issues of Customary law raised between the parties, I am simply unable to agree with the Appellant's Counsel that because the judges did not subscribe their separate views to the leading Judgment therefore the judgment delivered was void. The settled position is that the act of appending their signatures to the lead Judgment simply means that they are in concurrence with the judgment without dissentions. To this end, this Court there finds and do hold that the judgment of the Court below delivered on the in suit No DCCA/44A/2013 between the parties is to all intents and purposes valid, Constitutional and in accordance with the law." Per OHO, J.C.A. (Pp , Paras. F-D) - read in context

3 FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the Delta State Customary Court of Appeal sitting at Asaba Coram: HON. JUSTICE S. O. N. OGENE.President HON. JUSTICE P. O. ELUMEZE.. Judge HON. JUSTICE S. O. TONWE Judge HON. JUSTICE V. I. OFESI.Judge HON. JUSTICE A. E. UBIRI.Judge HON. JUSTICE TEBEKAEMI Judge HON. JUSTICE C. N. OJUGBANA.Judge The Court s judgment was delivered on the in suit No DCCA/44A/2013 wherein judgment was entered against the Appellants who were Defendants in favour of the Respondents who were Plaintiffs at the Court below. The Respondents as Plaintiffs instituted this matter at the 1

4 Ukwani Area Customary Court, sitting at Ubiaruku, praying the Ukwani Area Customary Court to set aside the sharing of Usamusele family land in breach of Umuebo/Ubiaruku Customary law of inheritance and the Appellants as Defendants counter-claimed (pages 1-6 of the record of Appeal). After both parties adduced evidence, the President and Members of the Ukwani Area Customary Court sitting at Ubiaruku found in favour of the Appellants as Defendants and dismissed the case of the Respondents as Plaintiffs. Dissatisfied with the judgment of the Ukwani Area Customary Court sitting at Ubiaruku, the Appellants as Defendants have appealed to the Customary Court of Appeal (CCA) sitting at Asaba. All the seven (7) Justices of the Customary Court of Appeal set aside the decision of the Ukwani Area Customary Court, co-signed a single Judgment and they ordered a re-sharing of the Usamusele family land. The Appellants, being dissatisfied with the decision of the Customary Court of Appeal (CCA), have Appealed to this Court vide a Notice of Appeal filed on the (page of the record). There are two Grounds of Appeal filed, which are reproduced without 2

5 their particulars as follows; GROUNDS OF APPEAL; 1. The learned Justices of the Area Customary Court of Appeal erred in law when they held that the Ubiaruku-Ukwuani Custom of Inheritance in sharing/partitioning of the Estate of a deceased who died intestate is to be shared by gate instead of head/stripe against the findings of the Area Customary Court who heard evidence and was assisted by the assessors who are versed in the Custom of the Ubiaruku-Ukwuani people. 2. That the Justices of the Area Customary Court of Appeal erred in law when they delivered a joint judgment and co-signed the delivered judgment without individual input. ISSUES FOR DETERMINATION; Two issues were nominated by the Appellants for the determination of this Appeal thus; 1. Whether the property of Osamusele (deceased) has been properly shared according to the native law and custom of Umuebo/Ubiaruku? 2. What was the custom and tradition of partitioning or sharing of family land in Umuebo/Ubiaruko, could it be per stripe or per capital? On the part of the Respondents, two issues were also nominated for the determination of the Appeal thus;

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7 1. Whether, having regards to evidence before the lower Court, there were grounds for holding that the Customary Law of inheritance of an estate of a deceased Ubiaroko-Ukwani person is per gate or stripe and not per capital. 2. Whether, in co-signing judgment of the lower Court without preparing individual judgment, judges of the said Court were in breach of any law and whether, assuming without conceding that they were in breach of any law by so doing, their stated breach of law impeached judgment of the lower Court in any way whatsoever. The issues nominated by the Appellant are clearly identical to the ones raised by the Respondent except that the issues raised by the Respondent are easily understood by all and sundry presented in straight direct simple English. I shall therefore decide this Appeal based on the issues nominated by the Respondent since the issues nominated across board are clearly identical except for the quality of clarity, which the issues nominated by the Appellant does not have. The Appellants Brief of argument dated the was settled by G. O. ERHIMEYOMA (MRS.), and filed on the same date, while the Respondents Brief of 4

8 argument dated the and filed on the same date was settled by CHIEF M.I. UKPEBOR and deemed filed on the At the hearing of this Appeal on the learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides. SUBMISSIONS OF COUNSEL FOR THE PARTIES; APPELLANTS; ISSUE ONE; Whether, having regards to evidence before the lower Court, there were grounds for holding that the Customary Law of inheritance of an estate of a deceased Ubiaroko-Ukwani person is per gate or stripe and not per capita? The opening submission of learned Appellants Counsel is that what would better serve the justice of this case is what the Court should first inquire into, whether sharing per capita or per gate. This, Counsel contended is notwithstanding the fact that evidence adduced at the trial Court showed that both methods can be applied to Umuebo/Ubiaruku Native Law and Custom. Counsel further contended that it does not serve the justice of the situation where a piece of land is shared to a gate of 2 5

9 people and the same type and size of piece of land is shared to another gate of 8 people. According to Counsel, the essence of Justice is equality before the law and that it is wrong to encourage discrimination, segregation or cheating under whatever camouflage. The submission of Counsel that this is the major issue in contention before the trial Court and that other issue, which is ancillary to it, is question of whether the consent of the 1st Respondent (Okwa Otonye Johnson) was sought and obtained before sharing. Counsel argued that the only person capable of resolving the knotty issues presented in this Appeal is the 1st Respondent himself but that he refused to attend Court throughout the trial and the Court was left with no alternative than to believe that the Plaintiff was withholding evidence. In arguing against the order of re-sharing, Counsel argued that the re-sharing order made by the Court below is capable of causing chaos as to which means people's houses, shrines and graves of their late ancestors will have to be moved and relocated including that of the Plaintiff/ Appellant/Respondent in this case. The further contention 6

10 of Counsel is that the order of the Court below does not meet the justice of the case in this regard as the Respondents have slept for a long time and there is no right that is breached by the Appellants. On the issue of evaluation of evidence, Counsel argued that the trial Court with its members who are appointed based on their knowledge of the Customary Laws and Traditions of the locality, saw, heard and watched the characters and demeanor of the witnesses throughout the Trial before evaluating their pieces of evidence. Counsel deprecated the interference of the Customary Court of Appeal, in the decision of WAMADI EJILEMELE vs. BELEME OPARA (2003) FWLR (PT. 167), P. 821, particularly at Page 824 Ratio 4 on the issue of interference. It is our further submission that the customary Court of Appeal has no dispassionate and cogent reason to have disagreed with the findings of the Ukwani Area Customary Court especially when it was adduced in evidence that two traditional arbitrators versed in the Ubiaruku/Ukwani Native Laws and Custom found in favour of the Defendant/Respondents/Appellant and coupled with the evidence of two independent witnesses, it is abundantly 7

11 clear that the findings of the trial Court was clear, just and reasonable and ought to be upheld by the Customary Court of Appeal. We hereby urge this Court to uphold the findings of the trial Court to wit: Ukwani Area Customary Court and reinstate the Judgment of the trial Court in this suit delivered on 22nd day of July 2013 pages 79 to 96 of the records. We beg to submit. ISSUE TWO; Whether, in co-signing judgment of the lower Court without preparing individual judgment, judges of the said Court were in breach of any law and whether, assuming without conceding that they were in breach of any law by so doing, their stated breach of law impeached judgment of the lower Court in any way whatsoever? In respect of the 2nd issue on whether the seven (7) Justices of the Customary Court of Appeal can jointly write and sign a singular Judgment, Counsel submitted that while learned Justices of an Appellate Court could be unanimous in a decision, it is, however, not the law that all the Justices without making their personal input either to concur or disagree with his learned brothers by writing a dissenting Judgment can co-sign and write a singular Judgment. 8

12 He argued that in such a case, the ratio decidendi of each Judge will help to expand the law so as to enhance the growth of our laws. It was therefore submitted that the learned Justices of the Customary Court of Appeal erred in law when they co-signed a singular Judgment setting aside the well delivered Judgment of the President and members of Ukwani Area Customary Court sitting at Ubiaruku. According to Counsel such a decision amounts to conspiracy rather than the justice of the case. RESPONDENTS; ISSUES ONE; Whether, having regards to evidence before the lower Court, there were grounds for holding that the Customary Law of inheritance of an estate of a deceased Ubiaroko-Ukwani person is per gate or stripe and not per capita? The Respondents answer to the question posed by issue one is rendered in the affirmative. According to Counsel, this answer can be inferred from the unchallenged and uncontroverted tissues of evidence given by the 2nd Plaintiff, 3rd Plaintiff and the PW2 at the trial. He drew attention to pages 28, 29, 39 and 51 of the Record of Proceedings at the Court below where the said witnesses 9

13 testified and gave unchallenged pieces of evidence. For instance, Counsel said that at page 29 lines 20 to 24, the 3rd Plaintiff stated thus: "We stated the case to them, the decision of the palace is that they should share the lands within the areas that is Daco to all those who need land and that Mbah gate should beg 1st Plaintiff to allow them to share it to them. That if there is any surplus, it should be shared into three portions... Counsel also drew attention to page 51, paragraph 7 and 8 of the records, and told Court that the PW2 stated unequivocally thus: "Under Obiaruku custom a deceased property s is shared per stripes it cannot be shared per head". Again at page 55, lines 30 and 31, Counsel drew attention to the evidence of the DW1 who testified in support of the fact that the Custom of Obiaruku people, is for the estate of a deceased person who died intestate to be shared by gate or per stripes, which evidence he lifted verbatim as follows: It was decided that the land belongs to all of them and to be shared accordingly". The contention of Counsel is that having regards to the stated tissues of evidence as 10

14 to the custom of the Appellants and Respondents herein regarding the inheritance of a deceased person's estate, which deceased person died intestate, the lower Court held at page 157 lines 28, 29, 30, 31, 32, 33, 34 and 35 and at page 158 lines 1 and 2 respectively as follows: "The sharing of the Osamusele family properties in 1976 and the consequent sharing by the 1st Appellant to all the 3 gates were sufficient to show sharing per strips. This was clearly amplified in the evidence of 2nd & 3rd Plaintiffs during the trial at the lower Court when they testified at pages 28, 29 & 39 that the family land at Ogbeje, was shared into three gates with 6th Respondent in charge of Mbah family. Children of Oshiogwu in charge of Oluku gate while 3rd Appellant is still in charge of Akpa gate till today. Also in evidence is the fact that at the 2nd burial ceremony of Osamusele the sum of three pounds was shared to the 3 gates to further show that the custom of Osamusele family was that of per stripe and not per capita". According to Counsel, the Court below additionally strengthened the said position by relying copiously on the unchallenged evidence of the PW2, one Chief Nduabike 11

15 Okwuchukwu; who testified to the effect thus; I am Okwu-Uku next to the Okpala-Uku. Under Obiaruku Custom, a deceased property is shared per stripes it cannot be shared per head". Learned Counsel also submitted that the time tested Customary Law regarding the sharing formula of a deceased Obiaruku man who died intestate is per stripe or gate is amply demonstrated by Messrs Ode Mbah and Ametem Mbah who were both heads of Osemusele family at one time or the other. He said that it is in evidence that in 1976, the then head of Osemusele family, Mr. Odje Mbah allotted portions of building plots of land to members of Osemusele family strictly in conformity with the existing three (3) gates- Ohiku, Mbah and Akpa. This, according to Counsel is contained in the uncontroverted evidence of the 3rd Plaintiff at pages 28 Lines and 25 Lines of the Records. This sharing pattern, Counsel said was religiously followed by the 1st Respondent herein when he also gave portions of the building plots of land to members of the family along the three (3) existing gates rather than consent to the requested out right sharing of the family land. This 12

16 piece of evidence, he again said is contained in the testimony of 2nd Plaintiff at the trial Court which is contained at Pg., 39 Lines of the Record. Arising from the foregoing, Counsel contended that the well-established principle of Law is that Courts ought to accept and act upon an evidence that is not challenged and uncontroverted, for this legal proposition, Counsel cited the case OSUNG vs. STATE (2012) ALL FWLR (PT. 650) 1226 AT 1248 PARAGRAPHS B - C where the Supreme Court held as follows: "Evidence that is neither challenged nor discredited and which is relevant in the issue in controversy, becomes good and credible evidence which a Court is at liberty to rely upon for the just determination of the case before it. We also place reliance on the case of YUSUF vs. STATE (2012) ALL FWLR (PT. 641) 1478 AT 1505 paragraph A. It was further submitted that the Appellants had the opportunity to challenge the 2nd and 3rd Respondents and PW2 when they gave evidence at the trial Court that the applicable Customary Law of inheritance of a deceased Obiaruku man who died intestate is by stripe or gate and not per capita. He said that at the hearing the (Appellants) 13

17 neither cross-examined nor led contrary evidence in the course of trial; rather they accepted the evidence given by the stated Respondents directly vide the evidence of DW1 who testified at their behest at Pg 55 Lines of the Records. According to learned Counsel the law is established in a long line of cases that it behooves the Appellants to prove by credible evidence their ascertain that the applicable customary Law amongst the Obiaruku people on the issue in controversy on appeal before this Court is per capita; which they failed woefully to prove. Counsel cited the case of NWAUKONI vs. ARUEZE (2011) ALL FWLR (PT. 564) 72 AT 101 PARAS A - B where this Court held as follows: "Evidence must be led in support of the customary law or custom on which the claim of the Claimant is based and failure to do so will lead to the claim being dismissed On the issue raised by the Appellant in which they made allusions to what they consider will better meet the justice of the case, Counsel reiterated his arguments on the established sharing formula stated that the Appellants missed the point in issue as what Appellants posited does 14

18 not arise from any of the Grounds of Appeal filed. Counsel urged this Court to resolve this issue in favour of the Respondents. ISSUE TWO; Whether, in co-signing judgment of the lower Court without preparing individual judgment, judges of the said Court were in breach of any law and whether, assuming without conceding that they were in breach of any law by so doing, their stated breach of law impeached judgment of the lower Court in any way whatsoever? The Respondents rendered the answer embodied in the second issue in the negative and submitted that the judgment of a given Court, is the majority judgment (made up of the lead and concurring opinions) and it is binding on the parties. He further submitted that where a given case is held by plurality of judges, the resultant judgment is said to be unanimous when all the judges agree on the resolution of the issues presented and the ultimate decision on the respective rights and obligations of the parties thereto. In such situation, Counsel contended that one of the judges is assigned the duty of writing the lead judgment, with the others writing concurrent opinions. 15

19 Counsel cited a plethora of decided cases and urged this Court to resolve this issue in favour of the Respondent. RESOLUTION OF APPEAL The need to begin with the facts of this rather peculiar case cannot be overemphasized. The Appellants and the Respondents are the grand and great grandchildren of late Pa Osemusele, a native of Obiaruku Community in the Ukwuani Local Government Area of Delta State. In the life time of their Pa Osemusele, he begat three (3) Children, namely, Oluku, Mbah and Akpa. The Appellants and the Respondents in this Appeal were in turn, begat by the trio of Oluku, Mbah and Akpa. Late Pa Osemusele, during his life time, acquired large pieces of farm lands situate at several locations within their stated Community. Upon his demise intestate, the aforementioned large pieces of farm lands, became jointly inherited and owned by his aforesaid immediate Children and subsequently the Appellants and the Respondents. The said lands in issue were held as family lands from generation to generation thereafter until the turn of the present Appellants and Respondents; within which period, the 1st Respondent herein became head of the Osemusele family. 16

20 The agitation to have the stated lands shared amongst the fore-bears of the said late Pa Osemusele was championed by the Children of Late Mbah and Oluku, while the 1st Respondent reluctantly consented, but it was later discovered that a large portion of the stated lands have been illegally sold and transferred to third parties without the knowledge and consent of the 1st Respondent and other principal members of the Osemusele family. This led to the decision of the 1st Respondent alongside other Respondents to sue the present Appellants at the Area Customary Court, lssele-uku Judicial Division, Issele-Uku Delta State, wherein they claimed certain reliefs, including a declaration that their stated joint family lands had not been shared; that the present Appellants, who were Defendants at the trial Court, had no right to sell or allocate portions of the lands to themselves as well as praying the trial Court to void any such alienation or sales of the land in issue in addition to praying Court to direct a proper sharing of their stated family lands to the three (3) gates to which their family is divided. The Appellants, who were Defendants at the trial Court, 17

21 also counter-claimed wherein they claimed two (2) principal reliefs, to wit, a declaration that their stated family lands had been shared and/or partitioned amongst themselves and further prayed Court not to void the alleged sharing. They also claimed general damages for trespass. After full trial, the trial Court dismissed the case of the present Respondents and upheld the case presented by the present Appellants. Dissatisfied with the said decision, the present Respondents appealed to the Customary Court of Appeal, Asaba Judicial Division, Delta State, which Court set aside the decision of the said trial Court and upheld the case of the stated Respondents. Also dissatisfied with the aforesaid lower Court's decision the present Appellants appealed to this Court. On the question of whether the property of Pa Osamusele (deceased) has been properly shared according to the native law and custom of Umuebo/Ubiaruku? In dealing with this issue, the unchallenged and uncontroverted evidence of the 2nd Plaintiff, 3rd Plaintiff and the PW2 at the trial comes handy. At pages 28, 29, 39 and 51 of the Record of Proceedings at the Court below these witnesses 18

22 testified and gave unchallenged pieces of evidence on the issue. For instance at page 29 lines 20 to 24, the said 3rd Plaintiff stated thus: "We stated the case to them, the decision of the palace is that they should share the lands within the areas that is Daco to all those who need land and that Mbah gate should beg 1st Plaintiff to allow them to share it to them. That if there is any surplus, it should be shared into three portions... At page 51, paragraphs 7 and 8 of the records, the PW2 stated unequivocally thus: "Under Obiaruku custom a deceased property s is shared per stripes it cannot be shared per head". Again at page 55, lines 30 and 31, the DW1 testified in support of the fact that the custom of Obiaruku people, is for the estate of a deceased person who died intestate to be shared by gate or per stripes. The findings of the Court below on the issue, which this Court has every reason to affirm on the ground that same is backed by credible evidence and sound reasoning is contained at page 157 lines 28, 29, 30, 31, 32, 33, 34 and 35 and at page 158 lines 1 and 2 respectively as follows: "The sharing of the Osamusele family properties in 19

23 1976 and the consequent sharing by the 1st Appellant to all the three (3) gates were sufficient to show sharing per stripes. This was clearly amplified in the evidence of 2nd and 3rd Plaintiffs during the trial at the lower Court when they testified at pages 28, 29 and 39 that the family land at Ogbeje, was shared into three gates with 6th Respondent in charge of Mbah family. Children of Oshiogwu in charge of Oluku gate while 3rd Appellant is still in charge of Akpa gate till today. Also in evidence is the fact that at the 2nd burial ceremony of Osamusele the sum of three (3) pounds was shared to the three (3)gates to further show that the custom of Osamusele family was that of per stripe and not per capita". It is instructive to note that the unchallenged evidence of Chief Nduabike Okwuchukwu, who testified as the PW2 at the trial Court strengthened additionally the Court s findings on the issue when he said; I am Okwu-Uku next to the Okpala-Uku. Under Obiaruku Custom, a deceased property is shared per stripes it cannot be shared per head". On the second issue which has to do with all the Judges co- 20

24 signing the judgment of the Court without preparing individual judgments; whether the Court below was in breach of any law and whether the breach, if at all is capable of impeaching the judgment of the Court below in any way whatsoever. The position of the law is that what a concurring judgment does is to compliment, edify and add to the lead judgment. In some cases, it could be an improvement of the lead judgment when the justices add to it certain aspect which the writer of the lead judgment did not remember to deal with. In situations where a case is heard by a plurality of judges, akin to the situation before the Court below some of the judges may enter their individual arguments in their own way outside the lead judgment which results in what is known as a dissenting judgment. The position is that dissenting judgments are minority judgments, which are not binding on the parties. See the cases of OSUN STATE INDEPENDENT ELECTORAL COMMISSION AND ANOR vs. ACTION CONGRESS AND ORS. (2011) ALL FWLR (PT. 567) 622 AT 685 PARAGRAPHS B-F; AKPOKU vs. ILOMBU (1998) 8 NWLR (PT. 561) 283; NWANA vs. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2004) ALL FWLR (PT. 220) 1243; ORUGBO vs. UNA (2002) FWLR (PT. 127) 1024, (2002) 16 NWLR (PT. 792)

25 This Court is of the clear view that the Court below did not in any way whatsoever err in law by the mere fact that judges unanimously signed the judgment without assigning the lead judgment to a particular judge amongst them to write, while the others write concurring or dissenting opinions. The attitude of this Court on the subject is that as long as the judges of the Court below have adhered strictly to the provisions of Section 26 of Customary Court of Appeal Law, 2006 Volume 1 Cap C24 Laws of Delta State of Nigeria, there will absolutely be no need to disturb the findings and decisions of the said Court. By the said Section 26; When Court is duly constituted the Court shall be duly constituted for the purpose of hearing and determination of any civil Appeal if it consists of at least three Judges. Provided that nothing in this Section shall preclude a Judge who does concur with the Judgment of the other judges from delivering a dissenting judgment. In the instant Appeal the complaint of learned Appellant s Counsel is against the fact that the Court below delivered a 22

26 unanimous judgment against, which each Judge appended its signature as a mark of its concurrence with the lead judgment. It is important to note that apart from the fact that the matter was heard by a full panel of the Court, probably due to the serious issues of Customary law raised between the parties, I am simply unable to agree with the Appellant s Counsel that because the judges did not subscribe their separate views to the leading Judgment therefore the judgment delivered was void. The settled position is that the act of appending their signatures to the lead Judgment simply means that they are in concurrence with the judgment without dissentions. To this end, this Court there finds and do hold that the judgment of the Court below delivered on the in suit No DCCA/44A/2013 between the parties is to all intents and purposes valid, Constitutional and in accordance with the law. The Appeal is therefore devoid of merit and it is accordingly dismissed with cost of 100, in favour of the Respondent. HUSSEIN MUKHTAR, J.C.A.: I had the honour of reading in advance the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree, for the 23

27 reasons ably advanced in the lead judgment, that the appeal is bereft of substance. It is hereby dismissed. I subscribe to the consequential orders made in the judgment. MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the lead judgment of my learned brother, Frederick O. Oho, JCA just delivered. I am in complete agreement with the reasons and conclusions reached therein that this appeal lacks merit and ought to be dismissed. I too dismiss the appeal and abide by the consequential orders made therein. 24

28 Appearances: Sir C.D.S. Omon-Irabor with him, G.O. Erhimeyoma (Mrs.) For Appellant(s) Chief M. I. Ukpebor For Respondent(s)