Udhude Emarieru & Anor V Samuel Ovirie & Ors (1977)

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SIR UDO UDOMA, JSC.

This is an appeal from the High Court of Mid-Western, now Bendel State. It is against the judgment on appeal of the High Court in which the judgment of the Magistrate’s Court, Oleh, from the Uzere Customary Court was set aside and a re-hearing ordered.

In the Customary Court Suit No. UCC/5/72 Udhude Emarieru and Okporo Isodhe for themselves and on behalf of Osomero Family sued Samuel Omoyouzou Ovirie, Okoro Ovirie and Odeji Agbadaku for a declaration that the defendants therein are non-members of Osomero Family, and an injunction to restrain the defendants from participating in Owhe (Oweh) bush. And in Suit No. UCC/6/72 Okoro Ovirie, Samuel Omoyouzou Ovirie and Odeji Agbadaku turned round and also sued Udhude Emarieru alone for a declaration that the defendant therein is also a non-member of the Osomero Family, and an injunction to restrain the defendant from participating in anything in Owhe (Oweh) bush. 

Both suits were consolidated and tried together by the Customary Court, the plaintiffs in the first suit being treated throughout the proceedings as the plaintiffs, and the defendants in the first suit also throughout as defendants, although there was only one defendant in Suit No. UCC/6/72. In its final order, however the Customary Court drew appropriate distinction between the two suits and made two separate and distinct orders, making it clear that its judgment affected the two suits, which had been consolidated for the purpose of the hearing.

After due hearing, the Customary Court reviewed the whole of the evidence and found as a fact that the cases were sparked off by a claim to compensation in respect of Osomero Family land which had been paid by Shell BP, resulting in the scramble for Osomero Family Land by the parties in both suits and attempts to expel one another from the family. It considered and rejected the oral testimony of the genealogy traced by both parties as unsatisfactory, but preferred and accepted the evidence of contemporary acts and events and acts and events within living memory.

It came to the conclusion that it was satisfied that the first and second plaintiffs had been leasing out the Emodhe land to various persons for building purposes; and that the first plaintiff had been enjoying Osomero property long before the emergence of court cases between the first plaintiff and the defendants; and similarly, that the defendants had been enjoying Osomero property long before the emergence of court cases between them and the first plaintiff. It believed that both Othobero and Erueme were sons and descendants of Osomero.  

The court then rejected the evidence of certain witnesses whom it declared to be biased and found as a fact and declared that the first plaintiff in Suit No. UCC/5/72, Udhude Emarieru, is the head of Osomero Family. It also declared that Othebero, Erueme and Avue were all members of Osomero Family and that all descendants of Othobero, Erueme and Avue are the rightful persons entitled to enjoy by native law and custom Osomero’s property and that all the parties in Suits Nos. UCC/5/72 and UCC/6/72 are members of Osomero Family. In the circumstances, it dismissed both suits and awarded neither party costs.   Thereupon the defendants in Suit No. UCC/5/72, who would naturally be regarded as having succeeded in that suit, appealed against the judgment of the Customary Court to the Magistrate’s Court. There was no indication in the Notice of Appeal that the appeal was also against the order made in respect of Suit No. UCC/6/72 in which they were plaintiffs and had lost.   At the hearing before the Magistrate, confusion set in. The matter was treated as if it were an appeal against the judgment of the court in both suits. No distinction was drawn between the two suits, the appellants being referred to throughout the proceedings on   PAGE| 3   appeal as defendants. That situation continued even before the learned Judge on appeal.

As both parties were represented by counsel both before the Magistrate and the learned Judge on appeal and both the Magistrate and the learned Judge on appeal had treated the appeals before them as affecting both suits tried by the Customary Court, it seems to us right and proper in the interest of justice that this court should also treat the present appeal as affecting both suits in the Customary Court of Uzere, particularly, as neither cousel before us has complained. For otherwise, one would get the invidious position of a successful party in a suit appealing against a judgment wholly in his favour.   The appeal was fully argued before the learned Magistrate who, in a reserved judgment, allowed the appeal on the ground that the decision of the Customary Court was meaningless because, according to him, the Customary Court had found both claims proved and had declared both parties winners. He thereupon set aside the judgment; and ordered that the suits be reheard in the Customary Court in order that the issues as to the proper descendants of Osomero might be determined. He made no order as to costs.  

From that judgment and order, the defendants in Suit No. UCC/5/72, still feeling dissatisfied, appealed to the High Court, Ughelli Judicial Division. The learned Judge on appeal (Ovie-Whiskey, J., (as he then was), affirmed the decision of the learned Magistrate allowing the appeal and setting aside the judgment of the Customary Court; but he set aside the order for re-hearing. He held that the Customary Court had failed altogether to assess the evidence before it, and that instead it had done what the learned Judge on appeal held was impossible for a court to do, namely, to accept the evidence of the plaintiffs and that of the defendants in a consolidated suit and to find for both parties therein. The learned Judge on appeal then proceeded to make his own findings of fact on the recorded evidence. He held that it was a proper case in which the findings of the Customary Court should be disturbed “because the finding of fact of Uzere Customary Court was erroneous and not supported by the credible evidence given before it at the trial”.

Having set aside the order for re-hearing made by the learned Magistrate, the learned Judge then ordered as follows:-   “(1) The plaintiffs/respondents/ respondents’ claim in suit No. UCC/5/72 against defendants/”appellants/appellants in Uzere Customary Court is hereby dismissed. (2) In Suit No. UCC/6/72 where the appellants are the plaintiffs and the first plaintiffs/respondent/respondent alone is defendant the appellants’ claim for a declaration that the first plaintiff/respondent/respondent in the consolidated cases and the only defendant in Suit No. UCC/6/72 is not a member of Osomero Family of Igbide and so not entitled to inherit the said Osomero’s landed property and other properties succeeds.”  

An order for injunction was refused. Thus in Suit No. UCC/5/72 judgment was entered in favour of defendants/appellants/appellants, who are the plaintiffs in Suit No. UCC/6/72 for a declaration that the defendant in Suit No. UCC/6/72 is not a member of Osomero Family of Igbide and that he is not entitled to inherit the real and personal property of Osomero Family. Costs of N280.00. were awarded against the plaintiff/respondent/respondent in Suit No. UCC/5/72.

This appeal is from that judgment and order and has been brought by the plaintiffs in Suit No. UCC/5/72 and the only defendant in Suit No. UCC/6/72. The main ground argued before us was that the learned Judge on appeal erred in law when he substituted his views for the views of the Customary Court and dealt with the issues of fact and credibility of witnesses without regard to the views of the trial court, which had properly fully evaluated the evidence and made specific findings of fact on the issues properly contested before it.  

In his submissions, learned counsel for the plaintiff, Mr. Aka-Basorun, contended that it was not competent for the learned Judge on appeal to have embarked upon the exercise of resolving what he termed contradictions in the evidence given by witnesses in the Customary Court. That was a function properly ascribed by law to the court of first instance; in this case, the Customary Court which had the advantage of hearing and seeing the witnesses give their evidence.

It was further submitted by learned counsel that the learned Judge on appeal was wrong in law to have disturbed the findings of fact of the Customary Court; that the judgment of the Customary Court should not have been disturbed; and that the same be now restored.   We think these submissions are sound. The matter in controversy turns on issues of fact as to custom. It concerns family inheritance, right of succession to property and membership of Osomero Family in accordance with customary law for the determination of which the Customary Court is the most competent tribunal. It has not been easy to appreciate the view taken by the learned Judge on appeal that the Customary Court had failed to assess and evaluate the evidence before it in the suits.   With due respect to the learned Judge on appeal, we do not think that was a fair assessment; nor do we think that the conclusion arrived at by the Customary Court was appreciated by the learned Magistrate on appeal, who took the view that by its judgment the Customary Court had found both cases proved and declared both parties winners and that therefore the judgment was meaningless.