Chief Edwin Obianefo Okeke & Ors. V. Anthony Agbodike & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
M. A. BELGORE, J.S.C.
This is an appeal from the decision of the Court of Appeal, Enugu Division, which dismissed the appellants’ appeal against the judgment of the High Court of Anambra State, sitting at Nnewi. The claim by the appellants as plaintiffs in the trial court was for:
“(a) A declaration that the plaintiff, as the descendants of Eze-Omodo, are the eldest or senior of the Umeagbunnono (Akabo Edeji) of Uruagu Nnewi.
(b) A declaration that the plaintiffs as the eldest family of the Umeagbunnono (Akabo-Edeji) are entitled to all rights and privileges of a first son under Nnewi native law and custom including the right to be the seat of authority over and above the defendants and right to exercise first option over any common property belonging to Umeagbunnono according to Nnewi native law and custom especially the common property situate at Uruagu Nnewi.
(c) An injunction restraining the defendants, their agents, relations. servants and functionaries from further destruction and interference with the authority and rights of the plaintiffs as the eldest family of Umeagbunnono (Akabo-Edeji) Uruagu.”
The parties filed and exchanged pleadings, called witnesses and tendered various documents many of which are irrelevant to the claim. At the end of addresses by counsel to the parties, learned trial Judge dismissed the claim in its entirety by concluding as follows:-
“But on a totality of the evidence before me I prefer the evidence of the defendants. The plaintiffs have failed to attain the minimal standard in proof of their case. If truth and justice should prevail without any flower of speech, I have no difficulty in holding that the defendants (1st-3rd defendants) succeeded on the balance of probability in showing that they have been exercising the rights and privileges of a first son in an unbroken succession and therefore the Obi of Umeagbunnono. The plaintiffs’ case fails. It is dismissed.”
Against the decision of the trial court, plaintiffs/appellants appealed to the Court of Appeal, which affirmed the trial court’s decision. Thus the appeal in this case was filed.
The appellants and respondents have a common ancestor named Umeagbunnono. The plaintiffs’ case is that Umeagbunnono had a son called Duru Onalibe who in turn had four sons. The four sons were Eze-Umeaka, Eze-Onuodo, Ume-Okula and Eze-Ozulumba. As Eze-Umeaka predeceased his father, Duru Onalibe, Eze-Onuodo became the eldest. Plaintiffs then claimed to be direct descendants of Eze-Onuodo and therefore the most senior descendants of Duru Onalibe with the 1st- 3rd defendants belonging to Ume-Okula, the 4th-6th defendants/respondents belong to Eze-Ozulumba. As against these assertions, the defendants/respondents claimed, while admitting ancestry through Umeagbunnono, that nobody called Duru Onalibe existed. Rather respondents claimed that Umeagbunnono had three sons to wit, Umeakula, Eze-Onodo and Eze-Ozulumba in that order of seniority. They deny the plaintiffs’ sub-family as the senior of the three sub-families. They listed the immediate past Obi as one Nnajiofo Agbodike, the father of 1st defendant. They traced all along the 1st defendant’s line of many Obis. The plaintiffs’ evidence, according to trial judge, never discharged the burden of proving their case, and the defendants offered cogent and firm evidence of their being the senior of Umeagbunnono descendants. The plaintiffs never proved existence at any time of Duru Onalibe who allegedly predeceased his father, Umeagbunnono. Learned trial judge, upon all evidence before him, found the case of plaintiffs not proved and dismissed it.
The issues before Court of Appeal concerned the alleged issue raised suo motu by that court on the equitable plea of laches and acquiescence, matters not pleaded. It must however be pointed out that the Court of Appeal resolved these issues clearly but stating that the bigger issue was, whether the appellants were the senior group of the descendants of Umeagbunnono. It was merely in passing that the trial judge alluded to laches and acquiescence but the matter was determined on the entire evidence before the trial judge. It was held by the trial court that the appellants never adduced enough evidence to prove their claim. The Court of Appeal had no reason to interfere with this finding of fact.
The duty of a trial court is to listen to the evidence of witnesses for both side, to examine all exhibits tendered in the course of the witnesses’ testimonies and make findings on them. The trial judge did this admirably. It is always the plaintiffs that must prove their case. In the instant case, the only credible evidence of the plaintiff is that they are descendants of Umeagbunnono, all other assertions remain unproved. The defendants’ evidence clearly established that Chief Anthony Agbodike (1st defendant) was the Obi of Umeagbunnono. The instances cited are many, as the Court of Appeal in its judgment record inter alia as follows:
“Among such acts proved were the claim of Chief Anthony Agbodike (1st defendant), who established before the trial court, that he was the Obi of the Umeagbunnono and that he had been performing the functions of the Obi of that family without being challenged by any of the defendants. He produced and tendered in evidence documents in support of such instances. An example given by 1st defendant in support of his contention in this respect was in 1972 when the family had a dispute over Agbo-Edo land owned by the Uruagu community. The community inserted a warning notice in the newspaper. The newspaper assertion, which was admitted as Exh. ‘L’ at the trial, shows that the 1st defendant signed the publication as the Obi of Umeagbunnono while the 1st plaintiff signed the same document as councillor.
Other instances given by the 1st defendant were two invitations he received from DW3 and Uruagu community (admitted as Exhs M & N respectively) in which he was addressed as ‘Obi’. It was also established that the 1st defendant usually collect the share of anything meant for Umeagbunnono as the Obi of the family. The appointment of tax collector for the Umeagbunnono (which was described as Ward 21 for the purpose) also confirmed that the 1st defendant was the Obi. Evidence was led to show that it was the practice that such appointment, although usually made on rotational basis, it was established that the appointment usually starts with the Obi. The first tax collector for the ward was said to be Abe Ikeagwuonu from Umeakuka; followed by Chukwuernaka Okeke, the father of the 1st plaintiff from Ezeomodo.”
It was also clearly established that the plaintiffs never produced an Obi in their line and the Ibo “symbol of authority” “OFO” was in possession of first defendant, Anthony Agbodike. The plaintiffs alluded to one Josaiah Chukwuma as regent for Obi of Umeagbunnono but countered by defendants as “regent Obi of Ezeomodo” as distinct from the superior Obi of Umeagbunnono. Whatever contradictions there may be in testimonies of the defence witnesses, they never touched on the substance of the case i.e. that the defendants’ line was the senior of all the descendants of Umeagbunnono. Other issues are minor and the plaintiffs never proved their case. In all cases, the plaintiffs primary obligation is to prove their case and not rely on weakness of the defence unless the evidence of defence supports that of the plaintiffs. The defence never supported any position of the plaintiffs on the fact that the defendants’ line was the senior of the defendants of Umeagbunnono; this very important position was clearly established by the defendants. The contradictions referred to in the defendants’ evidence are totally immaterial to the main issues in contention by the parties. The learned trial judge made enough findings of fact that could not be demolished before the Court of Appeal. [Adeyemo v. Arokopo (1988) 2 NWLR (Pt.79) 703; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Chukwu v. Nneji (1990) 6 NWLR (Pt.156) 363, 381]. There was no single material contradiction in the evidence of the defendants to justify interference with the trial court’s decision by the Court of Appeal.In this court, the appellants have not advanced enough reasons for this court to disturb the Court of Appeal’s decision. [Ude v. Chimbo (1998) 12 NWLR (Pt.577) 169; Agbabiaka v. Saibu (1998) 10 NWLR (Pt.571) 534; Osho v. Ape (1998) 8 NWLR (Pt.562) 492]. This appeal is against the concurrent findings of fact by the trial court and the Court of Appeal, but no cogent and compelling reasons have been adduced to justify disturbance of those findings by this court. [Ibenye v. Agwu (1998) 11 NWLR (Pt.574) 372; Odiba v. Azege (1998) 9 NWLR (Pt.566) 370; Alakija v. Abdulai (1998) 6 NWLR (Pt.552) 1.]
I find no merit in this appeal and I dismiss it with N10,000.00 costs to the respondents.
SC.246/1993