Israel Arum & Anor V. Okechukwu Nwobodo (2003)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

The suit which culminated in this appeal commenced with a plaint note (civil) in the Customary Court of Awkunanaw, holden at Ozalla of Enugu State of Nigeria. Assigned suit No. AWK/3/97, the case was filed on the 14th November, 1997, and judgment was delivered on 7th September, 1998. The trial Customary Court pronounced judgment in favour of the plaintiffs granting the two claims of the plaintiffs against the defendants.

Dissatisfied with the judgment of the trial court, the appellants appealed to the High Court in its appellate jurisdiction. On the 1st of November, 2000, the Hon. Justice E. C. Ahanonu of the Enugu State High Court pronounced judgment in the appeal, affirming the decision of the Awkunanaw Customary Court. This suit is a further expression of the discontentment of the appellants, who have now lodged a further appeal before this court.

The appellants in this court were the defendants/appellants before the lower courts, while the respondent was the plaintiff/respondent and will respectively be referred to as appellants and respondent in this judgment.

The claim of the respondent as plaintiff before the trial Customary Court is for:
“1. Declaration of title to a customary right of occupancy to a piece and parcel of land known as and called “Ala Agu Akpasha” which is situate at Akpasha Atugbuoma in Akegbe Ugwu in Nkanu West Local Government Area of Enugu State.
2. Court injunction restraining the defendants, their agents, servants and relations from further trespass into the said land until the matter is disposed off.”

At the hearing before the trial Customary Court, a total of 8 witnesses formally testified in the court with each side calling three witnesses in addition to their own testimonies. The plaintiff testified and called his witnesses, while the two defendants were represented by the 2nd defendants, who also testified and called three other witnesses. The first defendant reported ill and was unable to attend the court proceedings. At the close of the case of both sides, the court ordered a visit to the site of the disputed land.

During the inspection of the locus in quo, some persons, other than the witnesses who testified in the court appeared and made statements on the subject matter. The trial court recorded extensively and relied upon some of the statements made at the locus in quo. In its judgment delivered on the 07/09/98, the trial court referred to and relied particularly on the statement of one Oko Nwobodo Nta, who the court described as the oldest man in the community.

The plaintiff, Okechukwu Nwobodo stated his case after taking an oath on the Holy Bible (from page 11 of the record of proceedings).

I must observe that the testimony of the plaintiff as recorded was some kind of a mixed grill of verbatim and indirect reportage by the trial court. His testimony took this pattern:
“My name is Okechukwu Nwobodo …” (Italics mine)
“Age 32 years old,”

After this, the opening remark was that of the trial court in these terms “The plaintiff told the court that the land in question is an inheritance from his father. The area was in dispute over boundary between his family and Ugwu-Agba Amechi Awkunanaw when his father was still alive. Then in 1984, the 1st and 2nd defendants went into the land and leveled it but ‘myself and my bother’ (now deceased) went there and cultivated the area with cassava. But after ‘we had cultivated the area:’ the 1st defendant (i.e. Israel Arum), came to his father with some palm wine and kola nuts, praying him to allow him plant on the parcel of land but his father bluntly refused …” ‘I was later bailed and I reported back to Umuatugbuoma people, who advised him, 1st defendant, in his own interest to leave the land for them, i.e. the plaintiff and his family but he refused …’

In brief, the sum total of the case of the plaintiff is that the 1st defendant, Israel Arum and his brothers had trespassed into his land and persisted with their acts of trespass inspite of the admonition and intervention of the Local Community urging them to steer clear of the land. The plaintiff called three other witnesses in support of his case.

The 2nd defendant testified as DW1 for himself and the 1st defendant, Israel Arum. His statement as recorded by the trial court on pages 41 – 43 was a verbatim report and took this pattern:
“Name: My name is Onyeabor Arum.
Address: I live at Umuatugbuoma, Akegbe Ugwu Awkunanaw.
Occupation: I am a Security Man (Public Servant).
Age: I was born in 1927 i.e. 71 years ago.
I know the plaintiff. His name is Ewo Nwobodo Ewo.
I speak on behalf of myself and the 1st defendant – Mr. Israel Arum.

I also promise that whatever be the decision of this court in this matter, will be binding to myself and my brother, Israel Arum. The land in dispute is my father’s land. I have been planting with my father in that place for about 60 years now…”
The defendants also called three witnesses in support of their case.

The testimonies of the parties show that both parties lay claim to the ownership of the land. It was however, the respondent who took the further step of seeking to have a formal declaration of his title made in a court of law where it also sought and obtained the protection of the court by an injunction to restrain the defendants, its agents and privies from further trespassing into the land.

By the provisions of section 137(1) & (2) of Evidence Act the burden of proof in civil suits lies on that party who would lose if no evidence were adduced at all in the case. See Mr. David Ejiniyi v. Mr. Musa Adio (1993) 7 NWLR (Pt. 305) 320 at 329; Chief Asaba Emiri & 4 Ors. v. Chief Dominic Imieyah & 1 Ors. (1999) 4 NWLR (Pt. 599) 442 at 463; Ebe Ebe Uka & Anor. v. Chief Kalu Okorie Irolo & 5 Ors. (2002) 14 NWLR (Pt. 786) 195, (2002) 11 NSCQR 307; Lasisi Morakinyo & 4 Ors. v. Laleke Adesoyero & 4 Ors. (1995) 7 NWLR (Pt. 409) 602. It follows therefore, that it is the respondent who would loose, if no evidence at all were adduced by either party.

Five grounds of appeal were filed and in accordance with the rules of this court, briefs of argument were subsequently filed and exchanged. The appellants filed a reply brief after being served with the respondent’s brief. The respondent filed a notice of preliminary objection, which was argued together with the appeal. I shall address the preliminary objection instantly.

Preliminary Objection:

In a notice of preliminary objection, the respondent challenged the competence of the appeal as filed. Learned Counsel for the respondent filed five grounds of objection to wit: –
“1. The Enugu State High Court sat as a Court of Appeal on the judgment of Awkunanaw Customary Court in suit No.AWK/3/97.
2. The appeal from the judgment of the said High Court to the Court of Appeal is the second appeal in respect of the same matter.
3. By S. 242 of the 1999 Constitution of the Federal Republic of Nigeria, the appellants are required to obtain leave either of the High Court, which sat as Court of Appeal or of the Court of Appeal before their second appeal to the Court of Appeal.
4. To the best of the respondent’s knowledge, the appellants did not obtain the requisite leave to appeal from the decision of the High Court.
5. The present appeal is therefore incompetent.”

It was the submission of the learned Counsel that the case of the appellants is one of double appeal, therefore, by the provisions of section 242 of the 1999 Constitution, the appellant ought to have obtained leave of either the High Court or of this court before appealing against the decision of the High Court sitting on appeal.

Counsel posited that the said requirement being a constitutional one cannot be waived. Section 242 of the 1999 Constitution, submitted counsel is in pari materia with section 221(1) of the 1979 Constitution. In the case of Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622, continued counsel, the Supreme Court examined the provision of section 221(1) 1979 Constitution and held that leave is not required, if the appeal is one of law alone. It was further the submission of counsel that the said decision of the Supreme Court is consistent with section 220 of 1979 Constitution as repeated in section 242 of the 1999 Constitution.

Learned Counsel submits that a full court of seven Justices of the Supreme Court were ad idem on the issue.

It was equally the contention of the learned Counsel that the instant appeal, being not only a double appeal but also an appeal of grounds of mixed law and facts, and further a case of final decision of the High Court in its appellate jurisdiction, leave is required and where leave is not obtained, as in the instant case, the appeal is incompetent and ought to be dismissed. The learned Counsel also submitted that in considering the issue of right of appeal, the provisions of section 241(1)(b) should not be read in isolation but in conjunction with section 242(2) which envisages an appeal from a High Court not a double appeal as in the case under review counsel also relied on the cases of Mohammed v. Olawunmi (1990) NWLR (Pt. 133) 458 at 475 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

In his reply, the learned Counsel for the appellant observed and submitted and rightly too, that the preliminary objection did not state which of the grounds of appeal is of mixed law and facts, and he urged the court to discountenance that aspect of the submission.

Counsel contended that all the five grounds of appeal filed were grounds of law, the appeal is therefore right and filed as of right under the provisions of section 241(1)(b) of the 1999 Constitution. It was the submission of the learned Counsel that section 241(1)(b) of the Constitution has no such provision, that because this is a double appeal, it is incompetent to come under the said section. The learned Counsel referred to a decision of this court in the Jos Division – the case of Idakula v. Adamu (2001) 1 NWLR (Pt. 694) 322 at 341, in which this court synthesized how to decipher from grounds of law and grounds of mixed law and facts. Counsel submitted that the case of the appellants meets squarely, all the five guidelines made out by the Jos Division.

Counsel also relied on the decisions in:
1 . Abuah v. Abuah (1999) 12 NWLR (Pt.630) 205 at para. C at 210.
2. Mobil Producing (Nig.) Unlimited v. Monokpo (2001) 18 NWLR (Pt. 744) 212 at 234 para. G.
He urged us to discountenance the preliminary objection and allow the appeal.

The learned Counsel for the respondent predicated his preliminary objection on the provisions of section 242 of the 1999 Constitution, which he submitted is in pari materia with sections 220 and 221 of the 1979 Constitution. Conversely, the learned Counsel to the appellant said they proceeded under section 241(1)(b) of the 1999 Constitution which is also similar to section 220(1)(b) of the 1979 Constitution. Decisions made under the provisions of sections 220 and 221(1)(b) of the 1979 Constitution are therefore, guides in construing the provisions of sections 242 and 241(1)(b) of the 1999 Constitution.

What do these sections of the 1999 Constitution say?
“Section 241:
An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court, sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) ………….
(e) …………..
(f) ……………
“242(1). Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) ………………….”

First and foremost, I must say that the preliminary objection lacked supporting pillars to hold the grounds of objection. The learned Counsel for the appellant hit the nail on the head when he said that the notice of preliminary objection is “not a fencing match,” the learned Counsel to the respondent, did not identify nor did he tell us why any or all the grounds of appeal are of mixed law and facts.

In the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 493, the Supreme Court held that a thorough examination of the grounds of appeal is necessary in order to determine whether the ground reveal;
(f) a misunderstanding of the law;
(g) a misapplication of the law to the facts already proved/admitted before the trial court; or
(h) an improper evaluation of facts by the trial court.

This exercise is imperative because the distinction between a ground of law and one of mixed law and fact is a very fine/thin one. The dictum of Nnaemeka-Agu (JSC) (as he then was) in Ogbechie v. Onochie (supra) is very apt on this distinction.
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the ground reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted …”

Be that as it may, Nnaemeka-Agu, (JSC) effectively laid down the guidelines to enable a court distinguish a ground of law and that of mixed law and fact. This was in the case of Attorney-General of Kwara State & 2 Ors. v. Raimi Olawale (1993) 1 NWLR (Pt. 272) 645 at 661-662. The Supreme Court, Per Nnaemeka-Agu (JSC) held that; … it is a self evidence truth that the law does not hang, as it were, in the air; facts are the fountain-head of the law. So, every proposition of law in an appeal has a factual base. If the facts, including any particulars thereof, upon which a ground of appeal is based are disputed facts or those that require further resolution by the court, then such a ground of appeal is one of fact (italics are mine). But if such are settled or admitted facts, then the ground is one of law.”

In the case of Nwadike v. Ibekwe (supra) Nnaemeka-Agu (JSC) again came to the rescue when the learned jurist set out five classes of situations to guide a court in determining errors in law as opposed to errors of mixed law and fact.

These are:
“(i) It is an error in law, if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although, applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’Kelly v. Trusthouse Forte P.I.C. (1983) 3 All ER 456.
(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn therefrom are grounds of law; Ogbechie v. Onochie (supra) 491-492.
(iii) Where a ground deals merely with a matter of inference, even if it were an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts.
(iv) Where a tribunal states the law on a point wrongly, it commits an error in law.
(v) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, it is a ground of law.”

The Hon. Justice Karibi-Whyte USC) in the case of Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 626 further expounded and classified the issue of right of appeal under the Constitution in these terms:
“A careful analysis of section 220(1)(a) & (b) discloses that the paragraphs of the sub-section govern the exercise of right of appeal, as of right and without the necessity to seek leave of the court or of the Court of Appeal in respect of (a) final decisions of the High Court sitting at first instance. (b) non-final decisions where the ground of appeal involves questions of law alone…
It seems to me that the non-qualification in (a) of the ground for the exercise of the right, leaves it at large and enables the exercise of the right with respect to all grounds of error whether of law, fact, or mixed law and fact. The section does not appear to me to contemplate appeals from final decisions of the High Court in the exercise of its appellate jurisdiction described as double-appeals. In such cases it seems to me that the provisions of S. 221(1) will apply. It is therefore correct to conclude that appellants exercising the right of appeal under S. 220(1) do so as of right and the competence of the appeal is not affected by absence of leave of the High Court or Court of Appeal …”

Applying the Nnaemeka-Agu USC) principles to the grounds of appeal under review, it is difficult to identify any ground of mixed law and facts.

Grounds 1 and 4 complain of inadequate evidence of traditional history and wrongful exclusion of admissible evidence – ground of law.

Grounds 2, 3 and 5 complain of wrong application of law to undisputed facts – also ground of law.
I am properly guided.

The preliminary objection is hereby dismissed.

Now to the merit of the appeal itself.

In line with the grounds of appeal, five issues were set out for determination in the case of the appellants. These are:
“(i) Did the plaintiff give evidence of traditional history of the land in dispute for a declaration of title to be made in his favour in that ground?
(ii) Was the lower court right, in refusing to expunge the evidence of Oko Nwobodo Nta, who was not called as a witness and on whose said evidence the Customary Court heavily relied on in its judgment?
(iii) Was the lower court right, when after holding that it was wrong for the Customary Court to require the defendants to prove their case beyond all reasonable doubts, it still went ahead to uphold the judgment of the Customary Court?
(iv) Was the lower court right in law, when it held that “the fact that a witness is a blood relation of the party who called him can make the evidence of such a witness less pungent”?
(v) Was the lower court right in law, when he held that the appellants have alleged bias on the part of the trial court in ground 11 no particulars were given of the alleged bias, and it then failed to consider the issue.?”

The issues identified in the respondent’s brief are similar to those of the appellants and barring repetition, these are:
“1. Whether the evidence which the plaintiff/respondent led at the trial Customary Court in proof of his claim was of such nature and character as to warrant the High Court, Enugu as Appeal Court to affirm the judgment of the Trial Customary Court in favour of the plaintiff.
2. Whether it was proper for the High Court as Appeal Court, Enugu, as a Court of Appeal be justified in reversing the findings of facts made by the trial Customary Court.
3. Whether it was proper for the High Court as Appeal Court to have allowed the statements/unsworn evidence of Oko Nwobodo Nta as part of the evidence upon which the trial Customary Court could base its findings and conclusions.
4. Whether the allegation of bias made by the appellants will bear scrutiny such that it would have sufficed for the High Court to allow the appeal of the appellants.
5. Whether it was right for the High Court to hold that the use of certain phrases like “proof beyond reasonable doubt” did not cause a misdirection by the Customary Court in its approach to the evidence of the parties before it.”

I have considered these issues as made out by each side in the light of the grounds of appeal filed and I find that they properly arise from the grounds of appeal filed. The issues set, out by the appellants accord more directly with the grounds of appeal and I adopt same. The merits of this appeal would therefore be considered on the basis of the said issues.

At the hearing of the appeal, the learned Counsel for the parties each adopted and placed reliance upon their briefs and oral submissions before us.

The issues raised were addressed seriatim in the briefs and I do same in this judgment.
Issue No.1:
The learned Counsel for the appellant submitted that the claim of the plaintiff/respondent being one for the declaration of title to land, the respondent had one of five ways to establish his title as was stipulated in the case of Idundun v. Okumagba (1976) 1 NMLR 200. Having elected traditional history as his root, it was incumbent on the Respondent to adduce evidence which state clearly how and when the land was settled on, the several ancestors who successively took/shared from the title etc up to its devolution to the plaintiff. It is not sufficient, as did the respondent, argued counsel, to trace his title to a particular person nor that having failed to prove by traditional history, could the respondent move to another source to establish his title. The counsel cited the dictum of Oputa (JSC) in Odofin v. Ayoola (1984) 11 SC 72, (1984) NSCC 711 at 731 in support of his submission.

The plaintiff, submitted counsel, failed to adduce evidence to establish his title. The trial court however entered judgment for the plaintiff. The High Court in its appellate jurisdiction found that the plaintiff “… never really tried to establish the traditional history of how he came to own the land in dispute.”

Rather than dismiss the plaintiffs case on the ground, that the plaintiff failed to give evidence of traditional history, which, contended counsel was the only ground relied upon for giving judgment to the plaintiff by the trial court, the Judge looked elsewhere and instead, affirmed the decision of the trial court. No respondent’s notice was filed to urge the court to uphold the appeal on other grounds. The High Court, contended counsel, was therefore in error when it found that “… it seems to me that he gave evidence of other acts of ownership or assertion of ownership which the trial court accepted.”

Upon the decision in the cases of Chime v. Ude (1993) 3 NWLR (Pt. 279) 78 at 88 paras. C – D; Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271; Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at 66; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 179 paras. B – E and 219 paras. E – G, the Judge came to a perverse decision, counsel postulates, when he concluded that he finds no good cause or substantial reason for interfering with the judgment of the trial court. Counsel urged us to allow the appeal based on this Issue.

The learned Counsel for the respondent agrees that the burden is on the plaintiff to prove on the evidence brought by him before the court that he is entitled to the declaration he claims. This he must do submitted counsel, by one of the five ways laid down in the case of Idundun v. Okumagba (supra) and the provisions of section 46 of the Evidence Act, 1990, see also Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 218.

Counsel further submitted that the Supreme Court also laid down in a number of cases, notably, Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626 and Kojo v. Bonsie (1957) 1 WLR 1223 or 14 WACA 242, that where traditional evidence is unsatisfactory in the sense of being inadequate or conflicting with that of other parties, the trial court should resolve the conflict by testing the evidence against recent happenings within living memory. Such was the situation of the respondent in this case where the appellant, submitted counsel, also laid claim to the title of the land.

It was the contention of the counsel that bearing in mind the informalities of the procedure in the Customary Courts and the principles laid down by the Supreme Court as to how our common  law type of courts should treat the judgments of Native/Area/Customary Courts, as (per Iyaji v. Eyigebe (1987) 2 NWLR (Pt. 61) 523; Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt. 4) 587 at 593 and Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 151, it became clear that the plaintiff was relying on traditional evidence as his root.

The counter-claim of the defendant and their reliance also on traditional history created a conflict, which necessitated the respondent’s resort to prove other acts of possession.

At the locus, submitted counsel, the plaintiff displayed a mastery of the boundary of the land in dispute and thus imparted positively on the trial court.

In reviewing the decision of the trial court, submitted counsel, it was the duty of the High Court in terms of sections 15 and 20 of the Customary Courts Edict No.6 1984, to see:
(1) If there was evidence before the trial court on which it based its findings and judgment.
(2) To satisfy itself that the decision of the trial court was not against any written law or custom of the people or the principle of natural justice, equity and good conscience.
Counsel concluded that the High Court having found all these, properly affirmed the judgment of the trial court.

This was a trial by a Customary Court before which no pleadings are filed, no strict rules of procedure nor rules of evidence are binding on the Court. (See Kuusu v. Udom (1990) 1 NWLR (Pt. 127) 421). The cardinal principle here is the attainment of substantial justice based on the reasonable practice, tradition and custom of the local people. Thus in reviewing the decision of such a court, an appellate court needs only look at the appreciational extent of the stated facts and the court’s application of same to issues raised, to determine if substantial justice has been done, – whether the decision of the Customary Court accords with commonsense – see Efi v. Enyinful (1954) 14 WACA 424, and Ogunsina v. Ogunleye (1994) 5 NWLR (Pt. 346) at 625 and Akunyili v. Ejidike (1996) 5 NWLR (Pt. 449) 381.The appellate High Court had, in reviewing the decision of the trial Customary Court adequately noted the concerns of the learned counsel to the appellant.

The court below found that the plaintiff never really tried to establish the traditional root but based his title on that of his late father Nwobodo Ewoanshi in whose title the plaintiff subsumed his own title. The court further found that although the plaintiff did not give much evidence of traditional title to warrant judgment for him on that score, that he gave evidence of other acts of ownership or assertion of ownership which the trial court accepted. Such evidence include details of efforts made by his late father and himself to ward off encroachment upon the land, the sale of a portion of the land to PW1 and a report of the dispute between the parties to the Umuatugbuoma Community for its intervention. The court below also found that at the inspection of the locus in quo the plaintiff “demonstrated to the satisfaction of the trial court mastery of the land and its boundaries …”

The High Court then properly and rightly so, in my humble opinion, found guidance in the case of Amechi & Anor. v. Obioha & Ors. 2 ECSLR 596, which held that where there is no evidence of traditional history, the plaintiff to succeed must produce evidence of acts of ownership over a long period of time to warrant the inference that he is the exclusive owner. See also per Igu (JSC) in Umeano Achiakpa & Anor. v. Josiah Nduka & 6 Ors. (2001) 14 NWLR (Pt. 734) 623, (2001) 7 NSCQLR 341 at 366-367.

There being no pleadings in the Customary Court, it would not be correct, as contended by counsel, that the only ground upon which the plaintiff rooted his title was traditional history. There was no such ground. The decision was based on the preponderance of evidence adduced by the competing parties.

Even where pleadings were filed, the Supreme Court has held that where there is conflicting claim, that resort can be had to acts in recent times. (See Awoyale v. Ogunbiyi supra). In this case, there was a conflicting claim in that the 2nd defendant, now the 2nd appellant – stated thus:
“The land in dispute is my father’s land.
I have been planting with my father in that place for about 60 years now …”

Learned Counsel to the appellant submits in the respondent’s brief that the above statement of the 2nd defendant is not a counter claim.

If it were a trial in the High Court, without pleaded facts to support it, such a statement would go to no issue. However, in a Customary Court, the nature of the claims of the parties is distilled from their statement/evidence in court. This explains the expectation of the trial court that persons other than the close family members of the claimants should affirm the claim of the defendants. The plaintiff had other witnesses, outside its close family circle – neighbours for instance.

If the defendants/appellants’ claim that they have been farming the land with their father for 60 years, were true, some persons must have seen them cultivating the land over the long period of 60 years/Unless of course they were farming the disputed area under cover, stealthily; in which case, only the close family relations would know -see Umeano Achiakpa v. Josiah Nduka (supra). Farming is however an open matter, it is difficult to hide the fact that one is cultivating a piece of land. At least one’s neighbours in adjoining/nearby land can attest to one’s ownership/ presence on the land. In the circumstances, the respondents established a better title and thereby deserved the judgment.
The High Court rightly affirmed the decision of the Customary Court on this issue. I too, find no good cause to interfere with these correct findings by the lower court. Issue No.1 therefore fails.

Issue two:
On this issue, counsel stated that after parties closed their cases on the 23/2/98 and 20/4/98 respectively, the trial court directed a visit to the locus in quo. That the court allowed the respondents to call other persons whose statements the court recorded at the locus. Among such persons was Ernest Nwobodo. Oko Nwobodo Nta, who made a statement at the locus on which the trial court relied heavily in its judgment. Counsel further submits that without any evidence to that effect, the trial court declared the said Oko Nwobodo Nta to be the eldest man in the community, gratuitously enlarged his statements which was made ex tempore, as the High Court found in its review of the facts, and relying on the said statement, gave judgment to the plaintiff.

In its review of ‘the decision of the trial court, contends counsel, the High Court found, relying on the dictum of Mbanefo, C. J. in Mba v. Obule 7 ENLR 51 and in the provisions of sections 62 and 20 of the Customary Courts Edict, 1984, the trial court did not contravene the rules of natural justice. The High Court therefore affirmed the decision of the trial court. Counsel submits that in failing to expunge the statement of Oko Nwobodo Nta, and the findings of fact made by the trial court, which were not based on evidence before the court, the decision of the court is perverse. Counsel relies on the cases of Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253 at 258 paras. G – H and Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 to buttress his submission.
Counsel urged us to allow the appeal on this issue.

The respondent’s issue No.3 addressed appellant’s issue No. 2. The respondent maintained that the trial Customary Court has powers under section 42 of the Customary Courts Edict No.6 of 1984 to visit the locus in quo. Counsel cited the case of Umar v. Bayero University Kano (1988) 4 NWLR (Pt. 86) 85, which highlighted the relevance of a visit to the locus in quo and held that such exercise settles issues which mere hearing without seeing cannot solve.

On the evidential value of the statement of Oko Nwobodo Nta, counsel submits that the statement is an admissible piece in the furtherance of substantial justice. The learned Counsel further refers to sections 62 and 20 of the Customary Court Edict (supra) which he submitted found expression in the case of Mba v. Obele (supra) in which the learned Mbanefo, C. J. (as he then was) considered the provisions of sections 30 and 48 of the Customary Courts Law of 1956, which are similar to sections 62 and 20 of the Customary Courts Edict. Mbanefo, C. J. (as he then was) held that:
“In a land case, admission of unsworn evidence such as those taken at the locus in quo, does not transgress the rule of natural justice so long as the witnesses were interviewed in the presence of the parties with full opportunity for cross-examination.” (Page 100 lines 5 – 10.)

The main complaint of the appellant in this issue is the evidential value of the statements recorded at the locus in quo and the prime value placed on the statement of one Oko Nwobodo Nta by the trial court.

At the appeal before the High Court, the counsel for the appellant challenged the evidential value of the statement made by Oko Nwobodo Nta. The court reviewed the provisions of the law as it applies to the case. The Judge found and held that by the provisions of section 1(4)(c) of the Evidence Act, the Customary Court is not bound by the provisions of the Act, but the court should generally, as in all judicial proceedings be guided by the provisions of sections 179 & 180 of the Act. The court then referred to the decision of Mbanefo, C. J. in Mba v. Obele (supra) and section 62 of the Customary Courts Edict (supra) and concluded that the Customary Court cannot be faulted on the statement of Oko Nwobodo Nta.

The postulations of the learned Counsel that the inference made by the lower court that Oko Nwobodo Nta gave “evidence” and that the defendants cross-examined him or declined to do so as opportunity was given to them and as such the dictum of Justice Mbanefo in Mba v. Obele applied is not correct. On the contrary, the lower court was very emphatic in stating that the statement of Oko Nwobodo Nta is not evidence properly taken under the Evidence Act. Nonetheless, the Customary Court’s reliance on the said statement did not vitiate the proceedings. The Court was properly guided by the dictum of Mbanefo, C. J.

By the provisions of section 227(1) and (2) of the Evidence Act, the wrongful admission or exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case. The Appeal Court must refrain from interfering with the decision of a trial court, where it appears that such evidence cannot reasonably be held to have affected the decision and the decision would have been the same had the evidence been admitted or excluded. See per Nnaemeka-Agu, JSC (as he then was) in Attorney-General of Kwara State & 2 Ors. v. Raimi Olawale (supra), see also per Uthman Mohammed, JSC in Oneli Okobia v. Mamodu Ajanya & Anor. (1998) 6 NWLR (Pt. 554) 348 at 360.

The High Court displayed an appreciable comprehension of these principles, when it observed in its judgment that the statement of Oko Nwobodo Nta at the locus in quo was not isolated, that his statement merely confirmed what the plaintiff had already stated in evidence. The Judge also cited the observations of the trial court at the locus in quo, which he described as “damaging to the case of the defendants, apart from the statement of Oko Nwobodo Nta.”

The import of the foregoing analysis by the lower court is that, if the statements of Oko Nwobodo Nta were merely expunged, it would not affect the decision of the trial court one way or the other. I agree.

Issue No.3:
The thrust of the complaint of the appellants under this issue is that the trial court placed an unusual burden, a heavier burden, indeed, the entire burden of proof upon them as defendants while placing none at all on the plaintiff whose duty it was to bear the burden.

The plaintiff who claims a declaration of title must succeed upon the strength of his own case. Counsel cites the case of Echi v. Nnamani (2000) 8 NWLR (Pt. 667) 1 at 19 paras. A-G.

The trial court however held that it was the defendant who “failed to prove their case beyond all reasonable doubt” … Because “the 2nd defendant was unable to trace the chronological origin and ownership of the area in dispute beyond all reasonable doubts.”

Counsel posited that the reviewing Judge conceded that by the use of such legal phrases as noted above, the trial court placed an “underserved” burden on the defendants in a civil case and described same as a “faulty approach.”

However, argued counsel, rather than reverse the decision of the trial court, which was founded on this “faulty approach,” the High Court explained off the “faulty approach” in these terms:
“I see the use of this conceptual phrase as reflective of ignorance, is mere inclination on the part of the trial court to bombast.”

The Judge then evaluated the evidence on the record itself but ended up relying on the same high standard, i.e. faulty findings of the Customary Court in affirming the decision of the lower court. The two lower courts thereby misplaced the burden of proof and the onus, submitted counsel. Flowing from this misplaced responsibility, the trial court totally ignored the evidence of the three witnesses of the defendant and never tried to evaluate the evidence of the plaintiff. That the court cast no burden of proof, on the Plaintiff and found against the defendant on that score.

In support of his submission, the learned Counsel cited many cases in each of which the Supreme Court mainly overturned the decisions of the lower court because the court either failed to place the evidence of both parties on the imaginary scale of Justice or it demanded, as was done in this case, a burden of proof higher than the standard set by law or misplaced the burden. These cases are: Duru v. Nwosu (1989) 4 NWLR (Pt 113) 24 at 55; Mogaji v. Odofin (1978) 4 SC 91; Akporo v. Ughalaa (1995) 8 NWLR (Pt. 411) 118 at 127 para. G and Oladehin v. Continental iles Mills Ltd. (1978) 2 SC 23 at 32.

Relating to issue No.3 in its issue No.5, the respondent is of the view that the High Court appreciated that neither the Customary Court Judges nor their Registrars are persons trained in law. That they are ordinary lay persons whose use of certain phrases of trained lawyers is merely their way of trying “to keep up with the Joneses”, or “mere empty bombast to show off.” Counsel agreed entirely with the approach of High Court on this issue.

The High Court fully appreciated the apprehension and frustration of the appellants on this issue and to solve the problem, the Judge decided to place itself in the shoes of the trial court to determine how the court evaluated the evidence of each of the parties.

The High Court found that:
“The trial court made very serious effort to place the evidence of the parties on an equal scale for evaluation…”

The court found that the trial court considered the evidence of the parties and made its findings at page 93 – 99 of the record. An examination of the findings shows that for most findings the trial court gave reasons for rejecting the evidence of the defendants. It gave reasons for impugning the performance of the 2nd defendant at the locus in quo.

The Judge then concluded in these terms:
“There can therefore be no question of the trial court arbitrarily accepting or rejecting the evidence of any of the parties.”

The submission of counsel gives the impression that the appellants had no duty at all at the trial. The 2nd defendant /appellant claims he inherited the land from his father with whom he had farmed the disputed land for 60 years. Surely, the 2nd defendant had some burden of proof to establish his claims if he did not want judgment entered for the plaintiff/respondent, if not why contest the plaintiffs case? In such matters, the burden is not static, once the initial burden has been dislodged by the plaintiff, the onus shifts back and forth between the two parties. See Mr. David Ejiniyi v. Mr. Amusa Adio (1993) 7 NWLR (Pt. 305) 320 at 329; Ezekiel Oyinloye v. Babalola Esinkin & 4 Ors. (1999) 10 NWLR (Pt. 624) 540 at 549 paras. C-D; UBA Ltd. v. Mudasiru Ademuyiwa (1999) 11 NWLR (Pt. 628) 570 at 588.

The one who adduces the preponderance of credible evidence eventually gets judgment declared in his favour. These principles I believe informed the statements made by the trial court about proving beyond reasonable doubt etc.

The reviewing High Court, as already stated (supra) sensing the likely injustice that would result from the application of these high sounding legal principle as used by the trial court, placed itself in the shoes of the trial court and weighed the evidence on records, as it is expected of an appellate court. The Judge discovered that the trial court actually placed the evidence of each party on the imaginary scale of justice and weighed same. The trial court then ascribed probative value to the evidence of each party giving reasons for its preferences.

The trial court found that the defendant witnesses contradicted each other in some pieces of their testimonies; DW2 knew the PW1, but did not know how he acquired his place of abode in the adjoining land to the disputed area. The respondent knew; he said his late father sold the land to PW1. The inference the trial court drew on this piece of evidence is expressed thus:
“This goes to show that the plaintiffs’ father actually sold a portion of the area in dispute to PW1, because it is his property. Otherwise, the defendant should have challenged both the buyer and seller of the land and made it impossible for the PW1 to put up any building structure in the disputed area.”

In the light of the above, I agree with the High Court that the use of the phrase “proof beyond reasonable doubt” by the trial court was just, an exhibition of adjudicative exuberance of no perceptible evidential value nor harm to either party in this suit.

Issue No.3 therefore crumbles.

Issue No.4:
The contention of the appellants on this issue is that the trial court failed to evaluate and therefore, rejected their evidence on the strange principle “that all the witnesses of the defendant were the blood relations to the defendant. Arguing the brief, counsel submitted that the High Court also fell into the same error as the trial court when, after reviewing the findings of the trial court, it concluded, thus:
” … the fact that a witness is a blood relation of the party who called him can make the evidence of such a witness less pungent.” (Page 103 lines 5-7).

The High Court came to the above conclusion, emphasized counsel, after going into great lengths to justify the wrong proposition and conclusion of the trial court. Further, that the High Court did not show in any way how the evidence of the witnesses for the defendant were incredible, erroneous, untrue, false or manufactured.

No law, nor rule of practice, submitted counsel exists to justify nor support such decisions of the two lower courts. Counsel called in aid the case of Amira Nigeria Ltd. v. Mal. (Nig.) Ltd. (2001) 17 NWLR (Pt.742) 469 at 502 paras. D – H, which set out the consideration that should guide a trial court in determining which evidence it should prefer.

These are:
“(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible; and
(d) whether it is conclusive and more probable than that given by the other party.”

Counsel concluded that the High Court was in error in upholding the erroneous decision of the trial court which rejected the evidence of the three witnesses.

Counsel urged us, upon the silence of the respondent on this issue, to take the issue as established.
It is true that the respondent made out no particular submission on the issue under review. Counsel for the respondent however, replied that all the five issues made out by the respondent adequately covered all the issues raised in the appeal.

The respondent’s counsel may be right on this point. The point taken in this issue is one of the evaluation, admissibility or rejection of evidence, elements which have featured right through the issues formulated in this appeal. A decision on this issue one way or the other would therefore not materially affect the case of the respondent, i.e. whichever way this appeal goes.

Now to the main issue. What were the circumstances in which these statements were made?

The statement of the trial court was made on page 71 of the records compiled for this appeal. Page 71 is the 10th page of the 13 page judgment of the trial court. Page 71 – 72 contain the summation of the findings of the trial court, after all evidence, statements and inspections had been concluded.

The trial court found inter alia, that:
(e) In all six (6) witnesses testified for the both parties. The three witnesses from the same family with them. No one can be the judge his own case. But in this case, Umu Egbo family memebers are both defendants and witnesses to themselves inthe same matter. This leads to doubts as to credibility of their claims and testifications.” (Italics mine)

In its judgment, the High Court observed that:
“…much as the defendant’s witnesses are not disqualified from testifying for the defendants on ground of their being related to them, the fact that a witness is a blood relation of the party who called him can make (italics mine) the evidence of such a witness less pungent.”

From the above portion of the judgment of the two lower courts, I am of the humble opinion that the comments were as to the weight rather than the admissibility of the testimonies of those witnesses.
A trial court which saw and heard the witnesses, assessed and observed their demeanour is in the best position to decide on which witness to believe and which not to believe. That the trial court expressed reluctance in relying on the testimonies of witnesses of the defendants because they are all blood relations is within the powers of a trial court to do.

In the case of Matthew Kehinde Babalola v. Alh. M. O. Badmus Wellington (1998) 11 NWLR (Pt.572) 167 at 177, the Lagos Division of this court held that:
“The testimony of interested persons such as near relations and friends and most often those testifying on their behalf should be carefully scrutinized and ought generally not be given the same weight as testimony of disinterested witnesses and if there is anything affecting its credibility, it could not be accepted as conclusive especially where it is contradicted by circumstances of the evidence or by witnesses themselves.”

The case of Amira Nigeria Ltd. v. Mel Nigeria Ltd. (supra) lists credibility as one of the elements to be considered by a trial court. If, having observed the witnesses, the trial court finds them not credible, it had the discretion to so declare. This was the attitude of the High Court on this issue, when it held that the trial court had the “unfettered power of decision as to what evidence before it to believe or not to believe.”

In the case of Motanya & Ors. v. Elinwa (1994) 7 NWLR (Pt.356) 252 at 260, the Supreme Court held that legal admissibility and the weight the court attach to such evidence are two different things.
It is apparent that the trial court based its decision on the weight it ascribed to the evidence adduced by each party.

It is not the function of a Court of Appeal to replace its own views with those of the trial court which had the advantage of seeing the witnesses and watching their demean our – see Narumal & Sons (Nig.) Ltd. v. Niger Benue Transport Company Ltd. (1989) 2 NWLR (Pt. 106) 730 at 742.

In the case of Nathaniel Ude & 2 Ors. v. N. Chimbo & 3 Ors., the Supreme Court counseled that an appellate court must show the utmost restraint and reject any temptation to interfere with well considered findings made by a trial court after the evidence of relevant witnesses. An appellate court may interfere only “where it is clear or established that such findings are perverse or not supported by evidence or have not been arrived at as a result of a proper exercise of judicial discretion…” See also Ezeala Nnajifor & 5 Ors. v. Linus Ukonu & 2 Ors. (1986) 4 NWLR (Pt.36) 505 in which the Supreme Court per Obaseki (JSC) held that “unless there is miscarriage of justice from misunderstanding of the evidence of misconception and misapplication of the law, the court will not interfere with the concurrent findings of fact by the courts below.” See also per Ogundare (JSC) in Popoola Oladele & 4 Ors. v. Madonna Alice Anibi (1998) 9 NWLR (Pt.567) 559 at 568.

This issue therefore fails.

Issue No.5:
The complaint of the appellants in this issue which is issue 4 of respondent’s brief, is that the appellate High Court:-
(a) failed to consider and rule on the allegation of bias made by the defendant/respondent against the trial court.

It is the submission of counsel that all the circumstances from which to infer bias on the part of the trial court were stated before the High Court, but the court failed to rule on same on the. Grounds that no particulars of the allegations were given.
(b) That the lower court erred in law, when it refused to rule on the issues which are properly raised before it, thereby occasioned a miscarriage of justice.
Counsel cited the cases of Uka v. Irolo (1996) 4 NWLR (Pt. 441) 218 at 238 and Adebayo v. FCDA (1998) 6 NWLR (Pt. 552) 118 at 130-131 in support of his submission.
The respondent maintained that the Judge considered the issue of bias and ruled on it, citing the case of The Secretary, Iwo Central Local Government v. Adio (2000) 8 NWLR (Pt. 667) 115, (2000) 5 SCNJ 203 at 219.

The High Court did rule on the allegation of bias as can be seen on page 104 of the record of appeal. It was rather brief, it went thus:
“Although, the appellants have alleged bias on the part of the trial court in ground 11, no particulars were given of the alleged bias. What amounts to bias is trite in our law and I do not intend to go into it here. I merely refer to the case of The Secretary, two Central Local Government v. Adio (2000) 8 NWLR (Pt. 667) 115, (2000) 5 SCNJ 203 at 219-220, being relied upon by respondent’s counsel to debunk the allegation of bias.”

The Secretary, two Central Local Government v. Adio (supra) is a decision of the Supreme Court, which extensively considered the issue of the allegation of bias against a judicial officer in the exercise of its duties.

First, what is bias? This court, sitting in this Division, considered the issue of bias in the case of The Hon. Commissioner for Local Government & 2 Ors. v. His Highness Igwe Job Ezemuokwe (The Obi of Achina) (1991) 3 NWLR (Pt. 181) 615 at 644, and defined the word bias:
“as an inclination, bent, a preconceived opinion or disposition to decide a cause or an issue in certain way which does not leave the mind perfectly open to conviction…”

The Supreme Court stated the circumstances, the instance of bias, i.e. where bias can be said to exist in the case of The Secretary, two Central Local Government v. Adio (supra). These circumstances include:
“(i) A person ought not to participate or appear to participate in an appeal against his own decision, or act, or appear to act as both prosecutor and Judge;
(ii) Normally, it will also arise because an adjudicator has already indicated partisanship by expressing opinions antagonistic or favourable to the parties before him, or has made known his views-about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment or because of his personal relationship with a party or for other reasons. (P. 219).”

The apex court then declared that “There must be reasonable evidence to satisfy the court that there was a real likelihood of bias, an inference, which must be drawn from proved circumstances”.(Italics mine).

By the submission of the counsel, the circumstances from which they inferred bias and upon which counsel argued before the High Court are:
“(1) the trial court’s demand of the defendant to establish their chronological descent, while a corresponding demand was not made of the plaintiff;
(2) preference by the trial court, of the testimony of the plaintiff who did not state that he inherited the land from his father as against that of the 2nd defendant, who stated so and also said he farmed on the disputed land with his father for 60 years;
(3) the defendant’s production of survey plan to the annoyance of the trial court;
(4) rejection of the 2nd defendant’s evidence that he farmed on the disputed land when the said evidence was confirmed by the plaintiff and PW2;
(5) the details of blood relations and village relations – and
(6) source of bias is the defendant’s petition against the participation of the President, Mr. Chima Ani and the trial court when it decided to re-open the case.”

All the circumstances noted above, and which constitute the submission of the appellants before the High Court were also raised in this appeal in one form or the other.

None of these circumstances fall into the category of the circumstances laid down by the Supreme Court in the case of The Secretary, two Central Local Government v. Adio (supra), as constituting bias.

I find no merit in this complaint.

All the issues formulated for determination in this appeal having fallen by the way side, one after the other, this appeal itself fails.

The appeal is hereby dismissed.

Accordingly, the judgment of the Enugu State High Court delivered on the 1st November, 2002, affirming the decision of the Awkunanaw Customary Court delivered on the 7th September, 1998 is hereby, affirmed.

The appellants shall pay N4,000.00 as cost to the respondent.

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Other Citations: (2003)LCN/1506(CA)