Israel Arum V. Okechukwu Nwobodo (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This appeal is a very rare bird to fly at this altitude. The suit which gave rise to the appeal was instituted by the plaintiff now respondent against the defendants/appellants in the Customary Court at Awkunanaw in Suit No.AWK/3/97. His claim was for:

(a) Declaration of title to a customary right of occupancy to a piece or parcel of land known as and called ‘ALA AGU AKPASHA’ which is situate at Akpasha Atugbuoma in Akegbe Ugwu Nkanu West Local Government Area of Enugu State.

(b) Court injunction restraining the defendants, their agents, servants and relations from further trespass into the said land until the matter is disposed of.

The defendants denied the claim. Each of the parties presented their case and called three witnesses a piece. The Customary Court in reviewing the evidence found the witnesses called by the plaintiff to be more credible than those who testified for the defendants and entered judgment in favour of the plaintiff. The defendants were dissatisfied with the judgment of the Customary Court and appealed against it to the High Court. The High Court affirmed the judgment of the Customary Court. The defendants/appellants further appealed to the Court of Appeal which dismissed the appeal. It is from the judgment of the Court of Appeal, Enugu (herein referred to as the lower court) that the appellants have finally appealed to this Court.

The original Notice of Appeal dated 12th and filed 17th February, 2004 contained four grounds of appeal. The further grounds of Appeal dated 24th February, 2004 were filed on 26th February, 2004 (See pages 224 – 227 of the records). From the Notice of Appeal filed, the appellants formulated the following six issues for determination:

(i) Is it right in law that the Penal (sic) of Justices of the Court of appeal that delivered the judgment was different from the Panel of Justices that heard the appeal

(ii) Was Section 36 of the 1999 Constitution of the Federal Republic of Nigeria complied with when Hon. Justice Sule A. Olagunju J.C.A. who did not hear the appeal made very scathing remarks against the appellants which overly influenced the judgment of his two learned Brothers

(iii) Did the plaintiff give evidence of traditional history of the land in dispute for a declaration of title to be made in his favour on that ground

(iv) Was the Court of Appeal right in law when it refused to expunge the evidence of Oko Nwobodo Nta who was not called as a witness and suo motu invoked Section 227 of the Evidence Act without calling upon counsel to address it on that issue

(v) Was the Court of Appeal right in law when it upheld the decision requiring the defendants to prove their case “beyond all reasonable doubts” when no such burden was placed on the plaintiff and when the evidence led by the defendants and their witnesses was not evaluated

(vi) Was the Court of Appeal righty in law when it failed to allow the appeal on the ground that the evidence of the three witnesses for the appellants was not evaluated solely because they came from the same family as the appellants when the respondents failed to address the said issue

On his part the respondent submitted eight issues for determination which are:-

(i) Whether it is correct that the panel of the Court of Appeal Justices which heard the appeal on 22nd September, 2003 was not the same as the panel which delivered the court’s judgment on 4th December, 2003 thereby breaching the appellants’ fundamental right of fair hearing