Iwuorie Iheanacho & Ors. V. Mathias Chigere & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

In this case which has to do with family status and the custody of Ofo (traditional staff), the respondents were the plaintiffs at the High Court, Orlu, Imo State wherein they claimed certain reliefs relating to the headship (“Diokwara”) of Imeowere, Isu Njaba in the then Nkwere/Isu Local Government Area of Imo State while the appellants were the defendants. After due trial upon the exchange of pleadings, the learned trial Judge Oyudo, J. entered judgment in favour of the respondents.

Dissatisfied with the judgment, the appellants appealed to the Court of Appeal, Port Harcourt (hereinafter in the rest of this judgment referred to as the court below) which dismissed their appeal. They have now further appealed to the Supreme Court with leave.

The facts of the case may be briefly stated as follows:

Both parties are from the Imeowerre section of Isu Njaba town in Nkwere/Isu Local Government Area of Imo State of Nigeria while the appellants are from Umudim Amafuin Imeowere .

The respondents for their part are from Ndiuha Imeowere.

It is common ground that they (both parties) have the same ancestor, Isu Njaba who had seven sons one of whom is Nwokedike, the ancestral father of both parties.

While the appellants claimed that Nwokedike begat Nwaowere through (Imeowere) who in turn begat Okwarauhu the father of Dimola, the appellants have maintained an unbroken line of Diokwaraship (headship) of Imeowere up to the present 6th appellant a direct descendant of Nwaowere. The respondents on the other hand, claimed through the same Nwokedike as follows:

Nwokedike begat Imeowere the father of Uga.

Uga begat Okeem, the father of Okwauhu and Okwaraji.

According to the respondents Okwauhu was Diokwara being the 1st son but he soon died childless. He was then succeeded by Okwaraji the respondents’ direct ancestor.

It was also the case of the respondent that along the line when Okwaraji died, his first son Okwaigwe took over but when Okwaigwe died he had no grown up son to take the position, then the position was temporarily given to his younger brother Okwaraihezue. Okwarihezue continued its own lineage of Diokwara through Arukwa, Anozie and finally Uzoma Amaechi.

In 1981, the respondents through one Chigere Onwuzulike, the 1st respondent’s father purportedly through an alleged arbitration oath-taking process take (sic) over from Uzoma as Diokwara and thereby restoring the line of the Okwaraji. The appellants were not parties to this alleged customary arbitration/oath-taking.

The appellant denied that either Uzoma Amaechi of Chigere Onuzulike was ever a Diokwara.

It was common ground between the parties that some time in 1982 the respondents summoned the appellants to the Council of the Eze (paramount) rulers of Izunba for a customary arbitration. The claims before the Eze-in-Council were

(i) a declaration that Okwarauhu was the ancestor of the appellants and as such the appellants had no right to perform any final burial rites for him.

(ii) an order that the “Ofo Diokwara” traditional symbol of authority of the Diokwara Imeowere be handed over to the respondents by the appellants.

The Eze (PW.6) could not decide in favour of the respondents because he could not fathom the history of and background of the various claims. He directed that everything remained as they were. Indeed, the respondents failed to obtain the reliefs they had sought. Thereafter, they through the 1st respondent sued at the High Court. That case having been struck out, the suit leading to the appeal herein was filed.

The presentation of the facts of traditional history albeit that it is complicated and most confusing, two vital facts need to be emphasised.

1. Both sides alluded to or alleged a stronger status to the other. Respondents were alleged to have migrated from Amucha while the appellants were said to have come from Uzofor (see the evidence of PW.3 which is relevant in this regard).
2. The “Ofo Diokwara”, the symbol of office title and authority of the Diokwara. Since you cannot be a Diokwara without Ofo then whoever is in possession of the “Ofo” is the Diokwara.
3. Both sides lay claim to possession of the Ofo (vide paragraph 16 of the statement of claim (page 16) and paragraph 18 of the further amended statement of defence (page 61). The appellants also alleged that the customary arbitration/oath-taking between Chigere Onwuzulike and Uzoma Amauchi was with respect to the Diokwaraship of the Okwaraji family and not the Diokwaraship of Imeowere. Briefs were duly filed and exchanged.

Four issues were submitted as arising for determination, on behalf of the appellants, to wit:

1. Whether the High Court having found that the custody of the Ofo Diokwara Imeowere was a live issue at the trial ought not to have proceeded to make a specific finding as to the person in possession and the value or the Court of Appeal ought not to have made a specific finding as to the importance of the custody in the con of the case instead of affirming the finding of the trial court that “the custody of ofo as physical object is a non-issue”. (Grounds 1,2,3 and 7).
2. Was the Court of Appeal right to affirm the obvious misapplication of the rule in Kojo v. Bonsie by the High Court (Grounds 4 and 5).
3. Was the Court of Appeal right to have affirmed the judgment of the trial court when (plaintiffs) respondents failed to prove their case. (Ground 8).
4. Was it right for the Court of Appeal to affirm the findings of the trial court which were obviously baseless when in so doing a serious miscarriage of justice will be the result. (Grounds 6, 9 and 11).

At the respondents’ instance the following issues call for determination having regard to the eleven grounds of appeal (Ground ten having been abandoned) filed by the appellants, viz

(a) Whether the lower court was in error in affirming the trial courts decision that the custody of “Oto” was a non-issue: Grounds one, two, three, and seven.

(b) Whether the lower court tightly affirmed the trial court’s appraisal of the evidence of DW.1 in regard to the status of Uzoma Amaechi: Grounds four, five and six.

(c)Whether the respondents proved their case: Grounds eight, nine and eleven.

In the argument of the appeal, I propose to stick to the appellants’ issues, which, in my view, looks more comprehensive and clearer.

Argument of issue No.1

Custody of the Ofo

It is pertinent to observe that the points canvassed in relation to this G issue were fully considered by the trial court and affirmed on appeal by the lower court when it held that the issue as to the custody of the “Oto Diokwara” was fully pleaded; that copious evidence was also led in proof by PW.6. Unless clearly shown to be perverse, the findings of fact ought not to be upset by this court as decided in Bariko & Others v.Edeh-Ogwuile & Others (2001) 12 NWLR (Pt. 726) 235, 254-5.

Be that as it may, in paragraph 16 of the statement of claim the respondents pleaded as follows:-

“It is the custom in Imeowere Isu NJaba which is hereby relied on, that the incumbent head of or Diokwara of Imeowere possessed the Ofo Diokwara symbol of office and the said Ofo is in the custody of the 1st plaintiff.”

The appellants in answer to paragraph 16 of the statement of claim reproduced above, pleaded, in

paragraph 18 of their defence as follows:-

” … the Ofo Diokwara and all the other symbols and paraphernalia of the office of Diokwara 1meowere are in the custody of the incumbent the 6th defendant and they devolved on him by custom as pleaded herein before. The said symbols had at all material times since immemorial times been in the custody of forebears of the 6th defendant that is to say in Umudim Amagwu.”

At pages 96-97 of the records, PW6 said:-

” … They also insisted that defendants should surrender the Ofo (traditional staff) of Okwaraihu who was regarded as the founder of 1meowere … ”

At page 97 he (PW6) also said:

” … They went further to claim the right to the Ofo Okwaraihu which they wanted to be returned to them (plaintiffs).” Suffice it therefore to say that the submission of learned counsel for the respondents that the Ofo was not pleaded by any of the parties and as such any evidence led in support of it by PW6 is totally misplaced.”

PW.3, who was the respondents’ witness stated (page 88). “I did not know who holds the Ofo of Imeowere before this case in court. The parties are in court over the dispute of “Okwaraship of 1meowere. Under the Isu Njaba custom “Ofo” resides in the Diokwara (1st son) of a particular place or village.”

Thus, taken together with the evidence of PW6, it is clear that whosoever has possession of the “Ofo” is the one legitimately entitled to claim” Diokwaraship”. Hence the various actions and litigation by the respondents. Hence, the issues of the custody of the Ofo which is the symbol of authority, office or traditional staff of the Diokwara is at the very heart and soul of the case before the court. The respondents admitted so much and pleaded as such in paragraph 16 of the statement of claim (ibid) as well as in the evidence of PW3 and PW6.

The respondents are bound by the pleadings and cannot at the trial be allowed by the Supreme Court or indeed any other court to set up a case different from pleadings at the trial. See K. A. Onamade & Anor. v. African Continental Bank Ltd. (1997) 1 NWLR (Pt.480) 123 and Akaniwon v. Nsirim (1997).9 NWLR (Pt.520) 255.

Secondly, evidence led by a party can be fully relied on by the other party either to establish his case or to damage or demolish the case of the person leading the evidence vide Edokpolor & Co. Ltd. v. Bendel Insurance Co. (1997) 2 NWLR (Pt.486) 133 at 140-141; Ajagungbade III v. Laniyi (1999) 13NWLR (Pt.633) 92 at page 114 and Ezeogu v. Omvuchekwa (1997) 4 NWLR (Pt.502) 689 at pages 707-708.

Thus having set out in the pleadings that they are in possession of the Ofo, and with the evidence of strategic importance of the possession of the Ofo, the admission by the respondents through PW6, their witness, should have put the lower courts on their guard. PW6, it will be recalled stated: “They also insisted that the defendants should surrender the Ofo (traditional staff) of Okwaraihu who was regarded as the founder of Imeowere.).

The learned trial Judge with due respect to him, ought not to have emphasised “the custody of Ofo as a physical object” and to insist that relief the respondents sought before the Eze-in-Council (PW6) in the customary arbitration (i.e. handing over of the Ofo to the respondents) was different from a declaration that the respondents, were Diokwara. The lower courts ought to have enquired whether being a Diokwara is any different from having possession of the Ofo Diokwara

Had the court below probed the matter more circumspectly for what it really was, it would not have held (as Akpiroroh, J.C.A. did) to the effect that:

“It is my view that the statement made by the learned trial Judge that the custody of Ofo as a physical object is a non-issue in the case before him does not occasion any miscarriage of justice because he was only comparing the reliefs before PW6 and the reliefs in the present case.”

Be it noted, however, that it is very clear that from the pleadings and the evidence led on record, the problem between the parties hereof over the years had been the issue of Diokwaraship of Imeowere. See page 73, line 35 – page 75, line 1 of the record. In effect, the respondents were the claimants before P.W.6, before whom they could not obtain a declaration for possession of the Ofo back. Hence, they filed a suit at the High Court. This was struck out on the death of Chigere Onwuzulike. They then filed this action. I agree with the appellants that shorn of all technicality, the claim of the respondents remained the same against the appellants and it is that they wanted the Ofo so they could be the Diokwara Imeowere. I also share appellants’ view that the trial court failed to fully appreciate the nature of the case it was called upon to try and this failure led to a serious miscarriage of justice when the court below affirmed this misconception instead of correcting or setting same aside. See Nor v. Tarkaa (1998) 4 NWLR (pt.544) 130 at 138 and Nkado v. Obiallo (1997) 5 NWLR (Pt.503) 31 at page 57.

My answer to issue 1 is accordingly in the negative. Argument of issue No.2

Application of the rule in Kojo v. Bonsie

The rule in Kojo v. Bonsie (1957) 1 WLR 122 at 126 is that:

“Where parties rely on traditional history in proof of their title and the evidence of traditional history is conflicting or is inconclusive, the rule is to be applied to the case by making reference to facts in recent history to resolve the issue.”

This rule is usually applied in land cases where acts of ownership exercised within living memory is used as litmus test in verification of evidence of tradition and history.

A plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; and this includes how the land descended over the years on the claimant’s family until it got to the claimant. See Madubuomvu v. Nnalue (1992) 8 NWLR (Pt.260) 440 at 449 G-H. See also Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393.

In Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 548 DG it was held inter alia ” … the only proper approach to ascertaining which of two sets of tradition set up by parties to the suit should be accepted as more probable is by reference to acts within living memory.” See Alade v. Awo (1975) 4 SC 215; Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182; Okafor v. Idigo (1984) 1 SCNLR 481 and Chukwueke v. Nwankwo (1985) 2 NWLR (pt.6) 195 at 201.

In the present case the learned trial Judge in his judgment stated:

“It is clear to me that the bulk of evidence led on Okwaraship of Imeowere in Isu Nbaja is traditional. No doubt this is an accepted method of proving title to property or a customary right as in the present case. However the law has prescribed the correct method of assessing evidence of tradition. It is thus that the best way to test them is by reference to established and accepted facts within living memory and seeing therefrom which of them is more probable.”

See Kojo II v. Bonsie (supra) and Agedegudu v. Ajenifuja (1963) All NLR 109.

The leamed trial Judge proceeded to find that the “victory” of C Chigere over Uzoma in the customary arbitration/oath-taking in 1981 was evidence of such facts “within living memory” which go to confirm the respondents’ claim.

But with all due respect, many problems have be devilled this postulation.

(1) First, the customary arbitration/oath-taking was a fact within living memory but the appellants were not parties to that incident. They were in consequence not bound by the result of the oath-taking. See Bright Motors Limited & Ors. v. Honda Motor Company Limited & Anor.(1998) 12 NWLR (Pt.577) 230; Alam Oparaji & Ors. v. Nwosu Ohanu (1999) 9 NWLR (Pt.618) 290 at 304 and Okere v. Nwoke (1991) 8 NWLR (Pt.209) 317 at 344-345 the latter in which the Court of Appeal (Per Edozie, JCA as he then was) held, inter alia, that

“Where a body of men, be they Chiefs or otherwise, act as a arbitrators over a dispute between two parties, their decision shall have a binding effect, if it is shown:

(a) That both parties submitted to the arbitration.”

(2) Secondly, the mere fact that as late as 1981 the respondents were still involved in a struggle to assert their authority and dominion over the Diokwaraship is, with all due respect, in itself evidence that they do not have clear clean and unassailable title or right thereto. On the contrary, this was definite evidence that all was not well with their claim to the Diokwaraship.

(b) Thirdly, the rule in Kojo v. Bonsie applies where there is a conflict in the traditional evidence of parties in an action for declaration of title, where the best way to resolve such conflicting traditional evidence is by reference to facts in recent years of acts of ownership and control as established by evidence to determine which of the two competing histories is more probable. See Abasi v. Onido (1998) 5 NWLR (Pt.548) 89 at 104; Nwololo v. Ukegbu (1997) 4 NWLR (Pt.500) 436 at 449-451 and Ojokolobo v. Alamu (1991) 1 NWLR (Pt.l65) 1 at 12. The rule also applies where traditional history is needed to prove title to anything e.g. chieftaincy title. See Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt.265) 335.

It is pertinent to point out that there has been no evidence proffered or adduced of such current or present acts of control ownership or authority exercised by the respondents with respect to the Diokwara of Imeowere in recent times and showing that they might as well be the rightful owners rather than being pretenders/trespassers. On the contrary then, before the trial court the evidence of PW.1, PW3, PW6 and DW1 to the effect that the respondents have within the past ten years initiated proceedings before the Ezein-Council and also before the High Court (a case which was struck out) demanding from the appellants the “Ofo Diokwara” the symbol of power/authority or staff of office to the Diokwara.

From the foregoing I agree with the appellants that there is no basis for the application of the rule in Kojo v. Bonsie in this case and that the court below ought not to have affirmed that application. This was not all. The trial court, after having found, though erroneously, that Chigere won the tussle with Uzoma in 1987, proceeded to import the issue of headship of Ozo title into the controversy and by a very interesting albeit strange process of deduction, arrived at a finding that since Uzoma was once the head of Ozo in Imeowere and that whoever that holds the office of the head of Ozo of Imeowere, automatically becomes the Diokwara of Irneowere. In the learned trial Judge’s view “the effect of this is to make the story of the plaintiffs (respondents) more probable and a fortiori, their traditional evidence equally more probable.”

It has been held times without number that it is not the duty of the Judge to make case for the parties, different from what they have pleaded and proffered in evidence themselves vide Ngene v. Igbo (1991) 7 NWLR (Pt.203) 358 at 369 – 370 and Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 at 559.

It is for the above reasons that I agree the court below ought to have set aside the findings/holdings of the trial court.

Secondly, the issue that Uzoma was once the head of Ozo in Imeowere automatically became the “Diokwara of Imeowere” was neither pleaded nor proved. For these reasons these findings cannot be allowed to stand since they are illogical and go to no issue. Being no live issue before the court therefore the High Court ought not to have considered it or made heavy weather of it, thus ultimately utilising it as one of the main planks of the judgment. I agree with the appellants’ submission that there was absolutely no basis for the findings by the trial court on this issue and the court below should not, with all due respect, have affirmed the finding and the holding founded on it, I therefore agree that the finding ought to have been set aside and not affirmed by the court below vide Agbabiaka v Saibu (1998) 10 NWLR (Pt.571) 534 at pages 548, 553 and Oladele v. Anibi (1998) 9 NWLR (Pt.567) 559 at 566 – 567

Issue No.3

The third issue posed by the appellants queries whether the court below was right to affirm the judgment of the High Court when the respondents failed to prove their case. Respondents’ claimed before the High Court as follows:

(a) Declaration that the Okwaraji family of the plaintiffs is the head or Diokwara family of Imeowere. Isu Nbaja within jurisdiction in accordance with the custom of the people.

(b) Declaration that the 1st plaintiff is the head or Diokwara of Imeowere Isu Nbaja also within jurisdiction in accordance with the custom of the people.

(c) Perpetual injunction restraining the defendants by themselves etc from parading themselves as Diokwara family in Imeowere Isunbaja and/or parading the 6th defendant (appellant) as the head of Diokwara of Imeowere, Isunbaja or at all or in any (sic) interfering with the rights, duties and privileges of the plaintiffs and/or 1st plaintiffs as the Diokwara family in or Diokwara of Imeowere Isunbaja.

In the course of the trial it was clear that the respondents had commenced a form of action against the appellants at the court of the Eze-in-Council in a native or customary arbitration. The Eze testified as PW.6 in a case which ended against the plaintiffs/respondents. On appeal to the Court of Appeal the latter affirmed the judgment of the High Court. See Nkwo v. lboe (1998) 7 NWLR (Pt.558) 354 at 363.

Besides, looking at the judgment in totality, it will be observed that the trial Judge misconceived the placing of the evidential burden of proof. He appeared to labour under the grave error that the burden of proving that they were entitled to the Diokwaraship was on the appellants. See the case of Akinkunmi v. Sadiq (1997) 8 NWLR (Pt.516) 277 at page 291 where it was held that where a court misplaces the onus of proof on the wrong party thus erroneously shifting the burden placed by law under section 136 of the Evidence Act, Cap. 22, Laws of the Federation, then the judgment ought to be set aside. See UBN Ltd. v. Osezuah (1997) 2 NWLR (Pt.485) 28 and Nor v. Tarkaa (1998) 4 NWLR (Pt.544) 130 at 137-138.

The essential nature and the legal implications of a customary arbitration are as explained in the cases of Akaose v. Nwose (1997) 1 NWLR (Pt.482) 478, Agu v. lkewibe (1999) 3 NWLR (Pt. 180) at 385, Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1 at 23-24.

The answer to this issue is also rendered in the negative.

Issue No.4

Affirmation of findings not backed by evidence.

It would appear that ab initio, the court below had proceeded on the basis that since it was the trial Judge that saw the witnesses and watched their demeanour when they testified, that court (Court of Appeal) could not interfere with the findings.

I hold the view that this principle applies only where the decisive issue was the credibility of the witnesses and not where the findings were based on evaluation of evidence as in this case. See Okonkwo v. C.C.B. (Nig) Plc. (1997) 6 NWLR (Pt.507) 48 at 67; Musa v. Yerima (1997) 7 NWLR (Pt.511) 27 and Ugo v. Indiamaowei (1999) 13 NWLR (Pt.633) 152 at 164. The affirmation of the findings of the court below which has now turned out to be without any basis, in my view, emanated from the errors made by the trial court in not making this basic distinction and determining from the outset the essential source or basis of the ascription of probative value to the evidence of the respondents’ witnesses in this case by the High Court. See Eboade v. Atomesin (1997) 5 NWLR (Pt.506) 490 at 507 – 508.

As it turned out, the learned trial Judge in the instant case failed to reasonably utilise the advantage of seeing the witnesses and of properly evaluating the evidence proffered before him. See C.C.B. (Nig.) Plc. v. Okpala (1997) 8 NWLR (Pt.518) 673 and Ojukwu v. Kaine (1997) 9 NWLR (Pt.522) 613 at 640.

A vital instance of this that would suffice to elucidate this issue goes thus:

“In the case of Ozo I am at the head and will take first and then pass it on to the Diokwara if fully initiated.”

This shows that a Diokwara may not even be full y initiated into the Ozo society and the effect of this, with due respect, is to render suspect the finding of the trial court which was affirmed by the Court of Appeal that whoever was head of Ozo was automatically the Diokwara. As there is no shred of evidence to support that finding, it ought not to stand. See Adekanbi v. Falami (1998) 11 NWLR (Pt.574) 498 at 502 – 503.

In his judgment the learned trial Judge had this to say:

“But the defendant’s (sic) contention became punctured by the evidence of the defendants albeit under cross-examination that Uzoma was once the head of Ozo of Imeowere who automatically became the Diokwara of Imeowere. The effect of this is to make the story of the plaintiffs more probable and fortior (sic) their traditional evidence equally more probable.”

The evidence of the defence the learned trial Judge appears to referring to in the above extract was the evidence of DW 1 wherein he testified as follows:-

“But I agree that Uzoma Amaechi is a member of Ozo titled claim. He got it from his maternal home. Uzoma hails from plaintiffs family. Uzoma was once the head of Ozo titled men in Imeowere.”

From the foregoing, I am in agreement with the appellants’ submission that the trial before the Eze-in-Council was not concluded but was rather left at large.

Learned counsel for the appellants submitted in conclusion that it was his understanding of the law that if a person who has brought a case before a court or tribunal fails to obtain a judgment in his favour one way or another, it can be said that he lost in that court/tribunal, adding that on the record PW6, the Eze stated at page 97 of the record:

“It was not easy for my cabinet to decide the matter one way or another because I am rather young and I did not find it feasible to say which side is right, and we advised the two sides to go and live in peace as our forefathers had done.”

In the result, I am in entire agreement that the decision of the trial High Court as well as that of the Court of Appeal cannot be allowed to stand. Accordingly, I allow the appeal, set aside the decisions of the two courts below and make an order dismissing the plaintiffs/respondents’ claims. Costs for defendants/appellants in the sums of N2,000, N3,000 and N10,000 in the High Court, Court of Appeal and this court respectively.

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SC.151/2000