MADUAKOLAM V CHIEKE & ANOR

MADUAKOLAM V CHIEKE & ANOR


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 24TH AUGUST, 2018


Suit No: CA/OW/301/2016

CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

GILBERT MADUAKOLAM
(FOR AND ON BEHALF OF MADUAKOLAM FAMILY OF UMUOSU NAZE, OWERRI, NORTH L.G.A.)
(APPELLANT)

AND

CHRISTIAN CHIEKE
FRANKLIN ONYEGWAM
(FOR AND ON BEHALF OF ONYEGWAM FAMILY OF UMUOSU NAZE, OWERRI, NORTH L.G.A.)
(RESPONDENTS)


PRONOUNCEMENT


A. APPEAL
1. Appeal from Customary Court of Appeal – The effect of Section 245 (1) of the 1999 Constitution
When will an appeal lie from the decisions of the Customary Court of Appeal to the Court of Appeal

In the instant case, appeals emanating from the lower Court are regulated by the provision of Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); particularly Subsection (1) thereof. For convenience and ease of reference, the provision of the said section is reproduced below:

Section 245 (1) of the Constitution:

“1. An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly”.

From the purport and or tenor of the above quoted provision, it is obvious and without doubt, that this Court will only acquire or have vested jurisdiction to entertain and determine appeal from the Customary Courts of Appeals, where the ground(s) of appeal borders on or is predicated on question of customary law. That is, the only set of appeals that can be competently brought to this Court from the Customary Courts of Appeal such as the lower Court herein, are those that calls for the determination of what the customary law of the parties is and or its application. Every other appeals or grounds of appeal beyond the ambit or outside the confines of such questions or grounds are incompetent and thus liable to be struck out. See Pam v. Gwom (2000) 2 NWLR (Pt. 644) 322; Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 and Ohai v. Akpoemonye (1999) 3 NWLR (Pt. 588) 521, among others. Per OREDOLA, JCA. read in context

2. Appeal from Customary Court of Appeal – Implication of Section 245 (1) of the 1999 Constitution
Effect of an appeal on which the grounds or question for determination is not based on Customary Law

The two grounds of appeal are without doubt centered or focused on evaluation of evidence and are thus incompetent in the given circumstances of this case. See the case of Duru & Ors. v. Okoro (2015) 5 C. A. R. 405; where this Court, per Mbaba, JCA in a similar fact situation at pages 420 – 421, referred to the decided case of Ukachukwu & Ors. v. Ihejirika & Ors. (2014) LPELR, 24102 (CA) where it was held thus:

“… I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal against the decision of the Customary Court of Appeal, under Section 245 (1) of the 1999 Constitution, which confines right of appeal to questions of customary law.

Issues and questions relating to evaluation of evidence and the restraint of appellate Courts from tampering with findings of fact by the trial Court…appear to belong to the realms of common law principles and procedure of trial Courts, outside the contemplation or purview of the customary law…”

See also the case of Moses Iroro v. Godwin Iroro 7 Ors. (2016) C. A. R, 83. Per OREDOLA, JCA. read in context

3. Notices of Appeal – The nature of notice of appeal
Effect of a defective/incompetent notice of appeal

It is well established that the notice of appeal is the foundation, pillar and substratum upon which an appeal is predicated. Thus, every fundamental and or any defect in or on the notice of appeal would render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain it, talk less of determine it; or where it has been entertained, the whole proceedings and decision(s) emanating therefrom would be rendered a nullity and liable to be set aside. See the cases of Uwazurike v. Attorney General of Federation (2007) 8 NWLR (Pt. 1035) 1; Adelekan v. Ecu-line (2006) ALL FWLR (Pt. 321) 1213 and Mohammed v. Martins Electronic Co. Ltd. (2009) LPELR – 3708. Per OREDOLA, JCA. read in context

B. COURT
4. Jurisdiction – The fundamental nature of jurisdiction
Importance of jurisdiction; effect where a Court lacks jurisdiction over a matter

It is well settled that jurisdiction is the live wire or soul that gives life to the Court to entertain a case duly brought before it. Thus, where a Court lacks the requisite jurisdiction to entertain and determine a case abinitio, any and or every step and decision taken and reached by the Court would be nothing but a nullity. An exercise in crass futility. See the cases of Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166; Petrojessica Enterprises Ltd. & Anor. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 and Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172. Indeed, the issue of jurisdiction is so crucial, essential and fundamental in our adjudicatory system, that it can be raised at any stage of the proceedings and even for the first time before or by the appellate Court, because, it is the foundation and pillar upon which the decision in any case is built. Thus, the issue of jurisdiction is so important that it can be raised by either of the parties before the Court at anytime or stage of the proceedings, and or the Court suo motu. See the cases of First Bank of Nigeria Plc. V. Government of Ondo State & Ors. (2012) LPELR – 7881; Nwaogu v. I. N. E. C. (2008) LPELR – 4644 and Enugwu v. Okefi (2000) 3 NWLR (Pt. 650) 620. Per OREDOLA, JCA. read in context

C. EVIDENCE
5. Evaluation of Evidence – The judicial provision on the meaning of evaluation of evidence
Definition of evaluation of evidence

The term Evaluation of Evidence has been defined in the case of Saleh v. Hon. Minister of Federal Capital Territory (2016) LPELR-41581 (CA), by this Court, per Mustapha, JCA to mean:

“…the determination of the worth or value of the evidence by placing the evidence of the disputants side by side on an imaginary scale of justice to ascertain the side on which the quality of the evidence preponderates. See West African Breweries Ltd. v Savannah Ventures Ltd. (2002) 5 – 6 SCNJ 269 at 287. It may also be referred to as the assessment of evidence for the purpose of giving it value or quality, and involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. Showing at the end, an indication of how the Court arrived at its conclusion of preferring one piece of evidence over the other.”

This Court has also in the case of Eriki v. Eriki & Ors. (2017) LPELR – 42423 (CA), where His Noble Lordship, Oniyangi, JCA, while relying on the Supreme Court case of Onwuka v. Ediala (1989), NWLR (Pt. 96) 182 at 208 – 209, at page 53 enunciated thus:

“To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for, etc.”

In the same case of Eriki v. Eriki & Ors, (supra) this Court, per Bada, JCA at pg 16 further defined Evaluation of Evidence to mean:

“… the assessment of evidence as to give it value.” Per OREDOLA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This appeal is against the judgment of the Customary Court of Appeal, Imo State, coram: Hon. Justice F. C. Abosi, J., Presiding Judge; Hon. Justice M. E. Njoku, J., and Hon. Justice V. U. Okorie J., (hereinafter referred to as the lower Court and learned Justices of the lower Court, respectively). The judgment in question, was delivered on the 24th day of January, 2014 in Appeal No: CCA/OW/A/17/2009.

The suit from where this appeal emanated, was commenced by a claim dated and filed on the 15th day of April, 1998, wherein the plaintiff/Appellant (hereinafter referred to as the Appellant) in a representative capacity, claimed and sought for the grant of the following reliefs:

“1. A declaration that the Plaintiffs are entitled to Customary Right of Occupancy to that piece or parcel of land known as and called UhuNwarioke lying and situate at UmuosuNaze in Owerri North L. G. A. within Jurisdiction of this Honourable Court.

2. N50,000.00 general damages for trespass into the said land.

3. Perpetual injunction restraining the Defendants their heirs, agents or servants from further entry into the said piece of land or dealing with it in anyway inconsistent with the interest of the plaintiffs”.

(See page 1 of the record of appeal.)

The dispute between the parties pertained to a piece and or parcel of land referred to and or called UhuNwarioke by the Appellant but called Uhu Chieke by the defendants/Respondents (hereinafter called the Respondents). Both parties claimed ownership to the land in dispute and relied on traditional evidence in an avowed bid to prove their respective title to the said land in dispute.

In proof of his title, the Appellant testified for himself and also tendered the certified record of proceedings which contained the evidence of Emmanuel Madukolam, the then 1st plaintiff (now deceased). On their own part, the Respondents called a sole witness in addition to the 1st Respondent and tendered the arbitral decision of Eze Julius Emeana, in proof of their case.

At the close of hearing, the learned counsel for the parties duly addressed the trial customary Court, and the case was adjourned for delivery of judgment. The trial customary court panel, in a reserved judgment was convinced that the Appellant had proved his case on the preponderance of evidence and granted all his claims as claimed. The judgment is contained at pages 52 – 73 of the record of appeal.

The Respondents were however not satisfied with the said decision of the trial customary Court and thus appealed against the same, vide a notice of appeal dated the 2nd day of December, 2008 and filed on the 10th day of December, 2008, to the lower Court.

The appeal was duly entered at the lower Court, and the parties filed and exchanged their respective briefs of argument. The briefs were duly adopted at the lower Court by the learned counsel for the parties. The lower Court after the giving of due considerations to the grounds of appeal filed by the Respondents, issues distilled therefrom and the arguments in support thereof, the lower Court reversed the decision of the trial customary Court and set the same aside on the basis that the traditional evidence proffered by the Appellant was internally conflicting and contained unexplained gaps. Thus, the appeal filed by the Respondents was allowed and costs of N15,000.00 awarded in their favour.

The Appellant was dissatisfied with the said decision of the lower court, thus, he has appealed against the same to this Court vide a notice of appeal dated the 7th day of May, 2014 and filed on the 5th day of June, 2015 with the grant of an order extending time within which to appeal, made by this Court on the 19th day of May, 2015. The Appellant’s grievances against the lower court’s judgment were captured in his two grounds of appeal. The grounds of appeal with their particulars are reproduced below as follows:

“GROUND ONE

ERROR IN LAW

“The Court below erred in Law when it held as follows:

It is therefore my considered view that since the evidence of the Respondent on the issue of boundaries and features of the land are in conflict, I am bound to reject such pieces of evidence … the effect of this is that there is no evidence coming from the Respondent as to the boundaries and features of the land in dispute when such is not borne out of the records.”

PARTICULARS OF ERROR

a. The original PW1 whose evidence was admitted in evidence by the Court of first instance stated as follows: – Not all the Nwarioke land are in dispute. The area in dispute is right behind my homestead. The land in dispute is over seven native farm measures…

b. He stated in cross examination.

Q – How many native plots are in dispute.

A – The place in dispute is more than 10 native plots or measures.

c. The PW1 who gave oral evidence before the Court of first instance stated thus, “The area given to Nwanuzie was just One Imeubi” but the Defendants trespassed into 10 “ImeUbis” which measure about 3 plots.

d. The Appellant’s case is that it is part of the land that is in dispute and not all.

e. It was also their evidence that the portion in dispute in the middle of the large expanse of land.

f. The Court of first instance which visited locus also agreed that the Appellant proved the area in dispute.” “GROUND TWO

ERROR IN LAW

THE COURT BELOW ERRED IN LAW WHEN IT HELD THAT THERE WAS NO EVIDENCE ON RECORD TO SHOW THAT DEVOLUTION IS THROUGH THE HEAD OF THE FAMILY.”

PARTICULARS OF ERROR

a. The PW1 who testified before the Court gave this evidence which is on record to wit: “I am the oldest in Maduakolam’s family and I am in possession of the rest of UhuNwarioke. The erstwhile 1st Plaintiff in this matter is now dead. The late 1st plaintiff was the head of family when he was alive.

b. By this particular evidence the implication in that devolution is from head of family to head of family as against from father to son.”

(See pages 192 and 193 of the record of appeal.)

In accordance and compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument. The Appellant’s brief of argument dated the 31st day of May, 2017, was filed on the 3rd day of July, 2017. The said Appellant’s brief of argument was deemed as properly filed and served by order of this Court, made on the 15th day of March, 2018. The said Appellant’s brief was prepared by F. O. Emereuwaonu Esq. On the other side of the divide, the Respondents’ brief of argument was prepared by Chief E. O. Onyema. The said Respondents’ brief of argument dated the 9th day of April, 2018 was filed on the 12th day of April, 2018.

Towards the determination of this appeal, the learned counsel for the Appellant donated two issues for resolution. The issues are reproduced below as follows:

“1. Whether the identity of the land in dispute was in doubt.

2. Whether the Appellant proved devolution of the land in dispute through family heads in this appeal”.

The learned counsel for the Respondents on his own part also formulated two issues for resolution and in the determination of this appeal. Both issues are as follows:

“a. Whether the Learned Justices of the Imo State Customary Court of Appeal were right in holding that the Appellants did not prove the identity of the land in dispute as required by law?

b. Whether the Learned Justices of the Imo State Customary Court of Appeal were right in holding that there was no evidence on record to show that devolution of land is through the Head of family?”

Before, I proceed to give considerations towards the resolution of the issues donated by the learned counsel for the parties, it will be proper to consider whether or not this Court has the requisite vires or jurisdiction to entertain this appeal, having regard to the Court from where it emanated and the nature of the grounds of appeal.

It is well settled that jurisdiction is the live wire or soul that gives life to the Court to entertain a case duly brought before it. Thus, where a Court lacks the requisite jurisdiction to entertain and determine a case abinitio, any and or every step and decision taken and reached by the Court would be nothing but a nullity. An exercise in crass futility. See the cases of Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166; Petrojessica Enterprises Ltd. & Anor. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 and Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172. Indeed, the issue of jurisdiction is so crucial, essential and fundamental in our adjudicatory system, that it can be raised at any stage of the proceedings and even for the first time before or by the appellate Court, because, it is the foundation and pillar upon which the decision in any case is built. Thus, the issue of jurisdiction is so important that it can be raised by either of the parties before the Court at anytime or stage of the proceedings, and or the Court suo motu. See the cases of First Bank of Nigeria Plc. V. Government of Ondo State & Ors. (2012) LPELR – 7881; Nwaogu v. I. N. E. C. (2008) LPELR – 4644 and Enugwu v. Okefi (2000) 3 NWLR (Pt. 650) 620.

In the instant case, appeals emanating from the lower Court are regulated by the provision of Section 245 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); particularly Subsection (1) thereof. For convenience and ease of reference, the provision of the said section is reproduced below:

Section 245 (1) of the Constitution:

“1. An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly”.

From the purport and or tenor of the above quoted provision, it is obvious and without doubt, that this Court will only acquire or have vested jurisdiction to entertain and determine appeal from the Customary Courts of Appeals, where the ground(s) of appeal borders on or is predicated on question of customary law. That is, the only set of appeals that can be competently brought to this Court from the Customary Courts of Appeal such as the lower Court herein, are those that calls for the determination of what the customary law of the parties isand or its application. Every other appeals or grounds of appeal beyond the ambit or outside the confines of such questions or grounds are incompetent and thus liable to be struck out. See Pam v. Gwom (2000) 2 NWLR (Pt. 644) 322; Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 and Ohai v. Akpoemonye (1999) 3 NWLR (Pt. 588) 521, among others.

In the instant appeal, a close and dispassionate look at the Appellant’s two grounds of appeal would disclose and reveal that the said grounds of appeal fell short of the required and prescribed standard of the organic law. The grounds of appeal are more or less centred on evaluation of evidence. To properly drive home this point, it will be most helpful to briefly give meaning to the term Evaluation of Evidence. The term Evaluation of Evidence has been defined in the case of Saleh v. Hon. Minister of Federal Capital Territory (2016) LPELR-41581 (CA), by this Court, per Mustapha, JCA to mean:

“…the determination of the worth or value of the evidence by placing the evidence of the disputants side by side on an imaginary scale of justice to ascertain the side on which the quality of the evidence preponderates. See West African Breweries Ltd. v Savannah Ventures Ltd. (2002) 5 – 6 SCNJ 269 at 287. It may also be referred to as the assessment of evidence for the purpose of giving it value or quality, and involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. Showing at the end, an indication of how the Court arrived at its conclusion of preferring one piece of evidence over the other.”

This Court has also in the case of Eriki v. Eriki & Ors. (2017) LPELR – 42423 (CA), where His Noble Lordship, Oniyangi, JCA, while relying on the Supreme Court case of Onwuka v. Ediala (1989), NWLR (Pt. 96) 182 at 208 –209, at page 53 enunciated thus:

“To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for, etc.”

In the same case of Eriki v. Eriki & Ors, (supra) this Court, per Bada, JCA at pg 16 further defined Evaluation of Evidence to mean:

“… the assessment of evidence as to give it value.”

Having the definitions referred to above in mind, the Appellant’s two grounds of appeal would be examined in order to ascertain whether they are predicated on question(s) of customary law or evaluation of evidence. On the first ground of appeal, the complaint therein was that the learned justices of the lower Court erred in holding that the Appellant was unable to identify and or ascertain in evidence adduced before the trial customary Court, the particular land which is the subject matter of dispute in this case. On the second ground of appeal, the Appellant’s complaint was that the learned justices of the lower Court erred when they held that the Appellant did not adduce sufficient evidence to prove the mode of devolution of land in his family.

The two grounds of appeal are without doubt centered or focused on evaluation of evidence and are thus incompetent in the given circumstances of this case. See the case of Duru& Ors. v. Okoro (2015) 5 C. A. R. 405; where this Court, per Mbaba, JCA in a similar fact situation at pages 420 – 421, referred to the decided case of Ukachukwu & Ors. v. Ihejirika & Ors. (2014) LPELR, 24102 (CA) where it was held thus:

“… I find it difficult to locate the complaint of the Appellant, which in the main, is a quarrel with the evaluation of evidence, within the rights of Appellant to appeal against the decision of the Customary Court of Appeal, under Section 245 (1) of the 1999 Constitution, which confines right of appeal to questions of customary law.

Issues and questions relating to evaluation of evidence and the restraint of appellate Courts from tampering with findings of fact by the trial Court…appear to belong to the realms of common law principles and procedure of trial Courts, outside the contemplation or purview of the customary law…”

See also the case of Moses Iroro v. Godwin Iroro 7 Ors. (2016) C. A. R, 83.

Having held that the Appellant’s two grounds of appeal are defective, the necessary implication is that his notice of appeal is defective, as there is nothing left to be considered by this Court. Thus, this appeal has been rendered incompetent and liable to be struck out. It is well established that the notice of appeal is the foundation, pillar and substratum upon which an appeal is predicated. Thus, every fundamental and or any defect in or on the notice of appeal would render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain it, talk less of determine it; or where it has been entertained, the whole proceedings and decision(s) emanating therefrom would be rendered a nullity and liable to be set aside. See the cases of Uwazurike v. Attorney General of Federation (2007) 8 NWLR (Pt. 1035) 1; Adelekan v. Ecu-line (2006) ALL FWLR (Pt. 321) 1213 and Mohammed v. Martins Electronic Co. Ltd. (2009) LPELR – 3708.

In the light of all that have been stated above, this appeal is found by me to be incompetent and it is accordingly struck out. No order with regard to costs, as the parties are to bear their respective costs.

LOKULO-SODIPE, JCA

I agree

MBABA, JCA

I agree

Appearances:

F. O. Emereuwaonu, Esq. with him, S. B. Chikwe, Esq. For Appellant(s)

Chief E.O. Onyema with I.N. Nwokedi, Esq. For Respondent(s)