CHIEF EDMUND OBI v. CHIKEZIE UZOEWULU

CORAM

OLABODE RHODES-VIVOUR, JUSTICE SUPREME COURT

MUSA DATTIJO MUHAMMAD, JUSTICE SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JUSTICE SUPREME COURT

ABDU ABOKI, JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM, JUSTICE SUPREME COURT

PARTIES

APPELLANTS

CHIKEZIE UZOEWULU

RESPONDENTS

AREA(S) OF LAW

APPEAL, CHIEFTAINCY MATTERS, COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

Writ of Summons and an Amended Statement of Claim, the Appellant before the High Court of Anambra State sought against the Respondent declaratory reliefs and a restraining injunction. The Appellant claimed that Ezeakwuabo established an Obiship known as Isi-Obi. That under Nnewi Customary Law, inheritance to the stool of Isi-Obi is patrilineal. When Ezekwuabo died, his stool was inherited by his first son called Ezeomu. The stool remained and continued in Ezeomu lineage following the same custom of patrilineal inheritance until it came to a descendant of Ezemuo, called Dibia-Agu. While Dibia-Agu was the Isi-Obi, of Ezekwuabo village, the village was faced with series of wars (the war of nine fronts, popularly called Mbu Agha Teghete), with its neighbors. The then Isi-Obi could not control the situation so he handed over the mantle of Obiship to one of the descendants of Ezekwuabo called Ezekpo who was a great warrior and strategist, to lead the people in the war. Since then, the title of Isi-Obi Ezekwuabo remained in the lineage of Ezekpo up to date, with the Appellant as the present/incumbent Obi. Contending that the Respondent who is claiming the title is not even a descendant of the Ezekwuabo family, because his ancestor, Dim Onyenagolum was brought into the Ezekwuabo family from Dim Mnaniogu family and was assimilated into the Ezekwuabo family. In reaction, the Respondent filed a Statement of Defense and Counter-claimed against the Appellant; stating that he descended from the same great ancestor Ezekwuabo, just like the Appellant. According to him, the ancestor begat Ikeogu and other sons. Ikeogu in turn begat Dim Onyenagolum, the ancestor of the Respondent, and Dim Ughanwa, Appellant’s ancestor. The first son of Ezekwuabo was Ezemuo, who died during his father’s lifetime. Ikeogu thus became the Okpala and successor to the office of Isi-Obi Ezekwuabo when Ezekwuabo died. He said that when Dim Onyenagolum died, his son, Dim Aguluebo, was a minor and Ezekpo then stepped in and acted as a Regent, and that thence on, the Ezekpo line of the Appellant usurped the family Isi-Obi. In its judgment, the trial Court dismissed the Appellant’s claim and entered judgment for the Respondent in respect of his counter claim. Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal, via a Notice of Appeal, Enugu Division, which in a unanimous decision dismissed the Appellant’s appeal. Still aggrieved, the Appellant filed a four ground Notice of Appeal to the Supreme Court. The Respondent’s brief was accompanied with a Notice of Preliminary Objection urging this Court to strike out ground 2, 3, and 4 of the Appellant’s notice of appeal alongside all arguments rendered in relation to the grounds.

HELD

Appeal Dismissed

ISSUES

1. Whether the Court of Appeal below (sic) was justified when it affirmed the judgment of the Court of first instance to the effect that what happened during the time of Ezekpo was an involuntary handover and therefore, Ezekpo was a Regent and the title is reversible no matter how long it lasts.

2. Whether having regards to the pleadings, the evidence, the finding made by the Court of first instance and the parties before the Court of first instance, the decision of the Court of Appeal sustaining

RATIONES DECIDENDI

GROUNDS OF APPEAL – CRITERIA FOR IDENTIFYING WHEN A GROUND OF APPEAL IS ONE OF LAW

“In NNPC v. Famfa Oil Ltd. (2012) 17 N.W.L.R. (Part 1328) S.C. 148, this Court, while faced with a similar objection to the grounds of appeal, went ahead to deal extensively with the criteria for identifying when a ground of appeal is one of law, of fact, or of mixed fact and law. Rhodes-Vivours J.S.C., at Pp. 175 – 176, Paragraphs C – H, as follows:

“…. In Nwadike v. Ibekwe (Supra), this Court explained further that:

(a) It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion.

(b) Several issues that can be raised on legal interpretation of deeds, documents, terms of arts and inference drawn there from are grounds of law.

(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law.

(d) Where a tribunal states the law in point wrongly, it commits an error in law.

(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.

(f) If a Judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law…..”

Flowing from the above, I find that the grounds of appeal under review raise issues of law.

I am fortified in my view by this Court’s decision in Enterprise Bank v. Aroso (2014) 3 N.W.L.R. (Part 1394) S.C. 256, where it was held as follows:

“…The ground of appeal is not contesting settled facts. What the ground is saying is that the judge made a wrong inference from established facts that are apparent on the record of appeal… What the judge did according to the ground of appeal amounts to failure to ascribe proper weight to relevant materials and established facts… This is a ground of law…”

– PER A. ABOKI, J.S.C

COURT – DUTY OF THE TRIAL COURT TO ASSESS THE EVIDENCE ADDUCED BY THE PARTIES

“It is the duty of the Trial Court to assess the evidence adduced by the parties. This pragmatic concession is based on the fact that only the Trial Court has the advantage of seeing the witnesses, assessing their demeanor while testifying. See the case of Magaji & Ors V. Odofin & Ors (1978) 4 SC P. 91. – PER A. ABOKI, J.S.C

FRESH ISSUE ON APPEAL – DUTY OF A PARTY WHO SEEKS TO FILE AND ARGUE A FRESH ISSUE ON APPEAL, WHICH WAS NOT CANVASSED AT THE LOWER COURT

“Order 6 Rule 5 (b) Rules of the Supreme Court is a rule designed to ensure that this Court has the benefit of the opinion of the Lower Court on issues before volunteering its final and determinative decision on them hence, where such issues were not canvassed before the Lower Court, this Court would generally, not be disposed to allow an Appellant to take them before it for the first time.

This is the rationale for the prescription that a party who seeks to file and argue a fresh issue, which was not canvassed at the Lower Court, whether the issue pertains to law or procedure, must seek and obtain the leave of this Court first else such an issue must be struck out. See: Corporate Ideal Insurance Ltd. v. Ajaokuta Steel Coy Ltd And Ors (2014) LPELR 22255 (SC) 23 – 24; G – C, Obiakor and Anor v. The State [2002] 10 NWLR (PT. 776) 10

From my perusal of the record, I am minded to endorse the submission of the Respondent’s counsel that Ground Three, neither emanated from the decision of the Lower Court nor from that of the trial Court. In effect, the issue of the Action Laws of Anambra State, which derives from that Ground is a fresh issue before this Court – it was not canvassed either before the Lower Court or before the trial Court. Worse still, the Appellant did not seek leave to canvass it before this Court. Need I remind the Appellant’s counsel that it is still a valid general principle that where a party seeks to raise a fresh issue on appeal, as he tried to do in t his appeal, he must seek the leave of Court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out.- PER A. ABOKI, J.S.C