➥ CASE SUMMARY OF:
Alfred Usiobaifo & Anor. V. Christopher Usiobaifo & Anor. (SC.254/2000, 24th day of January 2005)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Customary Law;
Sale of family land.
➥ CASE FACT/HISTORY
Chief Usiobaifo Ekpuda, an Ishan, was the father of the 1st and 2nd plaintiffs/respondents. He was also the father of the 1st defendant/appellant. He died in the year 1954. His eldest son, Oboite Usiobaifo died in 1973. Chief Usiobaifo died intestate. He was owner of the property at No. 107 Forestry Road, Benin City. The 1st defendant/appellant, the son of Chief Usiobaifo Ekpuda, claimed to have performed the burial ceremony of the late father, as a result of which he became the exclusive owner of the property in accordance with Esan native law and custom. 1st defendant/appellant sold the property to the 2nd defendant/appellant in 1992. The plaintiffs/respondents filed an action. They asked for two reliefs:
“(i) A declaration that the first defendant has no right to sell the family properties known and situate at No. 107 Forestry Road, Benin City, without the consent and approval of other principal members of the family. (ii)
A declaration that the purported sale of the properties known and situate at No. 107 Forestry Road, Benin City, on the 11th day of September, 1992 by the first defendant to the second defendant within the jurisdiction of this Honourable Court is illegal, null and void and of no effect whatsoever.”
After taking evidence and address of counsel, the learned trial Judge gave judgment against the defendants/appellants. The sale of the property was declared void. Omage, J. (as he then was) declared at page 70 of the record: “I declare that the said sale is void and that the said property remains the properties of Usiobaifo family because the 1st defendant has no power or authority to sell family property as his own property. The sale is declared null and void.”
Dissatisfied, the appellants appealed to the Court of Appeal. That court affirmed the decision of the learned trial Judge. The appeal was dismissed.
➥ ISSUE(S)
I. Whether the respondents proved the Ishan customary law of inheritance?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT’S TESTIMONY IN RESPECT TO THE IGIOGBE IS CONTRADICTORY
‘I do not think he was correct when he said under cross-examination that No. 101 Forestry Road is not the Igiogbe of his late father. He did not tell the court which is the Igiogbe, if No. 101 Forestry Road is not the Igiogbe. In my humble view, he was not telling the truth when he said under cross-examination that No. 101 Forestry Road is not the Igiogbe of his late father. All the witnesses of the respondents gave evidence that No. 101 Forestry Road is the Igiogbe, and I believe them. That is not all on DW 1. He said under cross-examination and I repeat here what he said for ease of reference: “It is not true that I am not the owner of the house I live in. The house belongs to my wife.” Unless there is a “printer’s devil”, the above two sentences are clearly in conflict. In the first sentence, witness claimed (and this is putting it in the affirmative) that he is the owner of the house. In the second sentence, he claimed that the house belongs to his wife. Which is the correct version.’
EFFECT OF SALE OF FAMILY LAND
‘What is the effect of the head of family selling family land without the consent of the principal members of the family The case of Ekpendu v. Erika (1959) SCNLR 186, (1959) 4 FSC 79 provides the answer. It was held in that case that where a head of a family sells family land without the consent of the principal members of the family, the sale is voidable. See also Esan v. Faro 12 WACA 135. In Alli v. Ikusebiala (1985) 1NWLR (Pt. 4) 630, this court held as follows: Neither the head of the family alone, nor the principal members alone can make any valid alienation or give title to any person with respect to family land. (2) A head of a family not acting as such cannot convey a valid title in respect of family land. (3) Unimpeachable title can only be transferred from one community to another when head of the family does so with the consent and concurrence of the principal members of the family or community.
In Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, this court went further. It held as follows: (1) Where there is a sale or conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, then the transaction is voidable and those members who should have consented to the transaction but did not, can take out an action to have the transaction set aside. (2) The sale of family land by a member of the family who is not the head of the family, is void. (3) The sale of family land by the head of the family without the consent of principal members of the family is voidable. (4) The sale of family land by the head of the family as his own land is void. (5) Where a sale is void, it has to be so declared if asked to be set aside but where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case.
As it is, this court developed the law further in (4) above, that is, the sale of family land by the head of the family as his own land is void. Ekpendu v. Erika (supra) did not get to that stage or that far. It is this principle that is applicable in this case because the 1st appellant sold the family property (the Igiogbe) as his own exclusive property. In the light of the authorities, I have no difficulty to declare the purported sale void.’]
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✓ DECISION:
‘In the light of all that I have said above, I do not see any merit in this appeal. I therefore, dismiss it. I affirm the judgment of the learned trial Judge, which was affirmed by the Court of Appeal. I award N10,000.00 costs against the appellants in favour of the respondents.’
➥ FURTHER DICTA:
⦿ QUANTITY OF WITNESSES DOES NOT MATTER, BUT QUALITY
It is not my understanding of the law that a village or community of witnesses must be called to satisfy the provision of section 14(1). In the evidential scene in the con of probative value, it is not the number of witnesses that matter but the quality of the evidence given. And so, a situation may arise where a single witness gives credible evidence while a number of witnesses may not because they are a bundle of contradictions. Therefore, emphasis should be on the quality of evidence given rather than the quantity. — N. Tobi JSC.
⦿ PROOF OF CUSTOMARY LAW DOES NOT NEED CORROBORATION
Although learned counsel cited Ozolua II v. Ekpenga (supra) and Oyediran v. Alebiosu (supra), it is my humble view that proof of customary law is not one of the areas in our adjectival law that needs corroboration. While it could be desirable that a person other than the person asserting the customary law should testify in support of the customary law, it is not a desideratum. This is because the Evidence Act does not so provide. And here, section 14(1) provides the anchor. The subsection merely provides that a custom “can be proved to exist by evidence”. And evidence can be led on the existence of the custom by a single witness or more witnesses. — N. Tobi JSC.
⦿ CONTRADICTIONS CAN AVAIL THE OPPOSITE PARTY WHEN THEY ARE MATERIAL TO THE LIVE ISSUES
It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the appeal in favour of the party raising the issue. See Arehia v. The State (1982) 4 SC 78; Muka v. The State (1976) 9-10 SC 305; Onubogu v. The State (1974) 9 SC 1; Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393. I see in the evidence of the witnesses of the respondents a consistent pattern of a flowing story of truth how the 1st appellant bastardised the Igiogbe of his late father, thus trying to ruin or destroy Ishan customary law. I therefore, do not agree with the submission of learned counsel for the appellants that there were material contradictions in the evidence of the respondents. — N. Tobi JSC.
⦿ A JUDGE IS FREE TO LOOK AT AUTHORITIES TO DECIDE ISSUES BEFORE HIM
It is the argument of the appellants that the learned trial Judge ought to have confined himself to pages 69, 119 and 120 and not look at any other page of the book, including page 133. With respect, I do not agree with counsel. A trial Judge is free to use any book cited by a party or suo motu make reference to any book which is relevant to the issue or issues before him. A party cannot gag a Judge in the way learned counsel is contending in his brief. It is generally the practice for counsel to cite authorities favourable to his client’s case and it is the duty of the Judge, as the independent umpire, so to say, to look at all available authorities on the issue to arrive at a just and proper decision. A party cannot gag a Judge in the way learned counsel is contending in his brief. It is generally the practice for counsel to cite authorities favourable to his client’s case and it is the duty of the Judge, as the independent umpire, so to say, to look at all available authorities on the issue to arrive at a just and proper decision. In this case, counsel for the defendants cited pages 69, 119 and 120 which strengthen the case of his clients and did not ‘understandably’ call the court’s attention to page 133. I think the Judge was industrious to examine page 133 and come to the conclusion in respect of the inalienability of the Ijiogbe. I cannot fault the learned trial Judge, rather I commend his industry. — N. Tobi JSC.
⦿ MAJOR REQUIREMENTS OF A WRITTEN JUDGEMENT
Learned counsel for the appellants is not happy with the way the learned trial Judge wrote the judgment. He submitted that the Court of Appeal ought to have considered whether the judgment of the learned trial Judge was written in a good and proper manner. He stated what a good judgment should contain; one of which is the introduction of the parties.
The requirement as to a particular format in the writing of a judgment. There is no statutory format either. Judgment writing being an art, needs the peculiar and personal dexterity of the Judge who is the “artist”. No two artists convey exactly the same painting from an assigned object. So too, no two Judges write judgment using exactly the same house style and the same coloration, and all that. Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate court will not interfere. Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in the field of mathematics. A Judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial Judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of counsel, if counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate court cannot hold that the judgment is not properly written. I should go further. An appellate court cannot set aside a judgment of a trial Judge merely because it does not begin with an introduction of the parties, as contended by counsel for the appellants. A plaintiff in a case remains a plaintiff and need no introduction. So too a defendant. As a matter of style, a trial court need not repeat in an introduction, in the con of this case, that Mr. Christopher Usiobaifo is the 1st plaintiff. An appellate court may do so in relation to the appellate status of the parties vis-a-vis their original status as trial parties. This is not even compulsory. It is a matter of style. Failure on the part of an appellate court to introduce parties is not condemnable. As a matter of practice, most appellate judgments do not start with introduction of parties. I think I have dealt with all the live issues in this appeal. — N. Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Tobi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief H. O. Ogbodu.
⦿ FOR THE RESPONDENT(S)
Mr. R. E. Esekhaigbe.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
