3PLR – BALOGUN V. OLIGBEDE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BALOGUN

V.

OLIGBEDE

 

COURT OF APPEAL

(BENIN DIVISION)

FRIDAY, 11TH JANUARY, 1991

CA/B/131/88

3PLR/1991/60  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

UCHE OMO, J.C.A. (Presided and Read the Leading Judgment)

AKINTOLA EJIWUNMI, J.C.A.

DENNIS ONYEJIFE EDOZIE, J.C.A.

 

BETWEEN

1. SAMUEL BALOGUN
2. AVODELE OLOWOLEYE

 

AND

1. SHITU OLIGBEDE (SUBSTITUTED For CHIEF ALIU NUN)
2. AMINU OGUNDIPE (SUBSTITUTED FOR ABEGUNDE ALAPIN)
3. AMINU OMOYENI
4. CHIEF SIMEON OGUNBIYI
5. LAWANIOLOROKO
6. AMUDA OLOFIN
7. AMOS OLOFIN
8. AJAYI AGBOYE
9. ALHAJI SAKA ABUDU (SUBSTITUTED FOR SALIU OGUNSEYI)

 

REPRESENTATION

Olisa Chukwura ESQ, S.A.N (with him, J.O.A. Ajakaiye ESQ, and C.O. Chukwura ESQ) – for the Appellants

S.F. Fajobi, (with him, Ologunju ESQ.) – for the Respondents

 

MAIN ISSUES

ACTION- Counter claim -Nature of-Need for court to decide one way or the other.

ACTION – Counter- claim – Where abandoned – What order to make

ACTION – Family Status – Lines of succession – Need to prove.

COURT – Customary court – Proceedings therein – Attitude of appellate court.

COURT – Sentiment in judicial deliberation – Attitude of court.

EVIDENCE – Evaluation of evidence – Conflicting evidence of genealogy – Duty on Court to evaluate.

EVIDENCE – Proof – Action for family status – Line of succession – Need to prove.

JUDGMENT AND ORDER -Counter-claim – Need to decide one way or the other.

JUDGMENT AND ORDER – Judgment of court – What it should contain

PRACTICE AND PROCEDURE – Counterclaim – Nature of -Need to decide one way or the other.

PRACTICE AND PROCEDURE – Counter- claim – Where abandoned – What order to make.

 

MAIN JUDGEMENT

OMO, J.C.A. (Delivering the Leading Judgment):

The action presently on appeal originated from the Akoko North Grade 1 Customary Court where the plaintiffs/appellants on behalf of themselves and the entire Odo-Oso family of Edo quarter of Ikare sued the defendants/respondents for:

“(1)   a declaration that the defendants who belong to Igbede quarter of Ikare and have pers 1stently claimed to be members of the plaintiffs’ family and are pretending and parading themselves as such do not belong to the plaintiffs’ said family known as Odo-Oso family; and –

(2)     a perpetual injunction restraining the defendants and their agents people of Igbede quarter of Ikare from claiming and pretending to be members of the said Odo-Oso family or parading themselves as such.”

The defendants/respondents also set up a counter-claim against the plaintiffs/ appellants for a declaration that both of them “belong to and are members of Igbede Community of Ikare Akoko”.

After hearing the parties, the Customary Court in its judgment dismissed the claim stating inter alia that:

“The Court takes this decision because the families of both the plaintiffs and the defendants have become so interwoven, absorbed and assimilated into one and the same ethnic society, by inter­marriages, customs and traditions, religions, parental affiliations, and inter-actions, and series of other social and cultural inter-actions, that it is impossible to separate them.”

Not satisfied with that judgment the plaintiffs/appellants, appealed against same to the Ondo State High Court. There the appeal was heard and determined by Akintan J. at the Ikare Judicial Division. Again the plaintiffs/appellants’ appeal was dismissed as lacking in merit with costs, the learned appellate Judge finding inter alia that:

“It is apparent from the record that the main issue to be tried in the case was whether or not the plaintiffs’ contention that the defendants were not members of the same Odo-Oso family was correct or not. The court heard abundant evidence of the common origins of both the plaintiffs and the defendants, and came to the conclusion that the plaintiffs’ contention was baseless and therefore dismissed their claim. It is not correct therefore to say that the court failed to resolve the issue joined one way or the other.”

Still dissatisfied, the plaintiffs/appellants has filed an appeal against the High Court judgment Lo this Court. Five grounds of appeal were filed and argued in support of this appeal as follows

“1.     The learned Judge of appeal erred in law in not allowing the Appellants’ appeal when the president of the Customary Court of trial failed to evaluate the evidence of the parties as appeared on record.

Particulars

The genealogy given by the parties conflicted e.g.

(i)      The plaintiffs gave the names of the children of Urere as Isakume, Odo-Oso, Okereo, Eho.

(ii)     The Defendants gave the children of Urere as Isakume, Eho and Igbede leaving out Okereo also known as Ususu. The Defendants also said Onigbede is the head of Igbede which they alleged included Odoso whereas Eledo a member of Odoso family is the head of Edo quarters which the Defend­ants agree includes Igbede Quarter.

The differences were not resolved one way or the other.

2. The learned Judge of appeal erred in law in coming to a conclusion that the Lower Court anywhere in the proceeding accepted the evidence of the Defendants or rejected the evidence of the plaintiffs when in the whole length and breadth of the proceeding there was no such finding before dismissing the plaintiffs claim.
3. The learned Judge on appeal erred in law in regarding the non evaluation or appraisal of evidence by the trial Court as a matter of technicality when such failure is material and goes to the root of the appeal and therefore failed by itself to evaluate the evidence on record, a duty imposed upon it by law.
4. The learned Judge on appeal erred in law in holding that there is no evidence on record to support the plaintiffs’ claims when there was abundant evidence on record.

Particulars

(i)      The genealogy of the plaintiff is more probable.

(ii)     There was evidence from members of Igbede Community, P.W.2 Isiah Akinsum that Odoso is not a member of Igbede.

(iii)    Odekolofin meeting is entirely a meeting between one of the 9 families of Igbede and Odoso family as a result of the marriage, meeting of in-laws.

(iv)    Igbede people do not participate in the Worship of Urere.

(v)     See evidence of P.W.3 Alhaji Balogun Rabin.

(vi)    The 4th P.W. Sunday Ega who is from Igbede Community. He gave evidence that Odoso is not part of Igbede.

5. The decision is against the weight of evidence.”

From these grounds of appeal the plaintiffs/appellants also formulated five issues for determination set out in their brief thus:

“(i)     Did the Appellants not prove their claim in the Customary Court that they belong to Odo-Oso family of Ikare and that the Respondents are not members of the Odo-Oso family but belong to Igbede quarter AND NOT to Odo-oso family. And was the High Court right in holding that the Customary Court found that the Appellants’ contention was baseless?

(ii)     Did the Customary Court resolve the issues joined by the parties in their claim and counter-claim and was the High Court right in holding that the Appellants’ contention that the issues were not resolved was not correct?

(iii)    Where in an action by a plaintiff, the defendant sets up a counter-claim which is res 1sted by the plaintiff, is the plaintiff not entitled to have a judgment pronounced on the counter­ claim, and was the High Court right in holding to the contrary?

(iv)    In view of the evidence of the Respondents which supported that of the Appellants on the main issues and the findings of the Customary Court on the relationship of the parties, was the High Court right in holding that there was evidence on which to base the dismissal and refusing to evaluate the evidence or to interfere?

(v)     In spite of Section 62 of the Customary Courts Law 1980 of Ondo State, is a Customary Court not obliged to admin 1ster justice according to the law, relevant practice and procedure and give weight to credible evidence led on the issues joined – and was the High Court not in error in shirking its duty to evaluate the evidence and come to a conclusion on the facts or the wrong inferences drawn therefrom by the Customary Court?”

Before considering these issues for determination, a brief statement of the cause of this action on appeal and an equally brief summary of the evidence led and the issues raised at each stage of the litigation is necessary.

The cause of action is very succinctly stated by the plaintiffs/appellants in their brief thus:

“The cause of this action was a land dispute between the two parties in: Suit AD/8/71: Balogun & Anor vs. Nun and Others at Ado-Ekiti High Court then of Western State of Nigeria. The case went on appeal to the former Western State Court of Appeal which non-suited the claims of the plaintiffs on the ground that the issue of family status was raised which the High Court then had no jurisdiction to try. – The Court of Appeal could not resolve the issues between the parties without a decision on the issue of family status. Hence the Suit leading to this appeal was initiated at the Akoko North Grade 1 Customary Court sitting at Mare as: Suit IK/19/76: Samuel Balagun & Anor v. Shitu Oligbede & 8 Ors.”

On behalf of the plaintiffs/appellants evidence was led to show that the Odo-Oso family had no blood relationship with the lgbede Community.

Whilst the ancestor of the former is one Urere who hailed from Ile-Ife, the latter are strangers to the community who originally came from Agbede in Bendel State to meet the plaintiffs/appellants who gave their ancestors the land they presently occupy. The Head of Odo-Oso family is called Chief Eledo of Edo, Ikare and he is the head of Edo quarters which comprises Isakumi, Eho, Okereo and Odo-Oso quarters; all of whom descend from a common ancestor (father) – Urere.

In the course of intercourse between the two communities, one Ologudu (alias Ofin), the daughter of one Oke of lgbede Community got married to Aki nla of Odo­Oso. As a result, a friendly relationship developed between the Ologudu family and the Odo-Oso family which led to the founding of a mutual aid society called “Odekolofin, which means ‘family of husband and wife”.

The salient features of the evidence led in support of the defendants/ respondents’ case, on the other hand, is that: Odo-Oso is not a quarter as claimed by the members of Odo-Oso family but a unit within Igbede quarters of Ikare. They the defendants/respondents also traced their ancestry to Urere of Ile-Ife (same as the plaintiffs/appellants). He had three sons Isakumi, Edo and lgbede. all of whom were born at Ife and came with him to their present abode at Ikare. lgbede gave birth to ten children, one of whom is Odoso, the ancestor of the plaintiffs family. These ten children together forth lgbede quarter of which Odoso family is a unit. In the course of his evidence D. W. I , the Olofin of Ikare, testified on who were the first four Olofns of Ikare-Ehinayejumo, Gborogun, Ake and Enunu, without tracing theirgenealogy to Urere; although it may be deduced from the evidence led that they belonged to “Odekolofin” family, which comprises the descendants of Ake and Gborogun, two of the three children of Ehinayejumo, the third being Ologundu (a woman), In keeping with the custom of the ten families of Igbede to give thei r daughters in marriage to one-agother, Ologudu got married to one Akin la of Odo-Oso family and they begot one Rotimi. It is according to D.W.1, “the children of Rotimi’s sons (who) are now members of Odo-Oso family of lgbede quarters in Ikare”. Suffice it to observe for now that it is difficult to appreciate how Odoso can be one of the ten children of lgbede and at the same time the children of his descendant, if that is what Ehinayejumo is, will be the ones to form the Odo­Oso family. This “confusion” appears not to have been cleared by any of the defendants/respondents other five witnesses, and is part of the complaint of the plaintiffs/appellants, which will be considered later. It is the case of the defendants/ respondents that three families (or quarters?) together comprise Edo quarter. But these are Isakumi, lgbede (not Odo-oso) and Eho. Both sides led evidence as to the various ceremonies either participated by one side to the exclusion of the other, or other customs or jujus worshipped, and also subsequent political divisions, in an effort to show either that the two sides are from different or the same quarter(s).

In his very commendable brief, counsel for the plaintiffs/appellants (here­inafter called “appellants” only) before setting out the issues for determination in this Court, set out the issues before the Customary Court and the High Court, and proceeded to show by careful analysis of the evidence how, in his submission, each of those two courts have failed to address and properly decide those issues: and therefore failed to do justice. Counsel for the defendants/respondents (referred to as “respondents” hereafter), without being as detailed, has also sought to show that the performance of the two courts cannot be questioned and that they succeeded in doing substantial justice. The submission made in this connection will be considered under the relevant issues set out for determination in this Court.

On the first issue for determination learned senior counsel for the appellants, in his brief, highlighted in his argument several fallacies, contradictions and unresolved issues which he submitted led the Customary Court into the wrong decision it arrived at and which the appellate High Court wrongly confirmed. He also set out two tables of the genealogy of the respondents, which he stated to be in accordance with the evidence led by them and proceeded to show not only that they appear to be contradictory but also that both of them do not trace the present respondents’ origin to their claimed successor Urere, whom the appellants also claim to be their own ancestor. Counsel appears to have succeeded in establishing the conflict in the genealogy of the respondents asset out by him. There is indeed no nexus established between the offsprings of Ehinayejumo, the progenitor of the Igbede community and Ureretheac claimed ancestor of the Odo-oso family. What is more, none of these genealogies traces the root of the respondents from Urere to the present parties in this action. It cannot therefore be said that the respondents proved satisfactorily that Urere is their progenitor. In contrast, the appellants on record established their direct connection with Urere. Although the claim here is not for a declaration of title, proof of genealogy is an important and crucial issue in this case. The principle that where a line of succession is not satisfactorily traced in an action for declaration of title because it has gaps or mysterious linkages or no nexus, it should be rejected, must be also applicable here. Assuming without so finding, that both sides have succeeded in establishing two genealogies which are not affected by gaps or lack of nexus, I will agree with appellants’ counsel that it is the law that where there are before a Customary Court two conflicting assertions as to genealogy it is the duty of the court to consider both assertions carefully and decide on the balance of probabilities which of the assertions it will accept vide Alhaji Jimoh Odutola v. Seidu Aileru & Ors 1985 I N. W.L.R. (part 1) 92 at 96 paras F- H); P. Omoregbe v. E. Edo 1971 1 A.N.L.R. 282. This is particularly so in in this case because both genealogies trace their origin to the same person – URERE. The trial Customary court not only failed to resolve such conflicting genealogies but it did not even acknowledge its ex 1stence in its judgment. This is obviously a fatal error which cannot be excused on the ground that what it is called upon to do is substantial justice, and not to consider the evidence/issues minutely as superior Courts will be required to do. Further more on this issue of genealogy 1 refer to my earlier comment as to the confusion which has arisen from the evidence/genealogy of the respondents as to who in fact constitute Odo-oso family. Is it the children of the son of Urere who are called Odo-oso family or is the children of Rotimi, a descendant? The importance of clearing this confusion, which was never accom­plished, lies not only in the need to establish how Odo-Oso family came into ex 1stence (and as a part of Igbede quarter’?) but also the relevance of the marriage of Ologudu to Akinla in this connection, since Rotimi is a child of this marriage. Here again the customary Court could at least have identified this confusion even if it failed to resolve same. According to appellants’ counsel it is from this confusion that one of the fallacies of the respondents complained of has arisen, to wit, that because Akinla’s offsprings by Ologudu are cousins, nephews and nieces of the people of Igbede they have become members of Igbede community, and so Odo-oso is part of Igbede. Instead of resolving the contradictions/confusion, conflicting genealogies, and making positive findings of fact there from, the Customary Court, which all along had been promoting reconciliation, took refuge in morality and generalisations. It stated inter alia that:

“(a)    before the crisis started all the families in Odo-Oso and Igbede maintained their identities in unity as one and indivisible entity……… and other social interactions and prenatal affiliations.”

(b)     “The court takes this decision because the families of both the plaintiffs and defendants have become so interwoven, absorbed and assimilated into one and the same ethnic society by intermarriages, customs and traditions, religious, prenatal affiliations and interactions and series of other social and cultural interactions that it is impossible to separate them.”

(c)     The court observes that the ancestors of both parties as well as the generations after them including the plaintiff, and the defendant lived in perfect peace and harmony until the parties came to throes of the present crisis.”

There is no doubt that the Customary Court, as respondents’ counsel has stated heard evidence about joint running of co-operative societies, joint bank accounts, celebrations of ceremonies together, belonging to a cultural organisation together. But did the Customary Court make any findings on these? Did it come to the conclusion specifically and unequivocally that because of these pieces of evidence Odo-oso is part of Igbede or that Igbede is not part of Odo-oso? The answer to these questions must be in the negative. The submission of appellants counsel on what the Court is expected to do in these circumstances as set out in his brief is very apt. It is that:

“Whether in a Customary Court or other Court, judicial decisions are arrived at on facts placed before the Court by” parties to the dispute. They are not reached by substituting the judge’s sentiments for the facts adduced in evidence. What the Court had to do was to weigh the evidence given by the defendants and the evidence given by plaintiffs. After weighing the two accounts it should decide which of them it believed and why. The Court was clearly in error when it failed to do so but simply dismissed the case of the plaintiffs on the grounds of sentiment and its imagination -Chief Obi J.I.G. Onyia v. Louis Oniah (1985) 3 N. W.L.R. (Part 11) 1 at page 7 F – H.”

The conclusion that must be arrived at on a fair but firm assessment of the decision of the Customary Court is that it ran away from coming to any decision, preferring instead to dismiss the claim, without adverting to the counter-claim before it, in the interest of “perfect peace and harmony” and the need to “maintain their identities in unity”. In view of this failure of the Customary Court it is difficult to appreciate the finding of the learned trial Judge quoted earlier in this judgment in which he stated, inter alia, that:

“the court …………….. came to the conclusion that the plaintiff’s, contention was baseless and therefore dismissed their claim.” The Customary Court clearly came to no such conclusion.

The appellants are however asking this Court under this issue, to also hold that they have proved their claim that they belong to the Odo-oso family of Ikare and that the Respondents are not members of Odo-oso family but belong to Igbede quarter AND NOT to Odo-Oso.family. There is no difficulty in finding that the appellants belong to the Odo-oso family. In fact that is not disputed. There is also no real controversy that the respondents are not members of Odo-Oso family. The evidence of both sides is to that effect. To that limited extent the appellants can be said to have succeeded to part of their claim” without firing a shot.” But their claim speaks of the defendants of Igbede quarter “pers 1stently” claiming to be members of “plaintiffs family” i.e. the appellants’ family. This is clearly negatived by the evidence led by the respondents, and in view of the counter-claim which was before the court, to wit, that the appellants and respondents both belong to Igbede quarters, issue was certainly joined by the respondents on this alleged claim to belong to Odo-oso family.

the appellants also claimed:

“(2)   A perpetual injunction restraining the defendants and their agents people of Igbede quarter of Ikare from claiming and pretending to be members of the said Odo-Oso family or parading themselves as such.”

The appellants cannot possibly, in the light of the evidence before and judgment by the Customary Court be entitled to any such injunction.

In conclusion on the first issue, the appellants are entitled to succeed therein only to the limited extent (1) that the High Court was wrong in holding that the Customary Court found that the appellants’ claim was baseless (2) that the respondents of Igbede quarters do not belong to and are not members of Odo-oso family of Ware. Their claim to (3) a perpetual injunction as set out hereinbefore and (4) a declaration that the respondents have been pers 1stently claiming “as set out in their claim”; must also fail.

The second and third issues jointly argued complain firstly, about the failure of the Customary Court to resolve issues joined in the claim and counter­claim, and the High Court holding that the appellants contention that issues were not resolved, is not correct. Secondly, that the appellants are entitled to a judgment on the counter-claim, contrary to the view held by the learned appellate Judge. Appellants’ counsel has set out also in his brief some of the issues raised and joined in the Customary Court, as follows:

“(i)     The Appellants state that Urere had three children, namely, lsakumi, Eho and Odo-oso. BUT the Respondents state that the three children were: Isakumi, Eho and Igbede.

(ii)     Odo-oso and Igbede are not blood relations (Appellants). Re­spondents state that they are.

(iii)    Edo Quarters cons 1sts of Isakumi, Eho, Okere and Odo-Oso (plaintiffs). Respondents state that it cons 1sts of Isakumi, Eho and Igbede.

(iv)    Plaintiffs state that Igbede being strangers from Agbede in Bendel State never worshipped at the shrine of Urere, the Plaintiffs’ ancestor – Respondents state that they worship.

(v)     Plaintiffs state that land occupied by Igbede was granted them by Plaintiffs’ ancestors. Respondents controverted this assertion. (vi) Igbede were blacksmiths, a trade which they brought from Agbede and rendered hoes and cutlasses and metal ware as tribute for land granted them.

(vii)   Plaintiffs state that Okedolofin was a mutual aids association formed after the marriage of Ologudu (alias Ofin) of Igbede to Akinla of Odo-oso – The Defendants state that Okedolofin was a child of Igbede, not an association.

(viii)   The genealogy testified to by either party differed.

(ix)    who was Ehinayejumo, who was said to have begotten Ake, Gborogun and Ologudu? What is his relationship to Urere or even to Igbede?

(x)     Was Igbede joined to Odo-oso for ADMINISTRATIVE purposes?

(xi)    Is inheritance in Ikare partrilineal or is it matrilineal, so as to enable Ologudu of Igbede attract her off-springs by Akinla and the entire Odo-oso family into Igbede, thus forming Odo-oso family of Igbede?”

It has not been contested in the respondents’ brief that these issues were not joined as set out above, and/or that they were not resolved. It is trite law that a judgment of a court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the result of such an exercise vide Ojogbue v. Nnubia (1972) 6 S.C. 227 at 235-6. The complaint of the appellant is not only that the Customary court failed in its duty, but that the appellate High Court, instead of rectifying the position by properly appraising and making findings of fact on evidence before it vide Kaho v. Woluchem (1985) 1 N. W.L.R. (Part 4) 610, proceeded to “rubber stamp” the conclusions of the Customary court and compound its failure. It is the final submission of the appellant that this Court should consider the facts in issue and resolve them in favour of the appellant. In my view such an exercise is no longer necessary having regard to the conclusions I have arrived at on the first issue. Suffice it to emphasize that the appellate High Court failed in its duty to embark on the exercise of appraisal, assessment and resolution. The answer to the first part of the second issue is therefore in the negative.

On the second part of the second and third issues canvassed, appellants’ counsel has made these submissions which I prefer to set out verbatim. He stated that:

…………when a counter-claim is set up and is controverted and contested, it becomes an issue which must be resolved either way and failure to do so is an error in law – indeed, an abdication of judicial responsibility. For the High Court to hold:­

“It is also for the respondents to cross-appeal if they believe that the court failed to adjudicate on a counter-claim which they filed in the case and not for the appellant to make that a subject of appeal against the judgment” is a grave error of law.

The Court of Appeal is urged to hold that the view of the High Court on this matter is erroneous – and to consider and dismiss the counter­claim.”

In reply, the respondents in their brief also stated their position on this issue as follows:­

‘The only indication that there was a counterclaim is in the opening part of the customary court’s judgment where after reciting the plaintiffs’ claim the following occur:

“COUNTER-CLAIM: The defendants counter-claim against the plaintiffs that the defendants belong to and are members of Igbede Community of Ikare Akoko.

Attendance – parties are present. Place: Not admitted”‘

After this no evidence was adduced and in fact none could be adduced again as the above formed part of the preamble to the judgment which the court then further proceeded to read.

The plaintiffs’ claim on the other hand was read and the plea of the defendants was taken on 26th day of March, 1979 when the case first came to Court and before any evidence was taken in the matter. This was repeated on 17:7:79 (pages 4-5); 28:1:1981 (pages 8-9) and on 24:2:81 (page 10). It was after this that the parties began to give evidence whereas in the case of the counter-claim it was no longer possible to do so.

It is no surprise that the court gave no judgment on the counter­claim. The omission to do so has not prejudiced the plaintiffs appellants as they were not thereby aggrieved and cannot therefore complain. See Alason Bahatunde, Ajagunna 11, Olukare of Ikare v. The Governor, Western Nigeria (1960) W.N.L.R. 27 at 38.” (1960) SCNLR 153 (Italics mine).

What the respondents are in effect saying is that the Court was justified in not giving judgment on a counter-claim, on which no evidence was led, and that the appellants cannot complain because they were not prejudiced thereby. The learned appellate Judge, without relying on any decided authority has opined that only the respondents can complain. I have no doubt whatsoever that the position taken by the appellants is the correct one in law. A counter-claim, is as important as a claim. It is to all intents and purposes a separate and independent action vide Biode Pharmaceutical v. Adsell Ltd. (1986) 5 N.W.L.R. (Pt.46) 1070 at 1071; Emaphil Ltd. v. Odili 1987 4 N.W.L.R. (Pt.67) 915 at 920

It therefore follows that the trial court before which it is filed must, unless it is abandoned (in which case an order striking it out or dismissing same must still be made) deliver a judgment thereon.

The failure of the Customary court to do so is an error in law. It neglected the counter-claim which sought an opposite declaration to that of the claim, to wit, that both parties belong to Igbede quarters of Ikare. Consequently that issue has not been resolved. The appellants must be deemed prejudiced because until it is resolved it can still be litigated.

In the circumstances of this case what this Court is faced with is not a resolution of issues and giving judgment on a counter-claim based on these issues, but a situation in which the Customary court must be adjudged to have FAILED to consider and deliver judgment on the counter-claim. The only course that this Court can take in my view, is to treat the claim as abandoned and make an order striking it out. I accordingly so order. The answer to the issue posed in the second part of issues 2 and 3 therefore is, Yes they are, and No.

I do not consider it necessary to deal with the fourth issue raised at any length in view particularly of my findings and conclusions on the 1st issue. Suffice is to say that the upholding by the appellate High Court of the outright dismissal of the appellants’ claim by the Customary court was erroneous and certainly not supported by the facts before the Customary Court, the record before the appellate court and the arguments adduced before it. The appropriate orders have already been made under Issue a,

The same situation applies to the fifth issue canvassed in appellant’s brief. I have already found that the appellate High Court shirked its duty by not evaluating the evidence and coming to a conclusion or conclusions thereon. Here again learned senior counsel has very correctly put the legal position and I am in complete agreement with him when he states that:

“The fact that in an appeal from the decision of a Customary Court, the court of Appeal should examine the records as men of common sense and not as English lawyers applying English rules of evidence, procedure, and substantive law, OR that great latitude must be given to and a broad interpretation put upon such cases, OR that defect in procedure or want of form should not vitiate their proceedings OR that Appeal Courts should decide all matters according to substan­tive justice without undue regard to technicalities, does not save decisions which are perverse OR which are given against the general run of evidence OR which do not relate to the issues raised and joined OR which depart from the basic and fundamental requirements of justice. For instance, in R v. Acting Provincial Secretary (1959) 3 E.N.L.R. 59 it was held that while much latitude is given to Native Courts because of their inexperience in legal matters the use of such latitude against the principles of natural justice will be halted.”

After this statement of the law it, is enough to say that Issue 5 also succeeds. All the grounds of appeal and Issues convassed having succeeded either fully or partially as set out above, this appeal is allowed. The-judgment of the trial Customary Court as confirmed by the appellate High Court dismissing the appellants’ claim is hereby set aside. In its place the following judgment is hereby entered.

(1)     a declaration that the respondents of Igbede quarters do not belong to and are not members of Odo-oso family of Ikare.

(2)     the perpetual injunction sought by the appellants is hereby refused.

(3)     the respondents’ counter-claim is hereby stuck out.

The appropriate order as to costs in this matter, taking into account the three Courts in which this matter has been heard, is ordered by me to be as follows: (a) The order of costs in the Customary Court is hereby confirmed. (b) the order as to costs in the High Court and the Court of Appeal will be shared. I assess the total costs at N800.00; and order that the respondents pay N500.00 only to the appellants.

(c)     if the N200 costs ordered to be paid to the respondents in the High Court judgment has been paid by the appellants to the respondents, it should be refunded to the appellants.

EJIWUNMI, J.C.A. Having been privileged to have read the draft of the judgment just delivered by my learned brother UCHE OMO J.C.A., I find myself in entire agreement with the expressed views in the said judgment with regard to the merits of the appeal. I therefore adopt the judgment as my own, and also allow the appeal. In the result, the appeal having been allowed by me, 1 also abide with all the consequential orders made in the lead judgment.

EDOZIE, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Uche Omo, J.C.A., and I entirely agree with the views expressed therein. A court of trial is duty bound to adjudicate on the issues presented to it for determination and on the evidence before it and not on^, sentiment for “sentiments command no place in our judicial deliberation, for if it did, our task would be infinitely more difficult and less beneficial to the society” per Obaseki J.S.C. in Ezeugo v. Ohanyere (1978) 6 – 7 S.C., 171 at 184.

I too, will allow the appeal and make consequential orders in terms of the lead judgment.

Appeal allowed.