Paternal family of the deceased has superior burial right under Tiv customary law

IORPUU SOOM & ORS v. TYOTER SHIMA JIBO & ORS
CITATION: (2019) LPELR-47265 (CA)

In the Court of Appeal
In the Makurdi Judicial Division
Holden at Makurdi

ON FRIDAY, 12TH APRIL, 2019
Suit No: CA/MK/157/2014

Before Their Lordships:

JUMMAI HANNATU SANKEY, JCA
ONYEKACHI AJA OTISI, JCA
JOSEPH EYO EKANEM, JCA

Between

1. IORPUU SOOM
2. BEM AWAKA HUR
3. ZAKI NYITSE APEAKIGHIR – Appellant
4. MRS. ANANEMWAM KOSON
5. PHILOMENA MSEVER KOSON

And
1. TYOTER SHIMA JIBO
2. TWAR ANZA JIBO
3. KAW KAAIOR JIBO
4. SAAMBE GBERTYO JIBO – Respondent

LEAD JUDGMENT DELIVERED BY JOSEPH EYO EKANEM, J.C.A.
FACTS OF THE CASE
This is an appeal against the decision of the High Court of Justice, Benue State, holden at Sankera, which upheld the decision of the Upper Area Court of Benue State holden at Sankera.

The facts of the case is that Aondofa Akoson (also known as Emmanuel Aondofa Merbee Jibo) died sometime in August 2013, in a hospital in Abuja and his body was deposited somewhere in Abuja. A dispute arose between the appellants and the respondents as to who is entitled to bury the body of the deceased and determine where he should be buried. The appellants took out a writ of summons against the respondents claiming certain reliefs. They contended that the deceased was sired by Koson Hur Achakpa, their paternal relation and so they had the right to bury his remains.

The respondent in turn filed a counter – claim against the appellants claiming various reliefs. The respondents contended that the deceased was the biological son of Merbee Jibo, their paternal relation and as such they had the right to bury his corpse. The common ground between the parties was that the 4th appellant is the mother of the deceased.

The 1st, 2nd and 3rd appellants took out a writ of summons against the respondents at the Upper Area Court of Benue State holden at Sankera (the trial Court). At the hearing, the parties called their witnesses, gave evidence and tendered exhibits. The trial Court dismissed the case of the appellants and granted the counter – claim. Aggrieved by the decision, the appellants appealed to the High Court of Justice, Benue State, holden at Sankera where the 5th appellant was granted leave to appeal by order of Court as a person interested.

The Court dismissed the appeal for lacking in merit. Still not satisfied, the appellants have further appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal based on the following issues for determination:
1. Whether the respondents proved any principle of law or custom which entitled them to bury the deceased as against the appellants who are the relations of the deceased and in whose custody he died and whether in upholding the decision of the Upper Area Court, the learned justices of the High Court took into account the provisions of Section 12 Burials Law Cap. 23, Laws of Benue State, 2004.

2. Whether the Justices of the High Court were right in holding that there was sufficient oral evidence to determine the case in favour of the respondent without recourse to documentary exhibits tendered by the parties and whether the Court considered the admissibility of the documents on which it placed reliance to find for the respondents.

3. Whether the High Court properly evaluated the totality of the evidence tendered by the parties dispassionately before upholding the judgment of the trial Court entered in favour of the respondents.

4. Whether the High Court was right in upholding the judgment of the trial Court which made a case for the respondents other than which they made themselves and made others (sic; orders) against non parties in the action and whether this did not occasion a miscarriage of justice.

APPELLANT’S COUNSEL SUBMISSIONS
On issues one, the Appellant submitted that no defence witness testified as to the custom of Tiv people regarding burial and as to why the respondents, as the paternal relations of the deceased, had superior claim to his remains as against the 4th and 5th appellants. That the trial Court did not make any finding on the customary law of Tiv people regarding the burial of dead bodies to oust the right conferred on appellants by statute. That the High Court erred in upholding the finding of the trial Court that the fact that a person is a biological son of another automatically entitles that person to the relief sought without stating under what principle of law or statute the person is entitled to the relief. Reliance was placed on Section 2 and 12 of the Burials Law Cap. 23 Laws of Benue State 2004.

On issues two and three, the appellant submitted that the High Court was wrong to have held that there was enough oral evidence to decide the case without the documentary evidence and employed oral evidence to discredit one of the documents – the National Identity Card showing the birth of the deceased to have been in 1969.

On issues four, Appellant submitted that the High Court erred in holding that the order made by the trial court against the 5th appellant who was not a party at the trial court was justified. He submitted that the High Court has no power to make an order against a person who is not a party to a suit. It was his position that a Court cannot give judgment against a party to a suit and then make a consequential order against a person who is not a party.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the Respondents submitted that that they proved the customary law of Tiv people as to burial through the evidence of DW1, the District Head of Tsaav. He further stated that the Burials Law imposes a duty on the relatives of the deceased person, in the absence of executors, to bury his body; that since the respondents are the relatives of the deceased and there is evidence that the Jibo family have a custom of burying their relations at the Jibo family house, the High Court properly acted in accordance with the Burials Law of Benue State.

On issue two and three, the respondents submitted that the documents, Exhibits A and B, were contradictory; whereas Exhibit A series tended to prove that the deceased was the child of Koson, Exhibit B proved that the deceased was a child of Jibo and this was why the Court had to x–ray oral evidence to see where the scale of justice tilted.

On issues four, Respondents submitted that since the 4th appellant (the mother of the 5th appellant) was a party to the suit and the 5th appellant testified at the trial, the Court was right to have made an order against her. He asserted that the body of the deceased was in the custody of the 4th and 5th appellants and so the order on them to release the body was a consequential order.

RESOLUTION OF ISSUES
In resolving issue one, the Court held that the need to lead evidence to prove the relevant Tiv native law and custom did not arise because the parties were id idem regarding burial under the law, that the paternal relations of the deceased have the upper hand in the burial of his body. Also, that the trial Court being the Upper Area Court, a customary Court by nature, the sole Judge is presumed to have Tiv native law and custom in his bossom and so the need for evidence did not arise.

The Court resolved the Appellants contention that the 4th appellant and 5th appellant are entitled to bury the body of the deceased along side Section 2 and 12(1) of the Burials Law of Benue State and held that the definition of the word “relative” in Section 2 of the law to include connection by marriage does not set aside the Tiv native law and custom that the paternal family of the deceased had the superior right or claim to bury his corpse as between his relatives. This issue was resolved against the appellants.

Resolving issue two and three, the Court held that the High Court did not outrightly deprecate the use to which the trial Court put the exhibits before it. Rather, it was of the opinion that there was enough oral evidence to resolve the contention before the trial court especially as the documentary evidence was in conflict. That it was inaccurate for the High Court to hold that the National Identity Card was of doubtful provenance. This is because there was no contest that it was the deceased’s National Identity Card issued by the National Identity Management Commission.

However, because the National Identity Card was not tendered through an official of the NIMC, weight can hardly be attached to it and it is immaterial that the document was admitted without objection.

The Court agreed with the High Court that there was enough oral evidence to decide the issue of the paternity of the deceased because there were inconsistencies in the testimony of the 4th appellant and mother of the deceased.

Resolving issue four, the Court held that a Court of law has no power to make an order or give a judgment against a non – party to a suit. Such an order is not only wrong but is also a nullity. This is because giving judgment or an order against a non – party to a suit is a breach of his fundamental right to fair hearing. The Court held that it is of no moment that the 5th appellant testified at the trial, as there is a difference between a party and a witness.

The Court stated that the Upper Area Court is bound by the rules of natural Justice, which apply to all authorities. As to the 5th appellant being heir of the 4th appellant, the Court relied on the meaning of “decedent” under the Black’s Law Dictionary 8th Ed to hold that, so long as the 4th appellant is still alive, the idea of giving judgment against the 5th appellant as heir of the 4th appellant does not arise. This issue was resolved in favour of the appellants.

HELD
In conclusion, the Court found no merit in the appeal and dismissed it. The judgments of the two lower Courts were affirmed except in respect of the order as it affected the 5th appellant.

Appearances:
E.N. Tsobaza, Esq. -For Appellant(s)
F.N.Z. Uwar, Esq. -For Respondent(s)
Compiled by LawPavilion