DOES THE PATERNAL FAMILY OF A DECEASED PERSON HAVE THE SUPERIOR RIGHT OR CLAIM TO BURY HIS CORPSE UNDER TIV CUSTOMARY LAW?

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CASE TITLE: SOOM & ORS v. JIBO & ORS (2019) LPELR-47265(CA)

JUDGMENT DATE: 12^TH APRIL, 2019 

PRACTICE AREA:  CUSTOMARY LAW

LEAD JUDGMENT: JOSEPH EYO EKANEM, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Tiv Customary Law.

FACTS

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.

Mr. Emmanuel 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 1st, 2nd and 3rd appellants contended that the deceased was sired by Koson Hur Achakpa, their paternal relation and so they had the right to bury his remains. The respondents on the other hand 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 in the Upper Area Court of Benue State holden at Sankera claiming as follows:
“(a) A declaration that THE DECEASED EMMANUEL AONDOFA is the biological son of Koson Hur Achakpa.

(b) A declaration that rather than the defendants, it is the plaintiff that have the right under Tiv native law and custom to bury and determine the place of burial of the deceased.

(c) An injunction perpetually restraining the defendants either by themselves, assign, privies or any person acting thorough any or all of them from interfering with the remains of the deceased wherever it may be and from burying the same other than in the place of choice of the plaintiffs.”

The respondent in turn filed a counter – claim against the 1st, 2nd and 3rd appellants in the following terms:

“(a) A DECLARATION that the deceased Emmanuel Aondofa is the biological son of Merbee Jibo.

(b) A DECLARATION that under the Tiv native law and practice, it is the head of the family and principal members of the family that determine the site for the burial of a deceased family member.

(c) A DECLARATION that a person at adult hood determines his paternity.

(d) A DECLARATION that paternity declared by an adult before his demise is sacrosanct.
(e) AN ORDER OF PROHIBITION perpetually restraining the plaintiffs herein from interfering in any manner whatsoever with the remains of the deceased before, during and after burial.

(f) Any other consequential order(s) that this Honourable Court may deemed necessary to make the circumstances of the case.”

At the hearing, the appellants testified through five witnesses and tendered eight exhibits which were collectively marked as Exhibit “A”. The respondents called six witnesses and tendered nine exhibits collectively marked Exhibit “B”. After taking evidence and addresses, 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. The 5th appellant was granted leave to appeal by order of Court as a person interested. The High Court dismissed the appeal for lacking in merit.

The appellants, further dissatisfied, 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.

DECISION/HELD

In the final analysis, the Court of Appeal found no merit in the appeal except in respect of the order made against the 5th appellant. The order as it affected the 5th appellant was set aside. The appeal was consequently dismissed and the judgments of the two lower Courts were affirmed except in respect of the order as it affected the 5th appellant.

RATIOS:

• CUSTOMARY LAW- NATIVE LAW AND CUSTOM: Whether the paternal family of a deceased person has the superior right or claim to bury his corpse under Tiv Customary Law
• EVIDENCE- DOCUMENTARY EVIDENCE: Position of the law as regards tendering and admission of a document through a person other than the maker of such a document
• EVIDENCE- ADMISSIBILITY AND WEIGHT OF EVIDENCE/PROBATIVE VALUE: Whether there is a difference between admitting a document and the weight to be attached to it
• EVIDENCE- ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can be used to resolve conflict in documentary evidence
• JUDGMENT AND ORDER- ORDER OF COURT: Whether the court can make an order against or in favour of a person who is not a party to a suit