Abel Ogbogwu V. Eije Aigbo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A.(Delivering the Leading Judgment)

The present appeal emanates from the judgment of the Benue State Customary Court of Appeal, sitting in Makurdi, Benue State in Appeal No. CCA/M/20A/2005 dated the 25th day of June, 2007 , wherein the appeal of the present appellant against the judgment of Grade 1 Area Court, Otukpo, Benue State in suit No. CV/49/2002 dated the 29th day of April, 2002 was dismissed and the judgment of the trial court affirmed.

The brief facts leading to this appeal are as follows: The original plaintiff in this case was Ochai Agada now late was substituted with the present respondent vide an order of this court. The said original plaintiff at the trial Grade 1 Area Court, Otukpo sued the present appellant as defendant seeking the following relief:-

“A Declaration to a piece of land and economic trees and also injunction to further development in the land.”

The case proceeded to trial before Grade 1 Area Court. Both parties gave evidence and called witnesses. At the close of the case of the parties, the trial Grade 1 Area, Court Otukpo proceeded to the Locus in quo. See the report of the visit at pages 39-44 of the record of proceedings. Counsel on both sides submitted written addresses as ordered by the trial court. In a considered judgment dated the 24th day of April, 2005, the trial Grade 1 Area Court, Otukpo entered judgment in favour of the respondent and against the appellant.

The appellant aggrieved by the judgment of the trial Area Court, appealed to the lower court upon a Notice of Appeal containing 9(nine) grounds of appeal. The appeal was heard and the lower court in a considered judgment dismissed the appeal on all the issues canvassed and affirmed the judgment of the trial court. It is against this judgment of the lower court that the appellant has now appealed to this court vide his Notice of Appeal dated the 2nd day of July 2007 but filed on 3/7/2007, containing four (4) grounds of appeal. See pages 122 -124 of the record.

In line with the practice of this court parties exchanged briefs of argument. The appellant’s brief settled by Chief S.O Agbo Esq was filed on 19-05-201 1. While respondent’s brief settled by P.A Omengala Esq was filed on 28-02-13. When the appeal came up for hearing both council adopted their respective briefs of argument. Appellant’s counsel urged the court to allow the appeal. While respondents’ counsel urged the court to dismiss the appeal.

Appellant formulated four issues for determination as follows:

1. Whether the decision of the court below that the appellant failed to establish/prove customary arbitration between the parties over the disputed land after making a finding of fact that the validity of said traditional arbitration is not even in doubt is legally justified and or correct? Ground 1 of the Notice of Appeal.
2. Whether the court below was justified to have affirmed the decision of the lower court that the respondent proves his claim of title to land as required by the customary law of Ugboju people? Ground 2 of the Notice of Appeal.
3. Whether the court below was right when it dismissed the appeal of the appellant, stating particularly that appellant could not use more than one method of proving title to land in one particular case, having 1st and foremost relied on traditional evidence to prove his case? Ground 3 of the Notice of Appeal.
4. Whether the court below was right when it held relative to be identify of the disputed land(sic) that it was not in doubt as both parties know the land very well and thus dismissing the appeal thereupon. Ground 4 of the Notice of Appeal.

Respondent also distilled four issues for determination thus:-

1. Whether the decision of the court below that the appellant failed to establish/prove customary arbitration between the parties over the disputed land after making a finding of fact that the validity of the said traditional arbitration is not even legally justified and or correct? Ground 1 of the Notice of Appeal.
2. Whether the court below was justified to have affirmed the decision of the lower court that the respondent proved his claim to title to land as required by the customary law of Ugboju people? Ground 2 of the Notice of Appeal.
3. Whether the court below was right when it dismissed the appeal of the appellant, stating particularly that the appellant could not use more than one method of proving title to land in one particular case, having 1st and foremost relied on traditional evidence to prove his case? Ground 3 of the Notice of Appeal.
4. Whether the court below was right when it held relative to the identity of the disputed land that it was not in doubt as both parties know the land very well and thus dismissing the appeal thereon? Ground 4 of the Notice of Appeal.”

Respondent noted that he adopted the issues formulated by the appellant for the argument of this appeal.

The issues formulated by the appellant are apt as such I will adopt same in the determination of this appeal.

ISSUE NO 1

The contention of the appellant under issue 1 is that the court below erred in law when after stating the correct position of the law that there was valid traditional arbitration went ahead to state that the trial court was right to have held that it was inconclusive, thus occasioning grave miscarriage of justice. That a valid defence/plea of customary arbitration leads to estoppel. Reliance was Placed on Awosile V. Sotunbo (1992) 6 SCNJ 182 at 200 -202. Learned counsel submitted that the court below fell into the error of accepting the perverse finding of the lower court that there are contradictions in the evidence of DW3, hence was not a credible witness.

It was argued that there is nowhere in the proceeding that it was indicated that a secretary was appointed and reduced the proceedings into writing. There was also nowhere it was shown that the elders were illiterates and saw the need to put the proceedings in black and white. There is also nowhere on the record that either party to the arbitration could no longer believe the spokesmen on the issue of arbitration. Reference was made to the evidence of DW3 on the issue of customary arbitration set out on pages 29-31 as from lines 27 of page zg and page 30 line 36 and page 31 lines 1-10 of the record.