Chief James Nzan Okpuruwu & Ors V. Chief Kieran Jason Nzie Okpokam & Anor (1988)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A.

This appeal raises the issue whether what is referred to as “‘customary arbitration” has ever, in the true sense, been an aspect of the legal jurisprudence of this country, or can now he regarded as having a place in the administration of justice in our Courts. The judgment of Ecoma, J.,sitting at the Ikom High Court in the Cross River State, delivered on 9th December, 1987 rests to a large extent on the assumption that such customary arbitration is known and that the decisions given pursuant thereto could bind the parties like court judgments. Incidentally, both counsels in this case appears to be under that conception, having regard to some of the submissions in respect thereto.

The action arose as a result of a land dispute. The plaintiffs (now respondents) who belong to Oga Mfom/Ote Eka family say the land is situate at Okangha Nkpansi village and claim it as their family land while the defendants (now appellants) who belong to Ofuna Nzie Asuo family (a sub-family of Akarabu) say it is at Okangha Nzimowan village and also claim it as their family land. Both villages are in Ikom Local Government Area. The respondents seem to trace their cause of action to 1981 when one Nzie Eyuk allegedly broke and entered the land in dispute, cut down and removed a timber tree therefrom. He was said to have entered the land on the authority of the 2nd appellant (Nzie Oduora). On the other hand,the appellants contend that it was in 1973 that people of the respondents’ village trespassed upon the land of the appellants’ village in reaction to which the appellants’ people protested to the Divisional Officer, Ikom. While the respondents allege that the land in dispute is called EKPAKHEKPAHA, the appellants simply call it OFUNA NZIE ASUO family land. The respondents in their claim against the appellants in the High Court in Suit No.HM/5/83 sought a declaration that they are entitled to the customary right of occupancy over the land, asked for N200,000 damages for trespass and a perpetual injunction to prevent further acts of trespass. At the end of the trial and in a reserved judgment, the Court granted the declaration and perpetual injunction, and also awarded N4,000 damages for trespass with costs of N500 in favour of the respondents. The appellants have appealed to this Court against that judgment.

On the whole, six grounds of appeal were filed. They deal with (1) the reliance by the Judge on the ‘arbitration proceedings’ conducted by the Chiefs and elders of Ofutop Clan into the ownership of the land in dispute which he regarded as binding on the parties; (2) the interpretation given by the Judge to a judgment of the District Court of Nde/Nkum/Ofutop and the Magistrate’s Court judgment on appeal setting aside that judgment in connection with an alleged unauthorised felling of a tree in a certain bush; (3) the rejection by the Judge of a letter of complaint by the people of Okangha Nzimowan against an alleged trespass by people of Okangha Nkpansi into their land; (4) the failure of the Judge to evaluate the evidence before him properly and/or sufficiently; (5) the quantum of damages awarded. Accordingly, submissions were made along those lines in the briefs of argument by counsel for both parties. I shall endeavour to deal with the various issues arising as they may appear apparent from the judgment of the lower Court.

In the course of his judgment in question the Judge said inter alia:

“I think it would be appropriate to consider the issue of arbitration at this stage. Counsel on both sides seem to have addressed on this issue extensively. Counsel for the defendants had submitted that Exhibit 3 the arbitration award should be discountenanced for many reasons. Counsel for the plaintiffs, on the other hand, submitted that the arbitration is valid and binding and it is repugnant to good sense to allow the losing party to reject the decision. The issue of arbitration, arose, in the instant case, as a result of the complaint made by the defendants to the Ofutop Council of Chiefs. The question of referring the matter to the Council of Chiefs of Ofutop is reflected at paragraph 16 of the statement of defence. The defendants have not denied that they referred the issue to Ofutop Council of Chiefs…. Where therefore the arbitration was valid and binding it would be repugnant to good sense to allow the losing party to reject the decision of the arbitrators to whom they had previously agreed…. I am satisfied that in the instant case, the defendants for the purpose of having the dispute decided and having accepted to be bound by the decision which they never appealed against or challenged in the High Court, the decision would be valid and I so hold… I must say that the decision of the arbitration panel, seems to my mind to confirm that the plaintiffs were in actual and peaceable possession.”

It is clear from the above the stand the Judge took in the matter of this type of arbitration. The proceeding at the arbitration in question is said to be as stated in Exhibit 3 which was admitted at the trial. In the said exhibit it is shown that the proceeding which was conducted by Ofutop Chiefs and Elders in respect of a land dispute between Of un Nzie Asuo of Okangha (accepted to be the present appellants) and Ofun Ogar Mfom of Okangha (accepted to be the present respondents) was begun on 7 August, 1982, inspection of the land was done on 26th August, and decision given on 27th August. I should state at this point that the objection of appellants’ counsel to Exhibit 3 (the arbitration proceeding) at the trial and for which they rejected it was as to the number of Chiefs who signed or thumb-impressed the document, the interest they represented, the genuineness of the document etc, not whether arbitral arrangements of that type were known and could be binding or that they did not agree for the arbitration to be done. It need hardly be said that the respondents relied on the award made in their favour at the arbitration.

Chief Onyiuke, in his submission on behalf of the appellants in this Court said a customary arbitration is binding on the parties on three conditions: (a) voluntary submission by both parties to the arbitration, (b) prior agreement by both parties to accept the award and (c) publication of the award. He submitted further that it is the condition of prior agreement to accept the award that distinguishes a customary arbitration award stricto sensu from a mediation by third parties. He referred to Ankrah & Ors. v. Darbah (1956) 1 W.A.L.R. 89 (i.e. West African Law Reports); Gyesiwa v. Mensah (1947) W.A.C.A. cyclostyled Reports (Nov/Dec) page 45; Samuel v. Okyi(1947) W.A.C.A. cyclostyled Reports page 49, in support of his submissions. I have had no opportunity of reading them as they seem not readily available. That does not really matter as those cases did not originate from this country and, in any event, they would not make any difference to the views I intend to express.

Dr. Arikpo on behalf of the respondents submitted that the evidence shows that the parties voluntarily submitted their dispute to arbitration according to customary law and that the parties had no right to resile from the award which was binding on them. Let me say here that no custom relating to the so-called customary arbitration was pleaded by either side. By Section 14 of the Evidence Act, this should have been done. Again, this question of custom makes no difference to the views I shall express in this judgment on what is the position of ‘customary arbitration’. Dr. Arikpo referred in support of his submission to the case of Montgomery Jones & Co. and Liebenthal, In Re (1898) 38 L.T. 406 at 408 where Smith L.J. said: “I for my part have always understood the general rule to be that parties took their arbitrators for better or for worse both as to decisions of fact and decisions of law. That is clearly the law.” This observation was cited in Kobina Foli v. Oheng Akese (1930) 1 W.A.C.A. 1 at 3, a land case from the Gold Coast Colony now Ghana. Deane, C.J., of the Gold Coast Colony cited in that same case at page 2 the observation of Maule, J., in the case of Fuller v. Fenwick (1846) 16 L.J.C.P. 79. I have not been able to lay hands on this latter report but the case is also reported in 130 E.R. 282. I have compared the words of Maule, J., at page 285 with those quoted by Deane, C.J., and I find them to be somehow different although the substance is the same. Maule, J., is reported to have said (130 E.R. at page 285):

“If the case had been left to follow the ordinary course, it would have been decided, as to the facts, by a jury, and, as to the law, by the Judge, with an ultimate appeal to a court of error: The parties, for some reason, thought fit to withdraw the case from that mode of trial, and to refer the whole to an arbitrator, thinking, probably, that the facts would be more conveniently ascertained, and the law more conveniently determined by one from whose judgment there is no appeal, and that an arbitrator would, in the particular case be a better Judge of the facts than a jury, and of the law than the court. It is quite true that it is sometimes advantageous to have a matter decided by a person possessing the smallest possible knowledge of law. These considerations have, in modern times, induced the courts to deal much more liberally with awards than was formerly their practice, and, generally speaking, to hold them to be final, unless some substantial objection appear upon the face of them.”

How most inappropriate it would seem to appear when a reference of a land dispute of some intricacy is made to a Council of Chiefs or some so-called customary arbitrators without judicial function – either by the court or on the initiative of the parties – not for the purpose of a possible settlement acceptable to both sides but for issues involved to be looked into and their decision to be taken as final and binding. It seems certain that the observation of Maule, J., was cited by Deane, C.J., on the special facts of the case of Kobina Foli v. Obeng Akese (supra). There, it will be seen that a Circuit Judge of Ashanti gave judgment for the plaintiff in an action for trespass. The judgment was set aside on appeal by the Full Court of the West African Court of Appeal which, on the application and with the consent of the parties, decided that the dispute between the parties be referred to an arbitrator for settlement. To this end, Mr. Justice Hall, a Judge of the former Supreme Court (now High Court), was appointed as arbitrator who decided finally the matter in difference between the parties, namely Kobina Foli the Omanhene of Adansi and Obeng Akese the Ohene of Okyereso. It was this award made by the arbitrator that the Omanhene sought to set aside. But the West African Court of Appeal refused on the grounds that at the request of the parties the Court appointed an arbitrator and that there was nothing to show that the arbitrator went outside his term of reference in reaching a decision. This has nothing to do with, and cannot be called, customary arbitration.

The truth is that in Fuller v. Fenwick (1846) 16 L.J.C.P. 79 (136 E.R. 282) referred to in Kobina Foli v. Obeng Akese (supra), what was in issue was the covenant between a lessor and a lessee, the consequence of a breach of which was the payment of ?20. The case concerns a farming tenancy agreement in which the question arose whether in considering a breach of the covenant therein “to make yearly as good fallow, or otherwise pay ?20 per acre per annum for every acre which should be used contrary to the covenant over and above the rent reserved by the indenture, to be paid forthwith, or to be recovered by plaintiff as ascertained or liquidated damages”, an arbitrator or jury was bound to assess the damages at ?20 per acre, or only at the amount of damage actually suffered by breach of the covenant.

There was an alleged breach of the covenant and the lessor as plaintiff brought an action which the lessee as defendant resisted. By consent of the parties a Judge made an order referring the cause to an arbitrator to make an award. The order contained a clause stipulating that “in the event of either of the said parties disputing the validity of the said award so to be made and published as aforesaid, or moving the court to set the same aside, the court should have power to remit the matters thereby referred, or any or either of them, to the reconsideration of the said arbitrator.”

The arbitrator (a barrister) took evidence from the parties and heard arguments of counsel and came to an award of ?11.15 as damages for the breach. The lessor moved to set aside the award on the ground of an alleged “perverse mistake of law” on the part of the arbitrator in treating the no an acre as a penalty, instead of liquidated damages, or ascertained rent.