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.

The Court declined to set aside the award and it was in that connection Maule, J., made his observation already quoted above. Wilde, C.J., also at page 285 said inter alia:

“The question has also been discussed in cases where some point of law has suddenly arisen in the course of the inquiry, and where, though the matter was present to the mind of the arbitrator, but little time was afforded for consideration… The question, therefore, is, whether we can, from what appears on the face of this award, come to the conclusion that the arbitrator has decided this case in violation of some known principle of law… There is nothing on the face of the award to show that he has done wrong… (the parties) having obtained the decision of the tribunal which they themselves have chosen, they have but little ground of complaint if its judgment should happen to be erroneous.”

That type of arbitration is quite understandable. The same can be said of the Montgomery case in which what was involved was a contract which contained a clause providing for arbitration. It is the usual arbitration clause which parties sometimes insert in their business agreements or such other agreements relating to tenancies and leases, or which may arise by operation of statute to settle such disputes concerning labour and union matters.

In the Montgomery case the contract arbitration clause read as follows:

“All disputes from time to time arising out of this contract including any question of law appearing in the proceedings, whether arising between the parties hereto, or between one of the parties hereto and the trustee in bankruptcy of the other party, shall be referred to arbitration, according to the rule endorsed on this contract, and this stipulation may be made a rule of any of the divisions of Her Majesty’s High Court of Justice in Ireland, on the application of either contracting party, for the purpose of enforcing an award against a party residing or carrying on business in Ireland. Neither buyer, seller, trustee in bankruptcy, nor any other person claiming under either of them, shall bring any action against the other of them in respect of any such dispute until such dispute has been settled by arbitrators, or by the committee of appeal, as the case may be, and it is expressly agreed that the obtaining of an award from either tribunal, as the case may be, shall be a condition precedent to the right of either contracting party to sue the other in respect of any claim arising out of this contract. Neither buyer, seller, trustee in bankruptcy, nor any other person as afore-said, shall require, any arbitrator or the committee of appeal, to state in the form of a special case for the opinion of the court, any question of law arising in the course of the reference, but such questions of law shall be determined by arbitration in manner herein directed, any provisions to the contrary in the Arbitration Act 1889, notwithstanding.”

The notion of arbitration under customary law seems to have been introduced in a few cases from the former Gold Coast. This can be gleaned from the case of Larbi & Anor v. Kwasi & Ors. (1950) 13 W.A.C.A. 81. There, it was contended by counsel for the respondents that the award was not binding under native customary law because when the arbitrators (a panel of Elders) went to inspect the land in dispute, the defendants refused to point out their boundaries and withdrew from the proceedings. Blackall, P., who presided at the West African Court of Appeal said inter alia at page 82:

“It was contended, however,by Mr. Akufo-Addo for the respondents that the award was not binding under native customary law because at a certain stage, i.e. when the arbitrators went to inspect the land, the defendants refused to point out their boundaries and withdrew from the proceedings. Now, the general principle governing arbitrations is well known, and it is set out, inter alia, in the case of Omanhene Kobina Foli v. Ohene Obeng Akese 1 W.A.C.A. 1. In that case Deane, C.J., said:

‘…. in submission to arbitration the general rule is that as the parties choose their own arbitrator to be the Judge in the disputes between them, they cannot when the award is good on its face, object to his decision, either upon the law or the facts.’

I might also refer to the case of Ekua Ayafie v. Kwamina Eanyea, Sarbah’s Fanti Law Reports, 2nd Edition, where it was held that where matters in difference between two parties are investigated at a meeting, and in accordance with customary and general usage, a decision is given, it is binding on the parties and the Supreme Court (which is now the High Court) will enforce such decision. In that case Bailey, C.J., said:

‘…. after the arbitration was concluded, defendant objected to the award, because it was against him. The plaintiff, no doubt, would have objected had the award been but this way.’

But notwithstanding that objection the Court held the award was a good one. Mr. Akufo-Addo suggests that this case is distinguishable from the present one because the Fanti Law does not exactly agree in detail with Akan Law. That is no doubt true, but the general principles of native customary law are based on reason and good sense and it would take a lot to convince me that Akan customary law is so repugnant to good sense as to allow the losing party to reject the decision of arbitrators to whom he had previously agreed.”

(Brackets and words inserted added by me).

It is beyond argument from the above that general principles governing arbitration were made to apply to litigations in respect of which those principles were never intended. In doing so, unwarranted reference was made to ‘native customary law’ as if under such a law, elders or natives could constitute ‘customary arbitration’ to decide land or other disputes to bind the disputants. In my view, this is untenable. What I have just said is, of course, subject to what is prescribed under the relevant customary law and/or statute in Ghana in this regard. But I have decided to go into this matter at some length so that the erroneous notion of the so-called customary arbitration may not be allowed to mislead disputing parties here.

This I think has some support from the observations made in the said Larbi & Anor v. Kwasi & Anor. (supra) when it went on appeal to the Privy Council sub nom Opanin Asong Kwasi & Ors. v. Joseph Richard Obuadabang Larbi (1952) 13 W.A.C.A. 76. At page 78, Lord Normand delivering the judgment of the Privy Council said:

“The appellants’ submission to their Lordships is that the court had erred (i.e. in holding that the arbitration was valid and binding) and the submission was supported on alternative grounds (a) that the so-called arbitration was not an arbitration as understood in British jurisprudence but merely an attempt to arrive at a settlement agreed by the parties with the aid and active intervention of the Elders; (b) that even if the proceedings were of the nature of arbitration and not of negotiations yet either party was entitled to resile at least till the date when the award is made. These matters are, it is agreed, questions of native customary law. It is therefore embarrassing to find that while Native Court ‘B’ decided in favour of the respondent this decision was reversed by the Native Appeal Court. Had the two courts agreed their Lordships would have been disposed to accept their ruling as an authoritative application of native customary law, which ought not to be overruled except for clear and convincing reasons. As it is, their Lordships must decide the disputed issues upon the material available in the case before them, without laying down general propositions as to native customary law, which might not consist with the results of a fuller enquiry than the scanty material in this case allows.” (Emphasis mine).

Later in the judgment at page 79, he said:

“Their Lordships agree with the finding of the Court of Appeal that the proceedings before the Elders were of the nature of an arbitration and not merely a negotiation for a settlement. The reasons can be briefly stated. The suggestion that the case should be brought before the Elders came, not from the parties themselves, but from the representatives of the Odikro, and the parties gave their consent. In native customary law the Elders have a recognised judicial function and are ill fact a tribunal before which natives call bring their disputes for judicial decision. (Danquah, Akan Laws and Customs, pp. 83 ff.)

It seems to their Lordships improbable that the intervention of the Odikro and the Elders was for the purpose of aiding a settlement by negotiation rather than for the purpose of discharging a judicial function in the form of all arbitration.” (Emphasis mine)

It must be clear at this point (1) that the cases which originated from Ghana on the issue of arbitration by Elders stand in a unique class; (2) that the cases so far referred to on it culminating in the above Privy Council case are on the basis that such Elders are a special people who perform recognized judicial function; (3) that such judicial function would have derived from Akan Laws and Customs; (4) that it must create a debacle to introduce such a customary arbitration of such character into a judicial system or a jurisprudence of a people which by its set up and practice cannot assimilate or accommodate it.

To talk of customary arbitration (having a binding force as a judgment) in this country is therefore somewhat a misnomer and certainly a misconception. Of course, to say that a decision by such a body creates res judicata is erroneous. The case of Divisional Court at Cape Coast held that the unrecorded decision of a body of persons appointed some 35 years earlier by two Paramount Chiefs to adjudicate upon a dispute about the ownership of the land in dispute did not create an estoppel by way of res judicata. The West African Court of Appeal held on appeal that such a decision, though never recorded in writing and though the body of persons so appointed could not and did create estoppel by way of res judicata on proof that it was pronounced as alleged and that it affected the predecessors in title of the plaintiff and the fourth defendant (in that particular litigation).

I have already said that in this country that decision cannot be right in law.

There cannot be an issue of estoppels per rem judicatam unless the judgment in question is that of a duly constituted body vested with judicial authority: see Anjoku & Anor v. Nnamani (1953) 14 W.A.C.A. 375; Nwabia v. Adiri & Ors. (1958) 3 F.S.C. 112; Oyelade v. Areoye & Anor. (1967) 1 All N.L.R. 321; Joe Iga & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1; Nkanu & Ors. v. Onun & Ors (1977) 5 S.C. 13; Ekpoke & Anor v. Usilo & Ors. (1978) 6 & 7 S.C. 187. Indeed the decision of the Federal Supreme Court in Inyang & Anor v. Essien & Anor (1957) 2 F.S.C. 39 does not support Assampong v. Amuaku & Ors. (supra). It also lays to rest the status of what the Ofutop Chiefs and Elders purported to do in the present case before this Court.

In that case of Inyang v. Essien, the facts were that the plaintiffs/appellants took action against the defendants/respondents in the Native Court for a declaration of title. At the instance of the defendants/respondents, the action was taken out of court for settlement by the Iman Council which was not a Native Court nor did it have power to make a binding order. The decision of the Council was rejected by the plaintiffs/appellants as a result of which an action was instituted. At the close of the case in the former Supreme Court (now High Court), the trial Judge held that the matter was res judicata having been heard and settled by the Iman Council. But the Federal Supreme Court held on appeal that the decision of the Iman Council had no legal effect and could not constitute res judicata. This decision is binding upon this Court and I think represents the law on this issue in this country.

There is a case to which I should draw attention in this regard decided by the Federal Supreme Court. It is Ozo Ezejiofor Oline & Ors. v. Jacob Obodo & Ors. (1958) 3 F.S.C. 84. In that case the parties jointly executed a lease of a piece of land in favour of the Eastern Region Production Development Board. A dispute arose between the said parties and they submitted their dispute to arbitration by the Assistant District Officer who, after viewing the land and hearing evidence delivered his award orally on the spot. He afterwards reduced it into writing. This was a simple arbitration to determine how the parties would share the rent from the joint lease. This was not an unusual arbitration even by English practice. There was an action in Court later by one of the parties claiming sole ownership of the land against the other in which the arbitration award came up for consideration. Without saying which customary law in Nigeria recognised arbitration under native law and custom, Quashie-Idun, Ag. F.J. who delivered the judgment of the Court relied on Kwasi & Ors. v. Larbi (supra) to say that the Privy Council held that where the parties submitted their dispute for settlement by arbitration in accordance with Native Customary Law and one of the parties withdrew from the arbitration before it was completed the award of the arbitration was nevertheless binding on all the parties. That observation by Quashie-Idun, Ag. F.J. was, in my view, clearly obiter as the case was decided on its facts and had nothing at all to do with the validity of the arbitration, not to talk of arbitration based on any particular native law and custom. With due respect, I think that Mr. Justice Quashie-Idun must have easily been influenced by the Akan Laws and Customs well known to him which apply in Ghana having regard to his background.

I do not know of any community in Nigeria which regards the settlement by arbitration between disputing parties as part of its native law and custom. It may be that in practical life when there is a dispute in any community, the parties involved may sometimes decide to refer it to a third disinterested party for settlement. That seems more of a common device for  peace and good neighbourliness rather than a feature of native law and custom, unless there is any unknown to me which carries with it ‘judicial function’ or authority as in Akan Laws and Customs. I do not also know how such a custom, if any, or more correctly such practice, to get a third party to intervene and decide a dispute can elevate any such decision to the status of a judgment with a binding force and yet fit it into our judicial system. Admittedly, there can be arbitration in the loose sense of the word here in Nigeria quite apart from that recognised under various statutes to look into parties’ disputes. In Ekeke Okpata & Anor v. Chief Ekem Oba & Anor. F.S.C. 201/1959 (unreported) delivered by the Federal Supreme Court on 18 March 1960, arbitrators had demarcated boundary between Izzi-Abakaliki and Osopong-Obubra in 1910. In 1920, an administrative boundary followed that boundary of 1910. The two sides accepted that boundary and acted on it for many years before dispute arose. It was held that that boundary settled the ownership of land on either side. This was not because the decision of the arbitrators was res judicata or ipso facto binding but because the parties had accepted and acted on that arbitral decision, and it was too late in the circumstances for either party to go back on it.

There have been some decisions of court of first instance in this part of the country tending to regard the term ‘customary arbitration’ or sometimes customary law arbitration’ as deriving from accepted native approach to deciding matters in dispute without as much considering from where and how it originated as a mode of judicial system.

I think those cases simply misapplied a misunderstood concept in mistaken circumstances. I think also that some of them can be seen to give an uncertain impression about the so-called customary arbitration or customary law arbitration as it appears to be the case in Ofomata & Anor. v. Anoka & Anor. (1974) 4 E.C.S.L.R. 251. I say by way of emphasis that we have no equivalent of Akan Laws and Customs in this country under which Elders of the same description in Ghana’s circumstances perform recognised judicial functions consistent with our judicial system. Those Elders under Akan Laws and Customs seem to exercise authority to have binding effect in the same status as did our old native authority courts presided over by traditional rulers and chiefs in some parts of Nigeria with appeals going to District Officers’ Courts and Residents’ Courts. In that capacity, matters in difference by way of arbitral ion could be undertaken by them or referred to them to have them decided in accordance with their local customs. That to me is the nearest and most probable comparison.

The only possible effect therefore, in my view, such a decision by a non-judicial body might have if the parties consented to it is that one of them will not be permitted to withdraw from it to the prejudice of the other. That of course means the other party must have been induced to act on it on the understanding that he could do so and that he did so act to his detriment. In that case what may be called the equitable doctrine of estoppel or probably estoppels by conduct is what could operate as a defence. Such eventuality seems, in my view, to be fairly similar to what was said in Lasupo Akanni & Ors. v. Adedeji Makanju & Ors. (1978) 11 & 12 S.C. 13 at 26 that if a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot question the legality of the act he had so sanctioned 10 the prejudice of those who have given faith to his word. This is by no means estoppel per rem judicatam. The doctrine of equitable estoppel or estoppel by conduct does not by any means apply to the present case before this Court.

I therefore hold that Exhibit 3 relied on by the respondents is no decision of any body duly vested with authority that can bind the appellants. It serves no purpose in the circumstances of this case. It was no more than a mere, although an elaborate, attempt at effecting settlement between the parties. But nothing was achieved. If the evidential value was limited to what it tried to achieve its purport would not have called for much comment. I also hold that there is no concept known as customary or native arbitration in our jurisprudence. Even if there had ever been such (which I do not accept), it would have had no place under the 1979 Constitution which vests judicial powers in the judiciary under section 6. As regards the constitutional provision on judicial powers, section 6(1) of the 1979 Constitution says that “The judicial powers of the Federation shall be vested in the courts to which this section relates being courts established for the Federation.” Subsection (5) sets out the courts that are so vested with judicial power. The provision of subsection (1) quo led above may be compared with that of section 71 of the Commonwealth of Australian Constitution which declares that “the judicial powers of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction.”

In considering the effect of that section in the case of Waterside Workers’ Federation of Australia v. J.W. Alexander Ltd (1918) 25 C.L.R. 434, Griffith, C.J., said at page 442, though in a situation different from the present one:

“It is impossible under the Constitution to confer such functions upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective.”

That is the same result created by section 6(1) of the 1979 Constitution. The judicial powers so vested shall, by section 6(6)(b), “extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

That is why, to concede to a non-judicial body not recognised by Law the right to decide matters of this type now before this Court or any justiciable matter and say its decision is binding or constitutes res judicata is completely ineffective. It is incongruous, in any case, with our modern legal system. Any question of arbitration can only apply, in regard lathe Cross River State from where this appeal came, to the extent and in the manner permitted under the Arbitration Law (Cap. 12) Laws of the Cross River State, or the Rules of Court or as the parties may prescribe for settling matters in difference arising from arrangements entered into by them or from the special relationship in which they may find themselves which in any event may finally be subject to determination by the Courts when the parties cannot agree on the award, or whose proceedings may be subject to the supervision of the Court. It cannot apply to a matter of this nature now before this Court. What can happen at best is settlement out of court which the parties may eventually make a judgment of the court to give it binding force.

Still on this so-called customary or native arbitration carried out by Ofutop Chiefs and Elders, I cannot end my comments until I draw attention to two serious errors committed by them in the course of their proceeding or which appear on the face of the document, exhibit 3. I do this only to show that were it to be taken that what they did was a recognised arbitration, it offended even the known general principles. First, it is observed in exhibit 3 that the Chiefs and Elders at a stage in the proceeding sent a delegation (among whom apparently were some of their members) to go on inspection of the land. The delegation reported its finding to the Chiefs. It was after receiving this report that the Chiefs went out for a short break. They later came back to announce their decision in line with the report of the delegation that the land in dispute belonged to the respondents.

Surely this was a fundamental irregularity whereby the Chiefs relied on the hearsay report of the delegation to come to a decision. The decision was really not that of those Chiefs and Elders who undertook to carry out an arbitration but that of those they delegated. That could hardly have passed for a binding arbitration award because “some substantial objection” to use the words of Maule, J., in Fuller v. Fenwick (supra) appears upon the face of it. Or, should I say, would it not have been open to me to say with sufficient justification that I can, “from what appears on the face of this award, come to the conclusion that the arbitrator has decided this case in violation of some known principle of law” to use the words of Wilde, C.J., also in Fuller v. Fenwick? I think it would.

The law has long been settled on the matter of delegation of powers by an arbitrator. It was laid down in Lingwood v. Eade (1742) 2 Atk 501 at 504 that an arbitrator may not delegate to another the powers which by the agreement of reference the parties have conferred on him. Where the reference is to several arbitrators (as in this case before this court) they may not even delegate their powers to one another; see Little v. Newton (1841) 10 L.J.C.P. 88; Whitmore v. Smith (1861) 5 L.T. 618; Eads v. Williams (1843-60) All E.R. Rep. 917. The trial Judge was therefore in error, in any event, to have relied on Exhibit 3 as he did.

Secondly, the decision of the Chiefs and Elders was purportedly delivered or made public on 27 August 1982. Most of the signatories to it are illiterates. Some columns for signatures or thumb-impressions were apparently improvised, God knows when. But even more curious is that the contents of the verdict, or “‘reconciliation decision” as the Secretary to the Ofutop Chiefs Council calls it, were purportedly read over and interpreted to the illiterate Chiefs and Elders on 30 August 1982 (could be in fact 30 August 1983 as 83 was obviously changed or manipulated to read 82). The clear impression is that the decision was never read and explained to the illiterate Chiefs and Elders who are in majority nor can they indeed be said to have subscribed to it having regard to the implied insincerity of the Secretary. When he gave evidence as p.w.3 and later as d.w.4, he proffered no explanation why the decision contained in Exhibit 3 was not interpreted to the illiterate Chiefs and Elders on the day it was given or made public. The appellants complain of these irregularities in their ground 1 of appeal and submission.

The Judge also made it clear in his judgment that he “placed reliance on the testimonies of p.w.4 and p.w.5” This is the subject of complaint in another ground of appeal. As regards p.w.4, Elder Ayan Amum, the Judge said:

“In order to add to their claim for ownership and possession the plaintiffs called some witnesses with whom they are sharing a common boundary. One of their witnesses testified as p.w.4. He testified that if one stands at the boundary lying between his land and that of the plaintiffs, his land is on the right hand side whereas that of the plaintiff is on the left. He did not say he had boundary between the parties. He further testified that the land in dispute belongs to the plaintiffs. Under cross-examination, p.w.4 said –

‘Ayang Akung is my half brother, Ayang Akung is living in that bush and farms there.’

He said Ayang Akung farms on the southern part of their land while he farms on the northern part of the land. I rather feel inclined to believe the testimony of p.w.4 since his evidence has remained uncontroverted. No attempt was made by the defendants to call Ayang Akung as a witness to refute, if need be, what p.w.4 said.” (Emphasis mine).

It is quite amazing what the Judge tried to make of p.w.4’s evidence. In the first place, it is not correct that the witness did not say he had boundary between the parties as the Judge put it. In his short evidence-in-chief, the witness, said: “I know the parties in this suit. They live apart. I share boundaries between the two parties. The plaintiffs have the land to my left – by the right is my own land. The old men were farming on the land and right now the plaintiffs are farming there. The old men came from Ekangha Nkpansi. At the time I used to farm there I did not see anyone from the defendant’s village farm there.” Secondly, there is nothing in this evidence to show that the witness was talking about the land in dispute.

Thirdly, the aspect of the evidence that the old men from Okangha Nkpansi were farming there and that right now the plaintiffs (respondents) farm there is a complete negation of the respondents’ claim that the land in dispute was deforested by their ancestor called Oga Mfom. This is even more so when it is remembered that the respondents claim the land in dispute as their family property i.e. Oga Mfom/Ote Eka family. When therefore the evidence of p.w.1 (Kerian Jason Nzie Okpokam) in cross-examination that “The land in dispute is co-terminous with the land of Okangha Nkpansi” is recalled, then it would appear that it is the Okangha Nkpansi village communal land that the respondents are claiming as theirs. This probably explains why p.w.4 said that the old men from Okangha Nkpansi were farming on the land where the respondents now farm.

Fourthly, the Judge seemed not to have realised on whom the burden lies when he said that the appellants made no attempt to call Ayang Akung, the half brother of p.w.4 and who was mentioned by p.w.4 himself in his evidence, to refute the evidence that the said Ayang Akung farms on part of the land. I cannot understand the logic of this but I can say this that, since the respondents were trying to make their case through p.w.4 and he said in evidence that his own half brother was farming “on that land” (presumably Okangha Nkpansi bush), the burden was on the respondents to call the said person to testify, if need be, for what it is worth. It was certainly not for the appellants to do so. Fifthly, the full evidence of p.w.4, both in chief and in cross-examination, has not shown upon a careful reading any act of possession or ownership of the land in dispute in favour of the respondents as the Judge, with due respect, unjustifiably thought and held.

The other witness on whose evidence the Judge heavily relied is p.w.5, Abi Eyam. Of him the Judge said:

“The other witness called by the plaintiffs was p.w.5. He testified that the plaintiffs are the owners of the land in dispute. He said he has a plantation and a farm near to the land in dispute. This aspect of his testimony was confirmed under cross-examination by D.W.1 when he said that p.w.5 has a land near to the land in dispute. P.W.5 denied ever seeing the defendants farm on the land in dispute.”

With due respect to the Judge, I do not know where he got some of his facts from. The witness did not say (1) that the plaintiffs are the owners of the land in dispute; (2) anything to suggest ever denying seeing the defendants farm on the land in dispute; (3) that he has a plantation near the land in dispute.

The full evidence of the said p.w.5 in chief and in cross-examination is very short. I shall quote it. First, the evidence-in-chief:

“I live at Okangha Nkpansi. I am a farmer. I know the parties in this case. I also know the land in dispute. I own land near the land in dispute. The land of the plaintiffs is on my left. When I grew up I first saw the plaintiffs farm on the land. I have kolanut trees there.”

The cross-examination then goes as follows:

“I am also known as Abi Eyam. My farm is near the land in dispute. The plaintiff and I drink from the same stream. My grand mother is Oyem Ekok. I live at Njim Owot when I was small but when I grew up my father took me to Nkpansi. I know Mr. Ajom Eyom. He had married my mother. When I was young I lived with him. At that time I was too small as to own a farm. I cannot tell where my step father used to farm because I was too small. I have my farm and kola trees near the land in dispute.”

In view of the state of this witness’s evidence as reproduced above, no further comments are really necessary except to point out that (a) the fact that the witness claims to have kolanut trees near the land in dispute does not mean he says he has a plantation; two or three kolanut trees, for instance, cannot be regarded as a plantation; (b) the witness never said that the respondents farm on the land in dispute and that cannot be implied from what he said, namely: (i) “I own land near the land in dispute. The land of the plaintiffs is on my left.” (ii) “My farm is near the land in dispute. The plaintiff and I drink from the same stream”; (c) there is nothing to show any act of possession by the respondents on the land in dispute; (d) it appears, with due respect, that the Judge did not seriously commit himself to reading the notes of evidence as recorded by him in order to refresh his memory.

Another error committed by the Judge which the appellants complain of was the use he made of a judgment of the Nde/Nkum/Ofutop District Court in Suit No.29/81 delivered on 6 May 1981 (exhibit 5) which judgment was set aside on appeal by the Chief Magistrate’s Court Ikom in Appeal No.IKM/4A/81 on 8 December., 1981 (exhibit 6). The action was between one Eyam Asuo (as plaintiff) and Eyuk Nzie Ogonyi (as defendant). It is in respect of an alleged trespass into the “plaintiffs bush at Okangha Nkpansi on 12/4/81” by the defendant and a timber tree said to have been felled therein.

There was nothing to show a connection between that bush and the present land in dispute. The parties there are not the same as in the present case in law and in fact. Those parties fought the case in their personal capacities and although their names appear in the present case, they join others in representative capacities. Therefore, the present parties can never be regarded, even remotely, as the parties in Suit No.29/81. All three factors mentioned above must exist together before there can be estoppel per rem judicatam. There is a long line of authorities in support of this principle of law: see Overton v. Harvey 137 E.R. 918 at 923; Leggott v. Great Northern Railway Co. (1876) 1 Q.B. 599 at 604 – 607; Poulton v. Adjustable Cover and Boiler (1908) 2 Ch. 430 at 440; Marginson v. Blackburn Borough Council (1939) 1 All E.R. 273 at 278; Idowu Alase & Ors. v. Sanya Olori Ilu & Ors. (1965) NMLR 66; Mrs. Ishola Coker & Anor. v. Sanyaolu (1976) 9 & 10 S.C. 203; Ekpoke & Anor. v. Usilo & Ors. (1978) 6 & 7 S.C. 187; Aro v. Fabolude (1983) 2 S.C. 75; Ezewani v. Onwordi & Ors. (1986) 4 N.W.L.R. 27; Odjevwedje & Anor. v. Echanokpe (1987) 3 S.C. 47. See also John Esan v. Olowa (1974) 3 S.C. 125 at 135-136 in which sections 53-55 of the Evidence Act as to the circumstances in which estoppel may be created in favour of a plaintiff were considered. But those circumstances do not exist here.

Finally, it should be recalled that the judgment of the said District Court was set aside by the Chief Magistrate’s Court. Yet the Judge appeared to have considered the two decisions from the records of proceedings tendered before him but surprisingly said inter alia as follows:

“Again in 1981 the second plaintiff took action against the 6th defendant who was the supervisor to the second defendant and who did the sawing of the tree on the land in dispute. Exhibit 5 shows that the District Court of Nde/Nkum/Ofutop in Suit No.29/81 found him liable. There was an appeal to the magistrate (sic) court. Exhibit 6 shows that the judgment of the District Court was reversed on the grounds that the second plaintiff sued the wrong party. Under cross-examination, D.W.1 admitted that the Magistrate reversed the judgment of the Customary Court because the plaintiff sued the wrong party. He also said that the Magistrate never decided the ownership of the land… I am satisfied that on a true construction of both the decisions in the District Court and the Magistrate (sic) Court, judgment in respect of the land in dispute was, in fact, given in favour of the second plaintiff.”

Speaking for myself, I am unable to appreciate the reasoning on the facts and the line of legal approach of the Judge on the above issue. How can he rely on what a witness allegedly said in evidence to interpret the judgments of courts, copies of which were before him? I have read the evidence of d.w.1 and cannot find where he said what the Judge attributed to him. Again, I do not know how the Judge could have been satisfied that a true understanding of the two decisions gave the land in dispute in favour of the second plaintiff (respondent) in the present case i.e. the plaintiff in the District Court case. In that case the focus was on the timber tree that was felled. The plaintiff there never gave evidence as to how he came to own the bush where the tree was. To a question put to him, “Have you a common boundary with the defendant in that bush?” he answered. “Yes, I have.” From this he seemed to have said that the entire hush is not exclusive to him. In respect of which part of the bush was judgment therefore in his favour when it was not defined in any way? And what relevance has it with the present land in dispute that the Judge strained himself to make what I may call, with due respect, a worthless finding on it on the face of exhibits 5 and 6 and allowed himself to be misdirected? Nor can it be said that those previous proceedings constitute, at any rate, in the circumstances of this case, act of possession by the respondents to warrant the application of the evidential rule stated in Chief Bruno Etim & Ors. v. Chief Okon Udo Ekpo & Ors. (1983) 3 S.C. 12 at 34 – 36 and Ajuwa & Ors. v. Odili (1985) 9 S.C. 17, which at best they might have served in a proper situation.

The Judge misdirected himself in other aspects in his evaluation of the evidence. I shall mention one which has several implications. He said:

“I agree with the submission of Counsel for the plaintiffs when he submitted that throughout the proceedings, the defendants never called any independent witness to testify as to the ownership of the land in dispute. They only called members of their family as witnesses.” (Emphasis mine).

This tends to shift the burden of proof to the appellants who did not counter-claim for a declaration of title etc. Secondly, it at least overlooks the evidence (for what it is worth) of d.w.7, Samuel Oyama Njie, who claims he does not belong to the appellants’ family, among other things, pleaded and relied on traditional evidence of ownership. Members of their family are competent to testify as to their traditional history and customary law in support of their case as pointed out by the Supreme Court in Ojemen & Ors. v. Momodu II & Ors. (1983) 3 S.C. 173 at pages 220-223 in the observation of Obaseki, J.S.C. By the attitude of the Judge as to the value of the evidence of members of the appellants’ family or the competency of the said witnesses, he was not prepared to place any weight on the case of the appellants.

This brings me to a rather important aspect of this case. I have already said that the appellants pleaded traditional history and led evidence of a sort. So did the respondents. But no where in the judgment did the Judge make any findings concerning the evidence of tradition adduced by either side. The respondents claim that the land in dispute was deforested by their ancestor named ago Mfom who thereafter farmed on it. The appellants also said that the land was deforested by their own ancestor called Edim Asuo who farmed on it. Both sides claim that the land descended through different named generations of ancestors until now. The Judge failed to advert to the traditional evidence of the parties and to decide on the basis of acts of possession (if any) which is more probable in the circumstances: see Thanni & Anor v. Saibu & Ors. (1977) 2 S.C. 89 citing Kojo II v. Ronsie & Anor (1957) 1 W.L.R.1223 with approval. In all truth, he did nothing to assess the totality of the evidence adduced by both parties by putting each party’s evidence on either side of an imaginary scale to see which side is heavier by its quality or the probative value of the testimony of the witnesses as enjoined in Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at 93 and Woluchem v. Gudi (1981) 5 S.C. 291 at 294-295. What he did was to rely on inadmissible and irrelevant evidence (see Exhibits 3, 5 and 6) and adopt a wrong approach to the burden of proof. I have already pointed these out in this judgment.

It has been well established that in a claim for a declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defence; see Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336; Udegbe & Ors. v. Nwokafor & Ors (1963) 1 All N.L.R. 417 at 418; Sunday Piaro v. Tenelo & Anor (1976) 12 S.C. 31; Anieka Melifonwu & Ors v. Charles Egbuyi & Ors (1982) 9 S.C. 145. In the case on appeal before this Court, where there was conflicting traditional history, acts of recent possession numerous and positive enough would decide the issue of title.

The facts available on both sides are on record. Exhibits 3, 5 and 6 must be discountenanced. I realise that if a trial court has unquestionably evaluated the evidence before it, it is not for the Appellate Court to reevaluate the same evidence and come to its own decision. This Court must therefore approach any findings of facts by the court below with extreme caution: see Etowa Enang & Ors v. Fidelis Ikor Adu (1981) 11-12 S.C. 25 at 38-40 per Nnamani, J.S.C.

It is also the law that to succeed in any appeal against the findings of facts, it must be shown that in the performance of its primary duties of appraisal of oral evidence and ascription of probative value to such evidence that, the court of first instance made imperfect or improper use of the opportunity of hearing and seeing the witnesses, or has drawn wrong conclusions from accepted or proved facts which these facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support: see Christopher Okolo v. Eunice Uzoka (1978) 4 S.C. 77 at 86 per Obaseki, J.S.C. citing Fashanu v. Adekoya (1974) 1 All N.L.R. 35 at 41 and Omoregie v. Edo (1971) 1 All N.L.R. 282 at 289. See also Edward Egonu & Ors v. Eziamaka Egonu & Ors (1978) 11 & 12 S.C. 111 at 129 per Obaseki, J.S.C.

The authorities on this issue were recently reviewed by the Supreme Court in Agbonifo v. Aiwerioba (1988) 1 N.W.L.R. 325 (Part 70). Delivering the leading judgment, Nnaemeka-Agu, J.S.C. said at page 339:

“In my judgment, the function of an Appellate Court on a question of facts is mainly limited to seeking whether or not there was evidence before the trial Court upon which its decision on facts was based; whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of an imaginary balance and weighed one against the other, in other words whether the trial Court properly evaluated the evidence before it; whether the trial Court correctly approached the assessment of the evidence before it; whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. These are the results of all the decided cases on the point.”

I have no doubt in my mind that, considering the various aspects of this case to which attention has been drawn and the unsatisfactory way the Judge approached the assessment of the evidence before him, I have endeavoured to ensure that this Court will not exceed its function or evade its responsibility as prescribed in the above observation of Nnaemeka-Agu, J.S.C.

When therefore a trial Court has failed to advert its mind to the evidence on the record and makes unreasonable and perverse findings, the Appeal Court is in as good a position as the trial Court to examine the evidence and make its own assessment provided such exercise does not call for making decision on the credibility of witnesses based on demeanour: see Ntiaro v. Akpam 3 N.L.R. 9 at 10; Akibu v. Opaleye & Anor (1974) 11 S.C. 189 at 203 per Sowemimo, J.S.C.; Misr(Nig.) Ltd. v. Ibrahim (1974) 5 S.C. 55 at 62 per Coker, J.S.C.; Lawal v. Dawodu & Anor (1972) 1 All N.L.R. 270 at 286 (Part 2).

The Supreme Court considered the above principles recently in Obodo & Anor v. Ogba & Ors (1987) 3 S.C. 459 where Oputa, J.S.C. at pages 479 – 482 laid them out in two categories with the purpose, if I may say so with due respect, of drawing attention, fur effect, to the way the Appellate Court is expected to approach the issues of fact and findings of fact of a trial Court. He had earlier said in the case of Atolagbe v. Shorun (1985) 4 S.C. 250 (Part 1) at page 285 what an appellate court’s attitude should be as a matter of duty to the performance of the trial Court in regard to the evidence as follows:

“Now what does an appellate court do when faced with a judgment that is obviously perverse? An appellate court can and in fact has a duty to examine the grounds on which the conclusions and inferences of the court below were based and if convinced that these were erroneous, an appellate court will be justified in re-evaluating the evidence and taking a different view.”

In the present case on appeal, this Court is entitled to look at the evidence on record which the Court below failed to assess and give meaning to it as the facts reasonably justify: see Balogun v. Akanji (1988) 1 N.W.L.R. 301 (Part 70). The evidence of traditional history led by the respondents has no substance beyond merely saying that the land in dispute was deforested by their ancestor called Oga Mfom who farmed on it and the land was inherited by his sons and so on. There is nothing to show that in accordance with the custom of the people this act of deforestation and user confers title. No such custom was pleaded and, of course, no evidence led: see section 14(2) of the Evidence Act and Adegboyega v. Igbmosun (1969) 1 All N.L.R. 1. There is nothing to show how Oga Mfom became the first to deforest the land; did he migrate to the place from somewhere or was he farming or assisting his father to farm on some other land before he decided to deforest the land in question? The traditional history appears to be left in an inadequate state. The Judge did not even pronounce on the worth of that traditional evidence. The appellants themselves also pleaded and led similar evidence on traditional history of deforestation, perhaps with more determination in leading such evidence than the respondents.

But there is no evidence of acts of possession by the respondents which would make it more probable that they are the owners of the land, since the burden is on them to adduce evidence that will entitle them to the declaration and other reliefs sought. The respondents’ survey plan (exhibit 2) No.EP/CR/012LD/84 dated 12 March, 1984 merely contains features in respect of which no specific evidence was led in proof as to their owners or those in possession. This is not good enough: see the general view in Sunday Piaro v. Tenalo & Anor (1976) 12 S.C. 31 at 44 – 45 by Obaseki, J.S.C. The appellants’ survey plan (exhibit 4) No.NLS/CR23/84 dated 10 March, 1984 covers exactly the same mass of land and also generally contains features asserted as acts of ownership or possession without sufficient proof.

However, the appellants at least led evidence of some acts of possession with some element of proof or assertions tending as proof. I wish first to refer to the evidence of Eyuk Nzie who gave evidence as d.w.5. He is in fact the 6th defendant. He said in evidence-in-chief: “have been a farmer for 22 years. I am 42 years old. I farm in the area of the disputed land. I have always farmed there.” Further, in cross-examination, he said inter alia: “‘I have farmed for 22 years…. I have a farm in that area. The chief crops include yam farm, cassava, etc.” The survey plan filed by the appellants (exhibit 4) shows somewhere near the middle of the land in dispute “Eyuk Nzie’s new farm.” Again, Samuel Oyama Njie (most probably Nzie) gave evidence as d.w.7 and said at the time he gave evidence on 13 August, 1985 that he had lived and farmed on the land in dispute as appellants’ tenant for 12 years. He said Nzie Oduora (2nd defendant) put him on the land. Incidentally Oyama Nzie’s cassava farm is close to Nzie Oduora’s cassava farm on the near eastern side of the land in dispute in exhibit 4. Also Oyama Nzie’s yam barn is shown close to Eyuk Nzie’s new farm. Although these cannot be said to be sufficient acts of possession, they have shown better efforts than the respondents to prove by specific evidence possession of some sort within the land in dispute.

This brings me to the question of N4,000 damages which the lower Court awarded the respondents. The appellants complain that the award is excessive. There is no evidence of exclusive possession of the land in dispute by the respondents. There is also no evidence of acts of destruction or even obstruction by the appellants. It is true that if trespass is proved, that is to say, mere entry upon a person’s land without his consent, it is actionable without proof of damage. Such trespassory act is said to be actionable per se. But damages that may be awarded must be nominal unless there is some reprehensible aspect of the trespass, such as entry vi et armis (with force and arms) or in an abusive or insulting manner. It is however within the discretion of the Court in the award of general damages,but the discretion must be exercised in accordance with known principles. Otherwise, to get substantial damages, the plaintiff must plead and prove special damage: see Dumez (Nigeria) Ltd. v. Ogboli (1972) 3 S.C. 196. , think it must clearly appear a wrong exercise of discretion for the sum of N4,000 general damages to have been awarded in a case like this.

There is a complaint by the appellants about the way the Judge treated exhibit 9 which is a letter of protest dated 29 March, 1973 written by the Chiefs and members of Okangha Nzimowan village (i.e. appellants’ village) signed by one Chief Osim Eyuk and also Nzie Oduora (2nd defendant/appellant) to the Divisional Officer, Ikom Division. In it they alleged acts of trespass on their land by the people of Okangha Nkpansi village (i.e. respondents’ village).

The Judge considered this letter and concluded inter alia: “I am therefore satisfied that Exhibit 9 was written in order to protest over the trespass committed by the people of Okangha Nkpansi and not by the family of the plaintiffs. It cannot therefore be said that the defendants were protesting over a trespass on their land committed by the plaintiffs. Exhibit 9 has not therefore served any useful purpose… I am therefore at pains to come to the conclusion that encroachment was on the land in dispute in the instant case.”

It must be conceded that the Judge was right up to a point, that is to say, partially right. But he overlooked a useful reminder which exhibit 9 serves when he said that it did not serve any useful purpose. It will be recalled that the respondents’ family and the appellants’ family belong to two different villages. These villages are Okangha Nkpansi and Okangha Nzimowan. They are neighbours. Exhibit 9 should have called to the mind of the Judge that the land in dispute could either be in Okangha Nkpansi or Okangha Nzimowan notwithstanding that the action is really between two families since the said families do not claim ownership of land within the same village as members of the same village.

Therefore, in a matter like this, it is inevitable to determine in which of the two villages the land in dispute lies. This cannot be done unless the boundary between the two villages is established by credible evidence. The burden of doing this was clearly on the respondents. That ought to have occurred to the Judge. In Nkanu & Ors v. Onun & Ors (1977) 5 S.C. 13, two neighbouring communities in Obubra Division of Cross River State sought declaration of title over certain parcels of land in an action and a cross-action which were consolidated. The real issue turned on what was the boundary between them. The boundary had long been settled many years back. It was held that that resolved the question of ownership of the parcels of land in dispute.

In Appoh Ababio v. Dolu Kanga (1932) 1 W.A.C.A. 253, a case from the Gold Coast now Ghana, it was said at page 254:

“Now it was made quite clear from the evidence of both plaintiff and defendant that this case followed closely upon and intimately connected with a case of Anopoley v. Chief Athuhli and another which was finally settled by a judgment of Mr. Bartlett, Commissioner of the Western Province, delivered on the 30th August, 1928,on appeal from a Native Tribunal.

That case according to the judgment raised the question of the boundary between Kickam and Assenta which is the very question raised in this case, and the Commissioner decided that the boundary of Kickam was Biale from its source to where the bridge on the motor road crosses the stream, and then in a straight line seaward to the mouth of the Babloma creek, thereby including within the Kickam boundary the Agona lands which are the subject of dispute in this case, and confirming the judgment of the Omanhene in favour of Anopoley.”

There is the case of David Okoye, on behalf of Ogidi People v. Timothy Ejiofor, on behalf of the Ogbunike People (1934) 2 W.A.C.A. 130 where the issue of boundary between the two communities was resolved on credible evidence.

I have referred to the above case, to show (1) that the initial, or even in some cases, the real issue implicit in a case like the present one where the contestants belong to different communities as pleaded and given in evidence will be that of ascertaining the boundary between the communities; that will at once narrow or may settle the major issue of title, and (2) that such issue as to boundary can only be settled upon credible evidence evaluated and accepted by the Judge. Nothing was done in that direction in this case. Although the identity of the land as shown in the survey plans (exhibit 2 and 4) is not in dispute, what is seriously in question to start with is the location, that is to say, whether the land is in Okangha Nkpansi or Okangha Nzimowan. The pleadings do not show, and no evidence is truly available to prove, undisputed boundary features between the communities. It is my view that the requirement that a plaintiff must show the area to which his plan relates extends to the need to show the area (community or village) in which the land is located, if that is an issue, express or by necessary implication, from the nature of the dispute.

The respondents who seek a declaration of title have failed to prove any one of the five ways of asserting ownership of land as stated in Idundun & Ors. v. Okumagba (1976) 9 & 10 S.C. 227. If a plaintiff fails in toto to prove his case, dismissal should follow; see Kodilinye v. Mbanefo Odu (supra) at pages 337 – 338 where Webber, C.J. laid down the law over 50 years ago that:

“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendants’ case will not help him and the proper judgment is for the defendant…. So if the whole evidence in the case is conflicting and somewhat confused, and there is little to choose between the rival traditional stories (and one may now add, there is no sufficient acts of possession by the plaintiff to show he is the probable owner of the land) the plaintiff fails in the decree he seeks, and judgment must he entered for the defendant.” (Brackets and words in them added by me).

This principle is as good today (with slight modification as to the use of evidence from the defence which helps the plaintiffs case – Akinola & Anor v. Oluwo (1962) 1 All N.L.R. 224 at 225) as it was when it was established. See also Ejiafor v. Onyekwu & Anor (1972) 12 S.C. 171; Olayiaye v. Oso (1969) 1 All N.L.R. 281; Green v. Green (1987) 3 N.W.L.R. 481; and Ogbechie & Ors v. Onachie & Ors (1988) 1 N.W.L.R. 370 part 70.

In Otuah Akpapuna & Ors v. Obi Nzeka & Ors. (1983) 7 S.C 1 both parties claimed ownership through their respective ancestors as original settlers on the land in dispute. It was held that the onus was on the plaintiffs to succeed on the strength of their case, not on the weakness of the defendants’ case. The same applies to the present case. As the respondents failed to prove their case, they were not entitled to the judgment of the Court. I therefore allow the appeal and set aside the judgment of the lower Court together with the order as to costs. In its place, the respondent’s claim is dismissed. I assess costs in the Court below at N600 and in this Court at N400 in favour of the appellants.

Other Citations: (1988) LCN/0041(CA)