Emmanuel Uzoewulu & Anor V. Ugwueze Ezeaka & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
Two distinct and separate writs were taken out by parties to the present appeal. In the one, the respondents as plaintiffs sought against the appellants then defendants the following reliefs:-
(1) Declaration of title to the piece or parcel of land otherwise known as and called “Ana Mbaji” situate at Okafia-Ihiala annual value of which is N10.
(2) N1000 damages for trespass on the said land. And
(3) Perpetual injunction restraining the defendants, their agents or privies from committing further acts of trespass on the said land.
The particular suit No. HN/43/76 was first in time. Some defendants in the suit took out a subsequent writ against the plaintiffs in the very first suit. The suit so subsequently commenced was No. HN/13/77. Pursuant to the lower court’s order, the two suits were rolled into one and heard as a single suit. In legal parlance they are said to have been consolidated. This appeal is against the judgment of Hon. Justice K.K. Keazor of the Anambra State High Court sitting at Nnewi dated 25/7/97 and in respect of Suits No. HN/43/76 and No. HN/13/77 that had been so consolidated.
It is pertinent to note that defendants in Suit No. HN/43/76 as plaintiffs in suit No. HN/13/77 had the same prayers against plaintiffs in the former suit who had become defendants in the subsequent suit. The only addition in the prayers of the plaintiffs in the subsequent suit against the defendants therein was for forfeiture of the land in dispute.
Before the consolidation of the two suits, pleadings had been ordered, filed, exchanged and duly settled. The consolidated suit went to full trial. Thereat, both parties testified on their own behalf and called witnesses. Both parties, in the main, relied on traditional history, numerous acts of ownership and possession over the land in dispute. The plaintiffs also pleaded the fact of customary arbitration in respect of the land in dispute.
The parties in the instant appeal claimed a common ancestor at the lower court. His name? Dioha or Idioha.
The plaintiffs/respondents’ claim was that Idioha’s Obi was not large enough to accommodate all his children. The Obi was located at the site of the present day Ihiala motor park. Elekechem was Idioha’s Eldest son. Plaintiffs/respondents averred that Elekechem by conquering the Ameja, Ohoma and Ochi people, acquired their land which he renamed Okahia. Elekechem occupied the land he acquired leaving behind his three brothers at Dioha’s Obi. These brothers were Nnebuogwu, Mmelike and Mmeriwno. They were eventually resettled at Okahia where Elekechem’s children granted them portions of the conquered land after the death of their father. Plaintiffs/respondents’ further claimed that Elekechem was their progenitor and the land he acquired by conquest passed from generation to generation until they eventually inherited the same. It is a portion of the inherited land that is in dispute. They call the land “Ana Mbaji” and is verge red in their survey plan No. MEC/494/77.
The defendants/appellants’ trespass on the land in dispute was the first threat to plaintiffs/respondents’ ownership of the land in dispute and thus the action in the suit which culminated into the instant appeal. Plaintiffs/respondents further averred that defendant appellants were descendants of Mmelike one of Elekechem’s brothers. Appellants eventually inherited the land granted to their ancestors by Elekechem’s children which land had no common boundary with the land in dispute.
Some acts of ownership demonstrated by the plaintiffs/respondents include the sale of part of the land in dispute to relations of the defendants/appellants in 1972 and 1975. Plaintiffs also averred that in 1976 when the defendants/appellants trespassed on the disputed land both parties submitted to an arbitration conducted by the Oluoha-in-council. The arbitration favoured the plaintiffs/respondents.
In view of the venom with which the import of this arbitration was argued by parties, paragraphs 29, 30, 31, 33 and 34 of the plaintiffs/respondents’ pleadings in suit No.HN/43/76 are hereunder reproduced:-
“(29) Suddenly, in 1976 the defendants broke into the land and started clearing part of this land in dispute and removing boundary trees. (30) The defendants protested to Chief John Udoji, the Oluoha of Ihiala and he summoned both parties to his palace for settlement with the elders and village-heads.
(31) The Chief Udoji and his elders and village-heads decided finally that the defendants should give oath to the plaintiffs’ relations to swear and own the land or if the plaintiffs and their relations fail to swear, they lose the land to the defendants.
The Chief Udoji and the team of arbitrators named the following to swear for and on behalf of the plaintiffs:-
(a) Mbamasaa Mbadinuju
(b) Ugwueze Ezeaka
(c) Ndukwu Obiajuonwu
(d) Ezeanochie Akalite
(e) Agunenye Ogwurumba.
(32) On the day scheduled for oath-taking, the Plaintiffs assembled and the five men enumerated in paragraph 31 above presented themselves to the gathering ready and willing to swear but the defendants failed to turn up nor did they bring the oath.
(33) According to Ihiala native law and custom the defendants are taken to have run away and to have forfeited all claims to and right over the land to the plaintiffs.
(34) This incident was also reported to the Chief John Udoji and his arbitrators and they asked us to take our land.
It is important to add that plaintiffs had earlier averred that the type of arbitration referred to supra was common feature in Ihiala. In fact defendants’ family had cause to resort to the same type of arbitration when two branches of their family had land dispute among themselves. The relevant paragraphs of the plaintiffs/respondents’ pleadings are hereunder also provided:-
(23) The defendants family group called Umuokoronwune and Umueleke had a dispute over a piece or parcel of land situate between them and called “Akwu-ege” and the dispute was later resolved by arbitration by village-heads.
(24) The arbitrators decided that Umuokoronwune should administer oath to the Umueleke family and if Umueleke swore to it, they would from then own the land in dispute but if they failed to swear, Umuokoronwune would own, possess and enjoy the land.
(25) On the day appointed for oath-taking, customary court officials were present to witness the oath-taking.
(26) Umueleke swore the oath and from then dispossessed Umuokoronwune of the land. Umuokoronwune then dispersed and started buying lands from people around them.
On their part, defendants/appellants denied the plaintiffs/respondents’ claim. In their pleadings in both suits before consolidation, they averred that the land in dispute was acquired by conquest by their common ancestor Dioha. Defendants conceded that Elekechem was Dioha’s Eldest son but that he remained at Dioha’s Obi as the tradition required. Elekechem’s brothers namely Nnebuogwu, Mmelike and Mmeri moved to and occupied Okahia. This was the land which Dioha, their father, captured from the Gwulala Gwulopoto people. It was defendants/appellants’ further case that on the death of Elekechem, as a result of constant harassment, his children moved to Okahia from Dioha’s Obi which the children had inherited. Their Uncles, Mmelike and Nnebuogwu resettled them by granting them portion of the land they inherited from the Dioha. Mmelike subsequently, added to his share by conquest. The defendants/appellants claimed to have descended from Nmelike and the land in dispute which they call “Ala Oji” was passed from generation to generation till it eventually became theirs through inheritance.
It is appellants’ claim per their pleadings that they have since been in physical possession of their portion of the Ala Oji and have exercised various acts of ownership without let or hindrance from any person including the respondents or their predecessors.
The appellants as defendants in suit No. HN/43/76 joined issues with respondents who were plaintiffs in the suit regarding the issues of arbitration in the following paragraphs of their statement of defence:-
“(42) The defendants strongly deny paragraphs 27, 28, 31 and 32 of the statement of claim and shall at the trial put the plaintiffs to the strictest proof of the same.
(43) The 2nd defendant reported the acts of the plaintiffs complained of in paragraph 40 above to the Umuobilaokwere family who warned the plaintiffs to desist from further disturbance of Ala-Oji (the 2nd defendant’s portion shown to him).
(44) The plaintiffs reported the defendants to His Royal Highness Chief J.M. Udoji the Oluoha of Ihiala.
(45) His Royal Highness and his Chiefs on the 30th October, 1976 invited the Umuobilaokwere family to His Royal Highness’ palace.
(46) After listening to the members of the Umuobilaokwere family and visiting the Ala-Oji, His Royal Highness and his Chiefs advised the plaintiffs to keep to the respective portions of Ala-Oji granted to them by the Umuobilaokwere family”. Appellants also made reference glibly to this same arbitration in their statement of claim in suit No. HN/13/77 and in particular paragraphs 37, 38, 39 and 40:-
“(37) The defendants then claimed that the portion of “Ala-Oji” granted to Hyacinth Uzowulu is their own and proceeded to His Royal Highness, M. Udoji the Oluocha of Ihiala and lodged a complaint against Hyacinth Uzowulu.
(38) The plaintiffs were later invited by His Royal Highness J.M. Udoji to his palace on 30th October, 1976 to look into the defendants’ claim and that of Hyacinth Uzowulu.
(39) His Royal Highness J.M. Udoji and his Chiefs visited the site where Hyacinth Uzowulu heaped gravels and sand and listened to the present plaintiffs who showed them the portions granted to the defendants and the portion granted to Hyacinth Uzowulu.
(40) His Royal Highness J.M. Udoji and his Chiefs on the same 30th October, 1976 found in favour of Hyacinth Uzowulu and advised the defendants to keep to the respective portions granted to them by the plaintiffs.
The respondents joined issues with appellants thereat pp 30-31 of the record. In particular paragraphs 40, 41, 42 and 43 are relevant and hereunder reproduced:
(40) The defendants admit paragraphs 37,38 and 39 of the statement of claim and state further that the said Hyacinth Uzowulu and (sic) submitted to the arbitration by Chief J.M. Udoji but failed or neglected to comply with the decision of the Chief and his elders.
(41) The defendants deny paragraph 40 of the statement of claim and have to add that Chief John M. Udoji, Oluocha of Ihiala decided that if the said Hyacinth Uzowulu insisted on his claim over the land, he had to swear for the defendants and thereafter own the said portion he is claiming but if he failed to swear, he would lose every claim over the land.
(42) In further answer to paragraph 40 of the statement of claim, the defendants state that on the day appointed for oath-taking, Hyacinth Uzowulu failed to show up and the defendants reported this to Chief J. M. Udoji who advised defendants to continue in their enjoyment of the said land.
(43) Still in answer to paragraph 40 of the statement of claim the defendants state that what the said Hyacinth Uzowulu did after refusing to swear was to invite the Ihiala Police to arrest the members of the defendants’ family alleging that he dug pipe trenches and they closed it.
The trial court took evidence at the end of which exercise in a considered judgment found for the plaintiffs/respondents in the consolidated action. The defendants/appellants are aggrieved by the decision and thus the instant appeal.
By their notice, the appellants filed three grounds of appeal which are hereunder reproduced with their particulars:-
(1) The learned trial Judge erred in law by holding that he found in favour of the plaintiffs in an alleged arbitration by the Igwe-in-Council when in fact there was no arbitration known to law in the case.
PARTICULARS
(a) The law as stated by the Supreme Court requires five conditions for a good arbitration.
(b) Those conditions were not present in this case.
(c) Swearing a juju is not a condition.
(d) One of the plaintiffs namely P.W.1 was in fact a member of the Igwe-in-Council that allegedly decided in favour of the plaintiffs.
(2) The learned trial Judge erred in law when he said “There is nothing to choose between the two stories” namely between the traditional evidence given by both the plaintiffs, and the defendants.
PARTICULARS
(a) The evidence of the defendants are more probable.
(b) The traditional evidence of the defendants are more straight forward.
(c) The traditional history of the defendants are more in accord with custom.
(3) The learned trial Judge failed to appreciate the evidence of D.W.2 which is against interest and therefore erred in law.
PARTICULARS
(a) D.W.2 is from Elekechem line of Dioha’s children.
(b) D.W.2 gave evidence against their interest.
(c) Learned trial Judge did not show any appreciation.
(d) Learned trial Judge simply waved it that D.W.2.
Parties have, in keeping with rules of this court filed and exchanged briefs which they adopted as arguments for the appeal. At the hearing of the appeal counsel expatiated on some aspects of these briefs.
The three issues formulated in the appellants’ brief of argument are as follows:-
(i) Whether the arbitration so called was a proper arbitration that judgment could be based on it.
(ii) Whether the traditional evidence of the respondents or the lack of it was not enough to get their case dismissed and judgment given to the appellants based on their traditional history.
(iii) Whether from the evidence before the lower court judgment should not have been given to the appellants.
The respondents have six issues for determination. These are:-
(i) Whether oath-taking is not part of the custom and traditional ways of settling disputes after hearing parties in Ihiala.
(ii) Whether by Ihiala custom anybody who after submitting to arbitration and whether resist from complying with the decision and award is not adjudged the loser in the case.
(iii) Whether the preponderance of compelling and laudable testimonies of all the plaintiffs witnesses as opposed to the contradictory, inconsistent, and speculative evidence of the defendants witnesses was not enough to declare the plaintiffs the owners of the land in dispute as the trial Judge rightly did.
(iv) Whether native tribunals in addition to doing justice to the parties concerned are also expected or required to comply with the rules of evidence operating in civil courts of record.
(v) Whether the trial court was not right or legally justified in considering the traditional evidence of the plaintiffs more concerning and probable than that given by the defendants/appellants in the case and
(vi) Whether the family of the appellants would not seek leave concert (sic) to substitute a competent and proper appellants when the appellants on record are all dead.
I have a word or two for the issues which parties to this appeal seek that we consider in the determination of the appeal. Issues, it must be stated, should evolve from the grounds of appeal which inform the notice of the appellant. It has therefore become trite that, in general, issues for determination must be relevant to the grounds of appeal that had been filed in court. Any supposed issue or question for determination which has no reference to any ground of appeal would not be considered by the appellate court. Such an issue or question would be adjudged incompetent and discountenanced. See Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284; Azaatse v. Zegeor (1994) 5 NWLR (Pt.342) 76 and particularly the dictum of Belgore, J.S.C. in Alh Animashaun v. University College Hospital (1996) 10 NWLR (Pt.476) 65.
This is the position of the law on issues which are irrelevant to grounds of appeal whether same were framed by the appellants or the respondents.
In the instant appeal, respondents issue, No.6 in particular has some fault. It appears academic, far- fetched and not positively related to the grounds of appeal filed by the appellants. It is instructive to note that the respondents have neither cross-appealed nor filed a respondents, notice. To this last aspect of my observation I might return in due course. The lapse might not readily hit one!
For now, respondents sixth issue might pass for a preliminary objection. The appropriate procedure of raising such an objection is as provided by Order 3 rule 15(1) of the rules of this court as amended. Raising an objection by formulating same into an issue for determination of an appeal offends the enabling rules of court. The appellants in the instant appeal have not been given the notice which the rules of court required of the respondents.
Secondly, the objection alluded to by the respondents goes to the jurisdiction of this court to entertain the appeal and is obviously a matter which once raised requires proper proof. The record of appeal before us does not readily provide the required proof. Thus quite apart from the fact that the objection in the form it was couched has no relevance to the grounds of appeal, it must further be discountenanced for offending the rule of court under which it could have been properly made and sustained. See Okolo v. UBN Ltd. (1998) 2 NWLR (pt.539) 618.
The issues formulated by both parties appear to be prolix and repetitive. In the case of the appellant, his second and 3rd issues seem to repeat themselves and the one can be subsumed in the other. The respondents’ five remaining issues even without further scrutiny are very glaringly more than the number of grounds of appeal that were filed. The essence of formulating questions for determination is to enable parties to an appeal narrow the issues contained in the grounds of appeal. Non-compliance with this ideal requirement is detrimental to accuracy, clarity and brevity, proliferation of questions for determination must be discouraged. See Shell Petroleum Dev. Co. (Nig.) Ltd. v. FBIR (1996) 8 NWLR (pt.466) 256; Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; and Anie & Ors v. Chief Uzorka & Ors (1993) 8 NWLR (Pt.309).1
The justice of the instant appeal shall be served by a consideration of appellants’ first two issues into which all other formulated issues can be rolled and canvassed.
Under their first issue for determination, appellants contend that the arbitration which the lower court relied upon to find for the respondents did not meet the requirements of a valid arbitration within the contemplation of the Supreme Court’s decision in Ohiaeri v. Akabeze (1992) 2 NWLR (pt.221) 1 at 24. For a trial court to rely on arbitration to determine the rights and obligations of parties before it, five ingredients of the arbitration must be pleaded and established before the court. In the instant case these were neither pleaded nor established to justify reliance on same.
Secondly, a custom which facilitates decision making in conflict resolution only on the basis of swearing on juju as was the case in the instant appeal has not only been adjudged macabre, it has been condemned as being out of time. Learned appellants’ counsel Mr. Anah made his point by citing this court’s decision in Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.311) 307.
Counsel further referred to p.58 of the record line 31 to show that P.W.1, the 1st plaintiff was also a member of the Oluoha Council that decided the arbitration in favour of him. The procedure was against natural justice and should not be allowed to form part of our legal system.
Mr. Mbaso for the respondents, in the latter’s brief, submits under this issue, a first in the issues the respondents formulated, that it was part of the custom of the litigants in this appeal to resolve dispute after disputants have been heard in an arbitration. Oath-taking is one of the approved and applied methods of setting such disputes. Counsel conceded that by Akabeze’s case certain ingredients of such arbitrations need not only be pleaded but established before the trial court.
However where such arbitrations took place in native tribunals rather than in regular courts, these requirements are relaxed. The requirements become, in such con, directory and not mandatory. To hold otherwise, counsel submitted, is to cling to technicalities rather than the justice of the case.
Respondents further contend that since appellants had voluntarily submitted to the procedure, they cannot resile from same. Appellants’ argument that the arbitration was trial by ordeal was baseless and the bulk of judicial decisions on the issue of arbitration clearly support the trial court’s conclusion on the issue. The following plethora of authorities were resorted to by counsel: Raphael Agu v. Ikewnibe (1991) 4 SCNJ 56 (1991) 3 NWLR (Pt.180) 385; Ohiaeri v. Akabeze (1972) 2 SCNJ (Pt.1) 76; (1992) 2 NWLR (pt.221) 1; Anosile v. Sotunbo (1992) 6 SCNJ (Pt.2), (1992) 5 NWLR (Pt.243) 514; Njoku v. Ekeocha (1992) 2 ECSLR (Pt.2) 199 and Onwu v. Nka & Ors (1996) 7 SCNJ 240; (1996) 7 NWLR (Pt.458) 1. These decisions, it is submitted, have negatived the impact of Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.31l) 307such that the decision has no force of application anymore.
Lastly, it cannot hold that the arbitration has been negatived simply because P.W.1 sat on it. D.W.2 was also a member of the Council which conducted the arbitration. Respondents submit that in Ojibah v. OJibah (1991) 5 NWLR (Pt.191) 296 and Olina & ors v. Obodo & Ors (1958) SCNLR 298, scenerious such as the one against which appellants protested were upheld as valid.
In considering the first issue for determination, resort must be had to parties pleadings the relevant aspects of which I reproduced supra. Two vital facts seem to flow from the state of the pleadings. The plaintiffs/respondents seem to have clearly pleaded these facts in the two suits before same were consolidated. Firstly, they did aver the fact of arbitration which had oath-taking as part of its features. Secondly, there was this averment also which indicated that the arbitration was a feature of the customary practice of the Ihiala people. Defendants/appellants from their pleadings too, joined issues with the respondents thereby calling on the latter to discharge the burden which the law placed on them. The plaintiffs/respondents answered the call through testimonies of some of their witnesses. At p. 57 lines 1934 and p.58 lines 1-4 of the print record P.W.1’s testimony relevant to the issue under consideration speaks for itself. The witnesses testified as follows:-
“The defendants removed the boundary marks on the land. After this we reported to the Oluoha, the ruler of Ihiala, at his palace. All this happened before we took out this action. The Oluoha and his council came to the site where the defendants removed the boundary marks. The Oluoha ordered that the defendants should bring an oath for us to swear and that if we would not swear they should take the land; but if we take the oath, the land should go to the plaintiffs.
On the date the defendants were supposed to bring the oath, myself and 5 other members of my family waited for defendants but they did not show up, so we went and reported to the Oluoha.
The Oluoha said he would give them another date to bring the oath. On the next date the Oluoha gave, the defendants still did not show up. We then reported back to the Oluoha. Later on the Oluoha summoned both parties and we and the defendants came to the palace. He told the defendants that as they failed to bring the oath to us, they should hands off land.”
P.W.1 further at lines 14-17 of p.58 state thus:-
“I know the custom of Ihiala. According to Ihiala custom when someone is required to produce an oath and he fails to do so, his opponent automatically becomes successful in the dispute.”
At the end of his testimonyP.W.1 divulged that he was a member of the very council which found for the plaintiffs/respondents in the arbitration. P.W.3 also gave evidence regarding the arbitration at p.71 lines 25-32 and p. 72 lines 1-14. He said as follows:-
“The dispute started about 15 years ago. I remember it was once tried before the Oluoha the late traditional ruler of Ihiala. I was present then when it was tried. The decision reached at the Oluoha’s Palace was that the defendants should bring an oath for the plaintiffs to swear if they still claim that the land belongs to them. A date was fixed for oath-taking. On the fixed date the defendants failed to bring an oath for the plaintiffs to swear. On the following day the plaintiffs went to the Oluoha to report that defendants failed to turn up. The Oluoha told the plaintiffs to go and that he would send for them. The Oluoha fixed another date for the defendants to bring an oath for the plaintiffs to swear. On fixed day, the defendants again failed to turn up. The Oluoha therefore told the plaintiffs to go and take over the land.
I am about 100 years old now. I know the custom of Ihiala. I am an Ozo Title Holder. Under Ihiala Custom if two persons are disputing and one is asked to bring a juju for the other man to swear upon and he refuses to bring the juju, it is taken that the man who failed to bring the juju for the other to swear upon is in the wrong.”
In a similar way, P.WA at p.77 lines 10-17 testified as follows:-
“I know some customs of Ihiala. Under Ihiala custom when a party to a dispute is asked to bring a juju for the other to swear an oath upon and the person who failed to produce the juju is taken to have runaway and the other party is adjudged to be in the right. To my knowledge, the defendants did not produce a juju for the oath taking at any time. By Ihiala custom the plaintiffs own the land.”
D.W.1 at p. 80 lines 32 – 33 and p. 81 lines 1-15 under cross-examination corroborated the testimonies of P.W.1, P.W.3 and P.W.4. These were his words:
“Yes, I am aware that the Oluoha in Council looked into this present suit before this court. Yes. I attended at the Oluocha’s palace during that arbitration. Yes I remember I am on oath. The Oluoha in Council decided that the Umuobilokwere should bring juju for the plaintiffs to swear upon. According to Ihiala custom, if it is decided that an oath should be produced for a party in dispute, and the other party refused to take the oath, it is taken that those who produce the oath are right in the dispute.
On the other hand if the people who are to produce the oath fail to do so, they are adjudged wrong as it is taken that they developed cold feet because they know they are in the wrong and are therefore afraid.”
D.W.5 gave similar evidence at p.102 of the print record, lines 19-21 and at p. 106 lines 20-21 where under cross-examination he deposed to the fact that arbitrations were common amongst the Ihiala people.
These testimonies formed the basis of the trial court’s decision as reflected at p.156 lines 32-33 and p. 157 line 1 and lines 9 -26 in the following tenor:-
“I have already found that in fact the arbitration took place. The next question is what is the effect.”
“There was evidence that after hearing the report about the defendants’ removal of the boundary marks, the Oluoha visited the land in dispute and then ordered the defendants to produce an oath for the plaintiff to swear upon. It was at that stage that defendants’ resiled by refusing to produce the oath.
It is in evidence that the practice of the Oluoha-in-Council is to discuss the case of parties before the Oluoha announces the decision. It is also in evidence that 1st plaintiff and 5th defendants are members of the Oluoha’s Cabinet.
On the authority of Ume v. Okoronkwo (1996) 12 SCNJ 404, (1996) 10 NWLR (Pt.477) 133 the arbitration must be taken as valid and as having gone against the defendants.
The judgment of the court is that the defendants cannot resile from that decision. Consequently, the claim of the plaintiffs in HN/13/77 succeeds and that of the defendants in HN/43/76 fails.”
My understanding of the trial court’s decision follows shortly. Firstly, the court had accepted as a fact that the arbitration had taken place. Secondly, the occurrence of the arbitration constitutes a bar to the defendants/appellants. They can neither deny the fact of its occurrence nor dispute the decision reached consequent upon the arbitration. Thirdly and resultantly, it was the court’s view that it was futile for the defendants to press a claim that had hitherto been so resolved. In essence the court’s view is that there was effective estoppel by virtue of the arbitration that had not only been pleaded but considered proved by the trial court.
Strenuous effort has been made by appellants’ counsel to urge that the arbitration so acted upon by the trial court was incapable of sustaining the judgment so advanced. I have a different view.
Our courts have for long recognised the binding force of customary arbitration if the procedure adopted manifest certain essential ingredients. See Onwuanumkpe v. Onwuanumkpe (1993) 8 NWLR (pt.310) 186; Awosile v. Sotunbo (1992) 5 NWLR (Pt.243) 514 and Ohiaeri v. Akabeze supra. A consideration of the characteristics of the arbitration in the instant case against the background of these authorities makes the submissions of learned respondents’ counsel as to its validity and reliability irresistible. Indeed, they were unassailable.
It has become trite that where parties to a dispute by consent submit themselves to a domestic arbitral forum in accordance with the customary practice and usages of the disputants and as a result of investigation, a settlement was reached through the published decision of the forum, such a decision binds the disputants and is as conclusive as any decision of a legally constituted court in the country. The courts have over the years enforced such customary arbitral decision. See Onwu v. Nka (1996) 7 NWLR (Pt.458) 1 at 17.
In the case at hand, it is glaring that the disputants had voluntarily referred their differences, as they were wont to in such situations to their traditional ruler. The detailed procedure culminating in oath-taking which characterised the arbitration had been deposed to by the witnesses. It was appropriate for the trial court to enforce a decision so arrived at. Appellants cannot be allowed to recoil from the decision of the forum which by custom was invested with judicial aura. See Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296.
I am unable to agree with learned appellants’ counsel’s submission that by virtue of the decision in Iwuchukwu v. Anyanwu (1993) 8 NWLR (Pt.311) 307 oath-taking should not be part of the process of decision making. One is compelled to reproduce the dictum of Ogwuegbu, J.S.C. in Ume v. Okoronkwo (1996) 10 NWLR (Pt.477) 133 at 144 referred to by learned respondents’ counsel for its aptness. The learned justice held thus:-
“Oath-taking was one of the methods of establishing the truth of a matter and was known to customary law and accepted by both parties. The 1st defendant only resiled after the arbitrators had made their awards by refusing to produce the “juju”. It was not open to them to do so at that stage.”
It must be emphasized that what the appellants sought to ascribe to the decision in Iwuchukwu v. Anyanwu supra was never the ratio in the case. If ever it was, and it was not, it would stand in violent conflict with the decision in Ume v. Okonkwo supra which is a decision of the Supreme Court. Should a situation like this arise, this court would certainly be wrong to bind itself to its conflicting decision no matter how correctly concieved. An exposition of the law by the Supreme Court on the same subject matter must be applied and allowed to prevail. See Prince JS Atolagbe and Anor v. Alhaji Ahmadu Awuni & 2 Others (1997) 7 SCNJ 1 at 20; (1997) 9 NWLR (pt.522) 536; Sadikwu v. Dalori (1996) 5 NWLR (Pt.447) 151; Nelson v. Ebanga (1989) 8 NWLR (pt.563) 701.
In my consideration of this first issue for determination, I would finally treat the appellants’ argument in their reply brief. In it, appellants have re-emphaized that it is legally inappropriate for a person to be a Judge in his own cause.
Appellants contend that because P.W.1 was a member of the Oluoha’s council and had participated in the deliberations of the council during the arbitration, the rules of natural justice had been breached. This breach had rendered the arbitration void. This cannot be so.
It is equally discernible from the record of appeal that D.W.2 too was a member of the same council at the same time as was P.W.1 and had participated in the deliberations of the council too during the same arbitration. Whatever disadvantage the participation of P.W.1 would appear to have generated, the role played by D.W.2 in the same process must be deemed to have erased the lapse.
Most importantly, the fact that the parties to the arbitration had themselves consented to and submitted their matter for settlement to such an imperfect outfit, none of them should be allowed to resile from the decision on the basis of a subsequent complaint of an imperfection which all the parties were initially aware of and by their very conduct heralded.
Still on this aspect of the appellants’ vehement objection, I agree with the respondents that the arbitration being a customary one, it would be asking for too much to expect that such outfits comply fully with the concepts and rules of justice which courts of record religiously adhere to. It is little wonder that our statute books are replete with legislations such as the Anambra State Customary Courts Edict No.6 of 1984 in respect of courts duly constituted to adjudicate over local customary matters. By s.20 of the said Edict, decisions of these courts are saved on the basis of their substance rather than their form. In substance, the arbitration relied upon by the lower court had met the justice of its occasion and it should be the duty of our courts to give effect to it.
Appellants in the reply brief attempted to raise a question regarding their first issue which does not seem to have been raised at the lower court. It was contended, in the reply brief, that the respondents who were to swear with the juju were Christians and like Muslims swearing with juju was never part of their custom. I must unhesitatingly say that it is belated to raise this question at this level. Issues were not joined on the point that respondents being Christians were incapable of taking oath. Evidence was not led in proof of the contention. Appellants can only be entitled to challenge the trial court’s judgment on the ground the basis of which the judgment was decided. Parties on appeal would not be permitted to raise a matter on which there were neither pleadings nor evidence in proof of the required pleadings except of course the matter is such as went to the root of the jurisdiction of the trial court. Appellants must be reminded that without the leave of this court they cannot be heard on a matter that had not been considered by the lower court. Ours at this level is to entertain complaints and grievances against decisions from the court below. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at 403; Oguma v. IBWA Ltd (1988) 1 NWLR (pt.73) 658; Stool of Abinabin v. Enyimadu 12 WACA 171 and Kate Enterprises Ltd. v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt.5) 116 at 125.
It must have become obvious by now that appellants arguments in respect of their 1st issue, our first issue for determination in this appeal is bereft of our blessing. I am unable to resolve the first issue in their favour. The first ground of appeal has therefore failed.
Each set of the parties to this appeal has urged that the evidence of traditional history adduced at the trial court was such that entitled them to the verdict of that court. This the appellants say they were denied. The appellants have argued that respondents case was that the land in dispute, Okohia, was acquired by conquest and by their progenitor Elekechem. Yet P.W.2 in his testimony at p.67 lines 29-32 of the record testified that the Dioha was part of the acquiring process. This, the appellants argue, was a new case that supported the appellants’ case. Furthermore, at p. 29 lines 21-23 respondents had testified inspite of the pleadings that Elekechem founded the land in dispute, that they started inhabiting the land in dispute in 1930. In effect, appellants argued, the evidence of the plaintiffs/respondents was at variance with the pleadings which formed the basis of their case. The evidence adduced must only be in proof of same. But not so with them. Respondents’ case must be deemed to have collapsed. It was wrong to have allowed them to make a case contrary to their pleadings. Appellants rely on the decisions in Egonu v. Egonu (1978) 11 and 12 SC 111 at 135 Emegokwue v. Okadigbo (1973) 3 ECSLR 267(1973) 4 SC 113 and Ohiaeri v. Akabaze (1992) 2 NWLR (Pt.221) 1 at 27.
Appellants re-emphasized the point on the variance that occurred between the pleadings of the respondents and their evidence at trial in their reply brief. Not unexpectedly, respondent countered that the totality of the evidence adduced by the parties must be considered as rightly done by the trial court before arriving at the decision it did. In finding for the respondents, after the court had evaluated the entire evidence before it, which examination was properly made, the court was quite in order to have found for the plaintiffs/respondents as such. Most importantly, respondents further contend, the issue of arbitration that had been pleaded by them was incontrovertibly proved and it was glaring that the court’s decision was essentially founded on the fact of the arbitration. Respondents’ further contend that the slip of P.W.1 in his evidence cannot be singled out and considered in isolation. The totality of the evidence before the court must and this was so considered by the trial court in arriving at the decision it gave. The trial court accepted the evidence of the respondents in preference to the lack – lustre case of the appellants. In this the court was right. Respondents urge that the decision was beyond reproach.
It does occur to me that in case where parties relied on traditional history to prove events that occurred, sometimes going back to centuries, the resolution of the conflict often revolved on which of the two sides the trial court chose to believe. The overriding consideration is that of the credibility of the witnesses and the extent of truth embeded in a party’s case as deposed to by these witnesses. Yet in truth these witnesses were never eye witnesses to the actual event. They were neither part of the process nor did they experience the fact of initial presence and domination over the land. In a situation such as this and this applies to the instant appeal, the trial court was in the pre-eminent position to evaluate the evidence deposed to in the light of the credibility of the witnesses. It had the opportunity of seeing and assessing them as to the truth they spoke. It is only where the court failed to take advantage of the unique opportunity it had of conducting such evaluation or arrived at a perverse conclusion consequent upon an evaluation that the appeal court interferes. The appeal court is bound to make the correct finding after an evaluation exercise. A plethora of authorities abound on this age long problem such that the principle of law on it has become trite. See Adegoke v. Adibi (1992) 410 SC (1992) 5 NWLR (Pt.242) 410 SC; Okoro v. State (1988) 5 NWLR (Pt.94) 255 SC; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 SC; UBN Plc v. Borini Prono & Company Ltd. (1998) 4 NWLR (Pt.547) 640. I am at one with respondents’ counsel’s submission that in arriving at a decision a court is under duty to consider the totality of the evidence before it. See Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 SC; Ogunieye v. Oni (1990) 2 NWLR (pt.135) 745 SC.
In the instant appeal I am unable to uphold the appellants’ submission that in its evaluation of the evidence deposed to by parties, the trial court had erred. I remain unimpressed that the court’s finding at p.153 of the record to the effect that “either side could well be right. There is nothing to choose between the two stories” can be invoked to disparage a decision that was informed by a totally different conclusion.
It must be said that the passage was slanted out of its proper con. My understanding of the passage is that the finding related to the aspect of the evidence of traditional history adduced by both parties in proof of their respective cases. What cannot be disputed however was the fact that in addition to the case of entitlement to the land through inheritance, the fact that there was arbitration in respect of the same land between the parties had also been pleaded. And evidence was led in proof by the respondents. This piece of evidence was still part of the plaintiffs/respondent’s case. It made the difference between the case of the two sides. The trial court’s decision was based on this difference. The court was right to have acted on the difference in the weight of the cases of the two sides. That was the result of the trial court’s use of the “imaginary scale.”
The second issue, for the foregoing, is also resolved in favour of the respondents. There is no merit in the appeal. The decision of the trial court is hereby affirmed. N3,000.00 cost is awarded in favour of the respondents.
Other Citations: (2000)LCN/0798(CA)