Linus Okereke V Chinyere Nwankwo (2003)
LAWGLOBAL HUB Lead Judgment Report
D.O EDOZIE
Before the Customary Court Ideato, sitting at Urualla Imo State, the Respondent on record as Plaintiffs in suit No. CC/ID/4/87 filed on 6th February 1987 claimed against the present Appellants as Defendants the following reliefs:
“(1) Declaration that the Plaintiffs are entitled to the customary right of occupancy of a piece or parcel of land called “OFEMMIRI” situate at Ndimoko Arondizuogo in Ideato Local Government Area.
(2) N400.00 being cost for palm fruits harvested on the said land by the defendant without the permission of the Plaintiff
(3) Injunction restraining the defendants their servants or agents from further entry into the said land.
The Defendants denied liability for the claim whereupon both parties testified and called witnesses to substantiate their claims or defences.
For the Plaintiffs, a resume of their case is that the land in dispute belonged to the 1st Plaintiff’s father Wilson Nwankwo Mgbemena. The 1st Plaintiff was retained in her father’s house to procreate for her father who had no surviving male offspring in accordance with the custom of their people of Ndimoko known as “Ihanwanyi” by which custom she is entitled to inherit the estate of her father. The 2nd Plaintiff now deceased was the mother of the 1st Plaintiff and as the then surviving widow of late Wilson Nwankwo was equally entitled to his estate. It is the Plaintiffs’ case that Okereke the father of the two Defendants and one Onyeji were visitors who came to live with Wilson Nwankwo the 1st Plaintiff father at Ofemmiri land not in dispute where they erected buildings and occupied. Following persistent misunderstanding between them, Wilson Nwankwo moved out Onyeji and put him in his abandoned uncle’s house on the portion of the Ofemmiri land now in dispute. Onyeji occupied that house while Wilson Nwankwo harvested all the economic trees within the land dispute. Onyeji was blessed with a daughter called Mgbeke or Christiana but he had no male child. On the demise of Onyeji, Okereke his brother or closest adult relation and the father of the Defendants was called upon to undertake the arrangements for his funeral ceremony but Okereke bluntly declined to do so. In the circumstance, Wilson Nwankwo bore the expenses of the funeral ceremony and thereafter took over the house where Onyeji lived and also assumed responsibility for the upkeep of Onyeji’s daughter whose bride price he subsequently received without objection from Okereke the Defendants’ father. The Plaintiffs further stated that Wilson Nwankwo died on 4th November 1971, and a day after, the 2nd Defendant without the consent of the Plaintiffs started rebuilding the house on the land in dispute where Onyeji lived while at the same time reaping the economic fruits on the land.
The Plaintiffs reported the matter to the extended members of the family – Umunna known as Akajiofor whose attempt at settlement was aborted by the 2nd Defendant who failed to show up when the matter was slated for settlement. On account of that, the Plaintiffs commenced the action leading to the instant appeal.
For the Defendants who called four witnesses, their case is that the land in dispute belonged to their uncle Onyeji who bought it from someone they could not tell. At the time of their father’s death, they were minors and Wilson Nwankwo held their father’s estate in trust for them. As they grew up, they requested Wilson Nwankwo to show them their father’s estate as well as estate of Onyeji their uncle. Wilson Nwankwo showed them their father’s property at Ala Obi-Onu but as regards Onyeji’s land, Wilson Nwankwo told them that it had passed to Reverend Egbuonu who performed the funeral ceremony of Onyeji. On being contacted, Reverend Egbuonu handed over to them the land in dispute upon the refund to him of the sum of 5 pounds (five pounds) being the amount of the expenses incurred by Revered Egbuonu with respect to the funeral ceremony of Onyeji. Thereupon, the Defendants took possession of the land in dispute and remained in possession thereof until 1986 when the 1st Plaintiff cleared it in preparation for cultivation. In the dispute that subsequently ensued, a panel of arbitrators comprising of council of elders known as “Umunna Okolobi-Imoko” deliberated over the matter and in its decision reduced into writing, Exhibit ‘B’, the land in dispute was adjudged to belong to the Defendants, but the Plaintiffs rejected the decision hence the present action.
At the conclusion of the proceedings in court, a visit to the locus in quo was undertaken by the trial court and at the end, the Customary Court Ideato upheld the Plaintiffs claims in a judgment delivered on 12th July, 1988 in which it encapsulated its findings thus:-
“The D.W. 1 admitted at the locus that Okereke died before Onyeji and yet claimed that Okereke is the direct heir to Onyeji who died after him – another contradiction.
From the above, the court therefore believes that the Plaintiffs Chinyere Nwankwo and Mgbekeocha Nwankwo have the customary right of occupancy on the disputed land Exhibit ‘A’. The Defendants have to pay N200 costs of the Plaintiffs. The Defendants should no longer make incursions into the said land. However, as the second Defendant (D.W.1), Ogbonaya Okereke is living near the said land, the court orders the Plaintiffs to concede thirty feet extent of land to the second defendant’s compound wall…”
Dissatisfied by that decision, the defendant appealed to the Customary Court of Appeal, Imo State holding at Owerri and in its judgment delivered on 21st March 1990 in Appeal No CCA/A/C0/88, the defendants’ appeal was dismissed. Their subsequent appeal to the Court of Appeal, Port-Harcourt division in appeal No. CA/PH/208/82 was equally dismissed on 28th March 1996. This is a further appeal by the Defendants now Appellants from the judgment of Court of Appeal in favour in favour of the Plaintiffs hereinafter referred to as the Respondents. This appeal is predicated on seven grounds of appeal from which the Appellants in their brief of argument distilled the following three issues for determination:
“(i) Whether Exhibit “B” in the circumstances of this case is a binding customary arbitration on the parties creating an estoppel?
(ii) Was the Court of Appeal right in holding that the provisions of section 46 of the Evidence Act did not apply to this case?
(iii) Whether the Court of Appeal was right in affirming the decisions of the two lower courts that the Respondents are entitled to the customary right of occupancy of the ‘Ofemmiri’ Land in dispute?”
No brief was filed on behalf of the Respondent. On 13th January 2003 when the appeal came up for hearing, learned counsel for the Appellants adopted their brief of argument and drew attention to a list of additional authorities filed and urged this Court to allow the appeal. The Respondents were represented by counsel who did no more than announce his appearance.
The focus of the Appellants’ first issue for determination is on Exhibit ‘B’ which is a document captioned “settlement of land dispute by Okolobi Imoko Family Members” containing the record of proceedings and the decision of the arbitrators on the dispute between the parties which document was admitted in evidence at the trial Customary Court, Ideato. The contention of the Appellants is that the said Exhibit ‘B’ is a legally binding customary arbitration creating estoppel and that the Court of Appeal was in error to have held otherwise. It was contended that both parties to the arbitration, agreed to be bound by and accepted its award or decision. In those circumstances it was submitted, the decision of the customary arbitration was legally binding on the parties and it was not open to any of them to later resile from the decision. The following cases were cited and relied upon for the proposition:- Philip Njoku V. Felix Ekeocha & Anor (1972) 2 E.C.S.L.R. (Pt.1) 188 at 205, Agu V. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 424, Ohiaeri V. Akabeze (1992) 2 NWLR (pt. 221) 1 at 24. Counsel argued that the lower court, that is, the Court of Appeal had misapplied the decision in Awosile V. Sotunbo (1992) 5 NWLR. (pt. 243) 415, leading to its erroneous view that both the trial Customary Court and the Customary Court of Appeal were right in failing to appraise Exhibit “B”. It was stressed that Exhibit B disclosed facts favourable to the Appellants which if the trial court had adverted to, it would have arrived at a different decision. Counsel submitted that there were inconsistences between the evidence of P.W. 3 and P.W.4 in the trial court and their evidence in Exhibit ‘B’ on the question about Reverend Egbuonu handing over the land in dispute to the Appellants and further that while it was recorded in Exhibit ‘B’ that P.W. 4 participated in the customary arbitration proceedings, he denied doing so before the trial customary court.
The main question under consideration is the validity or binding effect of Exhibit “B” which is the proceedings and decision of a non-judicial body, that is a body not vested with judicial powers by virtue of section 6 of the 1979 or 1999 Constitution. It is a body knows as customary arbitrators. Speaking on the subject in Raphael Agu V. Christian Ikewibe (1991) 3 NWLR (pt. 180) 385 at 407, Karibi-Whyte, JSC defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this court, see Ohieari V. Akabeze (1992) N.W.L.R. (Part 221) 1 at 23, 24, Awosile V. Sotunbo (1992) 5 N.W.L.R (Part 243) 514 at 532, Oparaji V. Ohanu (1999) 7 N.W.L.R. (Part 618) 290 at 308, Odonigi V. Oyeleke (2001) 6 N.W.L.R. (Part 708) 12 at p.28. (2001) 4 SCM, 127. From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:-
“1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2 that is was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3 that the arbitration was in accordance with the custom of the parties or of their trade or business;
4 that the arbitrators reached a decision and published their award and;
5 that the decision or award was accepted at the time it was made.”
Bearing the above conditions in mind, it is easy to determine the validity or otherwise of Exhibit ‘B’ with respect to whether the Respondents accepted the decision of the arbitrators. In this regard, it is relevant to quote in part, the evidence-in-chief of Ogbonnaya Okereke 2nd Appellant where at p.30 line 26 et seq of the record he stated thus:-
“At last our Umunna Okolabi Imoko approached Eze Dike, (sic) took the matter and settled the matter for us (the plaintiff and the defendants) and in their decision the Umanna said that the land is ours (defendants) and that the plaintiffs should stay (sic) clear. This is the settlement document.”
Court: The settlement documents of Okolo-Obi Imoko Family is hereby labeled Exhibit B (numbers 1-9 pages)
“Again the plaintiffs refused the verdict of Umunna and sued us to court”
By the above excerpt the Appellants are saying that the Respondents did not accept the arbitral award as per Exhibit ‘B’, the legal implication being that Exhibit ‘B’ is not binding on the parties. The court below was right when on page 253 of the record of appeal it observed thus:-
“Exhibit ‘B’, as far as I see it is no more than an attempt by the Okolobi Imoko Family members at a settlement of the dispute between the respondents and the appellants.
The attempt failed because the respondents rejected the decision handed down and headed for the courts. By instituting this action, the respondents have demonstrated that they were not bound by that decision. See Awosile V. Sotunbo (supra) where the Supreme Court per Nnaemeka-Agu observed thus:-
“…His filling of a writ of summons was a positive demonstration that he never believes there was a binding arbitration and of his abandonment of the gentlemen’s agreement reached between them.”
In the above statement, the court below did not misapply but correctly applied the decision in Awosile V. Sotunbo (supra). I am therefore unable to agree with the Appellants’ counsel that the lower court was in error to hold that Exhibit ‘B’ was not legally binding on the parties.
With respect to the contention that Exhibit ‘B’ discloses some facts favourable to the Appellants, which if properly evaluated would have titled the case in favour of the Appellants, I have carefully gone through the document. It is to be noted that the evidence of witnesses in Exhibit ‘B’ is no evidence before the trial customary court and therefore the trial court was not expected to have evaluated that evidence. See Awara V. Alalibo (2002) 12 S.C. (Pt. 177 at 116, (2002) 13 SCM, 71. Alade V. Aborishade 5 F.S.C 167. At any rate, the case of the Appellants in Exhibit ‘B’ is not different from their case before the trial court. Since the evidence of the witnesses before the trial court was duly evaluated, that of the witnesses in Exhibit ‘B’ had been indirectly considered as well.
On the alleged inconsistency in the evidence of P.W. 3 and P.W. 4, it does not appear to me that there is any such inconsistency as neither of the two witnesses gave evidence either before the arbitration or at the trial court with respect to whether Rev. Egbuonu handed over the land in dispute to the Appellants.
I am however aware that P.W. 4 was recorded in Exhibit ‘B’ as having taken part in the arbitration proceedings but when cross-examined on that at the trial court, he denied it.
SC.108/1998