Nwalem Nweke V. Enuch Nwuzi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD, J.C.A (Delivering the Leading Judgment)

This appeal once again brings into focus the place of precedents and stare decisis in the adjudication process. The question the Appellants seem to ask is why the principles enunciated in earlier cases should govern similar facts as occur in the instant matter. In concrete terms, the Appellants seek to know what customary arbitration connotes and whether by the facts of the instant case one could be said to have occurred and binds parties herein. A subsidiary issue in the appeal pertains the role of the appellate court in the event of a trial court’s failure to evaluate, correctly, the evidence led by parties for and against the case before that court. The facts that brought about the appeal are brief and undisputed. I shall state them at once.

The Respondent as plaintiff commenced suit No. AHC/164/86 against the Appellants being the defendants at the Rivers State High Court claiming some declaratory and injunctive reliefs in respect of some parcels of land in Etche Local Government Area, The Plaintiff also sought damages for defendant’s trespass unto the said parcels of land. The defendants counter claimed seeking similar reliefs in respect of the same parcels of land.

It would appear that Respondent’s claim was eventually struck out following his failure to file his statement of claim. Issues were however joined by parties who had settled their pleadings in respect of the counter claim filed by the Appellants. Following Respondent’s formal application and the court’s leave thereon for parties to explore peaceful settlement out of court, a peace panel comprising representatives of both sides was constituted. Mr. Enoch Nwuzi, the respondent herein was a member of the panel who at the conclusion of its deliberations refused to accept the panel’s report. Sequel to this refusal, the Appellants by their motion on notice prayed the court for the following orders:

“1. An order enforcing the traditional arbitration report/settlement in this case against the parties

2. An order making the said arbitration report/settlement the judgment of this court in the counter-claim of the Appellant”

Paragraph 9, 10, 11, 15, 16, 18 and 21 of the twenty two paragraph affidavit in support of Appellants’ application for the foregoing reliefs are hereunder reproduced for ease of reference.

“9. Thereafter, and at the instance of the respondent’s a Chief Amos Nwala, the Ochimba of Edegelem Community applied to this Honourable Court for settlement out of Court. The permission was granted.

10. On various dates from 18/2/92 11/2/9, 2/3/98, 14/5/93, 24/6/95, 9/3/99 etc. this matter was adjourned for final settlement to be finally effected and reported to this Honourable Court.
11. The settlement report was finally presented by the team of arbitrators.
12. Before the arbitration panel, the two parties agreed to be bound by the of the panel as final.
13. The of the panel was in accordance with the native w and custom of Etche people applicable to Edegelem in Igbo-Etche.
14. The report of the panel was reduced to writing and later submitted to this Honourable Court. The said report is herewith attached and marked Exhibit “NWALEM NWEKE 3′:
15. That when the arbitration on report was submitted t the court, the respondent disown it and through his Solicitor Messrs C.V. Georgewill & Co. presented a different term of settlement which is quite inconsistent with the verdict of the arbitration panel as his terms of settlement. A copy of the said terms of settlement is herewith attached and marked Exhibit “NWALEM NWEKE 4,:

The plaintiff/Respondent challenged defendants/Appellants foregoing paragraphs in his eleven paragraph counter affidavit. Paragraph 6, 7, 8, 9 and 10 of which are hereunder particularly supplied:

“6. That the said counsel also informed me and I verily believe him that the said DW1 (the Applicant’s witness) was cross-examined on the 17/6/97.

7. That I do know that after that cross examination which was not concluded, the parties agreed to settle this matter out of court.
8. That I also know that the terms of settlement drawn up by the Arbitrators were not accepted by the parties copies of 2 sets of unaccepted Arbitration on terms are hereby attached as EXHIBITS – ‘A’ and ‘B’.
9. That I also know that since that attempt at settling the matter out of court the parties have not continued with the trial.
10. That up till now I do know that the parties have not been able to settle the matter amicably and so there is no traditional arbitration Report/Settlement.”

The defendants/Appellants filed a further and better affidavit in reaction to Respondents counter-affidavit.

The court heard oral arguments from both counsel at the end of which it dismissed the application in its considered ruling dated 26th March, 2001, Being dissatisfied with the ruling, the defendants/Applicants by a Notice dated 17th February 2003 have appealed to this court on five grounds, parties will be referred to as Appellants and Respondent forthwith.

They have, in keeping with the rules of this court, filed and exchanged briefs of argument. Same have been adopted and relied upon as arguments at the hearing of the appeal. The three issues, formulated in the Appellants, brief of argument as calling for determination in the appeal read:

“1. Whether the court below properly applied the principles of law in the cases of – Ohiari v. Akabueze (1992) 2 NWLR (Pt.221.) 7 and Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 to the facts and circumstances of this case.

2. whether the Respondent could resile from the decision of the customary arbitrators after willingly, voluntarily and out of his own volition and – freewill submitted to the same.
3. whether the court below appreciated the quality of the affidavit evidence before it in the ruling the subject matter of this appeal.

The respondent’s brief contains two issues for the determination of the appeal thus: